Tribunal Criminal Tribunal for the Former Yugoslavia

Page 9688

1 Tuesday, 10 September 2002

2 [Open session]

3 [The accused entered court]

4 [The accused Momir Talic not present]

5 --- Upon commencing at 8.33 a.m.

6 JUDGE AGIUS: Yes. Madam Registrar, could you call the case,

7 please.

8 THE REGISTRAR: Case number IT-99-36-T, the Prosecutor versus

9 Radoslav Brdjanin and Momir Talic.

10 JUDGE AGIUS: Thank you.

11 Mr. Brdjanin, good morning to you. Can you hear me in a language

12 that you can understand?

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

14 I can hear you and understand you.

15 JUDGE AGIUS: I thank you.

16 I notice -- recognise that General Talic is not here. Has the

17 registrar -- has the registrar received any communication as regards his

18 absence?

19 THE REGISTRAR: No, I have not, Your Honour.

20 JUDGE AGIUS: Appearances for the Prosecution.

21 MS. KORNER: Your Honour, Joanna Korner, Andrew Cayley, Ann

22 Sutherland, assisted by Denise Gustin, case manager. Good morning, Your

23 Honours.

24 JUDGE AGIUS: Good morning to you.

25 Appearances for Radoslav Brdjanin.

Page 9689

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

2 along with Milan Trbojevic and Marela Jevtovic for Mr. Brdjanin.

3 JUDGE AGIUS: Good morning to you, Mr. Ackerman and the rest.

4 Appearances for General Talic.

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

6 Natasha Ivanovic-Fauveau for General Talic.

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

8 Do you have any communication as regards your client to make to

9 the Court?

10 MR. ZECEVIC: I would assume that we should go into the closed

11 session, Your Honour.

12 JUDGE AGIUS: Is there --

13 MS. KORNER: Well, Your Honour, just before that happen, I think

14 we need confirmation that General Talic is content the hearing goes ahead

15 as --


17 MS. KORNER: I think it ought to be done in open session.

18 JUDGE AGIUS: What I mean by "communication" is precisely that.

19 Because the rest will come out.

20 MS. KORNER: Yes.

21 JUDGE AGIUS: Is there the consent of your client, not being

22 present today, to proceed in his absence?

23 MR. ZECEVIC: Yes, Your Honours, we have a consent of our client

24 to proceed today without his being present in the court.

25 JUDGE AGIUS: I thank you.

Page 9690

1 Is there any objection forthcoming from the Prosecution or any one

2 of the Defence teams that we go into closed session for a while?

3 Ms. Korner?

4 MS. KORNER: I'm so sorry, Your Honour. There's -- no. In fact,

5 the suggest was --

6 JUDGE AGIUS: For a while, because it's an interim decision, which

7 will be reconsidered as we go along.

8 MS. KORNER: Yes. Well, Your Honour, we've suggested all along

9 that it should be -- in fact we made other suggestions that it should

10 be even more private, but we're happy, yes.

11 JUDGE AGIUS: Okay. I thank you.

12 Madam Registrar, please can we go into closed session for a while

13 until further instructions.

14 [Closed session]

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Page 9691









9 Pages 9691-9712 redacted. Closed session

















Page 9713

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17 [Open session]

18 JUDGE AGIUS: Yes. I suppose we can start. I understand we're

19 going to start with the motion of General Talic, regarding the part of the

20 testimony of Mr. Filipovic relating to the events experienced in Stara

21 Gradiska military camp. And I give the floor to Mr. Zecevic -- or

22 Madam Fauveau, yes. Please try to restrict your submissions to about ten

23 minutes.

24 MS. FAUVEAU-IVANOVIC: [Interpretation] Yes, Mr. President.

25 JUDGE AGIUS: [Previous translation continues] ... we will discuss

Page 9714

1 it. Thank you.

