Tribunal Criminal Tribunal for the Former Yugoslavia

Page 17870

1 Thursday, 19 June 2003

2 [Open session]

3 --- Upon commencing at 10.40 a.m.

4 [The accused entered court]

5 JUDGE AGIUS: Madam Registrar, good morning to you. I ask you to

6 call the case, please.

7 THE REGISTRAR: Good morning. Case number IT-99-36-T, the

8 Prosecutor versus Radoslav Brdjanin.

9 JUDGE AGIUS: Good morning to you, Mr. Brdjanin.

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

11 JUDGE AGIUS: I take it that you are receiving interpretation of

12 what I'm saying in a language that you can understand?

13 THE ACCUSED: [Interpretation] Yes, I am.

14 JUDGE AGIUS: Thank you, please take your chair. Appearances,

15 Prosecution?

16 MS. KORNER: Joanna Korner, Ann Sutherland, assisted by Denise

17 Gustin, case manager.

18 JUDGE AGIUS: I thank you, Ms. Korner and good morning to you.

19 When I say to you it means the three of you. Appearances for Radoslav

20 Brdjanin?

21 MR. ACKERMAN: Your Honour, my name is John Ackerman, I'm with

22 David Cunningham and Aleksandar Vujic. Mr. Cunningham and I are not

23 appearing here on behalf of Mr. Brdjanin. We are appearing here has an

24 accommodation to the Court. We are not here providing any legal services

25 to Mr. Brdjanin whatsoever today and I just want to make that clear for

Page 17871

1 the record.

2 JUDGE AGIUS: I thank you, Mr. Ackerman and Mr. Cunningham and

3 good morning to the three of you. So Mr. Brdjanin, I'm going to address

4 you first. Because this is a matter which concerns - please do sit

5 down - which concerns you personally and your rights to have -- to be

6 represented by a lawyer of your own choice.

7 You have just stated, Mr. Ackerman -- you've just heard

8 Mr. Ackerman state in open court that neither he nor Mr. Cunningham are

9 representing you as -- with immediate effect. The Trial Chamber was aware

10 of this as from yesterday and was advised to expect a motion for

11 adjournment of the case by Mr. Ackerman. The motion was filed yesterday

12 late in the evening and was handed to us this morning first thing and I am

13 going to bring the contents of this motion to your notice in case you are

14 not aware of the entirety of its contents.

15 Mr. Ackerman states in his motion that at around 4.00 p.m.

16 yesterday, he was handed a request filed by a certain Mr. Hyman, who for

17 your information is a lawyer in the Blaskic case, which he went through.

18 Attached to that particular request of Mr. Hyman was an opinion letter

19 from the department of the treasury of the United States of America

20 advising Mr. Hyman that providing legal services to Mr. Blaskic without a

21 licence would constitute a prohibited exportation of legal services in

22 violation of section 599.201(B) of the WBSR.

23 It is Mr. Ackerman's considered opinion that as a result of this

24 advice, opinion letter, from the department of the treasury of the United

25 States, both he and Mr. Cunningham in this case are currently prohibited

Page 17872

1 from providing you, Mr. Brdjanin, with any legal services until they have

2 acquired the necessary licence. Accordingly, they requested this Trial

3 Chamber to adjourn these proceedings temporarily until the issue of

4 licences to continue the case has been resolved.

5 As you may well imagine, not just you but the Prosecution and

6 Mr. Ackerman and Mr. Cunningham themselves, I together with my two

7 colleagues took this matter with the utmost -- gave it our utmost

8 attention for two reasons in particular, or three.

9 Number 1, because we have a legal duty to make sure that at all

10 times you are legally represented, and that this trial does not proceed

11 unless you are represented as required by our statute and by our rules,

12 and that is the first matter that we needed to address and I can assure

13 you that we gave it our utmost attention.

14 Second is or was that it is also our duty to ensure that if there

15 is to be a stoppage, if there is to be a suspension of the proceedings

16 this would last the least possible so we also addressed that matter and we

17 have worked, if not overnight, almost overnight, in order to see what are

18 the prospects of a possible solution in sight.

19 The third thing is that we are definitely not contesting to

20 Mr. Ackerman or Mr. Cunningham the evaluation of the contents of the

21 letter that they referred to in the motion and we would certainly never

22 dream of exposing Mr. Ackerman or Mr. Cunningham to possible Prosecution

23 for a felony in their own country. Therefore, there is no way we are

24 going to contest this -- to Mr. Cunningham and Mr. Ackerman. We also

25 appreciate that they indicate in their motion that they themselves will be

Page 17873

1 doing something about the situation.

