Tribunal Criminal Tribunal for the Former Yugoslavia

Page 591

1 Monday, 21 January 2002

2 [Pre-Trial Conference]

3 [Open session]

4 --- Upon commencing at 9.35 a.m.

5 JUDGE AGIUS: Please have the accused brought in.

6 [The accused entered court]

7 JUDGE AGIUS: Good morning, everybody. Could the registrar please

8 call the case.

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

10 IT-99-36-PT, the Prosecutor versus Radoslav Brdjanin and Momir Talic.

11 JUDGE AGIUS: I shall first ask Mr. Brdjanin and General Talic

12 whether you can hear me in a language that you can understand.

13 Mr. Brdjanin, please.

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

15 JUDGE AGIUS: General Talic?

16 THE ACCUSED TALIC: Yes, Your Honour.

17 JUDGE AGIUS: Appearances. The Prosecution?

18 MS. KORNER: Your Honour, Joanna Korner and Andrew Cayley for the

19 Prosecution, assisted by Denise Gustin, case manager.

20 JUDGE AGIUS: Thank you. Appearance for Mr. Brdjanin.

21 MR. ACKERMAN: Your Honour, I'm John Ackerman. I appear with my

22 co-counsel, Milka Maglov, from Banja Luka, and we have an interpreter with

23 us by the name of Ms. Ratislava Mirkovic.

24 JUDGE AGIUS: And for General Talic?

25 MS. FAUVEAU: [Interpretation] I am Natasha Fauveau, attorney at

Page 592

1 the Paris bar. I represent Mr. de Roux and Mr. Pitron, who are counsel

2 for Momir Talic.

3 JUDGE AGIUS: Thank you.

4 MS. KORNER: Your Honour, I wonder if I may -- I know that Your

5 Honour has your own agenda, but I wonder if I may ask that Your Honour

6 goes into closed session straight away because there is matter which we

7 need to raise which is of some urgency in the light of an order that we've

8 had from Your Honour giving us a deadline of 11.00.

9 JUDGE AGIUS: Okay. Permission granted.

10 MS. KORNER: Thank you very much.

11 JUDGE AGIUS: Please to go in closed session.

12 THE REGISTRAR: Your Honour, closed or private session?

13 JUDGE AGIUS: The request is for a closed session, no?

14 MS. KORNER: Your Honour, Mr. Cayley tells me it could be private.

15 JUDGE AGIUS: Because I understood that you wanted a closed one.

16 So it will be a private one.

17 [Private session]

18 [redacted]

19 [redacted]

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21 [redacted]

22 [redacted]

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25 [redacted]

Page 593












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12 [redacted]

13 [Open session]

14 THE REGISTRAR: Your Honour, we are in open session now.

15 JUDGE AGIUS: Okay. Thank you.

16 I will deal first with the aspect of motions, pending and

17 decided. You know that last Friday, the Appeals Chamber delivered its

18 judgement on the motion by General Talic for leave to appeal against the

19 decision of Judge Hunt of the 23rd of November, 2001. I would imagine

20 that you have been served with a copy.

21 MS. FAUVEAU: [Interpretation] Yes, Mr. President.

22 JUDGE AGIUS: Merci. So that brings me to something which is of

23 relative importance because more or less it's become a formality more than

24 anything else. But as far as the fourth amended indictment, now we have a

25 final decision.

Page 595

1 And I think I would proceed by asking the Defence counsel for both

2 the defendants whether it is their desire that I have the fourth

3 indictment as amended and as updated by the Prosecution following the

4 decision without --

5 Yes, Ms. Korner.

6 MS. KORNER: Your Honour, I'm very sorry. But by our records it

7 may be that there is actually still one final outstanding motion.

8 JUDGE AGIUS: There is one motion by General Talic.

9 MS. KORNER: Of a request for dismissal.

10 JUDGE AGIUS: Yes, exactly. But that's going to be decided.

11 MS. KORNER: And Your Honour doesn't feel that that will have any

12 effect on the indictment.

13 JUDGE AGIUS: Well, actually, it's with regard to all the

14 proceedings -- all the pre-trial proceedings.

15 MS. KORNER: That's right.

16 JUDGE AGIUS: That's the request. It doesn't refer specifically

17 to the indictment or to the substance of the indictment.

18 MS. KORNER: Yes. I think -- Your Honour, that's probably right.

19 I don't think it does. It is more --

20 JUDGE AGIUS: So basically, I mean, the decision may ultimately,

21 if it's in favour of General Talic's motion, will obviously bring us back

22 to square one, and our efforts would have to more or less be redirected

23 elsewhere and start possibly again. But it does not affect what I'm

24 saying now, in actual fact now. The matter of the indictment as such and

25 the objections and preliminary pleas that were raised with regard to the

Page 596

1 fourth amended indictment have now been settled, and I think we could

2 proceed with the reading, unless there is an exemption forthcoming from

3 the Defence side.

4 And I would ask Mr. Ackerman first.

5 MR. ACKERMAN: Your Honour, we would waive any reading of the

6 indictment. However, I think the indictment that we're actually operating

7 on right now is called something like corrected fourth amended

8 indictment.

9 JUDGE AGIUS: Yes, you are right, Mr. Ackerman.

10 MR. ACKERMAN: And the other thing, I think - although I could be

11 told by the registrar in just a second that I'm wrong about it - but that

12 indictment has not been translated into B/C/S and served upon the

13 defendants. That would be a problem, if that's the case.

14 JUDGE AGIUS: Yes, that would be a problem, if that's the case.

15 MR. ACKERMAN: I think that's the case, but I'm not positive about

16 that. And I wouldn't have raised it now unless you raised it. And I wish

17 I'd checked before I walked in here before I started talking about it, but

18 I think that's the case.

19 JUDGE AGIUS: Yes, Madam.

20 MS. FAUVEAU: [Interpretation] I agree with --

21 JUDGE AGIUS: There's something wrong with --

22 Yes. Please go ahead.

23 MS. FAUVEAU: [Interpretation] I agree with the concern that

24 Mr. Ackerman expressed as regards the translation of the indictment into

25 Serbo-Croatian; however, I should also add that I -- and here I'm sure,

Page 597

1 because I checked. I know that the pre-trial brief of the Prosecutor was

2 not translated into Serbo-Croat either. Therefore, in these proceedings

3 before the Tribunal, the brief gives additional clarifications, and it's

4 considered as an annex to the indictment.

5 If the brief has the additional details about the charges in the

6 indictment, and if the accused does not have the brief, then there's no

7 logic here. I think not only the indictment must be translated into

8 Serbo-Croat but also the pre-trial brief has to be translated into

9 Serbo-Croat. I'm sure, Mr. President, that you will agree with the

10 concern that I'm expressing because of the right of the accused to have --

11 to be familiar with the charges in his own language is one of the

12 fundamental rights of Defence, and the Statute of this Tribunal has

13 enshrined that concept.

14 JUDGE AGIUS: Yes, Ms. Korner. I think the first of these points

15 has to definitely be clarified, whether the fourth -- the corrected fourth

16 amended indictment has been made available also in the language that the

17 defendants understand.

18 MS. KORNER: I'm happy to say, Your Honour, it's absolutely

19 nothing to do with us. It's the Registry who deals with those matters.

20 JUDGE AGIUS: It has to be established.

21 MS. KORNER: Yes, Your Honour. We'll have to find out from the

22 Registry whether that's happened. We don't know. We haven't been told

23 one way or the other, and we wouldn't be told. It's not a matter for us.

24 Can I say in respect of the pre-trial brief, I don't know whether

25 it's been translated or not. But it's fair to say we had a response, as

Page 598

1 Your Honour knows, so that instructions must have been taken.

2 JUDGE AGIUS: You will understand, Ms. Korner, that's why I said

3 the first of these is more important to me, because the other one was --

4 as you said, in respect of whether it was translated or not, followed up

5 by response.

6 [Trial Chamber and legal officer confer]

7 JUDGE AGIUS: Yes. I think the -- we will be making a find-out to

8 see whether the corrected fourth amended indictment has been translated

9 and whether it has been amended.

10 I think your other objection that the pre-trial brief of the

11 Prosecution may not have been translated into B/C/S or made available to

12 your clients in B/C/S is not that important, for the very simple reason

13 that following that pre-trial brief, you entered a response -- a formal

14 response, and that would nullify any legal objection that --

15 Yes, Mr. Ackerman.

16 MR. ACKERMAN: Your Honour, I want to join that objection. And

17 I'm looking right now -- it's my recollection - and of course my

18 recollection is not always correct - that upon the service of the

19 pre-trial brief and receipt of an order to respond to it within a fairly

20 short period of time, I filed a motion asking for an extension of that

21 time. And part of the basis, I believe, of my motion was that it had not

22 been translated into my client's language and, therefore, I was unable to

23 consult with him about it. And it's my further recollection that that

24 motion was denied and I was ordered to file it on the date that had been

25 suggested. So I think I have raised the issue some time ago. And it's my

Page 599

1 further understanding that it was only last week that the Registry

2 undertook any effort to have it translated. And I'm getting ready to

3 look -- and if I'm incorrect about that, I will certainly let you know.

4 JUDGE AGIUS: Yes. And we will be checking, too.

5 MR. ACKERMAN: Thank you.

6 JUDGE AGIUS: So there is an outstanding motion, to which I

7 referred last Friday during the Pre-Trial Conference that we had. And as

8 promised, that will be decided before we start our labours on Wednesday.

9 There is also another outstanding motion filed by Mr. Ackerman

10 relating to your objection to Rule 92 bis procedure, and this, I think,

11 was handed down or is being handed down today. The decision has been --

12 yes. Okay. Because actually, what happened was it was ready on Friday.

13 I had it signed, but then between one thing and another, it remained on my

14 desk, and I doubt whether it reached the Registry in time -- in time on

15 Friday and, therefore, one had to change the date after that. But in any

16 case, I think if you haven't had it, you should be having it this

17 morning.

18 MR. ACKERMAN: If we're talking about the same motion, I think we

19 got it on Friday.

20 JUDGE AGIUS: Then it may have reached -- I may have -- yes,

21 because actually, I left my Chambers and I walked in, and it suddenly

22 dawned on me that I left it at my desk. So -- but you had it on Friday.

23 MS. KORNER: Your Honour, we haven't had it. I'm not sure -- it

24 was a ruling on Mr. Ackerman's objection to the Rule 92.

25 JUDGE AGIUS: Yes, exactly, about the Presiding Officers not being

Page 600

1 present --

2 MR. ACKERMAN: Two different ones.

3 JUDGE AGIUS: -- walking out.

4 MS. KORNER: Your Honour, we have that.

5 JUDGE AGIUS: Okay. That's the one I'm referring to.

6 MR. ACKERMAN: We have it, too.

7 JUDGE AGIUS: Okay. Then, of course, as you say, there is another

8 objection, another motion or objection by Mr. Ackerman with respect to

9 Rule 92 bis admission of witness statements number one. Okay. That was

10 filed on Friday. But there is one -- there are the four motions by

11 Mr. Ackerman to delay the testimony of four witnesses to which reference

12 was made amply during Friday's sitting. There were actually five. As you

13 recall, one was decided orally with respect to Mr. Donia. The other four

14 I reserved to decide upon orally either today or on Wednesday. Actually,

15 the idea was today because we had meant to start the trial on Monday.

