Tribunal Criminal Tribunal for the Former Yugoslavia

Page 2997

1 Monday, 11 March 2002

2 [Open session]

3 --- Upon commencing at 9.06 a.m.

4 JUDGE AGIUS: Please be seated.

5 [The accused entered court]

6 JUDGE AGIUS: Yes. Good morning, Mr. Brdjanin. As usual, I'm

7 asking you whether you can hear me in a language that you can understand.

8 THE ACCUSED BRDJANIN: [Interpretation] Good morning, Your Honour.

9 Yes, I can.

10 JUDGE AGIUS: I thank you. You may sit down.

11 General Talic, good morning to you. Can you hear me in a language

12 that you can understand?

13 THE ACCUSED TALIC: [Interpretation] Good morning, Your Honours.

14 Yes, I can.

15 JUDGE AGIUS: Thank you. You may sit down. I think we may have

16 the case called now, please. Thank you.

17 THE REGISTRAR: Good morning, Your Honours. This is case number

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

19 JUDGE AGIUS: Thank you. Appearances for the Prosecution?

20 MS. KORNER: Joanna Korner, assisted by Denise Gustin, case

21 manager. Good morning, Your Honours, and I hope this is only a temporary

22 accommodation.

23 JUDGE AGIUS: I hope so, too. Good morning to you, Ms. Korner. I

24 really feel cramped in this courtroom, but anyway it's one of the three

25 that we have and sometimes we have to work here.

Page 2998

1 Appearances for Mr. Brdjanin?

2 MR. ACKERMAN: Good morning, Your Honours. I'm John Ackerman.

3 I'm here with Tania Radosavljevic.

4 JUDGE AGIUS: Good morning to you.

5 Appearances for General Talic?

6 MS. FAUVEAU-IVANOVIC: [Interpretation] Good morning,

7 Mr. President, Your Honours. I'm Natasha Fauveau-Ivanovic, representing

8 General Talic.

9 JUDGE AGIUS: Good morning to you. So before we go into closed

10 session, there is one small matter that I wanted to raise with you.

11 Particularly it will become a question to the Prosecution more than

12 anything else.

13 You will recall, Ms. Korner, that there is one motion pending,

14 which we discussed very, very briefly here, and that is the motion filed

15 by the Defence teams for Krajisnik and Biljana Plavsic to have access to

16 trial transcripts and so on and so forth. And the decision has been

17 drafted. More or less, it's not a controversial matter at all. There is

18 one point that has been brought up, and that relates as to the time frame

19 for which our decision will be applicable. In other words, there is the

20 tendency, based on past experience, that when this Trial Chamber will

21 eventually grant the motion to Krajisnik and Plavsic, the access would be

22 operative, would be effective, only with regard to those documents,

23 transcripts, existing up to a certain time, with the result, and it seems

24 that a very strict interpretation or reading of the relevant rule would

25 entail -- would point in the -- indicate such a way of determining the

Page 2999

1 issue.

2 I was actually thinking -- I mean I discussed it briefly with the

3 Senior Legal Officer, and we agreed to put it to you, to see whether you

4 would -- it's not only a crammed room but you can barely move one inch

5 backward because it will start pulling here -- whether it will be at all

6 possible for us to say that, with regard to transcripts, with regard to

7 the basic documents that will be forthcoming, the decision will be

8 effective for the whole duration of the trial, reserving for the

9 Prosecution the right, should there be one or more documents where you may

10 have submissions to make or reservations to make, to bring -- or to bring

11 that matter up as we go along and when these cases arise. That would

12 spare us having to receive, practically on a monthly basis, similar --

13 identical motions to this one, which have to go to your office and you

14 have to prepare also a reply and then it comes to us and we also have to

15 draft another decision.

16 If we could avoid all this, I think we can only avoid it if there

17 is consensus amongst you, particularly forthcoming from your side, that

18 there would be no objection from the Prosecution for the -- for the

19 Chamber to make available these documents throughout the whole trial,

20 excepting those which we may need to discuss as we go along. I don't

21 necessarily want you to tell me yes or no now, obviously because this is a

22 matter that I'm only raising now and I understand that you didn't come

23 here prepared to give me a clear answer. But I would suggest to you to

24 think about it and to come back to us. I think we -- I think reading the

25 Rule, there is space for us to decide in such a fashion. But I wouldn't

Page 3000

1 risk deciding so unless there is the -- the consensus of the Prosecution.

2 MS. KORNER: Your Honour, can I just make sure I understand. And

3 I'm grateful for Your Honour saying we could have some time to just

4 consider it.

