Tribunal Criminal Tribunal for the Former Yugoslavia

Page 4549

1 Thursday, 18 April 2002

2 [Open session]

3 --- Upon commencing at 2.19 p.m.

4 [The accused entered court]

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

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 Honour. Yes, I can hear you in a language I understand.

12 JUDGE AGIUS: Okay. Thank you. You may sit down.

13 General Talic, good afternoon to you.

14 THE ACCUSED TALIC: [Interpretation] Your Honour, good afternoon.

15 I can hear you and understand you.

16 JUDGE AGIUS: Okay. Thank you.

17 Appearances for the Prosecution.

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

19 manager. Good afternoon, Your Honours.

20 JUDGE AGIUS: Good afternoon to you.

21 Appearances for Radoslav Brdjanin.

22 MR. ACKERMAN: Your Honour, I'm John Ackerman, along with Tania

23 Radosavljevic, for Mr. Brdjanin.

24 JUDGE AGIUS: Good afternoon to you.

25 Appearances for General Talic.

Page 4550

1 MR. DE ROUX: [Interpretation] Xavier de Roux, assisted by Natasha

2 Fauveau and Michel Pitron, for General Talic.

3 JUDGE AGIUS: Good afternoon to you.

4 So Mr. Ackerman.

5 MR. ACKERMAN: Your Honour, I need to first advise you that I

6 cannot be prepared to cross-examine this current witness before Monday

7 because of events that happened in our case yesterday, and those events

8 are occupying all of my time right now and I just have no time to

9 concentrate on cross-examining this particular witness.

10 It may be that those events will require even further problems

11 along that line. That remains to be seen, and I don't want to speak of it

12 until I have better knowledge of what's happening.

13 Mr. Brdjanin has asked me to ask you for leave for him to address

14 you for approximately ten minutes in private session. And so I do make

15 that request, that you permit him to do that.

16 MS. KORNER: Well, Your Honour, I think perhaps we better deal

17 with that first. The Prosecution is neutral. It's a matter for Your

18 Honours.

19 JUDGE AGIUS: Yes, I think so. But I just looked to see whether

20 you had anything to say.

21 MS. KORNER: No.

22 JUDGE AGIUS: Okay. So we'll go into private session, please.

23 [Private session]

24 [redacted]

25 [redacted]

Page 4551












12 Pages 4551-4566 redacted private session














Page 4567

1 [Open session]

2 JUDGE AGIUS: Thank you. Yes, Ms. Korner. So this witness is

3 giving evidence in the Stakic case.

4 MS. KORNER: He is. With full protective measures in closed

5 session, I should add. And I'll come on to that.

6 Your Honour, I find it quite difficult if Mr. Pitron is talking,

7 I'm sorry.

8 JUDGE AGIUS: But he doesn't understand your English.

9 MS. KORNER: I know, but it's also -- it's very distracting. And

10 he does understand perfectly in English.

11 Your Honour, it's this: We applied last week - Mr. Ackerman

12 hasn't responded - as to whether if we submitted this man's transcripts

13 under Rule 92, there would be a need to cross-examine. He's already

14 testified before. And Your Honour, the witness will not come back to The

15 Hague again. He's made that absolutely clear. He's already come back --

16 this is the third time. And each time he has to relive the events of the

17 matter he's dealing with.

18 Madam Fauveau responded in that motion, saying that she did

19 require to cross-examine him. Our application is that we be allowed to

20 interpose him on Tuesday of next week, as Your Honours say we're sitting,

21 although he's got nothing to do with Sanski Most. But in fact, at this

22 rate, we've -- we won't have started Sanski Most. And to put him in with

23 -- we will give to Defence counsel the LiveNote version of his testimony

24 today and tomorrow morning. We'll give that -- we'll provide that by the

25 end of tomorrow afternoon so they can see what he's said in the Stakic

Page 4568

1 trial. We will then apply to put in the transcripts of what he said

2 before and tender him for cross-examination.

3 JUDGE AGIUS: Do the Defence teams have a copy of the statements?

4 MS. KORNER: And the transcript of his earlier testimony. They

5 do.

6 JUDGE AGIUS: Yes. They --

7 MS. KORNER: Madam Fauveau originally said she didn't, but then

8 she corrected it.

9 JUDGE AGIUS: No. That's okay. But that applies to Mr. Ackerman

10 as well.

11 All right. So the question seems to be more directed to you,

12 Mr. Ackerman, although I don't think your answer is going to make much

13 difference, because if there is already a request from Madam Fauveau to

14 cross-examine the witness, he needs to be brought forward in any case, no?

