Tribunal Criminal Tribunal for the Former Yugoslavia

Page 8413

1 Tuesday, 16 July 2002

2 [Open session]

3 --- Upon commencing at 9.04 a.m.

4 [The accused entered court]

5 JUDGE AGIUS: Call the case, please.

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

7 is the case number IT-99-36-T, the Prosecutor versus Radoslav Brdjanin and

8 Momir Talic.

9 JUDGE AGIUS: I thank you, Madam Registrar.

10 Mr. Brdjanin, good morning to you.

11 THE ACCUSED BRDJANIN: [Interpretation] Good morning,

12 Your Honours.

13 JUDGE AGIUS: Can you hear me in a language that you can

14 understand?

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

16 JUDGE AGIUS: I thank you. And you may sit down. General Talic,

17 good morning to you, too. Can you hear me in a language that you can

18 understand?

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

20 Yes, I can.

21 JUDGE AGIUS: I thank you, and you may sit down. Appearances for

22 the Prosecution.

23 MR. CAYLEY: May it please Your Honours, my name is Andrew Cayley,

24 I appear on behalf of the Prosecutor with Ms. Denise Gustin and

25 Mr. Hasan Younis from the trial support unit. Thank you.

Page 8414

1 JUDGE AGIUS: I thank you. And good morning to you.

2 Appearances for Radoslav Brdjanin.

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

4 I'm here with Milan Trbojevic and Marela Jevtovic. It's nice to be back.

5 JUDGE AGIUS: Good morning to you. Appearances for General

6 Talic.

7 MR. ZECEVIC: Good morning, Your Honours. Slobodan Zecevic and

8 Natasha Ivanovic-Fauveau for General Talic.

9 JUDGE AGIUS: Thank you, and good morning to you.

10 Yes, Mr. Ackerman.

11 MR. ACKERMAN: Your Honour, when I arrived yesterday, I had an

12 opportunity to read the transcript from yesterday's hearing. And I read

13 with interest what Ms. Korner had to say about the AID documents. And I

14 must say that I'm totally baffled at this point. I raised the issue out

15 of an article that appeared in Slobodna Bosna some time ago. The response

16 from the Prosecutor's office was we will look into that. The next thing

17 we heard from the Prosecutor's office was "we have talked with the

18 Prosecutor's office in Sarajevo, and they are sending us a large quantity

19 of material, maybe as much as four boxes. Then the next thing we heard

20 was the four boxes have arrived and we are going through it. And the next

21 thing we heard was those four boxes have nothing to do with the case.

22 Somewhere in there, there is misinformation, I don't know where. But

23 somewhere in there, there is. And I don't know how it happened, but I

24 think Your Honours and the Defence deserve an explanation about that.

25 JUDGE AGIUS: Mr. Cayley.

Page 8415

1 MR. CAYLEY: Mr. President, I think the situation was explained

2 satisfactorily yesterday by Ms. Korner. I certainly understood exactly

3 what was said. The other material that was sent from the government in

4 Sarajevo has absolutely nothing to do with this case. There is a small

5 amount of material, as Ms. Korner stated, that is in connection with the

6 case that Mr. Ackerman raised, and we are going to provide that to the

7 Defence. That's the position.

8 JUDGE AGIUS: Mr. Zecevic.

9 MR. ZECEVIC: Your Honours, we are fully joining with what my

10 learned colleague Mr. John Ackerman has just said. The point of the

11 matter if I correctly understand is that we have asked for the certain

12 documents. We are informed by the OTP that these documents have not

13 arrived, but some other documents where in this bunch of documents there

14 are some documents which will be disclosed to us. We are happy with the

15 disclosure of this small amount of documents, but still, the question of

16 the documents which have been requested is still open. Whenever these

17 documents can be given to the Defence, we would very much appreciate any

18 kind of information about that. Thank you, Your Honour.