16 However, now probably they will be decided on Wednesday unless in the

17 meantime, as a result of the exchange of documents that should have taken

18 place if it has taken place, one or more of these motions are going to be

19 withdrawn. I don't know.

20 MS. KORNER: Your Honour, we supplied Mr. Ackerman with all the

21 documents that were mentioned in the motion, but over the weekend, I

22 understand from Ms. Gustin we've had a further request for further

23 documents that Mr. Ackerman doesn't have.


25 MS. KORNER: I'm not sure exactly how many they are at the moment,

Page 601

1 and I'm not sure exactly to which witness they relate.

2 I think -- I appreciate the difficulty. Mr. Ackerman has been

3 working for the large part over this case on his own with very little

4 assistance. It's been a difficulty for him. I'm well aware of that. But

5 I think it may help, rather than this piecemeal request, if Mr. Ackerman

6 could check through the various lists of documents for which he has signed

7 receipts to see what he now says he's missing. Your Honour, as I said,

8 it's not that simple a job to re-extract the documents, to redisclose

9 them.

10 JUDGE AGIUS: Shall we postpone this until Wednesday,

11 Mr. Ackerman? In the meantime, perhaps you would have received the other

12 documents that you have asked for.

13 MR. ACKERMAN: Your Honour, yes. There's no reason to take any of

14 that up at the present time. The problem, and I'll just explain it so

15 that maybe the Court will appreciate it, there are thousands and thousands

16 and thousands and thousands of pages of documents. I think we're up

17 around 100.000, somewhere in that neighbourhood.

18 JUDGE AGIUS: It has gone down to half of what I was told

19 initially during the first Pre-Trial Conference.

20 MR. ACKERMAN: Maybe it's even more.

21 JUDGE AGIUS: At that time it was 200.000.

22 MR. ACKERMAN: Whatever it is - and I just haven't counted lately

23 - it's an extraordinary amount. And for me to take the time to sit down

24 and see if I have every document that is on the Prosecution's list will

25 mean that we can't possibly start this trial for another two or three

Page 602

1 weeks because I'll be doing that exclusively.

2 The only thing I can do is, as I get from the Prosecution the list

3 of exhibits they intend to use over the next three or four weeks, is go

4 through that list as rapidly as I can and make sure I have them. It's

5 complicated by the fact that I made a tactical error two years ago when I

6 started cataloguing these documents, and that was I thought the ERN

7 numbers that are on them were of no significance since the Prosecutor was

8 putting their own numbers on them. So they're all catalogued by that

9 number. And then when I say I need document such and such that's part of

10 7.163, they say, "Well, give us the ERN number." Well, you know, that

11 takes me an hour to try to find out what the ERN number might be. So, you

12 know, it's a big issue.

13 The other thing, it's -- Ms. Korner just told you how difficult it

14 is for them to retrieve and resupply a document they believe they've

15 already supplied, and that just tells you how difficult it is for me to go

16 through the process of trying to find these documents to see if I have

17 them. And what I'm doing is I'm proceeding as rapidly as I can through

18 them. I will have some additional help starting the end of this week.

19 It's been approved to help me do that sort of thing, somebody who will

20 actually manage documents for me, and then we can proceed a little faster,

21 but I'm doing the best I can consistent with trying to get ready to

22 cross-examine witnesses that are coming this week.

23 JUDGE AGIUS: I can assure you that I appreciate the difficulties

24 that you each have, and you will find my cooperation. So we'll visit this

25 problem again on Wednesday when we start the trial. And then possibly

Page 603

1 also as we go along, because what might apply to one witness might not

2 apply to another.

3 So if you are in agreement, we can, in the spirit of cooperation

4 more than anything else and because it's more practical to approach it

5 this way, we'll do it this way. Okay.

6 There is then seventh motion from the Prosecution for additional

7 protective measures. And before the Tribunal comes to a decision, I would

8 like to know whether there is some sort of reaction from the Defence.

9 This is a fairly recent motion, and I don't know if you have had time to

10 file a response. I haven't come across any response from you as yet.

11 MR. ACKERMAN: I will make an oral response right now. I have no

12 objection to the request.

13 MS. FAUVEAU: [Interpretation] We have none either.

14 JUDGE AGIUS: So this will make the task of this Tribunal easy.

15 This is, however, a motion which I will not decide orally. I will have a

16 proper order issued in due course in terms of your request. Okay.

17 MS. KORNER: Thank you, Your Honour.

18 JUDGE AGIUS: Now we come to some or several very important

19 aspects that we need to discuss here in preparation for the trial, and I

20 would first mention a case management strategy.

21 More or less, I think without needing to go into much detail, I

22 understand that there is already an agreement on the part of the

23 Prosecution to organise your case municipality by municipality. I have a

24 confirmation of that.

25 MS. KORNER: Your Honour, yes. That's by and large light --

Page 604

1 light -- right. There are obviously certain areas which cross over all

2 municipalities; for example, expert testimony on religious destruction and

3 the like.

4 JUDGE AGIUS: Yes. Could I ask you also with regard to the aspect

5 of joint criminal enterprise whether you are -- you intend to tackle that

6 or to bring evidence related to that particular aspect of the trial in the

7 beginning or as you go along?

8 MS. KORNER: It really emerges as we go along. It comes from a

9 number of witnesses who are in a position to deal with that and indeed

10 from a number documents, in particular, the minutes of the various

11 assembly minutes -- I'm sorry -- the minutes of the various assemblies

12 that were held in the run-up to the conflict.

13 JUDGE AGIUS: In other words, it's an aspect that I would imagine

14 permeates the whole process and the whole -- all the municipalities.

15 MS. KORNER: It does.

16 JUDGE AGIUS: And therefore, you prefer or you intend to deal with

17 it municipality by municipality as the case arises and as you need to

18 prove the joint criminal enterprise arises.

19 MS. KORNER: Your Honour, yes. At the end of the evidence, we

20 will be drawing together what we suggest is the evidence that there was a

21 joint criminal enterprise.

22 JUDGE AGIUS: Now, I am going to suggest to you something which I

23 think will be important and which I hope will meet with your agreement or

24 your consensus. It is my suggestion to you, to smooth the proceedings

25 that we will have to go through in the next 18 months, if not two years,

Page 605

1 that each time we are planning to move into a new municipality we will

2 have, beforehand, a short Status Conference in preparation of what is

3 intended to happen or is planned to happen for that or in that

4 municipality phase of the trial.

5 The whole idea is that what is really the raison d'etre behind the

6 whole idea of a Status Conference for -- in the pre-trial stage will also

7 be applied as a sort of a practice in the course and during the duration

8 of the trial before we start each municipality. It will give us a chance

9 to organise ourselves and, if necessary, the Tribunal will be prepared to

10 give you all the time you need to organise yourselves in preparation of

11 the new phase that will be approached, but we will do it together

12 initially. Then after the Status Conference, the various Status

13 Conferences I'm referring to, obviously you will have all the

14 opportunities to organise yourselves.

15 What is your response to this?

16 MS. KORNER: Your Honour, we think that's an eminently sensible

17 suggestion, if we may respectfully say so. The other matter that Your

18 Honour may wish to examine in these short Status Conferences is whether

19 the -- any facts that come out can be agreed in advance, and, for example,

20 whether witnesses who the Prosecution intends to call, whether there is

21 any part of their statements which can be led or summarised to shorten

22 matters.

23 JUDGE AGIUS: Yes. I will respond to that very quickly. In the

24 meantime, Mr. Ackerman.

25 MR. ACKERMAN: Well, I also agree that that makes a great deal of

Page 606

1 sense, Your Honour. I think it will help us a lot, a good idea.

2 JUDGE AGIUS: Defence counsel for Mr. Talic.

3 MS. FAUVEAU: [Interpretation] I agree completely with your

4 proposal.

5 JUDGE AGIUS: So I am -- basically, I am very happy that this has

6 gone down well with you. And in addition, may I just say or confirm to

7 you that one of the ideas on having these Status Conferences held from

8 time to time during the course of the trial is precisely what you have

9 just mentioned. But in addition, I will be suggesting a system whereby on

10 a weekly basis we will also visit these suggestions that you have made,

11 Ms. Korner, and which will apply equally to the Office of the Prosecutor,

12 perhaps more so than to the Defence at this particular stage of the trial,

13 but I will come to that later.

14 May I also deal with something which I consider very important,

15 particularly for the proper running of this trial and for the whole

16 concept of a fair trial in due process. I would not allow a situation

17 whereby the Defence, as well as the Trial Chamber, are not aware as to the

18 order in which witnesses will be called to testify. I understand that it

19 is definitely the intention of the Prosecution to observe this cardinal

20 rule, and the documentation that was handed to me last week precisely

21 shows that that is the intention. But I want to make it clear that at all

22 times and in real good time, the Defence should always be put in a

23 position in which they know precisely the order which is going to be

24 followed, so that they are in a position to prepare for due

25 cross-examination and also to avoid the possibility of the Defence coming

Page 607

1 forward and saying, "We didn't know. We were not expecting this

2 particular witness to give evidence now. We are not prepared for

3 cross-examination now." So it is an understanding -- I'm not going to

4 make any orders to this effect, but it is an understanding that this is

5 the practice that will be followed by your office, Ms. Korner.

6 Okay. Now, what I was going to suggest - and it's something that

7 I hinted to barely a few minutes ago - is that -- and I also understand

8 that this is a practice that has been applied by some other Judges in some

9 other trials, although it's not a constant practice or a universal

10 practice in this Tribunal. My suggestion to you is that every Thursday

11 afternoon - give and take Thursday afternoon, because it could certain

12 weeks be Friday or it could be Wednesday, depending on which week we may

13 happen to find ourselves - but my suggestion to you is that on each

14 Thursday afternoon, the Prosecution will file with the Registry a list of

15 the witnesses it intends producing the following week. I don't think that

16 would create big problems to the Prosecution because more or less you are

17 always in a position to know which witnesses you're going to bring forward

18 or you intend to bring forward the following week.

19 Now, obviously there may -- I mean, this is not an absolute

20 commitment, in the sense that you may find yourself faced with a witness

21 that takes longer to testify and which would mean bringing one or two

22 witnesses less the following week. But the whole idea is to have a clear

23 picture of what the week ahead is likely to look like.

24 Yes, Ms. Korner.

25 MS. KORNER: Your Honour, I was only really rising because Your

Page 608

1 Honour was addressing me. But can I just mention two matters? The first

2 is: Is it necessary to file it with the Registry, as opposed to, say,

3 telling Your Honour and the Defence verbally?

4 JUDGE AGIUS: No. You can do that, obviously.

5 MS. KORNER: It's just this place seems to exist on a glut of

6 paperwork, and I would have thought anything less would be --

7 JUDGE AGIUS: No. Anything identical or similar to the document

8 that you were handed last Friday would be fine enough with me, and I would

9 suppose that the Defence would not insist on the formality. I mentioned

10 the formality because I wanted a reaction in any case.

11 MS. KORNER: Yes. But Your Honour, may I just mention one thing?

12 It, of course, is helpful if we can be given an indication in advance

13 before we file this list how long cross-examination is likely to take.

14 JUDGE AGIUS: That's my next point, which I will address now to

15 the Defence.

