1 Monday, 18 February, 2002
2 [Open session]
3 --- Upon commencing at 9.02 a.m.
4 [The accused entered court]
5 JUDGE AGIUS: Good morning. Mr. Brdjanin, good morning to you.
6 Can you hear me in a language that you can understand?
7 THE ACCUSED BRDJANIN: [Interpretation] Good morning, Your Honour,
8 I hear you and I understand you.
9 JUDGE AGIUS: Thank you, you may sit down. Good morning, General
10 Talic. Are you hearing me in a language that you can understand?
11 THE ACCUSED TALIC: [Interpretation] Good morning, Your Honour. I
12 am indeed.
13 JUDGE AGIUS: General Talic, you may or may not be informed that
14 measures are underway to ensure that the situation which this Trial
15 Chamber complained about with regard to legal representation last week be
16 solved on a permanent basis. I know that as actually Ms. Fauveau stated
17 last week that a request has been filed with the Registry, with the
18 Registrar, so that Ms. Fauveau herself be assigned as co-counsel with
19 Maitre de Roux in your defence. So we should have a confirmation of that
20 at least on a temporary basis pending formal endorsement of it in a very
21 short time. And that should be satisfactory for all of us.
22 THE ACCUSED TALIC: [Interpretation] Your Honour, thank you very
23 much for your concern about my legal representation, and by the 20th, I
24 will be able to inform you whether Mr. De Roux will be my counsel or not.
25 JUDGE AGIUS: In fact, General Talic, I have just been given a
1 document which confirms that on Thursday, 14th February, I don't know if
2 you believe in Valentine's day but this is the 14th of February, the
3 Registry assigned Mademoiselle Natasha Fauveau-Ivanovic as co-counsel to
4 you. This is in accordance with Rule 16(C) of the directive on assignment
5 of Defence counsel which stipulates that upon the request of lead counsel,
6 the Registry may assign a co-counsel to the accused if it is in the
7 interests of justice to do so. Mr. De Roux submitted a request to the
8 Registry on February 13th, 2002, for the assignment of Mademoiselle
9 Fauveau as co-counsel and in view of her legal experience and familiarity
10 with the case, the Registry consented. With respect to the status of
11 Maitre Michel Pitron, since he never submitted his curriculum vitae or
12 qualifications to the Registry for review, he was never formally assigned
13 as co-counsel. The Registry is currently considering whether to assign
14 him as legal assistant. Should you have any further queries in relation
15 to this matter, please let us know.
16 THE ACCUSED TALIC: [Interpretation] Your Honour once again thank
17 you very much, I have no other questions and I fully agree with
18 Ms. Fauveau acting as co-counsel in this case.
19 JUDGE AGIUS: I had no doubt that you would agree to being
20 represented by Ms. Fauveau, who is a very capable lawyer. Thank you
21 General Talic, you may sit down. So I think we missed a formality,
22 calling the case. Could you please call the case just for the formality
23 of it?
24 THE REGISTRAR: Yes, Your Honour.
25 JUDGE AGIUS: I'm sure this is not going to be a major cause for
1 the annulment of proceedings later.
2 THE REGISTRAR: Good morning, Your Honours, this is case number
3 IT-99-36-T, the Prosecutor versus Radoslav Brdjanin and Momir Talic.
4 JUDGE AGIUS: Thank you, Madam Registrar. Appearances for the
6 MS. KORNER: Your Honour, this morning Joanna Korner together with
7 Ms. Anna Richterova who appears before Your Honours for the first time in
8 this case and assisted by Denise Gustin, case manager.
9 JUDGE AGIUS: Thank you. For General -- for Mr. Brdjanin?
10 MR. ACKERMAN: Your Honour I'm John Ackerman, my co-counsel Milka
11 Maglov has returned and Tania Radosavljevic is with us.
12 JUDGE AGIUS: Thank you Mr. Ackerman. For General Talic?
13 MS. FAUVEAU-IVANOVIC: [Interpretation] My name is Natasha
14 Fauveau-Ivanovic and I am representing General Talic in this case.
15 JUDGE AGIUS: I thank you, Ms. Fauveau. So I sent word last
16 Friday that I have an important engagement today at about 1.00 which I
17 simply cannot miss and with your indulgence, I would like to finish before
18 that to enable me to be in town around about 1.00, 1.15, so please, we
19 will need to adjust our work schedule for today accordingly.
20 I would suggest, unless you have something important to tell me
21 beforehand, that we go through the various points that were raised during
22 the informal meeting chaired by my senior legal officer a week and a half
23 ago, go through the points that you discussed and see whether there is
24 anything else to add, whether we need to formalise anything in that
25 regard, okay?
1 MS. KORNER: Your Honour may I just mention.
2 JUDGE AGIUS: Yes, Ms. Korner, please.
3 MS. KORNER: It arises from the Status Conference but I wonder if
4 I could deal with it out of order because Mr. Inayat is presently
5 loitering outside court.
6 JUDGE AGIUS: Certainly.
7 MS. KORNER: It's a question of whether there is going to be any
8 necessity to call him to deal with the exercise he's done now once, I
9 think, of going through the documents. Your Honours may recall and have
10 been given a copy of the schedule which -- needless to say I think that I
11 have left behind, which -- in which Mr. Inayat went through the provenance
12 or where the documents came from. The Defence put in a joint series of
13 objections based on, I think, very much the same formula, namely the lack
14 of seals, signatures and all the rest of it. And Your Honours will have
15 seen, we discussed the matter during the informal conference with the
16 Senior Legal Officer. If it's possible, it would seem to us that the
17 sensible way of dealing with this, rather than going through this exercise
18 each time, subject to Your Honours' agreeing to admit the Banja Luka
19 documents with all the caveats that we discussed, in other words that Your
20 Honours will be looking for indicia of reliability, authenticity, and what
21 could happen is simply that the Defence would provide a document
22 indicating to which exhibits they would invite Your Honours, certainly at
23 some stage, to say that there is insufficient indicia of reliability and
24 even though formally admitted Your Honours shouldn't act on them. It was
25 discussed and I'm simply raising it now so to find out whether the Defence
2 JUDGE AGIUS: Yes, Mr. Ackerman?
3 MR. ACKERMAN: Well, Your Honour, I don't hear anything different
4 in what Ms. Korner is saying to you this morning from what we'd already
5 agreed that when she submits the documents we provide our written
6 objections where we are contesting the prima facie showing of indicia of
7 reliability and it then is the burden of the Prosecutor, it's not our
8 burden, to do anything after that point. It's the Prosecutor's burden to
9 show that there are indicia of reliability with regard to the documents
10 we've complained about, and it seems to me that the Prosecutor can't,
11 under any circumstances, somehow shift the burden to us regarding their
12 documents. I surely wouldn't try to do that with regard to documents I
13 want to admit to make it her burden to somehow deal with.
14 JUDGE AGIUS: Ms. Fauveau?
15 MS. FAUVEAU-IVANOVIC: [Interpretation] We believe that some of
16 the documents do not have enough, sufficient probative value in order to
17 be admitted into evidence. We refer to Article 89(C) regarding the
18 probative value of the documents. We believe that the documents in
19 question do not have probative value. There is a whole series of
20 documents signed by a certain individual by the name of Milos whose
21 identity we do not know. This person is not I'd identifiable and we
22 consider these documents to be anonymous documents. But this Chamber
23 decided on the 5th of February, this year, not to admit a document because
24 it was an anonymous document and because the Defence could not proceed
25 with the verification of the authenticity and the credibility of the
1 documents. We believe that the documents signed by this individual by the
2 name of Milos fall exactly in the same category.
3 As regards documents without signatures, I know that the Chamber
4 rendered a decision to that effect and I am following the guidelines
5 governing the admissibility of the documents. Do I agree with the
6 decision in question, however we must take into account that it is
7 possible that some of these documents were not signed by the person who
8 should have signed them, because that person was not agreeable with the
9 contents of the document. So this document -- this kind of document could
10 be admitted. However we have to consider it beforehand why the individual
11 in the question did not sign these documents.
12 There are also three documents which we contest because they are
13 documents from 1993. However, these documents concern events that took
14 place in 1993 but do not date from 1993. The indictment covers the period from
15 1 April to 31 December 1992 [As translated] and they do not fall
16 consequently within the scope of the indictment.
17 I must express my surprise and my concern that the Prosecutor
18 wishes to tender these documents and have them admitted, documents
19 concerning the events that took place in 1993. I think that the
20 Prosecutor then deems these documents to be credible and with the
21 sufficient probative value. But these events and these documents were
22 cited by the Prosecutor in the indictment as events that took place in
23 1992. I have nothing against these three documents being admitted into
24 evidence. However, I think that the Prosecutor should then withdraw the
25 indictment in respect of these events.
1 MR. ACKERMAN: Your Honour excuse me there is apparently a problem
2 with the translation. The transcript says that Ms. Fauveau said that
3 these 1993 documents cover the period from 1st of April to 31 December,
4 1992. I'm reasonably certain that's not what she said. I think she said
5 that they do not deal with that period.
6 JUDGE AGIUS: Yes, Ms. Korner.
7 MS. KORNER: Your Honour if it may assist, I did tell Defence
8 counsel yesterday, I'm sorry not yesterday, whenever it was, that I was
9 going to withdraw those. I don't know what the third document is. I've
10 only spotted two. I'm very sorry, Your Honour it's entirely my fault I
11 have left my document in my room and without my markings, I can't --
12 JUDGE AGIUS: Ms. Korner, I am used to doing the same thing. I
13 don't know how many times a day. So --
14 MS. KORNER: But Your Honour I do intend to and I will formally
15 withdraw the two, I only noticed two documents from 1993. But I'm not
16 quite clear from what Madam Fauveau says. Is the answer that she still
17 wishes at this stage, because I'm going to ask Your Honours to admit the
18 whole Banja Luka set of documents today minus the two we are going to
19 withdraw. If she is still saying that she wishes there to be evidence
20 given and for us to go through the documents because if so certainly we
21 will do that and if Your Honours want that to happen.
22 JUDGE AGIUS: Mr. Ackerman?
23 MR. ACKERMAN: Your Honour I just want to make sure that the
24 record continues to show that it is my contention that documents should
25 not be admitted without the Prosecutor being required to make at least
1 something beyond a prima facie showing of reliability -- of authenticity.
2 I think there should at least be a showing of authenticity that rises to a
3 civil law standard, that of more probable than not. But I want to make
4 sure that I'm not agreeing that a document may be admitted just because it
5 has these prima facie evidences of authenticity. I think it needs to go
6 way beyond. And that's my position that I will maintain throughout the
7 case but I understand Your Honours have ruled and I will abide by that
8 ruling even though I think the standard must be higher.
9 JUDGE AGIUS: And Madam Fauveau?
10 MS. FAUVEAU-IVANOVIC: [Interpretation] I also think that the
11 Prosecutor should demonstrate the prima facie credibility of the documents
12 but I am not persuaded that testimony of Mr. Inayat is going to elucidate
13 certain points. All he can say is where he found the documents or who it
14 was who gave him the documents. That may be useful for two or three
15 documents that were received by him in person. However, I don't think
16 that it should work for other documents.
17 JUDGE AGIUS: But again, you are moving from the very restricted
18 parameters that we indicated in our decision, into what then necessarily
19 becomes more tangible evidence and more concrete evidence, regarding the
20 credibility and the probative value, the relevance and the probative value
21 of those documents. What we have to establish in the early stages is
22 whether there are the preliminary, the indicia of credibility that we
23 refer to in our decision and that's about it. As far as the Trial Chamber
24 is concerned, as such, having seen the document that Mr. Inayat or the
25 Prosecution prepared, in other words relative to each and every one of
1 these documents with an indication as to provenance, for the purposes of
2 the exercise, the initial exercise that we have to go through, I think it
3 would be sufficient from the Chamber's point of view, if Mr. Inayat came
4 here and confirmed that particular document. Then obviously, while he is
5 in the witness box, he can be cross-examined by you with regard to
6 particular documents, and that is perfectly regular. That is perfectly
7 not just regular but the Trial Chamber is prepared to allow, but with
8 regard to other documents that are not being seriously contested, I think
9 we can move ahead, but please don't put questions to Mr. Inayat at this
10 particular stage with regard to authenticity proper, because he may not,
11 and probably he isn't, be the right person to answer those questions. As
12 I already -- or rather as we promised you when we gave that decision, all
13 the options regarding authenticity relevance and probative value related
14 to each and every one of these documents will remain unprejudiced. The
15 admission of these documents at this particular stage as exhibits does not
16 in any way compromise the rights that you have under the Rules and under
17 even basic rule -- principles of justice to contest each and every one of
18 those documents later on, as has happened basically in practically all the
19 cases that have taken place here in this Tribunal. So I think that should
20 be clear. If it is desirable -- if you prefer to -- that we dispose of
21 Mr. Inayat first, and call him so that he can go and continue with his
22 other work, I think we can do that.
23 MS. KORNER: Your Honour I'm entirely -- if Your Honours wish
24 to -- I simply want to know whether he was going to be called at all.
25 JUDGE AGIUS: I think at this stage, Ms. Korner -- I mean the
1 message is loud and clear, I think I would admit Mr. Inayat here in this
2 trial, in this courtroom, he will go through this process which hopefully
3 should be a short one. He will just confirm that document that he was
4 provided the Trial Chamber with two weeks ago or -- either he or you, I
5 don't remember. Any way. He will confirm it. And then if there are
6 questions that the Defence teams would like to pout to him, he should be
7 in a position to answer them and that should close the chapter for the
8 time being.
9 MS. KORNER: Your Honour, I'm grateful. As Your Honours may have
10 seen, I was handed a package and I've now got the document that I marked
11 up. Your Honours, the ones we propose to remove, and these are the only
12 two I spotted and no doubt Madam Fauveau can assist, if Your Honours go to
13 the schedule, to document P264, they have been premarked now -- Your
14 Honours, I should tell Your Honours that we've given Your Honours a new
15 one this morning because we've removed certain documents.
16 JUDGE AGIUS: You may think you gave us another one.
17 MS. KORNER: No. We gave it to Your Honour's clerk, whatever, the
19 JUDGE AGIUS: Thank you.
20 MS. KORNER: Your Honours, it's different in that it doesn't
21 contain Mr. Inayat's extra added bits but it's a new list because we have
22 extracted some of the documents.
23 MR. ACKERMAN: Does the Prosecutor believe that we were supplied
24 with this?
25 MS. KORNER: I don't know. Did we supply them? All it does is it
1 reflects the two documents I'm about to take out.
