1 Wednesday, 17 April 2002
2 [Open session]
3 --- Upon commencing at 2.21 p.m.
4 [The accused entered court]
5 JUDGE AGIUS: Yours is not -- so let's report that straight away.
6 May I draw the attention of the technician or technicians that the
7 microphone of Ms. Korner is not working. Actually, it seems that -- no
8 one is switched on now, the one to your right --
9 MS. KORNER: Your Honour, it's some -- it is working to speak.
10 The interpretation channels are not working.
11 JUDGE AGIUS: Oh, I see. And you are on number 4.
12 MS. KORNER: Nothing happens when you go either up or down. It's
13 just --
14 JUDGE AGIUS: Have you checked the volume?
15 MS. KORNER: Your Honour, what it's not doing is showing any sort
16 of a number.
17 JUDGE AGIUS: Could one of the technicians please come to the
18 courtroom, please, and check this out.
19 MS. KORNER: Your Honour, it may well be it's just me being
20 incompetent. Sorry, I'll say it again. Because the headphones weren't
21 plugged in either.
22 JUDGE AGIUS: Don't tell me that, Ms. Korner.
23 MS. KORNER: Even I have to admit to incompetence.
24 JUDGE AGIUS: That completes the Trial Chamber, as it goes.
25 [Trial Chamber and registrar confer]
1 JUDGE AGIUS: Yes. Could you call the case, please. Thank you.
2 THE REGISTRAR: Yes, Your Honour. This is the case number,
3 IT-99-36-T, the Prosecutor versus Radoslav Brdjanin and Momir Talic.
4 JUDGE AGIUS: Mr. Brdjanin, good afternoon to you. Can you hear
5 me in a language that you can understand?
6 THE ACCUSED BRDJANIN: [Interpretation] Good afternoon, Your
7 Honours. I can hear you and understand you.
8 JUDGE AGIUS: Thank you. You may sit down.
9 General Talic, good afternoon to you too. Can you hear me in a
10 language that you can understand?
11 THE ACCUSED TALIC: [Interpretation] Good afternoon, Your Honours.
12 I can hear you and understand you.
13 JUDGE AGIUS: I thank you, General Talic. You may sit down.
14 Appearances for the Prosecution.
15 MS. KORNER: Your Honour, having recovered from my technical
16 incompetence, it's Joanna Korner, Ann Sutherland, assisted by Denise
17 Gustin, case manager.
18 JUDGE AGIUS: I thank you, and good afternoon to you.
19 Appearances for Radoslav Brdjanin.
20 MR. ACKERMAN: Your Honour, I'm John Ackerman with legal assistant
21 Tania Radosavljevic.
22 JUDGE AGIUS: I thank you, and good afternoon to you.
23 And appearances for General Talic.
24 MR. DE ROUX: [Interpretation] Good afternoon, Mr. President. My
25 name is Maitre de Roux, and I'm assisted by Madam Fauveau-Ivanovic for
1 General Talic.
2 JUDGE AGIUS: Good afternoon to you. I see that General Talic is
3 happier than the last few days, having you here in the courtroom. Welcome.
4 Now, Ms. Korner, we do have some preliminaries. And I see that
5 along the line of -- lines of the incompetence that you referred to
6 earlier, we have brought the witness in the courtroom when I know that you
7 have some preliminary issues to address.
8 MS. KORNER: Your Honour, it's not incompetence. I was asked
9 about this, and it seemed to me it would be better if the witness could
10 finish his evidence and then we --
11 JUDGE AGIUS: If that is all right with you.
12 MS. KORNER: That is. There's only one very quick matter that I
13 need to raise because steps have to be carried out. Your Honour will
14 recall that at the request of Mr. Ackerman, you issued an order that the
15 witness who had the many files which contained letters, should produce
16 them. The -- what has happened is the whole file has been sent up from
17 Sarajevo. What did we intend to do -- and I'm raising it, so that's
18 there's any objection. It seems to me that the whole file will be
19 confidential. We're going to go through it, in the sense of extract the
20 letters that Mr. Ackerman asked for, if there are any; photocopy them, and
21 make those the exhibits, if necessary. In other words, keep those in our
22 possession. And return the whole original files to the witness.