15 MR. ACKERMAN: Your Honour --

16 JUDGE AGIUS: Yes, ladies first.


18 MS. FAUVEAU-IVANOVIC: [Interpretation] Simply, to make a slight

19 correction, my motion was not simply to cross-examine the witness. We

20 object to the admission of this statement under 92 bis, and we do request

21 to cross-examine the witness.

22 JUDGE AGIUS: Yes. And you, Mr. Ackerman?

23 MR. ACKERMAN: Your Honour, any time Madam Fauveau beats me to the

24 response on something like this, it would be redundant for me to do

25 anything at all, because if he's going to have to be brought here for

Page 4569

1 cross-examination by Madam Fauveau, then he'll be available for

2 cross-examination by me.

3 JUDGE AGIUS: Yes. Exactly.

4 MS. KORNER: Well, then I'm going to ask Your Honour -- and I

5 think we'd better provide Your Honour as well with the -- it will be

6 LiveNote transcripts. We can't -- they don't get cleaned up in time.

7 Because that's really what we'll be applying for admission of, or possibly

8 some follow-up questions, to admit that, but obviously tendering him to

9 cross-examination. We will provide them to Your Honours and to Defence

10 counsel tomorrow. It's anticipated he may go into Monday. But it will be

11 our application that it will be wrong, save for maybe a few questions in

12 chief, to make this man retestify all over again. It's one of the major

13 problems, Your Honour, that we foresaw with the Stakic trial starting in

14 this way. But that will be our application, and I'll make it on, I

15 suppose, Monday, once Your Honours have the ...

16 JUDGE AGIUS: One moment.

17 [Trial Chamber and legal officer confer]

18 JUDGE AGIUS: [Microphone not activated]... that was to ensure

19 that by tomorrow morning, the Chamber would be in a position to weigh the

20 objection raised by Madam Fauveau for the admission of the statement under

21 92 bis.

22 MS. KORNER: Your Honour, it will be -- it will be, in fact, we're

23 giving you the statement so you can see the area of the testimony. And

24 it's the only part of the testimony that Your Honours can't obtain. If

25 Your Honours want to see what he said in the -- the other case that he

Page 4570

1 testified in, then that's -- I think Your Honours' legal officer can

2 provide that.


4 MS. KORNER: But we will be applying, because he's been called in

5 full in chief in the Stakic case, to put in effectively that testimony.

6 And the other material is there purely for the purposes of

7 cross-examination, if required.


9 MS. KORNER: Your Honour, that's -- that will be our application.

10 And we would say -- we'd urge Madam Fauveau to reconsider. To make a man

11 testify all over again in full about these matters, we submit, would be

12 wrong.

13 Your Honour, the last matter again arises out of something that

14 happened this morning in the Stakic trial. Your Honour will recall that

15 we submitted a motion to both Trial Chambers in respect of witnesses that

16 we wanted to call to tender through deposition evidence. Now, as I think

17 I said to Your Honour sometime ago, and as I said yesterday to Judge

18 Schomburg, that's clearly dead in the water because of the fact that the

19 two trials are not meeting in purposes of time.

20 Except for this: There are two witnesses who Your Honours, I

21 don't imagine, have the motion with you. But they were number 3 and

22 number 7 on the list, who we applied to have testify through videolink for

23 the reasons that were set out in the motion.

24 Your Honours, this morning, Judge Schomburg told Mr. Koumjian

25 that, in his view, there should be two wholly separate, as it were,

Page 4571

1 occasions when the videolink method was used and that again, a witness --

2 and in particular, our concern is Witness number 3, who has a medical

3 condition -- would have to testify in full on both occasions and indeed

4 all the arrangements for videolinks would have to be set up twice.

5 Your Honour, I'm raising this in the hopes that perhaps the two

6 Trial Chambers could get together. And our suggestion is that there

7 should be only one occasion, the witness should only be called in chief

8 once. We feel it important that both sets of trials see the witness live

9 for a number of reasons -- live; in other words, the person actually

10 testifying -- and that -- I'm sorry, I was given a note about something

11 completely different. And that if necessary, there can be a division for

12 cross-examination, so that there isn't a joint cross-examination. In

13 other words, that counsel in the Stakic trial cross-examine and everybody

14 is there and then counsel in this trial cross-examine. But we are

15 concerned, deeply concerned, that this man shouldn't be required to do

16 this twice in chief. It's the same principle effectively. And so I'm

17 raising it at this stage. Again, there's been no real decision, because

18 in effect, the deposition motion was overtaken by events, as it turned

19 out. But on this one --

20 JUDGE AGIUS: Do I take it that there has already been a decision

21 taken by the Stakic Trial Chamber on number -- witnesses 3 and 7?