16 The same applies to you, the Defence counsel. And although I'm

17 sure that there will be some sort of reservations made, particularly at

18 the early stages of the trial, I would invite you to be prepared to come

19 along the same way and, if possible, confer with the Prosecution before

20 this planning -- Thursday planning is made every week. It will only take

21 you a few minutes, more or less. If there is this debate or dialogue

22 going on between the two sides, you should be in a position to provide the

23 Tribunal with a document, informal however it may be, that would make life

24 easier for everyone.

25 Yes, Mr. Ackerman.

Page 609

1 MR. ACKERMAN: Your Honour, predicting - as you know, from having

2 been in this business - predicting how long a cross-examination will take

3 is really difficult because so much of what you do on cross-examination is

4 dependent upon the kind of answers you get from the witness. A witness

5 may give an answer that prolongs cross-examination by an hour or may give

6 an answer that ends it at that exact moment. So you can't always predict

7 it. What I would be able to do is give ballpark estimates, and with some

8 witnesses, advise the Prosecution I don't intend to ask any questions at

9 all. But that -- I'm perfectly willing to cooperate as much as I can, but

10 just want to make sure if I tell the Prosecution it will take me an hour,

11 that I'm not going to be told I can't ask any questions after that hour.

12 That's the only thing I'm worried about.

13 JUDGE AGIUS: Yes. Okay. Madam Fauveau, please.

14 MS. FAUVEAU: [Interpretation] We agree with what Mr. Ackerman

15 said.

16 JUDGE AGIUS: Thank you.

17 So I take it that you agree also that there is going to be this

18 ongoing dialogue between you, at least in this area of cooperation.

19 Ms. Korner?

20 MS. KORNER: I'm so sorry. Your Honour, I certainly hope so. It

21 will undoubtedly make things run a lot more smoothly.

22 JUDGE AGIUS: Also, I would suggest that if this is the case and

23 if that you anticipate that there not be major problems in this kind of

24 cooperation, that you perhaps also from time to time try to -- in addition

25 to this Thursday exercise, in other words, also give more or less general

Page 610

1 indication to the Prosecution of what your intended list of witnesses is

2 for the forthcoming three weeks. In other words, more specifically for

3 the following week, more generally with regard to the next three weeks.

4 So it could be a month. It depends on which municipality we will be

5 dealing with. I think if you follow that practice, I would anticipate

6 more cooperation on the part of the Defence, and also you will be putting

7 yourself in a stronger position if there are problems forthcoming from the

8 Defence. I think it's also fair to enable the Tribunal to plan ahead and

9 help you plan ahead a time schedule for this trial.

10 MS. KORNER: Your Honour, we certainly intend to do that, and it

11 will be possible because we'll be warning witnesses in advance.

12 I don't know whether Your Honour intends to at some stage revisit

13 the overlap with the Stakic trial, because that does have an effect. And

14 there is something I would like to raise.

15 JUDGE AGIUS: Yes. Basically, if you want me to stop here at this

16 juncture on other things and discuss that, if it's that important to you,

17 I would do so.

18 Let me just tell you that first we're definitely not talking of

19 any joinder issues between Stakic and this case. This case is going to

20 start on Wednesday. And also, there is a problem with Stakic, as you

21 know, because as the position stands to date, there are no funds readily

22 available to make it possible for Stakic to start as the sixth ongoing

23 trial for the moment.

24 Of course, there are other matters that are pertinent to this

25 trial and to Stakic which I would like to discuss with you in particular

Page 611

1 and also, of course, with the Defence counsel in this case, but I would

2 prefer to have that done in a private session.

3 MS. KORNER: Your Honours -- I'm sorry. Your Honours, certainly,

4 I quite understand. The only reason I raised it at this stage is

5 because -- and can I emphasise there was never an application to join the

6 two cases. We appreciated it was too late. And the ruling in fact merely

7 dealt with that aspect of the matter. But I'm perfectly happy to deal

8 with problems which are still extant at a later stage.

9 JUDGE AGIUS: Well, I wasn't referring to any existing motion for

10 joinder. I was just pre-empting the issue.

11 MS. KORNER: Yes.

12 JUDGE AGIUS: Yes. I think we should go in private session now

13 and discuss what Ms. Korner would like to raise in regard to Stakic.

14 [Private session]

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19 [Open session]

20 JUDGE AGIUS: Are we in open session?

21 Now, I'm -- I -- with regard to the exhibit lists, let me explain

22 to you very briefly how I look at it, having worked in the jurisdiction of

23 my own.

24 I was trained, when I became a magistrate way back in 1977 in a

25 jurisdiction where you don't study to become a Judge but you just -- like

Page 621

1 you have in your country. You receive no training beforehand, but then

2 you have perhaps the best training for the bench, having come from the

3 bar. And one practice that I had adopted with regard to exhibits was

4 keeping a mind that the moment an exhibit becomes a document or an exhibit

5 becomes an exhibit in a trial, it's no longer the party's document or

6 exhibit but it's the case's exhibit or the Court's exhibit.

7 I had various suggestions in this regard also because it seems

8 that some problems have been encountered in the past, and what you said

9 earlier on hints at that, that sometimes Defence find difficulties in

10 keeping track of the documentation and the reference to documentation

11 because it's a reference number which the Prosecution gives to its

12 documents, et cetera. And it was suggested to me to change all this and

13 to sort of provide for a system whereby the first exhibit that will be --

14 will be forthcoming will become P1 and then we continue P2, P3, et cetera,

15 "P" meaning "Prosecution." Frankly, I have thought about it. I think it

16 would create more problems than it would solve.

17 What I am going to suggest is this: that each document or each

18 exhibit that is produced in this trial, if it's produced or if it's

19 forthcoming from the Prosecution, it will have a "P" added to it, either

20 in front or at the back, so that it will always be distinguished as an

21 exhibit of the Prosecution, forthcoming from the Prosecution. And

22 similarly, an exhibit coming from the Defence will have an identification

23 "D." If it's from defendant Brdjanin it will be "DB," and if it's

24 defendant Talic, it will be "DT." I don't know if it's convenient for

25 you, but it would be made easier later on for anyone that has to work with

Page 622

1 those exhibits to identify which is which.

2 Yes, Mr. Ackerman.

3 MR. ACKERMAN: I swear that I didn't have any anticipation of what

4 you were going to say, Your Honour, but I have already for two years now

5 numbered all of my documents not "DB" but "BD." So all of them have "BD."

6 So if we go "BD" and "TD" --

7 JUDGE AGIUS: Okay. That's -- that's --

8 MR. ACKERMAN: -- instead of the other way around, then I won't

9 have to renumber anything.

10 JUDGE AGIUS: No problem.

11 Would you be agreeable to this, Madame Fauveau?

12 MS. FAUVEAU: [Interpretation] I have no problem with that, Your

13 Honour.

14 JUDGE AGIUS: [Previous translation continues] ... There may also

15 be cases where some documents will not be formally admitted, but they

16 would still need to be marked for identification, and it has been

17 suggested to me to have these designated by reference -- by the reference

18 number that is given either by you or by the Defence and then identify

19 them further by the addition of "MFI," whatever that means. I haven't had

20 time to ask. But if you are in agreement with it, that's how it will be,

21 and you are being told beforehand that "MFI" means -- it's not Malta

22 Financial Institute but a document that is has not been -- okay.

23 May I suggest to you, Ms. Korner, that as far as possible -- and

24 it may not be always as convenient or useful for your case, but whenever

25 is possible to have these exhibits organised municipality by

Page 623

1 municipality. Is that possible?

2 MS. KORNER: Your Honour, that's been done. I was going to

3 suggest that after the Court rises, we provide for Your Honours the copies

4 of the Banja Luka municipality, plus the assembly minutes, which are

5 ready.

6 JUDGE AGIUS: And this is what exactly I was coming to now, is the

7 copies of the exhibits. So I don't need to touch upon that matter because

8 it's being dealt with. We agreed that there will be five copies.

9 MS. KORNER: We did, and there are.

10 JUDGE AGIUS: Okay. Thank you.

11 So the next thing to which I attach great importance, copies of

12 witnesses' statements, copies of witnesses' statements. Let me tell you

13 what system I would like to see in place.

14 I did hint at something last Friday with regard to Rule 92 bis

15 statements, et cetera. I wouldn't like to be flooded with documentation

16 all at one go, which I would make -- create problems. The suggestion is

17 to move municipality by municipality. But I would definitely like to have

18 copies of any witness's statements beforehand. This is a practice that

19 has been applied by at least two Judges that I have conferred with, and

20 that's Judge Hunt and Judge May. They usually don't make an order -- and

21 I'm not going to make an order to that effect, because I do not want to be

22 too categorical in this or too demanding. I know that you may have

23 problems. But where there are no problems, please do let me have copies

24 of these statements beforehand because I always prefer to come here

25 knowing, fully aware of what that witness had stated on previous

Page 624

1 occasions.

2 MS. KORNER: Your Honour, we have no difficulty at all. We're

3 delighted to provide Your Honours with copies of the statements.


5 MS. KORNER: Can I ask how far in advance of the witness being

6 called, and would Your Honour like all the -- in some cases, witnesses

7 have made statements earlier to, for example, authorities in Bosnia. Or

8 merely the --

9 JUDGE AGIUS: Let me explain to you something. I told you last

10 time when I was trying, actually, to defend the Defence teams, because of

11 the difficulties that they encounter, that I never expect anyone to do two

12 things at a time. So I realise that you are going to be fully occupied

13 for several hours during the day with this trial.

14 What I suggest you do - also because I am going to be fully

15 equally occupied with this trial - is that in preparation of the

16 production of a particular witness, you provide me realtime, at least,

17 depending on how voluminous these statements would be. Use your good

18 judgement. If we're talking of a witness who has given one statement

19 which is only 20 pages long, then obviously, I mean, if it's given to me

20 two days ahead, it's more than enough. If we're talking of a witness that

21 has given multiple statements, and I run into hundreds of pages, that's no

22 use giving it to me the day before because I will spend a restless and a

23 sleepless night and I will definitely not be in the best of moods when I

24 come for the trial the morning after.

25 So use your good judgement. I mean, I have no reason to doubt

Page 625

1 your good judgement. You have shown it already in more than one

2 instance. I have no reason to doubt your cooperation, because you have

3 shown it all along. So I'm not going to give any orders. I'm just going

4 to leave everything in your hands and in your good judgement. I mean,

5 just don't flood me unnecessarily with a lot of documents weeks and months

6 before. It doesn't make sense. Because what happened to Mr. Ackerman

7 will probably happen to me, and I could easily lose track.

8 It's better for me -- I mean, I have got a very efficient staff,

9 both administrative and legal, that help me keep organised to the maximum

10 and to the optimum on a daily basis. So if more or less -- I don't need

11 much time, but I do need time to read them, because I am asking for them,

12 because it's my intention to read them. So use your good judgement. I

13 mean, more or less you should know. I mean, you're -- even your

14 colleagues will tell you, I mean, "Mr. or Mrs. So and So will be giving

15 evidence on Monday at -- I mean, we better hand it over straight away."

16 Okay?

17 MS. KORNER: I take it that Your Honour doesn't mean just for Your

18 Honour as the Presiding Judge but for your colleagues as well.

19 JUDGE AGIUS: I would imagine, yes. Yes, obviously. I mean, I

20 have discussed a few things with the two Judges that will be flanking me

21 during this trial. And perhaps if you have had the latest press release,

22 you will know who they are. If you haven't, I will confirm -- I suppose

23 your clients are not provided with press releases.