23 JUDGE AGIUS: Yes. That --
24 Mr. Ackerman, I don't think I need to consult you or
25 Maitre de Roux on this matter, because it's something which is obvious.
1 That's the best way how to handle the file. And the Chamber leaves it
2 entirely in your responsibility to do exactly what you have just
3 suggested. In actual fact, I think you should also restrict yourself to
4 the bear minimum of these documents. If they are repeated -- in other
5 words, if they -- if that gentleman had so many visitors, not to use the
6 proper word, who all gave him the same kind of documents, I think if we
7 have half a dozen of them, that should -- that should be enough. We don't
8 need the entire lot. We don't need to know exactly how many of such
9 visitors did he have or he worked for, you know ...
10 MS. KORNER: Well, if Mr. Ackerman is happy with that -- if there
11 are a load of these letters saying they have been dismissed as a result of
12 the Crisis Staff decisions, we will simply extract half a dozen or so.
13 JUDGE AGIUS: Would that be okay with you, Mr. Ackerman, or do you
14 want them all here?
15 MR. ACKERMAN: Well, I don't think we're going to have to deal
16 with a load. I'd be surprised if there's even one. But we'll see.
17 JUDGE AGIUS: I don't know.
18 MR. ACKERMAN: We'll see. If there are a load, then I agree. Six
19 is probably enough.
20 JUDGE AGIUS: Anyway, so that's the position. I mean, use your
21 discretion, Ms. Korner. No one is going to tell you why did you bring
22 only six when there was 100? I mean, if there is 100, use your
23 discretion. If there are seven, I mean, it would be a very silly
24 discretion if you don't bring the seven of them and you only bring six. I
25 mean -- so it's up to you.
1 MS. KORNER: Your Honour, I'm grateful for that indication and to
2 Mr. Ackerman.
3 JUDGE AGIUS: Thank you.
4 So now I understand we can proceed with the witness. And then you
5 will make the submissions later on.
6 Yes, Ms. Sutherland. Good afternoon.
7 MS. SUTHERLAND: Good afternoon, Your Honours. Speaking of
9 JUDGE AGIUS: Yes.
10 MS. SUTHERLAND: Can I apologise for mine at the close of
11 yesterday's session.
12 JUDGE AGIUS: It's okay. I mean, I realised that everyone was
13 tired at that point in time, and I was trying to restrain myself because
14 the bundle that I had did not correspond to the order that you were
15 presenting them, in any case. So -- but I was trying to do my best to
16 cope at that point in time. But at a certain moment, it became
17 impossible. So --
18 MS. SUTHERLAND: Your Honour, I --
19 JUDGE AGIUS: It's no -- Ms. Sutherland, you don't need to say any
20 more. Just let's get along with the exercise that we have to do. And
21 just to help you, just tell us now from which point number Exhibit 537
22 starts and finishes.
23 MS. SUTHERLAND: 537 -- yes, Your Honour.
24 JUDGE AGIUS: 537.1 to ...?
25 MS. SUTHERLAND: 537.1 is a record of interview with the accused
1 Zeljko Ceko compiled on the 10th of December 1992 before the investigating
2 judge, Slavko Stupar, of the military court in Banja Luka.
3 JUDGE AGIUS: I think we can simplify it even further. What I
4 suggest you do is: First you tell us how many documents you're tendering
5 under 4. -- under disclosure number 4.1255, how many documents you're
6 going to tender.
7 MS. SUTHERLAND: Your Honour, in total there's 13 documents.
8 JUDGE AGIUS: 13 documents. So now what I would suggest to do is
9 you go through them one by one, starting with 537.1, telling us how many
10 pages and starting from which page -- translation page to which page, so
11 that you don't have to explain exactly what the document is about or the
12 date or whatever.
13 MS. SUTHERLAND: Okay. I have actually -- and I should -- and
14 this is what I should have done yesterday was pre-marked the exhibit
15 numbers which happened last night. The documents have been recopied, and
16 those copies have been provided to Your Honour and the Defence.
17 JUDGE AGIUS: Yes.
18 MS. SUTHERLAND: So document 5. -- sorry, 537.1.
19 JUDGE AGIUS: Mm-hm.
20 MS. SUTHERLAND: Is translation number 03050443.
21 JUDGE AGIUS: Yes. Through?
22 MS. SUTHERLAND: To 03050444.
23 JUDGE AGIUS: That's correct. So that becomes number 1.
24 MS. SUTHERLAND: Exhibit 537.2.
25 JUDGE AGIUS: Mm-hm.
1 MS. SUTHERLAND: Is translation number 03046313.
2 JUDGE AGIUS: Yes. And that's it.
3 MS. SUTHERLAND: Yes.
4 JUDGE AGIUS: One moment.
5 Mr. Ackerman and Maitre de Roux, are you following --
6 MR. DE ROUX: Yes.
7 JUDGE AGIUS: I tried to simplify it as much as I could.
8 MR. ACKERMAN: Your Honour, we have them. They're all marked.
9 JUDGE AGIUS: No. But I just want to make sure -- the duty of the
10 Chamber is to make sure that marking corresponds to what Ms. Sutherland is
12 MR. ACKERMAN: I have no doubt that it does. As far as I'm
13 concerned, we don't need to go through this exercise, but if the Court
14 wishes, we can.
