Tribunal Criminal Tribunal for the Former Yugoslavia

Page 872

1 Friday, 25 January 2002

2 [Open session]

3 --- Upon commencing at 9.00 a.m.

4 [The accused entered court]

5 JUDGE AGIUS: Okay. Respondents are here. Good morning,

6 everybody.

7 Could you please call the case. Thank you.

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

9 IT-99-36-T, the Prosecutor versus Radoslav Brdjanin and Momir Talic.

10 JUDGE AGIUS: Appearances.

11 MS. KORNER: Your Honour, appearing for the Prosecution, Joanna

12 Korner, Andrew Cayley, and assisted by Denise Gustin, case manager.

13 JUDGE AGIUS: Yes. Thank you.

14 And for Mr. Brdjanin?

15 MR. ACKERMAN: Your Honour, I'm John Ackerman. I'm assisted by

16 co-counsel Milka Maglov, legal assistant Milos Perec, translator Ratislava

17 Mirkovic.

18 JUDGE AGIUS: And for General Talic?

19 MR. PITRON: [Interpretation] For General Talic, Michel Pitron and

20 Ms. Natasha Fauveau.

21 JUDGE AGIUS: Mr. Brdjanin, as it is common practice here, I will

22 first start with you and ask you whether you are hearing me in a language

23 that you can understand.

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

25 JUDGE AGIUS: General Talic, I put the same question to you.

Page 873

1 THE ACCUSED TALIC: [Interpretation] I can hear you well, Your

2 Honour.

3 MS. KORNER: Your Honour.


5 MS. KORNER: Before we proceed any further with Dr. Donia, I want

6 to raise now - because it's becoming apparent that we cannot proceed in

7 this fashion with any efficiency - the question of how we deal with the

8 authenticity of documents.

9 Your Honour may recall that Mr. Ackerman, when I was opening the

10 case, interrupted to tell Your Honours that there was an objection to the

11 authenticity of the document colloquially described as the Variant A and B

12 document, the instructions to the Serbian people. Your Honour may also

13 recall that Mr. Ackerman told Your Honour that in a case that had been

14 conducted in this Tribunal earlier, it was the Prosecution in the form of

15 Grant Niemann, who was then a senior trial attorney, who had objected to

16 the authenticity of the document.

17 Your Honour may recall, when I was opening, I explained that after

18 ten years, witnesses had memory lapses. It would appear that

19 Mr. Ackerman, after six years, may have also had a memory lapse because we

20 actually found with some difficulty the transcript of the actual part.

21 Can I hand Your Honours and Mr. Ackerman a copy thereof? I

22 apologise. It's on -- in e-mail form.

23 MR. ACKERMAN: Your Honours, I may be able to shorten this. Just

24 a moment. I spent the entire afternoon yesterday afternoon searching

25 through the Celebici transcript looking for what I had been told a couple

Page 874

1 of days ago was surely there. It was not. What it actually boils down to

2 is that Mr. Niemann had made objection to documents that did not bear

3 stamps or signatures but did not specifically refer to the Variant A/B

4 document, although it falls in that category.

5 MS. KORNER: Your Honour, it may be one of the problems, as I say,

6 of recalling the events of some years ago. But as you will see, the

7 objection came to the document Variant A and B from Mr. Ackerman in

8 December of 1997.

9 Now, Your Honour, can I deal with --

10 MR. ACKERMAN: Excuse me again. I'm sorry. I hadn't seen this,

11 Your Honours, before I -- when I spoke. But this is a totally different

12 part of the transcript. The part of the transcript where the issue comes

13 up is the cross-examination by Mr. Niemann of a witness called -- it's

14 either Hadzibegovic or Vegicic [phoen] or something like that. It was

15 during the Defence case. This is during my cross-examination, I think, of

16 Dr. Gow.

17 JUDGE AGIUS: Anyway, perhaps to save --

18 MS. KORNER: Your Honour, it appears that Mr. Ackerman was

19 referring to something completely different, but he raised it in respect

20 of Variant A and B.

21 Your Honours, can I deal with what is going to happen if this

22 objection is maintained.

23 JUDGE AGIUS: With regard to this particular document?

24 MS. KORNER: This particular document. But I then want to come on

25 to the general principle. Your Honours, we have this morning given to the

Page 875

1 Defence counsel the 22 versions that we have accumulated over the course

2 of investigations. This document has figured in virtually in every case

3 that involved a Prosecution of Bosnian Serbs since the Tadic case. We can

4 call, and I will call, an investigator to show exactly where we have

5 received from -- where we have received these copies from. Your Honours,

6 we have just given that also to the Defence counsel.

7 And can I tell Your Honour in brief what this investigator is able

8 to say? He is able to say, for example, that he personally collected from

9 the government of the Republika Srpska the transcript of the speech made

10 by Radovan Karadzic in which he referred to the Variant A and B document

11 and has a statement from the shorthand writer who transcribed it.

12 JUDGE AGIUS: There is actually a reference to that part of that

13 speech in Dr. Donia's report.

14 MS. KORNER: Exactly. Exactly. In addition to that, Your Honour,

15 he can tell the Court where the various documents have come from. One of

16 them, the most recent, was actually collected by SFOR from the SDS offices

17 in February 2000. Your Honour, we can actually go on like this for half a

18 day.

19 JUDGE AGIUS: Basically, Ms. Korner, let me put my cards on the

20 table straight away. You know as much as we do of the best evidence

21 rule. That's the rule that you need to follow. Just make sure that

22 dealing with such an important document you will forward -- you will bring

23 forward the document itself that is available to you. I understand if it

24 existed in the original language and if it has an official stamp on it or

25 whatever, you could bring that. I mean, it's up to you. It shouldn't be

Page 876

1 as difficult as you would imagine, because I figure -- as I figure it,

2 this is a very important document. If there is an allegation that the

3 document that you are referring to and on which Dr. Donia bases part of

4 his report, then I imagine the Prosecution will base a substantial part of

5 its -- of its case. Then -- I mean for this Tribunal to be convinced of

6 the non-authenticity of the document as against being convinced of the

7 authenticity of the document, it's going to -- it's not going to be as

8 difficult as you would imagine, I mean because this is a cardinal document

9 in the opinion of the Tribunal. I mean, if there is allegation that it is

10 not authentic, we will see.

11 I mean -- well, I would expect from you to bring whatever

12 evidence, and you will have all the space which you need to bring the

13 evidence necessary, and we leave it at that. But I don't think you should

14 worry that much about it at this stage, because I would expect from you to

15 receive the evidence that you have.

16 MS. KORNER: Your Honour, I --

17 JUDGE AGIUS: It will take -- it will take a lot of effort, if you

18 follow the best evidence rule, for this Tribunal to be convinced that it

19 is not authentic.

20 MS. KORNER: Your Honour, I think what I'm trying to explain to

21 Your Honour is this: Of course we can do --

22 JUDGE AGIUS: It's going to be time-consuming.

23 MS. KORNER: It's going to be fantastically time-consuming.

24 JUDGE AGIUS: I know, but you are faced with that problem.

25 MS. KORNER: Your Honour, what I'm attempting to do at the moment

Page 877

1 is to see whether we can't foreshorten this. I imagine that Mr. Ackerman

2 - I don't know whether the Defence for General Talic take the same view

3 on this document - must have some sort of instructions before he

4 challenges the authenticity of this document. Your Honour, Mr. Ackerman

5 may wish to reconsider the position, but the situation is this: We

6 cannot, in order, in our submission, to most efficiently conduct the trial

7 stop and start like this in relation to documents that witnesses are going

8 to refer to. It seems to us that the only way to deal with this is to

9 deal with this, as it were, in a chunk when we deal with each witness.

10 Now, in future, we will be providing to the Defence in advance a

11 list of the documents as disclosed that the witnesses will refer to, and

12 we will be asking the Defence to let us know in advance of the witness

13 which documents are objected to as not being authentic or not in some form

14 or other being admissible, and we will then ask Your Honours to make a

15 ruling, there having been a hearing if that is necessary. Because

16 otherwise, what's going to happen is that the witness is going to come

17 in. The Defence will -- we will put a document to them. The Defence will

18 say, "We object." If we don't stop and deal with it there and then, then

19 either the document is not admitted or it is, and it becomes very

20 confusing. I'm so sorry, Your Honour. May I finish explaining what's

21 going to happen otherwise?

22 First, there is this system where you can have documents which are

23 not admitted into evidence or are marked or something like that, but the

24 transcript is going to become impossible to follow while in the middle of

25 a witness's evidence we have an argument about whether the document is

Page 878

1 admissible or not.

2 Now, in respect of Dr. Donia, Your Honour, I don't know. I did

3 ask yesterday -- we telephoned the Defence yesterday after court and asked

4 if they could provide us with a list of documents to which they objected.

