1 Monday, 8 April 2002
2 [Open session]
3 --- Upon commencing at 2.19 p.m.
4 [The accused entered court]
5 JUDGE AGIUS: Can you call the case, please, Madam Registrar.
6 THE REGISTRAR: Yes, Your Honour. This is the case number,
7 IT-99-36-T, the Prosecutor versus Radoslav Brdjanin and Momir Talic.
8 JUDGE AGIUS: Mr. Brdjanin, good afternoon to you. Can you hear
9 me in a language that you can understand?
10 THE ACCUSED BRDJANIN: [Interpretation] Yes, I can hear you and I
11 understand you, Your Honour.
12 JUDGE AGIUS: I thank you.
13 And General Talic, good afternoon to you. Can you hear me in a
14 language that you can understand?
15 THE ACCUSED TALIC: [Interpretation] Good afternoon, Your Honour.
16 I can hear you in a language that I understand.
17 JUDGE AGIUS: Thank you.
18 Appearances for the Prosecution.
19 MS. KORNER: Your Honour, Joanna Korner, Andrew Cayley, and
20 Denise Gustin case manager for the Prosecution. Good afternoon.
21 JUDGE AGIUS: Good afternoon to you.
22 And appearances for Radoslav Brdjanin.
23 MR. ACKERMAN: Good afternoon, Your Honours, I'm John Ackerman
24 appearing on behalf of Mr. Brdjanin along with Milka Maglov, my co-counsel
25 and Tania Radosavljevic, legal assistant.
1 JUDGE AGIUS: Good afternoon to you.
2 MR. ACKERMAN: And I want to express to the Chamber my
3 appreciation for your understanding of the situation I was going through
4 last week and report to you that everything is good.
5 JUDGE AGIUS: Perfect.
6 MR. ACKERMAN: And I think --
7 JUDGE AGIUS: That's about the only good news we have had so far
9 MR. ACKERMAN: Well, I'm sorry you've had bad news today, Your
10 Honour. If I can do anything to help you, just let me know.
11 JUDGE AGIUS: Thank you.
12 Appearances for General Talic.
13 MS. FAUVEAU-IVANOVIC: [Interpretation] Good afternoon,
14 Mr. President, Madam Judges, my name is Natasha Fauveau-Ivanovic and I'm
15 representing General Talic together with my colleague Fabien Masson in
16 this case. I should like to present the excuses of Mr. De Roux who has
17 been retained in Paris and who will join us next week.
18 JUDGE AGIUS: Good afternoon to you.
19 Yes, Ms. Korner.
20 MS. KORNER: Your Honour, before we move to the next witness who
21 will be in closed session and be led by Mr. Cayley, there are a number of
23 JUDGE AGIUS: He's not hiding today.
24 MS. KORNER: No. He's fully upfront today.
25 Your Honour, first of all, simple administrative matters. Your
1 Honour, we received a message about the order of witnesses. There seems
2 to be some confusion from somebody. I don't know who it was. But I
3 thought I'd better just run through the order of witnesses for the next
4 couple of weeks. Your Honour, the witness coming today is Witness number
5 7.42, who will be testifying in closed session.
6 The next witness will be 7.171, followed by 7.197, followed by
7 7.160. And finally on Banja Luka, 7.4.
8 Now, Your Honour, there should have been a witness called Colonel
9 Selak to end up with. On rereading his statement, it became absolutely
10 clear that it made more sense to call him after we've called the Prijedor
11 evidence, because a lot of what he has to say will deal with events in
12 Prijedor. And so unless there's any objection from either of the Defence
13 teams, we propose to put him back until the Prijedor part of the case.
14 Your Honour, then can I mention two other matters. The witnesses
15 from the humanitarian organisation. Your Honour, we propose to call
16 witness number 7.224 between the 7th and the 9th of May, and Witness 7.223
17 between, as presently advised, the 27th to the 29th of May. Your Honour,
18 both witnesses have considerable commitments which means we have to do
19 quite a lot of juggling to get them here.
20 Your Honour, the third matter is rather more substantial.
21 JUDGE AGIUS: Before you proceed to the third matter.
22 Mr. Ackerman and Madam Fauveau, regarding the proposition of the
23 Prosecution to postpone the testimony of Selak till after the -- or
24 towards the end of the Prijedor municipality, is that okay with you?