2 MR. ACKERMAN: Well, Your Honours, I just think nothing should
3 be supplied to the Trial Chamber without also being supplied would to the
4 Defence counsel.
5 JUDGE AGIUS: You're definitely right, Mr. Ackerman.
6 MS. KORNER: I agree and I'm sorry, and it will be supplied almost
7 immediately. But Your Honours, if you look at the old list, the one that
8 Mr. Inayat compiled, or rather that he added the source, if you go to
9 P264, I'm sorry, I don't think the pages are numbered, they will be
10 numbered in future but it's the 14th page, I numbered mine myself. You
11 will see there a document that says, "A paper on festive days of the
12 Serbian military." Which was given an approximate date of the 29th of
13 June, 1992. It was objected to and it became clear when one read the
14 content more carefully that it must have been published in 1995, because
15 it refers to the 81st anniversary of the assassination of the Archduke in
16 Sarajevo. So that one has been removed.
17 The next document, is 357, P357. That document was a list of --
18 from a newspaper of destruction of cultural property but as Madam Fauveau
19 says quite correctly, in 1993. And that has also been removed. Now, she
20 mentioned a third document and I didn't spot it, I'm afraid.
21 MS. FAUVEAU-IVANOVIC: [Interpretation] I have two other documents
22 concerning 1993, P355 and 444. P355 concerns the events which took place
23 in September, 1993, and P444 concerns the destruction of religious
25 JUDGE AGIUS: P355.
1 THE INTERPRETER: Microphone, please
2 MS. KORNER: P355, it describes the JNA arming of the Serbs in
3 1992. That's why it's there. It's largely concerned, I agree with 1993
4 but there is a reference to that and that's clearly an important part of
5 the Prosecution case.
6 JUDGE AGIUS: If that is the case, it will definitely be admitted
7 on a prima facie basis because as I tried to explain last time there may
8 be statements prior to 1992 or subsequent to 1992, which may be relevant
9 because they throw a light on either on the events that happened in 1992
10 or on the former mentis of the accused or some of the allege accomplices
11 Relevant to the period we are concerned with. So as far as that
12 document, P355, definitely we will go ahead. It will be admitted with the
13 same caveats as explained earlier. The other document, Ms. Fauveau, was?
15 MS. FAUVEAU-IVANOVIC: [Interpretation] P444.
16 MS. KORNER: Your Honour, document 444, -- would Your Honour,
17 forgive me one moment while I just look at the actual document? Your
18 Honour, I agree and we will remove that. I had missed that.
19 JUDGE AGIUS: Okay. So that solves that problem. Let me make a
20 note of it.
21 MS. KORNER: Your Honour, what we will do is, because we premarked
22 exhibits we are simply going to leave that exhibit number blank because
23 otherwise we will get into terrible confusion.
24 JUDGE AGIUS: Yes.
25 MS. KORNER: In those circumstances, I'll call Mr. Inayat without
1 further ado.
2 JUDGE AGIUS: All right, thank you Ms. Korner.
3 Please admit Mr. Inayat in the courtroom.
4 [The witness entered court]
5 JUDGE AGIUS: Good morning, Mr. Inayat.
6 THE WITNESS: Good morning, Your Honours.
7 JUDGE AGIUS: Welcome back to this courtroom. You are going to be
8 asked to make the solemn declaration that you are familiar with and then
9 you may sit down and some questions will be puts to you by the
10 Prosecutor. Thank you.
11 THE WITNESS: I solemnly declare that I will speak the truth, the
12 whole truth, and nothing but the truth.
13 WITNESS: MAZHAR INAYAT
14 JUDGE AGIUS: Yes, Ms. Korner?
15 Examined by Ms. Korner:
16 Q. Mr. Inayat, in respect of the documents which have been placed
17 into the binders from the Banja Luka municipalities, were you asked to
18 conduct the same exercise that you did in respect of Dr. Donia's
20 A. I was asked, yes.
21 Q. And was that to check from the documentation available how the --
22 each document came into the possession of the Office of the Prosecutor?
23 A. I did precisely. That I checked the source for each and every
24 document listed in this exhibit list, Banja Luka exhibit list.
25 Q. And is that recorded in the list which has been given to the Court
1 and to Defence counsel?
2 A. That's correct, the last column I have added and there I have
3 inserted the sources for the documents.
4 Q. And just one other matter, then, Mr. Inayat. Were you also asked
5 to do a check relating to the minutes or records which had been acquired
6 of the assembly held by the association of Banja Luka municipalities later
7 the Autonomous Region of Krajina assembly?
8 A. I was asked to conduct a search on those documents and I did.
9 MS. KORNER: Your Honour, this goes back sometime ago now to
10 questions that were put to Dr. Donia about which assembly minutes he had
11 been shown. And there seemed to be a suggestion that he'd only be shown
12 some and others had been deliberately withheld so I just want to deal with
14 MR. ACKERMAN: Your Honour, I want to make it clear that that was
15 not the suggestion at all, not that the Prosecutor was deliberately with
16 holding but that he was getting a skewed view of what a went on because he
17 did not have access to all of the documents. That was the point, not that
18 the Prosecutor was doing something wrong.
19 JUDGE AGIUS: That was the impression that this Trial Chamber got
20 any way. I never had the impression given that anything irregular was
21 being alleged to have been done by the Prosecution.
22 MS. KORNER: But Your Honour, all I was concerned about, in other
23 words, that it was not that the Prosecution had made a selective selection
24 of the documents in its possession.
25 MR. ACKERMAN: I never made such claim, nor do I do so now.
1 MS. KORNER: I'm grateful in that case I needn't trouble.
2 JUDGE AGIUS: You had even made a statement when this came up, I
3 don't remember whether it was you or Mr. Cayley.
4 MS. KORNER: Probably Mr. Cayley.
5 JUDGE AGIUS: I mean it was very clear that it was made clear and
6 accepted by my -- by the Defence that basically, Mr. Donia was -- had seen
7 what was available at the time and that you definitely did not have more
8 documents. Then at some later point in time, it transpired that you had
9 one or two further documents, which Mr. Cayley, I think, brought forward
10 and asked Mr. Donia about, so more or less, I mean, I don't think you need
11 to trouble yourself with that point. There is no indication that should
12 make the Trial Chamber worry about.
13 MS. KORNER: Your Honour, I'm grateful. In that case, that's all
14 I ask.
15 JUDGE AGIUS: Thank you. And Mr. Inayat so you confirm the
16 correctness of everything that is indicated on this list?
17 THE WITNESS: Your Honours, I have very conscientiously done this
18 exercise in good faith and I believe that the sources that I've indicated
19 in the last column are correct.
20 JUDGE AGIUS: Mr. Ackerman? Are there any questions that you
21 would like to put to Mr. Inayat with regard to the list itself and to any
22 particular item of documents that is referred to in that list? Or sources
23 or whatever?
24 MR. ACKERMAN: Your Honour, I think Ms. Fauveau is basically
25 prepared to ask any questions with regard to this. I will have one
1 question but I think she is prepared to go first.
2 JUDGE AGIUS: Yes, Ms. Fauveau, please?
3 Cross-examined by Ms. Fauveau-Ivanovic:
4 Q. Last time you said that you were personally present only in the
5 building of the municipality of Banja Luka during the seizure in February
7 A. In 1998, February of 1998, I was present in the Municipal Assembly
8 building during the search and seizure.
9 Q. Were you present in the centre of the Security Services in Banja
10 Luka at a given moment?
11 A. I never visited the CSB building during the search and seizure.
12 Q. Then, in fact, you wouldn't be able to explain to us how the
13 seizure was carried out in the centre?
14 A. Although I was not present, but I have read through the reports
15 prepared by the search officers and I have also gone through the search
16 and seizure lists that are prepared at the time of material that is seized
17 so I have a fair idea of what went on.
18 Q. Do you agree that the Security Services Centre in Banja Luka is in
19 fact a police station?
20 A. Yes, I believe it's a regional police station.
21 Q. Do you know that all the documents that were seized in the
22 Security Services Centre of Banja Luka -- are you sure that they were
23 documents written in that centre? Or addressed to that centre?
24 A. Yes. Majority of the documents were either initiated in the
25 regional police station or these were documents that were a result of a
1 correspondence between the CSB and other organisations such as the
2 police -- municipal police stations in the region.
3 Q. Do you know that the Security Services Centre in Banja Luka, do
4 you know if it also had documents that the Serbian police had seized when
5 they were searching people or organs?
6 A. Yes, I believe that the documents that we seized also included
7 documents that were sort of reports prepared by the local police forces.
8 Q. Yes, but my question was: The Serbian police, when they searched,
9 made searches, did it also seize documents and objects possessed by
10 persons? Were these documents and objects conserved in the security
11 service centre in Banja Luka?
12 MS. KORNER: I'm sorry, could I just ask for clarification, by
13 Serbian police, do you mean from Serbia itself, not Bosnian Serb?
14 JUDGE AGIUS: Yes, Madam Fauveau?
15 MS. FAUVEAU-IVANOVIC: [Interpretation] No I'm talking about the
16 police of Republika Srpska.
17 A. For me to be able to answer this question, I really have to go
18 back and look at the seized material, and if it pleases Your Honours, I
19 can submit a declaration to this particular question indicating the
20 answers that you're looking for.
21 MS. FAUVEAU-IVANOVIC: [Interpretation] Mr. President, Your
22 Honours, this is exactly the problem that I'm referring to, because in my
23 opinion, and I'm persuaded that this is the case, among these documents
24 there are other documents that the Serbian police had seized elsewhere.
25 This is why I say that I don't believe that Mr. Inayat can elucidate this
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
2 JUDGE AGIUS: We will come to it later. In the meantime, please
3 proceed with any further questions that you may have. I personally doubt
4 very much whether Mr. Inayat is the right person to answer that in any
6 MS. FAUVEAU-IVANOVIC: [Interpretation]
7 Q. Could have you a look at document number P207? That id the
8 Document that you received from the AID agency in Sanski Most,
9 investigations and documentation agency in Sanski Most. The person who
10 gave you this document, did he explain to you how this agency got hold of
11 this document?
12 A. Yes. This is a document that I personally received in August of
13 1999 from AID Sanski Most. Normally when investigators receive these
14 documents we exchange receipts. We give them a receipt that we have
15 received the document and they also note that down, that on this
16 particular day, these documents were given but we don't go into the
17 details because these have to be brought back and reviewed so, yes, I'm
18 afraid, he didn't tell me how he received this document.
19 Q. So the other people who received -- other people who received the
20 document by -- from the agency, from the AID agency or the Ministry of the
21 Interior or from the liaison officer in Bosnia and Herzegovina, they also
22 don't know how these documents arrived in the possession of the Bosnian
24 A. No, that is not true. Documents that were received in 1996, in
25 November, 1995, and in April, 1996, in Bihac, there it was made very clear
1 where the documents had been seized from and I think in my earlier
2 testimony, I had pointed that out, that the areas from where these
3 documents had been seized in Bihac, in Sanski Most, in Kljuc, in Petrovac
4 and in Krupa, the staff members of the Office of the Prosecutor visited
5 those areas and they received information also in writing as to when this
6 collection was seized by the local authorities.
7 Q. Could we say the same thing for the document that the AID agency
8 in Bugojno forwarded for the document that the Ministry of the Interior
9 transmitted and for the document that the liaison officer in Bosnia and
10 Herzegovina transmitted?
11 A. I think that's a fair assessment that most of these documents that
12 had been given to us had actually been seized early on in 1995 and 1996
13 and they have been given to us in small collections during these last
14 several years, but most of these documents do come from their seizures
15 that happened in 1995.
16 Q. But among some of these documents, there are documents for which
17 you don't know how they came into the possession of the organs of Bosnia
18 and Herzegovina?
19 A. They would be such documents that I'm personally not aware of but
20 I can go back and ask my colleagues who had received these documents to
21 give me an answer and I can submit that declaration.
22 Q. Is it possible for the Prosecutor's Office to give us information,
23 a report, on all the documents that were seized or that were transmitted
24 rather by any agency in Bosnia and Herzegovina and to tell us how these
25 organs in Bosnia and Herzegovina came into possession of these documents?
1 JUDGE AGIUS: I don't think I will allow to you answer that
2 question, Mr. Inayat. You do not -- he can not be asked to give
3 commitments on behalf of the Office of the Prosecutor. Your question is
4 being directed to the Office of the Prosecutor and I wouldn't even allow
5 Ms. Korner to give you a definitive reply on that this morning, definitely
6 not. I think you should go on to your next question, but don't expect the
7 witness to answer that question. You may eventually plead on that. Your
8 request may be taken into consideration by the Prosecution in assessing
9 whether their case will be stronger or weaker if they do what you request
10 or they don't do, they don't come forward with what you like. I think I
11 would go to the next question.
12 MS. FAUVEAU-IVANOVIC: [Interpretation] My question was quite
13 technical. I'm not asking whether they are going to give it to us or not
14 but whether this is a possibility, whether it is possible to indicate to
15 us how a document arrived.
16 JUDGE AGIUS: [Previous translation continues] ... asked to answer
17 that question. You then make a specific request to the Prosecution in the
18 sense that you make a submission that you think that the Prosecution ought
19 to bring forward this particular piece of evidence and we will consider
20 it, but not from Mr. Inayat.
21 MS. KORNER: Your Honour, if we are requested to explain how a
22 particular document arrived in the Office of the Prosecutor, then we will
23 do our best to find out. We can't possibly give a global answer as to how
24 every document in this institution arrived here.
25 JUDGE AGIUS: This is even a step further than that. Because what
1 Madam Fauveau is requesting is for the OTP to bring forward an explanation
2 or a confirmation as to how suppliers of information to Mr. Inayat or to
3 the Office of the Prosecutor obtained the information in the first place,
4 so this is why I'm definitely not going to expect or allow Mr. Inayat to
5 give that information.
6 MS. KORNER: Your Honour, I would say that some cases we might be
7 able to answer that question. In others, not.
8 MS. FAUVEAU-IVANOVIC: [Interpretation] I have no further
9 questions but I would appreciate it if the Prosecutor could provide us
10 with the information on how the documents from Republika Srpska were --
11 came into the possession of the organs of Bosnia and Herzegovina. In our
12 idea, in our opinion, these documents are ones the authenticity of which
13 will always remain suspect. Bosnia and Herzegovina and Republika Srpska
14 were at war. We can't quite simply accept documents without a signature,
15 without a seal, without all the other attributes that a document has to
16 have and which come from a party which is an enemy party in the war.
17 JUDGE AGIUS: Again, that is a question of the reliability of
18 those documents and the probative value of -- apart from relevance, the
19 probative value of those documents when we come to that stage. Obviously
20 this is going to be weighted in due course together with other evidence.