24 But Mr. Brdjanin and General Talic, you know who I am; I am the

25 Presiding Judge. The other two Judges are ad litem Judges. One is Judge

Page 626

1 Janu, from the Czech Republic; and the other is Judge Taya, from Japan.

2 These are the two Judges that have been assigned to be with me in this

3 Trial Chamber for the purposes of this trial. Thank you.

4 The same applies to any Rule 92 bis statements that have not been

5 already made available. I mean, I -- we discussed this more or less, the

6 72 witnesses, 75 witnesses that you intend to apply. So again, as we go

7 along, please --

8 MS. KORNER: Your Honour, what I'd suggest is it would have to be

9 in advance of the evidence from the municipalities starting but on one of

10 our Thursday, as it were, discussions, because clearly we need to know

11 well in advance which witnesses we will be allowed to use -- deal with

12 under Rule 92.

13 JUDGE AGIUS: Also with regard to the Thursday afternoon exercise,

14 if there is going to be a dialogue between you - and it's something that I

15 suggested - perhaps I could offer you either the assistance of a senior

16 legal officer to coordinate with you whatever needs to be coordinated.

17 Obviously, I mean, it will be -- even my assistance and that of my other

18 Judges in this Chamber, if necessary. So if there are difficulties and

19 you need or you would find -- think that it will be more useful even to

20 meet in my Chambers informally to organise things always ahead of --

21 programming ahead, I am offering you my cooperation. I've discussed this

22 also with the other two Judges, and they would of course come along with

23 it.

24 MS. KORNER: Your Honour, of course we're not sitting in the

25 afternoons for the next few weeks. We finish at quarter to 2.00.

Page 627


2 MS. KORNER: Your Honour, I think Your Honour has heard of some of

3 the difficulties we've had in getting together.


5 MS. KORNER: And I think it would be extremely helpful if --

6 JUDGE AGIUS: Yes. And I think -- listen, I mean, I have enough

7 experience in this. I also know that once the trial starts, the

8 atmosphere changes as well. There will be new terrain for you to -- to

9 engage and to combat, but also there will be -- there will also be ground

10 for -- and need to come forward and meet halfway on many issues. I'm

11 offering you my services if you need them, in the way which they state --

12 the Rules permit and within those parameters. And if that can be

13 helpful -- I think it's very important to have this trial start and move

14 ahead in the right environment. It's -- the atmosphere. I'm not saying

15 that I do not expect fireworks, that I expect everything to work like a

16 Swiss clock or watch. I mean, no trial does. But please do allow me to

17 interfere and intervene when necessary to bring it together and move ahead

18 as required.

19 Yes, Mr. Ackerman.

20 MR. ACKERMAN: Your Honour, I have a request with regard to the

21 Rule 92 bis issue, because I think it's just a practical way to deal with

22 it. The Prosecutor, as you know, filed this list of the Banja Luka

23 witnesses and included, I think, four Rule 92 bis proposals in that list.

24 And it was very easy for me to take the four of those and respond to them,

25 and I filed what I call document number 1. If that could be the procedure

Page 628

1 that I am permitted to follow in the future, it would -- I think it makes

2 sense. So that when the Prosecutor gives us a list and gives us the Rule

3 92 bis things, I will at that point respond rather immediately to those,

4 rather than trying to do all of the Rule 92 bis things at once, which I

5 could do, but I would simply have to take a couple or three days off my

6 trial preparation to get that done, for no good purpose, because I'd

7 probably change my mind sometime later.

8 JUDGE AGIUS: Actually, you did at one time, when you raised the

9 issue of the presiding officer. You attacked all 92 bis.

10 So Ms. Korner, do you have any particular objection to that?

11 MS. KORNER: I do not, Your Honour. If I may say so, it seems

12 very sensible. As I said, we'll notify the Defence and Your Honour with

13 the lists for the municipalities who we'd wish to call as Rule 92

14 witnesses.

15 The only thing is that, as Your Honour knows, I suggested to Your

16 Honour that once the trial starts, we could stop this endless

17 proliferation of written motions. But I think that's probably -- for

18 those purposes, it's more sensible. If we all get it in writing, we can

19 then deal with it.

20 JUDGE AGIUS: Yes. We did mention something last time also that

21 particular objections, motions will be raised orally and will be decided

22 orally. I mean, this is something that I was reading again -- when I was

23 reading again the transcript of last Friday's hearing, this is something

24 that we have made clear. This is the practice that I would like you to

25 follow. It makes sense. Okay? So copies of witness statements we have.

Page 629

1 Now, I am going to revisit a very important matter that we touched

2 upon during the 10th December Pre-Trial Conference hearing, when it was

3 suggested to the Prosecution to adopt the practice for this particular

4 trial of preparing witness testimony sheets.

5 MS. KORNER: Your Honour, yes. I think there was some confusion

6 there, or at least between us. Was it, Your Honour I thought may have

7 been referring to the practice that was adopted whereby if a witness was

8 going to refer to another witness who was protected, then he should do --

9 he should be given a sheet showing what that witness, who had been

10 protected, his pseudonym was. I know that Judge Hunt followed it in the

11 Vasiljevic case.

12 The point was made to me that in fact if the witness is protected

13 from -- and the protection is from public identification, then a witness

14 referring to another witness who has been given a pseudonym, by that

15 pseudonym tends more rather to identify him than if that name is just

16 mentioned, because the public won't know it.

17 I have to say, though, I'm not aware of how successfully or not it

18 worked in the Vasiljevic case. It's safe to say that it was a much more

19 limited case and there wasn't the same repetition, I think, of witnesses.

20 JUDGE AGIUS: Let me explain to you -- because this was something

21 that was suggested to me by my legal officers and which has engaged me

22 in -- to some towards. Let me tell you what the practical problems --

23 You may sit down, Ms. Korner.

24 Let me tell you what the practical problems that I envisage are.

25 First of all, there is the practical problem of having a witness taking

Page 630

1 the stand and starting to give evidence and either unwittingly or because

2 for some other reason, the name of another witness who may be protected is

3 disclosed.

4 The suggestion is that before a witness starts giving evidence, he

5 or she is handed a list showing the names and pseudonyms of protected

6 witnesses, so that if it is the intention of that witness to refer to any

7 of those protected witnesses, he will be forewarned and foreadvised how to

8 deal with that. In other words, that witness will be told at the very

9 beginning, "You will not refer to Mr. So and So by his name but by his

10 particular pseudonym."

11 Ideally it's a good approach, but I see an inherent danger,

12 because I also would imagine that that particular witness might not be

13 aware of the various or all of all the persons that are going to be giving

14 evidence in the trial and that list would reveal to him or to her names

15 otherwise -- that could otherwise remain unknown to him or to her. That

16 is the only practical problem that I see.

17 Is there a solution to it? I think there might be a solution.

18 One way of dealing with it - I was thinking about it last night - was that

19 perhaps in the beginning of the evidence or before the witness actually

20 starts to give evidence, he or she is told or asked whether in the course

21 of the evidence he or she is going to make reference or mention any

22 particular persons. This will be done in closed session, so that if the

23 witness is going to refer to particular persons by name, we would know

24 beforehand and we would be able to tell him or her, tell the witness,

25 "Listen, if you're going to refer to Mr. So and So, you will never refer

Page 631

1 to that person by Mr. So and So but you will refer to that person by this

2 pseudonym," and so on and so forth. That could be one alternative

3 approach. In other words, the names of the persons will be forthcoming

4 from the -- that the witness intends to refer to or mention would be

5 coming -- forthcoming from the witness. That would not definitely be the

6 case of disclosing to the witness other names.

7 And there is also another problem -- practical problems that I

8 envisage: That I see from past experience that a witness that is -- in

9 favour of whom there is no protective order as yet might eventually turn

10 up and ask for a protective order immediately before giving evidence. So

11 how do we go about this problem? Frankly, I don't know. If you have any

12 practical suggestions to me, please do come forward.

13 MS. KORNER: Your Honour, firstly, there are many problems from

14 this particular method. One is that the witness in advance doesn't tell

15 you that he's going to talk -- it's not in his statement, and he doesn't

16 tell you he's going to talk about somebody who is protected, and in chief

17 or in cross-examination it comes up without any warning.

18 Your Honour, with the greatest respect, I actually don't think

19 that this type of thing is necessary, and I think it's going to make life

20 too complicated and difficult for the witnesses themselves if they're

21 trying to remember and all the rest, even with a sheet of paper.

22 JUDGE AGIUS: I know it's definitely not easy.

23 MS. KORNER: Your Honour, the only -- the witnesses themselves who

24 are protected are protected to the extent that their names are not

25 revealed to the public, they're given a pseudonym, or in some cases

Page 632

1 they're testifying in closed session or with the other measures.

2 The fact that a witness is going to mention witnesses -- other

3 witnesses who may have given evidence or who will be giving evidence with

4 protection doesn't matter, provided he doesn't say that that witness has

5 testified or will testify. That's the only problem. And provided, if

6 necessary, he's warned, that's all that's needed.

7 Your Honour, I -- with the greatest respect, in a case of this

8 size, and in many cases where witnesses will be talking about not just one

9 incident but multiple incidents, it will, I think, cause unnecessary

10 problems. And so with the greatest of respect, as I say, I know it was

11 used in the Vasiljevic case. That was effectively --

12 JUDGE AGIUS: I'm raising it because it has been used. I actually

13 am very hesitant myself in recommending it because I see inherent dangers

14 and also I see the practical problems that it brings up. But since it has

15 been used in other trials and since we mentioned it or I mentioned it in

16 the 10 December hearing, and there was no negative reaction on that

17 occasion but we had agreed to revisit it later on -- I mean, I wanted to

18 hear what your opinion is.

19 Yes, Mr. Ackerman.

20 MR. ACKERMAN: Well, Your Honour, I'm familiar that at least one

21 Trial Chamber got confused about this matter. And I think -- I think we

22 ought not to get into that. There is absolutely no mischief, as

23 Ms. Korner pointed out, in a witness saying, "I was at a certain place in

24 a certain time in 1992 and I either saw or had a conversation with Joe

25 Smith," if Joe Smith is going to be a witness in the case. I mean, it's

Page 633

1 just not a problem --

2 JUDGE AGIUS: It's not a problem.

3 MR. ACKERMAN: -- at all. The only problem is -- and I understand

4 Joe Smith will be coming here to testify next week. That's the problem.

5 And so that's what we're trying to avoid. But to try to say to each

6 witness, "You must never say the name of a person who is or might be a

7 witness in this case," just overly complicates everything. It's a

8 identification of that person as witness that's the the problem, not the

9 identification of that person as someone who was there in 1992.

10 JUDGE AGIUS: Yes. Madam Fauveau, please.

11 MS. FAUVEAU: [Interpretation] I think that the issue has been

12 sufficiently clarified by Mr. Ackerman and Madam Korner, and I quite agree

13 with them.

14 JUDGE AGIUS: We'll deal with problems that may arise as we go

15 along, but it's been agreed that this will not be -- this system will not

16 be adopted in this particular case unless it is needed -- any particular

17 witness is giving evidence or before a particular witness is giving

18 evidence, if we see inherent danger there or risk.