5 As I recall our response, it was no objection save insofar as

6 there were confidential exhibits and/or witnesses and that the onus should

7 be on those requesting to show why they required them. As I understand

8 it, Your Honour is suggesting it should be the other way round, that the

9 Prosecution should make a showing as to why it shouldn't be disclosed.

10 JUDGE AGIUS: No, I'm not suggesting the other way round. In

11 fact, this is -- this is the -- what is brought about it and what we

12 discussed, the senior legal officer and myself. We are definitely not

13 shifting the burden, no. We do not intend to shift the burden. What we

14 are trying to do is that there are some documents which out of their own

15 nature would not require another motion or a monthly motion, such as the

16 transcripts of the sittings.

17 MS. KORNER: Yes.

18 JUDGE AGIUS: There are also documents which in themselves are not

19 confidential in any way. And again, I don't see why as they are brought

20 forward and introduced in the records of this case as exhibits we have to

21 every month decide on those -- on those.

22 What I was suggesting was that as you bring in the records or as

23 you introduce documents which you may have reservations about or which --

24 on which you are quite categoric that you don't want to have these

25 included, you will indicate these to us --

Page 3001

1 MS. KORNER: Yes.

2 JUDGE AGIUS: -- or to the Prosecution -- or to the Defence, so

3 the Defence know that there is a problem with regard to these documents

4 and with regard to these documents only. And in that case, we would have

5 a motion relating to those documents only and not regarding the rest.

6 That would avoid us having to receive I can't imagine how many motions,

7 you know, because these confidential documents will be arriving every so

8 often, but not as often as the transcripts or the documents which are not

9 confidential. So what the Trial Chamber would be asking from you -- not

10 exactly shifting the -- just indicating, indicating that -- to the Defence

11 that there is no consensus on the Prosecution for the disclosure of these

12 documents to Krajisnik and -- yes, then we'll decide -- we'll decide that

13 issue as we go along.

14 MS. KORNER: Your Honours, may I say that with respect to the

15 exhibits, the ordinary exhibits, I have little doubt that the

16 Krajisnik/Plavsic team have them anyhow, because I know that disclosure by

17 the Prosecution team in that case has been following ours to a large

18 extent, although it covers a wider area.

19 Your Honour, my only concerns are that it -- there are some

20 witnesses and some documents which will reveal their identity about which

21 we have more concern than others, those who Judge Hunt granted us late

22 disclosure because of their sensitivity. Your Honour, I think if Your

23 Honour would be kind enough, I can certain give you an answer by the end

24 of the day.

25 JUDGE AGIUS: Yes, certainly. And feel free to say "No,

Page 3002

1 definitely not." We wouldn't be surprised in the least. In other words,

2 we are prepared for it. The decision is ready either way; in other words,

3 either one way or another. We feel more comfortable in deciding also for

4 the future if there is the hundred per cent consensus on your part. If

5 there isn't, we wouldn't like to establish a precedent in this field.

6 Rather than explore fresh ground, we would rather stick to what the

7 practice has been.

8 MS. KORNER: Well, Your Honours, we're mindful of the fact, as you

9 rightly say, that written motions are bad enough for those that are really

10 necessary. And if we can dispense with some that may not be necessary, we

11 should. And we'll certainly make inquiries.

12 JUDGE AGIUS: Okay. Thanks, Ms. Korner.

13 So I think we could bring in the witness.

14 MR. ACKERMAN: The motion you requested on Friday has been

15 prepared and will be filed today regarding the documents.

16 JUDGE AGIUS: Okay. Thank you. Thank you.

17 I think we need to go into closed session now even before the

18 witness arrives.

19 MS. KORNER: Your Honour, I don't -- just before he comes in, we

20 did file on Friday the response to Mr. Ackerman's motion.

21 JUDGE AGIUS: The 90(H).

22 MS. KORNER: On the 90(H).

23 JUDGE AGIUS: I haven't seen it as yet.

24 MS. KORNER: I hope it will be given to Your Honours today.

25 MR. ACKERMAN: It's quite a long one-page response, by the way.

Page 3003

1 MS. KORNER: We thought we'd preempt the appeal brief slightly.

2 But if Your Honours would be minded perhaps to give that

3 consideration as one of the first so that we'll all know where we stand.

4 Thank you.

5 JUDGE AGIUS: Thank you.

6 [Closed session]

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18 --- Recess taken at 10.27 a.m.

19 --- On resuming at 10.56 a.m.

20 JUDGE AGIUS: Can we go in open session for a short while, please

21 [Open session]

22 JUDGE AGIUS: Mr. Ackerman, Madam Fauveau, I found on my desk the

23 Prosecution's ninth motion for protective measures in relation to witness

24 disclosure number 7.118. Are you familiar with this motion as yet or not

25 yet?

