Tribunal Criminal Tribunal for the Former Yugoslavia

Page 4013

1 Wednesday, 10 April 2002

2 [Open session]

3 --- Upon commencing at 2.18 p.m.

4 JUDGE AGIUS: Can we have the case -- can I have the case called,

5 Madam Registrar, please.

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] Thank you, Your Honours. I

11 can hear you and understand you.

12 JUDGE AGIUS: I thank you. You may sit down.

13 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 Honours.

16 I can hear you and understand you.

17 JUDGE AGIUS: I thank you.

18 Appearances for the Prosecution.

19 MR. CAYLEY: Yes, good afternoon, Your Honour.

20 JUDGE AGIUS: Good afternoon.

21 MR. CAYLEY: I appear on behalf of the Prosecution, my colleague

22 Ann Sutherland, case manager Denise Gustin.

23 JUDGE AGIUS: I thank you. Good afternoon to you.

24 Appearances for Mr. Brdjanin.

25 MR. ACKERMAN: Good afternoon Your Honours, I'm John Ackerman. I

Page 4014

1 appear with Milka Maglov, my co-counsel, and Tania Radosavljevic, legal

2 assistant.

3 JUDGE AGIUS: Good afternoon to you, Mr. Ackerman.

4 And appearances for General Talic.

5 MS. FAUVEAU-IVANOVIC: [Interpretation] Good afternoon, Your

6 Honours. My name is Natasha Fauveau-Ivanovic. I represent General Talic

7 with Mr. Fabien Masson.

8 JUDGE AGIUS: Thank you.

9 Now, who goes first?

10 MR. CAYLEY: Can I please go first, Mr. President, because I have

11 a few preliminary matters to deal with. I know what Mr. Ackerman is going

12 to deal with. He's already spoken to me about it. Thank you.

13 The first matter is the order of the witnesses, which my colleague

14 Ms. --

15 JUDGE AGIUS: Now, I didn't bring that document -- yes. No, I

16 have. It I have it. Yes.

17 MR. CAYLEY: My colleague Ms. Korner on Monday stated that the

18 witnesses would move along in the following order: After the current

19 witness, the next witness would be 7.171.

20 JUDGE AGIUS: Correct.

21 MR. CAYLEY: Followed by 7.197, followed by 7.160, and then

22 finally 7.4. There's a slight change. The order is now 7.171, 7.160,

23 7.197, followed by 7.4.

24 JUDGE AGIUS: Okay.

25 MR. CAYLEY: The next matter is just to raise it with the Court.

Page 4015

1 And that concerns the witnesses who are coming in respect of the Prijedor

2 municipality, who are also, as you know, relevant in the Stakic case which

3 begins next week.

4 JUDGE AGIUS: Hopefully.

5 MR. CAYLEY: We had -- well, we are moving ahead on that basis and

6 preparing to start trial next week, Your Honour.

7 We had suggested originally to the Stakic Trial Chamber that

8 witnesses be taken by way of deposition, and that idea apparently is one

9 which is not going to work. So we are going to have to try and

10 synchronise the evidence heard in this case and heard in that case, simply

11 bearing in mind the welfare of the witnesses so that we don't bring them

12 one case, send them home, bring them back. And I discussed the matter

13 with Ms. Korner, and we had -- or decided between us that we would make

14 the suggestion respectfully to the Chamber that there be some kind of

15 coordination meeting, presence of all counsel in both cases and the

16 presence of both Chambers to discuss the best way to do this. I know,

17 having spoken briefly to Mr. Ackerman, he favours the idea of, you know,

18 bringing them in back to back. So in other words, they would appear in

19 this Chamber and then they would go straight into the next Chamber, or

20 vice versa, and we would provide the transcript that evidence to Defence

21 counsel in either Chamber as a record of that evidence. So that was

22 simply a suggestion which Your Honours might wish to consider.