19 Last time you asked me whether I was going to deny you the opening

20 statement. Of course not. But I want to know how long you anticipate it

21 will last.

22 MS. KORNER: It wasn't that I thought Your Honour was going to

23 deny it to me. There just didn't seem to be any room for it.

24 Your Honour, as best I can, and I haven't yet completed my notes

25 on this, I would think with the breaks it's likely to take, if not all of

Page 634

1 Wednesday morning of the time allotted, the best part. So I would ask

2 even if I finish a little earlier that we say that Dr. Donia doesn't

3 start, as agreed, until the Thursday morning. But I think it will because

4 it's of course having to speak quite slowly for the translation and will

5 take the best part of the morning.

6 JUDGE AGIUS: Now, Mr. Ackerman and Ms. Fauveau, you know that you

7 have as an option also the possibility of making a opening statement

8 immediately after the Prosecutor's opening statement. That's one option

9 that you have.

10 For the moment, I'm addressing you as Defence counsel. Is it your

11 intention -- may I ask you if it is your intention to make such a

12 statement immediately after?

13 MR. ACKERMAN: I will open at the beginning of the Defence case,

14 Your Honour, if there is one.


16 MS. FAUVEAU: [Interpretation] We will also be making our opening

17 statement at the beginning of the Defence case.

18 JUDGE AGIUS: Yes. Thank you. Now as you know, there is another

19 option...

20 Ready for a break? Let me put this question and we'll break for

21 20 minutes.

22 There is also another option which the -- our Rules make available

23 to the two defendants, and actually, the Chamber will be asking the two

24 defendants in due course when we start the trial whether they would like

25 to make -- themselves to make a statement.

Page 635

1 I am not going to ask them myself now, but perhaps I could ask

2 each one of you to confer with your client and at least put me in a

3 position to know whether to expect -- the question will be asked, in any

4 case, on Wednesday or on Thursday when we come to that stage, but I would

5 like to know beforehand, if possible, whether it is expected -- I am to

6 expect your clients to make a statement at the beginning of the trial.

7 Mr. Ackerman, perhaps if you already know the answer, you could

8 tell me, but I wouldn't like to put the question directly to your clients

9 myself. I'm asking you to confer with them if -- if that is possible.

10 MR. ACKERMAN: I will confer with my client.

11 MS. FAUVEAU: [Interpretation] I will also confer with my client.

12 JUDGE AGIUS: So you will give me a reply immediately after the

13 coffee break. Thank you.

14 We'll break for 20 minutes. We are doing fine. Twenty, 25

15 minutes. Thank you.

16 --- Recess taken at 11.10 a.m.

17 --- On resuming at 11.35 a.m.

18 JUDGE AGIUS: Yes. Welcome back. A piece of good information:

19 The B/C/S translation of the indictment is ready and will be made

20 available to you in the course of today's business. So that solves one

21 problem.

22 Before we had the break, we agreed that you will confer with your

23 respective clients and tell me whether to expect an opening statement from

24 them.

25 Mr. Ackerman.

Page 636

1 MR. ACKERMAN: My client will not make a statement.

2 JUDGE AGIUS: Yes. Madam Fauveau.

3 MS. FAUVEAU: [Interpretation] My client will not be making a

4 statement either.

5 MS. KORNER: Your Honour, on that topic of defendants -- accused

6 testifying, may I just raise at this stage for Your Honours consideration

7 one aspect? In the jurisdiction in which Your Honour practices and

8 certainly in England and Wales, if the defendant is to testify, he must do

9 so before any other witnesses that are called.

10 Your Honour, the practice isn't as clear in this Tribunal, and I

11 wondered whether Your Honour would say that that is a matter that Your

12 Honour will consider at an appropriate time when the Defence case, if

13 there is a Defence case, starts.

14 JUDGE AGIUS: This is not a matter that I have discussed with the

15 other two Judges. I have discussed with the other two Judges some other

16 matters that I will communicate to you before the trial starts, such as

17 the practice that will be followed by this Chamber with regard to leading

18 questions, for example. Also because I understand that there has been a

19 practice which has not been common to all Judges and all Chambers, it has

20 been dealt with differently in different instances, and I think you ought

21 to know the way I will deal with this problem.

22 This other matter I promise you I will discuss with Judges Janu

23 and Taya before the trial begins, and either on the first day of the trial

24 or at some point in time, I will let you know what is going to happen. In

25 my jurisdiction, as you say, that's the practice. So I will also discuss

Page 637

1 the matter with some of the other Judges to see how it has been dealt with

2 in the past. Thank you for bringing that to my attention.

3 Future motions. I think we agreed last time, and it was also

4 mentioned earlier on today, that as far as possible once the trial has

5 started, then applications that may become necessary or that you would

6 deem you need to make should be made orally as much as possible, with a

7 skeleton argument in advance, and wherever possible and desirable, the

8 decisions will be taken orally as well. Obviously they will be recorded

9 as everything else, but they will be taken orally.

10 We come to something which is very important: trial schedule. I

11 told you the very first time that I met you in December that I'm fully

12 aware this is a long trial, by no means an easy trial. It's a trial that,

13 if not conducted as it should be, could give rise to many problems, one

14 problem in particular being getting one or more of us tired or unduly

15 tired.

16 Though it's not my intention to use pressure on either the Defence

17 or the Prosecution, it is, rather, my intention to expect -- to be very

18 frank with you and also to expect you to be very frank with the Chamber

19 and if there are problems, to let me know. This would necessitate from

20 the very first go a careful scheduling of the hearing. I invite you not

21 to give too much attention to what you have seen in the various Tribunal

22 schedule that was circulated, in other words, not to expect the Chamber to

23 sit in this particular case from now until the end of March precisely and

24 infallibly and necessarily on all those days that are indicated or for the

25 time that are indicated. I would, before I go any further on this matter,

Page 638

1 like to hear what you have to say. Tell me what your preferences are,

2 although these need not -- may not necessarily coincide with what I have

3 in mind.

4 Shall I start with you, Ms. Korner? Thank you.

5 MS. KORNER: Your Honour, we have at present arranged a witness

6 schedule, working on the basis of the court schedule, in other words, that

7 bar two mornings, one for maintenance and one for the UN holiday, we would

8 be sitting. Of course, it is entirely a matter for the Court to decide.

9 All we would ask is perhaps some warning in advance, because of bringing

10 witnesses from the various countries in which they reside.

11 It is very difficult, obviously. And I'm conscious of what

12 Mr. Ackerman said to Your Honour in December about his practice in the

13 United States. However, it would be the Prosecution preference, given as

14 Your Honour says that it's a long trial, to proceed on a basis of a

15 virtual daily sitting with odd days maybe. Otherwise we may well be here

16 for years. But as I say, in the end result, it's a matter for the Chamber

17 to decide what days we sit.

18 JUDGE AGIUS: That is true. But what I want to say is if you

19 have -- what I want to know is if you have any particular requests that

20 you would like to air at this present moment.

21 MS. KORNER: None at all, Your Honour, except that the trial

22 proceed fairly regularly, if I can put it that way.

23 JUDGE AGIUS: No. That is the intention of the Chamber as well.

24 Yes, Mr. Ackerman.

25 MR. ACKERMAN: I believe I said at the last time we discussed this

Page 639

1 that I was hoping that the Chamber would hit upon a schedule that involved

2 sessions of approximately four weeks with a week break, which would enable

3 me to --

4 JUDGE AGIUS: Initially, you said two weeks. And then I corrected

5 you and put you back on track, and I said we can't work two weeks on and

6 two weeks off. I mean, that would ...

7 MR. ACKERMAN: Well, that was contemplating full time in court,

8 which is what we did in another case that I was involved in. But a

9 four-week schedule with a week off would give me an opportunity to take

10 care of matters in the United States that I need to take care of. And

11 not -- not a small concern about that is that I have a wife and family

12 there. And it's very difficult, the separation -- the long separation is

13 very difficult.

14 The other thing that I would mention to you is that Mr. Brdjanin's

15 wife and family try to visit him with some frequency. And he must make

16 arrangements a month in advance of those visits. Based upon a schedule

17 that was floating around here in the last several days, it -- the schedule

18 indicated that there would be a break in this case between the 22nd of

19 January -- 22nd of February and the 4th of March. And based upon that,

20 Mr. Brdjanin scheduled a visit with his wife during that -- that week.

21 And we believed that that was the schedule that would be adhered to.

22 I've also informed my wife that I would be coming home at that

23 time and informed a co-counsel in another case that that would be an

24 appropriate time to set that case for a hearing in Galveston, Texas. And

25 if that's not to be the case, then some changes need to be made rather

Page 640












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 641

1 quickly with regard to all of those matters. But I would hope --

2 JUDGE AGIUS: 22nd February to ...?

3 MR. ACKERMAN: March 4.

4 That was a schedule that was in existence and floating around the

5 Tribunal. And, you know, I would not have -- neither of us would have

6 made any of those kinds of arrangements had we not seen that schedule, of

7 course. And I didn't see it. I was just told that that's what it said.

8 But in any event, I would hope that we could adhere to a schedule

9 somewhere along -- something along that line. I wouldn't mind a five-week

10 session now and then if we need to move things. But as I told you the

11 last time we discussed this, I think if you try to move too rapidly, you'd

12 lose efficiency and wind up spending time that wouldn't really need to be

13 spent if lawyers were less tired and more prepared.

14 JUDGE AGIUS: Do I also take it that your presence is required

15 elsewhere on the 11th and the 12th of February?

16 MR. ACKERMAN: Oh, yes, I should have mentioned that. Yes. I'm

17 supposed to be in Sarajevo on those two days. And it's rather important,

18 I think, that I be there.

19 JUDGE AGIUS: Yes, one moment. Let me hear Madam Fauveau first,

20 please. Thank you.

21 MS. FAUVEAU: [Interpretation] I will be brief. It seems to me

22 that it is indispensable for us who don't live here in The Hague and have

23 an office elsewhere, family elsewhere too, we must have a specific

24 schedule. But I would also like to say that it might be worth thinking

25 about having a break between the various municipalities. Because if the

Page 642

1 Prosecutor gives us a list of exhibits a few days in advance -- and we

2 received the list last Wednesday with 600 exhibits in it. We've got to go

3 through them. We've got to collate it. We've got to look through them.

4 We're going to need a break in order to do that.

5 JUDGE AGIUS: Ms. Korner, please.

6 MS. KORNER: First on Mr. Ackerman's schedule. I think the error

7 -- I don't think there was ever a schedule published showing that break,

8 but it could be, if you don't look at it carefully enough, it could look

9 as though there was a break of a week, because I made that mistake at

10 first until I had another look at it.

11 The difficulty is, of course, everyone has professional

12 responsibilities. We all understand that. But as I understood it, the

13 idea of co-counsel is that if one counsel can't be here, another one can

14 take over, and that -- in order to prevent breaks where we have

15 professional commitments. I, as it turns out, have a professional

16 commitment on the Monday, the 5th of February in England arising out of a

17 case I did many years ago, but other people can take over so I'm not

18 asking for any break there.

19 Mr. Ackerman would like to see his wife and children. Equally I

20 would like to go back to England to take up my practice in England, but

21 Your Honour, it one has a commitment to a case, it seems to me that

22 considerations have to be secondary.