5 In Dr. Donia's evidence we don't know at the moment. But we cannot have

6 Dr. Donia referring to documents, some of which are admitted, some of

7 which are not, because we're going to be asking Your Honours at the end of

8 his evidence to admit into evidence those documents and mark them as

9 admitted, and until we've had the ruling, we can't do it.

10 So, Your Honour, I mean, at the beginning of a trial it's a bit

11 more difficult to foresee what will happen.

12 JUDGE AGIUS: Exactly.

13 MS. KORNER: But may I suggest we have two choices at the moment.

14 One is that Dr. Donia can continue with the evidence referring to all the

15 documents that are in the binders that Your Honours have. Because we've

16 started, at the end we will ask for a list of those documents to which the

17 Defence object, and we will then have to have legal rulings from Your

18 Honour so that we can decide what is admitted into evidence and what is

19 not.

20 Alternatively, Your Honours, we can certainly deal with the

21 Variant A and B document today. The investigator is available. The

22 documents have been given to the Defence. They are all more or less the

23 same. They just have different numbers. And we can deal with that

24 straight away, and we can deal with any documents that the Defence object

25 to in Dr. Donia's evidence.

Page 879

1 JUDGE AGIUS: This is a problem that we encountered during the

2 Pre-Trial Conference, and more or less the attitude taken by the Defence

3 was along the lines that you know already. They do not want to disclose

4 at this point in time, or give particulars as to various documents which

5 again potentially cause a lot of problems to this Tribunal in the course

6 of this trial.

7 MS. KORNER: Your Honour.

8 JUDGE AGIUS: And I will avoid it as much as I can, but I am not

9 in a position at this early stage of the trial to pre-empt the issue

10 because I don't myself know which documents they will be contesting.

11 So I realise that there are problems, but the problems also are of

12 a different nature. For example, yesterday when Dr. Donia started giving

13 evidence, I was given a file, a box file, with I don't know how many

14 documents. Now, neither -- none of us is in a position to know which of

15 these documents are going to be or have their authenticity contested by

16 the Defence. Neither do you. But when were these documents first given

17 to the Defence in any case?

18 MS. KORNER: Your Honour, all these documents, bar I think two or

19 three, were disclosed way back to the Defence. They're all part of the

20 disclosures. They've just been pulled together.

21 But, Your Honour, accepting that the file like that --

22 JUDGE AGIUS: That makes a difference. I mean --

23 MS. KORNER: Your Honour, may I say I understand this has been

24 raised with a great -- I'm sorry.

25 With the greatest respect, I can't see what the problem is about

Page 880

1 Your Honour simply saying to Defence counsel -- may I say Mr. Ackerman has

2 already indicated in respect of other documents to which he objects.

3 There is -- there can be no reason at all why counsel for General Talic

4 cannot say, "These are the documents in this particular file which this

5 witness will refer to, to which we object." Unless they do that, Your

6 Honour, we can't continue in any efficient form at all.

7 JUDGE AGIUS: Definitely. I don't see it the way you see it,

8 because so far the position taken is that I only know of one, maximum two,

9 documents that we had an indication that their authenticity was being

10 contested until yesterday. That's about it. I have not heard from the

11 Defence that they are contesting all these documents or other documents.

12 MR. CAYLEY: Can I interrupt?

13 JUDGE AGIUS: I will come to you in a minute.

14 MR. CAYLEY: Mr. President, just to clarify matters, my learned

15 colleagues representing General Talic have in fact -- this morning we've

16 just had a notification of the documents that they are challenging. It's

17 fairly -- it's a fairly wide-ranging objection. All documents that are

18 not signed or stamped, they will object to.

19 JUDGE AGIUS: That, they have said all along.

20 MR. CAYLEY: And then they have given us a list of documents.

21 JUDGE AGIUS: Yes, but this they have said all along. This is the

22 position that I'm trying to explain.

23 During the Pre-Trial Conference, you were pre-warned that that

24 would be the position that the Defence for General Talic will be taking.

25 Actually, also Mr. Ackerman for Mr. Brdjanin also gave an indication that

Page 881

1 certain documents which purportedly emanate or are attributable to his

2 client are not authentic.

3 So concentrate on those, because you were forewarned. I am not in

4 a position now to tell counsel for General Talic or counsel for

5 Mr. Brdjanin, "You have until tomorrow morning to specify exactly which

6 documents." They have said all the documents that bear the signature of

7 General Talic or purportedly are attributable to him, and they were

8 limited only to -- you remember, Ms. Korner, they were limited only within

9 the context of the internationality of the conflict. I mean, all others,

10 yes, I am going to put my foot down and say that you have a time limit.

11 We can't possibly proceed in a vacuum not knowing which documents are

12 going to be contested and which documents are not going to be contested.

13 And there you are 100 per cent right. But there is also a limit, a limit

14 as to what to expect.

15 MS. KORNER: Well, Your Honour, I think we may be at variance on

16 that, because I can't see the difficulty. I understand the general

17 principle. But in other words, that puts the onus on us to search

18 through --

19 JUDGE AGIUS: You always have the onus.

20 MS. KORNER: -- the onus on us to search through -- we have the

21 onus to prove the case, Your Honour. But the onus on us to search through

22 each of the documents in advance and guess or do the best we can to say

23 these documents, because they're not signed or they're not dated, are the

24 subject of challenge. But they may not be. Some of the documents may be

25 innocuous. I'm sorry. May I finish, Your Honour, because it really is an

Page 882

1 important principle.

2 For example, when we got under the reciprocal disclosure rule some

3 documents from the Defence on both -- for both defendants, they gave back

4 to us effectively as documents on which they relied documents that come

5 from -- that we've disclosed to them, and they're giving it back to us to

6 show that they're relying on them. These documents all come from the same

7 sources. Some are undated. Some are unsigned. But they rely on them

8 because they're helpful. So how are we to guess, Your Honour, that this

9 is -- this particular unsigned document may not be the subject of

10 dispute?

11 JUDGE AGIUS: Ms. Korner, I am not the Prosecutor. You are the

12 Prosecutor, and you represent the Prosecution here, together with

13 Mr. Cayley, et cetera. The onus, the burden of proof, rests upon you.

14 Whenever you file or exhibit a document or whatever it is, you are

15 duty-bound to provide also evidence as to the authenticity of the

16 document. Now, how you do it, that's -- the Tribunal will not interfere.

17 But if you are filing or presenting a document purportedly coming from the

18 state council purportedly signed by General Talic or signed by

19 Mr. Brdjanin, or whatever, it -- you ought to -- you should not only

20 present the document but present also supporting evidence to make it -- at

21 least to show that we are dealing with an authentic document, to start

22 with, and that if it bears a signature of supposedly General Talic, you

23 will have someone to say that that is the signature of General Talic.

24 Now, you also have to anticipate that you may have problems there

25 and, therefore, your first problem and first preoccupation should be to

Page 883

1 foreclose on that as much as you can. So how you do it, that's your

2 business. But I can't stop the Defence from contesting the authenticity

3 of any of the documents you intend.

4 MS. KORNER: Absolutely right, Your Honour. Your Honour cannot

5 stop the Defence. They can object. At the end of the day though, Your

6 Honour will have to make a ruling.

7 JUDGE AGIUS: Of course. Of course. And probably not at the end

8 of the day. Probably much before the end of the day.

9 MS. KORNER: Yes, I'm sorry. By "the end of the day," I didn't

10 mean the end of the trial.

11 Your Honour, may I say Your Honours anticipated rightly for the

12 majority of these documents the Prosecution will be able to say these

13 documents were seized or provided. That's all that we'll be able to say.

14 Occasionally, we can call a witness.

15 For example, Your Honour -- and I raise this now, the document

16 that Mr. Pitron objected to yesterday, the report from the public

17 prosecutor in Teslic. Now, as it turns out, he is a man who was

18 interviewed. We've provided to the Defence the Rule 68 material that came

19 from his interview. But if necessary, I can ask Your Honour to show

20 witness summons. I can have him here to authenticate that document. Your

21 Honour, that's --

22 JUDGE AGIUS: And --

23 MS. KORNER: But -- I'm sorry, Your Honour, just it's a bit more

24 difficult.

25 That is a rare thing. Most of these documents we can only -- we

Page 884

1 will only be able to say these documents were seized under search warrant

2 in whichever area or have been provided by other agencies. But Your

3 Honour, we will go through all of that if that's required by the Defence,

4 for whatever time it takes.

5 I return then to my original position: It is -- apart from being

6 difficult to follow, it is also unfair on the witnesses to stop/start.

7 Therefore, in each and every case, as Your Honour declines to make an

8 order that the Defence should give us a list of the particular documents

9 to which they object, then we will go through each of the documents that

10 we know the witnesses will be referring to; we will identify the ones that

11 are unsigned or undated; and then before, Your Honour, before we call the

12 witness, we will call such evidence as we can about where these documents

13 come from; and we'll ask Your Honour to make a ruling.