15 JUDGE AGIUS: If you're happy with what you have, we can just put
16 the stickers on them and we can proceed and you just tender the whole
17 bundle and --
18 MS. SUTHERLAND: Yes, 537.1 to 537.13.
19 JUDGE AGIUS: Okay. That's fine with me.
20 MS. SUTHERLAND: Your Honour, I do apologise for the confusion it
21 created yesterday.
22 JUDGE AGIUS: It's no problem, Ms. Sutherland. These things
23 happen. So you don't have to apologise at all.
24 MS. SUTHERLAND: Thank you.
25 JUDGE AGIUS: So that -- did you have 538 and 539 and 540 have
1 already been tendered. No?
2 MS. SUTHERLAND: Yes.
3 JUDGE AGIUS: Yes. So I understand you don't have any further
4 questions to the witness, Ms. Sutherland?
5 MS. SUTHERLAND: No, Your Honour.
6 JUDGE AGIUS: And have the Defence teams agreed who's going to
7 start first?
8 Maitre de Roux?
9 MR. DE ROUX: [No interpretation]
10 JUDGE AGIUS: Okay. Madam Fauveau, you may proceed.
11 MS. FAUVEAU-IVANOVIC: [Interpretation] Just at the start of the
12 cross-examination, could I -- could we go into private session, because I
13 have some details to ask that require private session, please.
14 JUDGE AGIUS: Yes. We'll go into private session. Thank you.
15 [Private session]
12 Page 4460 – redacted – private session
4 [Open session]
5 THE REGISTRAR: Yes, Your Honour. We are in open session now.
6 JUDGE AGIUS: Please proceed.
7 MS. FAUVEAU-IVANOVIC: [Interpretation]
8 Q. Yesterday you were talking about mosques, and you said that they
9 were later destroyed. Would you agree with the statement that all those
10 mosques that were destroyed were destroyed in 1993? And I'm talking about
11 the mosques in Banja Luka.
12 A. Yesterday during my testimony, I said clearly that all religious
13 facilities, mosques, shops, houses that belonged to non-Serb population
14 were constantly exposed to shooting. The fact that it is testified by
15 many traces, and this wasn't just in 1993. In 1993 after all the mosques
16 were destroyed, this was already a fait accompli. But the actual
17 destruction of the mosques started much earlier.
18 Q. My question was whether -- were the mosques destroyed in 1993?
19 JUDGE AGIUS: Before you answer, sir.
20 Yes, Mr. Ackerman.
21 MR. ACKERMAN: Your Honour, the transcript says the answer to the
22 last question that the witness said "the fact that it is testified many
23 traces and this wasn't just in 1993." That makes no sense to me. Maybe
24 it's just that I don't understand the English language as well as I
25 thought I did.
1 JUDGE AGIUS: My transcript says exactly the same thing. Probably
2 it could have been -- I don't know, testimony or ...
3 Is it possible to go back -- to play back that part in the
4 original -- in the French --
5 MS. FAUVEAU-IVANOVIC: [Interpretation] Mr. President, I understand
6 the B/C/S, and I believe that corresponds exactly to what the witness
7 said. But in any case, it does not answer my question.
8 Q. My question was: Were the mosques destroyed in 1993?
9 JUDGE AGIUS: Yes. Answer that question, please.
10 THE WITNESS: [Interpretation] The mosques were destroyed
11 completely to the ground in 1993.
12 MS. FAUVEAU-IVANOVIC: [Interpretation]
13 Q. Yesterday you spoke of the meetings that you had with the Banja
14 Luka mayor, Mr. Radic. And you said that these meetings began in the
15 period which followed the mobilisation in 1991; is that correct?
16 A. Yes.
17 Q. Would you agree with that that a lot of Muslims did not respond to
19 A. That's correct.
20 Q. In 1991 there was war in Croatia.
21 A. Yes.
22 Q. But Croatia at the time was seeking independence.
23 A. You know that.
24 Q. In 1991, Bosnia was still a part of Yugoslavia.
25 A. I said yesterday when I was asked about the situation in Banja
1 Luka in 1991 and 1992, I said that the situation was unbearable, that it
2 was very difficult and very hard.
