1 Monday, 10 December 2001
2 [Pre-Trial Conference]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 2.18 p.m.
6 JUDGE AGIUS: Please be seated. Would you call the case, please.
7 THE REGISTRAR: Yes, Your Honour. This is the case number
8 IT-99-36-PT, the Prosecutor versus Radoslav Brdjanin and Momir Talic.
9 JUDGE AGIUS: Good afternoon, everyone.
10 THE INTERPRETER: Would His Honour turn the microphone on,
12 JUDGE AGIUS: Yes. Good afternoon, ladies and gentlemen. Let me
13 just introduce myself as a new face to this Tribunal and as a new face to
14 all of you. I am Judge Agius, as you probably already know, I come from
15 Malta, and I look forward to working with the team of the Prosecution, the
16 team of the Defence, two teams of the Defence, in this quite difficult
17 case, I must say. I haven't been extremely lucky in the allotment
18 of -- allocation of the case compared to my other colleagues, but this is
19 something that I am used to. In my career of 25 years as a judge in my
20 country, the last 15 of which at the highest level, as a court of last
21 instance, I have been dealing with practically the worst cases that have
22 come up before the courts in Malta.
23 Before I proceed with the few things that I would like to tell you
24 today, I want to make sure that the accused are hearing me and that they
25 can understand what I am saying in a language -- in their own language or
1 in a language that they can understand.
2 Mr. Brdjanin, can you hear me, and can you understand me in your
3 own language?
4 THE ACCUSED BRDJANIN: [Interpretation] Yes, Your Honour, I can
6 JUDGE AGIUS: And General Talic, can you hear and understand me in
7 your own language.
8 THE ACCUSED TALIC: [Interpretation] I can hear you and I can
9 understand you. Thank you.
10 JUDGE AGIUS: Before I proceed, I would also like to confirm the
11 appearances as they have been indicated to me, and I would start first
12 with appearances for the Prosecution.
13 MS. KORNER: Your Honour, Joanna Korner for the Prosecution,
14 together with Anna Richterova, who sits to my right, also assisted by the
15 case manager, Denise Gustin.
16 JUDGE AGIUS: Thank you.
17 And appearances for accused Brdjanin.
18 MR. ACKERMAN: Your Honour, first of all, welcome to the Tribunal,
19 and we're delighted to have you here.
20 JUDGE AGIUS: Thank you.
21 MR. ACKERMAN: And you are not unlucky. You have drawn a very
22 good case and you will find that it's a pleasure to deal with those of us
23 who are representing the accused, at least, and perhaps even Ms. Korner.
24 I am John Ackerman. I represent Mr. Brdjanin. And with me today is
25 translator Ava Mirkovic and my legal assistant, Mr. Milos Peric. Thank
2 JUDGE AGIUS: Thank you. And appearances for General Talic.
3 MR. PITRON: [Interpretation] Good afternoon, Your Honour. Welcome
4 to this case. I represent General Talic. My name is Michel Pitron. I'm
5 being assisted by Ms. Natasha Fauveau. I have another colleague who
6 sometimes comes to the hearings, that is Mr. Xavier de Roux.
7 JUDGE AGIUS: [Interpretation] Thank you. [In English] Let me
8 start from here, and I will try to be short. I am quite familiar with
9 your faces, because as soon as I was assigned the case, having had some
10 experience back home with inheriting cases, the first thing I did, I asked
11 for a video recording of the previous sittings so that I could take stock
12 of what exactly happened, also because of the various pieces and bits and
13 pieces of information that was being fed to me by my legal assistants and
14 by others in this Tribunal. But the most important reason for doing so
15 was precisely because rather than following the previous proceedings by
16 going through piles and piles and papers, it was easier, and I have always
17 found it easier to follow it on the screen.
18 So I am -- let me assure you not with just your faces but also
19 with all that has gone under the bridges in these last months including,
20 in particular, the last Status Conference which I had the pleasure of
21 watching again this morning in my apartment for the third time.
22 Let me make things clear. I am in the habit of putting first
23 things first, and according to me, the most important thing in this trial
24 before we even start it and later on when we start it to ensure that the
25 two accused will have a fair trial, will not only have a fair trial but
1 will also have a fair trial in the shortest time possible. That is
2 priority number one on my agenda.
3 Number two is that I realise that during the past sessions,
4 hearings, sittings, there may have been some friction, some
5 misunderstanding sometimes between the Prosecution team and the two teams
6 for the Defence, sometimes between either or both of you and the Presiding
7 Judge. I have gone carefully through all that has happened, and it is my
8 idea today to suggest to you to leave what has happened in the past, not
9 exactly forget all about it, but try to look forward once the journey lies
10 ahead rather than look backwards and try to repeat or start all over again
11 things that have actually contributed to this pre-trial stage into
12 becoming sometimes an arena for misunderstanding and for -- let's leave it
13 at misunderstanding and not choose any further words.
14 I am starting more or less with a clean slate, and my offer to you
15 is one of full cooperation to bring to an end this pre-trial stage within
16 the shortest possible time and proceed again within the shortest possible
17 time to the commencement of the trial.
18 As you know, a trial date has been set for January 21st and I
19 think it is my duty to echo and repeat what Judge Hunt, my predecessor,
20 has made clear in the last hearing that unless there are very, very
21 serious considerations, the Chamber will be very reluctant to entertain
22 any suggestions or proposals or motions for a delay in the beginning of
23 the trial. So this is something which I am keen on and something which
24 will be at the back of my mind as we go along.
25 I am, of course, prepared to listen to everything that you have to
1 say, and it is my proposal to you today to go step by step and review the
2 situation in this Pre-Trial Conference on each and every aspect that I
3 think ought to be discussed and cleared during this sitting, and following
4 this Pre-Trial Conference, then we will have, I hope, a short final Status
5 Conference before we can then start with the trial as such.
6 I conclude by saying that I think and I feel sure, at least I am
7 assured but my legal and clerical staff that I have in my possession all
8 the documentation as of today including the revised fourth amendment and
9 including the translation of the various motions that the Defence of
10 General Talic have presented. I had read them in French which I
11 understand but I don't speak very well. I will try to follow what you
12 have to say in French sometimes and by the end of the trial, I'll probably
13 be as fluent as you are, but I will try and cover as much territory as we
14 can today.
15 Please bear with me if this hearing will be a long one, but I
16 think it ought to be as long as necessary so that we try and cover all the
17 terrain that we need to before we proceed for the trial.
18 I would like the Defence, the two Defence teams to confirm to me
19 whether they have received this morning the copy of the amended text of
20 the fourth amended indictment. The fourth amended indictment was
21 corrected or updated in terms or in accordance with Judge Hunt's decision
22 of the 23rd of November. The copy was delivered to me this morning and I
23 would like to know whether the Defence is in possession.
24 Mr. Ackerman.
25 MR. ACKERMAN: Your Honour, I received it as I arrived at the
1 court. I haven't had a chance to look at it and of course my client,
2 Mr. Brdjanin, has not seen it and can't until it's been translated.
3 JUDGE AGIUS: Yes, Mr. Pitron.
4 MR. PITRON: [Interpretation] We find ourselves in that same
5 situation, Your Honour. I received in the documents when I came into the
6 courtroom so I was not able to read it nor was my client.
7 JUDGE AGIUS: That is exactly what I was expecting to hear because
8 I would have probably complimented you had you told me that you had gone
9 through it and confirmed that the changes to it were in accordance with
10 Judge Hunt's decision.
11 However, my legal staff has gone through it in the course of the
12 morning and they assure me, although I don't want to feel bound by what I
13 am saying, they assure me that it is in conformity, it has been changed,
14 the amendments to it are in accordance with Judge Hunt's decision of
15 November 23.
16 Before I move to the matter of disclosures, is there anything that
17 either the team for the Prosecution or teams for the Defence would like to
18 add with regard to the indictment?
19 I know, Mr. Pitron, that you have filed an appeal against the
20 decision of the 23rd of November regarding the amendments to -- and I have
21 also seen your pre-trial brief as it relates, in part, to the same merit
22 that forms part of your appeal application or appeal motion. Would you
23 like to add anything in that regard?
24 MR. PITRON: [Interpretation] No, Mr. President. I think things
25 are clear as they are. That's as you said. We appealed the decision
1 rendered by Judge Hunt in respect of the last indictment. We also filed
2 an application for dismissal of charges and an application for setting
3 aside of various stages of the procedures. I believe that you have all
4 those documents and therefore you're in a position to be familiar with the
5 very fully explained position of the Defence.
6 JUDGE AGIUS: One other thing: I'm very pleased with the way you
7 have responded to my question. My style of conducting proceedings - I
8 think it's only fair to advise you about it - is that I can assure you
9 that each and every document that is presented, I go through several
10 times, from the first word to the last, so you can expect me to come here
11 in the courtroom fully familiar with the contents of each and every
13 When the document consists in submissions, one thing that more or
14 less sometimes irritates me is that it is then followed by oral
15 submissions which essentially repeat almost verbatim the contents of the
16 written submission. I have been taught as a young judge many years ago
17 that I ought to make allowances because I have to concede, and as an
18 ex-defence lawyer, I know exactly what it means, that my client used to
19 expect me -- expect to hear me say something, and something really worth
20 hearing, in open court. So that you can rest assured that I understand,
21 and you will find me very cooperative. However, I appeal to your sense of
22 cooperation, of which I am a hundred per cent sure, from what I have seen
23 and from what I am seeing now, that there may be times when I will call
24 upon you to cut short and not repeat unduly what is already contained in a
25 written document. I will do that only when I feel that you are
1 overstepping what I would expect to be reasonable.
2 Of course, I will leave you all doors open for airing anything new
3 that is not contained, in other words, in the written documents, or
4 anything that you may have thought -- you may think ought to be stated by
5 way of clarification or better explanation of what is contained in the
6 written statements or written memoranda.
7 I think we will get used to each other. I'm telling you this
8 because this is a trial, like many other trials, where a lot of
9 cooperation is necessary and where we have necessarily to be patient with
10 one another, and therefore I'm telling you this beforehand so that you
11 will know more or less where you stand with me.
12 Disclosure. I know that this was a hotly debated issue during the
13 last Status Conference, and I want to make sure that all outstanding
14 matters related to disclosure will be concluded today.
15 Let me first put a question to Ms. Korner with regard to Rule
16 66(A). Is it the intention or is the Prosecution planning to call any
17 additional witnesses apart from those which have already been declared?
18 MS. KORNER: Your Honour, before I answer Your Honour's question,
19 could I just ask Your Honour for clarification on one matter that you
21 JUDGE AGIUS: Yes, certainly.
22 MS. KORNER: You told us that you had received translations of all
23 of the motions made by General Talic.
24 JUDGE AGIUS: Yes.
25 MS. KORNER: We haven't. We've had a translation only of the
1 appeal document.
2 JUDGE AGIUS: No. I have -- mind you, I received these roughly
3 about two hours ago, and I have the application for leave to appeal --
4 MS. KORNER: Yes. We have that.
5 JUDGE AGIUS: -- which I suppose you have. Then I have the
6 translation of the request to dismiss charges, which was filed on the 7th
7 of December, and also the -- the dismiss charges I do not --
8 MS. KORNER: There's two -- like Your Honour, I read French,
9 although my spoken French, regrettably, has disintegrated. The second
10 motion is to dismiss anything to do with Talic and the ARK Crisis Staff.
11 MR. PITRON: [Interpretation] Would you like me to give you a brief
12 summary of the documents we're speaking about in order to expedite
14 MS. KORNER: I think, Mr. Pitron, I have your document in French.
15 I simply don't have the English translation.
16 JUDGE AGIUS: They were made available this morning. It could
17 well be that --
18 MS. KORNER: Your Honour, I didn't want to waste Your Honour's
19 time on this matter --
20 JUDGE AGIUS: No, no, but it is important, because although these
21 will -- the motions themselves can still be dealt with in the original
22 language. On the other hand, I fully endorse much of the complaints that
23 have been forthcoming from both sides in the course of the former
24 proceedings, that each one of you should be put in a position where they
25 can feel that they are -- they have come here prepared to deal with
1 whatever needs to be dealt with. And I realise that in many instances, if
2 there is a document which has not yet been translated and which is on the
3 day's or on the sitting's agenda, that could create problems. I mean, I
4 understand, for example, had, on your part, you come up with problems with
5 regard to the changes to the fourth amended indictment, I would have
6 probably had an answer ready for you. But with regard to translations and
7 all that, of some very important documents, I quite agree they should be
8 made available. I have told you that I have had mine barely two hours
9 ago. I asked for them last week, before I embarked on my weekend
10 enjoyment, and all I know is that I was informed that they were translated
11 today and they were ready. But I'm sure that the registrar will see to it
12 that they are handed to Ms. Korner as early as possible.
13 MS. KORNER: Your Honour, I'm sure, if they were only translated
14 this morning, there's a system by way that they're given to the various
15 people involved, and it obviously hasn't gone through that.
16 JUDGE AGIUS: They have. I can lend you mine if you want.
17 MS. KORNER: I would simply say although I was going to make a
18 suggestion to Your Honour about motions once the trial had started, that I
19 hoped that Your Honour wasn't going to ask me to deal with them orally
21 JUDGE AGIUS: No, of course not. Of course not. I do realise
23 But my idea was to have those motions that could be disposed of
24 prior to the commencement of the trial itself, I will dispose of. That
25 very much depends on the exchange of written submissions or replies or
1 whatever and whether there will be any further hearings required which,
2 frankly, I don't think of. I mean the -- Mr. Pitron's motions are quite
3 detailed. They are in a way reflected also sometimes word for word also
4 in his pre-trial brief. In other words, I mean there is a lot of common
5 ground. My intention is to have everything ready before the trial
6 starts. So the -- you will find me cooperative obviously, and I would
7 appeal to cooperation from your side as well so that you will put me in a
8 position where I can do that.
9 MS. KORNER: Your Honour, certainly. I mean the reason that we
10 don't answer them when they're lengthy like that until we get a
11 translation is although we can read French we're not altogether sure we've
12 got the right nuances.
13 May I just mention at this stage I know Your Honour's asked a
14 question which I'm going to answer. It would be my suggestion because of
15 this difficulty of translations that once the trial starts, so that all
16 counsel are here, of course when counsel are in the United States and
17 France and here it's difficult, that the application should be made orally
18 with a skeleton argument in advance because otherwise, if they are in
19 writing, we go through this -- the same problem each time that each side
20 waits for a translation --
21 JUDGE AGIUS: Yes.
22 MS. KORNER: -- whereas in open court we have the translators
24 JUDGE AGIUS: That is very true and that's a very practical
25 approach, I must say, Ms. Korner, and I hope the message is taken. Of
1 course I am in not in a position to control the presence of each and
2 every, I mean I'm pretty sure that Mr. de Roux, if he's not here today, he
3 has got his good reasons and I wouldn't even ask what these good reasons
4 are. I've worked with lawyers all my life and as an ex-lawyer myself, I
5 know that more or less if there is the -- an entente cordial between the
6 Defence, Prosecution, and the Judge and there is always the assumption
7 that everyone operates in good faith and to the best of his or her
8 ability, then most of the time there is no need for questions asked for
9 questions answered.