23 And the third matter which Mr. Ackerman has raised with me are two

24 videos that is were shown at the end of yesterday's session, which are

25 videos 508 and 509 which show the accused Brdjanin making a speech. I had

Page 4016

1 represented to this Court that those videos were from 1992, and I think

2 one from 1993. Mr. Ackerman corrected me. Apparently they are from 1993

3 and 1994, he tells me. If that is correct, naturally we will change our

4 position on that. I simply offered to the Court the information that was

5 in my possession at the time. Apparently on one video there is the year

6 1994 --

7 JUDGE AGIUS: One video, if I may interrupt you, Mr. Cayley, what

8 you said yesterday, the first video that we saw, you said goes back to

9 1993. And a second one -- Mr. Ackerman stood up to ask the put the same

10 question again. And he sat down immediately. He said, "This we have seen

11 already." So you did not make it in time to say 1993, 1994, or 1992, or

12 whatever. That's the impression that I have.

13 In any case, these are things that can -- facts that can be

14 established, and I don't think it's going to be -- to affect much.

15 MR. CAYLEY: I did not want to leave the impression which

16 Mr. Ackerman has stated to me that I in any way misrepresented evidence to

17 the Court. That's what I was concerned about. We will do our own

18 inquiries internally to get these dates established. In any event, we

19 will still maintain whatever year these videos are, that they are

20 admissible. They go as to motive, mens rea, the views of the witness that

21 he expressed publicly. That is matter for argument, of course.

22 JUDGE AGIUS: In actual fact, going back to the first or second

23 week of this trial, you're going -- going through the transcripts, you're

24 going to find one incident when that arose, specifically the question of

25 whether a videoclip -- going back to 1993 could be admitted or could have

Page 4017

1 any relevance. And you will find there a statement made by this Trial

2 Chamber -- actually two statements, one that one had to see first because

3 the contents, even though going back to 1993 and even 1994 could shed

4 light on the forma mentis and the mens rea and the past behaviour of the

5 accused.

6 And secondly, then we did take a decision at some point in time,

7 although it could be in the most informal manner, to admit that particular

8 document which I think was the second one that we saw yesterday.

9 MR. CAYLEY: Yes, it's the same. And in fact, it was the evidence

10 of, I think, Mr. Krzic.

11 JUDGE AGIUS: But in any case, just to put your mind at rest, Mr.

12 Cayley, so far and all these weeks that we have been holding these

13 sittings here, neither on the side of the Prosecution nor on the side of

14 the Defence, the Chamber has had any reason even to think for one moment

15 that there has been an attempt to misrepresenting facts voluntarily -- or

16 not even voluntarily. I mean, so you don't have to worry about that,

17 things like this obviously happen. And it's something that can be

18 rectified without any -- any major -- major ado. I mean, so ...

19 MR. CAYLEY: Thank you, Your Honour.

20 JUDGE AGIUS: Yes, Mr. Ackerman.

21 MR. ACKERMAN: Your Honour, I was -- I of course discussed this

22 issue with Mr. Cayley --

23 JUDGE AGIUS: Which issue? This particular issue that I have

24 been --

25 MR. ACKERMAN: Yes. Before I raised it with the Trial Chamber.

Page 4018

1 And I was at the time, of course, totally familiar with what Your Honours

2 had said regarding one of the tapes that was shown yesterday. That would

3 be number 509.

4 JUDGE AGIUS: Yes.

5 MR. ACKERMAN: When 509 was shown, it was represented to the Court

6 to be a 1993 tape. I objected at that time because it was outside the

7 parameters of the indictment, and the Court ruled that it was admissible

8 because it could show a state of mind.

9 JUDGE AGIUS: Yes, exactly.

10 MR. ACKERMAN: Since 1993 was rather immediately after the time

11 the indictment ended.

12 JUDGE AGIUS: You are correct, Mr. Ackerman.

13 MR. ACKERMAN: Now, yesterday when Mr. Cayley started to show

14 number 508, I merely requested that there be a foundation established if

15 no other way than by representation by Mr. Cayley as to the date of the

16 tape so that the Court could evaluate whether it's admissible and what its

17 relevance might be. And Mr. Cayley said - and I have it in the

18 transcript - "1992," Your Honour. So that would have been within the time

19 of the indictment.

20 It was pointed out to me then at the -- near the close of the

21 session yesterday that it looked like the poster that was in the

22 background of that interview had the date 1994 on it. So we examined it

23 through the morning, and we believe that it does say "1994." But more

24 importantly, the context of the interview was that there was going to be a

25 rally the next day regarding a referendum that was scheduled to be held.