22 MS. KORNER: In the sense that -- there's been a decision taken

23 that that Trial Chamber has required a number of the witnesses to attend

24 live and give evidence, and made that order, I think, in fact, the day

25 before yesterday. And then there was some discussion about the other ones

Page 4572

1 but it's on the videolink, that at the moment -- I wouldn't call it

2 an order, exactly. I think it may well be that Your Honours may want to

3 look at the -- it was at the -- more or less at the beginning of the day's

4 proceedings, the interchange that went on. But certainly, that's what at

5 the moment appears to be intended. But it was more on the basis, I think,

6 that there'd been no discussion.

7 It was raised by Mr. Koumjian again, this question of the

8 witness's medical condition, and I think it was more or less left in

9 abeyance for some discussion. But I'm raising it -- I'm mentioning it

10 now. There's no timetable given for when this videolink would happen.

11 But I do think it needs some discussion.

12 [Trial Chamber confers]

13 JUDGE AGIUS: Mr. Ackerman, do you have anything to say about

14 this?

15 MR. ACKERMAN: Well, Your Honour, it comes, you know, without much

16 notice. It sounds to me like it is another attempt to do what both Trial

17 Chambers have already said you weren't going to do, and that is hold joint

18 hearings of evidence in these cases.

19 JUDGE AGIUS: Well, it's not -- the way I see it, if I am

20 understanding Ms. Korner correctly, is that the two Chambers will be

21 sitting at the same time in different courtrooms, and there will be a

22 screen somewhere, and Witness number 3 will be examined in chief by, I

23 don't know who, but via videolink, and Judge Schomburg, presiding over the

24 Trial Chamber dealing with the Stakic case and the whole court will be

25 watching the events and the examination-in-chief, following it on the

Page 4573

1 screen.

2 MR. ACKERMAN: That may be --

3 JUDGE AGIUS: And then when that's -- when that's over, there

4 would be a prior agreement between that Trial Chamber and this one, who's

5 going to go first by way of cross-examination. If it's the Stakic team

6 cross-examining, we will have nothing to do with it, unless you really

7 want to listen to that, because in reality, it's a cross-examination

8 belonging to another Tribunal -- another Chamber.

9 MR. ACKERMAN: I hadn't understood that to be the case.

10 JUDGE AGIUS: Yes. But that's how I understand it. Otherwise, it

11 would be deciding something against what we said we would like to see. I

12 mean, this way, this person, in other words, would not have to be examined

13 in chief twice. This is the whole thing. And otherwise, he's going to be

14 cross-examined separately. On the same day but separately.

15 MR. ACKERMAN: Well, the other thing that I would -- I can't give

16 you a full answer at this point. But the other thing I would say is I

17 seriously doubt that Judge Schomburg made a precipitous decision --

18 JUDGE AGIUS: I don't know. Because I haven't talked to

19 Judge Schomburg about this.

20 MR. ACKERMAN: I suspect that he had a reason for deciding that it

21 should be done -- that it should not be done this way, knowing what I know

22 about Judge Schomburg. So I think until we find out --

23 JUDGE AGIUS: No. In fact, what we were discussing is we have to

24 discuss with Judge Schomburg to see what the decision is.

25 Maitre de Roux?

Page 4574

1 MR. DE ROUX: [Interpretation] Mr. President, I find this situation

2 to be a very strange one, because the witness will in fact testify on the

3 matters that are quite different. So we can say whatever we like, and we

4 can imagine that there would be an examination that would be in common

5 which would be done by a common Prosecutor's team, and then there could be

6 an examination in both cases but it could be rather different. I don't

7 see that -- the logic that could be followed by the Prosecution. Should

8 we then divide the cross-examination, not knowing what the witness will

9 say, whether he's answering to one cross-examination or something else to

10 another cross-examination? Unless the Defence has access to the answers

11 that are made at the time of the -- of both cross-examinations.

12 Now, that's fine. But -- as far as I'm concerned. But I do find

13 it very strange, and I think that will be very hard to arrive at the truth

14 in these circumstances.

15 MS. KORNER: Well, Your Honour, I don't think I need to say

16 anything more about this, save to say this: This witness, again, gives no

17 direct evidence against either accused. So there's more -- in this case,

18 I mean, or indeed -- nor indeed, I think in the other one particularly

19 direct. But -- so it may very well be, I would hope, that neither Defence

20 counsel would require to do any further cross-examination in any event

21 once the Stakic team had finished.

22 JUDGE AGIUS: Anyway, we will --

23 Yes, Maitre de Roux.

24 MR. DE ROUX: [Interpretation] Mr. President, I hear something very

25 strange. We have a witness who has nothing to say against the accused.

Page 4575

1 Now, I find this very nice to hear everyone. I think the situation in the

2 Balkans would have many people testifying. But if this person has nothing

3 to say to help convict directly General Talic.

