Tribunal Criminal Tribunal for the Former Yugoslavia

Page 19668

1 Friday, 18 July 2003

2 [Open session]

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

4 [The accused entered court]

5 JUDGE AGIUS: Yes, could you call the case, please, Madam

6 Registrar.

7 THE REGISTRAR: Yes, Your Honour. Good morning, Your Honours.

8 This is the Case Number IT-99-36-T, the Prosecutor versus Radoslav

9 Brdjanin.

10 JUDGE AGIUS: So appearances -- wait a moment. Mr. Brdjanin, can

11 you follow in a language that you can understand?

12 THE ACCUSED: [Interpretation] Good morning, Your Honours. Yes, I

13 can do that.

14 JUDGE AGIUS: Thank you.

15 Appearances for the Prosecution.

16 MS. KORNER: Good morning, Your Honours. Joanna Korner, Ann

17 Sutherland, assisted by Hasan Younis, case manager.

18 JUDGE AGIUS: Thank you. For the Defence.

19 MR. ACKERMAN: Good morning, Your Honour. I'm here John Ackerman.

20 I'm here with David Cunningham, Barbara Baruch, and Aleksandar Vujic.

21 JUDGE AGIUS: Thank you and good morning to you. Any

22 preliminaries before we bring in the witness?

23 MS. KORNER: Your Honour, can I make sure we're in private

24 witness.

25 JUDGE AGIUS: Not for the time being I don't think we are.

Page 19669

1 MS. KORNER: Can we go into private session for a moment, or

2 closed.

3 JUDGE AGIUS: It's up to you. To me, it doesn't make a difference

4 whether we go into closed or private. Ms. Korner asked for a private

5 session, we go into private session.

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Page 19758

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7 [Open session].

8 JUDGE AGIUS: I give you ten each. And that will be over.

9 MS. KORNER: Well, Your Honour, in that case, I'll leave the happy

10 battle to commence between Mr. Ackerman and Mr. Koumjian if I may. Could

11 I just very quickly mention, would Your Honour be kind enough to consider

12 the length of the Rule 98 submissions together and let us know perhaps on

13 Monday.

14 JUDGE AGIUS: Yes, we will. I have been thinking about it.

15 MS. KORNER: We would like to ask for 200 pages, if that's

16 possible.

17 JUDGE AGIUS: What about Mr. Ackerman?

18 MR. ACKERMAN: I think 12 pages is plenty.

19 JUDGE AGIUS: Basing on your pre-trial -- on your pre-trial brief,

20 I think 5 pages would be enough. But no, let's take this very seriously.

21 It's --

22 MS. KORNER: Your Honour will say a maximum. It will obviously

23 depend very much on what Mr. Ackerman puts in himself.

24 JUDGE AGIUS: Obviously it does, Ms. Korner. Let me think about

25 it.

Page 19759

1 MS. KORNER: Certainly.

2 JUDGE AGIUS: I have been thinking about it. You know that we are

3 definitely talking of the ten-page limit that we apply in other instances,

4 so this is a matter which requires... I want Mr. Ackerman to think about

5 how long he expects his Rule 98 bis to be because that obviously will more

6 or less - not necessarily condition us. But it will give us an idea what

7 to expect. I mean, if he tells me I need 500 pages, and you tell me I

8 need another 500 pages, then obviously we're going to cut.

9 MR. ACKERMAN: Your Honour, I think 200 pages was not an

10 unreasonable request. I will be likely under that but...

11 JUDGE AGIUS: Let's say for the time being, try to limit

12 yourselves to 150 each, although I am not, in other words, imposing a

13 limit for the time being. I'm being very frank. If I were to impose 150,

14 and then any one of you asks me for more pages, I'd definitely say yes.

15 And I'm pretty sure that my two colleagues will not contradict such.

16 MS. KORNER: Yes. That's helpful, Your Honour.

17 And we can discuss it perhaps in a little more detail. I don't

18 want to take up time. But just a rough idea. Thank you very much.

19 JUDGE AGIUS: Yes. We are open on that, and we certainly don't

20 want to restrict you unduly. Let's put it like that.