2 MS. FAUVEAU-IVANOVIC: [Interpretation] I think that I'll be very

3 brief, because our arguments are in fact very simple. This Tribunal

4 rendered a decision on the 23rd of November, 2001 and refused to the

5 Prosecutor amendment of the indictment and refused to have facts

6 introduced in this indictment, facts that have been committed in Stara

7 Gradiska.

8 The reason for this decision, according to the Chamber, is that

9 none of the Prosecutor's allegation in the indictment establishes

10 connections between General Talic and the events that took place outside

11 of the territory of Bosnia. This decision was confirmed by your order,

12 Mr. President, of the 8th of December, 2001, in which you judged that the

13 indictment -- that the Prosecution is not competent to judge about an

14 event that took place in the prison -- in the military prison in Stara

15 Gradiska. It is our opinion that the pre-trial phase has reasons to exist

16 in order to clarify the indictment and to allow the accused to be familiar

17 with facts with which he is reproached and to ensure the expeditious

18 proceedings. And during the pre-trial proceedings, this problem was a

19 subject of two decisions, two identical decisions, and I think that this

20 is a matter that was ruled upon, and to allow the Prosecutor today to

21 introduce events concerning Stara Gradiska would mean

22 allowing the Prosecution not to respect the decisions of

23 this Tribunal, and this would result in a lack of respect for the judicial

24 procedure before this Tribunal.

25 I think that the Prosecution wants to introduce events relating to

Page 9715

1 the distinction that this Tribunal makes in its case law between facts that

2 have to be included in the indictment and evidence that shouldn't be

3 included. It is true that the case law of this Tribunal makes this

4 difference. Nevertheless the evidence has to concern the alleged facts in the

5 indictment and only the facts alleged in this indictment. The Prosecutor

6 pretends that he does not reproach General Talic with the events in Stara

7 Gradiska. It is a matter of fact that show the general context. We don't

8 agree with this argument for a simple reason: According to the

9 Prosecution's arguments, the 5th Corps allegedly had under its command the

10 Stara Gradiska area, and General Talic was the commander of the 5th

11 Corps. Given this situation, in fact, the Prosecution reproaches

12 General Talic with what took place in Stara Gradiska and considers him

13 responsible for what took place in Stara Gradiska. Defence cannot allow

14 these facts to be introduced in this case because Defence is not in a

15 position to and is not prepared to respond to these facts. These facts

16 are not included in the indictment, and in addition they are the subject

17 of a decision of the Tribunal which rejected, which didn't allow the

18 Prosecutor to introduce these facts in the indictment. And given this

19 case, I don't think that there is a reason for me to expand on this

20 debate, and I don't think that we should allow the Prosecutor to obtain a

21 decision which would be contrary to the decision which has already been

22 rendered by this Tribunal.

23 JUDGE AGIUS: I thank you.

24 Mr. Cayley.

25 MR. CAYLEY: Yes. Thank you, Your Honours. I, too, will be very

Page 9716

1 brief.

2 As you know and as, I think, Ms. Ivanovic has made clear, there

3 are no specific charges within the indictment relating to the events at

4 the Stara Gradiska prison, and we readily acknowledge that. But from the

5 outset, and referring to your decision, Judge Agius, of the 7th of

6 December, 2001, and in reading the -- I think it's about the fourth

7 paragraph. It states that "The Prosecution would not be entitled to rely

8 upon any events alleged to have occurred at the Stara Gradiska military

9 prison." We would argue that that particular part of the order relates to

10 specifically relying on those events to sustain a specific charge within

11 the indictment. We acknowledge that Talic would not be held directly

12 criminally responsible for the events in Stara Gradiska. However, having

13 said all of that, the events which took place in Stara Gradiska are an

14 integral part of the account and the story of a number of witnesses who

15 were forcibly transferred or deported out of the Krajina region and onto

16 the Manjaca camp. Stara Gradiska was a stopping-off point for them where

17 crimes were committed, as Mr. Filipovic, I think, indicated in his

18 evidence, and a number of witnesses were transferred in this manner. And

19 in my submission, it would be an inaccurate portrayal of the evidence to

20 you if we were to, as it were, cut out a portion of a witness's testimony

21 that is relevant to understanding the entire context in which all of these

22 crimes took place and to, as it were, interfere or tamper with a witness's

23 evidence of his account, his story of what happened to him during this

24 time period.