10 Still, I realise the importance of the presence of each and every
11 person. I also notice that there is a change in face during the last
12 Status Conference. You were flanked on your right by a gentleman --
13 MS. KORNER: Mr. Cayley.
14 JUDGE AGIUS: -- who is not here today. Is Mr. Cayley still a
15 member of the team?
16 MS. KORNER: Yes. As Mr. Ackerman never fails to point out, the
17 Prosecution team has a number of lawyers attached to it all doing
18 different things at various different times. Mr. Cayley is a senior trial
19 attorney like myself, but at present is not here. I mean he's not in the
21 JUDGE AGIUS: Okay. So disclosure?
22 MS. KORNER: Your Honour, can I deal with --
23 JUDGE AGIUS: My first question was whether you have any
24 additional witnesses.
25 MS. KORNER: Yes, and I was about to answer that.
1 JUDGE AGIUS: Yes.
2 MS. KORNER: As we notified the Defence and as Your Honour knows,
3 because there's a motion for protective measures in respect of witnesses
4. for whom the Prosecutionís latest motion for protective measures refers I don't
5 know how familiar Your Honour is from Your Honour's researches with the problems of
6 calling such witnesses. The only reason --
7 JUDGE AGIUS: I know we dealt with the problem in the preparatory
8 commission works for the International Criminal Court and having heard
9 Amnesty International, for example, or Red Cross, I know exactly what the
10 problems are. I have also read your motion for protective measures with
11 regard to the witnesses that are referred to there.
12 It was my intention to come to that at a later stage, but because
13 I take it -- when I'm asking you whether you have any additional
14 witnesses, I am not referring to those. I am asking you to take that for
15 granted that those will be additional witnesses, the only question
16 remaining being whether and to what extent they should be protected and
17 what kind of protective measures. So additional witnesses means other
18 additional witnesses.
19 MS. KORNER: Then Your Honour, there are statements or the other
20 witnesses are experts who are referred to in the pre-trial brief.
21 JUDGE AGIUS: Again, I am coming to experts later on. Expert
22 witnesses and forensic witnesses --
23 MS. KORNER: Exactly.
24 JUDGE AGIUS: -- I'm coming to that later on. Apart from those,
25 any additional?
1 MS. KORNER: Your Honour, there will be a statement from the lead
2 investigator in this case who will deal with where the documents, each of
3 the documents in the exhibit list comes from plus a general overview of
4 the investigation.
5 JUDGE AGIUS: This is a person whose name --
6 MS. KORNER: Is mentioned on the -- I'm not sure he's mentioned
7 but he's the lead investigator. I'm not sure his name is mentioned in the
8 pre-trial brief. It's more certainly to allow the Defence to know where
9 each document that we are using emanates from.
10 JUDGE AGIUS: And this is a pleasure yet to come for the Defence.
11 MS. KORNER: It is. We've had the investigator going through the
12 list but in fact, they know -- they should know already because as they've
13 been disclosed. They've been told what they are.
14 JUDGE AGIUS: Do I have a commitment on your part that this will
15 be something that will be concluded before the trial starts?
16 MS. KORNER: Oh, yes, certainly. I -- Your Honour, every time
17 I've said by a certain date, for one reason or another something's gone
18 wrong but --
19 JUDGE AGIUS: I'm not querying it.
20 MS. KORNER: -- it will be disclosed before, I hope, the Christmas
22 In addition to that, Your Honour, there is one statement that
23 relates purely, if I use the expression "crime-base evidence," which we
24 hope would be disclosed by Friday of this week.
25 JUDGE AGIUS: And is this to be covered by some protective, demand
1 for protective measure or not or is it just a clear-cut ...
2 MS. KORNER: Your Honour, can I say this? I can't say that at the
3 moment because the statement is, at the moment, being taken in Bosnia.
4 JUDGE AGIUS: All right.
5 MS. KORNER: It's to deal with one matter that we've been unable
6 to cover so far by direct evidence although it's been covered by indirect
8 JUDGE AGIUS: Okay.
9 MS. KORNER: Your Honour, in addition, does Your Honour wish me to
10 move on or to raise topics yourself.
11 JUDGE AGIUS: No, I would rather prefer to raise topics myself and
12 then obviously whatever I miss which I -- which you point out to me and I
13 will come back to it. But I do have what my intention is to take topic by
14 topic. At the moment, we are talking of discussing disclosure and before
15 concluding on that, well obviously I will ask you whether you have
16 anything else to add or to comment on to say. Okay?
17 During the last Status Conference, Ms. Korner, the conclusion was
18 that not all witness statements had been disclosed to the Defence, and it
19 was very clear that the reason for that was not a shortcoming on the part
20 of the Defence but a problem of translation. Has that problem been solved
21 or is there reason to believe that the Defence have not yet received the
22 totality of --
23 MS. KORNER: Would Your Honour give me one moment while I just
24 find out?
25 JUDGE AGIUS: Yes. In the meantime, if Mr. Ackerman or
1 Mr. Pitron, if you can remember or you can think of any witness statement
2 that you expected to be handed to you by today and hasn't been handed over
3 or you are expecting it, please let me know. It will help put the
4 Prosecution in a better picture.
5 MS. KORNER: I'm sorry. Your Honour, as I understand it of the
6 translations of the disclosed witness statements from English into the
7 Bosnian language, there's only one, possibly two still not received back
8 from the translation unit.
9 Your Honour, there are all sorts of problems associated with
10 translation, one of which is particular, and perhaps I ought to raise it
11 straight away. Your Honour, in relation to a witness who produced a
12 lengthy diary about -- both Defence applied to have Your Honour exclude it
13 because it wasn't translated, I'm sorry, not Your Honour, the Chamber.
14 JUDGE AGIUS: For a moment I was going to feel happy.
15 MS. KORNER: We told the Trial Chamber and those defending that
16 600 pages of that diary would be translated by the 21st of January when
17 the trial started. We did so because that is what we were told and we had
18 it in writing from the translation unit. What was not appreciated by the
19 translation unit was that these pages were typed, and we've received a
20 second memo which I have somewhere, Your Honour, dated the 7th of December
21 which state that, "One page of the original document which is single
22 spaced with no margins works out to almost two standard pages in
23 translation. The total figure of 1.800 original pages therefore is closer
24 to 3.500 standard pages in translation."
25 They say that they can produce 600 standard pages by the 21st.
1 They were talking about translation unit standard pages, but that, as I
2 understand it, means for the actual reality only 300 pages.
3 There's then, I don't think I need to trouble Your Honour with
4 what's the discussion at how further translation is to be achieved at this
5 stage, but I wish to correct straight away that we said 600 pages. I hope
6 it is accepted that we said so in all innocence judging by what the
7 translation unit said. So ready by the 21st of January only 300 pages.
8 Your Honour, I do however reiterate that because of this, although
9 the evidence will be taken out of context, as it were, because we intend
10 to start with the Banja Luka municipality, nonetheless the witness will
11 not give evidence until such time as we have achieved translation of the
13 JUDGE AGIUS: Still, I quite appreciate that. I also appreciate
14 the difficulties that this Tribunal encounters generally with translation
15 problems and how that affects the important task that you have to carry.
16 Still, I'm sure that you also appreciate, and you will cooperate with me
17 and the other two Judges who will be joining me in this trial later on, in
18 trying to have all the relevant, necessary documentation readily available
19 the day the trial commences. I will be later on appealing to you to
20 organise the trial from the Prosecution point of view. You will be
21 conducting your own case to start with, and therefore you necessarily have
22 to make out a plan, and what I have just said enters within that plan. In
23 other words, if the diary and the contents of the diary become important
24 not in the first stage of the trial but in a subsequent, later stage of
25 the trial, then you are going to find me very cooperative in that. If,
1 instead, there is reason to believe that the contents -- or knowledge of
2 the contents of that diary may be important for the Defence in following
3 and contesting what is done, what happens in the first stage of the trial,
4 then I want to make sure that that diary is available before or
5 immediately the trial starts, because that is very important.
6 I mean, I repeat: I come from the defence, and I have spent the
7 last 15, 18 years of my career deciding criminal cases in the criminal
8 jurisdiction but also in the constitutional human rights due process
9 context, and I attach a lot of importance to what I consider to be correct
10 by way of due process and a fair trial. And I know you will not be
11 impressed, because now it's catching up also in the United Kingdom, the
12 French are more familiar with it, the Americans, of course, have got the
13 experience of the Supreme Court. But I feel inspired all along by the
14 decisions of the European Court of Human Rights, and in my work, I try to
15 follow the decisions of the European Court of Human Rights, not because
16 they are binding on this Tribunal but because I consider them to contain
17 the principles which a good judge feels he or she ought to follow. This
18 is basically it.
19 So I think I'm making myself understood. Anything -- I appreciate
20 that you are going to have your first phase of the trial, your second,
21 your third, fourth, or whatever. I am going to put my trust completely in
22 your hands that you will make sure that the Defence will have all the
23 documentation necessary to be able to start and follow the trial in its
24 first stage, from very day one.
25 MS. KORNER: I see Mr. Ackerman is on his feet, but can I just
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 mention something before he does say?
2 JUDGE AGIUS: Does she have your permission?
3 MR. ACKERMAN: Of course.
4 MS. KORNER: The situation with the diary is that we are
5 attempting -- we are going to make all attempts to get this translated
6 somehow or other. If necessary, we will alter the plan of the trial,
7 although it does make more sense, because Banja Luka is the major, as it
8 were, the hub of what happens, to start that. I should add: We can at
9 least get summaries of the contents, and at least the accused know what's
10 in it because they can read the language.
11 JUDGE AGIUS: Let me interrupt you. I think this matter came up
12 before. Already it was mentioned, and I understand there was an objection
13 on the part of the Defence for General Talic. So unless the position of
14 counsel for General Talic has changed, I would suggest you do not go into
15 it. What I was going to suggest is that I'm sure that in your team you
16 have several who are conversant with the B/C/S and who can assume the
17 responsibility of identifying from that diary the various parts that
18 require to be translated, not just from your point of view but also from
19 the Defence point of view, before anything else, because I'm sure
20 that -- when I was very young, I used to keep a diary myself, but there
21 were important entries and less important entries. I mean, I remember
22 when I used to play football, and I used to put every Saturday and every
23 Sunday how many scores, how many goals I would have scored that weekend.
24 Looking back today, that's not important, but there are other things that
25 are important. They were important then and they are still important
1 now. And I would suppose that that way, if you think you can rely
2 entirely on your B/C/S-speaking members of your team and assume the
3 responsibility of having translated all that you think is important, then
4 you will be putting yourself in a situation where the Defence would
5 definitely find it difficult to argue that they were not given the
6 totality, et cetera. Because if the rest is not important, it's not
7 important in the beginning and it will remain not important until the very
8 end. I mean, if it's not important. But it's a responsibility that you
9 must be prepared to carry.
10 MS. KORNER: Your Honour, may I tell Your Honour, I didn't want to
11 interrupt, but that's what we did.
12 JUDGE AGIUS: That's good.
13 MS. KORNER: The pages that have gone in for translation are not
14 simply that we've started with page 1. We have selected from having had
15 members of the team read through those pages which appear to be relevant
16 to the case. The 600 that we had selected covered the period between
17 April 1992 and I think it was September, which are the major events. So
18 we've done that. But the Defence rightly say they want translation of the
19 whole document.
20 JUDGE AGIUS: They have a right. They definitely have a right.
21 But then obviously every right is relative. I mean, it's ...
22 MS. KORNER: Yes, Your Honour. I'm sorry.
23 JUDGE AGIUS: Mr. Ackerman. Sorry for having kept you waiting for
24 so long.
25 MR. ACKERMAN: No problem at all. I think it might be helpful for
1 you to have some context with regard to this whole problem of documents.
2 The Prosecution, when they provide us with documents, generally have a
3 chart which lists all the documents that have been provided, and that
4 chart will say, for instance, that documents were disclosed on 7 December
5 2001. That's the date that the Prosecutor puts them in a package and
6 sends them toward me. Now, I may not get them for several days after
7 that. I won't get these 7th of December documents actually in my hands
8 until next week sometime. Some of them will be in English and some of
9 them will be B/C/S. I can't read the B/C/S, of course.
10 What happens once they arrive at my office is they go through a
11 process that involves putting them through a scanner, getting them
12 computerised, things like that. They are then organised and sent to Banja
13 Luka, where the people whose job it is to investigate what's contained in
14 those documents and to read them, if they can, if they're in B/C/S, it's
15 their job then to start that process. So from the time the Prosecutor
16 sends me a document on December 7th until my people in Banja Luka can even
17 begin the process of dealing with it can be as long as 30 or 40 days,
18 depending on the number of documents.
19 For instance, within the last 30 or 40 days, I've been served with
20 about 6.300 papers of purely witness material. That doesn't include
21 exhibits and things like that. It takes an enormous amount of time just
22 to process those 6.300 pages and then to get them to Banja Luka, and then
23 they have to go through them all. And just sitting down and reading 6.300
24 pages of material takes days and days, and so we're dealing with that kind
25 of a problem.
1 Now, the Prosecutor tells you that it is their intention to begin
2 this trial with the Banja Luka municipality. I spent the entire day
3 yesterday working on that very issue, on those very witnesses. I can tell
4 you there are a number of documents that are either English only or B/C/S
5 only that are contained within those materials dealing with the Banja Luka
6 municipality. So there are some documents in the Prosecution materials
7 that I can't read, and there are some documents that my people in Banja
8 Luka can't read, and if that's the case when this trial starts in a few
9 days, we will be terribly handicapped. Because when the Prosecution calls
10 a witness, we should at least have had the opportunity to read the
11 material supplied with regard to that witness and conduct whatever
12 investigation might be necessary to prepare for cross-examination of that
14 So what I foresee, for instance, with Banja Luka municipality,
15 this 2.000-page diary that we've been talking about that I can't read
16 deals with the Banja Luka municipality for a two-year period, a period
17 that's crucial to this indictment. Judge Hunt said in his order - he was
18 very prescient about that - that once I have an opportunity to read that,
19 it may be necessary that a number of witnesses be recalled for further
20 cross-examination because there were things in that diary that I would
21 have asked those witnesses had I known about it. So what I foresee is
22 that we're going to have -- we're going to first of all start with the
23 worst possible municipality for trying to deal with that 2.000-page
24 document, if we started with Banja Luka, but I also recognise it's the
25 logical place for the Prosecutor to start this case.