21 Yes, let me dig up my papers on this motion.

22 MR. ACKERMAN: Your Honour, with regard to the motion --

23 JUDGE AGIUS: And the addendum.

24 MR. ACKERMAN: Yes, Ms. Baruch and an intern have spent an

25 enormous amount of time crafting a very detailed argument which I think

Page 19760

1 Ms. Baruch has finally decided would take her maybe 30 minutes. And if in

2 fact you want to limit to 10, then I think we might want to ask permission

3 to submit an additional memorandum that would contain the rest of the

4 argument we wouldn't be able to present to you orally. Because I think

5 you need to hear --

6 JUDGE AGIUS: No, no, Mr. Koumjian, what's your reaction to what

7 Mr. Ackerman has? Because if you already have a document more or less

8 drafted. We can get that in lieu of an oral presentation, or we can have

9 an oral presentation of 10 minutes outlining the salient features of that

10 document, and we will admit the document, and we will deal the same way

11 with the Defence.

12 MS. BARUCH: I think my notes are something that I could only read

13 myself, Your Honour. Why don't you give me the chance to do it in 10

14 minutes, and then we'll see.

15 JUDGE AGIUS: All right, okay. Yeah.

16 MS. BARUCH: So, may it please the Court, this argument is in

17 support of the Defence motion under Rule 95 of this Tribunal. And our

18 motion and our supplementary motion which was filed today. And I would

19 ask the Court to keep in mind that by making this argument, we in no way

20 concede anything with regard to the content or significance of the

21 tendered intercepts. We believe that Rule 95 governs the Court's

22 decision, and we believe that we don't have to engage in any philosophical

23 argument with regard to what happens if we prove what Rule 95 involves.

24 If we prove there was no reliability, and we think if we prove the

25 interception violated fundamental human rights, we think that the rule

Page 19761

1 requires this Chamber to exclude the evidence. And we believe that this

2 evidence wouldn't come in under either the first prong, which is

3 reliability, or the second prong, which is whether or not its admission is

4 antithetical to and would serious damage the integrity of this Court. That

5 also includes reliability in our opinion.

6 With regard to reliability, there's only one transcript that was

7 corroborated by any witness who had personal knowledge of what was said on

8 the day in question. That was BT99. And I believe the exhibit was 2386.

9 Only one witness with personal knowledge. Mr. Koumjian has said that the

10 issue is whether or not CLSS has accurately translated the reel-to-reel

11 copy to the CD. I don't believe that's the issue on reliability at all.

12 The issue on reliability is whether the proffered evidence is reliable,

13 that that was everything that was actually said in the conversations at

14 the time they occurred. We believe that the authorities have produced

15 incomplete CDs. On Day 212, page 38, portions were removed. They were

16 removed seamlessly, and later on we got other versions that had the

17 portions by that witness reinstated. The portions removed(Redacted)

18 (Redacted) There are documents with different dates.

19 There are omitted admissions from what had been admitted on the cassettes

20 because only interesting matters were changed from the cassettes to the

21 reel-to-reel. We don't know if the CDs provided were provided with

22 admissions at first or additions later --

23 MR. KOUMJIAN: Excuse me, I believe a name was mentioned that was

24 mentioned in closed session.

25 JUDGE AGIUS: It was BT-99.

Page 19762

1 MR. KOUMJIAN: No, there were two names mentioned and I believe one

2 of them should not have been mentioned.

3 JUDGE AGIUS: Two names were mentioned as having furnished the

4 first batch of intercepts. And the two names will be redacted. Page 83,

5 line 12, there's only one mentioned there. But anyway, I do quite

6 remember that Mrs. Baruch mentioned two names.

7 MS. BARUCH: I did.

8 JUDGE AGIUS: So we'll redact those. Let's proceed.

9 MS. BARUCH: Okay. The witnesses who actually were involved in

10 the transcriptions and surveillance both testified that only the more

11 interesting portions were put on the reel-to-reel. That's at the

12 transcript at 19035 and 036. And these reel-to-reel were in the

13 unsupervised possession of somebody who did not testify before this Court

14 for more than ten years, and there were no logs or precise methods of

15 keeping those reel-to-reel. At times, the intercepts offered differed in

16 transmission to the OTP, the witness declared at Day 212, page 34. One

17 was longer than the other. They were not properly logged originally when

18 they were given to the OTP. And Witness BT98 had no personal knowledge of

19 the procedures at all. But both witnesses, 99 and 100, say that the

20 cassettes were not kept and were erased. More than that, there was no

21 effort at corroborating the information that was used -- that was offered,

22 that was on the reel-to-reel such as was done in this Tribunal in the case

23 of Prosecutor versus Krstic.