25 Secondly in respect of the matter as to whether or not the accused

Page 9717

1 General Talic was on notice of the events in Stara Gradiska. By virtue of

2 the indictment, by virtue of the evidence, he was on notice that Stara

3 Gradiska was a part of this case because witness statements were disclosed

4 to him which referred to peoples, individual, witnesses passing through

5 this particular camp. So he was aware of that. He did -- he did know

6 that evidence would be led in respect of Stara Gradiska camp.

7 I think it's also worth mentioning to you Rule 93 of the Rules of

8 Procedure and Evidence, which I'm not sure if you have that in front of

9 you. Rule 93 is a rule which envisages "Evidence of a consistent pattern

10 of conduct relative to serious violations of international humanitarian

11 law, under the Statute, may be admissible in the interests of justice.

12 Acts tending to show such a pattern of conduct shall be disclosed by the

13 Prosecutor to the Defence pursuant to Rule 66."

14 It's clear that what happened in Stara Gradiska is evidence of a

15 consistent pattern of serious violations of international humanitarian law

16 that were taking place in the Krajina, with which this case is principally

17 concerned, and that those acts were disclosed to General Talic under Rule

18 66 by virtue of the witness statements that were transmitted. And we

19 would argue that even if this evidence cannot be directly relied upon by

20 the Prosecutor to sustain charges - and we acknowledge that - it is

21 evidence of a consistent pattern of conduct across the Krajina region,

22 which we would argue should be admissible in the interests of justice.

23 Ultimately, Your Honours, you are professional Judges. There is

24 no jury here. You have the experience and the expertise to give this

25 evidence the weight that it deserves. It may not deserve the weight of

Page 9718

1 evidence which specifically relates to charges with which General Talic

2 himself has been charged, but it may well be evidence that you believe in

3 the interests of justice should be considered within the overall context

4 of what took place in this region in 1992. That would be my submission.

5 Thank you, Your Honours.

6 JUDGE AGIUS: Madam Fauveau, would you like to reply with regard

7 to the submission made by Mr. Cayley to the Rule -- which number? Rule

8 93.

9 MS. FAUVEAU-IVANOVIC: [Interpretation] Yes, Mr. President. I'll

10 be very brief once more. I think that it would be in the interest of

11 justice for the accused to be well aware of what he's being charged with,

12 and it would be in the interests of justice for the decisions to be

13 respected, as far as Rule 93 is concerned. This is exactly what I wanted

14 to say earlier on. The events in question aren't events that can show

15 that the accused -- the accused's behaviour within a general context,

16 because these are events that took place outside the territory which is in

17 the indictment. This territory requires special investigations. The

18 territory in question is a very complicated territory. It consists of the

19 Republic of Croatia, the Serbian Republic of Croatia and the United

20 Nations. Without knowing exactly that these facts would be in the

21 indictment, I don't see why the Defence should have to spend money and

22 time on investigating this.

23 JUDGE AGIUS: Yes, Mr. Cayley.

24 MR. CAYLEY: Could I add one last thing. And it is a matter which

25 my learned friend actually acknowledges in her own motion. We say, in the

Page 9719

1 evidence that we disclose, that Stara Gradiska was the headquarters of the

2 5th Corps, subsequently the 1st Krajina Corps, from December of 1991 to

3 June of 1992. It was General Talic's forward headquarters, that was

4 co-located with this particular camp. If we're talking about evidence,

5 the matters that she's referred to. That is a matter for you on the

6 merits of evidence, but nevertheless that is something that has been

7 disclosed. So it's not some far flung place that we have suddenly

8 introduced into the evidential tapestry. That is a fact. And a number of

9 prisoners, a number of individuals who were detained in Manjaca will

10 testify that they passed through Stara Gradiska on the way to Manjaca. So

11 I would only add those points, Your Honour, in terms of the evidence

12 itself. Thank you.

