Tribunal Criminal Tribunal for the Former Yugoslavia

Page 9759

1 Wednesday, 11 September 2002

2 [Open session]

3 [The accused entered court]

4 [The accused Momir Talic not present]

5 --- Upon commencing at 10.27 a.m.

6 JUDGE AGIUS: Good morning, everybody.

7 Madam Registrar, could you call the case, please.

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

9 Radoslav Brdjanin and Momir Talic.

10 JUDGE AGIUS: Mr. Brdjanin, can you hear me in a language that you

11 can understand?

12 THE ACCUSED BRDJANIN: [Interpretation] Good morning, Your

13 Honours. I can hear you and understand you.

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

15 Appearances for the Prosecution.

16 MR. CAYLEY: Yes. Good morning, Mr. President, Your Honours.

17 Andrew Cayley, Ann Sutherland, and Denise Gustin for the Prosecution.

18 JUDGE AGIUS: Good morning to you.

19 Appearances for Radoslav Brdjanin.

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

21 Milan Trbojevic and Marela Jevtovic.

22 JUDGE AGIUS: Good morning to you.

23 Appearances for General Talic.

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

25 Natasha Ivanovic-Fauveau for General Talic.

Page 9760

1 JUDGE AGIUS: For the record, General Talic is today absent, like

2 he was yesterday, and due to illness.

3 So let's start our business. I think we promised you yesterday an

4 oral decision on the Stara Gradiska motion, which we are going to hand

5 down now. This is, as I explained, an oral decision on a motion filed by

6 the accused General Talic on September 6th, 2002 in which he asks for

7 three remedies from this Trial Chamber. In the first place he asks the

8 Trial Chamber to remove from the transcript of the sitting of September 5,

9 2002 all references made to the Stara Gradiska military camp, which is

10 situated inter alia in Croatia.

11 In the second place, he asks this Trial Chamber to issue an

12 injunction against the Prosecution barring it from bringing forward in

13 future any evidence related to the said Stara Gradiska military camp.

14 Lastly, this Trial Chamber is being asked by General Talic to

15 postpone the cross-examination of Witness 7.105 until a decision has been

16 taken on the present motion.

17 The basis of General Talic's motion and requests lies in two

18 decisions handed down by this Chamber, on November 23rd, 2001 and December

19 7th, 2001 respectively. The first of these two decisions had inter alia

20 rejected a request by the Prosecutor to amend para 40 of the then-current

21 indictment - if I remember well, it was the fourth amended indictment - in

22 the sense as to insert a specific reference to "a military detention

23 facility in Stara Gradiska, Croatia (Stara Gradiska military prison)."

24 The second of these decisions highlighted that the ultimate effect of the

25 previous decision of this Chamber was that every reference in para 40 of

Page 9761

1 the fourth amended indictment to the Stara Gradiska military camp was to

2 be struck out in its entirety from the said para 40 and the Prosecution

3 was accordingly instructed to file a corrected version of the fourth

4 amended indictment reflecting what has just been stated. That is, the

5 orders made by the Trial Chamber effectively in its decision on November

6 23rd.

7 One question to the interpreters: Am I going too fast or is it

8 okay? The French, am I going too fast?

9 THE INTERPRETER: A little bit, Your Honour.

10 JUDGE AGIUS: A little bit, okay. And the Serbo-Croat?

11 THE INTERPRETER: A little bit also.

12 JUDGE AGIUS: So I will moderate my speed.

13 It's to be noted for the record that no written pleadings relative

14 to the present motion were filed but oral submissions were made and heard

15 during yesterday's sitting.

16 The arguments and submissions of General Talic are essentially and

17 comprehensively described and explained in the motion itself and the

18 accompanying annexes, to which this Chamber is making specific reference

19 to avoid repetition. The oral submissions were more or less a short

20 resume of those arguments and submissions.

