Tribunal Criminal Tribunal for the Former Yugoslavia

Page 383

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,

11 please.

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

Page 384

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

5 understand.

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

Page 385

1 you.

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

Page 386

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

Page 387

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

Page 388

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

Page 389

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

12 document.

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

Page 390

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

20 mentioned?

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

Page 391

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

13 matters?

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

Page 392

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

20 today.

21 JUDGE AGIUS: No, of course not. Of course not. I do realise

22 that.

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

Page 393

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

23 available.

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

Page 394

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

20 country.

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.

Page 395

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?

Page 396

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

21 adjournment.

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

Page 397

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

7 evidence.

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

Page 398

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.

Page 399

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

12 diary.

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,

Page 400

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

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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

Page 403

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

Page 404

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.

Page 405

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

13 witness.

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.

Page 406

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

24 rendered.

25 There is a fundamental point and all of us know that, that is

Page 407

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

Page 408

1 complete.

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

25 searches.

Page 409

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

9 material.

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 --

Page 410

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

11 taken.

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

Page 411

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

Page 412

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

23 same.

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

Page 413

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

Page 414

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

20 problems.

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

Page 415

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

3 all.

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

Page 416

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

5 brief.

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

Page 417

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

Page 418

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

23 waters?

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

Page 419

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

3 decision.

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

Page 420

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Page 421

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

Page 422

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

Page 423

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

Page 424

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

Page 425

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

Page 426

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.

Page 427

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?

Page 428

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

9 clarification.

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

Page 429

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

13 character.

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

Page 430

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.

22 Okay.

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

Page 431

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

6 allegations.

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

Page 432

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

11 behalf?

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

18 indictment.

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

Page 433

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.

Page 434

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

Page 435

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

Page 436

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

Page 437

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

Page 438

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

5 proceedings.

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

Page 439

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Page 440

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

Page 441

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

Page 442

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

10 Honour.

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

Page 443

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

24 date.

25 JUDGE AGIUS: [Previous translation continues] ... ask you to come

Page 444

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.

Page 445

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

Page 446

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

19 questioning.

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

Page 447

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

6 instructions.

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

Page 448

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

18 admissibility.

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,

Page 449

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

18 authentic.

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

Page 450

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

9 answer.

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

Page 451

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

17 municipalities.

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

Page 452

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

Page 453

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

Page 454

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

15 this.

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

Page 455

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

24 privilege.

25 MS. KORNER: It is, Your Honour, but if -- I think from -- but I

Page 456

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]

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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

Page 460

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

9 well.

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

Page 461

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

Page 462

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

Page 463

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?

Page 464

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

14 indicated.

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

17 list?

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

Page 465

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

9 time.

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

Page 466

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

Page 467

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

15 lawyers.

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

Page 468

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.

Page 469

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

18 it.

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

Page 470

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

13 cross-examination.

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

Page 471

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

12 me.

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

23 evening.

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

Page 472

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

12 afternoon.

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

Page 473

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.

25