Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Friday, 14 November 2008

 2                           [Further Appearance]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 2.20 p.m.

 6             JUDGE AGIUS:  Good afternoon.

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

 8             THE REGISTRAR:  Thank you, Your Honour.

 9            This is this is case number IT-02-54-R77.5-PT, in the case against

10     Florence Hartmann.

11             JUDGE AGIUS:  Thank you.

12             Good afternoon, everybody.

13             For the record, Mr. MacFarlane is present, as well as

14     Ms. Hartmann and her counsel, Mr. Bourdon.

15             I repeat to you first what I said the last time we met; namely,

16     that if in the course of the proceedings, interpretation is not reaching

17     you as it should, you would please draw my attention straight away.

18             The first thing I would like to put on record today is that

19     yesterday we were informed that the Registrar filed a decision concluding

20     that Ms. Hartmann is indigent for the purposes of legal aid.  I just want

21     to make sure that both you, Ms. Hartmann, and that you, Mr. Bourdon, are

22     aware of this decision.

23             MR. BOURDON: [Interpretation] We have been informed, Your Honour.

24             JUDGE AGIUS:  Thank you.

25             Now, Ms. Hartmann, at the initial appearance of the 27th of

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 1     October, you were informed by me of the charges against you in a formal

 2     manner.  You waived then your right to have the charges read out, and

 3     more importantly you deferred your entry of a plea on the charges

 4     contained in the amended order in lieu of an indictment of contempt,

 5     pursuant to Rule 62(A)(iii) of the Rules.  The main purpose of today's

 6     further appearance is indeed to ask you to enter a plea.  I also informed

 7     you the last time we met that should you today not choose to enter a

 8     plea, then pursuant to Rule 62(A)(iv) of the Rules, I shall proceed to

 9     enter a plea of not guilty on your behalf for each of the charges brought

10     against you.

11             Ms. Hartmann, will you be entering a plea to the charges today?

12             THE ACCUSED: [Interpretation] Mr. Bourdon is going to answer on

13     my behalf.

14             JUDGE AGIUS:  Yes, Mr. Bourdon.

15             MR. BOURDON: [Interpretation] Thank you very much, Your Honour.

16             Let me make two prior observations, very briefly.

17             When I had the honour of appearing before you, I told you that it

18     was not certain that I would be able to appear again, on account of the

19     fact that there was no decision yet as to the status of indigent

20     requested by Ms. Hartmann.  You have told us that there was a positive

21     decision.  We are very happy about it, of course.

22             I'm just saying this very rapidly, but I have to say it.  I am

23     sad to see that there was an open disclosure about bank accounts.  I

24     don't know whether this is common practice or not, but this is, in fact,

25     disclosing Ms. Hartmann's privacy.  It's just a detail, but --

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 1             JUDGE AGIUS:  Stop, stop, stop, let's put it like this, because I

 2     suppose this is all due to the fact that you are not familiar with the

 3     procedure of this Tribunal.  Let's stick to what is on the agenda today.

 4             I'm asking you a straightforward question.  Are we going to

 5     receive a plea from your client, yes or no?  This is the purpose of

 6     today's appearance.  The rest you can bring up formally by means of

 7     filings or whatever.

 8             MR. BOURDON: [Interpretation] This was just a very brief

 9     observation.  She is not going to enter a plea, and I'm going to tell you

10     why straight ahead -- straight away.

11             JUDGE AGIUS:  I'm not interested in knowing why she is not

12     entering a plea.  Please, that's the end of the intervention.  Please sit

13     down.  I'm going to enter a plea of not guilty on her behalf, and we will

14     proceed.

15             Madam Registrar, could you please enter into the record that as

16     per the declaration of Mr. Bourdon, Ms. Hartmann will not be entering a

17     plea to the charges brought against her today.

18             THE REGISTRAR:  Yes, Your Honour.

19             JUDGE AGIUS:  So I am now proceeding to enter a plea of not

20     guilty on behalf of the accused to both counts, and, Madam, you will just

21     place this on record, please.

22             THE REGISTRAR:  Yes, Your Honour.

23             JUDGE AGIUS:  The counts were read -- or the details of the

24     counts were given last time, so they don't need to be repeated.