21 The Prosecution's main arguments are the following. First,

22 although the two above-mentioned decisions of this Trial Chamber have not

23 and are not being contested, the legal consequence does not entail a total

24 restriction or prohibition on the Prosecution from bringing forward all

25 kinds of evidence related to the Stara Gradiska military camp and the

Page 9762

1 events that occurred therein when these prove to be relevant.

2 Number 2, this particular military camp fell under the control of

3 the 1st Krajina Corps of which General Talic had the command and was

4 therefore responsible.

5 Then the Prosecution submits also, in addition, that it had

6 disclosed to General Talic and his Defence team all the documentation in

7 its possession under Rule 66 which tended precisely to prove this fact in

8 a way that he must have been aware of what was being pleaded or asserted

9 by the Prosecution.

10 Lastly, it is being submitted by the Prosecution that in any

11 event, the Prosecution retains its right under Rule 93 to bring forward

12 evidence of a consistent pattern of conduct which is relevant to serious

13 violations of international humanitarian law under the Statute, if these

14 are in the interest of justice and are admitted by the Chamber on that

15 basis.

16 The Chamber believes that it is important to highlight the

17 substance, the real substance, and the gist of the first of the two

18 decisions of its two decisions referred to earlier, and the substance and

19 the gist can be synthesized as follows.

20 First, there was no question at all that the indictment did not

21 specifically allege or plead that the Stara Gradiska military camp was

22 operated or administered by the 1st Krajina Corps, for which General Talic

23 was responsible.

24 Point 2: The submission of the Prosecution that this

25 notwithstanding, the indictment read as a whole made it abundantly clear,

Page 9763

1 that his command, that is General Talic's command, included the facility

2 in Croatia, was not accepted by this Trial Chamber which based its

3 decision inter alia on three basic considerations.

4 Consideration number 1: There was no allegation in the indictment

5 that any of the killings therein mentioned and specified related or were

6 committed in -- to, or in the Stara Gradiska military camp. Consideration

7 number 2: Nor were any of the allegations of the infliction of serious

8 body harm or mental harm brought in and described in the indictment

9 against the two accused related in any way to that particular military

10 camp. Point 3, consideration number 3 of this Trial Chamber in its

11 November 23rd decision, that it could not be inferred from the indictment

12 that an assertion was being made that the 1st Krajina Corps was the

13 particular entity within the VRS which directed the staffing and operation

14 of all the camps or, in particular, the Stara Gradiska military camp.

15 In that particular decision, therefore, this Trial Chamber

16 concluded that the indictment, as it was then, namely this is the 4th

17 Amended Indictment which the Prosecution was seeking to amend, did not

18 plead the material fact, even by necessary implication, which was

19 essential to establish that General Talic was criminally responsible for

20 the events that occurred in Croatia.

21 This Chamber also notes that one of the arguments brought forward

22 by the Prosecution in the course of the pleadings preceding that

23 particular decision of this Trial Chamber, that is, the November 23rd, was

24 precisely that the evidence disclosed to the accused showed or purported

25 to show that the Stara Gradiska military camp was administered by the 1st

Page 9764

1 Krajina Corps and was thus under the direct command of General Talic and,

2 in addition, that persons detained in the Autonomous Region of Krajina

3 were kept in that prison. This same submission, as explained earlier, was

4 repeated here in this courtroom during yesterday's sitting by the

5 Prosecution.

6 This Trial Chamber is bound, and makes it clear that it is bound,

7 by its two previous decisions and as a result cannot allow a situation to

8 obtain whereby what is thrown out of the door as unacceptable and in no

9 unclear terms is then allowed to re-enter through the window. The Trial

10 Chamber has no doubt at all that the overall legal effect of its two

11 previous decisions is that if the decision of this Trial Chamber was that

12 if there is no indication at all in the indictment directly or by

13 implication of any of the material facts mentioned earlier, then

14 consequently the Prosecution is barred from bringing forward evidence

15 tending to prove facts related to the Stara Gradiska military camp or

16 events that may have occurred in that military camp. This also

17 neutralises as a consequence the Prosecution's contention that in any

18 event it could invoke Rule 93 relative to evidence of consistent pattern

19 of conduct. I repeat that there is no pleading in the indictment itself

20 that there was any wrongdoing in the Stara Gradiska military camp.