Page 3032

1 MR. ACKERMAN: I read it very briefly this morning, Your Honour,

2 so yes, I am -- I would say that I'm familiar with it.

3 JUDGE AGIUS: Yes. And Madam Fauveau?

4 MS. FAUVEAU-IVANOVIC: [Interpretation] Yes, the same for me,

5 Mr. President.

6 JUDGE AGIUS: I am suggesting the same manner of proceeding that I

7 did -- like I did about a week or two ago. If you -- there are no

8 objections on your part, could we go ahead and -- if there are, just tell

9 me, and it will take its normal course.

10 MR. ACKERMAN: Your Honour, as I was reading it this morning, I

11 was perhaps reading it more carefully than I have recent ones. It's my

12 recollection -- and I intended to go back this afternoon and look -- it

13 was my recollection that Judge Hunt had taken the position that it was an

14 insufficient basis for these kind of measures if it was purely the

15 witness's statement that he might be in danger for one reason or another,

16 that there had to be something objective beyond the mere statement of a

17 witness. I believe that's what Judge Hunt said. And looking at this

18 request, I think it is in that category, that the witness is just saying

19 he thinks it would be a situation that might put him in some danger. So I

20 think it has to go beyond that.

21 I have taken the position in the pre-trial portions of this case,

22 and in many ways Judge Hunt has agreed, that these proceedings should be

23 public as much as possible.

24 JUDGE AGIUS: Well, there I agree too, but it's --

25 MR. ACKERMAN: And that it should be extraordinary when we make

Page 3033

1 them not public, and that just the mere assertion by a witness - I think

2 Judge Hunt said - is not sufficient. But I wouldn't want to --


4 MR. ACKERMAN: -- tell you that without looking it up.

5 JUDGE AGIUS: Okay. But I would refer you to para 2 of -- para

6 numbered 2 in the submissions in this ninth Prosecution motion, which goes

7 beyond what you have just mentioned. In other words, it specifies at

8 least one -- two particular reasons why the protective measure was

9 requested by the witness and now by the Prosecution.

10 MS. KORNER: Yes. Can I point out, this witness is not a live

11 witness --

12 JUDGE AGIUS: I know he is.

13 MS. KORNER: -- under Rule 92. I'm not even sure that we've

14 decided on the exact procedure how they're going to be dealt with.

15 Judge Hunt's order dealt with the disclosure to the Defence of witness

16 identities.

17 Your Honour, all we can say, as we've said in that motion, is that

18 witness has expressed concerns. It might be a different matter if the

19 witness were to testify live. It may be that Your Honour felt that those

20 concerns were not enough. Our simple application is on the basis that he

21 has concerns, real concerns. His statement is -- I don't know if it's

22 going to be read into the record or how it's going to be. I'm not sure.

23 But all I was concerned was whether it was necessary from an open justice

24 point of view to have this witness's identity disclosed to the public.

25 JUDGE AGIUS: Anyway, I'll leave you time to think about it. If

Page 3034

1 you think at the end of the day or whenever we can proceed along the same

2 lines as last time, we will do that. Obviously if not, you will have the

3 usual time to reply and make submissions, and then we will decide it later

4 on in due course.

5 MR. ACKERMAN: Your Honour, I suspect that that's where I'm going

6 to be. I'd like to have until morning to respond.

7 JUDGE AGIUS: Yes, yes, certainly, Mr. Ackerman.

8 MR. ACKERMAN: But I think Ms. Korner is correct. I think there

9 probably is a difference.

10 JUDGE AGIUS: I think she is --

11 MR. ACKERMAN: -- with regard to a 92 bis situation rather than

12 with a live witness. Not having thought it through, just give me till

13 morning, and I'm sure --

14 JUDGE AGIUS: Yes, certainly.

15 The same applies to you, Madam Fauveau.

16 MS. FAUVEAU-IVANOVIC: [Interpretation] Mr. President, we do not

17 oppose this request of the Prosecutor. But in future, we would like to

18 have it, if it is possible, to have the testimony in an open session,

19 whether it is Rule 92 bis or whether this is a testimony here by the

20 witness. But we very much appreciate open sessions. But at the moment,

21 we are not opposing this motion of the Prosecution.

22 JUDGE AGIUS: Thank you, Madam Fauveau. So I think we can go in

23 closed session now and bring in the witness. Thank you.

24 [Closed session]

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12 [Open session]

13 JUDGE AGIUS: Archbold is still around, isn't it? We still have

14 it.

15 Yes, Ms. Korner.

16 MS. KORNER: Your Honour, I took the opportunity to get the copy

17 of our motion and to discuss the matter with Mr. Cayley, in particular.