14 Now, in respect of Dr. Donia, as I say, we haven't actually done

15 the exercise, because I'm afraid to say it never occurred to us, if that's

16 what Your Honour was going to do, that we should have to decide ourselves

17 rather than getting any assistance from the Defence.

18 JUDGE AGIUS: No, no. The Defence should actually take, in my

19 opinion, at least, a more cooperative approach, definitely. It would help

20 the Tribunal much more if an indication is given here and now at least

21 with regard to the documentation that was handed to us yesterday to which

22 Dr. Donia is referring. Definitely.

23 MS. KORNER: I understand.

24 JUDGE AGIUS: And if necessary, the Tribunal will also make a

25 ruling to that effect. However - however - the burden of proof -- that's

Page 885

1 where you have to start from. You have the burden of proof not only

2 generally but also particularly with regard to each and every document or

3 exhibit that you present us with. You are not -- or the last thing that

4 this Tribunal would expect from you - and I know that it will not happen -

5 is to present a document with no supporting evidence as to the origin of

6 that document. And I'm sure we are not going to have documents like

7 that.

8 MS. KORNER: Your Honour --

9 JUDGE AGIUS: Because otherwise, if you choose that, you are

10 asking for trouble.

11 MS. KORNER: Your Honour, we can -- for each and every document

12 that we have put in, we can show where that document comes from. And of

13 course, Your Honour, if that's what we're required to do, we will do it.

14 Can I return to the instant problem? I'm sorry, I didn't

15 appreciate -- because before I got on my feet, I didn't understand that

16 Ms. Fauveau had --

17 JUDGE AGIUS: I will hear what the Defence has to say now,

18 obviously.

19 MS. KORNER: Can we deal with the instant problem? We will go

20 through the documents with the assistance of the list we have from

21 General Talic's counsel. I don't know that we have a list from

22 Mr. Ackerman, but if we have, we'll go through that as well. We will then

23 ask Your Honour to -- we will call evidence. We can certainly call full

24 evidence on A and B, which we will. And we will call evidence as to where

25 each of the documents that is referred to in his report comes from.

Page 886

1 JUDGE AGIUS: Okay. Now, let's hear Mr. Pitron first.

2 MR. PITRON: [Interpretation] Mr. President, I see no particular

3 objection to the proposal made by Ms. Korner. I believe like her, that it

4 would be necessary to address the question of authenticity of documents

5 before hearing the witness, rather than after.

6 I just have one question that we need to deal with, and that is to

7 give time to the Defence to declare themselves regarding the authenticity

8 of those particular documents. As you know, we have been given hundreds

9 of thousands of documents, and we need to know for each witness -- will be

10 using the documents -- it will be -- he will be relying on. If we know in

11 advance, then we will have no problem in saying which we contest and which

12 we do not contest. We received yesterday at the beginning of the meeting

13 documents from the Prosecution. We worked all morning. We were unable to

14 comment on the authenticity of the documents at the end of the day. And I

15 believe that it would be normal for us to have a few days in advance the

16 documents the witness will be relying on so that we can properly inform

17 the Prosecution what we believe regarding the authenticity, and this will

18 give the time to the Prosecution to produce evidence in support of

19 authenticity. This has been going on from -- for two and a half years.

20 If we are given appropriate time, reasonable time to study the documents,

21 then we will have no problem in working properly.

22 JUDGE AGIUS: [Previous translation continues] ... Mr. Ackerman,

23 on that.

24 MR. ACKERMAN: Your Honour, I think the air needs to be cleared a

25 bit regarding all of this.

Page 887

1 First of all, Ms. Korner, I believe, is an experienced trial

2 advocate. She has been working on this case for over two years. And she

3 would thus have known throughout that process that to get a document into

4 evidence, you must prove its authenticity, you must prove that it is what

5 you say it is, that it is the document that you're contending that it is.

6 And she's known that for her whole career, I'm sure. To now stand before

7 this Chamber and suggest to you that there is something improper about the

8 Defence contesting the authenticity of her documents is, I say to you,

9 disingenuous. She has known from the very beginning that part of her job

10 is to prove the authenticity of her documents. And to say that it's our

11 fault that this has become an issue is just not fair. It's not our

12 fault. It's the law. And it's never my fault when I suggest that the law

13 should be followed, and that's all I'll suggesting here.

14 Now, with regard to the particular documents, I have been

15 supplying Ms. Korner with my views of these documents, whether or not I

16 would waive authenticity. And I've been waiving authenticity with regard

17 to a large number of documents and providing her with that information.

18 If she has paid attention, what she has seen is that I am generally

19 waiving authenticity with regard to any document that would ordinarily

20 have a signature and a stamp and does not.

21 In a place like the former Yugoslavia, it is generally understood

22 that a document is not authentic for any purpose if it doesn't have a

23 stamp and a signature, if it's a document that ordinarily would require

24 that. So it should be no mystery to her if I have not replied with regard

25 to any particular document, that if it is a document that does not have a

Page 888

1 signature and a stamp, the chances are I will challenge its authenticity.

2 I look at these documents, Your Honours, I have no more idea the

3 providence of these documents than you did when you looked at them

4 yesterday. They are pieces of paper without signature, without stamp,

5 that could have been typed on a typewriter yesterday in The Hague. Now, I

6 know the Prosecutor is not manufacturing documents, but that could have

7 happened. It could have happened two years ago somewhere in Bosnia and

8 been stuck into some records just so that they would be found by the

9 Prosecutor. We don't know. And if the Prosecutor is now telling you that

10 we cannot prove the authenticity of most of these documents and therefore

11 we're going to have a great deal of trouble proving our case, they

12 shouldn't have indicted the case in the first place if they couldn't

13 provide the documents necessary to prove it. It should never have been

14 indicted unless they had the evidence. If they -- if they're trying to

15 base their case on a bunch of documents that can't possibly be

16 authenticated, then we shouldn't be here. They should have done that

17 before they ever indicted these people.

18 Now, I'm willing to work forward on this case on the way that

19 Joanna Korner has suggested, that is, if she will supply me the list far

20 enough in advance for me to conscientiously look at the documents and make

21 decisions about how I feel about their -- their authenticity and let her

22 know whether I'm going to object or not, I think we can work pretty

23 efficiently, because I will not challenge the authenticity of many

24 documents, but some I will. And I reserve the right to do that, and I

25 should. I can't do an adequate job for my client if I don't.

Page 889

1 JUDGE AGIUS: Also if I may add, part of the pre-trial process was

2 precisely to clear the terrain in this regard, too, and more or less

3 following the documentation that you filed for the purposes of 65 ter.

4 The question of authenticity did arise. It did arise in very generic

5 terms, if I may say so, which definitely is not exactly what the

6 Prosecution would have preferred, but it's an indication -- it was an

7 indication, an early warning of what you were to expect.

8 So basically I think the best way we can proceed is -- I see a lot

9 of validity in what you have suggested and what you have stated and in

10 what you have suggested, and I think I -- I can also see that the Defence

11 approach is becoming more cooperative in this regard. However, we have to

12 understand each other a little bit better.

13 Mr. Pitron, there is a problem in what you have suggested in the

14 sense that if the Tribunal is satisfied that the documents that we are

15 talking about or that we would be talking about on any given day, in any

16 given circumstance, in the case of any particular witness, have been in

17 your possession for months and months, if not years, and you did not

18 indicate to the Prosecution that you were contesting the authenticity of

19 those documents, then we are going to have problems. Not in that I will

20 not give you all the opportunity to state what you have to state and

21 expect from the Prosecution the proof of authenticity in any case but in

22 the time limit or the time -- time space that you are requesting or

23 asking -- asking for which would necessarily bring the trial to a halt and

24 we will be holding this trial with hiccups more or less. This is what I

25 mean.

Page 890

1 I mean, if we are satisfied that these documents have -- were in

2 your possession and you could have indicated that you were contesting

3 their authenticity, please don't ask me for time. You indicate that you

4 are contesting the authenticity, so that would put the Prosecution on its

5 guard, and they either prove the authenticity or they don't prove it. You

6 don't have to prove anything, as you know. But don't ask me for time.

7 MR. PITRON: [Interpretation] Mr. President, with all due respect,

8 I have -- remind the Court that over 600.000 documents that we received,

9 two-thirds arrived last June, and throughout, until the end of last year

10 and the beginning of this year, I was still receiving documents, and you

11 are telling me that I have had time. With all due respect, Your Honours,

12 no, I have not had time. I have just had time to try and see what they're

13 about, to have them translated, because they were not translated by the

14 Registry. To tell me now that I had enough time to study them, to assess

15 their authenticity, I am sorry. But in view of the way in which the

16 Prosecution is making me work, I have not had time.

17 On the other hand, two things. First, as soon as I receive those

18 exhibits and as soon as I thought that their authenticity can be

19 contested, I say so very clearly. I will not go back on what I have

20 said. A document that is signed is not in dispute. One that has a stamp

21 also is not contestable in principle. One that doesn't have a signature

22 or a stamp is in dispute.

