Tribunal Criminal Tribunal for the Former Yugoslavia

Page 3920

1 Tuesday, 9 April 2002

2 [Open session]

3 --- Upon commencing at 2.21 p.m.

4 [The accused entered court]

5 JUDGE AGIUS: Madam Registrar, could you call the case, please.

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

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

8 JUDGE AGIUS: Mr. Brdjanin, good afternoon to you. Can you hear

9 me in a language that you can understand?

10 THE ACCUSED BRDJANIN: [Interpretation] Good afternoon, Your

11 Honours. I'm afraid that I have to say that I do hear you. Unfortunately

12 I don't understand anything today.

13 JUDGE AGIUS: What do you mean? Why is that?

14 THE ACCUSED BRDJANIN: [Interpretation] The case happened -- the

15 same case happened once again when I learned that another investigator

16 received a letter with the question why he was working in Banja Luka. I

17 think that this is something you can exert your influence to. I don't

18 know why attempts are being made to influence in an adverse manner my

19 defence. I have had this Defence for quite a while, and I do not want my

20 Defence team to be attacked in any way. I am very concerned. I have been

21 reading regularly all of the papers that you have sent me via the Office

22 of the Prosecutor. I couldn't follow anything yesterday because I

23 couldn't concentrate myself. There are serious things happening, and I am

24 indeed very concerned. This goes to the issue of my lawyer, and I really

25 had to draw your attention to this problem. Thank you very much for

Page 3921

1 having listened to me.

2 JUDGE AGIUS: [Previous translation continues] ... with your

3 lawyer?

4 THE ACCUSED BRDJANIN: [Interpretation] This incident that I

5 learned about today, that the second investigator also received a similar

6 letter, is something that I learned about only an hour ago, and -- over

7 the telephone. Anyway, this is something that I know we discussed

8 yesterday. But this new incident has only exacerbated the situation.

9 JUDGE AGIUS: Which -- you're referring to a second investigator?

10 It may be a problem of translation. Perhaps Mr. Ackerman can help me

11 there. We're talking of investigators. What are we talking about?

12 THE ACCUSED BRDJANIN: [Interpretation] I am talking about the

13 legal assistant.

14 JUDGE AGIUS: Can I have a clarification on what your client is

15 actually referring to. He's just saying that he's received some

16 information today.

17 MR. ACKERMAN: I can only tell you what I think it is, Your

18 Honour. I have haven't communicated with him today, so I don't know where

19 he received information. But what -- what I saw today was a letter from

20 the Registrar saying that they were denying one of my investigator's trips

21 from his home to Banja Luka to work during the first -- 1st through the

22 16th of this month because there was no justification for his being in

23 Banja Luka. And I wrote a response to that that we're in the Banja Luka

24 phase of the case and it's Banja Luka matters that are going on and I need

25 to have Banja Luka matters investigated during this period of time.

Page 3922

1 JUDGE AGIUS: This is all news to me.

2 MR. ACKERMAN: It was news to me until five minutes ago, Your

3 Honour. So -- but it's -- it's the kind of thing we do deal with on

4 occasion.

5 JUDGE AGIUS: Mr. Brdjanin, you've heard me say this is all news

6 to me. And in simple language, that means that this is the first time I'm

7 hearing about it, which brings me to tell you that I have no comments to

8 make at this present moment until I get more information about the

9 matter. What I can put -- what I can assure you of is that if there is

10 any irregularity, I will put it right. If what is being done is according

11 to the rules and regulations of this Tribunal, then it will have to be

12 that way. But if it's not according to the rules and regulations of this

13 Tribunal, or if it ridicules or renders into nothing your rights as a

14 defendant in this case, then I will do something about it. But until I

15 get more information, there's very little I can tell you and in fact I'm

16 not going to tell you any more.

17 THE ACCUSED BRDJANIN: [Interpretation] Thank you.

18 JUDGE AGIUS: Okay. Is there anything else you would like to tell

19 me -- or tell us, I mean?