25             Ms. Hartmann, I will refer this to the Trial Chamber so that the

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 1     Trial Chamber may act in accordance with Rule 62 bis of the Rules, and

 2     instruct the Registrar of this Tribunal to set a date for proceedings,

 3     pursuant to Rule 62 bis.

 4             There are a couple of other issues I would like to raise, the

 5     first of which is in relation to scheduling matters.

 6             During the or in the course of the initial appearance, I had set

 7     a deadline for the Prosecution or for the amicus curiae disclosure

 8     obligations pursuant to Rule 66(A)(2) of the Rules, which lapsed four

 9     days ago.  I would like to ask you, Mr. MacFarlane, if you have completed

10     your disclosure obligations within the set deadline.

11             MR. MacFARLANE:  Thank you, Your Honour.

12             The disclosure obligations have been completed.  The material, in

13     accordance with the Rule, was placed on a CD-ROM and was couriered to the

14     offices of Mr. Bourdon before the deadline, and I understand that that

15     material has been received by Mr. Bourdon.

16             JUDGE AGIUS:  Thank you, Mr. MacFarlane.  I have no doubt that it

17     has been received.  Indeed, there is a reference to the CD-ROM in one of

18     the two motions filed yesterday by the Defence of Ms. Hartmann.  And I'm

19     going to specifically refer to the problem that I have and the Trial

20     Chamber would have in deciding one of those two motions in particular;

21     namely, in not knowing the contents of that CD-ROM.

22             Now, I am not interested for the time being, for sure, in having

23     a copy of that CD-ROM, but I would like to have at least a list of the

24     documents -- a list and a description of the documents that have been

25     disclosed on that CD-ROM, and in what language they have been disclosed,

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 1     so that we can then proceed, et cetera.

 2             I would appreciate also, if you have interest in responding to

 3     any of those two motions, to expedite your reply, if possible by Tuesday

 4     or Wednesday of next week.

 5             MR. MacFARLANE:  That's fine, Your Honour.

 6             JUDGE AGIUS:  Okay, thank you.

 7             And this list, if you could provide us with the list that I have

 8     just mentioned at your earliest, I would appreciate that, because these

 9     two motions need to be decided as soon as possible.

10             MR. MacFARLANE:  Certainly, Your Honour.  There's a possibility

11     we might be able to arrange for that later this afternoon.  But failing

12     that, certainly on Monday.

13             JUDGE AGIUS:  All right, thank you.

14             Now, again, matters of scheduling.  The Chamber recalls that both

15     Mr. Bourdon and Mr. MacFarlane informed me, when we met in October, that

16     they were available -- they are available for trial during the month of

17     January of 2009.  I would like to have a confirmation from you again of

18     your availability during that month, and needless to point out that

19     ultimately it's the Trial Chamber that will decide the dates.  And since

20     you are public officers for the purpose of this Tribunal, your

21     obligations towards this Tribunal take priority over everything else.

22     But we're talking of January.

23             So I'll start with you, Mr. MacFarlane.

24             MR. MacFARLANE:  I made special arrangements to be available all

25     January, and I am available all of January, Your Honour.

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 1             JUDGE AGIUS:  All right, thank you.

 2             Mr. Bourdon.

 3             MR. BOURDON: [Interpretation] I don't have the transcript in

 4     front of me, the transcript of the hearing held a few weeks ago regarding

 5     possible dates that was in the first term of 2009, so in the first three

 6     months.  I told you then that I would look into the matter to see what my

 7     professional constraints would be then.  I do not claim to be the busiest

 8     lawyer in the world, Your Honour, but I do have heavy constraints, me,

 9     too.  And I received a note saying the constraints of the Tribunal should

10     have priority above all other commitments.  For instance, in Paris I to

11     have to be conciliatory, I know, and I do endeavour to be trying and

12     endeavouring to accommodate you as much as I can, but I really am busy in

13     January.  I have several trials.  One, for instance, or two before the

14     court offices.  I was appointed by the Paris municipality to a case of

15     fraud in election matters.

16             I'm really busy.  I'm really willing to do as much as I can to

17     accommodate you, but it is difficult, it is really tough in January.  I

18     don't know how Mr. MacFarlane is available, how much availability he has.