21 Don't be surprised if you get a very simple explanation to your request.
22 These things happen. I can assure you that they happen. Any further --
23 yes, Mr. Ackerman?
24 MR. ACKERMAN: I have a couple of questions.
25 JUDGE AGIUS: Yes, please go ahead.
1 Cross-examined by Mr. Ackerman:
2 Q. Mr. Inayat, would you tell us what the AID organisation was before
3 it acquired the name AID?
4 A. My understanding is that the SDB or the state security service was
5 transformed into AID in -- sometime in the beginning of 1996.
6 Q. That was the state security service of Bosnia-Herzegovina?
7 A. That's correct.
8 Q. Many of whom would have been members of and supporters of the SDA?
9 A. I'm sorry, I wouldn't know that.
10 Q. Okay. In any event they were part of the government headed by
11 Alija Izetbegovic?
12 A. I believe so, yes.
13 Q. Could you -- you got these documents from a number of sources and
14 you went through those sources with the Trial Chamber the first day you
15 appeared as a witness. Do you have an opinion, a sense, of which source
16 from which you received documents you consider the most reliable source
17 and which you would consider the least reliable and do you think it might
18 be helpful for you to advise the Trial Chamber of that to assist them in
19 their efforts to determine the reliability of these documents?
20 MS. KORNER: Your Honour, I don't like objecting but I do object
21 to that question. I don't think this is a proper question to ask the
22 investigator. It's a matter for Your Honours to decide having heard the
23 evidence, all the evidence, around the documents, what in your opinion
24 should be reliable and attract more weight than other documents.
25 JUDGE AGIUS: Yes, the objection is sustained. Perhaps
1 Mr. Ackerman, you would like to rephrase your question in a sense of
2 asking the witness whether there are any documents that he has reason to
3 doubt himself as to their reliability.
4 MR. ACKERMAN: Actually that's exactly --
5 JUDGE AGIUS: If you're prepared to put that question.
6 MR. ACKERMAN: Yeah, I do. That's the question I was going to ask
8 Q. In the thousands and thousands of documents you've received, I
9 suspect you have run across some that you believe were not authentic?
10 A. Your Honours, I can't sit here and say that I have reviewed each
11 and every document. The documents that have been relevant to this
12 particular case, I have seen those documents, I have tried to find the
13 sources for those documents, and it's very difficult for me to point out a
14 document which I believe was not authentic. I haven't come across any
15 such document.
16 Q. You are aware, are you not, that there are -- that efforts have
17 been made in the past and perhaps continue to be made, to create false
18 documents and plant false documents regarding events that occurred during
19 the war in Bosnia and Herzegovina?
20 A. Personally I'm not aware of any such false documents.
21 Q. I take it you were not -- you're not aware of and were not
22 listening to the testimony of the last witness that testified here
23 regarding that issue? Is that true?
24 A. When you say the last witness, you mean Mr. Muharem Krzic?
25 Q. Yes.
1 A. I did listen to parts of his testimony but I didn't listen to the
2 whole thing so I must have missed this particular bit.
3 Q. You didn't see the part where he claimed that a document that I
4 had showed him must have been manufactured by the Security Service of
5 Republika Srpska and that he claimed that it was not a genuine document?
6 A. I'm afraid I didn't listen to that particular part.
7 MR. ACKERMAN: Okay. That's all I have, thank you.
8 JUDGE AGIUS: Yes, Ms. Korner?
9 MS. KORNER: I have no further questions. Do Your Honours have
10 any questions of Mr. Inayat?
11 JUDGE AGIUS: Just one question to Mr. Inayat
12 Questioned by the Court:
13 JUDGE AGIUS: During this whole exercise, Mr. Inayat, were there
14 any documents that in your conscience and in your better judgement told
15 you to discard and you discarded?
16 A. Your Honours, I was provided a list of documents by the trial
17 attorneys that were going to be used as exhibits and waist told to go
18 through each and every document, which I did to find out the sources, and
19 I did not recommend any document to the trial attorneys on the ground that
20 I believed that document to be not authentic or a fake document. I didn't
21 do that.
22 JUDGE AGIUS: Okay. Thank you.
23 MR. ACKERMAN: Your Honour, may I ask a follow up to your
25 JUDGE AGIUS: Yes.
1 Further cross-examination by Mr. Ackerman:
2 Q. Mr. Inayat, I take it you would not have the authority to throw
3 out a document because you think it's not authentic? You couldn't just
4 throw it in the trash can, could you?
5 A. No, we work as a team and as team leader, I enjoy a lot of respect
6 from the attorneys and if in my opinion, there had been something in a
7 document that would have attracted my attention and to point that out, I
8 would have certainly done that and I'm sure that there would have been a
9 discussion on it but I didn't come across any such document.
10 Q. You came across all of those documents that were apparently signed
11 by a person named Milos, did you not?
12 A. Yes.
13 Q. You have no idea who that person is, do you?
14 A. But the exercise I was conducting primarily was to find out the
15 sources and I knew that this particular documentation where Milos has
16 signed came from the Banja Luka services -- the regional police station so
17 it was seized so I knew that it was authentic because members of the
18 Office of the Prosecutor had personally seized those documents so they
19 didn't seem fake to me.
20 Q. Well, yeah, but as far as you know, those could very well be
21 documents that were sent there by some nut who was making everything up
22 and they just filed them among their papers there, it doesn't -- just the
23 fact that they were there doesn't mean that they were accurate, does it?
24 JUDGE AGIUS: Don't answer that question, Mr. Inayat. How can he
25 tell you yes or no? He doesn't know. It was not part of his job. Yes,
1 Ms. Korner do you need your witness any further?
2 MS. KORNER: No, thank you.
3 JUDGE AGIUS: Mr. Inayat, I think you can withdraw. You have been
4 most helpful as on previous occasions. The Trial Chamber would like to
5 thank you.
6 THE WITNESS: Thank you very much, Your Honours.
7 [The witness withdrew]
8 MS. KORNER: Then Your Honours, I would ask that the documents
9 shown on this index be formally admitted.
10 JUDGE AGIUS: Yes, Mr. Ackerman?
11 MR. ACKERMAN: We have filed our objections but I just want to
12 draw your attention, Your Honour, to these Milos documents. The
13 Prosecutor is absolutely incapable of telling you who Milos is, absolutely
14 incapable of providing us any information that would assist us in making
15 that determination as to whether he was any kind of reliable source.
16 These are simply anonymous documents, anonymous in the sense that Milos
17 may not even be the name of the person who was authoring them, they are
18 just signed with the name Milos. They were apparently sent off to the
19 police station as some kind of reports to the police station, at least
20 that's where they were found, but just because they were found there gives
21 them no indicia of reliability whatsoever. Any nut can send any kind
22 after letter any kind of a document that he or she wants to off to anybody
23 he wants to send it to. People generally file those kinds of things among
24 their records. But that doesn't give them any kind of reliability. And
25 it seems to me that the Prosecutor has to go -- I mean that is not prima
1 facie that it was found in the police station. The Prosecutor has to go
2 somewhat beyond that and show to you that -- who the person was that
3 authored these documents that say Milos so you will have some basis at
4 least to make a determination as to whether the information contained in
5 those documents has any kind of reliability at all. It's just an
6 anonymous piece of paper with a name at the bottom of it and that's all it
8 JUDGE AGIUS: Ms. Korner?
9 MS. KORNER: Your Honour, I think we'll see as we go through those
10 documents that Milos is not some nut sending unasked for reports. We are
11 going to be suggesting that when you look at all the reports and the
12 nature of those reports, that Milos was an operative, this is not the
13 police station, this is the state security section of the CSB, and Your
14 Honours, we will be asking Your Honours to look for other evidence which
15 supports what is contained in those reports. In many senses, I'm somewhat
16 surprised by the objection because there is a great deal about the Muslim
17 extremists who are said to be attacking so -- but, Your Honour, that is
18 what we will be suggesting Your Honours can find. But again it's a matter
19 of at the end of the day, what weight do you attach to these documents.
20 JUDGE AGIUS: Definitely. I think at this point in time,
21 Mr. Ackerman. The way we should move further is as follows: I think
22 point number 1 that should be made is the source, the origin or the
23 alleged source or origin of these documents. I haven't is seen these
24 documents as of yet. Obviously we will have to go through them like every
25 other document as we go along, but I think point 1 that needs to be made
1 by the Prosecution and which has been made is that these documents
2 originate from the office of the security services or security -- any way,
3 the secret service offices. That's number 1.
4 If that is so, and if these are security, secret service
5 documents, I'm not surprised at all that they can be anonymous or that
6 they can have a name which to all intents and purposes cannot be
7 attributed to any particular person, to any person in particular.
8 These -- I mean, I personally have no experience with secret services but
9 I know enough, however, not to be surprised at all that such a practice is
10 adopted within secret service organisations and secret services. I think
11 we will have to leave it unprejudiced for the time being. They will have
12 to be admitted like all the other documents. Then obviously, as we go
13 along, they will be put in juxtaposition that position with other
14 documents originating from the same source and on that basis the Trial
15 Chamber will be in a better position to form a judgement. But in reality
16 what we are talking about and what we should be concerned and worried
17 about is the ultimate relevance and probative value of those documents. I
18 can assure you, Mr. Ackerman, that the three judges you have in front of
19 you here will certainly not be -- will not be prepared to accept as having
20 probative value documents they themselves have serious doubts about. I
21 can assure you of this. But as at the present moment, I cannot exclude.
22 I mean, I would first and foremost like to see them and secondly, also as
23 we go along put them in juxtaposition with other documents that are
24 forthcoming from the same source. For example, if other documents
25 forthcoming from the same source have got their paternity black and white,
1 while these haven't, I will obviously be asking ourselves why should these
2 documents be different, whether this could be attributed to some sort of
3 manoeuvring inside or outside the secret service, I have to wait. We will
4 have to wait. And I will see. But we have certainly taken -- we will be
5 taking into consideration your submission. For the time being, I think
6 they have to be admitted. So these documents forming what we will be
7 referring to the Banja Luka documentation are being admitted and I
8 understand, Madam Registrar, that they will be given the same exhibit
9 number that has been indicated to you by the Prosecution already following
10 that sequence. Okay? Thank you.
11 THE REGISTRAR: Yes, Mr. President.
12 JUDGE AGIUS: So shall we now go on to visit the various points
13 that you discussed during the informal - I was told not to refer to it as
14 a Status Conference - informal conference that we agreed you will be -- we
15 will be holding from time to time? Especially as we approach a new
16 municipality? Yes, Ms. Korner, I see you standing.
17 MS. KORNER: Your honour, I was merely standing --
18 JUDGE AGIUS: You may sit down and I will do some talking first.
19 I think the first point that was made according to the report that we
20 have, the first point that was made precisely deals with the admission of
21 documents in the records as exhibits, and what I have written here is that
22 the Defence understands that the Trial Chamber will admit documents
23 provided there is sufficient indicia of reliability but will keep stating
24 their objections relating to stamps, signatures, et cetera for the
25 record. None of the parties believe it is necessary to call the OTP
1 investigator, Mr. Inayat each time to verify the list showing the sources
2 of all the documents.
3 Consequently, the Trial Chamber should decide whether it will
4 endorse the agreement reached by the parties or whether it will continue
5 to insist that Mr. Inayat be called to give evidence each time. If it
6 decides to dispense with calling Mr. Inayat as a general rule, it may, of
7 course, in any given instance ask the Prosecution to provide further
8 evidence if they are not satisfied that there is sufficient indicia of
9 reliability for this document.
10 I think taking into consideration what has been written by the
11 Senior Legal Officer and what went on this morning, I think you should be
12 happy as we are, that the situation or the position is more or less
13 clarified with regard to the admission of documents, and that we can
14 proceed in future along the lines that have been adopted, at least up to
15 this morning. Is that agreeable, Madam Fauveau?
16 MS. FAUVEAU-IVANOVIC: [Interpretation] By all means,
17 Mr. President.
18 JUDGE AGIUS: Mr. Ackerman?
19 MR. ACKERMAN: Yes, Your Honour, subject to what I stated this
20 morning about my continuing objection.
21 JUDGE AGIUS: Obviously. And Ms. Korner, I suppose hasn't got
22 reason to object to that.
23 MS. KORNER: None whatsoever.
24 JUDGE AGIUS: Thank you. So that goes in the records as point one
25 on which there is an agreement.
1 The next point was briefly raised last time and more or less I
2 think we will -- we won't need to discuss it any further this morning
3 except that I would like to remind you that with regard to the evidence of
4 the particular deceased [Reatime transcript read in error "diseased"]
5 witness that -- to whom reference was made sometime back, there seems to
6 be an agreement between the Prosecution and the Defence that you will wait
7 until colonel -- can I mention his name or not.
8 MS. KORNER: Yes, Your Honour, he's dead.
9 JUDGE AGIUS: Until Colonel Selak gives evidence before oral
10 argument on the issue of the admission of the evidence of the dead witness
11 is dealt with. Yes, Mr. Ackerman?
12 MR. ACKERMAN: Your Honour, you said "deceased," the transcript
13 says "diseased."
14 JUDGE AGIUS: Yes, deceased but he probably was -- any way, are we
15 agreed on this? So we will come to that later on and you tell me when it
16 is convenient for you to deal with the matter. In the meantime, I would
17 like you, particularly the Defence team for General Talic, to be prepared
18 on this issue because more or less the objection was more from your side
19 than from Mr. Ackerman's side.
20 Then we have the problem of the 92 bis statement and more or less
21 also we have clarified a part of this not during the last sitting but I
22 think in the preceding one. It was agreed that in future the following
23 procedure would be implemented for each new batch of Rule 92 bis
24 statements: Prosecution will give advance notice to the Defence and to
25 the Trial Chamber of the statements they intend to tender by way of Rule
1 92 bis for each municipality. That would be the first stage. The
2 Prosecution will also provide copies of the statements to both the Chamber
3 and the Defence teams of the Rule 92 bis statements in the form it intends
4 to tender the statement. That is any deletions the Prosecutor wishes to
5 make to the statement must be indicated to both the Defence teams and to
6 the Trial Chamber. The Defence then would only object if they believe
7 that the Rule 92 bis statement does not comply with the terms of the Rule
8 itself. Otherwise, the Defence will simply advise the Trial Chamber if
9 they want to cross-examine the witness or whether they request that the
10 witness be brought forward for the purposes of being cross-examined.
11 Let me stop here for the moment. Is this in conformity with what
12 you discussed during that meeting? And do you agree that this should be
13 the practice that will be followed by this Trial Chamber in this trial?