20 THE ACCUSED BRDJANIN: [Interpretation] No. Your Honour, I'm

21 really sorry that I had to say what I said. Usually I don't speak on my

22 own. I do it through my lawyer. But I really felt the need to address

23 you.

24 JUDGE AGIUS: Mr. Brdjanin, I appreciate two things that you have

25 just said. First, that what you have to say you usually say it through

Page 3923

1 your lawyer. And I can assure you that you have got a very capable lawyer

2 defending you who is definitely not going to stop short of telling the

3 Court what he thinks that he needs to tell the Court. That's number one.

4 And secondly, I also want to assure you or -- and also encourage

5 you that if there is anything in the course of the trial that you don't

6 like, that you have reservations about, which you think that can influence

7 your right to a fair trial, please do come forward. Don't hesitate for a

8 moment. No one is going to shout at you or shut your mouth and tell you

9 to keep quiet, because you have every right to a fair trial before this

10 Tribunal, and you will get a fair trial. So that if there is anything

11 that you have reservations about, even if there are things that you may be

12 in disagreement with your Defence counsel, you have every right to stand

13 up and inform the Tribunal about it. And you will be heard.

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

15 JUDGE AGIUS: Okay. General Talic -- I'm not hinting,

16 Mr. Ackerman, that there may be some kind of disagreement. But you are a

17 senior lawyer, and you know that that sort of thing happens every now and

18 then, and sometimes it's thanks to the Court itself that things are sorted

19 out and smoothed out.

20 General Talic, good afternoon to you.

21 THE ACCUSED TALIC: [Interpretation] Good afternoon, Your Honours.

22 JUDGE AGIUS: Do you hear me --

23 THE ACCUSED TALIC: [Interpretation] I can hear you.

24 JUDGE AGIUS: -- in a language that you can understand?

25 THE ACCUSED TALIC: [Interpretation] Yes, I can hear you in a

Page 3924

1 language I understand.

2 JUDGE AGIUS: Do you have any kind of problems that your

3 colleague, Mr. Brdjanin, has or can I ask you to sit down and get over and

4 done with?

5 THE ACCUSED TALIC: [Interpretation] I have nothing to raise, Your

6 Honour. I have no problem.

7 JUDGE AGIUS: [Previous translation continues] ... and we can -- I

8 suppose, Mr. Cayley, if you have nothing to put, we can call the witness

9 in.

10 Yes, Mr. Ackerman. Yes.

11 MR. ACKERMAN: Your Honour, there is one matter. And maybe

12 it's -- I'm the only person in the room that misunderstood. Yesterday

13 when we were talking about the witness who had been interviewed by my

14 co-counsel --


16 MR. ACKERMAN: The Chamber -- you, Your Honour, asked Ms. Korner

17 if it was a protected witness. I had the impression that she had told you

18 that it was a protected witness.

19 JUDGE AGIUS: She did tell me that he had asked initially to be

20 afforded all the protective measures, including pseudonym and I don't

21 remember what else. But Ms. Korner was very clear about it. He was a

22 protected witness, yes.

23 MR. ACKERMAN: Well, I went home and looked for motions and orders

24 in that regard, and -- and then I took it up with the Prosecutor today and

25 there aren't any. They hadn't made any request for protection nor any

Page 3925

1 orders for protection regarding this witness at this point.

2 JUDGE AGIUS: Mr. Cayley, are you familiar with the details of

3 what Mr. Ackerman has just stated.

4 MR. CAYLEY: Yes, Mr. President. Mr. Ackerman raised this with me

5 before you came into court and my understanding is hat we have not made

6 full application for specific measures in respect of any of the witnesses

7 from that particular municipality as yet. So if that was the --

8 JUDGE AGIUS: Well, I also heard Ms. Korner state in no unclear

9 terms yesterday that the particular witness had asked for protective

10 measures.