25 Mr. Ackerman?
1 MR. ACKERMAN: Yes, I have no objection, Your Honour.
2 JUDGE AGIUS: Okay. So I take it that that's how it will be?
3 JUDGE AGIUS: No.
4 MS. FAUVEAU-IVANOVIC: [Interpretation] No objections, Your
6 JUDGE AGIUS: Okay.
7 MS. KORNER: Your Honour, I think Your Honours have been given
8 some idea of what the third matter relates to because I asked to be given
9 to Your Honours this morning --
10 JUDGE AGIUS: Yes.
11 MS. KORNER: -- a statement that had been taken from a witness.
12 Now, Your Honours, the matters that I have to raise are of a serious
13 nature. I don't know whether Your Honours would wish it to be done
14 in open session or in private session.
15 JUDGE AGIUS: Ms. Korner, I suppose we know exactly which matter
16 you're referring to. If it's the matter that was referred to us this
17 morning. One question: Is the witness a protected witness?
18 MS. KORNER: Your Honour, this -- interestingly enough, he was
19 going to be. He asked for full protection. I was proposing to refer to
20 him by the number alone.
21 JUDGE AGIUS: So that's number one.
22 MS. KORNER: Yes.
23 JUDGE AGIUS: Provided that is good enough for your purposes as
24 Prosecutor, I think the correct way to go about it is to have it first
25 exposed and then discussed in open session and not in the closed session,
1 provided we maintain the anonymity of the witness.
2 Mr. Ackerman and Madam Fauveau, I suppose you know exactly what
3 we're talking about or what we are going to discuss.
4 MR. ACKERMAN: Well, I assume that I do. I assume it has to do
5 with a witness statement that I was given about 1.30 today.
6 JUDGE AGIUS: Yes. And Madam Fauveau, are you aware of this
7 incident that has come up in this case, or not yet?
8 MS. FAUVEAU-IVANOVIC: [Interpretation] I think that you are
9 referring to the statement which was given to me by Mr. Ackerman a few
10 minutes before we started today.
11 JUDGE AGIUS: [Previous translation continues] ... concern your
12 client. So I think that's the correct way to -- to do it, Ms. Korner. I
13 don't think we should go into closed session or in private session. We
14 should have it in open session. The important thing is to maintain the
15 anonymity of the witness as explained to you.
16 MS. KORNER: Your Honour, I think I should --
17 JUDGE AGIUS: He's going to be a witness in which municipality?
18 MS. KORNER: I'd prefer not to mention it. It's the one that --
19 it's on the statement where he works.
20 JUDGE AGIUS: Okay. So I think you have the floor, Ms. Korner.
21 MS. KORNER: Thank you. Your Honour, I think it's necessary just
22 to tell Your Honours very briefly a little bit of the history of the
23 protective measures saga in this case, because it very much is germane to
25 Your Honour, there was a great deal of discussion and argument in
1 the early stages of this case about disclosure to Defence counsel of the
2 names of witnesses. Your Honour, what had happened was that without
3 leave - and we accept full responsibility - the Prosecution had redacted
4 the names of all witnesses from the statements that were supplied in the
5 supporting material. There was then a motion put in in order to try and
6 rectify the situation asking that there should be delayed disclosure of a
7 number of witnesses' names. And before Judge Hunt gave a ruling on it,
8 there was a hearing about the matter on the 24th of March of the year
10 The Defence had effectively raised the issue that by wishing to
11 withhold identity of witnesses, there was a suggestion from the
12 Prosecution that they were not to be trusted. Well, there was quite a lot
13 of discussion about that in open court, and the Prosecution made it clear
14 that they weren't suggesting that the Defence counsel in this case were in
15 any way not to be trusted. It was merely a precautionary measure, because
16 what we made it clear -- and I'm looking now at the transcript of that
17 hearing, 24th of March, page 89 -- that we were concerned that there
18 should be interference with witnesses from people outside Defence counsel
19 and that there was some suggestion based on previous history that people
20 were prepared to try and persuade witnesses not to testify.
21 In any event, one of the things that was said by Mr. Ackerman was
22 that people in Banja Luka -- this was the concern that we raised --
23 investigators and the like, would be people acting under his direction or
24 control and who would be following his instructions to them.