1 The translation problems are enormous. I have -- I will turn over
2 within the next day or two a large number of documents to the Tribunal's
3 translation department, and who knows when those might be done. But I
4 can't even think of providing them to the Prosecution until I know what
5 they say, and I won't know what they say until they've been translated,
6 because I might not want to use them as evidence. So the translation
7 problems are enormous, Judge, and I don't want them to be minimised,
8 because --
9 JUDGE AGIUS: I am not minimising them in the least. I am fully
10 aware of them, and that's why I started off telling you earlier on today,
11 in the beginning of this hearing, that I have gone through the video
12 recordings of the previous sittings, because this problem seems to be
13 endemic, and it's a big problem.
14 Mr. Pitron, I expect you fully endorse what Mr. Ackerman has
15 said. I'm just calling upon you to see whether you would like to add
16 anything to what ...
17 MR. PITRON: [Interpretation] Your Honour, I share fully what
18 Mr. Ackerman said. I would like to emphasise one point, however, which I
19 believe is very important. We began by saying that you would emphasise
20 the absolute necessary, you say the absolute priority was to have respect
21 for the rights of the accused and I'm very pleased by what you said
22 because I am of those who believe that the necessary respect for the
23 rights of the accused is one which allows for excellent justice to be
25 There is a fundamental point and all of us know that, that is
1 Defence cannot be understood, appreciated, except in overall terms. We
2 can understand what direction to give the -- to the strategy that we are
3 going to have, how we are going to cross-examine the witnesses only if we
4 know all of what the Prosecutor is going to bring forward, that is to have
5 translations, full translations of what we are -- we are now encountering
6 a very serious problem, that is the most of the Prosecutors exhibits were
7 disclosed recently to us. I'm not saying that they were late because you
8 asked us not to enter into polemics.
9 This morning, I received a list that is -- that is the start of
10 the afternoon a list of new statements and to hear the Prosecutor telling
11 me now that I will receive a list saying that it has new statements of
12 former witnesses and I hear the witness -- Prosecutor saying that there
13 was to be a few more that were going to come. I am in a very difficult
14 position now to put up a consistent defence all the more so because all of
15 these documents that I received from the Prosecution to date are documents
16 which they have had a long time, at least most of them.
17 Sometimes I am disturbed, I'm bothered because I wonder whether
18 the Prosecutor didn't have the time to study the documents, was the
19 Prosecutor in a hurry and that's -- maybe that's the reason I received
20 them late or has he -- has she been keeping them for a reason, I don't
21 know why, and giving them to me late. So that puts me in a difficult
22 position and makes it difficult for me to understand them and to respond,
23 and that's what I wanted to emphasise. I need to see all of the
24 Prosecutor's documents and I very officially am requesting once again, I'm
25 asking the Prosecutor to tell us definitively when disclosure will be
2 JUDGE AGIUS: We are basically turning back to you, Ms. Korner.
3 From what I gather, the outstanding disclosure matters relate to a
4 statement from the lead investigator.
5 MS. KORNER: Yes.
6 JUDGE AGIUS: Which is -- should be forthcoming soon, another
7 statement which is crime-based evidence which should materialise this
8 week, then there are one or two statements that still require to be
9 translated and then forwarded to the Defence, and this humungous diary
10 translation problem.
11 MS. KORNER: Yes, Your Honour, there are still some outstanding
12 translations that have been outstanding for some time relating to
13 documents but, Your Honour, one of the difficulties has been, and it's
14 perhaps a difference of expression between the parties, is that these
15 statements are made by the Defence about new statements being served this
16 morning, and in their response to the pre-trial brief there were various
17 allegations about lateness. It may well be that the two offices are
18 counting in different ways, but let's put it at that.
19 Your Honour, what has to be done under the Rules is that where we
20 call a witness, we have to search through the material held in this
21 Tribunal which, as Your Honour can appreciate, is massive over the last
22 eight years or so to see whether that witness is mentioned in other
23 statements or has made statements to other authorities which, without
24 making the search, we're not aware of when we had to do a number of
1 What was disclosed this morning were the searches, the material
2 that relates to witnesses that the Defence already have the statements of
3 who we have said that we intend to call, and this is the material that has
4 been produced. Those searches, Your Honour, are -- we have completed
5 searches in respect of 109 of the witnesses we intend to call. 32
6 searches have been completed but have not been reviewed because obviously
7 a lot of material that is thrown up is wholly irrelevant and one of the
8 complaints from the Defence has been that we are giving them irrelevant
10 There are 42 searches still to be completed. That material will
11 all be disclosed before the trial starts but we have not disclosed any new
12 witness statements this morning to the Defence.
13 JUDGE AGIUS: Okay. I'm referring to Rule 68, disclosures,
14 exculpatory, is there any?
15 MS. KORNER: Your Honour, the outstanding matters are that, again,
16 there are searches being conducted not of statements but of what can be
17 described as.
18 JUDGE AGIUS: This is in addition to what you have just stated.
19 MS. KORNER: Yes, we are now talking Rule 68 entirely. We have
20 completed the Rule 68 disclosure of all documentary material and the like
21 that we know about. Your Honour, may I say, you can never say we've
22 disclosed every single exculpatory document we've had because there's just
23 too much of it, but we never stop making sure that we've done it. But as
24 a final, as it were, search, we are looking at notes kept by investigators
25 of conversations with people, not signed statements which may --
1 JUDGE AGIUS: Are you referring to the Banja Luka interviews that
2 were mentioned during the previous --
3 MS. KORNER: No, we've dealt with that.
4 JUDGE AGIUS: So this is something different.
5 MS. KORNER: No. Can I very briefly explain?
6 Your Honour, obviously the investigations particularly into this
7 part of Bosnia have been going on since 1994. During the course of those
8 investigations, clearly hundreds of people have been spoken to by
9 investigators and notes made of what they say, but for one reason or
10 another, statements were never taken or signed statements were never
12 We are now attempting, and I use the word because there's a mass
13 of stuff to go through, all that material to see if there are, contained
14 in those notes, material which could be potentially exculpatory of these
15 two accused.
16 Your Honour, as I say, we could never really say we ever finally
17 put a stop to Rule 68 disclosure.
18 JUDGE AGIUS: I realise that. I realise also that knowing that
19 there is a responsibility on your part. You do exactly what other
20 prosecutors in other countries with the same system do. Just make sure
21 that you have as much in your hands which necessarily means that you will
22 be passing on the baby to the other side sometimes that have to decide
23 what is exculpatory and what is not. And I understand also that although
24 the Defence may have its -- their complaints on this, in reality, I am
25 sure they also understand that this is something that more or less is
1 almost unavoidable. But anyway, I will come to that at a later stage.
2 So more or less what you're telling the Tribunal is that the
3 discovery stage with regard to Rule 68 matters, material is still
4 underway, it's nearly completion, and that it's not completed because you
5 are trying to reduce as -- minimise the exercise or reduce the number of
6 materials that make --
7 MS. KORNER: Your Honour, I don't -- Your Honour may be
8 slightly -- I won't say confusing two matters. The witnesses that we've
9 served, we're giving all the material whether it's Rule 68 or whatever if
10 it's relevant. In other words, if the witness made a statement to the --
11 to another country's authorities, that they get that even if it says more
12 or less the same thing.
13 If a witness has testified before, which, in this court, a number
14 of them have, then they get all of that material as well. So that's what
15 the searches involve. The Rule 68 material, we have searched through all
16 the document collections that appear to be relevant to this case and
17 completed Rule 68 on that.
18 As we understand the Defence, as Your Honour will have seen, it's
19 not very clear from either of the pre-trial briefs that the Defence have
20 served exactly what the Defence is other than a complete denial, and that
21 doesn't assist.
22 JUDGE AGIUS: Let's put it like this: There are two pre-trial
23 briefs from the Defence, one from Mr. Ackerman on behalf of Mr. Brdjanin
24 which is a mere three pages and more or less it outlines, in a very
25 concise way, the main arguments or the various types of denial. On the
1 part of General Talic, it's a much more detailed pre-trial brief which
2 also enters into the legal aspects which Mr. Ackerman reserved for later.
3 MS. KORNER: Your Honour, I want to raise those pre-trial briefs
4 at some stage. If Your Honour wants me to deal with them now --
5 JUDGE AGIUS: By way of reciprocal disclosure or --
6 MS. KORNER: That's another topic as well.
7 JUDGE AGIUS: Exactly. Okay. Let's jump and you can raise it now
8 and perhaps we can deal -- but leave out the reciprocal disclosure matter
9 because I think you can reach a compromise between the two of you on that
10 if you reduce it to the basics.
11 MS. KORNER: Your Honour, may I leave that topic for a moment.
12 JUDGE AGIUS: Yes.
13 MS. KORNER: Your Honour will have seen that we've put in a
14 response to the pre-trial brief that was supplied by Mr. Ackerman.
15 Your Honour, on the basis that we -- it is our view, particularly
16 given the detail that we went into in our pre-trial brief, that it is an
17 inadequate response and does not comply with the rule. Now, Your Honour,
18 I'm not asking Your Honour to make a ruling on that at the moment. Your
19 Honour's seen what we have to say.
20 JUDGE AGIUS: Well, I will definitely not make a ruling on it
21 mostly because I will tell you in very plain language that had I been
22 Mr. Brdjanin's Defence counsel, I would have probably done exactly the
24 I prefer not to go into greater detail at this stage, but
25 Mr. Ackerman's pre-trial brief more or less corresponds with what I think
1 ought to be a pre-trial brief on the part of the Defence.
2 MS. KORNER: Your Honour, I think the difficulty is that both Your
3 Honour and I come from jurisdictions where it was not incumbent upon the
4 Defence to give the Prosecution any indication.
5 JUDGE AGIUS: No, not exactly but you can't extract from the
6 Defence beforehand the -- specifically the line, because you know, we have
7 all lived trials and sometimes -- I am sure that you come from the Defence
8 as well, as I understand it.
9 MS. KORNER: I do.
10 JUDGE AGIUS: And I am not going to teach any one of you but you
11 know how things change in a trial and all of a sudden, a trial will take a
12 twist and a turning that was completely unexpected, and you have to have
13 all the presence of mind and legal knowledge and sense of pragmatism and
14 practice to adapt yourself to the circumstance and the situation as it
15 arises be it the Prosecution who has to suffer this or be it the Defence.
16 And this is why I believe that the less one ties himself or herself to
17 very, very specific parameters by way of line of Defence or whatever, the
18 better it is.
19 I mean I would have done -- I mean I do not intend to praise
20 Mr. Ackerman's pre-trial brief, but I mean it's not far from what I would
21 have expected.
22 MS. KORNER: Your Honour, of course although our rules in the
23 United Kingdom have changed slightly, and one of the reasons they have
24 changed is because it's thought right that the fairness of a trial is
25 fairness for all sides, that is, the State who bring the Prosecution who
1 act on behalf of the people, and in International Tribunals for, as it
2 were, all States, and the Defence. And it is no longer thought right and
3 clearly that is why this rule was promulgated that the Defence should be
4 able to take the Prosecution by surprise, by surprising not revealing what
5 its Defence was. And if Your Honour looks at the Rule, which is
6 Rule 65 ter (F), Your Honour will see that in general terms -- what must
7 be set out is in general terms the nature of the accused's defence, the
8 matter which the accused takes issue in the Prosecutor's pre-trial brief
9 and in the case of such matter, the reason.
10 Now, Your Honour, I don't want to go through our -- Your Honour
11 said earlier we needn't go through our written submissions, but that has
12 not happened.
13 Your Honour, in respect of -- can I leave Mr. Brdjanin's pre-trial
14 brief or Mr. Ackerman's because I think, as I say we've set out clearly
15 what we say has not happened.
16 We haven't responded in writing. We have not responded in writing
17 to the pre-trial brief on behalf of Momir Talic as yet, and indeed perhaps
18 I can deal with the points now that we submit have not been covered,
19 rather than yet again in writing, and therefore causing translation
21 Your Honour, one of the major aspects of the Prosecution case
22 against General Talic - or not one, but certainly a significant one - is
23 the running of a camp called Manjaca. No response is given in the
24 pre-trial brief which even mentions Manjaca. There is nothing about
25 whether or not, although we've had this discussion before, international
1 armed conflict is going to be an issue in this case, equally not in
2 Mr. Ackerman's brief, exhumations, and nothing really about the law at
4 Your Honour, if the answer is that General Talic accepts the
5 allegations that we make about Manjaca, that is well and good, but I would
6 consider that it's most unlikely that he does. Your Honour wishes to
7 leave reciprocal disclosure for later, but Your Honour, in our submission,
8 it is --
9 JUDGE AGIUS: No. I would prefer you to go straight into -- if
10 you have concluded on the part regarding your response or your reaction to
11 General Talic pre-trial brief, then you can move to the reciprocal
12 disclosure matter and deal with it, so that then I can ask Mr. Pitron to
13 reply to you.
14 MS. KORNER: May I say, Your Honours, of course the sanction is
15 that they would not be allowed to call evidence if it's not shown that
16 it's disputed. Your Honour, reciprocal disclosure, both accused invoked
17 the provisions of Rule 66(B) and it's been discussed on a number of
18 occasions in the Status Conferences. We wrote to both accused on the 1st
19 of November, asking them to provide us with any material they intended to
20 use as evidence. We've had no response from either accused, or the
21 Defence for either accused, and I think that for what Mr. Ackerman says,
22 the response is going to be "I don't know what documents I'm going to be
23 using because they have not been translated yet." Well, it may well be
24 that they have not been translated, but I assume that, like us,
25 Mr. Ackerman - and I know he has co-counsel who come from the Republika
1 Srpska - must be able to tell Mr. Ackerman what is in those documents and
2 whether or not they are likely to be used in trial. Your Honour, the
3 rules are here --
4 JUDGE AGIUS: That's with regard to Mr. Brdjanin's pre-trial
6 MS. KORNER: Yes.
7 JUDGE AGIUS: With regard to General Talic's pre-trial brief, do
8 you have any reciprocal disclosure issue raised or not?
9 COUNSEL: Yes, Your Honour. We've written to both men, saying --
10 JUDGE AGIUS: Yes, but with regard to Mr. Ackerman, you've more or
11 less -- had stated that already formally in your reply to his --
12 MS. KORNER: Oh, I see. I follow.
13 JUDGE AGIUS: With regard to General Talic, since there is no
14 written replies yet, I haven't understood so far that you are claiming
15 that there is a reciprocal disclosure issue as well. Are you --
16 MS. KORNER: Yes.
17 JUDGE AGIUS: You are as well.
18 MS. KORNER: Yes. Your Honour, I'm sorry. I hoped I was dealing
19 with it in this way.