21 The main submission of General Talic, therefore, is well founded

22 and will be accepted with the following provisos: This Trial Chamber

23 distinguishes between the material facts which are at the foundation of

24 General Talic's motion and facts which are merely historical and pertinent

25 to the witness in question and which need to be retained in the transcript

Page 9765

1 of his evidence for historical and chronicle purposes. It is necessary,

2 for example, to retain in the transcript that he affirms that prior to his

3 transportation to Manjaca camp he was detained in the Stara Gradiska

4 military camp and for how long. Equally important is his statement, his

5 affirmation that during his stay in Stara Gradiska military camp he

6 received some military -- some medical treatment there as well as some

7 other events which fall within the parameters of what has just been stated

8 by this Trial Chamber and which in its opinion would not be objectionable

9 in terms of its two previous decisions.

10 The Trial Chamber will review in detail the entire transcript of

11 the 5th of September and will in due course indicate which parts are

12 accordingly being expunged. For the time being it is being made clear

13 that any reference to who was in control of that camp, who administered

14 that camp, who were the guards, what ill-treatment the witness and others

15 may have received in that camp, the conditions in that camp, and other

16 related facts will be expunged.

17 Concluding, the Chamber decides as following: The first request

18 of General Talic contained in his motion, namely to remove from the

19 transcript of the sitting of September 5 all references made to Stara

20 Gradiska, which is situated in Croatia, is being decided in accordance

21 with the provisos that I have just hinted at.

22 The second request, namely to issue an injunction against the

23 Prosecution, barring it from bringing forward in the future evidence

24 related to Stara Gradiska, is being accepted in the terms of what has been

25 stated before by me in this oral decision.

Page 9766

1 Lastly, the request to have the cross-examination of Witness 7.105

2 delayed pending the decision, I think it has been superseded by the events

3 and need not be decided and is not being decided.

4 And that determines the matter which this Chamber was seized, and

5 I think we can proceed with further business.

6 So -- yes, Mr. Zecevic.

7 MR. ZECEVIC: If it pleases the Court, Your Honours, I would have

8 to -- I have three things which I would like to inform this Trial Chamber

9 about.


11 MR. ZECEVIC: May I?

12 JUDGE AGIUS: Yes, of course.

13 MR. ZECEVIC: Thank you, Your Honours.

14 JUDGE AGIUS: I have -- I have information to give as well,

15 but ...

16 MR. ZECEVIC: Well, I -- I can do it any --


18 MR. ZECEVIC: I didn't want to supersede you, of course, Your

19 Honours.

20 JUDGE AGIUS: Of course not.

21 MR. ZECEVIC: We have -- we have been in contact with our client

22 yesterday in the afternoon. Our client has informed us of the following,

23 which I think would be of importance to this Trial Chamber: Our client

24 is -- has waived his right of presence for the whole week and for the --

25 for the witness Muhamed Filipovic and two coming witnesses. He is ready

Page 9767

1 to waive his rights in the future as well.

2 What we are suggesting, if this would be acceptable by this Trial

3 Chamber and the other parties in this courtroom, is that each Thursday

4 when we receive the list of the new witnesses which are going to be coming

5 the week after, that we get the specific instructions on these witnesses

6 from our client and inform accordingly the Trial Chamber during the

7 session on Thursday or latest by Monday morning. If that would be

8 acceptable, I think that would resolve a huge procedural problem which we

9 are now facing.

10 JUDGE AGIUS: Let's take your points one by one. Can I ask you to

11 stop here for the time being.