19 JUDGE AGIUS: Mr. Zecevic, I don't think you are correct in

20 stating that you had requested any particular documents. I mean, the

21 matter was first raised by Mr. Ackerman, and as a response initially, the

22 Prosecution and Mr. Ackerman at that point in time, Mr. Ackerman said that

23 he will be investigating this matter further because all he had was this

24 excerpt or cutting from the Slobodna Bosna. And following that, the

25 Prosecution said that they knew nothing about it, and that they will

Page 8416

1 investigate, too. And next bit of information was what Mr. Ackerman just

2 referred to, that I think it was Ms. Korner who came back at a certain

3 point in time saying that after a question was put once again by

4 Mr. Ackerman weeks later, Ms. Korner said that they had sort of contacted

5 the Sarajevo office, and the matter was being looked into. And as a

6 result, they were informed to expect something like four boxes of

7 documentation.

8 Now, I have no reason to doubt at this point in time, and I don't

9 think either Mr. Ackerman or you have given me -- given us reason to doubt

10 Ms. Korner's statement yesterday that, first, the majority of the

11 documents contained in those boxes belong to another case that has nothing

12 to do with this. That's number one. And secondly, that whatever may be

13 relevant to the case that Mr. Ackerman had referred to in the first place,

14 albeit referring to 1994 or some later date, will be -- and particularly

15 to identity cards, the issue of identity cards will be disclosed to you

16 in the original language because there is this kind of tacit agreement to

17 it. But frankly, things being explained in this manner, I can't see how I

18 can ask for further information. I mean, it may be the only case

19 that -- only thing that I can suggest is for the Prosecution to make

20 certain with the office of the prosecutor in Sarajevo that no further

21 information is in their possession, that this is all that they possessed

22 and all that they have transferred over. And perhaps explain why

23 Ms. Korner in the first place may have been misled into thinking and

24 misleading us into thinking that we were going to have four boxes of

25 material on this -- you may sit down -- pending case in Sarajevo. I don't

Page 8417

1 know. But frankly until I have reason to believe that there is either the

2 Prosecution is not fulfilling its obligations and its duty towards the

3 Defence and towards the Tribunal itself, I don't know what to do frankly

4 except make this suggestion. Yes, Mr. Ackerman.

5 MR. ACKERMAN: Your Honour, please understand I'm not making an

6 accusation against Ms. Korner or Mr. Cayley. I have a question which I

7 think is a legitimate one, and that is how is it that we were told that

8 there was contact with the Prosecutor's office about this matter, and the

9 Prosecutor's office was sending all of the documents, and then we were

10 told they arrived. There were four boxes of them, there were a lot of

11 them. And then yesterday we were told they have nothing to do with this

12 case. How did they get here? Did the Prosecutor's office misunderstand

13 or what?

14 JUDGE AGIUS: Probably something like that must have happened, or

15 else -- yes, Mr. Cayley.

16 MR. CAYLEY: Your Honours, one thing I would say, is let's be

17 clear about this, and let's actually address this issue within the rules.

18 That's the context that I would place what Mr. Ackerman is saying. The

19 essential obligation that we have is under Rule 68. Are we in possession

20 of any material which tends to suggest the innocence or mitigate the guilt

21 of the accused or may affect the credibility of Prosecution evidence.

22 That is our obligation. And we address that material on that basis. The

23 bulk of that material has absolutely nothing to do with this case.

24 Now, explaining how we were led to believe that four boxes were

25 relevant to that Prosecution case, I need to speak to other members of

Page 8418

1 staff about whether I can discuss operational issues in this court. But

2 as a general statement, you must understand, we receive a huge amount of

3 material all the time from the Bosnian government. Constantly we are

4 obviously receiving material.

5 But that is the essence of our obligation. We are only obliged to

6 do that. I remember Mr. Ackerman stating last week that it was not for us

7 to decide whether it was relevant. That has absolutely nothing to do with

8 it. Our obligation is to decide whether that material falls within Rule

9 68, and if it doesn't, then we have no obligation to show that to the

10 Defence. And in this instance, as I say, the bulk of that material has

11 absolutely nothing to do with this case. There is a very small amount of

12 material relating to the Prosecution which Mr. Ackerman first raised and

13 we will disclose that to the Defence.