11 MR. CAYLEY: That is correct. But we -- when we make an

12 application for protective measures, we do it per municipality. So when

13 we're coming up to a municipality, we put in an application in respect of

14 all those witnesses in that municipality.

15 If she stated that, she may well have been referring to --

16 JUDGE AGIUS: She definitely did.

17 MR. CAYLEY: I can't recall exactly. Your recollection is better

18 than mine, Your Honour. If she stated that, she may well have been

19 referring to either, one, the general order that is in place in respect of

20 all witnesses; and two, the fact that this individual had asked the Office

21 of the Prosecutor if protective measures could be put in place prior to

22 his testimony.

23 JUDGE AGIUS: No. I got the impression from Ms. Korner that

24 following the occurrence of this recent development that we discussed

25 yesterday in closed session, he definitely reiterated his request for

Page 3926

1 protective measures but that he had requested protective measures in the

2 first place sometime back when he was first asked to cooperate with this

3 Tribunal.

4 I suppose that more or less the importance of this issue will

5 arise or will have a place when we hand down the -- our decision following

6 what was discussed yesterday. And it will obviously have a bearing on the

7 decision that will be taken later on as -- in a second stage, following

8 any investigations that we might order. However, it is of concern to us

9 as a Trial Chamber to know that simply because a municipality had not yet

10 appeared on the scene, on the horizon, a question of protective measures

11 is put in abeyance. Because you can -- you're intelligent enough to read

12 through what I'm saying very quickly and see what the consequences could

13 be.

14 MR. CAYLEY: I mean, Your Honour, I hear what you're saying. With

15 respect, the measures apply generally to protection within the Tribunal

16 and within the actual courtroom in respect of facial distortion or voice

17 distortion or closed session. That's why it is carried out in that

18 matter. We can certainly discuss it amongst ourselves after the hearing

19 today and maybe think about putting them en bloc for all of the upcoming

20 witnesses. The only problem with that of course is that some witnesses

21 fall away. We never have a final list of witnesses, as happened in Banja

22 Luka. Not every witness attends in the end for various reasons, so it can

23 change before we actually get to the municipality.

24 JUDGE AGIUS: What I mean to say is that you can have, from what I

25 can se see, a situation obtaining whereby you have during the pre-trial

Page 3927

1 stage a declaration or a list of the witnesses that the Prosecution

2 intends to bring forward in a case, and that list includes persons who

3 have either sought already or who might be seeking protective measures

4 with the obvious consequences, unforeseen unfortunately most of the time,

5 that we are encountering in this case without my need to go into any

6 specific details. And it changes the picture, the whole scenario.

7 MR. CAYLEY: Yes.

8 JUDGE AGIUS: Because if one -- if the name of a particular

9 witness was listed in the course of the pre-trial stage when the

10 Prosecution was bound by the rules to provide the details of the evidence

11 to -- it intended to bring forward, and that list included the name of a

12 person who had already either sought protection or intended to seek -- or

13 was likely to seek protective measures, it could potentially create big,

14 big problems.

15 MR. CAYLEY: That particular document, I believe, is under seal,

16 the Rule 65 summaries, because of that problem. But I can check that. In

17 other words, the summaries of the witnesses.

18 JUDGE AGIUS: I think I would tend to agree with you that it is

19 under seal.

20 MR. CAYLEY: Yes. So that is not released to the public.

21 JUDGE AGIUS: But it doesn't make sense either, then, if you

22 intend to bring forward witnesses 1 to 10, and you provide the name under

23 seal and then you file later on motions not to have the name of those

24 particular witnesses disclosed to the Defence prior to 21 days before that

25 witness being summoned in, et cetera, et cetera. So I think this is

Page 3928

1 something that ought to be examined by the OTP and looked into deeply, I

2 would suppose, because it could create problems.