23 I now would like to know the exact documents that each witness

24 will be using. As soon as the Prosecutor tells me that -- when she told

25 me yesterday at 9.00 in the morning -- I will be able to tell her within

Page 891

1 eight hours what my opinion is regarding its authenticity or not. I am

2 afraid that I can do no better than that.

3 JUDGE AGIUS: No. And that is very reasonable on your part as

4 well. That is very reasonable on your part. This is what I meant. I

5 mean, I did not expect you to come here not knowing which documents a

6 particular witness is going to be asked to refer to, definitely not. But

7 don't -- then don't -- if these documents have been in your possession

8 already, I would -- I would expect you to at least be aware of them. I

9 mean, you have been very clear as to which categories of documents you

10 will be contesting the authenticity of. That has been clear. But you

11 have not been clear with regard to other documents, and they have been in

12 your possession, too.

13 Yes, Ms. Korner.

14 MS. KORNER: Your Honour, the Defence were given the list of the

15 documents to which Dr. Donia would be referring to, which were footnoted

16 last week.

17 Your Honour, I don't think it's helpful any more to pursue this.

18 I take the point that from now on, and that's what we intend to do, as I

19 said this morning, at least three days before the witness is called the

20 list will be given.

21 JUDGE AGIUS: That's fair enough.

22 MS. KORNER: Then, Your Honour -- but then I would expect, Your

23 Honour, and I think Your Honour now expects that we be told, identify the

24 documents to which objection will be taken.

25 Mr. Ackerman made the point that I was trying to make. In fact,

Page 892

1 he has not contested the authenticity of some documents which are not

2 signed but clearly, presumably, help his case, and that's the difficulty.

3 Can I come back to Dr. Donia? It seems to me the most efficient

4 way to proceed now is for us to look at the documents to which objection

5 is taken, to call the evidence that we wish to call about that evidence to

6 satisfy Your Honour that they should be admitted, and we may have to have

7 a legal argument about what is authentic for the purposes of this case.

8 In other words, we do not have to call the maker, the signer, of all of

9 these documents. But, Your Honour, I think that's the only thing we can

10 do at the moment.

11 I would ask, Your Honour, we may be able to -- if Your Honour

12 gives us an hour or so, we can go through the documents and then try and

13 work out the best way to call the evidence.

14 JUDGE AGIUS: May I suggest, because to tell you the truth, I

15 didn't want to interfere with the way you started producing Dr. Donia as

16 your expert witness yesterday, and I was taken a bit by surprise by the

17 fact that you made available a number of documents which had not yet been

18 exhibited in court. In other words, it's a practice which more or less I

19 don't like. I mean, I would rather prefer to have the documents

20 exhibited, formally exhibited first, any problem as to authenticity

21 cleared, so any question as to admissibility cleared, and then we'll

22 proceed with the evidence. I think it's wiser. It pays dividends to the

23 Prosecution and to the Defence, and although it may delay having a witness

24 come here to give evidence by a day or two, I can assure you that it will

25 simplify matters because then there will be no further questions as to

Page 893

1 authenticity in the course of the testimony.

2 So if you can take my suggestion. I was going to suggest it

3 yesterday when he started giving evidence, but then I realised that there

4 was no problems with the Defence or forthcoming from the Defence for these

5 documents to be exhibited later and questions as to authenticity

6 discussed, debated, and decided upon later, and so I said let's go ahead.

7 But I would prefer it the other way round, as I have just suggested, if

8 that is agreeable to you. And it would also give the Defence more time to

9 clarify its position with -- their position with regard to these -- to

10 these documents.

11 MS. KORNER: I think, Your Honour, you and I are ad idem on that.

12 That's what I said to you this morning first thing. This is the only way

13 to deal with it.

14 Your Honour, I had intended next week, when Dr. Donia had

15 finished, to call the chief investigator in this case to explain the

16 provenance of the majority of the document collections, as we've been

17 calling them, and to deal with how we acquired other documents. It seems

18 to me now that I will have to interpose him before we go any further with

19 Dr. Donia because with some of the documents, they come from these

20 collections.

21 JUDGE AGIUS: Not necessarily. If we trash today and conclude all

22 the problems that there may be on the documents that Dr. Donia will be

23 referring to, then we can proceed with Dr. Donia's evidence.

24 I will give you this hour that you require.

25 MS. KORNER: Your Honour.

Page 894

1 JUDGE AGIUS: See which other witnesses you need to produce and

2 then we'll take it from there.

3 MS. KORNER: Your Honour, the -- sorry. The majority of the

4 documents which are not open source documents, in other words, newspaper

5 articles or books that have been written about this, are documents that

6 Dr. Donia looked at from the in-house collection of documents that we

7 have. We will now need to go through them, having got the list of the

8 documents which the Defence object to, in order to establish to

9 Your Honour's satisfaction where they come from. We will have to call

10 that investigator. Somebody's got to give evidence about it.

11 JUDGE AGIUS: Is he present?

12 MS. KORNER: He's here, but I'll have to -- he's certainly not

13 expecting to give evidence today. But I can call and I will call, because

14 may I say that the Variant A and B document affects a number of trials in

15 this building, and I think that the quickest way - and it will help the

16 other trials - is for us to deal with this in full today.

17 JUDGE AGIUS: Let me just interrupt you for a moment and seek to

18 clarify this from the Defence.

19 Mr. Ackerman, do you still contest the authenticity of the

20 document re: the Variant A and B?

21 MR. ACKERMAN: I do, Your Honour, and there is -- that same issue,

22 as Ms. Korner has alluded, is in process in a case that's being handled by

23 your colleague Judge Mumba, the Bosanski Samac case. They are litigating

24 that vigorously I see from the transcripts. And we were just handed this

25 morning the Prosecutor's Office's collection of these Variant A/B

Page 895

1 documents. They have some, I think, 21 different versions of them with

2 different numbers, and many of them have handwriting on them which is in a

3 language that I can't read. We've just had them for a very few minutes,

4 and I don't know -- have no idea whether that handwriting would affect my

5 view of the authenticity of these documents or not. I think there should

6 be an opportunity for us to at least spend some time. My co-counsel will

7 be able to read this, at least spend some time going through it because it

8 may -- it may clear up the whole thing. It may not, but it may. It has

9 that potential.

10 If not, then I think what Ms. Korner suggests is probably

11 sensible, and that is that she go forward and offer whatever proof she can

12 regarding the authenticity of these documents and then the Court can

13 simply make a decision.

14 JUDGE AGIUS: Okay. I thank you, Mr. Ackerman.

15 Mr. Pitron, are you of the same opinion?

16 MR. PITRON: [Interpretation] I would like Ms. Fauveau to respond,

17 please, Mr. President.

18 MS. FAUVEAU: [Interpretation] We contest this document because the

19 chain of custody was interrupted at a certain point in time, we believe.

20 JUDGE AGIUS: So more or less I would start from there,

21 Ms. Korner. Please concentrate on it, because obviously it forms a -- not

22 exactly the backbone, but almost, of most of the theories or opinions of

23 Dr. Donia, in any case. I would imagine that it's going to be referred to

24 and re-referred to in the course of the presentation of your case by

25 various witnesses.

Page 896

1 MS. KORNER: Probably not, Your Honour, but nonetheless, as Your

2 Honour says rightly, it's really the backbone not only of this case but of

3 the Samac case and other cases that this was -- the "blueprint" perhaps is

4 putting it too high but the basis for how matters proceeded.

5 JUDGE AGIUS: So let me make myself clear. If this document is so

6 important, then I would suggest to you and to Defence that we start with

7 it before we proceed with Dr. Donia's evidence.

8 MS. KORNER: I was going to ask, would Your Honour stand Dr. Donia

9 down, in other words, until we've sorted the question of these --

10 JUDGE AGIUS: I would say so.

11 MS. KORNER: Yes. May I have -- he's hardly started in chief.

12 May we have permission to talk to him? We understand after

13 cross-examination starts --

14 JUDGE AGIUS: What is your reaction to this, Mr. Ackerman?

15 MR. ACKERMAN: I have absolutely no objection at all.

16 JUDGE AGIUS: Mr. Pitron? Okay. You can go ahead. Thank you.

17 MS. KORNER: Well, would Your Honour adjourn for one hour? As I

18 understand -- is Mr. Ackerman prepared to go ahead? I will call the

19 investigator, Mr. O'Donnell, to deal with -- I'm sorry. Yes.

20 Your Honour, there may be a slight problem. I know it's time

21 wasting, but it can't be helped today, I'm afraid. Would Your Honour say

22 two hours? There's a problem with getting the investigator here within

23 the hour.

24 JUDGE AGIUS: No problem. His presence is needed, definitely, and

25 also these two hours will be used by both sides to deal with this.

Page 897












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13 English transcripts.













Page 898

1 Incidentally, while we are at this and before we break for two

2 hours, may I raise some points on which I require some clarification.

