1 Friday, 23 January 2004
2 [Status Conference]
3 [Open session]
4 --- Upon commencing at 2.19 p.m.
5 [The accused entered court]
6 JUDGE AGIUS: Yes, Mr. Registrar, could you call the case, please.
7 THE REGISTRAR: Case Number IT-99-36-T, The Prosecutor versus
8 Radoslav Brdjanin.
9 JUDGE AGIUS: Thank you. Mr. Brdjanin, good afternoon to you.
10 Can you follow the proceedings in a language that you can understand?
11 THE ACCUSED: [Interpretation] Good afternoon, Your Honours. I can
12 hear and understand the language.
13 JUDGE AGIUS: All right. I thank you. Appearances for the
15 MS. KORNER: Good afternoon, Your Honours. Joanna Korner,
16 Ann Sutherland, Julian Nicholls, assisted by Denise Gustin, case manager.
17 JUDGE AGIUS: Thank you and good afternoon to you all.
18 Appearances for Radoslav Brdjanin.
19 MR. ACKERMAN: Good afternoon, Your Honours. I'm John Ackerman.
20 I'm here with David Cunningham and Aleksandar Vujic.
21 JUDGE AGIUS: I thank you, and good afternoon to you all. Let's
22 go into private session, please.
23 [Private session]
22 [Open session]
23 THE REGISTRAR: We are in open session.
24 JUDGE AGIUS: I thank you, Registrar.
25 Yes, I received, and my colleagues received, earlier on today a
1 copy of your motion, Ms. Korner.
2 MS. KORNER: Your Honour, we were asked if we could do it in
3 writing, although we were intending to do this by way of oral application,
4 which of course the Rules allow for, and I think Your Honour said a very
5 long time ago that in the course of a trial oral applications would be
6 quicker dealt with. But in order to give both Your Honours and
7 Mr. Ackerman in writing the proposed application that the Prosecution will
8 be making, that is why we drafted this motion at speed last night. It's
9 very short, and I would wish to expand on certain aspects of it. I should
10 say that I verbally informed Mr. Ackerman yesterday afternoon of what was
11 going to be in this motion.
12 JUDGE AGIUS: He didn't draft it for you, Ms. Korner, does he?
13 MS. KORNER: He didn't draft it for me, Your Honour, no, he
15 JUDGE AGIUS: Mr. Ackerman, just on a very preliminary basis, what
16 do you have to say about this motion?
17 MR. ACKERMAN: First of all, this is a matter of serious moment
18 and absolutely should not be the subject of any kind of oral motion. It
19 absolutely has to be a written motion because it's a matter which very
20 likely, no matter how it comes out, would be part of the appeal.
21 JUDGE AGIUS: Forget that, because it's written now.
22 MR. ACKERMAN: Second of all, I've had it for less than two hours,
23 I think. I think I received it around 12.15 today. Ordinarily I would
24 have ten days to respond. I've had less than 10 minutes. That's just not
25 fair. And I don't think it should be considered today at all. I think it
1 would be totally unfair to consider it today.
2 JUDGE AGIUS: Okay.
3 MR. ACKERMAN: The Court can shorten that ten days and give me a
4 time to respond. Once I respond, then I think it can be talked about.
5 JUDGE AGIUS: Yes. How much time do you want, Mr. Ackerman?
6 MR. ACKERMAN: Your Honour, I can do it by Monday. That's way
7 less than ten days. That's what I'll do.
8 JUDGE AGIUS: That's fair enough. You will do it by Monday.
9 Okay. So is it okay, because we will need to again sit on Monday, if that
10 is okay. If it's convenient for both of you. I would enjoin you to agree
11 to that because Tuesday, Wednesday, Thursday I am engaged in the Deronjic
12 sentencing hearing. So I won't -- I can be available when I'm not sitting
13 in Deronjic, but it would be top-heavy.