2 However, I should like to inform everyone here what we have done

3 and what is basically appearing on the horizon, not too far off from our

4 field of view. It seems that all this is a result of a kind of

5 interpretation that has been given in some department in the United States

6 by some individual which may not be in conformity with what was intended.

7 So we may well be dealing with a mistaken interpretation of the real legal

8 situation. Irrespective of this, the position stands. You will not have

9 to face any proceedings being unassisted. And Mr. Ackerman and

10 Mr. Cunningham will not be forced to represent you. The position remains

11 as I explained to you earlier on.

12 This matter is being worked upon, is being addressed, at the

13 highest level at the United States, and I have been given to understand

14 that it is in the process of being positively resolved within what I have

15 been given to understand a very short time. And if it is positively

16 resolved as I expect it to be positively resolved or as I have been given

17 to understand that it will be positively resolved that would mean that

18 Mr. Ackerman and Mr. Cunningham would be put back in a position where they

19 can continue to represent you as they have done until yesterday.

20 What I am saying, I'm afraid I cannot give more information on

21 what is going on, because I would wait until I see the official documents

22 authorising Mr. Ackerman and Mr. Cunningham to continue representing you,

23 but the prospects are good. I have been given to understand that if there

24 is to be a stoppage, suspension of the proceedings, this may well be for

25 today only. Let's hope that we can reconvene tomorrow and continue with

Page 17874

1 the hearing of evidence. I can assure you, Mr. Brdjanin, that if you're

2 not represented tomorrow, there will not be a hearing. So I can assure

3 you that we three up here will make sure that your right of representation

4 is respected to the utmost.

5 I don't know if you have any comments or any remarks to make in

6 response to what I have said. If not, you may remain seated but if you're

7 not unhappy with --

8 THE ACCUSED: [Interpretation] I'm sorry, no. I have no comments

9 except to thank you for what you have just said and since we are in an

10 open session, I have to say that if Mr. Ackerman leaves this case, it will

11 be disastrous for me because I have been able to endure all this only

12 owing to Mr. Ackerman and his team.

13 JUDGE AGIUS: Yes, Mr. Brdjanin. Your rights, not just this

14 right, all your rights will be respected. You have the undertaking of

15 this Trial Chamber. Having said that, I think we have no option but to

16 adjourn for today. Is the witness that we were hearing yesterday present

17 here in court or not?

18 MS. SUTHERLAND: He is, Your Honour.

19 JUDGE AGIUS: Is he in a position to be brought into the

20 courtroom?


22 JUDGE AGIUS: So I would suggest, usher, because I understand he

23 was not feeling well until now. Make sure with the representative of the

24 victims and witnesses department that he is fit to be brought into the

25 courtroom. I only need to explain to him why his presence in The Hague is

Page 17875

1 no longer required for the time being and that he will need to return at

2 some later point in time.

3 MR. ACKERMAN: Your Honour, while we are waiting, may I just on

4 the record thank the Trial Chamber for its understanding of this very

5 difficult situation that Mr. Cunningham and I have found ourselves in and

6 the Trial Chamber has shown a deep understanding of that situation and

7 appreciation for our situation and our concerns and we appreciate that a

8 great deal.

9 JUDGE AGIUS: I thank you, Mr. Ackerman and I also want to

10 acknowledge for the information of everyone we have had a long meeting

11 this morning, us three judges, with the Prosecution, Ms. Korner,

12 Ms. Sutherland, Mr. Ackerman and Mr. Cunningham, we have met for long time

13 and I want to acknowledge publicly their high sense of responsibility and

14 their full commitment to cooperation with the Trial Chamber in this

15 critical moment, which hopefully will be over by tomorrow.

16 [The witness entered court]

17 JUDGE AGIUS: Good morning to you, Mr. Cirkic.

18 THE WITNESS: [Interpretation] Good morning.

19 JUDGE AGIUS: And welcome back.

20 THE WITNESS: Thank you.

21 JUDGE AGIUS: On behalf of Judge Janu, Judge Taya and, of course,

22 I'm also speaking for myself, also on behalf of the Tribunal in general, I

23 should first like to apologise to you for having kept you waiting at least

24 two hours before bringing you over to this courtroom and I am going also

25 to explain to you, more or less, but very concisely why this happened and

Page 17876

1 what's the consequence of all this.