12 MR. ZECEVIC: Yes, of course.

13 JUDGE AGIUS: Mr. Cayley, if you want to answer now, answer now.

14 If you want time to consult with Ms. Korner, then obviously we will give

15 you time.

16 MR. CAYLEY: Well, I mean, Your Honour, I think this issue is of

17 enormous impact in this trial, and I think it's something that needs

18 discussion. I mean, I don't think it's just as straightforward --

19 JUDGE AGIUS: Exactly. I mean --

20 MR. CAYLEY: -- as the general giving a waiver that we can carry

21 on with the trial. So I think it needs some thought, certainly in our

22 office before we can give any response. Thank you.

23 JUDGE AGIUS: So that's what I -- I expected.

24 Mr. Ackerman.

25 MR. ACKERMAN: Your Honour, I think -- I was thinking about this

Page 9768

1 last night. Your Honours might want to consider a more informal meeting

2 like we have once had where we can all discuss these issues.

3 JUDGE AGIUS: I have that in mind, Mr. Ackerman, not -- but not at

4 this particular point in time.

5 MR. ACKERMAN: At some point in time I think that makes sense.

6 JUDGE AGIUS: Yes. Because there are bound to be developments

7 which are bound to have an impact on what needs to be discussed on several

8 fronts. You know, I mean, it's -- I don't need to go into detail, because

9 everything is very much in the air for the time being and we need to know

10 exactly what the situation will be when it crystallizes.

11 Yes, Mr. Zecevic.

12 MR. ZECEVIC: May I proceed, Your Honours?


14 MR. ZECEVIC: The second thing: Our client has instructed us to

15 inform this Trial Chamber that he will not undergo another physical exam.

16 He feels that this -- this pain that he's suffering from this kind of exam

17 and the overall -- his -- the overall health situation of his does not

18 permit him in any way to undergo another physical examination of this

19 kind.

20 JUDGE AGIUS: That goes on the record.

21 MR. ZECEVIC: Yes. The third thing --

22 JUDGE AGIUS: And Madam Registrar, please ensure that this

23 communication by Mr. Zecevic on behalf of his client is in turn

24 communicated as soon as possible to the two consultants that -- to whom I

25 will be referring in due course.

Page 9769

1 Yes, Mr. Zecevic, point three.

2 MR. ZECEVIC: The point three: We would like to express our -- on

3 behalf of our client and on behalf of the Defence of General Talic our

4 sincere gratitude for -- for the Office of the Prosecutor, the Trial

5 Chamber, and the Registry for providing the medical experts, as we are

6 informed that they are coming today on such a short notice. Thank you

7 very much.

8 JUDGE AGIUS: So with regard to this, and without going into

9 specific details because otherwise we go into closed session, just for the

10 record, and based on the activities that went on and events that happened

11 yesterday after we rose and in which I was personally involved, most of

12 the time in consultation with the other two Judges - even when I was not,

13 they were eventually informed - the situation as it arose was as follows:

14 I took immediate steps to ensure that while the Prosecution was trying to

15 procure the name of a consultant, of an expert, the Registry, which is

16 perhaps a more complicated entity inside this Tribunal, would do the same

17 with the utmost speed, and I am happy to announce in open court that they

18 did. The cooperation was not only forthcoming but it was also very

19 timely.

20 It transpired at some point in time during the late afternoon,

21 early evening, that I had indicated, particularly knowing that the

22 Registrar is himself Dutch, and with the little information that I had

23 from family sources, that there could possibly be first-class Dutch

24 experts on the subject matter which we discussed yesterday, and the

25 Registrar took the hint and identified a world-leading expert who happens

Page 9770

1 to be Dutch, plus another expert who happens to be Belgian, both of whom

2 guaranteed their presence here today.