14 MR. ACKERMAN: Yes, Your Honour.
15 JUDGE AGIUS: Ms. Korner -- Madam Fauveau, okay.
16 MS. FAUVEAU-IVANOVIC: [Interpretation] Absolutely, yes.
17 MS. KORNER: Your Honour, yes, but two matters weren't clarified
18 at the informal meeting. If Your Honours look at --
19 JUDGE AGIUS: The next paragraph?
20 MS. KORNER: Page 16 of the note, it is still to do with the Rule
21 92 statements, unless Your Honour was carrying on to deal with further
23 JUDGE AGIUS: Yes.
24 MS. KORNER: In that case, I'll wait.
25 JUDGE AGIUS: I was going to deal with the next aspects relating
1 to the 92 bis actually. Then I understand that the Prosecution raised the
2 question of how Rule 92 bis statements that are admitted will be dealt
3 with. In particular, it was asked whether they do -- whether they receive
4 or ought to receive an exhibit number or whether they have to be read on
5 to the record. The tendency, in the course of the meeting that you had,
6 seems to have been, at least according to the Senior Legal Officer, that
7 it should be clear that the statements do not have to be read on to the
8 record. My tendency - and I haven't consulted my other two Judges on
9 this, but I think it's pretty obvious - my tendency is to say that I would
10 agree that they need not be read on to the records.
11 Do you agree that they ought not or they need not be read on to
12 the records? Mr. Ackerman?
13 MR. ACKERMAN: Yes, I agree, Your Honour, there is no reason for
14 doing that.
15 JUDGE AGIUS: Madam Fauveau?
16 MS. FAUVEAU-IVANOVIC: [Interpretation] I agree, too, Your Honour.
17 MR. ACKERMAN: My only caveat about that is that with regard to
18 the transcripts of prior testimony that have not been furnished in
19 translation form, if they are not read into the record, the accused will
20 never know what the evidence against them is. And so I would suggest that
21 they be provided in translation form and then they would not need to be
22 read into the record. If they are not so provided, then I think they
23 probably do need to be because these accused are entitled to know the
24 evidence against them and to be able to advise counsel regarding that
25 evidence. So I think one of the two things have to happen.
1 JUDGE AGIUS: I think that is very sensible and very reasonable.
2 Ms. Korner, what do you have to state about that?
3 MS. KORNER: Your Honour, we went through this.
4 JUDGE AGIUS: Exactly.
5 MS. KORNER: I think it may have been the first Status Conference
6 in front of Your Honour. They can't be translated because of the
7 translation backlog. They are -- they are quite lengthy. The tapes of
8 the -- what was said in the Bosnian language were provided to the Defence,
9 and as I understood it, each of the accused was given an opportunity to
10 listen to the tapes. What we can do is if we are going to mark them as
11 exhibits, is we can put in - unless I'm corrected by anybody on my team -
12 we can put in the transcript or such portion as we think is relevant,
13 because a lot of it may not be relevant, and together put the tape that we
14 have obtained of the original testimony in the Bosnian language, so that
15 both will be on the record. But reading those transcripts into the record
16 - if Your Honour says we ought, then we will, but it's a major effort.
17 JUDGE AGIUS: It will lead us into a never-ending alley. However,
18 I do see the point raised by Mr. Ackerman. My suggestion to you is as
19 follows: I think that as a matter of principle, we should first and
20 foremost pay particular attention to the rule that the accused should
21 always be in a position to understand in their own language each and every
22 piece of evidence that is -- that the Prosecution intends to make use of
23 in the case against them. So that is principle number one by which we
24 have to abide.
25 I think there is understanding, mutual understanding here, it's no
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 question about it that there are problems related to possible translation
2 of these documents, which -- to which we have to find a solution. One
3 solution that was proposed and resorted to before was, as you correctly
4 stated, you provided the Defence with the tape recording of the evidence
5 or of the statements.
6 Now, saying that you could indicate which parts from that previous
7 testimony you would be making use of, or which parts from that statement
8 the Defence ought to pay attention to, I think won't work. I think your
9 duty is to provide the tapes. Your duty is also to indicate to the
10 Defence which parts you will be referring to, but then it's up to Defence
11 -- to the Defence, having already in their possession the version in
12 English or in French, to advise their clients as to what they should
13 concentrate upon. Leave it up to them, not up to you. I think the
14 important thing is that you provide the tape recording of the totality of
15 the statement. Then it's up to the Defence on how best to deal with that.
16 However, while we are at this, I would like, because it is my
17 fault, I never tried to verify this with the two accused. When this was
18 resorted to on a previous occasion at the beginning of this trial, and
19 supposedly we were told that you were going to be handed tape recordings
20 of the evidence given by, I forgot who, Dr. Donia, I think or -- I think
22 MS. KORNER: Yes, it was Dr. Donia's previous testimony.
23 JUDGE AGIUS: And we made it clear that, of course, the utility of
24 that depended very much on whether you would have the facility of using a
25 tape recorder in -- where you are staying, in order to listen to those
1 recordings. Was this made available? Did you have a tape recorder made
2 available to you? Mr. Brdjanin?
3 THE ACCUSED BRDJANIN: [Interpretation] Yes.
4 JUDGE AGIUS: General Talic?
5 THE ACCUSED TALIC: [Interpretation] Yes, I did.
6 JUDGE AGIUS: In other words, you were afforded all the facilities
7 in order to be able to listen to these tapes?
8 THE ACCUSED TALIC: [Interpretation] Yes, I was, Your Honour.
9 JUDGE AGIUS: I'm just telling you because it's our duty, I'm just
10 telling you if at any moment you find difficulties in this -- in this
11 aspect, in this regard, please inform the Trial Chamber through your legal
12 counsel, through your lawyers, immediately. Because the Trial Chamber has
13 a duty to ensure that you are given every opportunity to make it possible
14 for you to defend yourself in the best way possible. Okay? And the same,
15 I don't need to explain this to Mr. Ackerman or to Madam Fauveau. I'm
16 sure that you will liaise with your clients on this as you go along.
17 So there is agreement that provided this procedure is more or less
18 followed, and followed to a satisfactory level, then statements -- there
19 is no need for these -- such statements to be read on to the record. In
20 other words, they will simply form part of the body of evidence that will
21 eventually be read and considered by the Trial Chamber in the course of
22 its deliberations.
23 MR. ACKERMAN: Your Honour?
24 JUDGE AGIUS: Yes, Mr. Ackerman?
25 MR. ACKERMAN: On this matter of providing tape recordings to the
1 accused so that they can listen to this testimony that's going to be part
2 of a 92 bis offering, there is a question of timing that I think is quite
3 important. The Prosecutor must provide, it seems to me, those recordings
4 on a timely basis, in the sense that once my accused has listened to that
5 tape, it may very well be that he will then instruct me regarding matters
6 that would prompt me to suggest to the Tribunal that that person needs to
7 be brought here for cross-examination, where I had not thought that
8 previously, and so this can't happen after the fact but it has to happen,
9 I think, rather quickly, and I think perhaps at the beginning of each
10 section, when the Prosecutor provides the list of 92 bis that are going to
11 be contained within, say, the Sanski Most section, which is coming up
12 next, that the tapes ought to be provided at that time, so that when we
13 make the determination regarding whether or not we have objections to 92
14 bis at the same time, we will have been able to take instructions from our
15 accused regarding whether or not we want to bring the witness for
16 cross-examination, to the extent that might play upon that issue.
17 JUDGE AGIUS: I don't think that the Prosecution has not been
18 cooperative along -- in that regard. I mean, with regard to 92 bis
19 statements, for example, I mean, much of the work was done before we even
20 appeared on the scene. And I think it was good work what was done. I
21 mean it's -- yes, Ms. Korner?
22 MS. KORNER: Your Honour, can I say I appreciate that the tapes
23 for the witnesses that Your Honours have agreed may be Rule 92 will be
24 supplied to the Defence by the end of this week so that should give ample
25 time, and we will try and do that in each case.
1 JUDGE AGIUS: I thank you, Ms. Korner. There is a question of
2 what is being referred to as we need to agree on a procedure for marking
3 the statements. To be frank with you, I have tried to understand where
4 the difficulty lies, if there is a difficulty, and I personally can't see
5 it. What I am told here is -- I have had some discussions with the
6 registry and I'm informed that the statements would simply be given an
7 exhibit number along with all the other exhibits admitted. If the Trial
8 Chamber agrees with this procedure, we will then need to arrange for the
9 statement of Witness 7.118, which the Trial Chamber has already accepted,
10 pursuant to Rule 92 bis statement dated 30th January, 2002, to be produced
11 by the Prosecution in its corrected form pursuant to the Rule 92 bis
12 decision. Various parts of the statement were to be deleted, and then
13 given an exhibit number. Is this agreeable to you or not? Because to me,
14 it presents no difficulty at all. But there may be something that you
15 discussed which I am missing completely. I mean, what -- what was the
17 MR. ACKERMAN: Well, Your Honour, there is a disagreement among
18 Trial Chambers that's been going on here for all the time that I've been
19 here with regard to this issue, and different Trial Chambers have resolved
20 it differently. Many Trial Chambers take the position, which would be the
21 -- I call it, I guess, the classic common law position, that they ought
22 not to ever see the statement of a witness unless something in the
23 statement is called into question or it is used to the point where it
24 makes sense that it become an exhibit, but many Trial Chambers will not
25 look at statements of witnesses before those witnesses testify, or perhaps
1 even not after they testify, because the testimony is supposed to be live
2 testimony coming from the witness stand. That's the way some Trial
3 Chambers view it. This Trial Chamber apparently has decided that it wants
4 to look at these witness statements before each witness testifies. And I
5 haven't objected to that because I recognise who you are and the approach
6 you're taking to this case. So if that is going to be the case, then it
7 seems to me that they don't need to become part of the evidence, they
8 don't need to be marked in any way, they are simply being used by you as
9 some kind of a --
10 JUDGE AGIUS: I'm not referring -- sorry to interrupt you,
11 Mr. Ackerman, I'm not referring to those statements.
12 MR. ACKERMAN: Oh, I'm sorry.
13 JUDGE AGIUS: Completely not. I am referring to statements
14 regarding which there is a formal motion for admission in terms of 92 bis
15 statements. For example, let's put it this week, there are going to be
16 two witnesses, number 1 and number 2, whoever they are. There was no
17 request with regard to any of these witnesses to have their statements
18 admitted under 92 bis. I personally have adopted the system that before a
19 witness comes along, I would rather prefer to know what kind of statements
20 he or she has made in the past, because I am in a position to control
21 better the evidence that the witness will be giving and the questions that
22 you will be firing both from the Prosecution and from the Defence but
23 obviously, I mean, I will not confront that witness with the statements
24 that I would have read in the quiet of my own apartment.
25 MR. ACKERMAN: I'm sorry, Your Honour, I misunderstood where we
1 were and, in fact, somebody just called me to try to tell me to pay closer
3 JUDGE AGIUS: Okay. Let's stick to 92 bis. The question of
4 numbering, this is what baffled me a little bit, if I am not -- if I am
5 missing something because I frankly could not understand why there should
6 be a problem.
7 MS. KORNER: No, Your Honour. I don't think there is a problem.
8 The -- I think the only slight problem was the question of whether the
9 statement that was actually certified under 92 is in fact the one that was
10 translated into the Bosnian language. And I think there was a question of
11 whether it was the English version or the actual certified one that needed
12 to be exhibited. And therefore, what I suggest is that we exhibit both in
13 the same way as we've been exhibiting the other documents, namely that the
14 English version, which was not signed by them, will be Exhibit whatever A
15 and the actual Bosnian statement which was acknowledged by them in the
16 presence of the presiding officer will be B. And unless anybody sees any
17 problem with that, that seems to me a simple solution.
18 JUDGE AGIUS: We don't see any problem from our side, so if that
19 is agreeable to the Defence, we can move along those lines.
20 MS. KORNER: Your Honour, I realise Mr. Ackerman was slightly at
21 cross-purposes but I was going to say only in the circumstances where
22 effectively there has been so much cross-examination on a witness
23 statement, we would then apply to make that particular witness statement
24 of a normal witness, for example, Mr. Krzic, who was here last week, an
25 exhibit. But it would be not the rule but the exception.
1 JUDGE AGIUS: While -- since Mr. Ackerman went astray for a while
2 and referred to a practice that I have adopted for my own purposes, more
3 than anything else, let me, however, explain to you the utility of it. We
4 are still in the very early stages of this trial and as you may have
5 noticed, I have not, neither personally nor as a team, decided that it's
6 time to take an initiative in trying to thin and restrict the questions
7 that you will be putting to the various witnesses that will come along.
8 The advantage that I see in knowing beforehand what facts that particular
9 witness can reveal in giving evidence will also help us to decide that we
10 can ask the witness not to give information on certain facts on which the
11 Trial Chamber is already satisfied that it doesn't need additional
12 witnesses to come forward to give evidence upon. For example, I don't
13 want to give an example with particular reference to a particular fact,
14 but if there is a fact that has been stated by Dr. Donia, by Mr. Krzic, by
15 the next witness, by the next witness, by the next witness, which is a
16 fact which in itself is harmless, is neutral, in other words, it's not
17 going to establish a responsibility on the part of any of the accused,
18 then frankly, I do not see why the same question has to be repeated to the
19 next witness so that we have a reaffirmation of a fact that has already
20 been affirmed by many witnesses before. But this will take time. In
21 other words, we are still in an early stage in this trial and knowing what
22 a witness is likely to state in the witness box when he or she is -- comes
23 forward as a witness, is called as a witness, helps to more or less
24 regulate the proceedings in a more efficient fashion, in a more efficient
25 way. But we will come to this later on and this is also part of another
1 aspect that you discussed during the conference.
2 There is an important point with regard -- and I finish with this
3 now, with regard to 92 bis statement. I am just going to put it to you as
4 it was put to me and I think there is an easy remedy to it. Again, the
5 Trial Chamber needs to agree on a system for dealing with a particular
6 issue. It refers to witness 7.118 who now wants protective measures and
7 the Prosecution, as a result of that, wishes to know whether the previous
8 statement testimony of this particular witness should remain under seal
9 until after any identifying material is taken out. It's suggested that
10 when the Prosecution submits a Rule 92 bis statement for admission, it
11 should simultaneously make a request for protective measures it considers
12 necessary. Any protective measures could then be put in place prior to
13 the statement being marked as an exhibit. The Prosecution should be asked
14 to clarify what protective measures they are seeking in relation to the
15 statement of witness 7.118 which has already been accepted by the Trial
16 Chamber but not formally produced in court or marked as an exhibit. I
17 would leave you with this as food for thought while you have your coffee.
18 We will resume in 20 minutes, 25 minutes time, and perhaps you can make
19 the life of this Trial Chamber easier by providing us with a ready-made
20 solution to this problem. Thank you.