14 MS. KORNER: Your Honour, as far as -- as far as we're concerned,
15 Your Honour, we have done this at sort of type of speed because
16 Your Honour enjoined us if at all possible to call any rebuttal evidence
17 if allowed to --
18 JUDGE AGIUS: Yes.
19 MS. KORNER: -- as soon as possible. As far as the Prosecution is
20 concerned, we are content with any dates that Your Honour fixes. We are
21 content to call this evidence, if allowed, at any time that Your Honours
23 JUDGE AGIUS: All right.
24 MS. KORNER: So as I say, in one sense we were merely trying to
25 comply with Your Honours' request.
1 JUDGE AGIUS: I thank you. I think you know appreciate that,
2 Ms. Korner, and I also, of course, appreciate that I cannot --
3 Mr. Ackerman insisted for his ten days, I think I would have crossed
4 swords with you.
5 MR. ACKERMAN: Should have.
6 JUDGE AGIUS: But I think I can live with extending --
7 MR. ACKERMAN: Your Honour, when I did say Monday, I had in mind
8 by the filing deadline of 4.00. Friday is going to be over when I get out
9 of here.
10 JUDGE AGIUS: Mr. Ackerman, you make it difficult for me. Please,
11 try to understand my predicament. Next week, I have three days in which I
12 am sitting in Deronjic. After that, I will be having in camera meetings
13 with the other two Judges to come to a first conclusion because it's
14 normal practice that we do that straight away after the sentencing
15 hearing, which basically puts me in a situation where I am going to be
16 really fully occupied this coming week with a lot of readings, hundreds of
17 pages that I have to read between now and when we start and as we go
19 Monday, I do not have a sitting. And if there is a courtroom
20 available in the afternoon, we could sit in the afternoon. Otherwise, the
21 only other day that I could think of is Friday of next week, but I don't
22 know what to expect in the Deronjic sentencing hearing. So I mean, the
23 idea now is to have the hearings spread over three days, three days. But
24 it could -- we could go on on the fourth day without -- because there's
25 evidence coming up, and there's a lot of things.
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 MR. ACKERMAN: My suggestion would be then that we do it as late
2 as possible on Monday, maybe 3.00 or something like that. Or if that's
3 not possible, then Friday. I really need some time, Judge.
4 JUDGE AGIUS: I think that's what's good for the goose is also
5 good for the gander. I mean, the Prosecution must also be put in a
6 position where if you raise legal matters, particularly in your response,
7 they would have adequate notice, prior notice of it, so that if we have
8 submissions, oral submissions -- I mean, I came prepared with case --
9 MS. KORNER: Your Honour, may it help if I make our position clear
10 as to the -- what we say the law is. It may help Mr. Ackerman.
11 MR. ACKERMAN: Your Honour, again, I object to this matter being
12 raised today.
13 JUDGE AGIUS: We are not going to argue it, Mr. Ackerman. I just
14 want to hear what --
15 MS. KORNER: Your Honour, I'm going to assist, I hope
16 Mr. Ackerman and Your Honours, to see what the position is as far as the
17 Prosecution is concerned. This is purely subject to Mr. Ackerman's
18 putting in a response to our motion with the law as he sees it. I am
19 prepared to make certain concessions on the law which may assist
20 Mr. Ackerman and may assist Your Honours. And that's why I think it might
21 be helpful if I do that now --
22 JUDGE AGIUS: Well, I suppose --
23 MS. KORNER: -- rather than Mr. Ackerman making points which he
24 doesn't need to because we'll concede them.
25 JUDGE AGIUS: Yes, I think we can proceed along those lines at
1 least for today. That would make your life easier, particularly when
2 drawing up your response, Mr. Ackerman, from the legal point of view
3 because what's going to be conceded need not be repeated. All right?