19     Maybe he is more available than I am, but it's really hard, and I would

20     really prefer to start as of the third or fourth week in February.

21             JUDGE AGIUS:  Last time -- usually my memory doesn't fail me,

22     Mr. Bourdon, but last time you said January will be fine, it's February

23     that you had a big problem with because you had a big case coming up in

24     Paris during that month.  So, anyway, we've heard what you have to say.

25             I have to consult with my colleagues on this, because we, too,

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 1     have a schedule that we have to honour, and we'll give you the dates of

 2     the trial, communicate to you the dates of the trial, very shortly.

 3             Because of the uncertainty, as such, of the date of the trial,

 4     and other matters following your recent filings, I am not in a position

 5     today to fix specific deadlines for the filing of the Prosecution and

 6     Defence pre-trial briefs, but I expect myself to be in a position to do

 7     so in the course of the coming week.  So be on the lookout, because in

 8     the course of next week, you will receive details as to the deadlines for

 9     the filing of the Prosecution and Defence pre-trial briefs.

10             In trying to prepare better for the trial, and this would, in

11     turn, also provide you with a better opportunity to plan, yourselves, I

12     would like to know whether, at this which I concede to be an early stage

13     of the proceedings, you are in a position to give an indication of the

14     approximate duration of your respective cases.

15             In particular, in your case it should be pretty easy to -- yes,

16     Mr. MacFarlane.

17             MR. MacFARLANE:  Thank you, Your Honour.

18             In terms of the evidence, itself, I'm excluding motions and

19     excluding Defence -- any Defence evidence that might be led, but in terms

20     of actual evidence to be tendered by the Prosecution, I believe it can be

21     done within a day, possibly a day and a half, as much as two days, but I

22     would expect it would be done in a day.

23             JUDGE AGIUS:  All right, thank you.

24             Incidentally, once you've mentioned motions, I can tell you

25     beforehand, since we have never worked together in the past, that it's

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 1     not my practice to utilise courtroom time to discuss motions.  Motions

 2     are filed, they are responded to, and they are decided.  Unless it is

 3     absolutely useful, no court time will be dedicated for the discussion of

 4     motions.

 5             Yes, Mr. Bourdon, the same question to you.  Do you think you are

 6     in a position today to give us a rough estimate of how much time you will

 7     require for your case?  I'm not -- I'm just referring to testimony

 8     evidence.

 9             MR. BOURDON: [Interpretation] Allow me to say, in passing, that

10     in order to make your work easier, I will file a motion to specify when I

11     am not available in the time schedule for the trial, so that we can

12     really arrive at a date that would be the best for all.  So I'll tell you

13     tomorrow.

14             As far as I am concerned, I would need basically about the same

15     time as the time suggested by Mr. MacFarlane.  That would be a day.

16             JUDGE AGIUS:  Thank you.

17             And when you said "a day, day and a half," before I interjected

18     and said, "Evidentiary stage only," did you also have in mind final

19     pleadings or you were excluding those?

20             MR. MacFARLANE:  No, I was excluding that.  That was purely the

21     testimonial and documentary evidence.

22             JUDGE AGIUS:  Okay.  I just wanted to make clear.  I expected

23     that to be the case, but I just wanted to make clear.

24             All right.  So we will hear further from you, then, Mr. Bourdon,

25     the next few days.

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 1             Prior to adjourning, is there any matter that you would like to

 2     raise, Mr. MacFarlane?

 3             MR. MacFARLANE:  Thank you, Your Honour.

 4             No, although I would like it noted for the record that my

 5     assistant, Lori Ann Wanlin, is with me this afternoon.

 6             JUDGE AGIUS:  All right, thank you.

 7             And, Mr. Bourdon, is there any other matter that you would like

 8     to raise at this stage?

 9             MR. BOURDON: [Interpretation] Yes, please.  Two things, very

10     briefly.

11             I'm now taking steps to echo what Mr. MacFarlane, to have an

12     assistant who will help me, he's a professor, a French professor in

13     international law.