21 --- Recess taken at 10.34 a.m.
22 --- On resuming at 11.01 a.m.
23 JUDGE AGIUS: Please be seated.
24 We are anxious to hear the good news, Ms. Korner.
25 MS. KORNER: Well, Your Honour, I can't give you the good news
1 about the witness because we haven't yet managed -- he told us he required
2 protective measures and gave us a reason. We want to clarify some detail
3 about that reason but we haven't contacted him because we were waiting
4 until we had a ruling how somebody who wanted protective measures would be
5 dealt with so that we could explain that to him. As far as that's
6 concerned, in the future, subject to a witness having already made it
7 clear that he wishes protective measures, when we file the request for
8 Rule 92, we will file at the same time the request for protective
9 measures. In fact, with this witness, it did arise after we'd already
10 filed and we are still trying to clarify that with him. Your Honour, the
11 only other aspect on that is this: If protective measures have been
12 requested, and granted by Your Honours when granting the request for Rule
13 92, can we take it that the statement will not be released to public until
14 identifying information has been redacted?
15 JUDGE AGIUS: I think actually that my point of view would be as
16 follows: Number one is that when you seek to file or to admit statements
17 under 92 bis, you have several unknown facts, incognito, okay? Number one
18 is whether the Defence is going to object. You also don't know if the
19 witness will actually be seeking protective measures. It doesn't mean to
20 say that a witness that had not sought protective measures on a previous
21 occasion when he gave evidence will not want to seek protective measures
22 now. And you may be actually taken by surprise at the very last moment,
23 when the document would have formally already and admitted so we do have
24 those incognita and also the related problems. What I suggest we do is
25 this. That basing yourselves on these -- these possibilities, I think the
1 safest way to approach this question would be to have them remain under
2 seal until one, you know whether there is need for a redaction. That's
3 number one, because it's not acceptable to have them readily available for
4 anyone to read and then the ball of contention is paragraphs here and
5 paragraphs there and they will redacted for all intents and purposes where
6 you would have reached one aim but lost a lot in the course of that. And
7 secondly, you never know whether there is going to be the need for
8 protective measures. So what I will suggest is that once you know whether
9 -- until you know whether there is an objection forthcoming from the
10 Defence, whether there is a need for the statement to be redacted, and
11 until you have reason to -- until you don't have -- until you have reason
12 to doubt whether there will be the need for protective measures or not,
13 these documents will remain under seal and the moment there is no need for
14 redaction and/or the moment you know, because you have been given an
15 indication on a prima facie basis at least that there is not going to be
16 the need for protective measures, then those documents will remain under
17 seal. After that, they will not remain under seal obviously. I think
18 that is what I would like to suggest to you. I don't know if it is
19 acceptable but I think it makes sense.
20 MS. KORNER: Your Honour, it does make sense and if, Your Honour,
21 subject to the Defence's objections, says the statement will be admitted
22 under 92 bis, and that protective measures are needed, then the statement
23 will be redacted before it is released into general --
24 JUDGE AGIUS: I think that's the way we should proceed.
25 MS. KORNER: The only thing I'm not clear of, that's because I'm
1 not 100 per cent familiar with the procedure as yet, is whether we do the
2 redactions or it's done by the Registry.
3 JUDGE AGIUS: I think there have been both instances. I think
4 there have been instances where you did the redaction yourselves before
5 even asking for that statement to be admitted under 92 bis and there have
6 been decisions by this Tribunal, admitting subject to a redaction taking
7 place, in which case normally it's done by the Registry or by you taking
8 up on the decision. But that is -- the important thing for this Tribunal
9 is that the redaction takes place.
10 MS. KORNER: Yes.
11 JUDGE AGIUS: But I think the Registry is responsible for it only
12 when there is a decision to that effect.
13 MS. KORNER: Well, Your Honour, I'm sure that's a matter of
14 technicalities which we can work out.
15 JUDGE AGIUS: I think the practice ought to be adopted whereby
16 until the situation more or less clarifies, is clear, or crystallises as
17 to whether there is need for redaction or whether there is going to be
18 need for protective witnesses, those documents pending admission will
19 remain under seal. Is that agreeable to you, Mr. Ackerman? Madam
20 Fauveau? Okay. So we have cleared that up.
21 Witness lists. I have highlighted here, Mr. Cayley pointed out
22 that if the Trial Chamber takes a relatively strict approach to the
23 question of hearsay evidence the Prosecution will be compelled to bring
24 more eye witnesses for each incident. I think Mr. Cayley may have not
25 understood me correctly or again, to put it mildly, I may not have myself
1 made myself clear. What was I trying to tell you? And I will say it for
2 the last time. I will not repeat it again. I, as a Trial Chamber, we do
3 not intend to introduce new principles with regard to hearsay. Hearsay
4 evidence, the Rule regarding the practice of this Tribunal, with regard to
5 hearsay evidence is and will remain as it has been decided and as outlined
6 by this Trial Chamber in its decision which you now have in written form.
7 However, please, may I again remind you, that in front of you, you have
8 not a lay jury that is going to decide on the facts of the case, but you
9 have three professional Judges with all that it entails. That is number
10 one. In other words, my message to you is if you lawyers think that this
11 particular document, being a hearsay document, ought to receive much more
12 attention than the Trial Chamber will eventually be prepared to give to it
13 when it comes to probative value, please don't waste time. The idea is
14 this: There was a question with regard to one particular document, not
15 with regard to a lot of hearsay evidence that we have heard since the
16 beginning of this trial. Why did this Trial Chamber find objection to
17 that particular document? Because in reality, each piece of evidence
18 within the parameters of the practice of this Trial Chamber regarding
19 hearsay evidence should be read and construed parallel with, and as a
20 corollary of the other principle that each one of you is bound by law to
21 bring forward the best evidence. Now, there are cases where the best
22 evidence is not available. There are cases where, according to the
23 practice of this Tribunal, evidence which would otherwise under a common
24 law regime amount to pure hearsay evidence and sometimes be excluded,
25 will, under the practice of this Tribunal be admitted but don't get
1 carried away with the idea that the practice of this Tribunal, of this
2 Tri -- not this Trial Chamber, gives you a licence to dispense of what
3 would otherwise be necessary to prove a particular fact. That particular
4 document that we had objection with, this Trial Chamber has absolutely no
5 objection with that particular document being admitted in evidence as
6 being truly a document that was handed to Mr. Krzic by a number of
7 persons. Now, that particular document, which is unsigned, intentionally
8 unsigned, it is -- it was meant to be anonymous and it is presented as an
9 anonymous document. In it, it purports to give to Mr. Krzic a lot of
10 information on certain events, events that may form part of one or more of
11 the various counts in the indictment against the two accused, and may --
12 specifically or even generally. Obviously if Mr. Krzic is in a position
13 to state, "I verified these events mentioned in this document, and I can
14 state that I had further information that those events actually took
15 place," you will immediately realise the importance of having that
16 document admitted because it will be looked at by this Trial Chamber in
17 relation to the further statement made by Mr. Krzic. However, if the
18 intention or the purpose of introducing that particular document is to
19 prove that those events actually took place, and you don't have any
20 further evidence to prove that those events actually took place, then
21 you're going to face a brick wall, then you're going to have problems,
22 because this Trial Chamber will certainly not be prone to accept, to
23 convict anyone on the basis of mere hearsay evidence even though the
24 practice of this Tribunal has been in the past and it will continue to do
25 so, to admit hearsay evidence. I invite you to read again, and not just
1 read the citation that we quoted if I remember well, from either Celebici
2 or from the Delalic judgement, I think from the Celebici judgement, in our
3 decision not just read the words but also read between the lines, the
4 ultimate conclusion is don't ever expect hearsay evidence to be put in the
5 same basket as all other evidence and given the same importance as all
6 other evidence if, on the face of it, it does not warrant that much
7 attention or that much value being attributed to it.
8 There is also a very specific reference in the citation that we
9 referred to to striking a balance between this relaxation of the Rule of
10 hearsay evidence for the purposes of proceedings before this international
11 Tribunal, in other words admission of hearsay evidence, and striking a
12 balance between that and the rights of the accused. In other words, if
13 the practice will resort itself through a situation obtaining whereby the
14 accused, and for that purpose also the Prosecution, being faced with a
15 situation of impotence with regard to some particular item of evidence
16 brought forward by way of hearsay, reason being the impossibility to
17 cross-examine a particular witness, or to contest the value, the face
18 value, of that hearsay evidence, then the Trial Chamber might well find
19 itself in a position where it has to protect either the rights of the
20 accused or the rights of the Prosecution as the case may be, because what
21 applies at this juncture to the Prosecution will eventually apply to the
22 Defence, if you try to bring forward evidence which is strictly hearsay
23 evidence. It will be admitted like we admit evidence, hearsay evidence
24 when it is brought forward by the Prosecution, but please don't get
25 carried away with the idea that this is a licence to make it possible for
1 you to do away with the obligation that you have to bring forward the best
2 evidence and rest -- be content with hearsay evidence as being the best
3 you can do in the circumstances, if that is not the best that you can do
4 in the circumstances.
5 I also made it clear at that point that any document that we might
6 exclude temporarily or for the time being because we consider that it will
7 deprive the other party from due procedural rights, might be readmitted
8 later on as well, just as much as it is perfectly possible that any
9 document that we may be admitting with or without prejudice, we eventually
10 will discard as of being completely of no value without removing it from
11 the records. I think we have more or less made the situation as clear as
12 can be. There is no strict rule like there is in common law
13 jurisdictions. We will admit hearsay evidence but please do keep in mind
14 that we are three judges and when we say, "Let's move forward, don't give
15 this document as much attention as you would like to," it's because we see
16 that eventually we will not be basing ourselves much on that document in
17 any case. So the question of admitting it or not admitting it may, in
18 effect, assume secondary importance in most instances. So this is what I
19 wanted to make clear. And if I have again not made myself clear, please
20 let us know and we will make it clearer hopefully and shorter too. Okay?
21 MS. KORNER: Your Honour, that's very helpful, thank you very
23 JUDGE AGIUS: Thank you. Agreed facts. Now, this is where, for
24 the present moment, I will be very short. You know that there is the
25 possibility for you to agree and come forward with a number of facts on
1 which you agree and which can be taken as adjudicated facts. But there is
2 also the option that this Trial Chamber has, having gone through
3 documentation, to decide itself to admit certain evidence as adjudicated
4 facts. I can assure you that in doing so, the Trial Chamber will observe
5 the basic principle underlying the rule which governs this procedural
6 measure. But the Trial Chamber as such, before even thinking of
7 proceeding along these lines, would exhort you to try, seriously try to
8 meet when there is time, possibly also with the help of our Senior Legal
9 Officer, and try to at least identify various facts on which there should
10 be no reason for you to disagree about.
11 I will not give instances so that no one will accuse the Trial
12 Chamber of having expressed itself on any particular fact. But I was, in
13 the course of last week, for example, reading the decision in the Kvocka
14 case, which to a large extent, deals with some of the camps, with Omarska,
15 very little with Trnopolje and Keraterm, but it deals to a large extent
16 with Omarska and what took place then. You realise, I mean I don't need
17 to say much on this, that what happened in Omarska is one thing and if the
18 Defence, for example, contests that those facts ever happened in those
19 camps, then I will shut up immediately. But if, for the Defence, what is
20 important is the nexus or the absence of it, which would establish or rule
21 out the responsibility of each of the two accused with those events, then
22 I'm suggesting to you that it may well be the case that you sit down
23 together, because if the Defence is going to be on the side of
24 Mr. Brdjanin, "I never knew that those events were happening there. I had
25 nothing to do with those events, I had no control on what was happening
1 there, there was no time during which I could have acted positively or
2 negatively," the same line of Defence is brought forward on behalf of
3 General Talic, then we should concentrate on that line of the Defence and
4 not on whether the events that were found to have taken place in the
5 Kvocka case, whether they have happened or not. My suggestion to you is
6 to see whether it is at all possible for the two sides, when I say two
7 sides, General Talic, Mr. Brdjanin, and Prosecution, to identify areas
8 where there are facts that you need not contest or that you have no
9 intention of contesting. There will absolutely be no further invitation
10 on the part of the Trial Chamber to reach such an agreement with regard to
11 any particular event. This is up to you. But I am putting it to you that
12 the more I read, the more I am convincing myself that there may come a
13 time when this Trial Chamber will necessarily have to put its foot down
14 and admit in evidence as adjudicated facts, certain facts arising from
15 other events.
16 That is a possibility which this Tribunal will try to avoid if
17 necessary but there are certainly many facts on which it would be
18 reasonable for this Trial Chamber to expect you to reach an agreement
19 upon. This is an exercise that I would like you to -- I know that there
20 has been this approach already from the Prosecution et cetera and I have
21 also told my Senior Legal Officer that if the Defence is expected to come
22 forward and cooperate in this, the Prosecution needs to present a
23 completely different and new list of facts on which it seeks your
24 agreement. Yes, Mr. Ackerman?
25 MR. ACKERMAN: Your Honour, there are a few things I need to
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 advise the Chamber with regard to this issue. I take what you're saying
2 very seriously and have since the beginning of the case. The first thing
3 that the Chamber must understand is that for either one of us to provide
4 you with a list of facts that we agree to is of no value unless both of us
6 JUDGE AGIUS: Definitely.
7 MR. ACKERMAN: So that's the first thing that has to be dealt
8 with. The second thing I will tell you in that regard is that the issue
9 of the representation of General Talic is one that has been in flux since
10 the beginning of this case and is obviously going to be that way until at
11 least the 20th when General Talic told you this morning he would advise
12 you as to whether Mr. De Roux will be remaining as his lead counsel or
13 not. Until we have a complete General Talic Defence team, it's
14 extraordinarily difficult for me to sit down with the Talic Defence and
15 arrive at any kind of agreements in this regard.
16 JUDGE AGIUS: I appreciate that.
17 MR. ACKERMAN: In fact, I'll say to you it's impossible.
18 JUDGE AGIUS: I wasn't expecting this to happen between today and
19 tomorrow or the end of the week. Certainly not.