4 Yes, go ahead, Ms. Korner.
5 MS. KORNER: May I go into private session because I will have to
6 touch on --
7 JUDGE AGIUS: Yes, let's go into private session for a while,
9 [Private session]
12 Page 24202 redacted, private session
12 Page 24203 redacted, private session
19 [Open session]
20 THE REGISTRAR: Your Honours, we are in open session.
21 JUDGE AGIUS: Thank you.
22 Ms. Korner, if Mr. Ackerman files his motion, say, by noon or 1.00
23 on Monday, would you be prepared to argue the motion, say, at half past
25 MS. KORNER: Certainly.
1 JUDGE AGIUS: Okay. Is that fine with you, Mr. Ackerman?
2 MR. ACKERMAN: Yes, Your Honour, that's fine.
3 JUDGE AGIUS: Now, the big problem is whether we have a courtroom.
5 MR. ACKERMAN: Your Honour, while he's looking --
6 JUDGE AGIUS: We may have a courtroom already booked for Brdjanin
7 throughout the entire...
8 MR. ACKERMAN: While he's looking, the Prosecution had put some
9 packets up on your Bench which I ask to be withdrawn. These are
10 exhibits -- they are not there any more because Mr. Roberts has them now.
11 JUDGE AGIUS: I don't know what you're talking about now.
12 MR. ACKERMAN: They are the Laktasi exhibits that they want to use
13 in rebuttal. I objected to those being given to you at this point and ask
14 they be taken back off the Bench. Mr. Roberts now has them. And I
15 respectfully request that you not look at them until I've had a chance to
16 file my response because I believe there's a basis upon which I can argue
17 that you should not even see them.
18 JUDGE AGIUS: We definitely will not have a look. We will not
19 even ask for them at least before we have read -- gone through your
20 response and also heard the oral arguments on Monday, and then we decide.
21 MS. KORNER: Your Honour, with respect, Your Honours have as it
22 were a two-fold role in cases like this. Your Honours have to make a
23 decision on the basis of what is available to Your Honours. Your Honours
24 cannot possibly make a decision as to the prejudice or otherwise or the
25 importance of this evidence without seeing it.
1 JUDGE AGIUS: But what I mean to say is that we will not bother
2 ourselves with those documents before we have had Mr. Ackerman's response.
3 MS. KORNER: All right.
4 JUDGE AGIUS: Okay. And at least have a clear purview of the
5 legal points involved. Then obviously, there may become a point where
6 they become very necessary. I see no point in reading them before I have
7 read Mr. Ackerman's response.
8 MS. KORNER: Right.
9 JUDGE AGIUS: And we will liaise with Mr. Roberts as we go along.
11 [Trial Chamber and Registrar confer]
12 JUDGE AGIUS: Next week, the date will be -- 26th is the first
13 one, no? So this is Courtroom II. You have Milosevic there, you have
14 Hadzihasanovic. Courtroom II, Courtroom III. Strugar, Blagojevic.
15 We have a problem. We don't have a courtroom on Monday. We don't
16 have a courtroom on Monday. Okay, I know Milosevic, yeah, I know what the
17 problem is. Yeah. No, there is no way we can do anything there. The
18 alternative, Mr. Ackerman and Ms. Korner, if it's okay with Judge Janu and
19 Judge Taya and with both of you, we forget about Monday because if there
20 is no courtroom, there is no courtroom, and we have the sitting on
21 Wednesday, the 28th. I'm sitting in Deronjic in the afternoon. Courtroom
22 III seems to be occupied in the morning. Courtroom II seems to be free.
23 And Courtroom I seems to be occupied. So we only have the option of
24 Wednesday morning in Courtroom II.
25 Please check me out because this keeps getting updated. But this
1 is today's. I mean, what I have in front of me is today's. See if she
2 can place us anywhere on Monday afternoon, if she cannot then Wednesday
3 morning, and it seems the only availability is Courtroom II at 9.00, from
4 9.00 to quarter to 2.00.
5 Would that be suitable to either of you?
6 MS. KORNER: Certainly, Your Honour.
7 JUDGE AGIUS: So I'll come back to you -- it's okay with you,
8 Judge Janu? - I'll come back to you later on when the registrar has
9 contacted the Registry.