3 I was also -- I gave instructions at that point in time to inform

4 the Prosecution that the Registrar had identified two persons, not just

5 one. I don't know what the situation was inside the quarters of the OTP

6 at the time, but it seems that a decision was taken to abandon the quest

7 for a further expert from Germany or from wherever and to accept the two

8 persons that the Registrar had indicated. This is the information that I

9 received at the time. I stand to be corrected if it is not so, but this

10 is the information I received.

11 At that point in time, I had no hesitation at all in communicating

12 that, pending obviously all discussions that would take place this

13 morning, and the two consultants were authorised to come forward. I also

14 authorised the disclosure to them of the documents that Dr. Valke had made

15 available and which we had kept under seal. The reason for doing that was

16 to economise on time, and it was the only practical thing to do in the

17 circumstances. I was then informed that they would be here in The Hague

18 this morning, different times, that they would be in consultation with

19 Dr. Valke himself, that they would have available documentation which they

20 already have, and that they should be in a position to report to us in a

21 short -- by means of a short document during the course of the day. I

22 inquired to see whether this was possible, and they agreed that this would

23 be possible also because I am informed that it was not possible at all for

24 them to delay their stay in The Hague beyond today.

25 So that is the information that I have and that I have handed --

Page 9771

1 that I am passing on to you.

2 I also gave instructions to the Registrar to contact, through

3 diplomatic channels, the host country, that's the Netherlands, because you

4 know that there is a rule, should we decide to grant provisional release,

5 we cannot do that unless we have heard the host country. I am not yet

6 informed whether a document has arrived, as is usually the case.

7 I did not interfere at all, neither did any of my colleagues, with

8 any communications that may be required with the authorities of Republika

9 Srpska or of the Federation of Bosnia and Herzegovina. I think that is

10 something that, Mr. Zecevic, you would need to attend to, and obviously we

11 will understand that it's not our responsibility to do that.

12 Yes, Mr. Zecevic?

13 MR. ZECEVIC: If it pleases the Court, if I may just for a few

14 minutes inform the Court about this development about the guarantees.

15 Actually, the guarantee of Republika Srpska has been filed yesterday in

16 the afternoon, as indicated in our motion. We just received it, Your

17 Honours, from the locker. And the guarantees of the Federal Republic of

18 Yugoslavia, where this military medical academy is situated, is due to

19 come today, probably just right now, about 11.00. I was told that it

20 would be faxed directly from the Prime Minister's office of Federal

21 Republic of Yugoslavia to the ICTY's fax, official fax.

22 Therefore, I believe that both guarantees will be in place this --

23 today. Thank you.

24 JUDGE AGIUS: Yes. Now, Mr. Zecevic in particular, Mr. Ackerman

25 too, and the Prosecution of course too, but Mr. Zecevic in particular, you

Page 9772

1 will all understand that what I have just described is, in absolute terms,

2 very unorthodox, it's an unorthodox procedure, in that I have authorised

3 two consultants to come over and start doing something, without having

4 first come here and put their names to you, Mr. Zecevic, for your

5 approval. I don't quite -- or at least for your comments.

6 The options were two: Either do it the way we did it or do it the

7 orthodox way, which would have had -- meant wait until this morning, let

8 them come here, prohibit them from doing anything, listen to them and so

9 on and so forth, then reach a decision and so on and so forth. So the

10 sort of ratification of what has taken place will take place ex post, and

11 I hope that that would be agreeable to both Prosecution and both the

12 Defence teams. Otherwise, we will withdraw from our position and resort

13 to the orthodox procedural approach to this problem. But we did what we

14 did knowing that we were adopting a procedure which was the most practical

15 and timely, given the circumstances of this case.

16 MR. ZECEVIC: Your Honours, I believe I have already stated our

17 gratitude to this Trial Chamber and to all the parties involved in that.

18 Since time is of the essence, as we are all aware, of course we don't have

19 any objection whatsoever to the persons, the medical experts, who are to

20 appear before this Court today, of course not. Thank you.