25 Your Honour, after the discussion had been held, Judge Hunt
1 issued a decision -- the first decision on protective measures in which he
2 made it clear that we would have to disclose the identity of the witnesses
3 who we intended to call.
4 Your Honour, there were then a further series of applications in
5 respect of certain specified witnesses who the Prosecution said that they
6 did not wish to disclose their identities until a time closer to trial
7 because of the risk to them. In addition to that, the Prosecution asked
8 for leave to redact all current whereabouts of witnesses they intended to
9 call. Originally, there was also an application to redact the whereabouts
10 of named people in the statements. That was declined. However, on the
11 15th of November of 2000, a ruling was given which gave leave to redact
12 the current whereabouts from the statements that were supplied to the
13 Defence. Your Honour, I'm now reading from the disposition of the
14 judgement. I'm sorry, it was in fact -- well, there was an original
15 judgement and then a later one, because it wasn't clear what was meant.
16 The original judgement was the 8th of November.
17 "The Prosecution is granted leave to redact from the statements
18 of all witnesses whom it proposes to call to give evidence in this case
19 any information concerning the current whereabouts of each witness."
20 As I say, Your Honour, there was some discussion at a later stage
21 about this question of what was meant by "witnesses," and so on the 15th
22 of November, it was made clear by Judge Hunt.
23 Now, Your Honour, in the course of the various discussions about
24 this matter, at one stage, counsel for General Talic were suggesting that
25 if the Prosecution refused to give them the identity of various witnesses,
1 they would be making their own inquiries by placing the statements before
2 officials of the Republika Srpska to identify the witnesses. Judge Hunt
3 had something to say about that in his ruling of the 15th of November, in
4 which he said this: "Whatever the intention may be in showing these
5 statements to Republika Srpska officials, it would be a risky course of
6 action for the Defence team of Talic to take. If the Defence presents a
7 redacted copy of a witness's statement to a Republika Srpska official who
8 is known by the Defence team to be able to identify that witness from the
9 content of that statement, that action would constitute a deliberate
10 disclosure to that official, not only of the contents of the witness
11 statement but the identity of a witness known by the Defence team to be a
12 witness for whom protective measures have been sought. The disclosure of
13 the identity of the witness would be deliberate even though the Defence
14 team itself does not know the identity of that witness. Unless such an
15 action is clearly, directly, and specifically necessary for Talic's
16 preparation and presentation of this case, it may well amount to knowingly
17 and wilfully interfering with the Tribunal's administration of justice and
18 thus a contempt of the Tribunal."
19 Your Honour, that led -- and I'm merely repeating this to show
20 that these matters have already been raised. That led to a discussion as
21 to whether such an action had already taken place. But this particular
22 complaint that we make has nothing to do with the defence team for Talic.
23 We make this absolutely clear.
24 Your Honour, the only purpose of asking for and the Judge
25 granting redaction of the present whereabouts of witnesses was to prevent
1 exactly what we now suggest has taken place. The witness in question, who
2 at the time had asked for full protective measures because of his position
3 and because of the municipality to which he has returned, as Your Honour
4 will see, was approached by Ms. Maglov, who is part of the Defence team
5 for Brdjanin. Now, the complaint is this:
6 One, how it was that she obtained the -- or the Defence team for
7 Brdjanin obtained the whereabouts, the present whereabouts of this man.
8 Second, as Your Honours will have seen from the statement that
9 was taken yesterday by an investigator and faxed through -- may I say this
10 came to light quite by chance -- that at no stage until late on in the
11 interview did Ms. Maglov or her associate, whoever he may have been, make
12 it clear to the witness who they were and why they wished to speak to
14 And third, that in effect the witness understood the matter as
15 being a suggestion that he should not testify about these matters.
16 If Your Honour looks at page 4 -- if Your Honours look at page 4
17 of the statement, effectively that they wanted to start thinking about a
18 change in the evidence that he had given in his statement. And Your
19 Honours will also see on page 4 the effect that it had on this witness.
20 Your Honour, it's the penultimate paragraph.
21 Now Your Honour, I have spoken to Mr. Ackerman about this, and of
22 course there's no property in a witness. However, it is known to
23 Mr. Ackerman, as it is to everyone, the delicate nature of some of the
24 evidence that these witnesses are giving. It is further known that some
25 of these witnesses are living in conditions which are more dangerous in
1 some cases, where a witness has returned to a municipality which is part
2 of the Republika Srpska and where he is of a different ethnicity. The
3 visit alone could have alerted people in that municipality to the fact
4 that this man was going to testify in this case. But the reason, as I
5 said earlier -- the only reason for asking for and redacting present
6 whereabouts of witnesses who are going to testify was so that this should
7 not happen without warning. Your Honour, we suggest that what has
8 happened here comes fairly close to a contempt of this Court.