2 We couldn't commence the sitting at 9.00 this morning as I

3 promised you yesterday not because of any fault on your part or any fault

4 on any of the persons present here in this courtroom, but of circumstances

5 that came up very unexpectedly yesterday in the afternoon. What happened

6 was that the two lawyers, who are US citizens, who are representing

7 Mr. Brdjanin, received a communication that a presidential order, that is

8 an Executive Order, issued by the President of the United States sometime

9 ago, would, according to the interpretation being given by a civil servant

10 in the department of the treasury of the United States, prohibit them from

11 continuing to represent Mr. Brdjanin, in this case, unless -- without a

12 license, a proper license failing which they would be themselves exposed

13 to criminal proceedings in the United States for a felony which is to my

14 knowledge considered to be an extremely grievous offence. And they have

15 asked -- they have made it clear that this being the situation, they were

16 no longer in a position to continue representing Mr. Brdjanin until this

17 matter is resolved. Mr. Brdjanin, who is the accused in this case, has a

18 right to be represented by counsel of his own choosing and that being the

19 case, it was quite obvious to us that the proceedings could not -- this

20 trial could not proceed immediately as planned, until Mr. Brdjanin is

21 provided with counsel of his own choosing.

22 That is not possible to happen today. There is no way that we can

23 provide legal assistance to Mr. Brdjanin according to the rules, which

24 basically means that we cannot proceed today with the trial, which

25 basically also means that what we told you yesterday, that you will come

Page 17877












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 17878

1 forward again today to be cross-examined by Mr. Cunningham is no longer

2 possible, which also means that you will have to come back, but you also

3 know that you were going to be called again here to be possibly

4 cross-examined on the draft of the book that you have finished writing and

5 that you would like to publish. So what I thought of doing, instead of

6 keeping you here in The Hague today, tomorrow, possibly over the weekend,

7 hoping that this matter of legal representation will be solved and then we

8 finish with the cross-examination that we were -- we had scheduled for

9 today, I thought of sending you back home now and of course, you will need

10 to come back if and when needed to be cross-examined not only on your

11 evidence which you gave yesterday but also on the book that you have

12 written which neither I nor Mr. Ackerman and probably neither Ms. Korner

13 or Ms. Sutherland have had time to go through. I haven't even seen it as

14 yet and there is no point in seeing it in the language that you have

15 written it because I don't understand it so it needs to be translated

16 first and then we can go through it.

17 So what is going to happen, Mr. Cirkic, is that you are going

18 home, and you will come back at some later point in time. I am indeed

19 very sorry and I can assure you that everyone here is very sorry and we

20 discussed that this morning how we could help you but there is no way that

21 we can do anything today, so unfortunately, that's going to be the

22 position. You will return home and then you will come back. I can assure

23 you that I already have a team ready to give you all the assistance you

24 need to put you at ease and enable you to return home at the earliest

25 opportunity. Again I am very sorry. I don't know how to express myself

Page 17879

1 in better terms but I also want to thank you for your cooperation, for

2 your understanding. I'm sure I have your understanding, I'm sure you

3 understand that this is not due to the fault of any one of us here, and

4 that we do appreciate your patience and your cooperation.

5 Would you like to tell us anything?

6 THE WITNESS: [Interpretation] Your Honours, at first I intended to

7 publish this book, but I'm the only one who has read this book. Nobody

8 else has. And for a while, and I've decided not to publish this book

9 ever, and I've been giving it a lot of thought recently and that is my --

10 what I've decided.

11 JUDGE AGIUS: That is of course your decision. I mean we have no

12 right to even intrude in that matter. I want to make sure that you

13 understand that what has happened was beyond our control and -- in other

14 words I want to make sure that we have your understanding by not

15 concluding your testimony today, by sending you back, and requiring you to

16 come back at some later point in time. Can I hear a word from you telling

17 me yes, judge, when you need me, I will come back?

18 THE WITNESS: [Interpretation] Your Honours, right now I do not

19 feel strong enough to go through this once again and I believe you will

20 understand me. Yesterday, I tried to somehow summon all my strength and

21 go through all this once again but I'm really at the end of my tether and

22 all this is making the state of my health even worse. I do not know

23 whether I am ready to go through what I've been through once again. Your

24 Honours, I do not wish on anyone any time anywhere to go through a single

25 minute of what I have experienced.

Page 17880


2 THE WITNESS: [Interpretation] Thank you.

3 JUDGE AGIUS: I fully appreciate that, Mr. Cirkic. We'll leave it

4 at that for the time being. I will ask the usher to accompany you, escort

5 you out of the courtroom. Usher, please, the staff from the Victims and

6 Witnesses Unit is waiting. Mr. Cirkic, I wish you a safe journey back

7 home and look forward to seeing you here in this courtroom again to finish

8 the story that you started telling us yesterday. I thank you and I wish

9 you a safe journey.

10 [The witness withdrew]

11 MS. SUTHERLAND: Your Honour, with Defence's permission, and with

12 the leave the of the court -- may I --

13 JUDGE AGIUS: There is no Defence at the moment, Ms. Sutherland.

14 MS. SUTHERLAND: Sorry, with leave of the court may I speak with

15 the witness after we have adjourned?