20 JUDGE AGIUS: I see.
21 MS. KORNER: Your Honour, we've had no response from counsel for
22 General Talic in respect to our request, and we would be - can I put it
23 this way - slightly surprised if there was no documentation that the
24 Defence for General Talic intended to produce during the course of the
25 trial. Again, Your Honour, the same principle applies: Although
1 Mr. Pitron and Mr. de Roux may not speak the language, Madam Fauveau does,
2 and therefore, again, they must know what is in the documents and whether
3 they're likely to use them or not.
4 JUDGE AGIUS: So let me suggest to take these issues one by one,
5 and I call on Mr. Ackerman first to address the reciprocal disclosure
6 issue first.
7 MR. ACKERMAN: Your Honour, very simply, the Rule requires me to
8 disclose to the Prosecution any document that I intend to use as
9 evidence. I have not yet identified any document that I intend to use as
10 evidence. I have some documents that I can read, and I know what they
11 say, and there's at least the possibility that some of them are
12 evidentiary material. I have, as I mentioned earlier, a very large number
13 of documents that I just received that will be sent off to translation, so
14 I can determine exactly what the contents of those are. I have no idea
15 whether I'll use even one of them as an exhibit or not.
16 If Judge Hunt's estimate of how far away we are from starting the
17 Defence case is anywhere near correct, it's a long time before the
18 Prosecutor's case ends. A lot of what we might decide to use as Defence
19 evidence will depend on what happens in the Prosecution's case. It may be
20 that it's not necessary to provide certain exhibits because
21 cross-examination may be successful to a point where providing exhibits
22 would be a waste of the Court's time.
23 I will assure the Court of this: At the exact moment that I make
24 a determination to use a document in evidence, I will get copies of it,
25 both in B/C/S and English, to the Prosecutor in as timely a manner as I
1 possibly can, which will probably be very quick, but I can't at this point
2 give them documents that I think there is the remote possibility that I
3 might use as evidence if I don't even know what they say.
4 JUDGE AGIUS: Is that satisfactory to you, madam?
5 MS. KORNER: Your Honour, if that means that before a witness is
6 about to be - for the Prosecution - is about to be cross-examined on a
7 document, the day before or an hour before we're given a copy of that
8 document --
9 JUDGE AGIUS: If that is what Mr. Ackerman means, then I will be
10 very cross with him, and I am sure from reading not just between the
11 lines, but if -- I am pretty sure that that's not what he meant.
12 You said that you were going to do your absolute best to be able
13 to identify these items of evidence, whatever they may be, and as they may
14 prove to be necessary.
15 MR. ACKERMAN: Yes. Your Honour --
16 JUDGE AGIUS: And that you will --
17 MR. ACKERMAN: If I had a document --
18 JUDGE AGIUS: -- do your duty in good time.
19 MR. ACKERMAN: If I had a document that I knew I was going to use
20 in the cross-examination of one of the Banja Luka witnesses, I'd give it
21 to them today. I don't have such a document, I just don't.
22 JUDGE AGIUS: Mr. Pitron, are you more or less in the same
24 MR. PITRON: [Interpretation] Your Honour, I won't speak at
25 length. I cannot allow the Prosecution to say that General Talic is the
1 reason for the delay as regards disclosure. I simply recall that when I
2 submitted our pre-trial brief, I still did not have the Tribunal's
4 JUDGE AGIUS: The Tribunal is definitely not seeing where it could
5 put any blame on your client for any delay that there has been or there
6 might be. Your client is certainly not to blame, so you don't need to
7 convince me on that.
8 MR. PITRON: [Interpretation] I'm speaking about myself, not my
9 client, Your Honour.
10 JUDGE AGIUS: [Previous translation continues] ... even more than
11 that, because I have had the opportunity to follow what you are been doing
12 so far, you and Mr. de Roux, and I have no reason to complain.
13 MR. PITRON: [Interpretation]: Very briefly, then. Until very
14 recently, I did not have a final or definitive indictment. That was a
15 very important point, that is, the charges against General Talic as to
16 whether or not he was a member of the ARK, of the Crisis Staff. The issue
17 has still not been resolved, because it has been sent to the Appeals
18 Chamber, and therefore, under such circumstances it is difficult for me to
19 take a position, as I've already said, in respect of a Defence strategy.
20 In the same way, until very recently, and I still don't have all of the
21 documents which I can understand myself and which my client can understand
22 in order to set out a Defence strategy. That's the only reason why,
23 despite myself, I have been unable to disclose to the Prosecution all the
24 documents that it's asking for.
25 JUDGE AGIUS: I would imagine that there must be some documents
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 that you are in a position to disclose in any case, I mean irrespective of
2 the problems that have arisen and that you have very rightly referred to.
3 Because I realise that there is an appeal pending. I realise that there
4 has been and there continues to be the question relating to the ARK crisis
5 group. I do understand -- I was complaining myself, until last Friday,
6 that I did not have an updated copy of the latest version of the
7 indictment, so I fully sympathise with -- I also understand that there are
8 problems which are endemic to -- and not just relating to this case, but
9 which permiate the whole operation in this Tribunal, all the work in this
10 Tribunal. The Tribunal is plagued with certain problems on which neither
11 you, nor Ms. Korner, nor Mr. Ackerman, nor anyone else has got control,
12 unfortunately, and we have to live with those. So there are times when
13 one has to close a blind eye and move ahead.
14 The most important thing for me is, and let me make myself clear,
15 and this is not -- I am not suggesting anything to you or to Mr. Ackerman
16 or to Ms. Korner, et cetera. What I don't want is anyone to take
17 advantage of the unfortunate situation that we find ourselves in and play
18 a game. This is what I want to avoid. I am not saying -- and for the
19 moment, I definitely do not suspect that Ms. Korner or Mr. Ackerman or
20 Mr. Pitron, any one of you three are playing this game or that you intend
21 to play this game. But it is also important that whatever is at the
22 moment within your possession and which you could let the other side have
23 by way of discovery, please do it, because then if you don't, there will
24 be problems later on, and this is what I want to avoid.
25 What I am all the way appealing to you to do with me is to forget
1 about things that have happened in the past in this case, and let's start
2 fresh. I said I'm starting with a clean slate, and so are you. Let's
3 forget the past and concentrate on the future. I know that there have
4 been instances where there were complaints coming from the Prosecution
5 that they had written to you and you had not replied, or that you had
6 refused to do what, in the opinion of the Prosecution, they would have
7 expected you to accept. I know that this has happened. They happen
8 everywhere. They happen all the time. I'm used to this. But there comes
9 a time when you realise, or everyone should realise, that the case is
10 going to start. It's going to start on the 21st of January, and it may
11 well be important at this stage, and before the 21st of January, to have a
12 more practical approach.
13 I understand and I fully agree with you that you may not be in a
14 position to disclose all the material that the Prosecution in one way or
15 another expects. That I fully understand. But I also -- I am also fully
16 confident that you must have in your possession material which you can
17 disclose at this point in time, pending further disclosures later on as
18 the material becomes known to you and as it becomes available. And this
19 is my appeal to you. If between now and the trial you think that you will
20 have or you would have identified material which ought to be disclosed,
21 then I appeal to you to make an open commitment or make a commitment in
22 open Court today with the Tribunal to do that so that we try to lessen the
23 divergences that there may be between the two parties. Then I can assure
24 you will have every opportunity to fight it out between you during the
25 trial and that I will enjoy every single minute of it while you are at
1 it. In the meantime, please don't take a rigid position. If there is
2 material that you can, in all honestly, disclose, please do it, because
3 you will make the life of each and every one of you, and including my own,
4 less difficult. I wouldn't say easier, but certainly less difficult.
5 MS. KORNER: Your Honour wouldn't care to make an order to that
6 effect, that before the 21st --
7 JUDGE AGIUS: Ms. Korner, I mean my problem is this: that I very
8 much sympathise with the Defence at this point in time that they may well
9 truly be in a position which they would be taking great risks to say, "We
10 don't have material" or "This is the material that we have. This is all
11 the material."
12 I tend to sympathise with their position, but I also would
13 certainly not be prepared to accept that at this late stage in the
14 proceedings already, neither of them is in the position to at least
15 disclose some material. It would take them a lot of persuasion to
16 convince me that they are not in a position to do that.
17 This is why rather than making an order and this is exactly my
18 approach to you, and I hope you will appreciate it, rather than taking the
19 rigid position myself and start making orders here and there, I'm putting
20 until now my trust in your good judgement and in your sense of cooperation
21 with each other, with one another and with the Tribunal, and I appeal to
22 you to show me if you have any material which you can, in respect of the
23 problems which you have mentioned, because I'm appreciative that you do
24 have problems. I fully know that you have big problems. But still, I
25 feel confident. I'm pretty sure that you have material that you can here
1 and now disclose to the Prosecution and we can take it up from there, I
2 mean without prejudice to other material that may become -- may come in
3 your possession or which you may become aware of later on and which you
4 undertake to disclose at a later stage without prejudicing the right of
5 the Prosecution to be prepared herself in conformity with the basic
6 principles of equality and parity of arms.
7 MS. KORNER: Your Honour, I hear what Your Honour says and I'm not
8 going to press the matter further at this stage other than to say that
9 past experience here of documents being produced at a late stage results
10 in applications not surprisingly for adjournments so that the documents
11 can be examined, and I would hope that if documents are produced at a late
12 stage to the Prosecution, that Your Honour would be sympathetic to that.
13 JUDGE AGIUS: Ma'am, I can assure you that I will be sympathetic
14 with whoever and whatever is reasonable. I have never expected miracles
15 in -- from anyone in trials. I fully understand how busy you must be with
16 this case as -- and I fully understand how much -- how busy the Defence
17 team equally is busy, especially I fully understand also, and I don't want
18 you to misunderstand me, that all along even though I have been on the
19 bench for so many years, I realise that most of the time until the trial
20 begins and sometimes until the trial comes to the stage where the
21 Prosecution is closing, it's concluding its case, most of the time the
22 Defence is somewhat not always at par with the Prosecution.
23 My experience has taught me that the Prosecution has always got
24 the edge over the Defence, particularly before the trial starts in that it
25 has more time to collect -- to gather the evidence and to organise itself
1 and especially in an environment like this where there has to be -- where
2 there are translation problems and discovery sometimes, in particular,
3 under Rule 68 takes the form of sending whole shipments to the Defence,
4 the Defence may find itself in bigger problems than the Prosecution.
5 I hope that you appreciate what I am saying because I repeat to
6 you what I have just said to Madam Korner that you will find me reasonable
7 when you are reasonable, and where there is justifiable -- not for an
8 adjournment, but giving reasonable time for one to organise his or her
9 efforts, I will do that.
10 I also realise that as the trial unfolds, there will be surprises
11 for everyone. There will be time when you are going to ask me for time to
12 reorganise your own house, and there will be times when the Defence will
13 be doing the same thing. You're not going to find me very difficult there
14 if you are reasonable.
15 MS. KORNER: Well, Your Honour, can I just mention, I see
16 Mr. Ackerman is on his feet again, but that's the point. Of course both
17 sides will be asking for adjournments when unexpected things arise and
18 that is why the rule is in place so that if there are documents of which
19 the -- and I've heard Mr. Ackerman's response, that the Defence know that
20 they're going to use and to sit on them until closer to a time when they
21 are going to use them, in my submission, would be wrong and would require
22 us to ask for adjournments that are not necessary.
23 JUDGE AGIUS: There I fully agree with you in the sense that, and
24 I'm sure -- Mr. Ackerman, you may sit down for the moment, I will spare
25 you the -- as I understand it, and as I understand it should be, and I'm
1 addressing Mr. Ackerman and Mr. Pitron as well as you. If Mr. Ackerman is
2 aware of a piece of evidence that he may or may not choose to make use of
3 at a later point in time, he does not have the option not to disclose it
4 now. The moment he knows, he is aware of that piece of evidence, then he
5 is duty-bound to disclose it to you. That is the situation.
6 He is obviously free later on to organise his Defence the best way
7 he chooses and as the need arises and as the trial unfolds, and he may
8 actually decide not to bring forward some witness and that is his
9 privilege and the Tribunal will not interfere with that privilege, just as
10 it will not interfere with your privilege not to summon some witnesses
11 that you have declared to now as being your intention to summon. That's
12 your privilege.
13 However, what I am doing now is to appeal to the Defence, in
14 particular, at considering and acknowledging that you do have problems and
15 acknowledging that certain documents you will discover the need for
16 discovery at a later stage. If you have anything that you can make
17 available to the Prosecution now, in good time, before the trial starts
18 then you -- it is, by my conviction, that you should make it available.
19 I will not make any orders now as requested by the Prosecution
20 because I would rather prefer to make an order when I think that an order
21 is definitely in place as we go further in time, and as I think the excuse
22 or justification that you have brought forward today no longer holds
23 water, then I obviously will make an order, but I will --
24 THE INTERPRETER: Your Honours, excuse us, could the interpreters
25 respectfully request a break. They need some time.
1 JUDGE AGIUS: Certainly. I am --
2 MS. KORNER: I think a break is being asked for.
3 JUDGE AGIUS: Yeah. Okay. I will close this argument and we will
4 have a break for 20 minutes. Would that be okay with the interpreters?
5 THE INTERPRETER: Thank you very much, Your Honour.
6 JUDGE AGIUS: So I think you have taken my message and you will
7 also make use of this 20-minute break to discuss it amongst yourself. I
8 think some liaison between you is important. I'm not asking for the
9 impossible, I am just asking for what is reasonable at the moment and I
10 can assure you that if there is this kind of cooperation forthcoming from
11 the Defence, you will find cooperation forthcoming from me when you need
12 it at a later stage. That applies to you as well obviously. The sitting
13 is suspended for the next 20 minutes. Thank you.
14 --- Recess taken at 3.54 p.m.
15 --- On resuming at 4.16 p.m.
16 JUDGE AGIUS: Please be seated. So --
17 MS. KORNER: Your Honour, may I -- I'm sorry. There's one matter
18 before we leave the pre-trial briefs served by the Defence, which I had in
19 a slightly different section. Does Your Honour have a copy of the one
20 served by Mr. Ackerman available?