9 Your Honour, Rule 77(iv) deals with what is a contempt. And it
10 is a contempt if any person threatens -- we don't suggest there was
11 threatening -- intimidates, causing injury, offers a bribe, or otherwise
12 interferes with a witness who is giving, has given, or is about to
13 give evidence in proceedings before a Chamber or potential witness."
14 Your Honour, we would like -- and Your Honours may feel -- that
15 an explanation is called for; further, whether any other witnesses have
16 been approached in this manner; and finally, we would ask Your Honours for
17 an order that there is to be no contact without notification with any
18 witness who is about to give evidence for the Prosecution and that the
19 witnesses must be asked, whether by the Prosecution or by someone acting
20 independently on behalf of the Court, whether they are content to meet a
21 representative of the Defence.
22 JUDGE AGIUS: Ms. Korner, let's clarify one -- one point before I
23 direct -- I address Mr. Ackerman. Are you asking the Chamber to proceed
24 further in the direction of contempt proceedings or not?
25 MS. KORNER: Your Honour, I think at the moment what I'm asking
1 for is for the Chamber to make an inquiry. The rule says that where --
2 Rule 77(C) --
3 JUDGE AGIUS: Yes, exactly. This is why I'm asking you, because
4 the next question would be a follow-up to your answer, whether in terms of
5 77(C)(ii) --
6 MS. KORNER: Yes.
7 JUDGE AGIUS: -- you would consider -- you as the prosecutor as
8 having a conflict of interest with respect to the relevant conduct, in
9 which case the Chamber would direct its attention to the Registry and an
10 amicus curie rather than an investigation to be conducted by the
12 If you are requesting the Trial Chamber to go deeper into the
13 matter, then I would suggest to you that -- to consider that there may be
14 a conflict and that --
15 MS. KORNER: No. Your Honour, if it is on inquiry something that
16 needs to be taken further, then I think it would not be right for the
18 JUDGE AGIUS: I would think so -- I would think so too.
19 Okay. Mr. Ackerman, I'm referring the matter to you and not to
20 Ms. Maglov for obvious reasons, because if there is an allegation that is
21 being made against her, I'm not going to ask her directly to comment or to
22 pass any remarks on what has been stated in her regard.
23 Mr. Ackerman, as the lead counsel for Mr. Brdjanin.
24 MR. ACKERMAN: Thank you, Your Honour. There are, I think, some
25 air clearing needs to be done.
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 First of all, the Chamber must understand that there is no order
2 in this case prohibiting Defence counsel from interviewing witnesses to
3 the events that happened in the Bosanska Krajina in the year 1992. No
4 such order exists. And there could not be such an order, I suggest to
5 you. That would be in violation of the Statute and the Rules of this
6 Tribunal, to order that we cannot interview witnesses to events that
7 happened. Not only is it not prohibited by any orders of this Court, but
8 it is the proper job of Defence counsel to interview every witness who
9 will talk with them and who has knowledge of the events in this case. It
10 is a duty which Defence counsel owes to the accused. It's not relevant to
11 that duty which party has listed the witness and intends to call them.
12 The purpose of witness protection measures contained within the Statute
13 and Rules of this Tribunal is to protect witnesses from harassment, from
14 intimidation, and to eliminate any possibility of obstruction of justice,
15 but not to prevent counsel from conducting proper inquiries.
16 Now, Ms. Korner has not -- has misunderstood, even though
17 Judge Hunt pointed it out to her many times, the difference between a
18 witness being protected from public disclosure of the fact that they are
19 doing to testify in this Tribunal and being protected from private
20 disclosure that they're going to testify, in other words that Defence
21 counsel should know who the witness is so that proper investigation can be
23 And if Your Honours will read the transcripts of the various
24 Status Conferences that were held regarding those issues and read the
25 orders entered by Judge Hunt regarding those issues, you will see that
1 thread running through them all that Ms. Korner misunderstands the
2 difference between public and private disclosure.