14 JUDGE AGIUS: That's not the point, Mr. Cayley. The point raised

15 by Mr. Ackerman is not that. I would imagine that Mr. Ackerman, if this

16 is the situation, Mr. Ackerman and Mr. Zecevic will have no option but to

17 accept the situation as it is. The whole point that has been made is how

18 come all of a sudden, instead of being told this is the material from the

19 four boxes. We have selected or put aside, selected the wheat from the

20 chaff. This is what we are disclosing to you, but there were four boxes

21 of material. And the information now is yes, there was four -- there were

22 four boxes of material, but these have absolutely nothing to do with the

23 case. The impression that we were given, probably because that was the

24 impression that your office was given from the office in Sarajevo, was

25 that the four boxes being sent contained material relevant to the point

Page 8419

1 raised by Mr. Ackerman. So what Mr. Ackerman is suggesting now or is

2 asking for is whether it is the case of some further inquiry between -- by

3 your office with your corresponding office in Sarajevo to make sure that

4 there is no further material that has been withheld over there and not

5 sent over yet, or that there is not this material in some other four boxes

6 that may have arrived here, but these are not the four boxes that have

7 been opened, or some explanation why you may have in the first place

8 understood that four boxes full of material on this issue were on the way.

9 This is the whole issue. How come that instead of finding four boxes full

10 of material, we found four boxes full of irrelevant material, at least

11 irrelevant as far as this case is concerned.

12 MR. CAYLEY: As I just stated, Mr. President, it's an operational

13 matter and I will see what I can see. I know what that material is, but I

14 don't know whether I'm in a position to actually state in Court what it

15 is.

16 JUDGE AGIUS: I don't think we are interested or Mr. Ackerman is

17 interested in what that material -- other material is. What Mr. Ackerman

18 is interested in knowing, how come this has come about the way it has come

19 about, how come this has happened instead of -- how come that were told to

20 expect four boxes full of material on this Sarajevo pending case issue,

21 and instead it seems that the documents that have arrived have got

22 absolutely nothing to do with that case, bar a few dealing with forgery of

23 identity cards dating to a period which is of no relevance to this case in

24 any case. This is just further -- yes, Mr. Ackerman.

25 MR. ACKERMAN: Your Honour, to now put this in the context of Rule

Page 8420

1 68 is fine. There's nothing I can do about that. I can't even complain

2 about that but it had not been in that context before. It had been in

3 the context of, what Mr. Ackerman has raised is a very serious matter,

4 Your Honours, and we will investigate it and we will find out what's going

5 on and we will bring that all to you so you will know exactly what the

6 truth of that is. It has now become: No, no, no that's not what we're

7 going to do. What we're going to do is comply with Rule 68. If there's

8 anything that is exculpatory to the Defence we'll give it to them,

9 otherwise, we've completed our burdens in this regard. And that's fine.

10 If the Prosecution wants to take that position I must accept it. But

11 that's different from the initial cooperative position that they took.

12 JUDGE AGIUS: Yes, you are right.

13 MR. ACKERMAN: And I would like to know if it's possible whether

14 there is any material that hasn't been sent here yet that might fall

15 within even a Rule 68 category, because obviously what they received is

16 not what they were told what they were going to be sent, apparently. But

17 I don't know. This is all mystery to me at this point.

18 JUDGE AGIUS: Okay. I think we can close the matter here. I

19 think Mr. Cayley can refer back the whole discussion, the whole debate,

20 basically what needs to be done. And that's with the cooperation of the

21 Prosecution, is to see what brought about this misunderstanding in the

22 first place. And secondly, if behind the -- or beside the

23 misunderstanding, there are further documents that can be made available.

24 That's all. In or outside of the sphere of operation of Rule 68, because

25 Mr. Ackerman is right. The whole idea behind the response of the

Page 8421

1 Prosecution in the first place was not within the -- necessarily within

2 the purview of Rule 68, but it was more open, more generic.

3 Anyway, we can close down the curtains, pull down the curtains.

4 Move into closed session, and bring in the witness.

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19 --- Whereupon the hearing adjourned at 1.47 p.m., to

20 be reconvened on Wednesday, the 17th day of July,

21 2002, at 9.00 a.m.