14             One thing, very briefly.  I'm not as familiar as others may be

15     with the practices in this Tribunal, but I have sought information and I

16     will do my level best to assist this Tribunal.  You are very aware of it,

17     of course.

18             However, today, how shall I say, Ms. Florence Hartmann and myself

19     have some ideas as to the conditions in which she can exercise her

20     rights.  That was the purpose of the motions I filed.

21             I can confirm formally that I have received the CD-ROM that

22     Mr. MacFarlane was kind enough to disclose, but it's not in French, the

23     documents are not in French.  And very honestly, I may be very naive, I

24     was expecting the documents to be disclosed in French.  French is one of

25     the two official languages of the ICTY.  Ms. Hartmann is of French

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 1     nationality.  That's common sense.

 2             Therefore -- let me finish to say that I'm very willing to

 3     cooperate.  Don't get on your high horses.  It's not visible.  I am in

 4     the dark because we don't know when we're going to get the documents in

 5     French.

 6             JUDGE AGIUS:  Mr. Bourdon, you will get the position of the

 7     Tribunal in regards to your motions when we decide them.  In the

 8     meantime, I just stated barely two, three minutes ago that the court time

 9     is not for the discussion of motions, and this is not something that you

10     have raised, and it's something that the Trial Chamber will not have

11     difficulty in deciding one way or another.

12             Anything else?  None.

13             Okay.  So, let me see if I have anything else.

14             Yes.  Ms. Hartmann, you yourself, in case you would like to

15     raise -- Ms. Hartmann, is there any other matter that hasn't been raised

16     that you would like to raise at this stage before we adjourn?

17             THE ACCUSED: [Interpretation] Yes, Your Honour.

18             I believe that the documents disclosed by Mr. MacFarlane are not

19     sufficient, do not cover the entire case file.  In one part, a reference

20     is made to testimony that was not at all disclosed, and I would like my

21     lawyer to explain that more fully.

22             JUDGE AGIUS:  This is the subject matter of the first of the two

23     motions that were filed yesterday.  We're talking of those three

24     documents that were itemised or something else?

25             Yes, and then Mr. Bourdon, or Ms. Hartmann, I mean, whichever.

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 1             MR. BOURDON: [Interpretation] Yes, Your Honour.

 2             In a spirit of cooperation with the Tribunal, I wanted to raise

 3     this matter, but you interrupted me.

 4             But I wanted to say that we are going to file a new motion for

 5     very simple reasons.

 6             In the report produced by Mr. MacFarlane, mention is made of

 7     various statements, interviews, and reference is made to summaries of

 8     these interviews, to quotes taken out of these statements, and we believe

 9     that it -- of course it would be up to the Chamber to decide, but we

10     believe that in order for us to be able to defend ourselves properly, we

11     need to be fully notified and without any reservations of the full

12     content of the interviews conducted by Mr. MacFarlane.

13             I wanted to make sure that the Tribunal is very well aware of the

14     position of Ms. Hartmann, and I wanted to tell you that we find the

15     disclosure, as it is now, not sufficient.  We believe that

16     Mr. MacFarlane's is not complete, is not the full document, and this is,

17     without saying, that we also believe that Mr. MacFarlane's report is

18     empty.  But we'll come back to that later.

19             JUDGE AGIUS:  I understand you will be filing a motion.  Be as

20     specific as you can, please, so that we'll know exactly what documents

21     you are referring to.

22             Yes, Mr. MacFarlane.

23             MR. MacFARLANE:  This is the first time that I've heard that yet

24     another motion will be filed.  I won't be in a position to respond fully

25     until I receive all the motions.

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 1             JUDGE AGIUS:  All right, thank you.  But don't be surprised,

 2     because in all cases here we get a deluge of motions on a daily basis.  I

 3     basically decide an average of two or three a day orally and another one

 4     or two a day in writing.  So it's no surprise, but be prepared for it,

 5     both ways, both ways.  This is a small case, compared to the other cases.

 6             Anyway, there is no other business to transact, it seems.  We

 7     stand adjourned, and next time we meet will be either for the trial

 8     itself or for the pre-trial conference, if there is a need for one.

 9             Thank you.

10                           --- Whereupon the further appearance concluded

11                           At 2.49 p.m.