Page 4019

1 The very beginning of the tape identifies Mr. Brdjanin as

2 vice-president of Republika Srpska. So the tape could not have been

3 before the late fall of 1992. The only referendum after that date was a

4 referendum that the Bosnian Serb parliament suggested be held after they

5 had rejected the contact group plan that was supported by Mr. Milosevic.

6 And that's when the break between Milosevic and Karadzic occurred. So

7 that tape in my mind, clearly comes from 1994. In that tape, Mr. Brdjanin

8 is talking about a rally the next day that he will be speaking at. If you

9 then look at the tape of the rally that has been represented as 1993, Mr.

10 Brdjanin speaks in that tape of the referendum. It's my suggestion it can

11 only be the same referendum and that that is the rally that the interview

12 suggests is going to be held the next day. In my mind, it's dramatically

13 different to consider a tape from early 1993 very shortly after the end of

14 this indictment, and one from a year and a half later in 1994, after there

15 has been a bloody conflict, after there have been numerous attempts to

16 settle that conflict, after feelings have, among the parties, have been on

17 sharp edges. And Mr. Brdjanin as a member of the government of Republika

18 Srpska is being interviewed about his views and what he might say the next

19 day regarding the contact group plan which was -- involved a cantonisation

20 of Bosnia-Herzegovina. So the context is dramatically different from what

21 we're talking about with regard to the indictment when Mr. Brdjanin was

22 head of the crisis staff in Banja Luka. It's dramatically different. And

23 it could make a huge difference in this case, Your Honour, because it's

24 the Prosecutor's position that statements made by Mr. Brdjanin were such

25 that it incited people to commit some of the crimes that are contained in

Page 4020

1 the indictment, statements that he made after the events set out in the

2 indictment couldn't possibly fall in that context. And so if this Court

3 had continued to believe that the statements made in that interview had

4 been made in 1992, it could very well have concluded that they were part

5 of an alleged incitement that caused some of the events that happened in

6 Bosnia-Herzegovina in the year 1992. So it's not a de minimis kind of

7 thing.

8 JUDGE AGIUS: No. Definitely.

9 MR. ACKERMAN: It's a very serious kind of thing. And second, Mr.

10 Cayley did not make a misrepresentation to you in his own mind. He

11 believed firmly that that tape was from 1992. I have no doubt about

12 that. I know his reputation, and I know him individually since I've

13 started this case. So I don't -- I wouldn't suggest for a minute that

14 that happened. But somebody represented to Mr. Cayley that that tape came

15 from 1992. And I think we need to know how that happened, because if

16 it's, for instance -- and just a for instance. And I don't know this. If

17 it's for instance the AID group, which is the -- basically the secret

18 police of Bosnia-Herzegovina. If they gave it to the Prosecutor and

19 represented to the Prosecutor this was 1992, then that brings into

20 question every other document and piece of evidence that was given to the

21 Prosecutor by that group. And there's a lot of them, as you know.

22 And all I'm asking Your Honours to do is ask Mr. Cayley to look

23 into this matter and advise us how it came to be that that tape was

24 represented as coming from 1992. And if further investigation is then

25 required, that it be carried out; and that care be taken regarding

Page 4021

1 representations of that kind. This, Your Honours, is the mischief of

2 the -- what I think is a loose and reckless way that we deal with evidence

3 in this Tribunal. We let everything in, no matter where it came from, and

4 try to figure it out later as to whether it has any relevance or not.

5 There's not another court in the world that I know of that deals with

6 documentary evidence that way. And it's a -- I think it jeopardises

7 seriously the fairness of trials here. And I've said this on more than

8 one occasion. There should be a foundation for evidence that's admitted

9 before this Tribunal. We have, as you know, in this case just pieces of

10 paper with no provenance whatsoever other than they came from some place.

11 And it's a reckless way to go about it, in my mind. I think my client is

12 entitled to a fair trial, and I will do everything in my power to see that

13 he gets a fair trial that I can do. And I know Your Honours will too. I

14 know you will. But we cannot have this kind of mistake happening over and

15 over.