13 JUDGE AGIUS: Anything else? Any further submissions?

14 Mr. Ackerman, do you want to add something?

15 MR. ACKERMAN: Your Honour, only that I join in the motion of

16 General Talic.

17 JUDGE AGIUS: Okay. Thank you.

18 Any further submissions?

19 MS. FAUVEAU-IVANOVIC: [Interpretation] No, Mr. President.

20 JUDGE AGIUS: Okay. We should be in a position to hand down an

21 oral decision shortly. We need to talk a little bit. We did discuss the

22 system of conduct yesterday in chambers, amongst ourselves. I think we

23 need to discuss a little bit further and then we will be able to hand down

24 the decision later on, either later on today or first thing tomorrow

25 morning before -- before we start, whatever.

Page 9720

1 Yes, Mr. Cayley.

2 MR. CAYLEY: Mr. President, I know you don't like apologies. But

3 just the reason for my delay was the case -- the other case I was involved

4 in actually went on. And I thought you wanted to start earlier.

5 JUDGE AGIUS: Mr. Cayley, I'm not dealing with children. I know

6 that you are starting from Ms. Korner, right down to the least in the

7 hierarchy, that you have been extremely responsible. So I do not doubt

8 your -- you don't need to. When I will have reason, which I hopefully

9 never have, to censor anyone one of you or to demand an apology, I will

10 not hesitate. But until now, I don't. Certainly not. Neither your team

11 nor any of the Defence teams, either of the Defence teams.

12 So that, having been said, can we go into -- we don't need to.

13 Mr. Zecevic, in preparation for what we will need -- what we will

14 be doing at -- starting from half 12.00, I would require from you on

15 behalf of your client.

16 MR. ZECEVIC: Yes, Your Honour.

17 JUDGE AGIUS: A specific declaration releasing the witness and any

18 further witnesses from professional secrecy.

19 MR. ZECEVIC: Okay.

20 JUDGE AGIUS: Okay? You understand why.

21 MR. ZECEVIC: Yes, I understand, of course.

22 JUDGE AGIUS: Because this is no longer a merit of the piece of

23 paper that we had in front of us this morning. We're going deeper into

24 that.

25 And if there are additional persons coming forward, as there may

Page 9721

1 be, I also want to know that your client is prepared to waive any of his

2 rights, as regards access to third parties, to whatever information they

3 may require to be able to assist this Chamber.

4 MR. ZECEVIC: I understand, Your Honour. And I will take the

5 necessary measures to inform my client and get the instructions. Thank

6 you.

7 JUDGE AGIUS: All right. So I -- is there anything else we can do

8 now before -- All right. So then I suppose we can reconvene five

9 minutes before half 12.00, and hopefully we should be in a position to

10 hand down the decision on Stara Gradiska.

11 So we'll start in open session first. We'll start in open session

12 first, and then we'll continue in closed session. All right? Thank you.

13 --- Break taken at 11.38 a.m.

14 --- On resuming at 12.34 p.m.

15 JUDGE AGIUS: So the Stara Gradiska. We have concluded our

16 discussions in camera, the three Judges, and we are agreed completely on

17 what decision to hand down, and it will be an oral decision, but I would

18 rather prefer to hand it down tomorrow morning rather than now because I

19 would still prefer to have some points jotted down before I start

20 pronouncing our decision. So tomorrow morning, first thing, please expect

21 the decision.

22 Now, I think what we're going to discuss now will require us to go

23 into closed session once more. So my apologies to the members of the

24 public. It's a delicate moment, delicate issue that we have to discuss

25 which is strictly personal to one of the accused and therefore we need to

Page 9722

1 go into closed session.

2 So Madam Registrar, could we go into closed session, please.

3 Thank you.

4 [Closed session]

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Page 9723








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22 --- Whereupon the hearing adjourned at

23 1.58 p.m., to be reconvened on Wednesday,

24 the 11th day of September, 2002, at 9.00 a.m.