21 JUDGE AGIUS: The pre-trial brief?
22 MS. KORNER: The pre-trial brief.
23 JUDGE AGIUS: Yes.
24 MS. KORNER: Yes. Your Honour, in paragraph 2(G) --
25 JUDGE AGIUS: 2(G), the documents emanating from ARC?
1 THE INTERPRETER: Microphone, Your Honour, please.
2 MS. KORNER: Exactly. Your Honour, we read it twice, and we just
3 want to clarify, while Mr. Ackerman is here and so that Your Honour
4 knows: Is that stating purely that except for certain exceptions,
5 documents were not signed by Brdjanin, or is it saying that where the
6 documents are, on the face of it, signed by Brdjanin, the signature of
7 the -- the authenticity of the signature is disputed? Because if that's
8 right, that raises an issue, and I wonder, if I could ask for
10 JUDGE AGIUS: Yes. Mr. Ackerman.
11 MR. ACKERMAN: Yes. The vast majority of the documents are not
12 signed by Mr. Brdjanin. Even though it appears to be his signature, it is
13 not. And the Prosecution should notice that most of those have the word
14 "za" preceding the signature, clearly indicating that it was signed by
15 someone else.
16 MS. KORNER: I'm sorry. Your Honour, is it where the signature,
17 excepting that not -- that a large number are not signed, but where the
18 signature, on the face of it, appears to say "Radoslav Brdjanin" or
19 "R. Brdjanin," is the Defence assertion that that is not his signature
20 and someone has signed in his stead?
21 MR. ACKERMAN: Yes, that's clearly the case. In fact, many of
22 them will say "za R. Brdjanin" or "za Radoslav Brdjanin." That is -- "za"
23 means for. Somebody is signing it for him.
24 JUDGE AGIUS: Yes, but that is different. I mean, I think, from
25 what I can understand, with regard to these documents which state or
1 purport to state at the end "for Brdjanin," you are alleging, if I read
2 you well here, that, first, that "for" means that they were not signed by
3 him; secondly is that they were not approved by him and/or were not issued
4 with his knowledge or permission. This is what you are alleging. But the
5 question that Ms. Korner has specifically put to you is a little bit
6 different. She is asking you whether you are also alleging that in some
7 documents you don't have "for Brdjanin," but Brdjanin's full name,
8 Radoslav Brdjanin, purporting to be his own personal signature when in
9 actual fact it's a forged one.
10 MR. ACKERMAN: Yes, that's true. There are --
11 JUDGE AGIUS: That's also true.
12 MR. ACKERMAN: I believe there are one or more documents of that
14 JUDGE AGIUS: So I think it's only fair to call upon you, if it is
15 possible, between now and the commencement of the trial to identify those
16 documents and indicate them to the Prosecution, because as you will
17 certainly understand, there may be the need for a calligraphic expert or
18 handwriting expert to establish the authenticity or otherwise of that
19 signature as we go along.
20 MR. ACKERMAN: Yes.
21 JUDGE AGIUS: And I would rather prefer to take the necessary
22 steps at an early stage, or as early as possible, on that rather than
23 leave it to the end.
24 MR. ACKERMAN: I can do that.
25 JUDGE AGIUS: I leave it to you. I mean, I'm putting full trust
1 in you, as I stated earlier.
2 MR. ACKERMAN: That should not be a problem, Your Honour.
3 JUDGE AGIUS: Okay. Thank you.
4 MS. KORNER: Your Honour, there will be one further request, and I
5 make it. I didn't expect an answer, because obviously Mr. Ackerman will
6 have to take instructions, and that is whether his client will agree to
7 provide samples of his handwriting.
8 As I say, I don't expect there to be an answer now.
9 JUDGE AGIUS: Well, I wouldn't ask Mr. Ackerman to give an answer
10 because I am sure that you may have other documents which contain the
11 signature, what you consider to be the authentic signature of Radoslav
12 Brdjanin and the comparison could be made with that.
13 MS. KORNER: Your Honour, the majority as with many of the -- many
14 of the documents are photocopies and in my experience, I've no doubt Your
15 Honours', experts would prefer to have an original.
16 JUDGE AGIUS: Definitely but we come to that -- we cross that
17 bridge when it's time. And I think you have got the messages and --
18 MR. ACKERMAN: I have, and I'm even prepared to give the
19 Prosecutor an answer and the answer is no it is the law of this Tribunal
20 that we do not have to --
21 JUDGE AGIUS: -- that's why I said I will not insist with you.
23 Mr. Pitron, you will recall that Ms. Korner made specific mention
24 of the Manjaca - pardon me if I don't pronounce the word correctly -
25 Manjaca camp and the -- her complaint is that you did not, in your
1 pre-trial brief, respond to her accusations with regard to this camp. So
2 rightfully she would like you to make a statement now as to whether you
3 are contesting the allegations of the Prosecution as contained in the
4 indictment with regard to the Manjaca camp or whether your silence in that
5 regard in your pre-trial brief means that you are accepting those facts or
7 MR. PITRON: [Interpretation] As it seems to be that I wrote in the
8 various submissions I have made, I contested all of the Prosecutor's
9 allegations including those having to do with Manjaca.
10 JUDGE AGIUS: Yeah, okay. Incidentally, let me take advantage of
11 the situation as it obtains at this very moment.
12 You realise as much as I do that we are now with a fourth
13 re-amended indictment. Basically when this case started way back, I don't
14 remember when, you had both entered -- your client, your respective
15 clients had both entered a plea of not guilty to the indictment, to the
16 charges as they resulted from the indictment then on that occasion.
17 Mr. Ackerman's pre-trial brief of the 16th of November in paragraph 1
18 states what to me is very obvious but I want to formalise it to be precise
19 for the future.
20 He starts his brief by stating that defendant Brdjanin had pleaded
21 not guilty to the indictment, a plea which persists through successive
22 amendments to the indictment and this is, according to me, how it should
23 be. But I would like you just to formalise this matter once and for all
24 before we start the trial to reiterate, if you feel it's the case of
25 reiterating it, that each of your respective clients maintains the plea of
1 not guilty even at this stage without prejudice, of course, to General
2 Talic appeal, pending appeal on the decision of the 23rd of November with
3 regard to the fourth amended indictment. I mean that is obviously without
4 prejudice, remains without prejudice, but can I formalise that what
5 Mr. Brdjanin's attorney stated in his pre-trial brief, namely that the
6 plea persists, plea of not guilty persists throughout all the subsequent
7 amendments, successive amendments to the indictment, can we record it in
8 other words?
9 MR. ACKERMAN: Are you asking the defendant to actually rise again
10 and say again that he's not guilty, or do you just want me to say on his
12 JUDGE AGIUS: I want to hear it from you first, in other words,
13 that you are maintaining your position and also from Mr. Pitron so that I
14 can actually ask your respective clients to do that.
15 MR. ACKERMAN: Our position is being maintained. He still
16 maintains he's not guilty despite all the amendments to the indictment and
17 makes that plea with regard to every amendment that has been made to the
19 JUDGE AGIUS: And Mr. Pitron, always without prejudice to your
20 other motions, pending motions, and also appeal.
21 MR. PITRON: [Interpretation] Absolutely not guilty.
22 MS. KORNER: Your Honour, I'm sorry, may I just go back and
23 correct one matter which Ms. Richertova has reminded me about disclosure.
24 We are still receiving asked and unanswered documents from various sources
25 and recently arrived was a criminal file in relation to what is
1 colloquially known as the Mount Vlasic massacre, it's one of the ones
2 mentioned in the killings. The file -- there was an investigation by the
3 authorities. We asked for the file because we thought it would be
4 important to the Defence. It's recently arrived so that will be coming
5 their way as soon as we've managed to get it in some form of translation.
6 JUDGE AGIUS: Can you spell that for me, please?
7 MS. KORNER: V-l-a-s-i-c with an accent aigu.
8 JUDGE AGIUS: Vlasic.
9 MS. KORNER: And one document arrived in relation to Bosanski
10 Petrovac which will be disclosed as soon as we can get a translation
11 done. I may say we're not sending it into the translation unit, we are
12 going to try and get it translated within the Office of the Prosecutor.
13 JUDGE AGIUS: Okay. Let me jump now to the expert witnesses
14 question. This was very briefly dealt with during the last Status
15 Conference, and my recollection -- actually, it's not just a recollection,
16 I don't think I need to remind you what the situation was. Your
17 indication was that you intended to call something like 10 expert
18 witnesses. You had mentioned one with regard, a historian. I mean what
19 is the situation now? Do you still intend to call 10 expert witnesses?
20 MS. KORNER: It's -- in fact, Your Honour, it will be eight.
21 Dr. Donia who has given evidence in a number of trials, I've made
22 inquiries because he will be the first witness but effectively most of
23 what he will say has been said before. I hope to have his report by the
24 end of this week to have a look at it and hope to get disclosure out. No
25 other expert's report has yet been received.
1 JUDGE AGIUS: So basically may I ask you what has been disclosed
2 to the Defence so far with regard to expert witnesses?
3 MS. KORNER: No experts have been disclosed. Literally the reason
4 is not that I am abiding by the 21-day rule which is the rule, but simply
5 that we haven't had the reports. We mentioned the names --
6 JUDGE AGIUS: And the 21-day rule basically, as I think I might as
7 well tell you now, as I see it, doesn't mean a 21-day rule before the
8 trial starts but it's a 21-day rule before you intend to summon that
9 witness and -- but also you have -- or rather we have to make an allowance
10 for further 14 days then which the Defence have a right to -- in case they
11 want to cross-examine. So more or less the Tribunal will want to know
12 beforehand, well beforehand that the Defence is being put in a position
13 where they can inform the Court in good time whether they intend to have
14 the expert witness cross-examined or not.
15 That's very important.
16 Secondly, one other thing that I felt I ought to hint at at this
17 stage, and then obviously I do not intend to force it on either the
18 Prosecution or on the Defence, but I am pretty sure that a substantial
19 part of what you may want to prove by means of these expert witnesses may
20 not be necessarily contested by the Defence. In other words, for example,
21 there may be some historical events or some geographical details. I don't
22 know exactly the details of what you want to prove by these expert
23 witnesses. But if you think, between now and when the need to produce
24 these expert witnesses arises, that there may be the possibility of asking
25 for the cooperation of the Defence, and rather than bringing over experts
1 and taking the time of the Court, of the Defence and yours, and involving
2 also the Tribunal in unnecessary expenses, this same information could be
3 obtained by direct reference to existing depositions in previous cases,
4 provided there is the concurrence of the Defence, then perhaps we could
5 contemplate that. Again, I do not intend to force anything on anyone at
6 this stage in particular, but I am mentioning this because I realise that
7 the case should be contested where it really is important to contest, and
8 other matters which are not so fundamentally different, which should be
9 the same for the Prosecution and for the Defence, on which there should be
10 no dispute, I think I could rely on the cooperation of all parties later
11 on. And I want you to realise that if you take this approach, you stand
12 to gain, all of you. I mean, this is something which I hope I will
13 convince you will be beneficial to each and every one of you there.
14 There may be instances where I may have to put my foot down and
15 ask you to curtail the number of witnesses that you intend to produce if I
16 think that we are dealing with repetitive material, and I am sure that
17 there are pieces of evidence which do not involve the -- do not implicate,
18 directly or indirectly, any of the accused, which may not be contested by
19 the Defence. If you could possibly identify these areas and come to some
20 sort of pre-agreement with the Defence, that would be very much appreciated
21 by the Tribunal. I know -- and I don't want you to tell me, "I have
22 written to Defence counsel before and they did not have the decency or the
23 courtesy to even reply." I don't want to hear it anymore. If it has
24 happened, let's forget all about it. Start with a new page, as I said.
25 I'm sure that Mr. Pitron and Mr. Ackerman are taking my message. There
1 are instances when I would do exactly the same, believe me, but there are
2 instances where I think it would pay me to be cooperative and economise on
3 time, in particular, and also be practical.
4 MS. KORNER: Your Honour, that does actually bring me to one of
5 the topics I wanted to raise first. In respect of experts, we will be
6 giving the Defence the reports as and when they're ready to go rather than
7 waiting. With Dr. Donia, really we intend to put in his report and deal
8 with just the parts that we think are of the most relevance to the case,
9 depending, of course, on how familiar Your Honours are with the history of
10 the conflict and how much Your Honours would want to hear. That's the
11 first matter.
12 The second matter is this: We will be preparing a list of facts
13 which we would invite the Defence to agree. It will be quite a lengthy
14 list. It will be sent to the Defence, again, before Christmas, so that
15 we'll give them the Christmas break to consider them. I would hope that,
16 as Your Honour says, we can arrive at some agreement on facts which will
17 not be contentious but merely are based upon, for example, rulings in
18 other cases that have affected this area and the like.
19 Your Honour, thirdly, on this topic, many, many of the witnesses
20 that we have served deal with what has been come to be called the crime
21 base, that is, the evidence of crimes committed which the Prosecution are
22 adducing to show a pattern of events which cannot have come about by
23 coincidence but by design. These witnesses, many of them, do not directly
24 implicate the defendants. We have already adopted the procedure by which
25 they have made declarations under the terms of Rule 92 bis. We have not
1 yet heard from the Defence for General Talic on the matter. We have from
2 Mr. Ackerman. Indeed, I found a fax during the break, effectively saying
3 that at the present time, he hadn't fully considered all of them but that
4 his view was that they would have to be called. Your Honour --
5 JUDGE AGIUS: You're referring to about 70 witnesses?
6 MS. KORNER: Yes. We've got 75, roughly, witnesses under this
7 Rule. But Your Honour -- and we would obviously be addressing Your Honour
8 if we cannot reach agreement, because it's Your Honour's ruling that
9 matters. But even of the live witnesses, it would be helpful if the
10 Defence could indicate if there are witnesses they will not require to
11 attend because the witnesses do not implicate directly either of the
12 accused, so that their statements may be read. Your Honour, we are as
13 anxious as Your Honour, and I would imagine the accused, to complete this
14 trial as expeditiously and, obviously, as fairly as possible. It's been
15 waiting a long time to start.
16 JUDGE AGIUS: This is -- let me perhaps jump the gun for a while.
17 How expeditiously this trial will be conducted depends, number one, on the
18 style of each and every one of you and the conduct of either the
19 Prosecution or of the Defence when it comes to examination-in-chief and
20 cross-examination; secondly, and perhaps more importantly, on how much
21 control I will be able to exercise upon you in the course of the trial,
22 and I usually take the line of interfering as little as possible as long
23 as you do not take advantage, undue advantage of the situation, and as
24 long as you treat the witnesses as you should, with decorum and without
25 abusing of the witnesses. Then you will find that I will interfere as
1 little as I can. But what is perhaps more important is that each one of
2 you ought to know beforehand what is the wheat and what is the chaff, and
3 not produce in front of the Court material which you know is not an issue,
4 is irrelevant, and which will only serve to prolong unduly the
6 I have every reason to believe, because this is what I have been
7 told, that I am unlucky to have this case, but I am very lucky to have
8 Mr. de Roux, Mr. Pitron, Mr. Ackerman, and you, and with all your
9 respective teams, because you know your business well and that you
10 shouldn't contribute towards an unnecessary and undue prolongation of this
11 trial. And therefore, there I am hopeful. But I also know that it will
12 serve this purpose: If you could do this before what you have suggested
13 and seriously tackle it and try to keep an ongoing exchange of views on
14 this before the trial begins. I think that is important. Because what
15 frightens me is that you will send this list to the Defence and the
16 Defence will take the rigid view of not responding or telling you no
17 commitment. That's what I'm afraid of. I'm afraid of, not because I have
18 reason to believe that that is what will happen. It's something that I
19 have done in the past myself, you know. I mean, and probably you have
20 done in the past as well. But something which perhaps there will be areas
21 where it can be avoided in this case, so that we can get the case -- get
22 this case started and proceed with an expeditious manner as possible.