3 MR. CAYLEY: But recall, Your Honour, that there is a general

4 order in place. Mr. Ackerman is complying with and we in fact spoke to

5 each other about it, that the Defence are obliged not to disclose to third

6 parties any of these statements. That applies to all of the witness

7 statements.

8 JUDGE AGIUS: That is overboard.

9 MR. CAYLEY: All of the witness statements.

10 JUDGE AGIUS: That is overboard, no question about, it there is no

11 question about it, but what I mean to say is that there are instances that

12 you know about as a Prosecutor in this case and in previous cases whereby

13 in order to have an effective protective measure in favour of a particular

14 witness, you ask your -- or request the Chamber to effectively make sure

15 that the Defence is denied information on a particular witness before or

16 until a particular date. Whether that is in compliance or conformity or

17 lives along with the system that we have adopting -- we have been adopting

18 so far, I don't know. I mean, it's a question that I'm inviting you as --

19 as a senior member of the OTP to go into and make sure that the two go

20 together like a horse and carriage, because otherwise we are -- we are in

21 troubled waters.

22 MR. CAYLEY: Yes, I understand, Your Honour. Relating to the

23 issue that we discussed yesterday, it does create --

24 JUDGE AGIUS: The problem is not Mr. Ackerman --

25 MR. CAYLEY: Yes.

Page 3929

1 JUDGE AGIUS: Mr. Ackerman now with his clean bill of health is

2 even less of a problem than he was before.

3 Yes, Mr. Ackerman.

4 MR. ACKERMAN: Your Honour, the problem I think you have hit the

5 nail on the head, so to speak, is this: That we have an obligation to

6 conduct investigations.

7 JUDGE AGIUS: Of course.

8 MR. ACKERMAN: And there are witnesses who come here to testify

9 who don't care if the whole world knows that they are testifying. We've

10 had some of those. There are others who care a great deal and it makes a

11 difference as to how we approach an investigation with regard to a

12 particular witness, how that witness feels about those kinds of issues.

13 We have no way of knowing what those witnesses have told the Prosecutor

14 about their circumstances, whether or not they are in a position where

15 they believe they might be in danger, all those kinds of things. We don't

16 know those things. We have no reason to believe -- or had no reason to

17 believe, after I looked last night and discovered that there was no

18 protective measures regarding this particular witness we talked about

19 yesterday that had been requested. And apparently this is a -- well, I

20 better not talk about it because we're in open session. But we cannot be

21 held to a particular standard with regard to particular witnesses if we're

22 deprived of the information that is crucial to the way we conduct an

23 investigation. That's the point that I think you have seized upon and the

24 point that's important to have resolved.

25 JUDGE AGIUS: Well, let's -- Mr. Ackerman, let's put the dots on

Page 3930

1 the I's in no uncertain terms. I don't think in all fairness that the

2 Prosecution at any given time in any given moment yesterday denied you the

3 right to interview witnesses of the Prosecution. When I say "of the

4 Prosecution," it's relatively speaking, because Ms. Korner herself

5 conceded that there's no ownership with regard to witnesses. So that's

6 not -- that's not the issue.

7 The issue is the line of demarcation, the moment you decide to

8 approach a witness that you know is one of the witnesses that the

9 Prosecution is bringing forward is -- you have to be diligent, clever,

10 wise enough to know where the line of demarcation is. If you trespass

11 that line, don't expect this Trial Chamber to be lenient or to be nice

12 with you. We will come down on you, your Defence team, or on the Defence

13 team of General Talic with all the weight that we can carry, definitely,

14 if you trespass the line. But you definitely have the right, and you are

15 expected as a good Defence counsel to do your job well. And this Trial

16 Chamber will not interfere with your work, provided you do not trespass

17 the line.