20 MR. ACKERMAN: What I would like you to understand is that we are
21 cognizant of it and we are working on it and it is something we all have
22 in mind. No one has any desire to prolong this trial by requiring
23 unnecessary proof of facts. It will also be of absolutely no value at
24 this point or perhaps any time in the future for us to have some kind of
25 meeting with the Prosecutor because we know what the facts are that are
1 alleged by the Prosecutor and we are perfectly capable, the two Defence
2 teams, I hope, of sitting down and saying we should go along with some of
3 these. Now, one thing that I might ask the Chamber to consider, which
4 might make this an easier process, rather than for us to say to the Trial
5 Chamber, "We admit this certain sets of facts," is if we could be
6 permitted to say to the Trial Chamber that we do not contest this
7 particular set of facts. It's one thing to say we admit all the facts
8 alleged with regard to what happened in the camp at Omarska and another
9 thing to say we simply do not contest them. That is an issue that I don't
10 know has ever been before a Trial Chamber in this Tribunal. It's fairly
11 common where I come from. You can even enter a plea of nolo contendere,
12 which means you're not making any kind of admission and where it might be
13 very difficult to make an admission of facts, it's quite easy to do to
14 simply say, "I do not contest these facts for the purposes of this trial"
15 and it seems to me that accomplishes the same thing. It takes the
16 Prosecutor off the hook in terms of having to prove them. So I'd like you
17 to consider whether you would accept that kind of an agreement,
19 JUDGE AGIUS: We will obviously discuss it amongst ourselves
20 because we were not exactly expecting -- we didn't know what you were
21 going to -- what your response was going to be. But I think I will -- I
22 do not anticipate problems. Certainly, I can assure you of something that
23 this Trial Chamber is very clear about, or hasn't got any doubts about.
24 That is that the fact that you may either be requested, called upon, or
25 voluntarily come forward and say, "We do not contest these facts," will
1 not at any time then or afterwards be taken to mean, first, that your
2 clients knew that those events were taking place or that they personally
3 accept the fact that they are being not contested to be in any way used
4 against them or to be prejudicial to them. In other words, that is
5 something that we want to make clear to you, that if you say, "We do not
6 contest that the conditions, the hygienic conditions in Omarska camp were
7 really bad. Secondly that the food was very bad, that persons were
8 tortured, and beaten up and summarily executed in Omarska. We do not
9 contest that that happened," doesn't mean to say that they are agreeing
10 that they knew about those events at the time they were happening or that
11 they had some -- or some sort of control over the situation. The
12 agreement or the non-contestation of those events would be of course
13 without prejudice to their guilt or otherwise. This is pretty obvious.
14 MR. ACKERMAN: Well, you have just identified the major problem,
15 and that is how can one admit that something occurred if they have no idea
16 whether it did or not. And that's why I'm trying to suggest that we could
17 do a no contest kind of thing.
18 JUDGE AGIUS: It's a no contest, exactly. I'm not saying that you
19 will enter a declaration to the effect that you agree that those events
20 happened. That you do not contest that those events happened. Which
21 would dispense the Prosecution from the need to bring forward the
22 witnesses in persona, unless the Prosecution has reason to believe that
23 apart from giving evidence on the happening of those events proper, those
24 witnesses will also give information relating -- related to the
25 responsibility, personal responsibility, of one or both of the accused.
1 But I think this is something that we can discuss further as we go along,
2 but please do keep it in mind as we move ahead and as we approach the
3 phase of hearing evidence on these events. I have several reasons why I'm
4 bringing this up. These are -- if these events happened, and there are
5 decisions of this Tribunal stating that these events happened, I would
6 imagine that the same persons that gave evidence in the previous trials
7 are going to be brought forward again into this -- into The Hague, into
8 this courtroom, to give evidence again on these events, which you,
9 Mr. Ackerman, I'm sure, have heard before, and if you haven't heard in a
10 courtroom, you have read, like I have, and if we can avoid a repetition of
11 that, in other words if we can avoid having these persons come again here
12 and go through what I would consider as an ordeal to them and to us, if we
13 can avoid it, I would appeal to positive approach. Yes, Mr. Ackerman?
14 MR. ACKERMAN: We just -- I keep thinking of problems. And I'm
15 sorry. The other problem that I see we are talking about Omarska right
16 now and that --
17 JUDGE AGIUS: Yes, I mentioned Omarska because --
18 MR. ACKERMAN: -- that involves Prijedor and I know there is going
19 to be an attempt to coordinate the evidence in the Stakic case and this
20 case with regard to Prijedor and I can just see that while the two of us
21 here may be saying, "You don't need to call witnesses A, B, C, but only
22 D," the Stakic Defence will be saying, "You have to call all of them," and
23 in then what do we do in the meantime while we're waiting for the next
24 witness to come? I'm not sure that coordination is going to work at all
25 but I'm certainly willing to watch.
1 JUDGE AGIUS: Let's put it like this, Mr. Ackerman: That may well
2 happen with regard to the Prijedor chapter, but the Prijedor chapter is
3 not the only one that we have. There are many events that have been dealt
4 with in at least three or four other cases that are common to this trial
5 as well, which we can -- I don't know. But it's, yes.
6 MS. KORNER: It really is only Prijedor. None the of the other
7 municipalities that we are calling evidence, at least that I can think of
8 offhand, there has been no trials about any of them. Prijedor has been.
9 JUDGE AGIUS: Only Prijedor.
10 MS. KORNER: Really only Prijedor is about -- other than there are
11 of course other trials but they have dealt with perhaps Bosnia and within
12 this area only Prijedor has been litigated. That's the only one really to
13 which it applies.
14 MR. ACKERMAN: Even with the others, Your Honour there may be
15 facts alleged with regard to those municipalities that we would not be
16 interested in contesting whether there has been prior trials about them or
18 JUDGE AGIUS: Yes, but as soon as the Defence of General Talic
19 problem, in inverted commas, crystallises, I suppose I have told you what
20 I have in mind and more or less you know what I'm -- which lines I'm
21 thinking along, and perhaps you could in the meantime see what could be
22 done by way of trying to reduce the need to have certain evidence be
23 brought forward. If that can be avoided.
24 MS. KORNER: Yes. Your Honour will have seen from the meeting, at
25 page 23, that I foresaw that this was a problem, about the question of
1 making admissions, and we dealt with, as Mr. Ackerman suggests, nolo,
2 contendere, not disputed, or whatever the expression is. What we propose
3 do when we come to the next municipality, Sanski Most, is produce a short
4 list of facts which we would hope would not be in dispute. For example,
5 that there were prison camps at the following places, that they cannot
6 dispute that ill treatment took place and so on and so forth. And see
7 where that gets us. We would, of course, hope to reduce the witnesses
8 thereby, but most of the witnesses are being called that specifically
9 refer to matters on the indictment. So we would have to --
10 JUDGE AGIUS: That's the reason why we haven't reacted as yet, and
11 that we have left all doors open for the Prosecution without interfering
12 at all with any of the witnesses that you have declared so far. The
13 reason is that we realise that this is not an easy case, this is a
14 complicated case, which will take a long time, and we will only, not
15 interfere but we will only become proactive in that direction when we see
16 that you're not being reasonable. But not being reasonable in insisting
17 and bringing forward a witness to repeat the same thing, the same fact,
18 over and over again. Then we will stop you. But until then, we will not.
19 MS. KORNER: Well, Your Honour, that's why we have selected a
20 number of witnesses for the Rule 92 procedure to try and cut down on that
21 very thing. Your Honour, there are five or so municipalities which have
22 more events than others. Some of them are smaller and shorter and more
24 JUDGE AGIUS: I thank you, Ms. Korner. So that deals -- then
25 there was an another chapter which was opened during that meeting which is
1 interesting. And that is the length of the trial. More or less we just
2 touched upon it now as well.
3 Here it says the Prosecution expressed some concern about whether
4 the Trial Chamber would at some future point impose a strict time limit on
5 them for the completion of the case. This has recently been done in a
6 particular case that you mention here, if so the Prosecution seeks
7 adequate warning so that they have a realistic possibility of apportioning
8 the remainder of that case in a balanced way.
9 Now, I will tell you very little here but you will have seen the
10 way the Trial Chamber proceeded while Mr. Krzic was giving evidence. We
11 are definitely not short of patience. This Trial Chamber is very patient.
12 And this Trial Chamber, therefore, will most probably never have -- feel
13 to have to resort to the measure that has been resorted to in another
14 case. Unless there is reason to make us change our minds. But so far, as
15 things are going, we think that we have no criticism to raise both in
16 regard to the way you have conducted your examination-in-chiefs or to the
17 way that the Defence have behaved in -- during the trial and also in the
18 course of the cross-examinations. So if that is the case, you will have
19 all the space and all the facilities necessary for you to conclude your
20 case as you think you require. The same applies to the Defence. I me, we
21 are acting under the conviction that we all mean business and that we are
22 constructive in our approach. In other words I have no reason to doubt
23 that you have every intention to get this case over and done with, the
24 sooner the better, and similarly, I have no reason to doubt about the good
25 intentions of the Defence now that the trial has started. I mean, it's a
1 difficult trial for all of us and I think there is a spirit of cooperation
2 in the air which we don't have a reason to doubt so far and therefore
3 don't expect for the moment any sort of measures to be taken.
4 If the situation, the position, changes, then obviously you are
5 going to be given ample time, forewarning, I don't think there should be
6 reason for you to have any doubts on that or to face -- to fear that you
7 would find yourself faced with an emergency that would be created for you
8 by the Trial Chamber itself. It's in not our style and we won't do it.
9 MS. KORNER: May I just mention, Your Honour, in respect -- and we
10 are grateful to Your Honour for that indication, Your Honours remarks in
11 respect of Mr. Krzic, experience has taught all of us who have dealt with
12 witnesses from Bosnia that there is a tendency to not exactly answer the
13 question that was asked or to answer it but with a long explanation. All
14 witnesses are warned by us in advance only to answer the questions they
15 are asked, but obviously it's more difficult when they are in court. But
16 it may help, I think if Your Honour, with the presence that Your Honours
17 have, before a witness starts, just remind them that if they stick to
18 answering the question they are asked, they will be out of here quicker or
19 words to that effect.
20 JUDGE AGIUS: We will try to deal with each witness case by case,
21 because there are some witnesses where this kind of practice simply -- not
22 simply doesn't work but they almost take offence sometimes. They think
23 that there is an attempt on the part of, if not -- if it's forthcoming
24 from the trial Chamber itself, from the Trial Chamber, from the Tribunal.
25 Sometimes it's more dangerous if it's coming from either you or from the
1 Defence, because they react to it and it may lengthen rather than shorten
2 the testimony. So I understand and I fully agree that we should do
3 something about it as we go along. But please do understand also that it
4 varies from witness to witness. There are witnesses who are more prone to
5 cooperate than others. Okay? Each witness comes forward, it happens in
6 my jurisdiction as well, in Malta, they want to tell you the story of
7 their life and we have to bring them to order but sometimes especially if
8 they are persons that have gone through a lot, we have to be extremely
9 careful not to make things worse because we may have a reaction that you
10 wouldn't anticipate or you wouldn't like to have in the courtroom.
11 So I also would like your cooperation in this, but be careful,
12 especially, for example, I would prefer if you, Mr. Ackerman, draws my
13 attention that perhaps I should bring the witness to order rather than
14 doing it yourself, because he may take objection when -- to you, knowing
15 who you are and who you represent, but he or she would not take that much
16 objection if we intervene. Okay. So that settles that.
17 There was also a strong recommendation that was made to us by our
18 Senior Legal Officer, that before the trial moves on to any new
19 municipality, the Trial Chamber will make an assessment of the
20 Prosecution's case in some depth. Consequently in preparing for the next
21 premunicipality meeting, an analysis would be carried out based on one,
22 the outline of evidence that has already been presented in the case. Two,
23 the way the witnesses proposed for the upcoming municipality would fit
24 with that outline of evidence. Three, the way proposed Rule 92 bis
25 statements would fit with that outline of evidence. Four, the way that
1 facts already determined in other cases, this is where I put a lot of
2 emphasis, on appeal and not related directly to the accused, may fit in
3 with that outline of evidence, such facts may be considered as adjudicated
4 facts, either on the basis of a submission from the Prosecution or by the
5 Trial Chamber proprio motu. Next the way suggested exhibits from the
6 upcoming municipality may fit in with the outline of evidence and last but
7 not least, the way facts agreed upon between the parties may fit in with
8 that outline of evidence. I think without having heard a reaction from
9 the interpreters, that I have been reading a little bit too fast. So I
10 think I will give them a chance to finish the interpretation before I say
11 something else. And I apologise to them.
12 These are I think good suggestions. I understand that these were
13 more or less aired during the discussion that is you had, no?
14 MS. KORNER: I was about to say thank you very much to
15 Mr. Von Hebel because that's the first we heard of it.
16 JUDGE AGIUS: Oh, I see.
17 MS. KORNER: There was a slight touching on agreed facts, but
18 that's about it. We'd like time to consider obviously what Your Honour is
19 requiring here.
20 JUDGE AGIUS: Okay. If you want, I can let you have ...
21 [Trial Chamber and legal officer confer]
22 JUDGE AGIUS: So what I have just done, Ms. Korner, is since this
23 is a more or less a confidential report that the Senior Legal Officer
24 prepared for us, what I'm suggesting is that we extract the relative
25 paragraphs which is what I have just read plus another recommendation,
1 which runs as follows: Consequently, one or two weeks before the
2 premunicipality meeting, the Prosecution would be requested, here it says
3 "would have to," would be invited to - we use moderate terms - submit the
4 statements of the witnesses. That's for the purposes that you all know
5 of. And the 92 bis statements. And that would incorporate and be
6 prepared also to provide tape recordings. And the list of facts that
7 they-- that they think could be agreed upon. Again we will discuss this,
8 taking into consideration what was mentioned by Mr. Ackerman, that they
9 would rather prefer not to be provided with such lists from the
10 Prosecution, they are capable enough of coming forward themselves with a
11 list of facts that they would decide not to contest.