23 JUDGE AGIUS: That's beyond question. I mean, that is definitely

24 the main consideration that we should keep in mind, that the involvement

25 of each and every one in this case is not something that has been imposed

Page 643

1 against your will, but it is something that you have. You have duties,

2 responsibilities, and we have to work with that assumption first, under

3 that assumption first. Yes.

4 MS. KORNER: Your Honour, I think it is right to say that these

5 accused, through no fault of anybody, really, through the lack of courts,

6 have been waiting a long time for the trial and to extend it unnecessarily

7 by perhaps unnecessary breaks - obviously there must be breaks - is not

8 terribly helpful.

9 Your Honour, that's really all I want to say on the matter except

10 on, as it were, a side note, I don't know whether Your Honour has in mind

11 any sort of curtailment, arbitrary curtailment in one sense, of evidence,

12 either in chief or in cross, but if so, it would be something that I'd

13 wish to know about at this stage.

14 JUDGE AGIUS: Yes, but -- exactly. That's why I wanted more

15 information from you, because it's -- I find it very undesirable to

16 pronounce myself or even consider that possibility without first going

17 into details. I mean, for example, let's -- between the option of telling

18 you, as has happened in other instances, I don't want Mr. Donia to give

19 evidence on historical events, because what I am interested in is what

20 happened since 1991 and not before. I would rather let you have your --

21 the space necessary to prepare your case and to bring it forward and then

22 regulate the matter as we go along. That's my system. I mean, I don't

23 like to preempt issues beforehand, always beforehand, if I am pre-empting,

24 but in any case, there may be instances whereas we go along, it becomes

25 obvious that you don't need a particular witness or a number of witnesses

Page 644

1 if what they are going to confirm is something that has already been

2 confirmed more than enough by previous witnesses.

3 I think we have to take it as we go along, but I will try to

4 create the least inconvenience to you and to Defence as possible. But

5 don't expect me to tell you beforehand, going through the whole list of a

6 trial that is expected to last two years, that I'm going to curtail on

7 this. I will be curtailing, definitely. I mean, every Judge does in

8 every trial, but as we go along, as we go along. And I will give you an

9 indication. You know, I mean, it's ...

10 MS. KORNER: Thank you.

11 JUDGE AGIUS: So let's start from this. We are going to start on

12 the 23rd.

13 [The Judge and Senior Legal Officer confer]

14 JUDGE AGIUS: So basically let's start from here: We'll start on

15 the 23rd, and then I think without needing to explain why Mr. Ackerman is

16 needed in Sarajevo on the 11th and the 12th of March -- of February -- of

17 February, correct? I am informed of the circumstances, and I think it's

18 only fair to make an allowance for that. On the 8th of February, I need

19 to be elsewhere myself.

20 So basically I would suggest that we hold sittings right through

21 from the 23rd of January to the 7th of February to start with, without

22 interruptions, then stop from the 8th.

23 Do you think, Mr. Ackerman, you will return on the 13th or you

24 would prefer to resume on the 14th?

25 MR. ACKERMAN: I think I can resume on the --

Page 645

1 THE INTERPRETER: Microphone, please.

2 MR. ACKERMAN: I think I can resume on the 13th, if Your Honour

3 wishes. I can leave Sarajevo rather early, I think, on the 12th and be

4 prepared for that if you'd like. If it's more convenient, I'll wait until

5 the 14th, but I will struggle to make -- I know this is personal privilege

6 I'm asking for here.

7 JUDGE AGIUS: It's something that the Tribunal is -- I personally

8 and the Tribunal -- I haven't discussed it with the other two Judges

9 because it came upon me unexpectedly, but I'm sure the other two Judges

10 will agree with my decision. I think I have absolutely no problems in

11 meeting you on this and granting permission. I think it's important.

12 MR. ACKERMAN: Thank you.

13 JUDGE AGIUS: So we'll plan to resume on the 13th unless I have

14 indications that this would be better it resume on the 14th. But

15 definitely it will be either the 13th or the 14th. For the moment, it's

16 the 13th.

17 Then we will sit right through -- I don't think at this point in

18 time, Mr. Ackerman, that I can stop again for nine days, from the 22nd of

19 February to the 3rd of March. I think at this point in time, we have to

20 reschedule, making it possible for your client to make the necessary

21 arrangements for his consort to visit him, but I don't think we can stick

22 to those days, I mean, which -- I mean, I never got the impression from

23 the time schedule that I had that this was intended to be a break. I

24 mean, I never got -- I went through that schedule very carefully and I

25 never got this impression. I mean, I may have been wrong, but I didn't

Page 646

1 see it anyway.

2 So we would sit right through from the -- let's make it more

3 feasible straight away. Rather than restarting on the 13th, we will start

4 on the 14th, on the 14th, and we will sit right through - one, two,

5 three - right through -- now, you tell me whether we prefer -- you prefer

6 right through Friday the 8th of March or Friday the 15th of March. And

7 then we will have a break. Tell me what your preferences are.

8 MS. KORNER: Your Honour, I'm trying to remember when Easter is.

9 JUDGE AGIUS: Easter is the 31st of March.

10 MS. KORNER: It's the 31st of March.

11 JUDGE AGIUS: Yes. It's coming pretty early this year.

12 MS. KORNER: So Your Honour is deciding on a break either the 7th

13 or the 14th of March.

14 JUDGE AGIUS: Either -- yes, exactly.

15 MS. KORNER: For how long?

16 JUDGE AGIUS: For a week. I mean, I don't know. If you want

17 more, I'll give you more, but -- if you need more, I will give you more,

18 but I don't think we ought to break for more than that.

19 MS. KORNER: I want less. I'd like to sit all the way through,

20 but --

21 JUDGE AGIUS: At that point in time, Madam Korner, you will

22 probably need a week because we will be approaching the end of Banja Luka,

23 and you will probably need some time to -- I don't know. It's my

24 expectation.

25 MS. KORNER: Your Honour, I know the list of exhibits will be

Page 647

1 provided to the Defence much more in advance than it was before, but, Your

2 Honour, as far as our preference is concerned, Your Honour, I would have

3 to go back and look at the list of -- at the moment, we have witnesses

4 coming solidly between the beginning of the trial and the end of March.

5 So I would need to check on how best to do it.

6 JUDGE AGIUS: Yes. Normally it's not the practice of this Court,

7 of this Tribunal, to recess for what in my country we'd call Holy Week,

8 Easter recess. There is no Easter recess here, no?

9 MS. KORNER: Good Friday is a holiday, and I understand -- is

10 Easter? I believe Easter Monday. Yes.

11 I think if Your Honour were to say what would be the preference

12 for all of us, we would prefer to have the break either in the week

13 running up to Easter or after Easter, because everyone with families and

14 schools would prefer that.

15 JUDGE AGIUS: So we'll break on the -- okay. That could make life

16 easier for everyone. We could break after the 21st of March. Is that --

17 am I reading you well?

18 MS. KORNER: Yes.

19 JUDGE AGIUS: Right through the 2nd of April, because Monday would

20 be a holiday.

21 MS. KORNER: Yes.

22 JUDGE AGIUS: Is that agreeable with you, Mr. Ackerman, and Madam

23 Fauveau?

24 MR. ACKERMAN: With all respect, Your Honour, that's an awfully

25 long time. I left Texas right after the 1st of January. That's almost

Page 648

1 three months. And there's a judge in Galveston that, among other things,

2 will not be happy with that but a wife who will be even less happy, and

3 family. I really think the 8th of March is a more reasonable time. I'd

4 be happy to accommodate you on that.

5 JUDGE AGIUS: If we recess at the 8th of March, I can't give you a

6 whole week then, because then comes Easter and we have to stop for Easter

7 again, and someone will come forward with ...

8 MS. KORNER: Your Honour, I should say that by the 8th of March,

9 we certainly won't be nearing the end with the break in February of Banja

10 Luka.

11 JUDGE AGIUS: No, you definitely won't. No, definitely not.

12 Definitely not.

13 Listen, Mr. Ackerman, if we break on the 22nd of March, there you

14 have 11 days, which will be a much better deal than if you -- if we break

15 a week earlier. You know, I mean, because I myself had suggested the 8th

16 or the 15th. If we break on the 15th, you're not going to have 11 days or

17 12 days. I mean, if we break on the 22nd, you're going to have 11 days,

18 possibly even 12 if we stretch it a little bit, and that would also

19 coincide with more or less the conclusion on -- of the Banja Luka

20 chapter. I invite you to consider it. I mean, I -- I don't like imposing

21 in these things. And you are realising that I don't. But I would

22 seriously invite you to consider this option, because I think it's -- it

23 makes you meet halfway. In other words, it would not create -- it would

24 not be embarrassing for the Tribunal, too.

25 MR. ACKERMAN: Based, Your Honour, upon the proposition that the

Page 649

1 transcript of this proceeding is a public document, it would not be wise

2 for me to consent. But I can say that it's up to you to set the

3 schedule.

4 JUDGE AGIUS: Okay. Now, Madam Fauveau, I know that your other

5 two partners are not here, and I wouldn't dare say what their preferences

6 will be, but I suppose that you are here and fully briefed and you can

7 help me with making some concrete suggestions in this direction.

8 MS. FAUVEAU: [Interpretation] I defer to the Tribunal completely.

9 JUDGE AGIUS: Okay. So let's go back. We start on the 23rd,

10 break from the 8th till the 13th, recommence on the 14th, right through

11 the 21st, then break from the 22nd -- I gave you an extra day now -- break

12 from the 22nd till April 1st, resuming on April the 2nd. In any case, I

13 wouldn't have liked to resume on April 1st because I don't know whether

14 you would have taken me seriously.

15 Now, I think for the moment we can leave it at that and take up

16 the matter of rescheduling for post-April later on. Okay? Also because

17 no one exactly knows what will come up between now and then.

18 If we need to amend this or change this, please advise me

19 beforehand, particularly not because of me and my commitment but because

20 of what Mr. Ackerman has mentioned. I mean, I would like to cooperate in

21 these matters as much as possible and make sure that defendants do not

22 suffer any undue inconveniences.

23 There is one other thing that I need to tell you. In discussing a

24 few things with Judge Janu, in view of the fact that she has now been

25 nominated as an Ad Litem Judge in this case, she will -- she needs to

Page 650

1 resign from her post in her office as the vice-president of the

2 constitutional court of the Czech Republic, or she has decided to do that,

3 something that she could keep for the time being, considering that she had

4 only the Vasiljevic case. And this may necessitate her presence in Prague

5 for one or more days in February. The dates will depend on the President

6 of the Czech Republic, and she has no control. And she has informed me

7 about this, and I said, "Once you know the days, then" -- but I will be

8 informing her on the dates when we will be, in any case, stopping so that

9 she will try to possibly make the visit to the President of the Czech

10 Republic to coincide with those dates. That's something that I can't

11 promise, something she hasn't got much control upon, in any case, because

12 it depends on the President's agenda. But I thought it fair to forewarn

13 you or inform you about this beforehand.

14 Otherwise, I don't think there should or ought to be any

15 problems. I'll just repeat what I told you before. There may be times

16 when you may have problems, when you feel tired, when the case is taking

17 its toll on you or on me. Please be frank. Do let me know. I would

18 rather prefer that we work on this matter and in this context rather than

19 through other means or other matters. So that's sorted out.