23 What worries me is the length of time that Mr. Brdjanin and
24 General Talic have already been in custody. I want to reduce that time to
25 the least possible and I want this trial to start. I can assure the
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 Defence that I will leave no stone unturned in making sure that there will
2 be a fair trial, but the trial must start. Whatever you can do between
3 now and the commencement of the trial to pave the way and make things easy
4 or easier or less difficult will be appreciated. This is my message.
5 Do you intend to say something?
6 MR. ACKERMAN: If the Court will permit me, yes, I do.
7 JUDGE AGIUS: Yes, please.
8 MR. ACKERMAN: First thing I want to say is that I'm perfectly
9 willing to do that which the Court suggests and to make it unnecessary to
10 put on evidence that really has nothing to do with the issues in the
11 case. I'm in a bind, however, and I need the Court to understand that
12 bind. If Ms. Korner were to hand me this list that she refers to today,
13 and I've seen similar lists, I know what it's going to look like. I would
14 have to say no I can't agree to any of that. The reason is this: I
15 haven't counted, Your Honour, but I think there may be as many as 15.000
16 pages of material that has yet to be translated that I haven't been able
17 to see yet and I would not want to say I agree to this proposition and
18 then find a piece of evidence that totally contradicts it and I'm too late
19 to do anything because I've already --
20 JUDGE AGIUS: I fully understand --
21 MR. ACKERMAN: -- I won't do that.
22 JUDGE AGIUS: -- that but you will fully understand also that
23 certainly I do not expect you to commit yourself to anything if you
24 don't -- if you feel that in your client's interest you shouldn't do it.
25 That's number one. But you, I am sure will also understand because we
1 have lived trials, both of us, you will also understand that there will
2 be -- the trial will develop in such a way that there will be a time when
3 what you are not prepared to concede by way of a fact now or before, you
4 will be able or you will be prepared to concede at that later stage, and
5 be prepared because although you have now all the right to say no to each
6 and every one of these question marks that Ms. Korner are going to ask
7 you, is going to ask you to agree to or not to agree to, that the Court
8 itself may, in due course, ask you, without any prompt from the
9 Prosecution, whether it is possible to agree to this particular issue or
10 this particular fact.
11 I would not do it beforehand unless I, myself, am in the position
12 to be able to -- to identify these facts and at the moment I am not like
13 you are not, and I fully appreciate that you are not in a position to
14 concede much or most of what you will be asking for.
15 But there may be a time when you, please understand that the Court
16 itself or the Tribunal itself will ask you whether you are prepared to
17 concede, to agree to something that will be considered as not contentious
18 by the Court. You may or may disagree, and I can put your mind at rest
19 that if you don't agree, you will have it your way, but I will not be able
20 to force it. What I will be able to force is the nonproduction of some
21 witnesses if I think they are superfluous or irrelevant.
22 MR. ACKERMAN: I just want the Court to understand that if I say
23 no to Ms. Korner about a number of things, it's not that I am
24 obstructionist, it's that I'm not prepared yet because of all this
25 material. And it's not her fault, it's the translation department that's
1 causing all the trouble with this sort of thing.
2 Then I think there was one other thing. Oh, with regard to Rule
3 92 bis, apparently things move slowly in the Prosecutor's office, but she
4 has -- I have sent her three letters regarding 92 bis matters and I'm
5 trying to move through those as rapidly as I can because I think they are
6 of some urgency regard to the planning of the Prosecution.
7 JUDGE AGIUS: Mr. Pitron, do you want to add anything or -- please
8 go ahead?
9 MR. PITRON: [Interpretation] I've got nothing further to add, Your
11 MS. KORNER: On that topic, may I suggest it may be beneficial
12 before the trial starts for there to be another --
13 JUDGE AGIUS: I was going to suggest that. This is precisely what
14 I was going to suggest. I am -- in the new spirit of cooperation that I
15 have tried to build in the courtroom today and also because I have been
16 making these appeals for further cooperation. It is my intention, and I
17 am going to suggest to you that should you feel the need for it, and I
18 think I will feel the need for it, I will offer you another pre-trial
19 hearing before we start the trial; in other words in the -- the recess
20 finishes on the 4th so we're talking as from the week which starts on the
21 7th onwards, and the earlier we hold it, the better it is. So that we can
22 trash in that hearing the few areas which -- where perhaps we could find
23 some ways of cooperation and other matters which we may not be able to
24 conclude today.
25 MS. KORNER: Your Honour, may I suggest that we supply Your Honour
1 with a copy of the list of facts so Your Honour will have a chance to go
2 through it. I would hope that we would be able -- Mr. Ackerman and
3 Mr. Pitron and myself would be able to meet perhaps the day before to try
4 and see where we can reach agreement. The difficulty, of course, with
5 contact is everybody is in a different country.
6 JUDGE AGIUS: What I would suggest is -- I mean but this is
7 perhaps a choice which -- on which you could perhaps advise me
8 yourselves. My basic instinct is to suggest a date which is very near the
9 21st of January and the expectation that maybe Defence counsel, in
10 particular, because you are always here, but Defence counsel will probably
11 arrive here in The Hague rather near the commencement of the trial than
12 much earlier. So if that will be convenient to you, I'm in -- perhaps you
13 could consult with one another between now and then and -- yes,
14 Mr. Ackerman.
15 MR. ACKERMAN: Your Honour, my plan is basically to move here
16 January 7th or 8th, somewhere in that neighbourhood, so I would be
17 available to the Court after that date. And the other thing that you need
18 to understand is that I have a wife who wants me to speed up this trial
19 much more than you probably do, so I think it may move rather rapidly.
20 JUDGE AGIUS: My wife doesn't interfere in this. She has no
21 interest anyway.
22 Mr. Pitron.
23 MR. PITRON: [Interpretation] Mr. Your Honour, I agree with that
25 JUDGE AGIUS: [Previous translation continues] ... ask you to come
1 and go on the Thalys every day.
2 MR. PITRON: [Interpretation] I prefer to take the plane. The
3 Thalys is not that easy. I would have some problems at the beginning of
4 the week of the 7th, 8th, and 9th but I am prepared to make all efforts to
5 ask Mr. de Roux to take my place.
6 JUDGE AGIUS: Be assured that the Court will try to accommodate
7 you as much as the Tribunal -- I have a habit of referring to myself as
8 the Court when I am no longer the Court. I will try to accommodate you as
9 much as I can and this applies not only to this additional hearing that I
10 am suggesting but also later on when we start the trial itself. I'll try
11 to make your life easy because I know that the easier I make it for you,
12 the easier it will make it for me.
13 MS. KORNER: Your Honour, perhaps if I could say the week of the
14 14th, like say Monday, the 14th of January, although I believe that's the
15 Serb Orthodox New Year but -- so it may be that the two defendants would
16 not wish to attend on that date.
17 JUDGE AGIUS: I think -- I know that the Orthodox Christmas comes
18 either a week or two weeks later, no?
19 MS. KORNER: The trial was due to start on the 14th and it was
20 pointed out that this was Serb Orthodox New Year.
21 JUDGE AGIUS: But I have full respect for that if it is the wish
22 of the defendants not to have a hearing on the 14th, I'll definitely not
23 have a hearing on the 14th.
24 MR. ACKERMAN: The 15th is the day, Your Honour.
25 JUDGE AGIUS: You will have it on the 15th.
1 MR. ACKERMAN: Not have it on the 15th. 15th is okay.
2 JUDGE AGIUS: That's my knowledge of B/C/S tells me that he wants
3 the 15th.
4 MR. ACKERMAN: Yes.
5 MS. KORNER: Okay. So Your Honour that will be most helpful if we
6 could make that the 15th.
7 JUDGE AGIUS: You will have a confirmation of that in due course,
8 and if you encounter difficulties in the meantime or you would like to
9 have that date changed, please let me know.
10 MR. PITRON: [Interpretation] Your Honour, excuse me for the
11 scheduling issue. The 16th might be a possible date also instead of the
12 15th. Could we think about the 16th?
13 JUDGE AGIUS: I am going to be here every day so I am the least of
14 problems, and I promised you to accommodate you so if there is no problem
15 on Mr. Ackerman's and Ms. Korner's side, I will have it on the 16th.
16 MS. KORNER: Your Honour, may I then just raise two other matters
17 in advance.
18 In the pre-trial brief served on behalf of General Talic, the
19 specific mention, if Your Honour would like to find it of a challenge to
20 the authenticity of specific documents. Your Honour, I wonder that if we
21 could ask in advance of that hearing, we could be notified, given a list
22 of the documents to which there is a specific challenge that they are not
23 authentic because again, Your Honour, that raises all sorts of question.
24 JUDGE AGIUS: Yes, definitely.
25 Mr. Pitron, do you think that you would be in a position between
1 now and the next time we meet?
2 MR. PITRON: [Interpretation] It's possible, but I think it's
3 rather simple. I am challenging the authenticity of all the documents
4 which are not signed.
5 MS. KORNER: Just so I understand, that is any documents emanating
6 from the 1st Krajina Corps collection which do not bear General Momir
7 Talic's personal signature, the authenticity is challenged; in other
8 words, that they don't come from the 1st Krajina Corps collection.
9 MR. PITRON: [Interpretation] I can accept as probative value only
10 one which is signed no matter what its source.
11 JUDGE AGIUS: Then it becomes a question of -- well, I think I
12 understand his point. Then ultimately it's a question that has to be
13 decided upon when the Tribunal comes to its decision. More or less what
14 we are talking about, if I am reading him well, is that there are
15 documents and documents. There are documents which are in their original
16 and, therefore, the authenticity of those documents, the question of
17 authenticity is more or less nonexistent or relative, and then there are
18 documents which are unsigned and documents which are unsigned he is
20 Now, they may be originals, they may be copies or photocopies of
21 original documents. I think that's a question of -- that we have to
22 encounter later on but it's not the same issue that was raised by ...
23 MS. KORNER: No, Your Honour, it isn't the same issue. But it is
24 not clear from that reply whether the fact that the suggestion is the
25 documents not directly signed by General Talic came into existence at a
1 later date or, alternatively, were never in -- may I tell Your Honour that
2 the -- what I call the 1st Krajina Corps collection was seized from the
3 building in 1998 and it's not clear whether it is suggested by General
4 Talic that these documents were not there and have been obtained from
5 somewhere else. And on that, I imagine that Mr. Pitron has clear
7 JUDGE AGIUS: But I think just keep alive the distinction between
8 a matter of law and a matter of fact. I think basically the -- what he's
9 referring to is a matter of law. According to him, every single document
10 that is not signed by his -- purported to be signed by his client --
11 MS. KORNER: Is not admissible.
12 JUDGE AGIUS: -- is not admissible. And therefore, he's -- that's
13 how I read you. Do I read you well?
14 MR. PITRON: [Interpretation] There were two things, Your Honour.
15 There were the documents from my client, but there were all the other
16 documents. For instance, as far as I can remember, there was a report or
17 a brief from the Prosecutor from Teslic which isn't signed, which has not
18 been authenticated by any source -- any seal, rather. There are pieces of
19 sentences which are accusatory. I cannot accept this document as such
20 without having the truth of the -- without proof of the truthfulness of
21 the probative value of the document, which is different from the problem
22 of those documents which are signed by my client.
23 JUDGE AGIUS: Basically, I think it reduces itself to something
24 very fundamental that we encounter in most trials, that there may be the
25 need for me or for the Chamber, as we go along and as Mr. Pitron raises in
1 the various instances, to decide first of all on whether that particular
2 document ought to be admitted from a legal point of view. Then the
3 probative value of it and ultimately whether it will serve any purpose at
4 all will be a matter to be decided -- will be a matter to be argued
5 between you, but it will be a matter to be decided by whoever has to
6 decide on the guilt or otherwise of ... I don't think it will create much
7 problem, because he's making himself very clear. There is a bulk of
8 documents that he's going to tell you straight away, from the very word
9 "go", "These I do not acknowledge," but then it's up to the Tribunal to
10 say whether they will be referred the Tribunal or not.
11 MS. KORNER: Absolutely, Your Honour. I fully understand that
12 now. That means, however -- may I say, this is a very heavily
13 document-based case.
14 JUDGE AGIUS: I know. It's frightening.
15 MS. KORNER: And I'm going to come on to the question of documents
16 physically in a moment. That will mean that in each and every case,
17 unless it is a document signed by General Talic, we will have to argue the
19 JUDGE AGIUS: I don't necessarily agree to that, no.
20 MS. KORNER: That's --
21 JUDGE AGIUS: You definitely - and I will stop short of saying
22 more - you definitely will be required to bring forward evidence, and I
23 would suggest you bring it as early as possible, to indicate what these
24 documents are, where they were obtained from, how they were obtained, who
25 came in possession of them in the first place. These are all important,
1 because they have a bearing on the authenticity question. Then the
2 authenticity aspect may widen. There may be documents from amongst this
3 pile which we will not have problems about, and there may be documents
4 which I myself might query, you know. I mean, for example, if it's a
5 photocopy of a photocopy of a photocopy, I might myself come forward with
6 problems for you, or for the Defence, for that matter, you know. I mean,
7 it's ...
8 MS. KORNER: Your Honour, then, as I say, what we are proposing to
9 do is serve a document which will show where each document we wish to
10 produce comes from in the sense of --
11 JUDGE AGIUS: I think it's important. It's like exhibiting a set
12 of photographs, I mean, without producing the photographer.
13 MS. KORNER: Well, I would hope that we wouldn't have to produce
14 the photographer for some of the photographs.
15 JUDGE AGIUS: I hope so, for my sake as well.
16 MS. KORNER: Your Honour, we would then ask the Defence -- it may
17 be quicker to ask which ones they do accept, by the sound of it, as
19 JUDGE AGIUS: I think I can speak for Mr. Pitron. I don't think
20 he is going to stand up and tell you, "I accept the authenticity of all
21 documents which bear my client's signature," because he might come across
22 one document, now or later, where Mr. Ackerman is going to tell you, "This
23 is not my client's signature," and therefore, please don't expect from him
24 to rise and tell you, "These I accept." All the others, a priori, he's
25 contesting, and whether he's right and whether he'll be proven right or
1 wrong, that's a matter that has to be dealt with later.
