071119ED

Page 17839

1 Monday, 19 November 2007

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.06 a.m.

5 JUDGE AGIUS: Good morning, Madam Registrar. Could you call the

6 case, please.

7 THE REGISTRAR: Good morning, Your Honours. This is the case

8 number IT-05-88-T, the Prosecutor versus Vujadin Popovic et al.

9 JUDGE AGIUS: Thank you, ma'am.

10 All the accused are here. From the Defence teams, I notice the

11 absence of Mr. Ostojic, Mr. Lazarevic. I think that's it.

12 Prosecution, it's Mr. McCloskey, Mr. Vanderpuye, Ms. Janisiewicz.

13 Anyone else? All right.

14 Good morning, everybody.

15 Mr. Bourgon, you filed in the course of last week this urgent

16 motion in relation to audio or video reporting of the proofing sessions of

17 two witnesses. I suppose you have received the Prosecution response to

18 your motion.

19 When I say Mr. Bourgon, it's Mr. Bourgon, Ms. Nikolic, both of

20 you. What's your position now after -- are you withdrawing the motion?

21 MR. BOURGON: Mr. President, we will, indeed, be withdrawing the

22 motion. We are satisfied with the result of the motion, which is that we

23 will be provided with notes or audio recording coming from -- when they

24 meet with the witness. However, we are surprised by the Prosecution

25 position saying that they do not agree that this is an obligation that

Page 17840

1 rests on them to do that with a suspect.

2 In the end, Mr. President, what matters is we get those audio

3 notes when they do sit down with the witness and ask him any questions.

4 Thank you, Mr. President.

5 JUDGE AGIUS: All right. Thank you.

6 Any preliminaries?

7 Yes, Madam Nikolic. Good morning to you.

8 MS. NIKOLIC: [Interpretation] Good morning, Your Honours. Good

9 morning to my learned friends.

10 I would like to briefly present a problem that both my learned

11 friends from the OTP and we were faced with. This was the belated

12 disclosure of an audio recording that we received only yesterday. This is

13 an interview which the witness next to come, and I will not mention his

14 name because he's protected, gave to the Prosecutor's Office in

15 Bosnia-Herzegovina, which the OTP tried to compare with the transcript of

16 the interview.

17 Both my learned friends from the OTP and we found that there were

18 significant discrepancies between the recording and the transcript, and, I

19 believe, we exchanged mails all the way to the wee hours of the night.

20 There is another matter I would like to address the Trial Chamber

21 about, and that's the -- one of the upcoming witnesses. I don't think

22 he's protected, and that's Mr. Janjic who, when meeting with the

23 prosecutors for the first time, mentioned some events concerning Zvornik

24 or rather the Rocevici school. This witness presented this piece of

25 information for the first time when testifying before the Court in

Page 17841

1 Bosnia-Herzegovina, and, I believe, that the prosecutors learned this only

2 yesterday.

3 What is of great importance to the Defence, in order to properly

4 prepare for the cross examination, is that this audio recording of his

5 testimony be disclosed, and that's particularly important for the Defence

6 of Drago Nikolic. I sent several e-mails to my learned friends yesterday.

7 I hope that we will come to some sort of an agreement because, otherwise,

8 I believe that it will be very hard for us to cross-examine the Witness

9 Janjic precisely on these matters.

10 Thank you.

11 JUDGE AGIUS: Yes, is it on the same --

12 MR. ZIVANOVIC: Yes, I'd just like to join on to the submission of

13 Ms. Nikolic.

14 JUDGE AGIUS: Okay. Thank you, Mr. Zivanovic.

15 What's happening, Madam Fauveau?

16 MS. FAUVEAU: [Interpretation] [No interpretation]

17 JUDGE AGIUS: Okay. One moment. Un moment, s'il vous plait.

18 I am on the English channel. I'm not receiving any translation in

19 English, but let's move. She said she agrees completely with Madam

20 Nikolic's submission.

21 Yes, go ahead.

22 MS. FAUVEAU: [Interpretation] [No interpretation]

23 JUDGE AGIUS: Now we should be receiving translation. What's the

24 problem?

25 [Trial Chamber and registrar confer]

Page 17842

1 JUDGE AGIUS: It seems that we have a technical problem. Could

2 you say something else in French again, Madam Fauveau, so that we see

3 whether we are receiving translation?

4 MS. FAUVEAU: [Interpretation] [No interpretation]

5 JUDGE AGIUS: No, no, no. Can you say it in English?

6 MS. FAUVEAU: I can try.

7 JUDGE AGIUS: Thank you.

8 MS. FAUVEAU: In addition to what my colleague, Ms. Nikolic, said,

9 I would like to say that we received only yesterday the B/C/S statement of

10 the witness who is coming today. So the accused actually received, just

11 this morning, the statement that this -- about ten pages long. So what I

12 would like to ask or to the trial be postponed for one hour or so, that we

13 can consult with our client, or that our cross-examination start tomorrow

14 so that we have this afternoon to consult our clients.