20 Are there any other matters that either the Prosecution or the

21 Defence would like to raise at this point before we conclude?

22 MS. KORNER: Your Honour, there are a number of matters. Quite

23 short ones, I hope.

24 First of all, can I invite Your Honour to look at the list of

25 witnesses that was supplied to the Court last week. And if I can find my

Page 651

1 own copy.

2 JUDGE AGIUS: I think I gave it to my secretary to have it filed

3 this morning.

4 MS. KORNER: I've got it here.

5 JUDGE AGIUS: But anyway, I ...

6 MS. KORNER: Your Honour, in relation to witness on that list

7 numbered 7.177, Witness number 14.

8 JUDGE AGIUS: I need a copy of it.

9 MS. KORNER: I can hand Your Honour --

10 JUDGE AGIUS: Because my secretary has it for filing.

11 MS. KORNER: -- my copy.

12 JUDGE AGIUS: Thank you.

13 Witness number?

14 MS. KORNER: 7.177, I think I said number 14.

15 JUDGE AGIUS: Yes, correct.

16 MS. KORNER: Your Honour, the witness has been contacted twice and

17 declines to attend. He is a journalist.

18 Can I hand Your Honour at this stage a copy of his statement -

19 it's very short - and the article which is the subject of his testimony.

20 Your Honour, I don't need Your Honour to read it at the moment because

21 there are two options. One is that we apply to Your Honour, which we do

22 now, if necessary, for a witness summons. And there are various

23 complications attached to the service of that summons because of the

24 country in which he resides.

25 The only topic -- the reason for declining is one that Your Honour

Page 652

1 will be no doubt familiar with. It's the journalistic reluctance to

2 testify. The only evidence he's going to give is in relation to that

3 article, which all can read. What I am raising it for at this moment is

4 if that article is accepted in evidence, there's no requirement for the

5 witness to attend. And that's the reason I'm raising it now. If there is

6 a requirement for this witness to attend --

7 JUDGE AGIUS: Does the Defence have a copy of this?

8 MS. KORNER: This has all been disclosed, yes.

9 If it is required for the witness to attend, then we'll have to

10 ask Your Honour to issue a summons.

11 JUDGE AGIUS: More or less, before I make any comments on this,

12 given that you will respect the order of witnesses, as indicated in this

13 document, and this witness being number 14, when would you anticipate him

14 to be present in this courtroom between now and March?

15 MS. KORNER: With the breaks Your Honour has now given, I'd have

16 to recalculate. Your Honour now has my list, so I can't see the ones who

17 are in advance, but I would have thought sometime in March.


19 MS. KORNER: I can say, Your Honour, I don't think it affects

20 General Talic at all. It's only evidence in respect of Mr. Brdjanin.

21 JUDGE AGIUS: Yes, Mr. Ackerman, do you recall this document, or

22 do you require time to locate it in the 100.000 pages?

23 MR. ACKERMAN: If responded now, it would be very simple. And

24 that is I would absolutely oppose anything that would involve his article

25 coming into evidence without his being subject to cross-examination. I

Page 653

1 think he -- I think he is easily subpoenaed or summoned. If he's

2 important to the Prosecution, that's what they should do.

3 Newspaper articles, as a practical matter, are notoriously

4 unreliable, should not be admitted in evidence ever for any purpose that

5 would -- a purpose that would tend to try to prove a fact at issue in the

6 case. If you want to put a newspaper in evidence to show that it was

7 raining on a certain day or that it was cold on a certain day or something

8 like that, or a stock price was a certain price, that's one matter.

9 But I can -- I can show Your Honour how unreliable newspaper

10 articles are. There is a newspaper here from, I think, last week which

11 has a photograph -- it's about the start of this trial. It has a

12 photograph on it of a person who the newspaper identifies as General Momir

13 Talic. And if one tried to use this newspaper to prove that that's

14 General Momir Talic, a huge injustice would occur, because it's actually

15 Mr. Brdjanin. And that's the kind of thing that you encounter all the

16 time in newspapers. And I might as well raise it now. I object to the

17 use of any newspaper articles to prove a fact at issue in this case. And

18 this one falls in that same position. And it may very well be that this

19 person doesn't want to come because they can't substantiate what they

20 wrote in the article.

21 JUDGE AGIUS: Ms. Korner, this witness statement that you've shown

22 me, it's purported to have been signed. Has it been signed by --

23 MS. KORNER: Oh, yes.

24 JUDGE AGIUS: The one I have here is definitely not signed.

25 MS. KORNER: No, because it's a typed copy.

Page 654

1 JUDGE AGIUS: Anyway, that's your answer. In other words, you

2 don't require time. You're not asking for time to go any further in this

3 matter, you're just telling the Tribunal -- the Chamber --

4 MR. ACKERMAN: I would leave -- I would certainly leave open the

5 possibility. Once I go look at it, I will then say to the Court I will

6 stipulate to the fact contained therein.

7 JUDGE AGIUS: Yes, because what you actually said with regard to

8 the probative value of newspaper articles, et cetera -- I mean, I think

9 what you said is what I know and what everyone else knows, and I don't

10 think that the Prosecution is asking to produce Mr. -- whoever it is as a

11 witness or his article because the whole case is going to depend entirely

12 on this article. I mean, it's an article like many other articles. It

13 may have probative value; it may not have probative value.

14 I think I will read it myself. In the meantime, please go into

15 it. If you require the details, the reference number, I will give it to

16 you. Okay. I will take a decision later on. I mean, I wanted to know

17 how early you intend -- you would have intended to produce this person,

18 this witness, simply because I wanted to know how much time I need to

19 devote to it. You know what I mean.

20 MS. KORNER: Your Honour, the --

21 MS. FAUVEAU: [Interpretation] Excuse. I'd like to go back to the

22 article. I want to make sure that this has no effect on General Talic's

23 case. So I'll give an answer as soon as I can.

24 JUDGE AGIUS: Certainly. Thank you.

25 MS. KORNER: Your Honour, the reason --

Page 655

1 JUDGE AGIUS: I would have asked you for your reaction in any

2 case, but it seems that it does not involve your client in the least, at

3 least at face value.

4 MS. KORNER: Your Honour, the only reason that we ask for a ruling

5 or a decision from Mr. Ackerman fairly early on - and, Your Honour, this

6 is an interview conducted by the journalist with Mr. Brdjanin - is that if

7 it is necessary to issue a subpoena, the country in which the witness

8 resides, the procedures are a bit more complicated. It's not,

9 unfortunately, just a matter of Your Honour issuing it and them

10 complying.

11 Your Honour, that's the first matter.

12 JUDGE AGIUS: I will deal with that straight away.

13 MS. KORNER: I'm grateful. Your Honour, the second matter is

14 this: The -- in a couple of cases, an issue was raised by Defence counsel

15 as to what in generic terms could be called assistance to witnesses by the

16 Office of the Prosecutor. For example, if a witness is residing in a

17 country as a refugee, a letter is sent saying that the person is a witness

18 and the OTP would prefer that the witness remains in a country or wherever

19 it is, and there are other odd instances.

20 If it is thought to be of any relevance to any issue in this

21 trial, then the Office of the Prosecutor is happy to supply the Defence

22 with details of any witnesses that have received such assistance, but it

23 was raised certainly in the trial involving the Keraterm camp and, I

24 believe, one other trial. So I'm just, as it were, pre-empting the matter

25 to say if that's what's required, if it's thought to be of assistance,

Page 656

1 then the Prosecution is happy to provide those details.

2 JUDGE AGIUS: Mr. Ackerman.

3 MR. ACKERMAN: Well, it depends on the nature of the assistance,

4 Your Honour. It sometimes can go very directly to witness bias. And now

5 that Ms. Korner has raised this, I'm involved in trying to determine now

6 whether or not some information I received is correct, and I'm not going

7 to go beyond saying that I have received information that the Prosecutor

8 is in fact paying people in Bosnia to speak with them, which I think would

9 just be outrageous if that is the case, if they actually -- when they go

10 to interview someone if they're giving them money in exchange for them

11 cooperating with the Prosecutor. I think that would be -- that's the kind

12 of thing that could just throw this whole case into complete chaos. And I

13 seriously doubt that's happening. I have some indication and we're

14 conducting an investigation into it, and I may or may not raise it at a

15 later time.

16 JUDGE AGIUS: I would have raised it at a time when the

17 information that you have is more substantive and more substantial than

18 the one you have now, because it's a very serious accusation, and if you

19 are not in a position to substantiate your accusation, I would prefer --

20 rather prefer not to raise it.

21 I don't know if you want to react to this, but I don't think there

22 is place for any reaction on your part--

23 MS. KORNER: No, Your Honour.

24 JUDGE AGIUS: -- because it is just a gratuitous assertion at this

25 point in time to which I wouldn't respect.

Page 657

1 MS. KORNER: Your Honour, if Mr. Ackerman wants to present us with

2 any evidence, we'll be happy to look into it.

3 JUDGE AGIUS: Anything --

4 MS. FAUVEAU: [Interpretation] I have nothing to add on this point,

5 Your Honour.

6 MS. KORNER: Your Honour, I made the offer and if anybody wants to

7 take me up on it, it is there.

8 Your Honour, I think then the only other matter that I want to

9 raise is this, and it's really a question of trial management: As I

10 explained to Your Honour, the witness immediately following Dr. Donia will

11 be the lead investigator who has prepared a schedule of the documents that

12 are going to be used in this case, as to where they come from and the

13 like, and I'm proposing to put him in the witness box. I imagine just --

14 we will have to deal with this in chunks, but so that he can explain to

15 Your Honour the general system and deal with any disputes as to

16 admissibility that Your Honour has already alluded to.

17 Mr. Ackerman has very helpfully supplied us over the weekend with,

18 and I think it's a rolling list of documents contained in the Banja Luka

19 folders to which he will be taking objection, and, therefore, we hope to

20 deal with those on whichever day Mr. Inayat testifies.

21 You will recall last time I attempted to persuade Your Honour that

22 counsel for Talic should do the same thing, they having declined. Your

23 Honour, I raise it now only for this reason: that clearly if there is

24 going to be an in-depth examination of any -- of some or more documents,

25 the investigator will have to say, "Well, I'll have to go back and check

Page 658

1 on that because this is -- you haven't raised this before, and I'll have

2 to go and check on other records that we have."

3 In order to try and keep this trial running smoothly, Your Honour

4 may think it would be of assistance if counsel for General Talic could

5 adopt the same attitude as Mr. Ackerman and let us know in advance - I

6 anticipate he will be given evidence sometime next week - which documents

7 are going to be the subject of dispute as to authenticity and/or

8 admissibility.


10 MS. FAUVEAU: [Interpretation] I think that Mr. Pitron has already

11 explained, and I cannot be clearer than he has been. There are three

12 types of documents that we can contest. They are documents signed by

13 General Talic, signed by him, and I haven't yet found a single one that is

14 being contested, which doesn't mean to say that I might not find a

15 document that may appear to have been signed by General Talic and that we

16 will contest. But for the moment, all the documents are carrying

17 handwritten signatures by General Talic are not contested.