10 MS. KORNER: Can I then raise the next question of when Mr. Shoup
11 is going to testify. We have been given today the full report, literally
12 just now before Your Honours walked in. My preference would be, because
13 of the shortness of time of getting the full report, to leave him on the
14 9th, but I understand that it's possible for him to come on the 2nd. And
15 all that I want to know is we'll obviously comply with any ruling
16 Your Honour makes of it on this, but which date will it be?
17 JUDGE AGIUS: Mr. Ackerman, what's your position?
18 MR. ACKERMAN: Your Honour, it makes no difference to me. He's
19 ready to come. He can testify -- the 2nd I think is a holiday. He will
20 have to testify on the 3rd or the 9th. And it's your choice,
21 Your Honour.
22 JUDGE AGIUS: Yes, may I ask you. Because I would think that the
23 sooner we get -- I frankly believe -- instead of believe, I frankly prefer
24 to have the evidence in rebuttal, if that is granted, to be heard after
25 Mr. Shoup has finished, to tell you the truth. And that means that I
1 would appreciate if you could bring him forward. However, since the 2nd
2 is a UN holiday, I don't want to deprive you of a day. You and/or
3 Ms. Korner.
4 MS. KORNER: Your Honour, I'm being given precisely seven days to,
5 in breach of just about every rule going on expert evidence, to prepare
6 for cross-examination.
7 JUDGE AGIUS: I know.
8 MS. KORNER: But as I say, if Your Honours would prefer to have
9 him called on the 3rd, then Your Honours -- then we will deal with that.
10 All that we ask is how long are Your Honours going to give for
11 examination-in-chief and cross?
12 JUDGE AGIUS: I don't know. I don't know how much he requires in
13 the first place. I think I recall you having said once about three days?
14 MR. ACKERMAN: Your Honour, my last estimate is two days, which
15 is, I suppose, optimistic in view of a couple of things that have arisen.
16 But there would be no problem with him staying over the weekend to the
17 following Monday if we have to do that.
18 JUDGE AGIUS: That's easy.
19 MR. ACKERMAN: He's prepared to be here. He's retired, so he's
20 prepared to be here as long as it takes.
21 JUDGE AGIUS: Okay. And that gives us the opportunity --
22 MR. ACKERMAN: May I just say for the record, Your Honour, that I
23 have absolutely no objection to Ms. Korner having additional time if the
24 Court thinks that's appropriate. I'm just trying to accommodate the Court
25 by bringing him earlier.
1 JUDGE AGIUS: I appreciate that.
2 MR. ACKERMAN: And I agree with her, seven days is not a great
3 deal of notice.
4 JUDGE AGIUS: I agree. And if Ms. Korner needs more time -- are
5 you bringing Mr. Donia here, Professor Donia here, by any chance while the
6 Defence expert is giving evidence?
7 MS. KORNER: We hadn't intended to, no, Your Honour. He can be
8 here. But I think --
9 JUDGE AGIUS: I think it would be -- because I have been thinking
10 about this and discussing also with Judge Janu and Judge Taya.
11 Professor Donia is your expert witness, not the Court's expert witness.
12 And the expert witness that Mr. Ackerman is bringing forward is the
13 Defence's expert witness, and this is precisely dealing with a matter
14 which the three of us -- I mean, we certainly cannot claim to be experts
15 ourselves on the matter.
16 Now, in my jurisdiction, we usually resort to two, either of two
17 alternatives. We either appoint our own expert, but at this point of the
18 proceedings that may become not exactly very practical, might require us
19 to wait further, and I would try to avoid that. We also use another
20 alternative, and that is have the expert, the other expert of the opposite
21 party present. And if necessary, if we have a point which we need
22 clarification, if necessary even organise a confrontation between the two
23 experts. That works. Believe me, it works. And it usually gives the
24 trial judge and whoever is following the -- quite a broad view and idea of
25 where to go. I mean, I've found it myself in my career extremely helpful.
1 Of course, I cannot insist on -- I cannot insist on you...
2 On the other hand, there is another point, Ms. Korner, that I
3 would like to make clear. You know that under the Rules, we do have a
4 right to put questions to witnesses. And we may need to put some further
5 questions to Mr. Donia once the expert for the Defence has given evidence,
6 especially if certain parts of Mr. Donia's expert evidence -- I mean, I
7 don't know because I haven't read -- I haven't gone through your expert's
9 MS. KORNER: Your Honour is about to say --
10 JUDGE AGIUS: It may present some problems for us if we just have
11 two versions, one depicting the situation as white, the other one as
12 black, and we get caught in the middle --
13 MS. KORNER: Yes, Your Honour, I don't know, because I haven't
14 seen the report at all. I wasn't here, so I didn't even see the draft.