12 And then it continues on the basis of this material the Trial
13 Chamber would carry out a detailed analysis. This could then lead to
14 further instructions to the Prosecution as to how to organise or limit the
15 evidence that they would like to submit. This would be done in a manner
16 that avoids presenting any preliminary views on the evidence and gives the
17 Prosecution adequate flexibility in the presentation of its case. What I
18 would like to assure you of is that we will definitely give you, afford
19 you, all the flexibility needed and the space required, not just to you,
20 Madam Prosecutor, but also to the Defence teams in the preparation of your
21 cases. As we go along, what my appeal to you is, is let's talk, let's sit
22 down around a table and see how we can make this case run smoother. This
23 is important. Okay? So -- and I agree that we shouldn't leave it until
24 the very last moment when the next meeting will be held prior to the next
25 municipality. We should start working on preparing for that meeting well
1 in advance. This is what I -- preparing on your side and also on your
2 side. You will be of course in a position to know which facts you would
3 agree to, if you are provided with the facts beforehand. So this is why
4 it is necessary that you start working on this in good time. Or in real
6 MS. KORNER: Your Honour, if I understand correctly, it's the try
7 Chamber that is going to do the analysis and not us.
8 JUDGE AGIUS: No, no, no, no. Analysis of what is needed to
9 streamline, then, the proceedings for the next municipality. For example,
10 I won't be saying, telling any secrets but before this trial started, our
11 legal staff prepared for us a breakdown of all the evidence that you
12 intend to bring forward, number-wise and volume-wise with regard to
13 several items or points or events as they emerge from the indictment
14 itself. For example, I don't know, the breakdown of the Communist Party
15 in 1990 or 1991, how many witnesses you intended to bring forward, more or
16 less the same exercise will -- our staff will be doing that exercise for
17 us as we go along. It doesn't mean to say that we are deciding or
18 analysing what the case for the Prosecution will be like, but more or less
19 on the basis of what we are told by the -- by our team, we would be in a
20 better position to direct you. In other words, we will possibly ask you,
21 listen Ms. Korner with regard to this particular event, you're intending
22 to bring forward 23 witnesses. Could you possibly tell us whether all the
23 23 are needed or whether it's the case of going through them yourselves
24 and possibly finding out whether we can live with 16 or 18 or whether for
25 each municipality, for example, we is should limit them to 15 or 20,
1 unless there is absolute need to have more, I don't know. We will be
2 working, what I promise you is we will try to find ways and means of
3 working hand in hand with you. Okay? This is the approach that will be
4 taken by the Chamber.
5 MS. KORNER: Your Honour, I think Your Honour will find that that
6 never happens, because there were so many incidents, there is only
7 effectively one witness and maybe one Rule 92 for each incident in the
8 major municipalities. The only reason actually I'm on my feet is to say
9 do I understand that Your Honour would like in advance not as we
10 originally suggested, that you would have the statement of the witness
11 that was coming a few days or a week, but the whole bundle.
12 JUDGE AGIUS: I'm less interested, Ms. Korner, in myself and the
13 other two judges having those documents much ahead time. It would be
14 helpful if we have them well ahead in time, because we will be in a better
15 position to form a general bird's-eye-view of what evidence you intend to
16 bring forward and how your case is likely to present itself.
17 MS. KORNER: We can provide each of Your Honours with a bundle of
18 all the statements.
19 JUDGE AGIUS: It's more important, and I'm sure you understand me
20 now that we are getting to know each other better, it's more important for
21 me to know that the Defence have that material in hand because then I can
22 look towards Mr. Ackerman and towards Madam Fauveau and say, "You have had
23 ample time to go through these. Can I ask you whether there are facts to
24 which you are prepared to say, we do not contest that these facts may have
1 MS. KORNER: Your Honour, the list for Sanski Most will be given
2 to the Defence this week. They have all the statements already but the
3 order in which we intend to call them. There is one query which I raise
4 simply now from the point of view of witness management. On our rough and
5 ready estimate, although I think it's already been thrown out slightly, we
6 estimated that we would finish the Banja Luka municipality by the --
7 somewhere in the beginning of the week before the week we -- that ends on
8 the 22nd of March but we worked out there would be two days, that is to
9 say the 20th and 21st where we could start Sanski Most so I only raise it
10 now for consideration whether you and the Defence would wish to start the
11 Sanski Most in those last or wait until after the Easter break.
12 JUDGE AGIUS: As far as I'm concerned, we would continue, start
13 straight away with Sanski Most. There is no reason why we should stop.
14 If the necessary documentation is readily available, we should straight
15 away with Sanski Most. Do you have an objection to that, Mr. Ackerman?
16 MR. ACKERMAN: Your Honour I might present the Chamber with a
17 bundle of the emails from my wife that are starting to build regarding
18 that I'm not being given an opportunity to come back to Texas, and also
19 from the problems that are going on in my office.
20 JUDGE AGIUS: This will not change the dates we have agreed upon.
21 MR. ACKERMAN: But an additional couple of days would sure be
22 helpful. I don't think we will finish by then but if we did --
23 JUDGE AGIUS: You have not thought of blocking your wife's email?
24 MR. ACKERMAN: Then I would have to find another wife, I suppose,
25 Judge and I really like the one I have a lot.
1 JUDGE AGIUS: My wife has asked me to teach her email and I said,
2 when I have time. When this trial leaves me time. Yes, we will -- any
3 way, we will play it by the ear because it may well be that after all, we
4 will get, we will encounter some problems which would not make it possible
5 for us to proceed with Sanski Most in those two days and we could also
6 find ourselves not being able of -- to finish the Banja Luka. Anything
7 could happen.
8 MR. ACKERMAN: I just -- I don't want to miss the opportunity,
9 Your Honour, to strongly suggest that after the March 22nd break, that we
10 get on some kind after schedule with fairly frequent, one-week breaks.
11 The -- none of us who have agreed to become involved in cases here at this
12 Tribunal have agreed to completely close our law practices in order to be
13 able to do business here. And those of us who come from western countries
14 are working for half or less of what we charge for work that we do at
15 home. So we see our efforts here as being to some extent pro bono and I
16 certainly see my efforts here as being, to some extent, pro bono and I
17 should not have to completely lose my law practice to engage in pro bono
18 work for this Tribunal. It's a work that I love. It's a work that I like
19 doing and it's a work that I want to continue doing, but if I have to be
20 here straight through months and months of trial, I simply will not be
21 able to do it. I can't. And so I hope that the Chamber will consider
22 that we go on a schedule similar to what I suggested and you indicated,
23 Your Honour, that you thought might be acceptable and that is a four weeks
24 of trial with a week off. That would work for me. I think it would work
25 for all of us who might need to try to keep other work and keep our
1 offices together and our lives together and everything else. I understand
2 it's important that we move forward but it's also important that we do it
4 JUDGE AGIUS: The Trial Chamber has already expressed itself on
5 this in the beginning of this trial, or even before this trial started.
6 I -- what I would suggest is that you try to work out, to discuss amongst
7 yourselves, the two Defence teams, together with the Prosecution, because
8 you will understand that it's not fair, while the Prosecution, for
9 example, is dealing with one municipality, for this Trial Chamber to say,
10 "Now you will stop for two weeks or one week or three weeks. We will
11 continue afterwards." I would -- definitely we promised you that we will
12 definitely meet you not halfway, even beyond that, in staggering the weeks
13 when there will be hearings and the weeks when there will be a break.
14 That will happen. There is no question. But it could well be, for
15 example, that there will be -- it will be needed to have a break, say,
16 after two weeks rather than four or five weeks rather than four. This is
17 why I'm telling you try and work out together with the Prosecution --
18 try -- I mean everyone needs to be accommodated. In other words, you
19 ought to keep in mind also the programme or the chapter that the
20 Prosecution would be dealing with and the importance not to have evidence
21 being brought forward in bits and pieces. I think you know what I mean.
22 You have been a lawyer for a long number of years. It is important
23 sometimes to follow the train and the momentum of bringing forward one
24 witness over -- after another, for fear of certain things happening in the
25 meantime. So more or less, I would like to have a feedback also from the
1 Prosecution in this regard, and I would rather prefer that you plan it for
2 the Trial Chamber beforehand rather than discuss it or make an issue out
3 of it here. I think you have cooperated already, I mean that's the
4 impression that we have. That there shouldn't be -- there is no bad blood
5 between you or a polluted environment in which you cannot sit down
6 together and agree on this. And the Trial Chamber will come not meet you
7 halfway we will definitely meet you all the way in this.
8 MS. KORNER: Your Honour we will certainly discuss matters. It's
9 just been brought to my attention in fact by Ms. Richterova that there may
10 be a problem starting immediately the Tuesday after Easter because of the
11 holidays and trying to get witnesses here to begin on the Tuesday.
12 JUDGE AGIUS: Holidays in --
13 MS. KORNER: Everywhere.
14 JUDGE AGIUS: Yes.
15 MS. KORNER: We will -- I will discuss this matter and we'll get
16 back to Your Honour on this.
17 JUDGE AGIUS: You will find that we will -- you don't have -- you
18 shouldn't have any reason to believe for a moment that we will not
19 cooperate with you. I fully understand that no lawyer should be expected
20 to give up his practice. You don't even need to remind me of that. On
21 the other hand, I mean, rather than telling me we need to break one week
22 every four weeks, sit down with Ms. Korner, tell me that between now and
23 June, this is how we would like to work. Keeping in mind also that there
24 is more than one eye cast and focused on how trials are being conducted
25 and how expeditiously trials are being conducted or how much -- how many
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 breaks are being taken et cetera. This is all being monitored and I am
2 sure you appreciate that the intention of whoever is responsible for this
3 Tribunal as well as the one in Arusha, is that the least time possible is
4 wasted and the time available is used to have trials heard and determined
5 as expeditiously and as efficiently as possible.
6 MR. ACKERMAN: I appreciate very much what you've said, Your
7 Honour, and let me just tell you a couple more things. I was in, as you
8 know, the Celebici trial, and because of the fact that we only had one
9 court room and two trials going on, we were sharing a courtroom with the
10 Blaskic case and they would have it for two weeks and then we would have
11 it for two weeks. And that certainly meant that the Prosecution was not
12 able to really finish a segment in two weeks, that it was going -- and it
13 didn't really affect the flow of the Prosecution's case in any significant
14 way, I can tell you that. The other thing that we learned in that process
15 was that during those two week breaks in that case, an enormous amount of
16 work was done by counsel so that the following two weeks was a great deal
17 more productive than it otherwise would have been so I think that case
18 moved almost as fast as it would have had we been in session every day.
19 JUDGE AGIUS: I have no doubt that it will.
20 MR. ACKERMAN: So I don't think anyone watching from the outside
21 should think that we are just going on vacation every now and then because
22 we are not. We continue to work.
23 JUDGE AGIUS: But you have worked here and you know what you're
24 talking about and I have worked as a Judge for 25 years and I know what
25 I'm talking about. But I am not going to surprise you that many people
1 outside will still believe that when the Judge here and everywhere else
2 leaves his Chamber at, I don't know what time, that's the end of the day's
3 work for him. And it's wrong. Or that if you have a week off, then you
4 are going to be on holiday for that week, as Defence counsel or as
5 Prosecutor. It's wrong, but we know it's wrong, not many people don't.
6 Many people would still think that you and I and everyone else are just
7 having a good time or want to have a good time when we take a week or two
8 weeks off which is not the case. I know. It's very important for the
9 cases to be interrupted periodically so that each side reorganises the
10 team and the case and you will of course be afforded all the possibility.
11 I mean it would be very unfair for this Trial Chamber not to interrupt
12 periodically the sequence of sittings because it would deprive you of the
13 best way possible to reorganise your own teams and your own fronts so that
14 is enough. But what I meant was please sit down together and in the most
15 flexible way come forward and let us know what you would like. Then be
16 also prepared to be flexible later on if the needs arise to change the
17 schedule, because it may well be that we will need to change the schedule
18 as we need it when we first fixed the March 22 break, you told me that
19 Mr. Brdjanin's wife will be coming over, she had already from such and
20 such a date to such and such a day. You have to be flexible. We will be
21 flexible and you have to be flexible.
22 So that more or less concludes what I needed to tell you. You
23 will have a copy of an a extract of the report from Mr. Von Hebel and I
24 would appreciate if you could give us a feedback. There are two options.
25 You could give us a feedback directly to the Trial Chamber or you could,
1 and I would rather prefer this to happen this way, you could give a
2 feedback to Mr. Von Hebel himself, who may then discuss it further with
3 you, or elaborate a scheme whereby the preparation for the next informal
4 municipal Status Conference or meeting will be held, so that we would be
5 working along the same lines and would be fine-tuned with one another. So
6 that is the position.
7 Now, it's 10 past 12.00. Is there anything else that you would
8 like to raise?
9 MS. KORNER: No, Your Honour. There isn't.
10 JUDGE AGIUS: Shall we start with the witness? At least we will
11 give him good half an hour.
12 MS. KORNER: Your Honour, Ms. Richterova is going to start the
13 witness. Do you I understand Your Honour wishes to rise at quarter to
15 JUDGE AGIUS: Roughly.
16 MS. KORNER: Then, Your Honour, we will keep an eye on the time.
17 JUDGE AGIUS: And the witness is 7.87, no?
18 MS. RICHTEROVA: Yes.
19 JUDGE AGIUS: Will you call and bring in witness -- I think he has
20 gone for him already. Okay. This witness, has he asked for protective
21 measures? No.
22 MS. RICHTEROVA: No, he didn't.
23 [The witness entered court]
24 JUDGE AGIUS: Yes. I'm addressing you, sir. Can you look at me,
25 please? Are you understanding me in a language -- or are you hearing me
1 in a language that you can understand?
2 THE WITNESS: [Interpretation] I understand you and I can hear you.
3 JUDGE AGIUS: Yes. Now, the gentleman to your right will give you
4 a document which contains a solemn declaration that you are being
5 requested to make, a declaration that you will be telling us the truth,
6 the whole truth and nothing but the truth. And you are kindly asked to
7 make that solemn declaration now.
8 THE WITNESS: [Interpretation] I solemnly declare that I will speak
9 the truth, the whole truth, and nothing but the truth.
10 WITNESS: ZIJAHUDIN SMAILAGIC
11 [Witness answered through interpreter]
12 JUDGE AGIUS: You may sit down, sir, thank you. Just before you
13 start, before you start, I am the Presiding Judge in this trial and I am
14 flanked by two other judges that will be hearing and deciding this case.
15 To your right, there is the team for the Prosecution, lawyers for the
16 Prosecution. And the lady standing up will very soon start asking,
17 putting questions to you and to your left you have two teams for the
18 Defence. The front row and then the back. The team in the front row is
19 counsel for defendant Brdjanin, Radoslav Brdjanin, while the lady in the
20 back is counsel for General Talic.
21 Persons in front here are the -- form part of the Registry. You
22 are now going to be asked a series of questions. They will be asked in
23 English, I suppose.
24 MS. RICHTEROVA: Yes, in English.
25 JUDGE AGIUS: There will be simultaneous translation into a
1 language that you understand. If at any time the simultaneous translation
2 is not forthcoming is not reaching you, please make me a signal, give me a
3 sign, and we will wait until you receive a proper translation. One very
4 important thing, sir, is that if you do not take my advice, you will be
5 here for days and days and days and you will get tired and we will get
6 tired. You will be asked questions. Here you will be required to answer
7 that question, the whole question and nothing but that question. The
8 Tribunal is not interested in hearing anything else. Don't tell us
9 stories that you are not asked about. We are not interested in your
10 childhood, in the events of your life, other than the ones that you will
11 be asked upon. Have I made myself understood, clearly understood to you?
12 THE WITNESS: [Interpretation] Yes, that's understandable.
13 JUDGE AGIUS: So now the lady counsel for Prosecution will be
14 commencing her examination-in-chief. Please proceed.