15 JUDGE AGIUS: Let's not jump the gun because I don't think you are

16 in a position to know precisely if you need any time or if you need how

17 much time you need. So we'll work it out by the ear.

18 You need an hour and a half for your examination-in-chief,

19 Ms. Janisiewicz?

20 MS. JANISIEWICZ: No, a little bit less than that actually.

21 JUDGE AGIUS: A little bit less than that. Okay. We'll work it

22 out later. We'll play it by the ear.

23 In case -- because French has the same status as English here and

24 I want to make sure that anyone who wishes to follow the proceedings in

25 French is able to do so - are we in a position where-- we are now. Okay.

Page 17843

1 So Madam Fauveau and Mr. Bourgon and others who may wish to follow

2 the proceedings in French, you have that possibility now.

3 Okay.

4 Any further submissions, Mr. Meek?

5 MR. MEEK: Yes, Your Honour. Good morning.

6 It's my understanding that, in addition to the statement we

7 received in B/C/S just yesterday, we also received a DVD of the actual

8 statement given by this witness. Since -- I obviously can't read it and

9 my client hasn't had a chance to listen to it. Ms. Nikolic has informed

10 me that she has had time to listen to parts of it, and it varies quite

11 differently than the actual transcript.

12 That is another problem that she didn't bring up that we have. We

13 feel that our clients have a right to look at the evidence against them

14 and to prepare for cross-examination of these witnesses, and this

15 obviously did not give us time. I think Mr. Vanderpuye understands our

16 position on this issue.

17 JUDGE AGIUS: Now, who is going to respond to Ms. Nikolic's

18 submission and also the related submissions?

19 Mr. McCloskey?

20 MR. McCLOSKEY: Good morning, Mr. President, everyone.

21 We understand the problem. These witnesses are pretty simple

22 witnesses. They have the testimony from the ICTY from that. We -- while

23 we are not obligated to provide all the statements that are out there,

24 whether they be NIOD or state court or to the Dutch, we try to; and in

25 this situation, it came a bit late and later than we would have liked.

Page 17844

1 But we got them that information. They have it. I do understand the

2 problem.

3 There is the witness that I will be doing, Mr. Janjic, there is --

4 he testified and we have not yet got the testimony of the state court.

5 He's not protected, and I hope to get that if we are lucky today. But he

6 testified in this -- in this Tribunal for the Blagojevic case, so they

7 have all that material. They don't have everything in the way that we

8 would all like them to have it, but that's the way it goes sometimes.

9 I don't see a real reason for delay, especially for these

10 witnesses, but we continue to try to get this information. But the state

11 court and how they work, we are learning and we getting better cooperation

12 with them every day.

13 JUDGE AGIUS: Thank you.

14 Anything else?

15 Yes, Madam Nikolic?

16 MS. NIKOLIC: [Interpretation] Two points, Your Honours, in

17 relation to witness Janjic.

18 In addition to what my colleague said, there is one -- another

19 important matter. I do agree that both witnesses gave a statement before

20 this Tribunal. However, Janjic is directly connected to another witness

21 who testified last week as Witness -- protected witness 138. I don't want

22 to mention his name. Therefore, the information is -- could be far more

23 relevant than expected at this point.

24 Thank you.

25 JUDGE AGIUS: Yes, Mr. McCloskey?

Page 17845

1 Thank you, Madam Nikolic.

2 MR. McCLOSKEY: Yes, Mr. President. Mr. Janjic had originally

3 testified as a Defence witness in the Blagojevic case. He talked solely

4 about Potocari and about counting people. He told me last night that he

5 also went to Rocevic, and he apparently had testified about that.

6 Ms. Nikolic is more informed than I am on what he may have said at

7 that trial. In fact, if you have his testimony, I'd love to get it but we

8 don't have it yet. But we are trying to get it, and we'll do that as

9 quickly as we can. However, he didn't spend long at Rocevic, so I didn't

10 find it very -- it very informative frankly, but he did say he went to

11 Rocevic.

12 JUDGE AGIUS: Okay. Thank you, Mr. McCloskey.

13 Mr. McCloskey, I don't know if you wish to address the Trial

14 Chamber on your filing. You also have a filing. Would we need to go into

15 closed session?

16 [Trial Chamber confers]

17 JUDGE AGIUS: In relation to Witness 185, is there going to be any

18 submission or is there going to be a filing?

19 MR. VANDERPUYE: I know what you're talking about. I appreciate

20 that, Mr. President.

21 JUDGE AGIUS: Then we need to go into closed session.

22 MR. VANDERPUYE: Ms. Janisiewicz will address that.

23 JUDGE AGIUS: Okay. Let's do that. Thank you.

24 JUDGE AGIUS: Let's go into private session.

25 [Private session]