18 What we tried to explain was that there are a certain number of

19 documents on which there is the typed name of General Talic, but in

20 handwriting there is the word "za," which in Serbo-Croatian means "for,"

21 therefore, it is clear that they were not signed by General Talic. And in

22 our pre-trial brief and also in the request for agreement, she refers --

23 the Prosecutor refers to these documents. It is sufficient to read them,

24 so I don't see why we should provide such a list to the Prosecutor.

25 And the third group of documents are documents that are not signed

Page 659

1 by anyone, that bear no stamp, and which is very difficult to

2 authenticate. We are not going to contest that these documents were

3 found, shall we say, in the Banja Luka municipality or in the security

4 centre in Banja Luka, but the fact that they were found there doesn't mean

5 to say that they were written by our client. But it is very easy to find

6 them because those documents bear no signature and no stamp.

7 JUDGE AGIUS: Basically, I think, Ms. Korner, you have to live

8 with this problem. It's not going to be easy. And much of what

9 Madam Fauveau has just said has a lot of truth and a lot of reality in

10 it. I mean, I think we will have to move -- not exactly play it by the

11 ear, but we have to move bit by bit and document by document as we go

12 along.

13 I think more or less we have identified an area to which this

14 contestation is restricted, and that's with regard to the internationality

15 of the conflict. If I remember well, that was -- that was one question

16 that was raised by you last time, whether it's all the documentation

17 relating to all the case, as broad as it is, or whether it is restricted

18 within the parameters shown or at least purported to be shown in the

19 documents you referred to last time. And I think we have identified at

20 least that limitation and we have to move from there. I mean, it's --

21 MS. KORNER: Your Honour, I don't -- I think Your Honour is going

22 to see the problem, but I think we'll have to --

23 JUDGE AGIUS: I can see it already.

24 MS. KORNER: Yes. I think we will have to, as Your Honour says

25 rightly, play it by ear, and when Mr. Inayat starts to testify, then we'll

Page 660

1 see how this problem can be resolved.

2 What would be highly undesirable, in our submission, would be if a

3 witness turns up to testify and then is kept waiting or the evidence is

4 stopped while we argue about a particular document, which is why I'm

5 anxious to establish, before the witnesses come who are going to refer to

6 these documents, whether or not they will be admitted or they will not be

7 admitted, and I think that is why we need to deal with that.

8 JUDGE AGIUS: I think I also -- I mean, I can foresee some

9 problems, definitely, but I also am trying to look at it with as practical

10 an eye approach as possible.

11 In reality, what do you have in each trial? You have the filing,

12 the presentation of the document or of the exhibit by a particular

13 individual, by a particular witness. That witness might be in a position

14 to testify on that document, particular document, to a small or to a large

15 extent, depending on how much he or she was involved in the procuring of

16 that document. And the procuring of that document does not necessarily

17 mean that he or she is in a position to testify on the content, because

18 the content may be another matter which other witnesses will visit.

19 So more or less you have first the question of the probative value

20 of the document or of the contents of the document. Secondly, the

21 authenticity. And the authenticity, I think you can sometimes have it --

22 have it dealt with in stages. I mean, the person who is exhibiting the

23 document, who will just state, "This document, the origin of this document

24 is the following," and would not be in a position to give any further

25 information in regard to any allegation of non-authenticity that might be

Page 661

1 forthcoming. You may have the question of having to prove the

2 authenticity. It depends. And sometimes you have an objection which is

3 taken at superficial value as an objection and that's it. Sometimes you

4 have to go deeper than that. I mean, it's -- I think we have to play it

5 by the ear. But it's a problem that you are going to encounter.

6 I'm sure you will find the Tribunal taking a very radical approach

7 if at the moment it senses that it has become a fishing expedition. In

8 other words, I will not allow a situation to come along in which it will

9 become a fishing expedition, every document is contested as not being

10 authentic. But more or less the -- General Talic's defence has already

11 limited the objection or the contestation to a certain amount of

12 documents. I don't know how many of them. I would imagine that we're

13 talking of hundreds, if not thousands of documents. But I think we have

14 to take it by the ear. Or sometimes it just takes you one witness who was

15 in the know, who has got all the basic information on the authenticity,

16 character of the -- of all those documents, and you could bring forward

17 that person and then one minute bring to nothing all the objections. It

18 depends. You should also be in a position to know to what extent and what

19 qualities and nature the contestation takes shape and from then take it

20 up.

21 I don't think I can help you more than that at this present

22 moment, you know.

23 MS. KORNER: As I say, I think, Your Honour, we'll have to see how

24 it develops. But for example, taking Mr. Ackerman's objection that no

25 newspaper article admitted because they're inaccurate. Well, Your Honour,

Page 662

1 this is not quite the same as in our national jurisdictions. And, Your

2 Honour, we all accept, of course, newspaper articles are inaccurate and

3 that the weight given to them may be different. But that, we would argue,

4 does not per se make them inadmissible.

5 JUDGE AGIUS: No, no, definitely. If Mr. Ackerman is expecting me

6 or the Chamber later on to decide a priori that all newspaper articles are

7 inadmissible because out of their own very nature they are inaccurate or

8 not authentic or whatever, forget it. I mean, with every -- every -- if a

9 newspaper article is on the face of it irrelevant to the case, it will not

10 be admitted. But if, on the face of it, it has some relevance, it will be

11 admitted, and then what probative value it has and what weight it will be

12 given, it's a matter for the Trial Chamber to decide. But I will not

13 exclude an article simply because it's a newspaper article. I have

14 written many articles in my life. So I know what I'm talking about. So I

15 have to wait and see.

16 So that's why I invited you to go through this article, see what

17 it says, and then come back to the Tribunal. I mean, it may be harmless

18 to you. It may be just an opinion by the journalist, or it may contain

19 facts which are damning to your client. I mean, it's for you to read that

20 article and focus on it and tell me where you would -- where you stand, if

21 you want to. Because the question that the Tribunal has is whether to,

22 first, issue a subpoena against the witness or, secondly, to admit his

23 statement -- his written statement together with the article. And then it

24 takes its own course.

25 Of course, there is the problem that arises with regard to

Page 663

1 cross-examination, because as I have admitted, you have a right to

2 cross-examine the witness. But sometimes dealing with a newspaper

3 article, I doubt how important or how useful or how productive a

4 cross-examination could be, if we're talking of a newspaper article and

5 the journalist who wrote it.

6 So it's up to you to give me feedback on that, and then we'll

7 decide. But up to you definitely. I not going to dismiss an article, a

8 newspaper article, simply because it's a newspaper article. I would be

9 offending all journalists, and it would not reflect what the legal

10 situation should be. I mean, if it's relevant on face value, it should be

11 admitted, and then we'll see.

12 MS. KORNER: Yes. Thank you, Your Honour.

13 JUDGE AGIUS: Any further matters that you would like to bring up

14 before we bring this Pre-Trial Conference, hopefully the last part, to an

15 end?

16 MR. ACKERMAN: Your Honour, the -- my client is transported back

17 and forth between here and the Detention Centre wearing an extraordinarily

18 heavy bullet-proof vest. I'm given to understand --

19 JUDGE AGIUS: Are they trying to protect him against you?

20 MR. ACKERMAN: I'm not sure. But I'm given to understand that if

21 I make a request from you, they have a much lighter bullet-proof vest that

22 he can wear. And it is -- it is burdensome in the sense that it tends to

23 affect his blood pressure, which is already high. And so there's a

24 medical reason for it. And I understand that if you just instruct

25 security to bring him in the lighter version of the bullet-proof vest,

Page 664

1 that that will be done.

2 It's also my understanding - and I say this only because I think

3 it might save some time - that General Talic has exactly the same

4 request. And so if you're going to do it, you might as well do it for

5 both of them. Thank you.

6 JUDGE AGIUS: Do you concur with that?

7 MS. FAUVEAU: [Interpretation] I have to consult my client.

8 JUDGE AGIUS: Thank you. But if you could consult -- that is, if

9 I make one request, I will make one request for both.

10 MS. FAUVEAU: [Interpretation] We'll put forward the same request.

11 JUDGE AGIUS: I don't suppose you have any particular objection

12 with regard to that?

13 MS. KORNER: We take a neutral stance on this one, Your Honour.

14 JUDGE AGIUS: I will deal with the problem myself. And I suppose

15 if what you said is correct, there should be no difficulties.

16 Any further --

17 MS. KORNER: I'm just asked to ask Your Honour, in giving Your

18 Honour the witness statements, do you want what we call the attachments,

19 in other words, where witnesses are producing exhibits, documents,

20 personally? Or simply if we give Your Honour the ones we're going to be

21 asking the witness to adduce, or none at all?

22 JUDGE AGIUS: I think for the present moment, for the time being,

23 none at all. Then having gone through the witness statement, I might

24 consider that the supporting document or whatever is too important for me

25 not to see beforehand, in which case I will let you -- I will send you a

Page 665

1 message via the Registrar -- Deputy Registrar to let me have further

2 documentation. But the least, the better.

3 MS. KORNER: Thank you.

4 JUDGE AGIUS: Okay. And thanks for bringing this up.

5 So I think this ought to be returned to Ms. Korner. It belongs to

6 her.

7 So I think we can bring this Pre-Trial Conference to an end.

8 As I told you, you will be receiving a copy of the corrected

9 amended indictment in B/C/S today. I would like you to consider two

10 things, but you will be approached in due course. I mean, one is the

11 possibility of exempting the Court -- the Tribunal from having to read the

12 entire corrected amended indictment in B/C/S to your clients. They have a

13 right to it. But it's up to you to consider that.

14 And secondly, you have the option of either pleading to each count

15 or entering just one plea of "not guilty," I would imagine. I mean,

16 remembering what your clients stated way back in November, the situation

17 hasn't changed since then, except for the decision of the Appeals

18 Chamber. I would be more than happy to have one global plea of "not

19 guilty" and take it from there and move ahead, rather than having to enter

20 a particular plea to each particular count. It is a much more practicable

21 approach, if you are agreeable with it.

22 MR. ACKERMAN: Well, I can do that right now. I can waive the

23 reading, and I can tell you that my client enters a plea of "not guilty"

24 to each and every count as one plea.

25 MS. FAUVEAU: [Interpretation] We do not require the reading out of

Page 666

1 the indictment, and my client states that he is not guilty.

2 JUDGE AGIUS: Mr. Brdjanin, you just heard what your counsel

3 said. You have just heard what your Defence counsel has said.

4 THE ACCUSED BRDJANIN: [Interpretation] Yes, I have heard it

5 clearly, and I agree.

6 JUDGE AGIUS: You agree.

7 General Talic, do you agree with what your counsel has stated?

8 THE ACCUSED TALIC: [Interpretation] I agree absolutely, Your

9 Honour.

10 JUDGE AGIUS: That's what I expected from both of you. It was not

11 a matter of putting in doubt your Defence counsel.

12 But that solves another issue. We don't have to visit it again on

13 Wednesday. And on Wednesday, we can hopefully start our labours.

14 I thank you. I also thank the interpreters for their -- all their

15 work. And my apologies again for last Friday. I realised yesterday that

16 I kept you 22 minutes beyond what I had promised you I would keep you.

17 But I will make a commendation to the Registrar, letting him know how

18 cooperative you have been throughout. I thank you.

19 I'll see you Wednesday.

20 --- Whereupon the Pre-Trial Conference adjourned

21 at 12.42 p.m.