18 Your Honour, there are effectively two sorts of witnesses who are

19 going to be affected by this. One is those who will be testifying in open

20 session but with various protective measures; and those that will be

21 testifying, as today's witness, and the following two, in totally closed

22 session.

23 Your Honour, we don't want to be unhelpful about it, and in a

24 sense we may not be, because most of the crime base witnesses who have

25 pseudonyms or other types of protective measures are, in fact, the

Page 3087

1 witnesses who will be used for Krajisnik and Plavsic. So we had a quick

2 look at the two witness lists, and we think there are very few that the

3 Defence team wouldn't get the identities of in any event, not mention the

4 transcripts from here, because that would have to be disclosed as part of

5 the testimony.

6 In relation to the closed session witnesses, we have a feeling

7 that much the same applies, that most of those have also been selected for

8 the Krajisnik/Plavsic trial. We would ask at this stage, if Your Honours

9 minded to say, that they must make a showing, to leave it at that. If it

10 turns out that there are a lot where they're not getting the information

11 or won't get it in the near future, well, then we would reconsider our

12 position. But for the moment, Your Honour, the reason we have asked for

13 these protective measures and Your Honours have been granting them is

14 because there's a good reason why one doesn't want this to get into --

15 JUDGE AGIUS: No. That, I actually understand. I mean, and to

16 tell you the truth -- I mean, I put it to you this morning for a very

17 simple reason. I told you we have the two drafts ready.

18 MS. KORNER: Yes.

19 JUDGE AGIUS: So I won't tell you what our preference is,

20 obviously, because that's another issue. I do realise that there may be

21 problems. I also do realise that possibly there is a bulk of documents,

22 particularly transcripts, not of closed sessions -- I mean, because again,

23 I see problems there. But I do realise that there may be problems. But I

24 think at the -- at this point, we would rather play it safe and leave

25 things as they were. And as we go along now -- later on, if there is the

Page 3088

1 need -- as there will be the need -- we will --

2 MS. KORNER: Your Honour, if it turns out --

3 JUDGE AGIUS: -- definitely -- okay. Ms. Korner. I mean, the

4 intention was certainly not to put the Prosecution at a disadvantage or to

5 create problems for the Prosecution. That was definitely not the

6 intention. The intention was to try and see if there could be a way of

7 streamlining. However, if the situation remains that even as far as

8 certain documents are concerned, there's still going to be the need for

9 the Defence of those two individuals to file a motion -- it's not worth

10 its while going through all this exercise now. And we will take it as we

11 go along. Thank you.

12 MS. KORNER: I think, in fact, they filed their motion without

13 appreciating that they would in any event get most of these transcripts

14 through disclosure in their case --

15 JUDGE AGIUS: I don't know, because I don't know enough about

16 their case to be able to appreciate. But I did then, while we were

17 elaborating the judgement, realise that there is a quite substantial chunk

18 of the evidence which is common to both, and we thought there might be

19 this kind of -- but it's not a problem to us. We can live with it without

20 any problems at all. And we will take it up as we go along. As there's

21 the other subsequent motions, we'll start --

22 MS. KORNER: As I say, Your Honour, we will certainly reconsider

23 our position as well.

24 JUDGE AGIUS: Okay. I thank you. I think we can call it a day.

25 Tomorrow morning you will commence with your cross-examination.

Page 3089

1 Do you figure you will finish it tomorrow, conclude your examination --

2 cross-examination tomorrow?

3 MS. FAUVEAU-IVANOVIC: [Interpretation] I believe that it will take

4 two or three hours, but it will obviously depend on the answers of the

5 witness.

6 JUDGE AGIUS: So we should -- we should be able to make it.

7 In any case, I think you ought to -- yes, we ought to think of

8 whether -- because if it's three hours, you have the first two sessions,

9 basically: 9.00 to 10.30, and then 11.00 to 12.30. So that is three

10 hours.

11 MS. KORNER: Your Honour, I would hope, and I think -- you know, I

12 appreciate that Madam Fauveau is giving an --

13 JUDGE AGIUS: An indication.

14 MS. KORNER: -- an indication. But I would hope that it wouldn't

15 take quite that long. I have some re-examination but not a lot. But in

16 any event, I'm going to arrange for the next witness to be brought here

17 by, I would say, the end of the first break, so from around 11.00 onwards.

18 JUDGE AGIUS: Okay. I thank you.

19 So that is it. We'll resume tomorrow morning at 9.00. I thank

20 you all.

21 --- Whereupon the hearing adjourned

22 at 1.37 p.m., to be reconvened on Tuesday,

23 the 12th day of March, 2002, at 9.00 a.m.