2 MS. KORNER: Your Honour, absolutely. I understand the position
3 that Mr. Pitron is taking at the moment. I simply want an indication of
4 those that he will accept without any further --
5 JUDGE AGIUS: Are you prepared to give an indication of the
6 documents that you will accept, Mr. Pitron?
7 MR. PITRON: [Interpretation] I'm waiting for the list which the
8 Prosecutor will give to me, and in respect of the time available, I will
10 MS. KORNER: Your Honour, then one of the first --
11 JUDGE AGIUS: I'm taking that as a commitment.
12 MS. KORNER: Your Honour, so am I taking that as a commitment,
13 yes. I will therefore be calling as one of the first witnesses the lead
14 investigator to deal with as many as I can of those problems, because
15 otherwise, Your Honour, if we have to stop and do this in respect of each
16 particular municipality, we could be here a very long time.
17 JUDGE AGIUS: No, definitely not.
18 MS. KORNER: Your Honour, finally, Your Honour, is this:
19 Documents for Your Honour and whoever your colleagues may be, if you know
20 who they are already --
21 JUDGE AGIUS: Well, there is an official document which states who
22 the other two Judges will be, but it doesn't mean to say that when we come
23 to the trial, those will be the two other Judges. Actually, it's a
24 formality that is needed. At the present moment, the Chamber, as you
25 know, is composed of Judge Schomburg, Judge Mumba, and myself, but I can
1 tell you here and now, without revealing the names, which are not official
2 in any case, but that this will not be the composition of the Trial
3 Chamber. The Trial Chamber will be different, because, as you know, each
4 one of us will be dealing -- will be presiding over a trial. So Judge
5 Mumba will be presiding over a trial, Judge Schomburg will be presiding
6 over a trial, and I will be presiding over a trial, over this trial. And
7 I will have two other Judges which I'm sure you're intelligent enough to
8 conclude already they will not be Judge Schomburg or Judge Mumba, because
9 they cannot be with me if they are presiding over another trial
10 themselves. You will soon know who the other two Judges are. I haven't
11 been formally informed. Informally, I have been told, but formally, not
12 yet, so I don't think I am in a position to tell you.
13 MS. KORNER: Your Honour, that was a slightly throwaway line and I
14 should know better. What I was attempting to say was: We propose to call
15 evidence by municipality. We will prepare binders for Your Honours, if
16 this is the way you would like it, with the documents as per the
18 JUDGE AGIUS: I think that's a wise approach, yes.
19 MS. KORNER: What we will do, Your Honour, is provide the Defence,
20 because they have all these documents, with the numbers of the documents
21 as per the municipality, so they can, if they wish, arrange their
22 documents in that way. Your Honour, we did hear in one Trial Chamber that
23 15 copies were asked for of all documents. Your Honour, we would submit
24 that puts an unreasonable burden. We would ask that we
25 provide -- exactly, Your Honour, that the documents amount to some 40
1 binders already. Could we ask that we provide a copy for each -- for Your
2 Honour and Your Honour's colleagues and then one copy for the Court
3 deputy, the Registry - I'm not sure who it is - but one, which makes a
4 total of four?
5 [Trial Chamber and legal officer confer]
6 JUDGE AGIUS: Okay. I had to consult my Senior Legal Officer,
7 because, as you imagine, I'm new to this regime. I am being advised that
8 we will need one copy each, the three Judges, then one copy for the Senior
9 Legal Officer, which the assistant legal officer will make use of as well,
10 and one copy for the Chamber registrar, for the registrar, so that makes
11 it five.
12 MS. KORNER: Your Honour, yes.
13 JUDGE AGIUS: I think that is reasonable.
14 MS. KORNER: I'm grateful.
15 Your Honour, then there's nothing else that I wish to raise at
16 this time.
17 JUDGE AGIUS: Okay. But there are a few things that I need to
18 raise. You mentioned at the last -- or rather, you didn't mention it, but
19 my predecessor, during the last Status Conference, with reference to
20 forensic evidence, to the matter of forensic evidence, suggested to the
21 Defence to consider agreeing, amongst other things, but in particular,
22 that formal proof of death , as opposed to the cause of death, could be
23 dispensed with.
24 Mr. Ackerman, I have it on record, was more or less agreeable to
25 this. Mr. Pitron reserved his position on the grounds that he needed more
1 time to consider what to reply to this. Because this would definitely
2 spare us having to go through some material which -- I don't know, but the
3 less I say, the better it is. If you need more time, Mr. Pitron, I am
4 prepared to give you more time, but I appeal to you to understand the
5 reason behind this -- not request; this accommodation.
6 Mr. Ackerman first. Mr. Pitron will have more time.
7 MR. ACKERMAN: Yes. I'll give him more time to think about it.
8 Judge Hunt outlined a procedure that was being used, I think, maybe in the
9 Kordic case, where, as I recall -- I'd have to look at the transcript, but
10 I think a witnesses would simply testify that a particular person was in a
11 particular place and disappeared and has not been seen again, or that
12 their body was recovered from a certain place or something, without going
13 through all of this voluminous exhumation evidence, which I have no desire
14 to hear and I think it furthers nothing. So I'm certainly willing to
15 agree to a procedure that shortens up that process and accomplishes what
16 needs to be accomplished in that regard.
17 JUDGE AGIUS: Mr. Pitron.
18 MR. PITRON: [Interpretation] I have no problem in respect of the
19 fact that the exhumations took place or that there were deaths.
20 Sometimes, but not often, I have some doubts in respect of the status of
21 the different people. We've moved forward since the last time. I haven't
22 completely finished thinking about that issue, but I think I should come
23 to a decision very quickly.
24 JUDGE AGIUS: And may I suggest to you - and I'm saying this to
25 show you that when you cooperate, I cooperate - when you come forward
1 later on, as Mr. Ackerman has, take it from me that you would still have
2 reserved the right to ask for the production of evidence with any
3 particular death related to any particular person, should you think it is
4 necessary for the purposes of the defence you adopt for your client. In
5 other words, this will be the general exemption, sort of, with this
6 particular reservation: should the need arise. In other words, if you
7 would agree to -- consider agreeing that the formal proof of that has
8 happened generally, but if there is the need to ask for more details or to
9 require evidence with regard to any specific case in particular, you will
10 be free to do it. Okay?
11 Is that clear to you?
12 MS. KORNER: Your Honour, it's very clear exhumations is one of
13 the matters that I was going to put on to the agreed facts. We've served
14 schedules but we can simply call an investigator who's dealt with all of
16 JUDGE AGIUS: What I mean to say is that they may say okay, we
17 give a carte blanche with regard to all these allegedly dead persons or
18 the persons that have disappeared except Mr. X, Mrs. Y, Mr. Z, whatever.
19 MS. KORNER: I understand that, Your Honour.
20 JUDGE AGIUS: So it's only fair not to expect -- so okay. Next,
21 witnesses Ėfor whom the Prosecutionís latest motion for protective measures refers.
22 Now, this was dealt with very briefly in the previous Status Conference.
23 You have now filed a motion for protective measures. I don't think we need to go
24 into details. I am waiting for a response, a reply from the Defence with
25 regard to this motion. This will be dealt with in due course. We don't
1 need to waste time today on it. Okay.
2 However, I would like some light, I would like you to throw some
3 light on whether you intend to seek protective measures such as
4 pseudonyms, face, voice distortion or closed session with regard to other
5 witnesses and whether you would be in a position to -- should you -- and I
6 see you nodding so I assume that you do intend, should you -- should you
7 be in a position to do this in good time before we start the trial?
8 MS. KORNER: Your Honour, we're going to -- what we are proposing
9 to do with that is do it in batches because each witness may, at one stage
10 say, "Yes, I do require protective measures," but then circumstances
11 change or say, "No, I do not require," and then -- we are in the process
12 of recontacting every witness on the list to check on the position. We
13 will serve them in batches so before we intend to call the evidence, way
14 before. We will be serving a motion right at the beginning of January for
15 quite a number of them.
16 JUDGE AGIUS: Okay.
17 MS. KORNER: May I just mention, Your Honour, the difficulty is
18 that we had intended to start with Banja Luka but it may well be, I think
19 from what Mr. Ackerman's saying, that we may have to start another
20 municipality but we'll have to consider that matter in which case that
21 affects the witnesses.
22 JUDGE AGIUS: That is a matter which I will definitely not
23 interfere. The way you plan and conduct your case is your problem or your
25 MS. KORNER: It is, Your Honour, but if -- I think from -- but I
1 will discuss the matter with Mr. Ackerman.
2 MR. ACKERMAN: Judge.
3 JUDGE AGIUS: Yes, Mr. Ackerman.
4 MR. ACKERMAN: The matter of the Prosecution's most recent motion
5 for protection is one that disturbs me a great deal and I feel obligated
6 to say something about it but I want to do it in closed session. I don't
7 want to say it publicly. And so I'm wondering if we could go into closed
8 session right now for just a moment so I can address it.
9 MS. KORNER: It's a matter for Your Honour.
10 JUDGE AGIUS: But I wanted to hear what you had to say.
11 MS. KORNER: Your Honour, I don't know what Mr. Ackerman is going
12 to say so I can't express ...
13 JUDGE AGIUS: So I come along and we'll go into closed session
14 now, immediately.
15 [Closed session]
12 Page 457 redacted, closed session.
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
22 [Open session]
23 THE REGISTRAR: Yes, Your Honour, we are in open session now.
24 JUDGE AGIUS: Okay. Thank you.
25 During the last Status Conference, the Prosecution indicated its
1 intention to request permission to tender transcripts of evidence given in
2 other cases before this Tribunal, and it seems that it was hinted that --
3 or rather I would leave it at this: Do you still intend to seek
4 permission to tender transcripts of evidence given in other cases?
5 MS. KORNER: Your Honour, I try to cover every aspect, but I must
6 say this one I really don't know what the present situation is. I thought
7 we had actually --
8 JUDGE AGIUS: You had mentioned it in your pre-trial brief as
10 MS. KORNER: Somebody's been dealing with and I'm afraid I haven't
11 had a chance to deal with that.
12 JUDGE AGIUS: But it was not concluded. You just hinted that the
13 intention was possibly to prove the existence or that there was an
14 international armed conflict at the relevant times by means of transcript
15 of evidence given in a previous trial.
16 MS. KORNER: Yes, Your Honour, I'm with you now, I'm sorry. We've
17 disclosed to the Defence binders of documents relating to international
18 armed conflict. I'm not sure that Mr. Ackerman responded. Mr. Pitron
19 said they didn't accept any of it and we'd have to fight international
20 armed conflict all over again is one of the matters I'd hoped we wouldn't
21 have to fight but if we have to -- but we have served all those documents.
22 JUDGE AGIUS: So now may I offer my services, and maybe I will
23 succeed in reducing it to something which would be acceptable to both.
24 Mr. Pitron, I put it to you or suggest to you to keep a
25 distinction between the issue of the internationality of the conflict and
1 the existence of the conflict itself. In other words, we will leave
2 unprejudiced and something to be proven and debated by you the issue of
3 the internationality of the conflict while we could, perhaps, agree to
4 prove the existence of the conflict by means of a previous evidence
5 tendered in other -- on a previous occasion in another trial.
6 Would that be acceptable to you? Please, I'm just making a
7 suggestion. If you don't agree, you don't agree and we'll move ahead,
8 because basically what is important for you for the purposes of the
9 accusations of the charges, internationality of it, I mean it's ...
10 MR. PITRON: [Interpretation] I think if you want to move things
11 forward, it would not be a good idea to deny the fact that there was a
12 conflict. However, the internationality of the conflict does appear to me
13 something which can be challenged because for me most of the time, for the
14 most part it was a civil war so whatever the conclusions were in other
15 trials in respect of other types of offences of individuals, I think that
16 must be given very considerable study by the Tribunal.
17 JUDGE AGIUS: That brings me, before I ask you to take the floor,
18 that brings me to the other related issue which was brought up last time,
19 namely your -- you had foreshadowed sort of that you will be seeking or
20 asking for this Tribunal to take judicial notice of adjudicated facts
21 particularly those emanating from the Tadic case and if I did not
22 misunderstand what the hint was, you were also hinting that this could
23 also -- you suggested judicial notice would include also aspects on the
24 internationality of the armed conflict.
25 If we could agree that that is not the case, in other words, that
1 you are not asking the Tribunal to take judicial notice of something which
2 the Defence is very strongly objecting to and very strongly contesting,
3 that is the internationality of the conflict, I think we can move ahead
4 with eliminating most of the evidence that relates to the existence or the
5 occurrence of the conflict itself and restricting your efforts to prove
6 and debate merely then the aspect of the internationality of it. Without
7 having it depend on what was decided in Tadic.
8 MS. KORNER: Your Honour, it's not only been decided in Tadic,
9 it's been decided in a number of other cases.
10 Your Honour, can I put it this way, it may not be the most urgent
11 matter to decide in one sense. I'm not sure, but I believe there may be
12 some kind of a rule change that's going to happen in respect of this
13 taking of judicial notice which may have an effect.
14 JUDGE AGIUS: You are correct, yeah.
15 MS. KORNER: In which case, Your Honour, could we leave it until I
16 believe that's going to be -- it will be in the next Plenary.
17 JUDGE AGIUS: This will be this week.
18 MS. KORNER: That's what I thought, Your Honour, and I think we
19 may have a clearer idea then of what we can achieve.
20 JUDGE AGIUS: Okay. So let's more or less -- there's very little
21 left. There is the aspect of the length of the trial which I think I can
22 adjourn as an item on the agenda for the next meeting that we will have
23 prior to the -- and there are certain rules or methods of conducting the
24 relations between the Prosecution and the Defence that I would like you to
25 adopt as we go along and that is more or less -- I would like you to
1 prepare on a rolling basis obviously in good time for and -- the order of
2 witnesses that you intend to follow so that the Defence will be placed in
3 the position where they will not have any reason to complain.
4 I would like you also to give particular attention to the list of
5 exhibits that you intend to produce and again, I have already heard a
6 complaint from Mr. Ackerman in regard to this. I would like you to
7 streamline it as much as you can and make things easy. And then I may be
8 suggesting something which you have already decided upon, but I was going
9 to suggest to you possibly to organise the exhibits and the list of
10 exhibits by municipality, if you can do that. If it's not convenient for
11 you, then I am prepared to listen to what you have to say and will
12 interfere as little as I can. But what I want is to try and have things
13 organised before we start and as we go along, so that things will be easy
14 for you, for the Tribunal, and for the Defence.