3 One thing is very clear: Witnesses do not -- no one has a
4 property interest in a witness. They belong to no one. You will find
5 that in Prosecution versus Kunarac in the order on Rule 90(E), 15 March
6 2000, Judges Mumba, Hunt, and Pocar, this Chamber. In that case the
7 Judges said: "A witness is brought before the Tribunal for whatever
8 contribution they can make toward the establishment of the truth and not
9 strictly a witness for either party."
10 Secondly, there is a firm obligation placed upon those
11 representing an accused to make proper inquiries as to what evidence is
12 available in that person's defence."
13 And that, Your Honours, comes from the Appeals Chamber of this
14 Tribunal, Judges May, Taya, Hunt, Bennouna, and Robinson and Prosecutor
15 versus Aleksovski, decision on the Prosecutor's appeal on admissibility of
16 evidence, 16 February 1999.
17 On 3 July 2000, Judge Hunt issued his decision on the motion by
18 the Prosecution for protective measures. And in that decision, the
19 Prosecution was suggesting that there was no reason to disclose a
20 witness's identity to the Defence more than 30 days ahead of time because
21 normally -- this is the Prosecution's language -- the name is only
22 relevant to issues of credit and therefore generally only a small part of
23 case preparation that the Defence may undertake."
24 And then asked the Prosecution rhetorically: "Even if the
25 Defence have the name of witness how would this assist them in preparing
1 the defence of either I've accused." Judge Hunt's comment is that these
2 statements are quite unrealistic when applied to those witnesses who fall
3 within the category of giving evidence which directly implicates the
4 accused. There can be no assumption by counsel for the accused that these
5 witnesses will be testifying the truth. There are well-documented cases
6 whereupon a careful investigation, witnesses called by the Prosecution
7 have turned out not to have been where they say they were or have
8 subsequently retracted their evidence.
9 THE INTERPRETER: Could the counsel please slow down for the
10 benefit of the interpreters.
11 MR. ACKERMAN: -- to make proper inquiries as to what evidence is
12 available in that person --
13 JUDGE JANU: Slow down, please.
14 MR. ACKERMAN: I'm sorry.
15 To make proper inquiries as to what evidence is available in that
16 person's Defence.
17 Judge Hunt went on to say that some of the Prosecution witnesses
18 are likely to be of such importance that it will be necessary for at least
19 the final stage of the investigation into those witnesses to be done by
20 counsel who is to appear for the accused at trial. That is obvious to
21 anyone with experience of criminal trials.
22 On 25 January 2000, Your Honours, I filed on behalf of
23 Mr. Brdjanin a response to the Prosecutor's motion for protective
24 measures. And I want to read you paragraph 6 of that response because it
25 sets out my understanding of the Rules of the Tribunal with regard to
1 these matters. It reads as follows:
2 "Defendant shares the Prosecutor's concern regarding the safety
3 and fair treatment of witnesses. Defendant has not nor will he or any of
4 his defence staff engage in threats, harassment, violence, bribery, or any
5 other intimidation of witnesses. The same, of course, is expected of the
6 Prosecutor and the Prosecution staff."
7 It's clear that all of us involved in the Defence team have
8 always understood that we should not threaten, harass, subject to
9 violence, bribe, or any other way intimidate a witness. Anybody who is a
10 lawyer should understand that. And this particular witness has told you
11 they did not threaten me in the course of the conversation, they did not
12 mention anything about me travelling to The Hague and testifying before
13 the Court.
14 Finally, Your Honours, in a 14 February 2000 response to what's
15 called "the Prosecutor's further and better particulars of their motion
16 for protective measures," in response to Judge Hunt's request that they be
17 more specific, on behalf of Mr. Brdjanin I said the following:
18 "The Prosecutor's approach to these matters, that being an
19 attempt to establish a presumption of intimidation, is of considerable
20 importance to proceedings before this Tribunal. And I must tell you that
21 in response to my suggestion that what the Prosecution was suggesting was
22 that there was a presumption that Defence counsel would intimidate
23 witnesses, was said by Judge Hunt not to be without some basis."