16 JUDGE AGIUS: Yes, Mr. Cayley.

17 MR. CAYLEY: Your Honour, first of all, I will look into this

18 myself, and I will have investigations done to certainly date these tapes

19 properly, and I will also endeavour to find out where the date of 1992

20 came from in respect of the representation that I made. I believe I know

21 where they came from. I think they came from the IF forms.

22 As to the other points that Mr. Ackerman makes, as to context

23 being relevant, I think you will recall that many of the witnesses that

24 have testified in this case --

25 JUDGE AGIUS: You don't need to expand on that, Mr. Cayley. You

Page 4022

1 can just go to something --

2 MR. CAYLEY: Could I just add one thing, Your Honour. Of course,

3 context is important, but those tapes were shown to Your Honours to show

4 the views of this man about Muslims and Croats. That's principally why

5 they were shown. And the witnesses who have appeared in this trial have

6 said that his views were similar to those views -- were similar in 1992 to

7 those view that is were expressed in the tapes that you have seen. So

8 they are relevant, and in my submission, you should consider them.

9 As to Mr. Ackerman attempting to sort of infect all of the other

10 Prosecution evidence in this case, in terms of the reliability of

11 documents, I would simply say this: Many of the documents, as you know,

12 we recovered from the Bosnian Serbs themselves, many of them. It is true

13 that some documents -- a number of documents came from the Bosnian

14 government, but many, many of the documents before you were seized - were

15 seized - from the Bosnian Serb government and the Bosnian Serb Army. So

16 it is not right to in some way suggest that every piece of evidence that

17 we have that we don't know where it comes from. It's not true. That's

18 all I have to say, Your Honour.

19 JUDGE AGIUS: Okay. Mr. Cayley, one thing. You may or may not

20 have been present when it happened, but it's not just the second video

21 that was shown here before on at least two occasions before yesterday, but

22 even the first one was shown before. The videoclip where Mr. Brdjanin is

23 being interviewed by the blond lady was shown in one of the hearings, not

24 all of it and not the same length of time as we had yesterday. There was

25 a brief excerpt from it. And if I remember well, since I don't know

Page 4023

1 whether the witness was protected or not, I won't mention his name. But I

2 think it was three -- the -- three, four witnesses ago -- three witnesses

3 before the present one.

4 MR. CAYLEY: I'll go through the transcript, Your Honour, and I'll

5 find every reference. I'll find every reference of the tape.

6 JUDGE AGIUS: Because there was one question that I wanted to ask,

7 and that was the name of the station. There is the logo with two or three

8 letters. And I didn't -- I was going to ask the question, and then I

9 decided not to ask the question because the witness was asked whether at

10 the time they received TV from Zagreb or something -- or from Belgrade or

11 something like that. I'm sure that if you go through the transcripts of

12 roughly the 15th, 16th hearing, something like that, you're going to find

13 something.

14 MR. CAYLEY: I will -- I will investigate. I will give

15 Mr. Ackerman that information. And then I will give it to the Court.

16 JUDGE AGIUS: I do not recollect the date being mentioned. You

17 know, I mean -- yes, this is -- I think it was the fifth witness. He was

18 not protected. No? The fifth witness was not. I think it was during the

19 evidence of Adil Medic, which would be -- it could be Smailagic as well.

20 But anyway, that's where you're going to find it. I'm sure that Ms.

21 Korner would remember when she used that video -- when she made use of it.

22 MR. CAYLEY: Anyway, Your Honour, we'll get to the bottom of this.

23 JUDGE AGIUS: Yes. And as soon as you have the information that

24 Mr. Ackerman suggested we request from you, please let us have it.

25 MR. CAYLEY: Yes.

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Page 4025

1 JUDGE AGIUS: I think it is important, not because the Chamber

2 suspects any -- or attributed to you any misrepresentation but because I

3 think we need to establish what was -- what the situation is.

4 Can we bring in the witness now?

5 MR. CAYLEY: Yes. Thank you, Your Honour.

6 JUDGE AGIUS: Yes. We'll go into closed session, please.

7 [Closed session]

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3 --- Whereupon the hearing adjourned

4 at 6.29 p.m., to be reconvened on Thursday,

5 the 11th day of April, 2002, at 2.15 p.m.

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