24 The recordings were so unreliable that the witness testified that

25 they were not admissible in criminal proceedings in Bosnia-Herzegovina

Page 19763

1 itself. That's at Day 212, page 23, line 14. But I'm sure that this

2 Court is very much aware of the facts supporting our contention about

3 unreliability.

4 And so I think the more important thing is to look at the facts

5 before this Tribunal and how they comport with international criminal law.

6 How do we look at that? Well, I believe that the main argument of the

7 Prosecutor is that even if reliability isn't shown and even if we show

8 that the intercepts provided were obtained in violation of both Article 17

9 of the international covenant on civil and political rights - which I

10 believe the method of procuring violates - and even if we show to this

11 Tribunal that the intercepts proffered violate Article 8 of the European

12 convention of human rights, it would not damage the integrity of these

13 proceedings. If that is true, Your Honours, there is no hope for the rule

14 of law in a democratic society. I believe we can establish - we have

15 established - the violation of these fundamental human rights, and the

16 result is in your hands and in your beliefs with regard to the rule of

17 law.

18 Now, Mr. Koumjian has talked about, well, there's no expectation

19 of privacy, and he pointed to two segments in the record. There are two

20 times, that is not a total, that is not the entire truth. One, September

21 13th, 1991, in Prosecution Exhibit 23, 83.9, Mr. Brdjanin believed on that

22 day on that phone his communication was being bugged. And secondly, on

23 November 9th of 1991, Karadzic mentioned that on that day and on that

24 phone, he believed there would be a tape the next day of his conversation.

25 So there is nothing with regard to other days and other intercepts, and

Page 19764

1 there is no offer of no expectation of privacy in other circumstances.

2 But more than that, I don't think that's the focus of international

3 criminal law because this Court has to determine whether the admission

4 damages the integrity of this Court. So I ask you to look at the time

5 line and look at what international criminal law requires.

6 First, July 31st, 1990, the constitution of Bosnia-Herzegovina was

7 amended. As the Prosecutor pointed out, that meant that the country had

8 one year to put its statutes in conformity to the additional protections

9 of privacy in the new constitutional provision. In between the date of

10 enactment of the amendment for privacy reviewed by judges and the date

11 that the country -- that the republic had to put its statutes in

12 conformity with it, there was an order signed. It is Exhibit A to

13 Mr. Ackerman's -- the Defence first motion. Notice that what was signed

14 does not identify at all the person whose intercepts are to be -- who is

15 to be intercepted or surveilled. Those places are blanked. There is no

16 evidence even that the only protection for the individual which was notify

17 the presidency of the republic was done. In fact, there's evidence that

18 the president wasn't notified. And I think I can show you that that's not

19 a mere procedural technicality in light of international law.

20 So then, one year later, July 31st, 1991, comes and goes. The

21 republic must at that point conform the law to the new constitutional

22 amendment. Nothing happens. August 23rd of 1991, the second Exhibit B is

23 signed. The information is not transmitted to the presidency at all. In

24 fact, it isn't until March 23rd of 1992 that Bosnia-Herzegovina ever

25 enacted a law that gave the protections required by international criminal

Page 19765

1 law which is judicial review. And so when you look at the analysis, I

2 have to say these cases from the European Court of Human Rights are cases

3 important to your understanding, Amann, Kruslin, Kahn, Klass, Malone, and

4 PG, will all affect your understanding of what's required by privacy.

5 And although Article 8 doesn't bind this Court, it certainly is

6 useful to this Court, and the convention - I'm sorry, and the ICCPR

7 Article 17 is binding on this Court. So what do you have to do under the

8 analysis of the European Court of Human Rights, which is the only thing we

9 have for guidance, and I promise you I will not cite an American case.

10 That is, was there an interference? Of course there was an interference

11 with right of privacy. There was surveillance done. Next, you have to

12 determine whether or not the interference was in accordance with

13 international law and specifically look at the national law at the time.