24 The modifus modificial [phoen] was first published around 1486,
25 although the date cannot be determined with certainty. It went through
1 numerous editions after the first printing. It is a manual of law and
2 proceed for the trial of witches. It was used in inquisitions throughout
3 Europe. It was, of course, highly important to those prosecuting witches
4 that they be convicted; otherwise the contention that witchcraft existed
5 could have been brought into some doubt. One way to ensure conviction is
6 to limit the rights of accused. One of the rules is reminiscent of the
7 current situation facing this Chamber. This modifus states that the names
8 of the witnesses shall not be made known to the advocate for the accused
9 even under an oath of secrecy.
10 I think, Your Honours, we have progressed a great deal since those
11 dark days in the history of the world. I think Ms. Korner is raising an
12 issue that is not an issue. Yes, if one of us intimidates a witness, if
13 one of us does something improper with regard to a witness, then the full
14 force of this Tribunal should come down on us, whether we're Defence or
15 Prosecutor. But we're engaged in a legitimate investigation, and its
16 legitimate investigation to talk to witnesses, to find those witnesses, to
17 ask them what they know. As Judge Hunt points out, it's that kind of
18 investigation that will turn up those things that will show that they are
19 not being truthful, that they have bias, that they have prejudice, and
20 things of that nature.
21 Now, here is my concern, because of Ms. Korner's position with
22 regard to this: Bearing in mind that there's no order that we're not
23 supposed to talk to witness, Ms. Korner says the only thing you can
24 conclude from the redaction of the witness's address is that it means that
25 we are not supposed to talk to witnesses. That's not what it means at
1 all. If there's some inadvertent disclosure of that statement -- like
2 statements were left recently, I understand, in the airport in Zurich.
3 Someone might have been able to find those and read them. It's to keep
4 things like that that from happening. To keep public disclosure:
5 It's public disclosure we're concerned about, not protecting the
6 Prosecution's case. It's not the Trial Chamber's job to protect the
7 Prosecutor's case. And that's what Ms. Korner is wanting you to do,
8 protect her case from us doing a proper investigation. This man was not
9 intimidated. This man was not threatened. This man was not harassed.
10 The only thing that was done which I would say should not have been done
11 with regard to this man was, if it's true -- and I'm not sure that it
12 is -- but if it's true that he was not told by Ms. Maglov who she was
13 representing at the very beginning of their conversation -- she probably
14 should have done that, should have told him that. But it's up to a
15 witness whether or not he wants to talk to somebody about a situation or
16 not. He gets to make that choice. They're grown-ups.
17 My concern is this: It's my presumption that the Prosecutor has
18 now informed this witness through an investigator that it was improper for
19 Defence counsel to have approached him and sought to interview him, thus
20 placing in his mind a belief that Defence counsel have engaged in some
21 [indiscernible] causing this witness now to be a biased and untrustworthy
22 witness in this case.
23 My second concern is that the Prosecutor will now instruct all
24 the persons who they seek to call as witnesses not to talk with Defence
25 counsel, thereby interfering with any investigation that we can conduct
1 and doing exactly the thing that the Rule says should not be done, and
2 that is obstruction of justice and obstruction of a defence
3 investigation. Other than what I said, if it's true that it was not
4 disclosed at the very beginning by Ms. Maglov that she was representing
5 Mr. Brdjanin, other than that, there is absolutely nothing wrong with what
6 happened here. It's what we're supposed to do. I have spent 32 years as
7 a lawyer doing that, finding Prosecution witnesses and talking to them.
8 You must do that. You can't properly represent a defendant if you don't
9 do that. And the times that I have seen people get in trouble regarding
10 this matter, it has been Prosecutors for telling their witnesses not to
11 talk to Defence counsel. That is my position.
12 Ms. Maglov has indicated that she would like to respond to you,
13 Your Honours. That is up to you whether you want to hear her or not.
14 JUDGE AGIUS: Ms. Maglov can choose to respond if she wants to.
15 But she's not being asked by the Trial Chamber to do. So it's your own
16 choice if you decide to do so. You're free to say what you like, but
17 you're not being asked to intervene or to provide any explanation. You
18 have every right to remain silent like everyone else.