16 JUDGE AGIUS: Mr. Brdjanin, do you have any objection to that?

17 THE ACCUSED: [Interpretation] I see no reason to object to it.

18 Although I do not know much about these things.

19 JUDGE AGIUS: But at this point in time, I don't think I can

20 authorise you to speak to the witness.

21 MS. KORNER: Your Honour, I think with the greatest of respect, on

22 this occasion, Mr. Ackerman can come out of his I'm not representing

23 Mr. Brdjanin, as an officer of the court to say he can't see the problem

24 because he knows Ms. Sutherland. Your Honour has just heard what the

25 witness had to say. It seems to me that unless he's spoken to by

Page 17881

1 Ms. Sutherland who has been dealing with him, we are going to have severe

2 difficulties.

3 JUDGE AGIUS: Yes, Ms. Sutherland, I think you are right,

4 Ms. Korner, but can I -- let's deal with it in a different manner. Can

5 you limit -- tell me exactly what you want to speak to Mr. Cirkic about.

6 MS. KORNER: It's simply about the necessity, Your Honour, to

7 reassure him about what's to happen and the necessity for him to return.

8 JUDGE AGIUS: If that is limited only to that, I will give you my

9 consent.

10 MS. KORNER: Thank you. There will be no discussion about the

11 evidence.

12 JUDGE AGIUS: I want to ensure that there is no discussion on the

13 evidence. Can I also add, would you have any problems if Ms. Sutherland

14 speaks to the witness in the presence of the Registrar?

15 MS. KORNER: None at all.

16 JUDGE AGIUS: Don't take it as a -- any kind of distrust. It's a

17 matter of I want to make sure that this does not come back, ricochet

18 against us.

19 MS. KORNER: None at all.

20 JUDGE AGIUS: So Ms. Sutherland, you have the authorisation of the

21 Trial Chamber and Madam Registrar, please make sure that you are present.

22 Things being what they are we have an adjourn. We will need to live this

23 by the hour rather than the day, Mr. Ackerman and Mr. Cunningham. I

24 expect developments in the course of the day, developments, which can

25 concern you directly, Mr. Ackerman and Mr. Cunningham, which could

Page 17882

1 possibly make it possible for you to continue tomorrow morning.

2 So for the time being, I'm adjourning the case until tomorrow

3 morning. Yes, Mr. Ackerman?

4 MR. ACKERMAN: Your Honour just kind of as an interested observer

5 on behalf of future counsel for Mr. Brdjanin, I'm wondering if anybody is

6 taking the responsibility for translating this book that the witness just

7 talked about, if that's been, as to who is going to do the translation?

8 Has that been straightened out.

9 JUDGE AGIUS: I think you, Mr. Cunningham, told us last time that

10 you had already sent the book to the translation unit for it to be

11 translated. I'm pretty sure that if we look at the transcript, that's how

12 you're going to find it.

13 MR. ACKERMAN: It will probably get there today then, so that will

14 be the situation.

15 JUDGE AGIUS: Do you know anything about it Ms. Sutherland?

16 MS. SUTHERLAND: No, only what Mr. Cunningham represented

17 yesterday that they were sending it to CLSS.

18 JUDGE AGIUS: All right. If you want to check the transcript, you

19 check it, but I don't think there is a need. Yes?

20 THE ACCUSED: [Interpretation] I'm sorry, Your Honours, I don't

21 know how it was interpreted. I said I did not object to the Prosecution

22 talking to the witness.

23 JUDGE AGIUS: Yes. We heard that. No, no. But we heard that but

24 you understand, Mr. Ackerman, that when I said we need to protect your

25 rights to the utmost, I am not just saying that for the matter -- for the

Page 17883

1 sake of saying it. I say it because I mean it. And I can assure you my

2 two colleagues mean it too. There is no way that there will be one moment

3 in the course of this trial where you will be not protected. So we need

4 to adjourn. We will reconvene tomorrow. You will be in the same position

5 as today, I hope Mr. Ackerman, in the sense that if you are not reinstated

6 by tomorrow morning, at least we would have the privilege of your presence

7 for any assistance that the trial might need -- the Trial Chamber might

8 need from you.

9 MR. ACKERMAN: Yes, Your Honour, for sure.

10 JUDGE AGIUS: I appreciate that and I thank you Mr. Ackerman and

11 Mr. Cunningham. Ms. Korner is there anything else from the Prosecution

12 side?

13 MS. KORNER: No, Your Honour.

14 JUDGE AGIUS: I thank you. So we can adjourn. Thank you.

15 --- Whereupon the hearing adjourned at

16 11.11 a.m., to be reconvened on Friday,

17 the 20th day of June, 2003, at 9.00 a.m.