3 Now, I'm going back to or I refer you to the four motions filed by Mr. --

4 remaining four motions filed by Mr. Ackerman last week, each one dealing

5 with the first four witnesses after the investigator that you intended to

6 bring forward.

7 As I understood the position to be at the end of last Monday's

8 Pre-Trial Conference, you were exchanging documents with Mr. Ackerman, and

9 we were supposed to make an assessment of -- reassessment of the position

10 at some later point in time with a view to seeing whether these motions

11 were going to be maintained or whether they were going to be withdrawn or

12 at what particular time they needed to be decided upon.

13 Could you inform the Court as to the current situation?

14 MS. KORNER: I don't know whether they're withdrawn, but the

15 current situation is that Mr. Ackerman's have been redisclosed, the

16 documents that he said he didn't have, to him. So I don't know what the

17 situation is. The first witness, in fact, is going to be so far back

18 now. We've already -- he was supposed to be arriving this weekend. We've

19 already put him off until Tuesday, and it seems to me he may not be giving

20 evidence until the end of next week.

21 JUDGE AGIUS: If these four witnesses will be giving evidence,

22 say, within the next two weeks, you need to know.

23 MS. KORNER: Yes.

24 JUDGE AGIUS: And this is why -- this is why I'm insisting on some

25 sort of information.

Page 899

1 Mr. Ackerman.

2 MR. ACKERMAN: Your Honour, by -- I don't -- I know I've received

3 some additional documentation from the Prosecutor that would take care of

4 some of the documents that I had told you in the motions that I did not

5 have. I think there are still some translations outstanding. I did

6 receive a couple of translations for the first witness. I haven't even

7 compared them with what's missing, I've been doing too many other things,

8 but I think by Monday morning I can tell you what the status of the

9 documents are on those witnesses.

10 JUDGE AGIUS: Okay. So --

11 MR. ACKERMAN: It may very well be they've given me everything I

12 needed.

13 JUDGE AGIUS: So it may be that we will call upon you again Monday

14 to possibly conclude this matter.

15 Yes, Ms. Korner.

16 MS. KORNER: Your Honour -- sorry, Mr. Cayley just said something

17 about all the other documents that were disputed. But I understand that

18 we've now got a list from counsel of General Talic of all the documents

19 that are disputed in Dr. Donia's report. I'm not sure about Mr. Ackerman,

20 but ...

21 MR. ACKERMAN: I sent a message to Ms. Korner late yesterday with

22 regard to that, setting out that as a general matter with regard to the

23 Donia documents, I was contesting authenticity of anything that failed to

24 have a signature and a stamp. I can possibly be more precise about that

25 sometime within the next hour or so.

Page 900


2 MS. KORNER: Your Honour, may I say that in respect -- I have just

3 remembered. I was reminded yesterday by a member of my team that there

4 are still some translations awaited for the first witness. But we were

5 told by the CLSS that they would be available today. And as soon as we

6 get them, we will give them to Mr. Ackerman and to my learned friends.

7 We will also try -- if there really becomes a point where the

8 translation is not available, then we will try and get it translated by

9 not authorised translators; in other words, they're not properly -- I

10 don't think "authentic" is quite the way I want to put it. But that they

11 may not be the proper authorised translations, but they'll be the best we

12 can get them.

13 JUDGE AGIUS: And then there is another matter that I wanted to

14 raise. You are aware that Defence counsel for General Talic filed earlier

15 on this week or last week, end of last week, an objection with regard to

16 92 bis, et cetera. You had requested the Court for permission to

17 make oral submissions.

18 MS. KORNER: Your Honour, I was going to raise that this morning,

19 because I don't think I made myself entirely clear. We would like to make

20 oral submissions to Your Honour on the witness, Ludwig Kranjc, who is

21 dead. And they object, and I think we need to make submissions.

22 JUDGE AGIUS: No need for protective measures.

23 MS. KORNER: Exactly.

24 On the other ones, Your Honour, we have nothing further to add,

25 and we were going to ask Your Honour for a ruling because obviously we

Page 901

1 need to know whether to warn the witness.

2 JUDGE AGIUS: This is why I brought it up.

3 MS. KORNER: Thank you.

4 JUDGE AGIUS: And when would you like the make the oral response

5 with regard to the dead witness?

6 MS. KORNER: Your Honour, we can do that at any time that's

7 convenient, because there's no question about having to warn him either.

8 JUDGE AGIUS: And the last point I wanted to raise was -- well,

9 first to your request last time for a possible subpoena --

10 MS. KORNER: That's right.

11 JUDGE AGIUS: -- to the journalist that was mentioned. There was

12 some objection raised at the time by Mr. Ackerman subject to his

13 reconsidering his position after reading the alleged --

14 MS. KORNER: It was a newspaper article, Your Honour.

15 JUDGE AGIUS: -- newspaper article.

16 Have you been through the newspaper article, Mr. Ackerman?

17 MR. ACKERMAN: I'm very embarrassed. I told you I would do it,

18 and I haven't.

19 JUDGE AGIUS: Could you possibly do that by Monday?

20 MR. ACKERMAN: That will be another one of my --

21 JUDGE AGIUS: The thing is this: I appeal to you to be as

22 courteous with each other as possible. I mean, you will understand that

23 the Prosecution needs to know what they have to do in good time, too. I

24 mean, please try to come with a definitive answer by Monday.

25 So the sitting is suspended for two hours. We will resume at

Page 902

1 noon. Thank you. And if there are any problems in the meantime, please

2 let me know through the registrar. Thank you.

3 --- Recess taken at 9.55 a.m.

4 --- On resuming at 12.02 p.m.

5 JUDGE AGIUS: So, yes, Ms. Korner.

6 MS. KORNER: Your Honour, I'm so sorry to have not been in Court.

7 JUDGE AGIUS: No, that's no problem.

8 MS. KORNER: I was getting some last-minute instructions. It

9 appears, which we hadn't appreciated because nobody thought we were going

10 to have to deal with this quite so quickly, that some of the copies of

11 this particular document have original writing in it, in other words, not

12 photocopy. I'm sorry to ask Your Honour, could Your Honour give us

13 another 20 minutes just so that the investigator is able to specify which

14 have original writing? I'm very sorry that Your Honour has had to come

15 into court.

16 JUDGE AGIUS: These things happen, Ms. Korner. I've been a Judge

17 for the last 25 years. Nothing surprises me any more. If you need more

18 than 25 minutes, please let me know. This is why I had told you before if

19 there are problems, come back to me.

20 MS. KORNER: I'm very sorry to have got last-minute instructions.

21 JUDGE AGIUS: It's not a problem.

22 MS. KORNER: It's --

23 JUDGE AGIUS: It's not a problem. What we are -- the time that we

24 are using now, I can assure you, is being very well made use of.

25 MS. KORNER: And may I just tell Your Honours that what you have

Page 903

1 in front of you in the bundle is you have effectively a summary of what

2 the investigator will say plus, in addition, the various copies of this

3 particular document that have been referred to.

4 JUDGE AGIUS: Okay. I think what we will do is I will take this

5 new file with me to my Chambers and have a look at the documents there,

6 and we will resume at exactly half past noon.

7 MS. KORNER: Thank you. Half past twelve.

8 JUDGE AGIUS: Half past twelve. Yes.

9 MS. KORNER: And can I tell Your Honours, I'll ask to be brought

10 to Your Honours -- in the investigator's, the summary of what he will say,

11 he refers to supporting material, in other words, where that document is

12 referred to. We've copied that, and we'll have that brought out to Your

13 Honours as well.

14 JUDGE AGIUS: Okay. Thank you. So we will resume at half past

15 twelve.

16 MS. KORNER: Thank you.

17 JUDGE AGIUS: Thank you.

18 --- Recess taken at 12.07 p.m.

19 --- On resuming at 12.46 p.m.

20 JUDGE AGIUS: [Microphone not activated] Now, the mike is on.

21 Ms. Korner.

22 MS. KORNER: I thank Your Honour for the time, and we are now in a

23 position to proceed. May I mention one matter? Because we were in a

24 hurry to give the Defence documents, entirely my fault, I gave them some

25 documents with what are internal information sheets belonging to the

Page 904

1 Office of the Prosecutor. I understand that they may have written on

2 them. I'm just simply going to ask that if they feel they can't hand them

3 back to us, they would undertake to destroy them, because they're not --

4 they're internal communications, effectively.

5 Your Honour, I'm sorry, I forgot to --

6 JUDGE AGIUS: One moment, because Mr. Ackerman wants to say

7 something.

8 MR. ACKERMAN: Your Honour, I will return the documents, those

9 cover pages that she's concerned about. Unfortunately, I'd used the

10 numbers on them for notes that I was making.

11 The one thing I wanted to say to the Chamber is having had an

12 opportunity to review the documents that were provided this morning

13 regarding this particular exhibit, this Variant A/B, we have become

14 convinced that there is sufficient circumstantial guarantees of

15 trustworthiness that it is -- would simply be a waste, from our

16 standpoint, of this Court's time to go through this exercise of having

17 this witness come in and spend the next who knows how long testifying as

18 to what these documents say. So at this point, I am prepared to waive my

19 objection to the authenticity of this document.