14 That case is Kruslin. Then if you find that there was a national law, a

15 Bosnian Herzegovinian law that applied, then you have to know if that law

16 had the quality demanded by the community.

17 Okay, I have cited all of the cases to you, but I will tell you

18 there was unfettered discretion by the minister involved. There was no

19 judicial review. There was no requirements of elements to be met before

20 such surveillance could take place. So there was no -- what the

21 international Court of human rights calls foreseeability and no

22 responsibility. The law was not specific, and there was no review, which

23 is exactly the complaint that makes it a violation of international law.

24 If I will get a chance to sum up, then I will forego this

25 summation, just my hopes for this Court. But if I will not, I would just

Page 19766

1 like to make these statements. I hold this case, this Tribunal, this

2 Chamber in awe. You have to determine whether the admission of evidence

3 that violates, clearly violates, fundamental human rights is damaging to

4 the integrity of these proceedings. That's an awesome responsibility. As

5 Judges, you stand between the police state and the allegations of serious

6 war crimes. Rule 95 says you must determine whether you believe in the

7 rule of law or if, because a war crime is involved, you will forget the

8 whole principle of a judicial system. We live in dangerous times, times

9 when we risk the system becoming the same evil that you exist to protect

10 us from. So I ask when you make that balance, you consider what

11 international criminal law requires in order to make legal the invasion of

12 someone's privacy. And I've given you the cases.

13 JUDGE AGIUS: Yes, you're free, Madam Baruch, to file a list of

14 those cases and anything else for that matter that you think would

15 integrate or make more complete your presentation.

16 Mr. Koumjian.

17 MR. KOUMJIAN: Thank you, Your Honour. I'm not going to deal with

18 reliability --

19 JUDGE AGIUS: Number one, with regard to reliability being made

20 clear, I don't need submissions on that. The onus of proving that these

21 intercepts are reliable rests with the Prosecution at all times.

22 MR. KOUMJIAN: Right. But I don't know if Your Honour wants me to

23 address that. It wasn't in the Defence motion, and I could take more than

24 the seven minutes I have left to address that. I'd rather address it at

25 the moment -- if Your Honours prefer reliability, I will deal with it.

Page 19767

1 JUDGE AGIUS: No, no, I'm just saying I don't need submissions on

2 reliability. It's the issue that we will decide. If not now, later.

3 MR. KOUMJIAN: With the Defence arguments of this evidence of

4 telephone interceptions basically targeted against Radovan Karadzic have

5 to be excluded from evidence under this Tribunal because to do otherwise

6 would be to promote a police state -- this Tribunal would be promoting a

7 police state. Your Honour, there is no reason in that argument. This

8 Tribunal was not even created in the time of the intercepts of

9 communications of Dr. Karadzic and others. In our submissions, we talk

10 about the legality. I'm only going to focus this very brief argument on

11 the issue that the national laws should not apply in this Tribunal

12 determining whether or not under Rule 95 evidence is so antithetical and

13 serious damages the proceedings that it should be excluded. A high

14 political figure like Dr. Karadzic, at times when a country is on the

15 verge of war, or war is raging nearby, and as we found out millions of

16 lives are at stake, that person -- we submit his expectation of privacy is

17 probably rather low in telephone communications, not only is it likely

18 that the Bosnian side was targeting him, but others undoubtedly were

19 targeting him. Third countries, it's very possible were targeted him.

20 What Your Honours have to decide is are Your Honours going to look at the

21 laws in each state in the territory where the interception took place and

22 apply that to third country interceptions? Are you going to apply one law

23 perhaps for interceptions that take place in Croatia, one in Macedonia,

24 one in Serbia, one in Montenegro? It wouldn't make sense. Dr. Karadzic

25 didn't have an exception of privacy, and in fact he said so in his own

Page 19768

1 conversations. And Mr. Brdjanin also who was not a target of these

2 interceptions -- said he expected his phones were tapped and I have no

3 doubt there were by other parties.