15 MS. RICHTEROVA: Thank you, Your Honour.
16 Examined by Ms. Richterova:
17 Q. Good morning, I would say good afternoon?
18 A. Good morning.
19 Q. Would you be so kind and state your full name for the record?
20 A. My name is Zijahudin Smailagic.
21 Q. Tell us the date and the place of your birth?
22 A. I was born in Banja Luka on the 10th of December, 1940.
23 Q. What is your nationality and what is your ethnic background?
24 A. I am a Bosniak.
25 Q. What is your religion?
1 A. Islam.
2 Q. Can you tell the judges where did you live in the period 1990 to
4 A. I lived in Banja Luka in my house in Banja Luka.
5 Q. I would like to show you a map. We have unfortunately only one
6 copy. I know it's not a happy start of my appearance that I am not ready,
7 but we will have sufficient amount of maps within one hour, if not within
8 one hour, tomorrow morning, but I would like to state that this similar
9 map was already exhibited under P2, and the exhibit under P2 was annotated
10 by Mr. Mazhar. This is blown up version of very similar map and it would
11 be easier for the witness to orient on this map. Can we place it, please,
12 on the ELMO? I would like to exhibit this map when you have the spare
13 copies, as P2.1A, just P2.1, because it will be only one version.
14 JUDGE AGIUS: Yes. That map is being admitted. And will be
15 marked as indicated by counsel for the Prosecution.
16 MS. RICHTEROVA: Thank you, Your Honour.
17 Q. Mr. Smailagic, can you indicate on the map the part of the town
18 where you lived in the period which I stated? You have the map next to
19 you, so you can indicate on the map. Take your time and -- no you have to
20 do it on the real map.
21 A. This part which is called Pobrdje. It's in the town itself. It's
22 a neighbourhood called Pobrdje.
23 JUDGE AGIUS: Yes, so may I ask the registrar to give you a pen,
24 preferably coloured red, and ask you to mark on that map by means of a
25 circle the point you are indicating to us now, and then initial, put your
1 initials next to the mark.
2 A. [Marks]
3 JUDGE AGIUS: Yes. Okay.
4 MS. RICHTEROVA:
5 Q. What was typical ethnic structure of population for this
6 particular area?
7 A. 90 per cent of the population in Pobrdje was Muslim. They were
9 Q. You said this was one part of the town, Banja Luka. Were there
10 other separate parts within Banja Luka town?
11 A. Yes. There were other parts. To the left and to the right, Novo
12 Selija, Gornji Seher, Mejdan.
13 Q. Would you assist us and explain what was ethnic structure of
14 population of these separate parts in the town?
15 A. Left and right Novo Selija and Gornji Seher there was a
16 predominantly Muslim population here, perhaps even of 80 per cent of the
17 population was Muslim.
18 Q. Can I stop you for a moment? Would you be so kind and point on
19 your map the places which you are talking about? Take your time and show
20 us the places you are talking about.
21 JUDGE AGIUS: And mark, as you go along, Mr. Smailagic, as you go
22 along, please mark with a "X" this time, with a "X" on the map.
23 THE WITNESS: [Interpretation] This is the Hiseta neighbourhood,
24 which extends towards Gornji Seher and Novo Selija and the population here
25 is mainly Muslim, that is to say they are Bosniaks. Just a minute. This
1 is the Mejdan neighbourhood. The population here was also -- there were
2 quite a lot of Muslims here. It was a mixed neighbourhood. I can't see
3 here. I can't see Gornji Seher here and Novo Selija, so I can't mark
5 MS. RICHTEROVA:
6 Q. What was the ethnic structure in these two areas?
7 A. Mainly Muslim.
8 Q. Can you tell the Trial Chamber what was the ethnic structure of
9 the Banja Luka municipality, if you could explain the differences between
10 the town villages, if there were any?
11 A. Banja Luka, you are referring to the town, the town of Banja Luka,
12 the population was mainly Muslim in that town, but as a municipality, when
13 we are talking about Banja Luka municipality, the Serbian -- the Serbians
14 were in the majority. As a municipality, Banja Luka, Krupa and Vrbas was
15 not in the Banja Luka municipality, nor was Mejdan and Prozor but part of
16 the municipality of Banja Luka was Celinac and Laktasi.
17 Q. And what was the existing ethnic structure of Celinac and Laktasi
18 at that time when it was part of Banja Luka municipality?
19 A. It was mixed in Celinac, there were quite a few Muslims and case
20 was the same in Laktasi. And there was a village called Mahovljani too in
21 which the population was mainly Muslim and these municipalities were part
22 of the organisation -- of the municipality of Banja Luka. They were
23 separated but they joined the municipality of Krupa na Vrbas, Bronzon and
24 Mejdan. There was also the Ivanjska municipality, which joined Banja
25 Luka. Krupa na Vrbas is about 45 kilometres from Banja Luka. Bronzon and
1 Mejdan are about 32 or 34 kilometres from Banja Luka, whereas Celinac is
2 about 15 kilometres from Banja Luka and it is kept apart from Banja Luka
3 municipality. Laktasi is 19 kilometres from Banja Luka and is separate
4 from bang Banja Luka. This was done in my opinion in order to change the
5 demographic structure of Banja Luka.
6 Q. Thank you. I will move from this subject and I would like to ask
7 you, you said that there were these separate parts of the town. How they
8 were organised, into which structures?
9 A. Referring to Celinac and Laktasi?
10 Q. No. I mean you mentioned you live in Pobrdje which was separate
11 part of the town. How did you -- did you call this separate part in some
12 way? I think I can --
13 JUDGE AGIUS: I think you can ask him a direct question. I mean
14 there's --
15 MS. RICHTEROVA: I think I can help you. I'm asking about these
16 self-governing areas which you called local community. Local communes.
17 JUDGE AGIUS: You have permission to use even the local word,
18 the --
19 MS. RICHTEROVA: [No interpretation]
20 JUDGE AGIUS: He hasn't answered the question. I mean I haven't
21 heard an answer at least.
22 THE WITNESS: [Interpretation] The majority of the population in
23 Pobrdje, which is where I lived, the majority was Muslim.
24 MS. RICHTEROVA:
25 Q. How was it organised? Were there some authorities in these local
2 A. They were -- organs were elected in the local commune. There was
3 a municipal assembly and it had its own executive committee which
4 implemented tasks which were given to it by the municipal assembly.
5 Q. Now, I would like to move from this subject and -- but we will
6 return to municipal, local commune assembly and other authorities. I want
7 to ask you about your involvement in politics, beginning 1990. Were you a
8 member of some political party before 1990 and after 1990?
9 A. Before 1990, I wasn't a member of any party, and I didn't
10 participate in politics in any way. In the 1990s, I became a member of
11 the Party of Democratic Action, and since then, I remained an active
12 member in that party, in the Party of Democratic Action.
13 Q. Did you hold any position in -- within the party of SDA?
14 A. After the elections, I was elected as the Vice-President of a
15 branch of the party for the local commune of Pobrdje, and my function,
16 according to the programme of the party, the Vice-President were
17 immediately members of the main committee of the party for Banja Luka. So
18 as the Vice-President in the branch of the local commune for the Party of
19 Democratic Action and a member of the main committee for Banja Luka.
20 Q. Where were located premises of this main board of the SDA?
21 A. The headquarters of the Party of Democratic Action were in the Dom
22 Kultura, the Culture Club, on the first floor of this building, and it is
23 now called the Banski Nori [phoen].
24 JUDGE AGIUS: One moment, Ms. Richterova. I know that you speak
25 the same language as the witness does, so you know the answer before we
1 get the translation. The interpreters are having a little bit of a
2 problem. Between his finishing his answer and you putting the next
3 question, please give it a little bit of time so that they finish the
5 MS. RICHTEROVA: I'm sorry, Your Honour.
6 JUDGE AGIUS: No, no. I do the same mistake all the time.
7 MS. RICHTEROVA:
8 Q. Were there some other parties within the premises in Dom Kultura?
9 A. Yes. The Party of Democratic Action was there, the Serbian
10 Democratic Party, and the Croatian Democratic Community.
11 Q. When you mention Party of Democratic Action, what was the ethnic
12 composition of members after this party was established?
13 A. With the formation of the Party of Democratic Action in the 1990s,
14 it was multi-national at the time. We formed before the HDZ so that part
15 of -- some Croats joined our party, and there were also some Serbs, to
16 tell you the truth. They were members for a certain time.
17 Q. Did it change at some point, the structure of your party?
18 A. Yes. With the formation of the HDZ, these gentlemen left and
19 moved to the HDZ.
20 Q. Did you -- did you hold some responsibility also within local
21 community? Did you receive some -- did you have some functions?
22 JUDGE AGIUS: You can ask him a direct question here, because
23 these are facts that are not going to be contested in any case, I mean
24 whether he had a -- just put the question straight to him. You know
25 whether he did or he didn't. And if there is an objection forthcoming
1 from the Prosecution, we will change course. But in the meantime, you can
3 MS. KORNER: I think Your Honour meant the Defence. I'm not going
4 to object to Ms. Richterova's questions.
5 JUDGE AGIUS: From the Defence, yes, from the Defence.
6 MS. RICHTEROVA: Thank you, Your Honour.
7 Q. Were you president of the local community assembly in Pobrdje?
8 A. Yes. After the multi-party elections which were held in the
9 1990s, there were elections in the local communes which were held too, and
10 I was elected as the president of the local commune assembly in the local
11 commune of Pobrdje.
12 Q. I would like to really very briefly ask something what we have
13 already mentioned at the beginning but I would like to mention it here
14 again. After 1990, were there some initials -- initiatives to change the
15 structure of the Banja Luka municipality? Were there some initiatives to
16 change -- to divide municipality of Banja Luka?
17 A. Yes. That idea was present before the -- before 1990. There was
18 a forum of intellectuals in Banja Luka which was responsible for this
19 idea, and there was an expert -- a team of experts, well-known Banja Luka
20 intellectuals formed it, and it was headed by Dr. Sabahudin Osmancevic.
21 There was a restructuring of the Banja Luka municipality, and it was
22 divided into nine smaller municipalities so that Banja Luka as a town
23 would be a separate municipality, but account was taken of the national
24 composition, to ensure that it was fairly mixed so that weight could be
25 taken off the town and in order to satisfy all needs. And this required
1 the support, unconditional support, of all three peoples.
2 Q. Was this idea supported also by all three parties?
3 A. That idea was present even before the formation of the party,
4 before the multi-party elections. It was reanimated after the multi-party
5 elections, and in some conversations, yes, there was support on the part
6 of all three parties. But when the plan was sent for adoption to the
7 assembly, then the representatives of the SDS parties were energetic and
8 didn't allow it. We then sent it to the republican parliament, but it was
9 never dealt with. Then there was the war.
10 Q. Now, I would like to ask you a few questions about the life of
11 parties. Were there any interparty meetings, I mean meetings among HDZ,
12 SDA, SDS, during 1991, 1992?
13 A. Yes, there were. There were joint meetings. At the beginning,
14 there was certain attempts at reaching agreements, yes.
15 Q. Where were these meetings take place -- took place?
16 A. They took place in the Dom Kultura. There were common premises on
17 the same floor. And sometimes they were on the premises of the HDZ;
18 sometimes in the premises of the Serbian Democratic Party; and sometimes
19 in our premises.
20 JUDGE AGIUS: Can we stop here?
21 MS. RICHTEROVA: We can stop here because then I have a series of
22 questions which I think we need much more time.
23 JUDGE AGIUS: Mr. Smailagic, we have to stop here for today.
24 Tomorrow we will continue. I thank you for your patience and your
25 cooperation. So we will resume tomorrow morning at 9.00. We will try to
1 make up for the time we have [Microphone not activated].
2 MS. KORNER: Your Honour, may I just make one thing clear? This
3 witness is staying in the same hotel as the following witness. There is a
4 limited number of hotels in The Hague in which they can be put. I
5 understand that both certainly have been instructed by myself and
6 Ms. Richterova not to speak to each other about the evidence they are
7 giving, but I think it's only fair that we should let the Defence know and
8 perhaps Mr. Smailagic could be give that warning reinforced by Your
10 JUDGE AGIUS: Does he know who the other witness is?
11 MS. KORNER: He does, Your Honour. They know each other.
12 JUDGE AGIUS: They know each other.
13 MS. KORNER: Yes.
14 JUDGE AGIUS: And the other witness hasn't asked for any
15 protective measures?
16 MS. KORNER: No, he hasn't.
17 JUDGE AGIUS: So we can mention the name?
18 MS. KORNER: Your Honour can.
19 JUDGE AGIUS: Mr. Smailagic, I understand -- you have heard what
20 the Prosecutor has just stated, correct?
21 MS. RICHTEROVA: No, I think --
22 THE WITNESS: [Interpretation] Didn't have the earphones.
23 JUDGE AGIUS: Then let me explain to you. I have just been
24 informed --
25 THE WITNESS: [Interpretation] I can hear you now.
1 JUDGE AGIUS: Staying in the same hotel that you are staying in,
2 there is another Bosniak who will be giving evidence after you. I'm
3 referring to Amir Dzonlic. You know that.
4 THE WITNESS: [Interpretation] Yes.
5 JUDGE AGIUS: Now, you must give me your word that while you are
6 here in The Hague, and until you have finished giving evidence, you will
7 under no circumstance discuss any matter related to this case, to your
8 evidence, or to the events surrounding this particular case and the events
9 that happened in your country with the next witness, Mr. Dzonlic.
10 THE WITNESS: [Interpretation] I promise that I shall behave in
11 such a way.
12 JUDGE AGIUS: And you also promise that you will not allow
13 Mr. Dzonlic, who is not here to receive such a warning, not to speak to
14 you about these matters.
15 THE WITNESS: [Interpretation] I also promise to do so.
16 JUDGE AGIUS: I don't need to explain to you the importance of
17 this, but if this advice is not heeded, one of the most obvious
18 consequences will be that no one will believe you, apart from other
19 considerations. And I take your word as a gentleman that you will heed my
21 THE WITNESS: [Interpretation] Thank you.
22 JUDGE AGIUS: Thank you. Does that satisfy you, Ms. Korner?
23 MS. KORNER: I'm most grateful to Your Honour, and Mr. Dzonlic was
24 in fact given that warning yesterday.
25 JUDGE AGIUS: He's not here so -- we'll meet tomorrow morning at
1 9.00. I thank you. And Mr. Smailagic tomorrow will continue his
2 giving -- being examined in chief. Thank you.
3 --- Whereupon the hearing adjourned at
4 12.45 p.m., to be reconvened on Tuesday,
5 the 19th day of February, 2002, at 9.00 a.m.