20 JUDGE AGIUS: Mr. Pitron.

21 MR. PITRON: [Interpretation] I understand that my colleague's

22 comment concerns one document that was provided to you and not all

23 documents, and I agree with him with regard to this matter.

24 JUDGE AGIUS: As I understood you, you were referring to the

25 Variant A/B document.

Page 905

1 MR. ACKERMAN: Yes, Your Honour. It's my understanding that that

2 was the issue that we're getting ready to spend a lot of time on.

3 JUDGE AGIUS: Exactly. You are not extending your non-objection

4 to the other documentation.

5 MR. ACKERMAN: No. Ms. Korner has a list of the other Donia

6 documents that I am objecting to --

7 JUDGE AGIUS: So Mr. Pitron, with regard to the Variant A/B

8 document, you take the same position?

9 MR. PITRON: [Interpretation] Absolutely. That's right.

10 JUDGE AGIUS: So that changes a little bit.

11 MS. KORNER: Your Honour, it perhaps might have been courteous if

12 we had been told about this in advance. The fact is that we've now wasted

13 the best part of a morning putting this together. Your Honour, if we have

14 to go through this exercise for every document, this trial will take five

15 years. I think we need to argue quite soon the principles of

16 admissibility into evidence in this Tribunal.

17 Your Honour, what I -- in this case, there's nothing else we can

18 deal with today. Dr. Donia has gone. The investigator who will deal with

19 the other documents that the objection has been taken will be testifying

20 on Monday. He needs to gather together the documents.

21 Your Honour, may I say, however, that we supplied to the Defence

22 last week the full list of the Dr. Donia documents. We gave them -- we

23 recopied for them the first, as it were, set of them. But there are

24 another 15 or so that haven't yet been recopied. As I say, the list has

25 been with the Defence since last week. We would therefore ask that by the

Page 906

1 end of today, they indicate which of the documents not yet recopied for

2 them they also object to. Can I say, they've all been disclosed some time

3 ago. So we need to know those. And on Monday morning, we will deal with

4 those. And then I would ask Your Honours to hear legal argument on the

5 general principles of admissibility of documents in this Tribunal.

6 JUDGE AGIUS: And I think with regard to the admissibility of

7 documents, I think what you suggested this morning and what more or less

8 we agreed upon this morning is the way we should proceed.

9 MS. KORNER: Yes, Your Honour --


11 MS. KORNER: I'm sorry. I understand, and we will deal with each

12 document -- each set, as it were, each witness. But I think Your Honours

13 need to set out a series of general principles first.

14 Admissibility in this Tribunal has not been historically with the

15 strict proof that may be required in other jurisdictions because of the

16 way that the Tribunal was established and the way in which documents are

17 acquired.

18 I think it is important that Your Honours should look at the

19 decisions that have been made in other cases which we are going to pull

20 together for Your Honours to see. If those very strict principles that

21 Your Honour dealt with this morning were adhered to, I can say without, I

22 think, fear of contradiction, no documents would ever have been admitted

23 and a lot of people wouldn't have been tried here.

24 So I think, Your Honour, we need to look at the general principles

25 and then apply them in turn to each of the witnesses or each of the

Page 907

1 municipalities.

2 JUDGE AGIUS: Yes, Mr. Ackerman.

3 MR. ACKERMAN: To some extent, Your Honour, I wish I could have

4 told you yesterday that I would be taking this position, but these

5 documents were handed to me not very long ago. I had to go through them,

6 my co-counsel had to go through them, and about two minutes before this

7 hearing started, we had agreed that we could -- we could now concede that

8 there are circumstantial guarantees of trustworthiness that would, we

9 think, make it possible for the Tribunal to admit this document.

10 If Ms. Korner wants to speed things up with regard to the rest of

11 the Donia documents, all she has to do is give us documents or information

12 she has that she believes established the same kind of circumstantial

13 guarantees of trustworthiness regarding the other documents that are not

14 signed and do not have stamps on them, and if she gives that to us and

15 we're satisfied that it would be a waste of your time, and folly to

16 contest any further those documents, then we will of course do the same

17 thing we did with regard to this document.

18 So it's not that we are dragging our feet about this. It's that

19 if she gives us the information, you'll -- she'll get the response that

20 she would like, I think.

21 JUDGE AGIUS: You will not --

22 MS. KORNER: Your Honour, I'm sorry. Can I --


24 MS. KORNER: I must tell Your Honour that the bundle of documents

25 that Mr. Ackerman refers to that I was going to hand Your Honour, all of

Page 908

1 these -- nearly all of those have already been disclosed. If Mr. Ackerman

2 or anybody else had read through the bundles headed "Kljuc," they would

3 have seen the Crisis Staff document that refers to Variant A and B.

4 Krupa, the same thing. These are all documents that have been disclosed.

5 We are not supposed to do the job of the Defence. We say, "These

6 documents are admissible. These are the reasons why." If they wish to

7 challenge them, then they should do the research themselves.

8 JUDGE AGIUS: The principle, actually, and I definitely am not

9 going to put the question of authenticity before considering whether these

10 documents ought to be admitted in the first place because it's a question

11 of relevance that comes after. It's a question of authenticity which

12 comes after. These are points that need to be decided once the document

13 is an exhibit. First it has to become an exhibit.

14 MS. KORNER: I agree.

15 JUDGE AGIUS: To which there's no question about that. And this

16 is why I was surprised yesterday when Dr. Donia took the witness stand and

17 started referring to documents which were not yet exhibits, because

18 basically you were running the risk then of having those documents not

19 admitted in the first place and having a witness at the same time making

20 reference, specific reference to that.

21 MS. KORNER: Your Honour, we take the view that if it is known

22 that a witness is going to deal with various documents, unless there is an

23 objection taken, then those documents will be admitted through the

24 witness. But, Your Honour, I take your -- I take the point that Your

25 Honour has made and, as I said, we'll do it differently.

Page 909

1 JUDGE AGIUS: And that's why I let it go yesterday, precisely

2 because of what you've said just now and because there was no opposition

3 forthcoming from the Defence, but certainly that's not the system that I

4 prefer.

5 MS. KORNER: I understand that.

6 JUDGE AGIUS: And I think we were more or less on the same

7 wavelength today with regard to the procedure that ought to be followed.

8 And I can tell you beforehand that I'm not going to waste time going into

9 questions of authenticity and decide whether a document is authentic

10 before deciding on whether the document ought to be admitted as evidence

11 or not. Then the question of authenticity has a bearing on the probative

12 value of the document but not on whether -- a priori whether the document

13 should be admitted or not. Otherwise, as you said, we would never start,

14 and we would never finish.

15 MS. KORNER: Thank you, Your Honour.

16 JUDGE AGIUS: Yes, Mr. Ackerman.

17 MR. ACKERMAN: Your Honour, Ms. Korner seems to keep trying to

18 shift her burden to us --


20 MR. ACKERMAN: -- and it's not our burden.

21 JUDGE AGIUS: I don't -- I don't take it as that. I even think

22 that you were a little bit touchy upon the subject. She was not throwing

23 at you any accusations that you were dragging your feet or whatever.

24 Leave it at that. The Tribunal is quite happy with the attitude that you

25 and Mr. Pitron are taking so far, so there is absolutely no criticism

Page 910

1 being levelled in your direction for the moment, at least, let's put it

2 like that.

3 MR. ACKERMAN: I just want to say that is of no value to what we

4 are trying to do for Ms. Korner to say somewhere in the, I don't know,

5 250.000, 300.000 pages of documents that we have we could have found

6 these. That's probably true if we had had the time to go into that kind

7 of an inquiry. And it's so simple. If she has documents which she

8 believes show that a document is authentic, just let us know. Even give

9 us the numbers. We don't mind looking them up ourselves.

10 JUDGE AGIUS: Again, I think we are wasting our time here

11 discussing this any further, because as I understand it, there is a

12 commitment on the part of the Prosecution now that a few days before a

13 witness, you will have the documentation. So the question of going

14 through your hundreds of thousands of pages to locate this or that

15 particular document does not arise any more.

16 MR. ACKERMAN: I agree. The Prosecution has the key to solve the

17 problem, and I'll assist in any way I can.

18 MS. KORNER: Your Honour, we're not going to -- we did as an

19 exception for Dr. Donia because it was footnotes. We are not going to

20 recopy documents we have already disclosed. We are going to provide the

21 list of the numbers. I don't know how many Amazonian rain forests we've

22 cut down already in this case, but there has to come a stop. But the

23 numbers of the documents will be supplied at least three days in advance

24 of the witness.

25 JUDGE AGIUS: I wasn't expecting you to give them again the copies

Page 911

1 of the documents. They would complain that they have to read them again.