18 I will obviously not tell you where the line of demarcation is,

19 because this may be something that we need to discuss or to decide upon

20 later on. But there is definitely a line of demarcation, because

21 approaching the witnesses of the Prosecution is one thing; bearing undue

22 influence on those witnesses or doing anything that is forbidden by the

23 Rules with regard to -- vis a vis those witnesses is another, and I don't

24 need to amplify on that. But I don't think that is what we are talking

25 about. You realise, and you are a senior lawyer here as well, to know

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Page 3932

1 well enough there may be -- that there may be instances where the

2 Prosecution is perfectly entitled to appeal to this Trial Chamber for

3 special protective measures protecting particular witnesses or may be

4 exposed to particular danger given certain circumstances. And I have the

5 impression -- I got this impression from one of the very early hearings --

6 sittings in this Trial Chamber -- that you are very cooperative in this,

7 Mr. Ackerman, and I have no reason to doubt your cooperation. In those

8 circumstances, it is the duty of this Trial Chamber to take all the

9 necessary precautions not to expose these possible potential witnesses to

10 unnecessary personal risk or personal danger, anyway. And the Prosecution

11 will find the cooperation of this Tribunal in that. And I would

12 understand -- I would anticipate the Defence to be cooperative. And I'm

13 sure that I can expect that from you.

14 What you can also rest assured of is that there is no way -- and I

15 have made this clear to the Prosecution already -- that there is no way

16 that you can be asked to prepare adequately for your client's defence

17 without being provided with all the opportunities necessary. So if

18 basically we come to a stage where we have to keep protected the name of a

19 particular witness or the details of a particular witness, et cetera, the

20 disclosure will take place in good time to enable you to prepare for an

21 adequate defence, and the Tribunal also will consider any submissions that

22 you may have to make sure that you will have every opportunity to prepare

23 for an adequate defence. But you also need to cooperate with the Tribunal

24 in securing all the precautionary measures that need to be put in place if

25 and when they are necessary with regard to particular witnesses. That I'm

Page 3933

1 making clear to the Prosecution, as well as to you. And I don't -- I

2 mean, you're free to say what you saw, what you like, and to make the

3 submissions that you like, but this is a position which the Tribunal feels

4 very strong about. I mean, the Tribunal feels very strongly about -- not

5 about you or any one of your colleagues approaching any of the witnesses

6 of the Prosecution. That's neither here nor there. It's the way it's

7 done. It's what it's -- what is said. It isn't necessarily what the

8 witness thinks. It's what happens on that particular occasion if the

9 information is forthcoming, because sometime it may not even be

10 forthcoming. But it's -- you're invited to -- if what Ms. Korner said

11 yesterday is correct, that is, that in the initial stages or at some point

12 in time you said that as a lead counsel you were in control of what was

13 happening in -- in Banja Luka or in the territory of ex-Yugoslavia, then

14 what is expected from you is a very simple thing: Stay in control, make

15 sure that the line of demarcation, the frontier is not trespassed. If a

16 mistake is done there, there's a price to pay. And I think I'm being

17 clear enough.

18 MR. ACKERMAN: Your Honour, I appreciate very much -- and I think

19 we all do -- the clarification. In your last comment, President Truman

20 used to have on his desk a little plaque that said, "The buck stops here."

21 And has lead counsel, that's my position, I am responsible for what the

22 people who work for me do. I try to give them the best instructions I can

23 and hope that they're followed. That's the best I can do.

24 JUDGE AGIUS: I thank you.

25 Anything else from you, Mr. Cayley?

Page 3934

1 MR. CAYLEY: No. Mr. President, you've said everything on this

2 issue. I don't need to add anything.

3 JUDGE AGIUS: Okay. So we can bring the witness in. Usher,

4 please.

5 Yes, we'll go into closed session, please, before. Make sure that

6 the gentleman does not come into the courtroom, this beautiful courtroom.

7 [Closed session]

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16 --- Whereupon the hearing adjourned at 7.00, to be

17 reconvened on Wednesday, the 10th day of April,

18 2002, at 2.15 p.m.