15 MS. KORNER: I think -- Your Honour, I hoped I'd made it clear.
16 The exhibits will be organised into municipality binders.
17 JUDGE AGIUS: That's good.
18 MS. KORNER: May I suggest that whatever happens, the numbering
19 doesn't change, because otherwise it's going to confuse everybody if we
20 start having to change the numbers.
21 JUDGE AGIUS: The numbers have to remain the same. I have
22 already -- actually, when I was discussing this with my staff, I already
23 made it -- it's important. I mean, otherwise there will be ... It has
24 been suggested to me to suggest to you something --
25 MS. KORNER: Dare we ask who by?
1 JUDGE AGIUS: -- which I think is very important. I think it is
2 very important. I'm referring to witness testimony sheets. I'm told -- I
3 haven't had experience of this as yet, and therefore you will pardon me
4 for this, but I'm told that a problem often arises in cases when the
5 identity of a witness protected by a pseudonym is incidentally or
6 unwittingly disclosed by another witness who refers to them by their full
7 name during the course of a particular testimony. The suggestion made to
8 me in order to get around this problem is that the Defence and the
9 Prosecution should prepare a witness testimony sheet that lists the names
10 and pseudonyms of protected witnesses. I'm reading, actually. This sheet
11 should be the first thing given to the witness, and at the commencement of
12 his or her testimony, and the witness should be told that if they need to
13 refer to anyone on that list, they should do so by using the pseudonym
15 Do you consider this as a practical suggestion? Do you have any
16 reservation to it or do you see any inherent danger in resorting to such a
18 MR. ACKERMAN: Well --
19 JUDGE AGIUS: I give precedence to age, Mr. Ackerman.
20 MR. ACKERMAN: Thank you. Generally, the protection is to be
21 protected from knowledge that they are testifying as witnesses in this
22 Tribunal, not that they have some knowledge of events that occurred. So
23 if a witness were to say, "I was at such-and-such a place at such-and-such
24 a time and Joe Smith was also there," if Joe Smith is a protected witness,
25 that's not a problem, because that doesn't disclose that Joe Smith is a
1 witness in this trial. But if the witness were to say, "I was at the
2 hotel last night and Joe Smith, another witness, and I went out and had a
3 drink," that's a whole different matter. That discloses that he is a
4 witness at the trial. So I think it's things that disclose what is
5 protected that are important to be protected, not becoming completely
6 crazy about that proposition, and so I'd certainly go along with that kind
7 of a process if what we're doing is following what the protection is, and
8 it never is that one may never know that this person was there at the
10 JUDGE AGIUS: And the -- yes, Ms. Korner.
11 MS. KORNER: Your Honour, I know where the suggestion comes from,
12 because I've been taking part in the trial in which it's been happening.
13 Your Honour, I think, in fact, what was happening in that trial is that if
14 a protected witness is a protected witness, then whenever he's referred
15 to, he's referred to by those initials, whether it's "I met him in the
16 hotel where I'm staying" or whether it was at the scene of the incident.
17 I think we can discuss this, but I know the type of sheets Your Honour is
18 thinking of, and it does --
19 JUDGE AGIUS: Well, I'm not thinking of. This is a suggestion
20 that has been made to me. I have put it to you because obviously I would
21 like to hear what you have to say on it.
22 Mr. Pitron, would you like to say something about it?
23 MR. PITRON: [Interpretation] No, Your Honour. I render tribute to
24 the aged experience of my colleague.
25 JUDGE AGIUS: Okay. So it's a matter that you can take up amongst
1 yourselves later on, and I think I can for the moment bring this Pre-Trial
2 Conference to an end and adjourn other matters that I had in mind of
3 bringing up to the next Pre-Trial Conference, which will be held on the
4 16th and not on the 15th, and we can conclude by now reverting to a very
5 short Status Conference, which we are, by Statute ... If we can summon it
6 now and conclude it very quickly, then we'll do it. Otherwise we will
7 have to take a break of 30 minutes and come back after 30 minutes and have
8 the Status Conference. Frankly, I don't know what we could add. The only
9 thing is that I want to make sure that your respective clients do not have
10 any remarks or complaints to make in relation to their state of
11 detention. That is something that I want to make sure.
12 MR. ACKERMAN: No. No complaints.
13 JUDGE AGIUS: Yes, but I still see you standing up, so --
14 MR. ACKERMAN: Yes. I'm hoping we're not completely finished with
15 the Pre-Trial Conference, because I did have a couple of things that I did
16 want to bring to your attention.
17 JUDGE AGIUS: Perhaps you can mention them and then we will deal
18 with them on the 16th of January.
19 MR. ACKERMAN: This one is very important. I really would
20 like -- if you don't know, then it's fine. You can tell me you don't
21 know. You know, I'm -- I'm a sole practitioner in Texas, and so I have to
22 make arrangements for what goes on with my practice while I am here. Now,
23 in the last case that I tried here, we generally followed a
24 two-week-on-two-week-off schedule, so that I was able to go back to the US
25 and take care of business in the US during those interims. I have no idea
1 what kind of a schedule the Chamber has in mind for this trial.
2 JUDGE AGIUS: I have no idea either as yet, but I told you
3 beforehand I will try to accommodate you as much as I can.
4 MR. ACKERMAN: Thank you.
5 JUDGE AGIUS: And therefore, this is something that we could
6 perhaps discuss at a later stage. The important thing, Mr. Ackerman, is
7 that we start the trial and that we get moving, and this is why I'm
8 appealing to you -- when I say "you," it's not you, Mr. Ackerman, or you,
9 Mr. Pitron, or you, Madam Korner. When I say, "you," it's all of you.
10 This is why I'm appealing to you to be as constructive and as cooperative
11 as possible, because the more you are cooperative, the shorter the trial
12 will be.
13 MR. ACKERMAN: Well, you've been a judge and a lawyer long enough,
14 and have I, to know that prepared lawyers try cases faster than unprepared
16 JUDGE AGIUS: Yes, exactly.
17 MR. ACKERMAN: And so that when we need time for preparation, we
18 need time for preparation, and we can make the case move faster. And I
19 think our experience in Celebici was that those two-week-on-two-week-off
20 sessions actually made the trial move a bit faster. Probably three weeks
21 on, one week off would have worked if we had had the courtroom but we
22 didn't have it.
23 JUDGE AGIUS: It's probably what -- I'm not -- almost thinking
24 aloud, but I will not be surprising you at all if I told you that that is
25 what I more or less had in mind, three weeks on, one week off. That's
1 what I had in mind. But then it depends, because it could well happen
2 that we get stuck after one week and we need to take a week off. So this
3 is why I'm telling you I will accommodate you. I mean, I will -- I know
4 that everyone is busy, everyone has got -- we'll see how this works. If
5 we need to stay in any particular moment for four weeks, we will do it,
6 but then obviously we will need to stop as the need arises.
7 MS. KORNER: Your Honour, my understanding of what was going to
8 happen -- I'm sorry. I thought Mr. Ackerman had finished.
9 MR. ACKERMAN: Well, I had finished with that issue. The other
10 issue -- you basically covered most of everything else. You mentioned
11 that you would like the Prosecutor to give us advance notice of the
12 witness order, and I would hope that that could happen as soon as
13 possible, because we do have work to do because --
14 JUDGE AGIUS: Yes, definitely. I mean, please make an allowance
15 also to what Ms. Korner has said today, that she might feel the need to
16 change her plan and, instead of starting with the Banja Luka municipality,
17 start with something different. I also heard you say that it makes more
18 sense to start with the Banja Luka municipality rather than with something
19 else. My role here is minimal. I have learnt to keep my mouth shut in
20 such instances. What I can tell you is: If you can sit down together and
21 eliminate or reduce the problems that would make it safer for the
22 Prosecution to start with another municipality rather than Banja Luka, so
23 that she can start with Banja Luka, then I think you can sit down and do
24 it. I mean, I understand that the problem may be the diary.
25 MR. ACKERMAN: That's a huge problem.
1 JUDGE AGIUS: If you can -- I understood that the diary -- the
2 translation of the diary could be a problem relating to -- depending on if
3 you could start with Banja Luka municipality or not.
4 MS. KORNER: Your Honour, I'm sorry. Can I just say -- it really
5 is -- it's not so much my problem. I intend at the moment to start with
6 Banja Luka, having ready by the 21st, we understand, the 300 translated
7 pages that it's now come down to. But as I said, it will really depend if
8 Mr. Ackerman objects to that, and on the basis that he's not in a
9 position, maybe, to properly cross-examine witnesses I'm going to call.
10 JUDGE AGIUS: Yes, but by the time we start the trial and the
11 preliminaries, by the time we get to the first witness, substantive
12 witness. I mean, if you regulate the production of the witnesses in an
13 intelligent way, as I have reason to believe you will do, then in the
14 meantime there will be again ample time. This is why I would like to sit
15 down together. And I understand it may be difficult, but -- or it may be
16 difficult the first time, but you may be surprised to find how easy a
17 solution comes along. Especially if you want to find one, you will find
19 MS. KORNER: I am really entirely --
20 JUDGE AGIUS: Because in a trial, you know more than I do, that if
21 you have a hundred witnesses, they are not going to give evidence on the
22 same day.
23 MS. KORNER: Your Honour, but I -- can I make it absolutely
24 clear? The only thing that would prevent me starting with Banja Luka
25 would be if Mr. Ackerman were to say, "I cannot cross-examine the
1 witnesses that you have on your list from Banja Luka who are all listed
2 because we don't have the full diary translated." As I say, as I know
3 that he has B/C/S speakers and readers on the team, and the defendant can
4 read it, which is more than we can, I would have hoped that he could have
5 done that.
6 JUDGE AGIUS: Yes, but let me overstep my role as a Judge for a
7 moment, and I'm sure Mr. Ackerman will forgive me for this genuine
8 intrusion. I am sure you know that if you are not in a position to
9 cross-examine a witness, a particular witness, or more than one witness,
10 at any given time because the full translation of the diary, this famous
11 diary, is not yet in your possession, and then later on, when it's in your
12 possession, you ask for the cross-examination, you can reserve the
14 MR. ACKERMAN: That's exactly what I was just --
15 JUDGE AGIUS: You can reserve the cross-examination. And if that
16 is the case, you will make the life of the Prosecutor easier in the sense
17 that if she thinks that it is more logical and makes more sense to start
18 with the Banja Luka municipality, and you seem to agree with that, then
19 she can start with that and there will be a reservation made, and then I'm
20 sure you will use your good sense. I mean, you're not going to take
21 advantage of it or abuse the facility of reserving cross-examination.
22 You'll cross-examine when you can cross-examine, there and then, and you
23 will reserve, and the Court will meet you, not halfway but full way, when
24 it is reasonable and necessary to do so.
25 MR. ACKERMAN: I think the matter is very clear. I do not presume
1 to tell the Prosecutor how to put on their case. That's their job.
2 JUDGE AGIUS: Neither do I.
3 MR. ACKERMAN: And if they want to start with Banja Luka, I won't
4 object to that. Judge Hunt has entered an order regarding my objection
5 with regard to Witness 207, and I'm relying on that.
6 He has said and that and the Prosecutor has agreed that that
7 witness will be called very close to the end of the case so that I will
8 have all that material when I have to cross-examine that witness, and if
9 any witnesses who testify before that time need to be recalled for
10 additional cross-examination because of the contents of that diary, then
11 that will happen and I'm totally satisfied with that. That's fine with
13 MS. KORNER: Your Honour, yes, I think at this stage let's leave
14 it at that although there may be problems if cross-examination is reserved
15 and witnesses have to come back again from places. Some of the places are
16 more difficult than others. But can I just mention on the scheduling my
17 understanding was that the idea would be that we would be sitting every
18 day for half days.
19 JUDGE AGIUS: That's -- yeah. That's what I have been told. The
20 idea is as Judge Hunt pointed out to you in the last Status Conference
21 that as from January, there will be six trials being heard simultaneously;
22 obviously three in the morning, three in the evening or afternoon
24 There is no hard and fast rule on the basis of which I can tell
25 you the Brdjanin/Talic case will always be held in the afternoon or always
1 in the morning because this will be alternating there will be weeks when
2 we will work in the morning, weeks when we will work in the afternoon.
3 This is depending on the scheduling, general scheduling that is prepared
4 by -- not by me, but by the Registry of the Tribunal.
5 Of course you will know beforehand, this is not something that's
6 going to be announced the day before. You are not going to be told the
7 day before, "Tomorrow we work in the morning," and then you don't know the
8 day after tomorrow whether you are working in the morning or the
9 afternoon. This will be something that you will know about, I hope, but I
10 have been told that there is no hard and fast rule meaning that one trial
11 will always be held in the morning, one trial will always be held in the
13 MS. KORNER: I understand that, Your Honour, and indeed I would
14 hope that it would be one week it might be in the afternoons and the next
15 in the morning because it makes life a little bit easier, but what
16 concerns me is Your Honour seems to be agreeing with Mr. Ackerman that
17 we'd sit three weeks with one week off. Now, that will extend this trial
18 quite a lot if we are only sitting something in the region of four hours a
19 day, a half day, which is what it's going to amount to then we stop for a
20 whole week.
21 JUDGE AGIUS: I have been assured by the Registrar that it won't
22 change anything. I mean I personally fail to understand how it won't
23 change anything, if you want the truth from me, but I've still got to find
24 someone who had shed enough light but anyway, we'll organise ourselves and
25 we'll plan as we go along. I mean for the moment, we can only plan on the
1 short haul and then --
2 MS. KORNER: My concern is simply that the trial doesn't run so
3 long --
4 JUDGE AGIUS: My concern is I share that concern. It's exactly
5 like yours and I mean to throw my weight. Judge Hunt, my predecessor, has
6 said, "my considerable weight." Mine is not that considerable, but
7 whatever it is, I mean to throw it in an effort to get this trial over and
8 done with in the shortest time possible and I am sure that I will find
9 your full cooperation.
10 I think I can close the Status Conference here as well and my
11 apologies to the interpreters if I have abused of you today. It's my
12 first time, you will forgive me. I promise you that next time I will be
13 more understanding -- I shall be more understanding and will cooperate
14 more with you but at least you don't have to come again after the 30
15 minutes break that was suggested.
16 I thank you all and I look forward as I stated earlier to a
17 shorter than expected trial. We will discuss this at the next conference
18 which will be on the 16th of January and by that time, I hope that you
19 would have cleared up further terrain making it common terrain for you to
20 tell me that I can rely more and more on your cooperation for what I
21 intend to be an exemplary trial.
22 I thank you all. Good evening.
23 --- Whereupon the Pre-Trial Conference adjourned at
24 5.50 p.m.