19 MS. MAGLOV: [Interpretation] Your Honours, it is my wish to
20 clarify the matter. First of all, I am a professional who has been
21 working for 30 years in this profession. I shouldn't refer to the matter
22 as an incident at all. The witness whom I talked to is a person whom I
23 did not know would be a Prosecution witness. We were looking for Defence
24 witnesses and we wanted to find the most credible, the most reliable
25 witnesses for us. That is a person who has participated in the former
1 government and who is still part of the local government that is in the
2 area of our interest. And it was for these reasons that we conducted a
3 conversation with this witness trying to find out whether he would be
4 willing to testify about the relevant events, bearing in mind the fact
5 that justice is something that everybody has a right to and that it is
6 only with truth that one can best defend oneself-we believed that he would
7 be the most appropriate witness for the events that had taken place. And
8 it was only in this context that we conducted our conversation with him.
9 Thank you.
10 JUDGE AGIUS: Ms. Korner.
11 MS. KORNER: I'm very really sorry to have to say this about
12 somebody who is counsel, but that positively cannot be true. This
13 statement was disclosed to the Defence with the name of the witness
14 sometime last year. According to the witness, the first thing that was
15 said by -- or one of the first things that was said by Ms. Maglov was that
16 "she informed me that she was aware of the fact that I had given a
17 statement to the Tribunal and that I was a potential witness."
18 Now, Your Honour, I have to say I admire Mr. Ackerman -- it's a
19 trick I think known as carrying the war to the enemy's camp to suggest
20 that in fact by raising this matter, the Prosecution is in some way at
21 fault. Your Honour, in respect of the reason why there was a redaction
22 from the statements given to Defence counsel, it had nothing do with the
23 possibility that the statements might fall into the wrong hands and
24 everything to do with whether or not Defence counsel would try and
25 approach these witnesses.
1 Your Honour, on the 20th of July, 2000, during the course of the
2 Status Conference, at page 172, I said to his Honour Judge Hunt this:
3 "First of all, I wanted to be clear that we're not required by the terms
4 of Your Honour's order to give to the Defence the current addresses of
5 witness who happen to move".
6 "No," said Judge Hunt. "You are required to give only the
7 statements. If you want to give a redaction of their address, which may
8 be reasonable, I think, for the Defence to -- for the Defence really to
9 show why they needed it, they may say they may need it, for example,
10 because there's more than one person with that name, so they may have to
11 give some better identification. But you have only to give the statements
12 at this stage."
13 Now, excepting full well, as I say, that there is no property in a
14 witness, what has happened in respect of this witness is the very reason
15 why we did not wish and why Judge Hunt agreed that we should not have to
16 give the addresses of the witnesses who we were intending to call. Your
17 Honour, Mr. Ackerman has ignored the question of how they obtained the
18 address of this witness, which we would suggest can only have been done by
19 showing these statements to officials of the Republika Srpska and seeking
20 their assistance in finding these witnesses. Nor has he dealt with what
21 the witness actually said that Ms. Maglov said, namely -- and again I
22 refer to page 4 -- "during the entire conversation, they had been trying
23 to suggest to me responses, and it is my understanding that they wanted to
24 persuade me to state that a part of Brdjanin's responsibility should go to
25 the local Serb authorities in charge of the municipality in 1992.
1 However, after they left my office, I felt really stressed. I found their
2 attitude very inappropriate and arrogant to come into my office and
3 suggest to me things such as a shared responsibility in the events that
4 occurred in the municipality. I was not happy they showed up in my office
5 without contacting me first."
6 Your Honour, I suggest that what has happened here is
7 interference with a witness, and I'm inviting Your Honours to institute an
8 inquiry into this matter. I'm also inviting a response from the Defence
9 as to how the current whereabouts of this witness was obtained.
10 JUDGE AGIUS: Any further comments, Mr. Ackerman.
11 MR. ACKERMAN: No. Ms. Korner asked a question that I don't know
12 the answer to. Other than that, I have no further comment. What
13 Ms. Korner -- I do. What Ms. Korner said about the hearing and
14 Judge Hunt's comments about the address is totally consistent with what I
15 said. The purpose is that the address of the witness not be in a
16 statement that can be inadvertently disclosed somewhere. I don't think
17 there's any evidence here that any witness statement has been shown to an
18 improper person.
19 JUDGE AGIUS: [Microphone not activated] I think the matter
20 definitely deserves to be looked into further by the Trial Chamber, who --
21 which will hand down a short written decision within a very short time.