4 JUDGE AGIUS: The next thing you will tell us, Mr. De Roux, is ask

5 us for our permission to stay in Paris.

6 MS. KORNER: Your Honour, I don't think I need again to go through

7 direct evidence implicating the Defence --

8 JUDGE AGIUS: No, please, Ms. Korner. Please.

9 MS. KORNER: Yes. Anyhow, Your Honour, that's the situation, and

10 I'll leave it in Your Honours's hands to discuss the matter with Judge

11 Schomburg.

12 JUDGE AGIUS: Now, when do you plan -- because let's for the

13 moment assume that we are going independent ways, separate ways on this

14 matter, because so far we haven't decided anything. When do you intend to

15 offer the videolink evidence of Witness -- of the first of these two

16 witnesses?

17 MS. KORNER: Your Honour, absolutely no decision has been made at

18 all about that. It will take -- it won't be immediate, because it takes

19 quite sometime to set this thing up. There's no doubt about that. And I

20 think the Registrar is going to tell you there's no way you can have

21 videolink in two courts at the same time, because that's what was raised.

22 [Trial Chamber and registrar confer]

23 JUDGE AGIUS: [Microphone not activated] These witnesses -- I

24 assume that these witnesses will not be brought here to The Hague, because

25 otherwise --

Page 4576












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Page 4577

1 MS. KORNER: That's the whole point.

2 JUDGE AGIUS: -- it doesn't make sense. No?

3 MS. KORNER: The witness number 3 in particular, can't travel to

4 The Hague.

5 JUDGE AGIUS: Three weeks. Three weeks.

6 MS. KORNER: If he could come to The Hague, Your Honour, this

7 problem wouldn't be arising.

8 And Your Honour, then finally, lastly, on the witness that I wish

9 to -- Witness 7.35. As I say, he's testifying in closed session in the

10 Stakic trial for reasons that have been out -- we haven't yet applied for

11 protective measures in respect of Prijedor -- the Prijedor witnesses, but

12 we will -- we do apply for him to give evidence in closed session. We can

13 give Your Honours tomorrow the reasons why it was granted in the Stakic

14 trial. So --

15 JUDGE AGIUS: We can act on that very quickly, Ms. Korner.

16 MS. KORNER: Yes.

17 JUDGE AGIUS: I mean, it's --

18 MS. KORNER: Your Honours, I -- in fact, the motion, we can simply

19 copy and give to the Defence the reasons why. He's always testified,

20 because of his -- the nature of his evidence, in closed session.

21 JUDGE AGIUS: But that can be dealt with rather quickly.

22 MS. KORNER: Yes. We would apply on the day, Your Honour.

23 JUDGE AGIUS: So now I think we need to bring the curtains down.

24 Am I right?

25 MS. KORNER: Yes, Your Honour. He's in closed session.

Page 4578

1 JUDGE AGIUS: Yes, exactly.

2 We are going into closed session now. Yes, please.

3 It's a good thing I had a good lunch today.

4 [Closed session]

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Page 4579












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Page 4630

1 [redacted]

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3 [Open session]

4 THE REGISTRAR: We are in open session now.

5 JUDGE AGIUS: So we told you before that we are in a position,

6 having discussed it prior to this -- today's sitting and during -- also

7 during the break, we are in a position to hand down to you a verbal -- an

8 oral decision on Mr. Ackerman's motion to delay the production of

9 witnesses 7.223 and 224. And our decision is to reject the motion. A

10 motivated reason -- decision will be handed down as soon as possible, but

11 we are making an effort to hand down on the same day and simultaneously

12 with it a decision -- an elaborated decision also on Mr. Ackerman's motion

13 regarding Rule 70.

14 It's needless to say, but perhaps we ought to say it just the

15 same, that the Chamber is -- has as its main concern its duty to ensure

16 that there is a fair trial throughout. And it considers that, for the

17 time being, that there is enough in the rules and regulations to safeguard

18 this right without the need to delay the production of these two

19 witnesses. The rest comes after. Thank you.

20 As I told you before, tomorrow, since there is the consent of

21 everyone, we will meet at 1.15 and not at 2.15. Okay?

22 We will continue with this witness, but I think you -- no, you

23 can't speak to him. But does he know that he's going to spend the weekend

24 here?

25 MS. KORNER: I've asked someone to inform the VWS to give him the

Page 4631

1 really good news.

2 JUDGE AGIUS: I thank you. And see you tomorrow.

3 --- Whereupon the hearing adjourned

4 at 6.29 p.m., to be reconvened on Friday,

5 the 19th day of April, 2002, at 1.15 p.m.