2 So -- and also --

3 MR. ACKERMAN: Were you looking at me when you said that?

4 JUDGE AGIUS: Because you already fell twice from your bicycle.

5 One other thing, Ms. Korner. I mean, I was going through these

6 documents in my Chambers, the ones in Cyrillic script, and again, I mean

7 it's -- I'm saying this from experience. Most of them, apart from the

8 fact that I don't read Cyrillic, but those of them are very poor quality

9 photocopy, and even for an expert in the language it would be very

10 difficult to read or to understand. I mean, they are barely legible.

11 I'm saying this not by way of criticism because I realise that

12 this is not done capriciously. In order to avoid problems, because I can

13 anticipate Mr. Pitron or Mr. Ackerman looking at document so-and-so and

14 saying, "We can't read this. Apart from being in Cyrillic script, we

15 can't read it," and even with the help of interpreters or whatever, that

16 could create problem. So if you can avoid that, it would avoid incidents

17 in due course.

18 MS. KORNER: Your Honour, the quality of those documents, I was

19 going to explain to Your Honour, is because of the quality of the copy we

20 have. Some of these are copies, and that is how the document when we

21 acquired it was copied. But we appreciate that. It has happened before

22 where we've had to try and get a better copy. But we're well aware of the

23 problem.

24 JUDGE AGIUS: Because what I mean, for example -- take the

25 document at Tab 12. If you look at it, you tell me whether there is

Page 912

1 anyone on earth capable of making heads or tails of what the first page

2 contains, or supposed to say, the second page. The third page is not

3 bad. And you continue, there are pages which are utterly illegible. I

4 mean ...

5 MS. KORNER: Yes, Your Honour, that's because -- I can show Your

6 Honour what I call the original. The original is like this.

7 JUDGE AGIUS: The original is like that as well.

8 MS. KORNER: The original is like that. That's why it's come out

9 like this. It's not the photocopy.

10 JUDGE AGIUS: There is no solution, in other words.

11 MS. KORNER: But for some of these documents, I'm afraid, that's

12 the problem.

13 JUDGE AGIUS: Okay. So do we have anything else to clear up this

14 morning? Nothing.

15 MS. KORNER: Your Honours, nothing, I'm afraid, that we're in a

16 position ready to deal with this morning.

17 JUDGE AGIUS: And will you put your request again so that we can

18 formalise it and then I make -- give a ruling on it.

19 MS. KORNER: Thank you very much. In respect of the documents,

20 Your Honour, what we're asking for now, please, is the that the remainder

21 of the documents, which we will give them copies of on this one occasion,

22 but could we know which one of those are objected to as well, particularly

23 as chain of custody up here has been raised. The investigator will need

24 to make investigations over the weekend as to how we've acquired all these

25 documents. So I would like the numbers of the remaining documents on the

Page 913

1 list which are objected to.

2 JUDGE AGIUS: As I understand it, Ms. Korner, the chain of custody

3 interruption that was mentioned by Ms. Fauveau related to the Variant A

4 and B document only.

5 I don't think you were referring or making that applicable as well

6 to the other documents, were you?

7 MS. FAUVEAU: [Interpretation] No. I was referring to -- I was

8 referring to the documents Variant A and B. But I'm not sure that I won't

9 raise this objection again.

10 JUDGE AGIUS: So basically, that brings that particular matter to

11 an end.

12 Yes, Mr. Ackerman.

13 MR. ACKERMAN: With regard to the balance of the Donia documents,

14 Your Honour, let me just say that I will have no objection as to the

15 authenticity of any document that bears a signature and a stamp and will

16 have with regard to any document that does not. And if this afternoon, as

17 I go through the documents, I find a document that does not have a

18 signature and a stamp that I for some other reason believe is authentic, I

19 will advise Ms. Korner. But absent that advice, that should be sufficient

20 information for her to proceed on.

21 JUDGE AGIUS: So that is a commitment on your part.

22 MR. ACKERMAN: It is.

23 JUDGE AGIUS: And as it is a commitment, I will not give any

24 ruling, as far as you and your client is concerned.

25 MR. ACKERMAN: Thank you.

Page 914

1 JUDGE AGIUS: Mr. Pitron.

2 MR. PITRON: [Interpretation] I would like to say the same -- make

3 the same remark, as I have always done. I am very sensitive to this

4 position.

5 MS. KORNER: Perhaps I could just --

6 JUDGE AGIUS: Yes, Ms. Korner.

7 MS. KORNER: It's not quite so simple, because on the list that we

8 were given by the Defence, they're objecting to one with a signature on

9 it. Because I was --

10 JUDGE AGIUS: Which Defence?

11 MS. KORNER: Mr. Pitron. It was Ms. Fauveau with respect to one

12 of my team. They object to a document marked 1120, which is signed.

13 Because as I understand it, General Talic doesn't know who the signature

14 is. So I'm not sure that's at all relevant to its admissibility, but

15 nonetheless, it's not so simple to simply say anything that isn't signed

16 or sealed is objected to. So if there are other documents with a

17 signature, then we'd better know about them.

18 JUDGE AGIUS: Which document is this?

19 MS. KORNER: It's the one in Your Honours' binders marked

20 behind or on top of - I'm not sure - one -- I can't at the moment -- I'm

21 sorry, that's the disclosure number, so I'd --

22 JUDGE AGIUS: 1120?

23 MS. KORNER: Yes.

24 JUDGE AGIUS: Oh, I see. This is a draft translation?

25 MS. KORNER: The original is signed.

Page 915

1 JUDGE AGIUS: The original is signed? And this is being -- it's

2 behind -- just behind Tab 12.

3 MS. FAUVEAU: [Interpretation] Mr. President, it's a document from

4 a voluntary unit that we have, and it's a document that we received two

5 days ago, so we should look into it. And in addition, this document, it's

6 true, has been signed. But as said -- but as we said to the Prosecutor

7 which document we were contesting, we said that there was an additional

8 document, and we provided the reasons for which we were contesting its

9 authenticity.

10 JUDGE AGIUS: In any case, this document is over and above the

11 declaration that they have made. Please keep in mind that there is,

12 however, this document which does not fall within that description. It

13 goes outside that description. And -- but this will be the only

14 document.

15 MS. KORNER: Your Honour, I appreciate that. And I'm not going to

16 repeat this again, but with the greatest of respect, I cannot see why the

17 Defence having had this list for well over a week now cannot simply say,

18 "We dispute documents 1, 6, 9, and 12." It makes it easier for us.

19 We're going to have to do the work to establish it; we understand that.

20 But to not make an order that they very simply give the numbers, I simply

21 do not understand that, Your Honour. I'm sorry.

22 JUDGE AGIUS: We can make the order.

23 So the Chamber orders the Defence for General Talic and for

24 Mr. Brdjanin to indicate -- or to communicate to the Prosecutor via the

25 normal channels - I don't know which channels you use between you, but via

Page 916

1 the normal channels - which of the several documents contained in the

2 folder of documents to be made use of by witness -- expert witness

3 Dr. Donia they have reservations about or wish to contest the authenticity

4 of by not later than the end of --

5 You have special times here which --

6 JUDGE AGIUS: [Microphone not activated] The microphone is off.

7 THE INTERPRETER: Microphone for the Judge. Microphone, please,

8 for the President. Microphone.

9 MS. KORNER: [Microphone not activated]

10 JUDGE AGIUS: So by 4.00 today. And it shouldn't be difficult for

11 anything, but usually there is a time limit which is observed in this

12 Tribunal for either the filing of motions -- 4.00?

13 MS. KORNER: 4.00.

14 JUDGE AGIUS: It is 4.00. So we'll keep it at that.

15 MS. KORNER: And Your Honour, just so there's no confusion, it's

16 on the list that was given to them last week, it just indicate -- we've

17 already got some indications, but just the remainder.

18 JUDGE AGIUS: The remainder. Yes. Okay. That's taken to be

19 like -- as just stated by Ms. Korner. And in actual fact, that's the way

20 it has to be.

21 So I think we can call it a day for today. I'm sorry this had to

22 happen. But anyway, we haven't wasted the morning as much as you think.

23 It's a useful exercise, and I think it will help us eliminate similar

24 problems in the future.

25 We will resume on Monday, 9.00 in the morning sharp, with the

Page 917

1 understanding that the investigator will be produced as the first witness,

2 to be --

3 Do you envisage that he will finish?

4 MS. KORNER: I don't know. I don't know -- at the moment, the

5 objections are so obscure as to leave me wondering what is happening. So

6 I shall wait to see what the cross-examination is and how much further we

7 have to go.

8 Your Honour, I hope that he would certainly finish and that we can

9 deal with the legal argument, if there is to be any, on the principles on

10 which documents are going to be admitted.

11 JUDGE AGIUS: Yes, Mr. Ackerman.

12 MR. ACKERMAN: Well, Your Honour, I think that's -- that would be

13 a -- that we ought not break today with Ms. Korner feeling like the

14 objections are so obscure. I think they're not the least bit obscure. I

15 think the objections we're making are very simple.