4 Your Honour, a good example is the Delalic - if I may be

5 mispronouncing - case, cited in the original Defence motion. They cited

6 one decision, which I'll call Delalic 1, which had to do with an interview

7 of an accused by the Austrian authorities at the time of the arrest. That

8 interview, the Court found, did not comply with the rules of this Tribunal

9 regarding the audiotaping and the rights that should be read. They found

10 it was not voluntary, and therefore, obviously an involuntary statement is

11 not reliable. And for that reason, it was excluded. And of course, he

12 was represented by brilliant Defence counsel on that motion, Mr. Ackerman.

13 In the -- what I call Delalic II which is actually a decision of

14 the 9th of February, 1998, the Court was asked to look at evidence that

15 was obtained some passports and other documents that were seized at the

16 time of that arrest. And the Court ruled in paragraph 18, Court said it

17 has already been stated that the Trial Chamber is not bound by national

18 Laws of Evidence. It was found by the Court that this seizure violated

19 Austrian law. Austrian laws are not binding with respect to the validity

20 of the searches conducted. In paragraph 20, the Trial Chamber

21 said, the Trial Chamber is of the opinion that it would constitute a

22 dangerous obstacle to the administration of justice if evidence which is

23 relevant and probative could not be admitted merely because of a minor

24 breach of procedural rules.

25 The Court will not be fostering a police state by admitting

Page 19769

1 relevant evidence of intercepts. The fact that this Court -- these

2 intercepts of high-level political persons are going to go on throughout

3 the world regardless of whether or not international tribunals decide that

4 that evidence is not admissible. In fact, if the Court applied the rules

5 proposed by the Defence, the Court would be punishing those countries that

6 have high standards and high procedures in order to conduct such

7 intercepts and would be favouring countries where the laws are lax.

8 Instead of promoting the rule of law, I would suggest that the Court would

9 actually be rewarding police states where no such requirements exist in

10 the law, that there be a formal procedure.

11 I'd also just ask Your Honours briefly to look at the decision in

12 Kordic, the oral decision of Judge May. I believe it's cited in our

13 motion in which he talked specifically about intercepts and their

14 admissibility in that case. It was stated even if illegality was

15 established, and we're not saying it has been, we have to decide whether

16 this evidence obtained by methods which would be antithetical to end would

17 seriously damage the integrity of the proceedings. We have come to the

18 conclusion that evidence obtained by eavesdropping on an enemy's telephone

19 calls during the course of war is certainly not within the conduct which

20 is referred to in Rule 95.

21 In summation, Your Honours, the cases tried by this Tribunal are

22 of such importance the fact that eavesdropping and intercepts in cases

23 where high-level individuals are involved is so prevalent throughout the

24 world, it would make no sense to exclude this very probative evidence of

25 very serious violations of law when to do so would not in any way hinder,

Page 19770

1 prevent, or discourage that from taking place. It's going to be taking

2 place anyway. And all that would happen is the Court could be denied

3 probative evidence. Thank you.

4 JUDGE AGIUS: Mr. Koumjian, before you sit down, you did not make

5 any submissions today at least with regard to the legality aspect as such,

6 whether you consider these intercepts as having been legally obtained or

7 not. Do you stick to the response on that regard?

8 MR. KOUMJIAN: I felt that the written submissions covered that

9 well. I didn't feel that the other was covered.

10 JUDGE AGIUS: I don't want you to be interpreted as having

11 accepted in any way that those intercepts were illegally obtained.

12 MR. KOUMJIAN: Correct.

13 JUDGE AGIUS: So your submission is they were legally obtained.

14 MR. KOUMJIAN: My submission is they were, but I wanted to make it

15 very clear that even if they were not --

16 JUDGE AGIUS: Yes, that's the point that you made. All right. We

17 will be discussing this, Judge Janu, Judge Taya, myself. If necessary

18 we'll feel -- if it's necessary to come back to you before we hand down a

19 decision. But this is a decision that will certainly be written. We may

20 give you the gist of it at some point in time, but it will certainly be a

21 written decision.

22 I thank you. Once more, we have exceeded our limit by a few

23 minutes. I thank everyone present for your cooperation. We'll meet again

24 Monday morning, I think morning. Thank you.

25 --- Whereupon the hearing adjourned

Page 19771

1 at 1.48 p.m., to be reconvened on Monday,

2 the 21st day of July, 2003, at 9.00 a.m.