22 We can proceed to some other matters before we call in the
24 Mr. Ackerman, last Friday you filed a motion for -- first for
25 leave -- for an extension of time for the purpose of filing a motion for
1 certification under Rule 73(C) in order to then appeal the decision of
2 this Trial Chamber of the 22nd of March. You are aware of that,
3 Ms. Korner?
4 MS. KORNER: I am, yes.
5 JUDGE AGIUS: Is there any objection on your part?
6 MS. KORNER: None at all.
7 JUDGE AGIUS: I would have supposed there wouldn't be any
8 objection. So the decision will be -- in anticipation of your
9 non-objection, we have prepared the decision, which we will hand in
10 without any delay at all. There is going to be an extension granted and
11 obviously also a certification, so that you can in the meantime start
12 preparing your appeal.
13 Then there is something else that I want to ascertain first
14 whether it has come to -- been brought to your attention while you were
15 not here, because the deadline for the filing of the response was last
16 Friday -- and that was a motion, confidential motion, filed by the
17 Prosecution for the variation of protective measures under 75(D) in
18 relation to the Milosevic case.
19 There was --
20 MS. KORNER: Yes, it was filed by the Milosevic team. That's
22 JUDGE AGIUS: Yes. Not your -- this Prosecution team; the other
23 Prosecution team.
24 MS. KORNER: Yes.
25 JUDGE AGIUS: But the deadline was last Friday. I don't know
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 whether we are supposed to take that as a non-objection or whether you
2 want an extension to be able to file the response based on the
3 circumstances that characterised last week.
4 MR. ACKERMAN: Probably the best way to put it, Your Honour, is
5 you should take it as a non-response because I have really no interest in
6 the substance of that motion.
7 JUDGE AGIUS: Okay. Madam Fauveau?
8 MS. FAUVEAU-IVANOVIC: [Interpretation] No objection.
9 JUDGE AGIUS: Okay. So please Anika, have those things ready for
11 I think we can -- if there is no other matter which you would
12 like to raise --
13 Yes, Mr. Ackerman. Are you going to withdraw your motion for an
15 MR. ACKERMAN: Well, okay. It's withdrawn, Your Honour, as far
16 as I'm concerned.
17 I sent to the Registry on Saturday, I believe it was, my
18 supplemental pre-trial brief, but I didn't find it in my box this morning
19 so I'm not sure it has been filed or received.
20 MS. KORNER: It has.
21 MR. ACKERMAN: Yes, it has been.
22 JUDGE AGIUS: We haven't received it yet.
23 MR. ACKERMAN: Well, it's filed two days -- three days ahead of
25 JUDGE AGIUS: I thank you, Mr. Ackerman. Should we call the
2 MS. KORNER: Mr. Cayley is -- two other matters. In respect of
3 Rule 92, Your Honour, for Sanski Most, we should make it clear, I think,
4 that we're proposing subject to the rulings that Your Honours make to put
5 the statements in as they are; in other words we're not proposing to edit
6 anything out. I think that relates in particular to Serb soldiers or
7 whatever it is.
8 JUDGE AGIUS: Yes, Mr. Ackerman.
9 MR. ACKERMAN: The other thing I neglected to mention was I also
10 filed -- and I don't know if you've seen that or not -- the -- a response
11 to the Prosecution's motion to take depositions --
12 JUDGE AGIUS: Yes.
13 MR. ACKERMAN: -- which was filed a couple of days late, Your
14 Honour, for --
15 JUDGE AGIUS: We have seen that. We have seen that.
16 MR. ACKERMAN: And I would only ask that it be accepted, even
17 though it was a couple of days late. I was a bit distracted for a few
19 JUDGE AGIUS: Do you have any objection, Ms. Korner?
20 MS. KORNER: None at all, Your Honour. Actually, on that note, I
21 should tell Your Honour that the Stakic case is boiling up, as Your
22 Honours may know, so I'm going to be in and out of court for the next
23 week or so.
24 Yes, and Mr. Cayley as well, because he's unfortunately got
25 himself involved in that.
1 JUDGE AGIUS: Okay. So we'll go into closed session or private
3 MS. KORNER: Yes, Your Honour. Closed.
4 JUDGE AGIUS: Closed.
5 [Closed session]
13 Pages 3850-3918 – redacted – closed session
12 --- Whereupon the hearing adjourned at 6.57 p.m., to
13 be reconvened on Tuesday, the 9th day of April,
14 2002, at 2.15 p.m.