16 JUDGE AGIUS: Yes. In your case, let's put it like this: I mean,

17 I was prepared, as I stated earlier, not even to address a ruling in your

18 regard. The problem is that I realise that sometimes we face a situation

19 whereby what's clear is not as clear as it appears to be. One instance is

20 this other document which was -- which came to the surface, which does not

21 strictly speaking fall within the description of the reservations or the

22 parameters of the reservations that your colleague had indicated earlier.

23 That is bound to create some confusion within the ranks of the

24 Prosecution, and I have to be fair.

25 I mean, please do take into consideration that our exercise, our

Page 918

1 function here, to balance the respective rights is not easy. And I have

2 to make sure that if the Prosecution is coming to -- here prepared on

3 Monday producing one particular witness, they ought to be put in a

4 position whereby they know exactly what that witness is going to be

5 produced for and not be exposed to having surprises thrown at them at 9.00

6 in the morning or at any other given time during the proceedings. That, I

7 will not allow. This is why I have all along stated also that everyone

8 will be asked to bear the consequences of his or her actions. I mean,

9 please do understand that. I am very appreciative when someone like you

10 takes the approach that you have taken, because that is helpful to the

11 Prosecution, and that's how it should be. But if you come on Monday

12 morning saying, "Okay, but in addition, there was another document,"

13 that's -- we can't go on like that.

14 MR. ACKERMAN: I have a suggestion for another order, Your Honour,

15 which -- my fear at this point is that we're going to walk in here Monday

16 morning and the Prosecution's going to hand us a stack of paper this big

17 that says, "Here are the documents that the witness will use to establish

18 the authenticity of the ones you've objected to." It would be really

19 helpful if the Court were to enter an order that any material of that

20 nature be provided to us by Saturday at 5.00, because then we'd be in a

21 position to walk in here Monday morning and say, "We no longer have

22 objection to documents, you know, 7, 8, 9, 11, 17, 28."

23 JUDGE AGIUS: Listen, Mr. Ackerman, I could have adopted a

24 completely different system which is sometimes adopted in trials in many

25 jurisdictions, many countries. I could have given a ruling to the

Page 919

1 Prosecution to start the trial by bringing forward all the documentation.

2 That would be precisely the first thing to be done. That could have

3 thrown you into a disastrous confusion.


5 JUDGE AGIUS: So you ought to be appreciative of the approach that

6 is being taken by the Prosecution. I understand that the Prosecution is

7 coming forward with the documentation batch after batch after batch,

8 because in a trial like this which is going to last months, if not -- if

9 not years - hopefully not - I mean, that's the only reasonable --


11 JUDGE AGIUS: -- sensible way of approaching it. But I think that

12 as we go along, we will find other ways of sorting out these

13 difficulties.

14 However, you ought to understand one very fundamental fact which

15 will always weaken your position, and that is that all these documents

16 have been disclosed to you.


18 JUDGE AGIUS: And therefore, you can come forward and say, "But

19 we're talking about hundreds of thousands of pages, et cetera." I mean, I

20 can be very strict, and I can say, "Mr. Ackerman, you have no right to do

21 any other work except dedicate all your time to this case because this is

22 a case, and I will not want to hear anything about the rest of your

23 commitments, rest of your work, and whatever." The same I could say to

24 Mr. Pitron. I don't want to do this.

25 MR. ACKERMAN: But --

Page 920

1 JUDGE AGIUS: Therefore, what I expect is that one is always or

2 tries always to be very sensible and reasonable in his or her approach.

3 This is fundamentally important. Otherwise, I will have to put my foot

4 down, me and my colleagues, because the fact remains that these documents

5 have been in your possession, some admittedly since June, but if we're

6 talking from June until now, we're talking of seven months.

7 MR. ACKERMAN: Your Honour, I have again obviously failed to make

8 myself clear.

9 JUDGE AGIUS: No, you haven't. You have been very clear. You are

10 appealing to Ms. Korner to hand you these documents by Saturday.

11 MR. ACKERMAN: No. No. No. That's not what I'm asking for.

12 Today when it became clear that we were going to have to have the

13 investigator come to testify --

14 JUDGE AGIUS: On Monday.

15 MR. ACKERMAN: No, about the Variant A and B document. The

16 Prosecutor then gathered together documents which were handed to the Court

17 and the Defence which caused us to be able to say, "We no longer contest

18 that." Now, if that -- that's inevitably going to be the case on Monday

19 morning. When we come in Monday morning, the Prosecutor will say, "Here

20 is the stack of documents that we have gathered together that we intend to

21 use to have this witness establish the authenticity of documents."

22 All I'm saying is this: If the Prosecutor gathers those documents

23 together, as she inevitably will, to be able to use on Monday morning, it

24 would probably shorten the matter dramatically if sometime over the

25 weekend she would either give us the document numbers so we can pull them

Page 921

1 out of our own collection of documents, of if they're documents she has

2 not previously disclosed to us, disclose them to us because I would like

3 to walk in here Monday morning, Your Honour, and say, "I no longer have

4 objection to 90 per cent of these documents." That would shorten things

5 up. I'm trying to just do something that will let us move forward on this

6 matter rather than take up more time with it.

7 MS. KORNER: Your Honour, may I just point out that exactly what

8 Mr. Ackerman has said is the problem. It is not, in our submission, good

9 enough for the Defence simply to say, "If it's not signed, if it's not

10 dated, it is per se, unless you prove otherwise, not admissible."

11 JUDGE AGIUS: Of course not.

12 MS. KORNER: No reason has been given other than, "It's not

13 signed, it's not dated, so you must establish why it's not authentic."

14 With the greatest of respect, I do not agree.

15 The basis of objection to the admissibility of a document must be

16 something more than that. As to -- as Your Honour has rightly pointed

17 out, its authenticity or its weight, that's another matter. But for it to

18 be admissible in evidence, simply to say, "No signature, no date; we

19 object. You gather together every document," as we have today, "that

20 shows that this" -- we really couldn't do this.

21 JUDGE AGIUS: You are a hundred per cent right, and this is how

22 this Tribunal definitely looks at it.

23 One ought to -- and I want to make this very clear. I am not

24 prepared to put either questions of authenticity or questions of relevance

25 at the very premise of whether these documents ought to be admitted or

Page 922

1 not. Relevance is something that will be decided there and then when we

2 are discussing the document, but maybe also afterwards, because what might

3 appear to be irrelevant at one point might result to be very relevant

4 later on in view of the evidence or testimony of someone else.

5 So basically you can rest assured not to expect this Tribunal to

6 rule a document inadmissible a priori because someone alleges that it is

7 not relevant. Relevance will be seen later on.

8 Questions as to authenticity, what the Tribunal will require, if

9 there is an allegation that that particular document might not be

10 authentic or notice that that -- the authenticity of that document is

11 being contested, then what the Tribunal requires a priori is someone to

12 confirm with solemn declaration that this is a document which he made

13 available or which he recovered or she recovered, et cetera. That is

14 enough for having that particular document admitted in the trial, and then

15 we'll move from then onwards. I mean, the authenticity comes later.

16 If there is an allegation, that I want to know what the allegation

17 is. I want to know if there is any substantive -- any substance behind

18 the allegation or whether it's just being thrown into your court to make

19 your life difficult or just fishing for some sort of future good luck. I

20 mean, let's be practical about it.

21 We will deal with the legal aspects of admissibility on Monday. I

22 don't think there are great difficulties ahead. You know what the Rules

23 are. You also, both of you, you know you are bound by the rule of best

24 evidence as well, and that has a reflection. I mean, if someone tells me

25 that there is an original and you try to file a copy, I'm going to ask for

Page 923

1 the original, and we'll move from then onwards. I mean, more or less

2 these are rules that are common to all jurisdictions.

3 We must not confuse issues. We must not confuse relevance with

4 admissibility. We must not confuse authenticity with admissibility. We

5 must not confuse voluntariness with admissibility. It's also where we may

6 have differences dealing with lawyers coming from different jurisdictions

7 as to whether certain issues are a matter of fact or a matter of law, but

8 more or less past that, there shouldn't be any big problems. But we will

9 deal with the question of admissibility on Monday. In the meantime, be

10 prepared with your investigator in case we need his evidence. And I would

11 suppose also that Dr. Donia should be informed that his presence may be

12 needed at any given moment, because what happened today could happen on

13 Monday, and you may well be faced with a go ahead from the Defence.

14 MS. KORNER: Your Honour, Dr. Donia will certainly be back here on

15 Monday and available if necessary.

16 JUDGE AGIUS: Is that clear enough for everyone? We can therefore

17 adjourn. We will resume Monday morning at 9.00, and I thank you.

18 --- Whereupon the hearing adjourned at 1.27 p.m.,

19 to be reconvened on Monday, the 28th day

20 of January, 2002, at 9.00 a.m.