15 Whether he specifically addresses any of the assertions made by Dr. Donia.
16 JUDGE AGIUS: Perhaps Mr. Ackerman can tell us.
17 MS. KORNER: If Mr. Ackerman can tell us. If he does,
18 Your Honour, then we can, and Your Honours request, feel that it may be
19 you want to put further questions to Dr. Donia.
20 JUDGE AGIUS: Maybe yes, maybe not.
21 MS. KORNER: I agree. We can make arrangements to have Dr. Donia
22 brought back to this Court. The summary that we got, I'm reminded, said
23 that it was to rebut the evidence of Mr. Treanor as well and I'm not clear
24 on what aspect. But Mr. Treanor, of course, is in the building, so
25 there's no problem with that.
1 JUDGE AGIUS: But Mr. Donia isn't.
2 MS. KORNER: He's not. We would have to bring him from the
3 United States.
4 JUDGE AGIUS: Can I have some comments from you, Mr. Ackerman.
5 MR. ACKERMAN: What is it you'd like me to comment about?
6 JUDGE AGIUS: You have obviously gone through the report.
7 MR. ACKERMAN: Yes.
8 JUDGE AGIUS: I suppose you are the only one, apart from
9 your -- who has done that.
10 MR. ACKERMAN: I think Ms. Sutherland probably has read it, at
11 least the initial draft, and maybe Mr. Nicholls has read it, at least the
12 initial draft. So I'm not the only one. It's my -- I hesitate to commit
13 myself in any significant way, but I think there's very little in there
14 that involves a direct confrontation with the evidence of Dr. Donia.
15 JUDGE AGIUS: As I say --
16 MR. ACKERMAN: He goes off on a really kind of different tack
17 completely and deals with other matters, so I don't think there's much --
18 JUDGE AGIUS: I see.
19 MR. ACKERMAN: -- "Dr. Donia says this and I disagree" in there.
20 JUDGE AGIUS: I just -- let me see. This is -- how many pages
21 long is it, Mr. Ackerman?
22 MR. ACKERMAN: 52 pages, Your Honour.
23 JUDGE AGIUS: 52. So we can read it over the weekend. We can
24 read it over the weekend, and -- Ms. Korner, if we think that Mr. Donia's
25 presence here may be required, we will let you know, and of course we will
1 inform Mr. Ackerman, too.
2 MS. KORNER: Your Honour, may I just simply say that the sooner
3 the better because I know that he has many professional commitments.
4 JUDGE AGIUS: I can imagine. Okay.
5 The other thing, let's go into private session for a while while
6 we are on this. It leads me to something.
7 [Private session]
12 Pages 24213 to 24219 redacted, private session
14 [Open session]
15 JUDGE AGIUS: We are in open session now. If you want to go back
16 to private session, we can do that.
17 MS. KORNER: Just for one moment.
18 JUDGE AGIUS: Okay, let's go into private session again, please.
19 Thank you.
20 [Private session]
13 [Open session]
14 JUDGE AGIUS: Hope is always the last -- hope is always the last
15 to die, Ms. Korner.
16 THE REGISTRAR: Your Honours, we are in open session.
17 JUDGE AGIUS: Yes. Anything else, Mr. Ackerman? Ms. Korner?
18 MS. KORNER: No, Your Honour.
19 JUDGE AGIUS: Judge Janu? No.
20 I thank you all. I thank you, Mr. Ackerman, for the expert's
21 report. I look forward to your response on Monday, which should enable
22 Judge Janu, Judge Taya and myself to be able to come to a decision in the
23 course of next week, possibly not later than the end of next week. Thank
25 --- Whereupon the Status Conference
1 adjourned at 3.12 p.m.