21 JUDGE AGIUS: Are there any reservations on the part of the

22 Prosecution?

23 MR. CAYLEY: Mr. President, it's your initial comments, and I

24 think I should put this on the record just to set the record straight. We

25 as an office spent most of the afternoon trying to find individuals, as

Page 9773

1 you know.

2 JUDGE AGIUS: I know that.

3 MR. CAYLEY: I say this not for the sake of credit but simply for

4 who has had communication with these people. We eventually located two

5 Dutch specialists, because other specialists could not come within the

6 short time period. Can I -- I mean we are in open session. It's all

7 right to talk openly about these matters in open session?

8 JUDGE AGIUS: Simply don't go into details of medical details.

9 MR. CAYLEY: Well, we -- the two individuals that we located were

10 Dr. (redacted), who is a leading (redacted), and Dr. (redacted)

11 (redacted) who is from the Erasmus Medical Centre in Rotterdam. We as

12 an office spoke to these people and sought their agreement to come at

13 short notice and give a second and third opinion. We, as an office, have

14 sent out staff to collect them from their respective hospitals to bring

15 them into the Tribunal. We, as an office, have had communications with

16 the prison doctor to organise the cooperation between the parties in

17 respect of the medical documentation that these two individuals need.

18 There is one further matter which I believe will be best addressed

19 in closed session. I can put the Court on notice of something that one of

20 these physicians has required, which may be something, from what

21 Mr. Zecevic has said, the patient is not willing to undergo, but we can

22 talk about that in closed session.

23 Their respective arrivals will be 11.00 and I think 2.00, but their

24 evidence will be heard this afternoon for both of them.

25 JUDGE AGIUS: Does that change anything, as far as you are

Page 9774

1 concerned, Mr. Zecevic?

2 MR. ZECEVIC: This does not change anything whatsoever. Thank

3 you, Your Honour.

4 JUDGE AGIUS: All right. Do you want to go in closed session now,

5 Mr. Cayley, and we'll discuss the final point that -- is there something

6 wrong with the transcript?

7 MR. CAYLEY: I -- I mean, I -- I think what's already been said

8 previously has probably indicated a great deal of information. I've

9 mentioned a condition. I mean, it can be -- it can be redacted. We've

10 asked for it to be redacted. But I can talk in more detail in closed

11 session.

12 JUDGE AGIUS: Okay let's go in closed session for a while, and

13 then I think it's -- some people are born unlucky. Two gentlemen have

14 just walked in to follow the hearings.

15 MR. ACKERMAN: I was just wondering if private session isn't

16 enough. We don't have a witness. Why do we have to close all the

17 blinds?

18 JUDGE AGIUS: Yes. Wait. Wait. Wait.

19 Would that be okay with you, Mr. Zecevic?

20 MR. ZECEVIC: Yes, of course, Your Honour.

21 JUDGE AGIUS: So we'll go into private session and not closed

22 session.

23 [Private session]

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Page 9775

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13 [Open session]

14 [The accused Radoslav Brdjanin not present]

15 JUDGE AGIUS: We will now proceed from where we left this

16 morning. We are in open session at the present moment. Is there anything

17 that either the Prosecution or the Defence would like to state?

18 MS. KORNER: No, Your Honour, other than to say we should go to

19 straight into closed session, I think.

20 JUDGE AGIUS: Okay. The same applies with you, Mr. Zecevic?

21 MR. ZECEVIC: Yes, of course, Your Honour.

22 JUDGE AGIUS: Thank you. So Madam Registrar, please, and Usher we

23 will go into private -- to private or closed?

24 MS. KORNER: I don't think it makes a ha'p'worth of difference,

25 but closed, please, Your Honour.

Page 9778

1 MR. ZECEVIC: I think closed because we are having the witnesses,

2 I understood.

3 JUDGE AGIUS: Okay. Closed.

4 [Closed session]

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Page 9779












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24 --- Whereupon the hearing adjourned at

25 6.02 p.m., to be reconvened sine die.