3 Q. The question was: Was Bosnia independent or was it still part of
4 Yugoslavia in 1991?
5 A. You know that it was part of Yugoslavia.
6 Q. You said yesterday during these meetings with Mr. Radic, Mr. Radic
7 was promising to take steps but that he never did anything. On page 4 of
8 your written testimony -- written statement --
9 MS. FAUVEAU-IVANOVIC: [Interpretation] And could I ask the
10 Prosecutor to give the statement to the witness, please.
11 Q. On page 4 of your statement, you spoke of these meetings with
12 Mr. Radic, and you said that after these meetings the Serb police started
13 to patrol the Muslim neighbourhoods.
14 A. Do you mean to say that the patrolling improved the situation? On
15 the contrary; the patrols made the situation a lot worse. The patrols
16 were mistreating the people. And I have thousands of pieces of evidence
17 for that if you need that.
18 Q. Yesterday you were talking about the abbreviation SOS, and you
19 said that these abbreviations stood for the Serbian defence forces; is
20 that correct?
21 A. Yes.
22 Q. Now, if you look at your written statement. You were also
23 speaking about the SOS in your statement, and you said that this stood for
24 the Serb liberation forces. Which one of these two statements is correct?
25 A. I think -- I believe that it's "Serb defence forces," because the
1 Serbs always said that they were attacked and that they needed to defend
2 themselves. But whether it's "defence" or "liberation forces," I think
3 that's a side issue. This is -- these are people who brought a lot of
4 evil to Banja Luka and who then later became blackmailers and -- asking
5 for extra tax. So I don't think that it's actually very important whether
6 they were defence forces or liberation forces. The abbreviation was SOS,
7 and we know what they did.
8 Q. Yesterday you were talking about the checkpoints in Banja Luka.
9 And you said that in the summer of 1992, there were checkpoints in Banja
10 Luka. Could you tell us when the checkpoints were established.
11 A. Yes. The checkpoints were established immediately at the
12 beginning. It was in spring, in the spring of 1992.
13 Q. Could you be more precise and give us the month.
14 A. I think it was April. I think that it was April.
15 Q. Do you know when the referendum on the independence of Bosnia took
17 A. Would you please address such questions to politicians. I'm a
18 businessman. And I was not interested in politics.
19 Q. But during the referendum, were you in Banja Luka?
20 A. Yes.
21 Q. During the two days of the referendum, were there any barricades
22 in Banja Luka?
23 A. I don't remember.
24 Q. Could you tell me now when that referendum took place?
25 A. Do you want me to give you the same answer I gave you a moment
2 JUDGE AGIUS: Wait. Wait. Wait. I was very patient when you
3 replied to the question put to you by the Defence counsel for General
4 Talic the way you did. You have to behave in this courtroom the
5 same way that everybody else is behaving with you. The Defence team for
6 General Talic and the Defence team for Radoslav Brdjanin have every right
7 to put questions to you. And if they are legitimate questions, if they
8 are questions that are allowed by the Trial Chamber because they are
9 according to the Rules of this Court, then you are in duty bound to answer
10 them. Now, I was tolerant. You were not right --
11 THE WITNESS: [Interpretation] Very well.
12 JUDGE AGIUS: -- to answer that question or to answer the way that
13 you did, setting the dates -- fixing the dates of a referendum or an
14 election is the business of a political party. But the dates when that
15 referendum or the dates when that general election was held is another
16 matter. That is something which is of public consumption and that is
17 something which the general public either knows or doesn't know. But you
18 as a member of the community of Banja Luka, I suppose you are in a
19 position to answer it by saying, "Yes, I remember the dates. These are
20 the dates," or "I'm sorry. I don't remember the dates." If you really
21 don't remember the dates. You have no right to treat Defence counsel the
22 way that you did, and you will be stopped if you do it again and brought
23 to order.
24 So now please, Madam Fauveau, I ask you to repeat the question.
25 And may I ask the witness to answer it.
1 THE WITNESS: [Interpretation] Thank you very much for drawing my
2 attention to this, Your Honour.
3 MS. FAUVEAU-IVANOVIC: [Interpretation]
4 Q. Do you know when the referendum for the independence of
5 Bosnia-Herzegovina took place?
6 A. I don't remember.
7 Q. You spoke yesterday of murder that took place in Banja Luka on the
8 5th of December, 1992. And the victims were Ramiz Zdenac, and Avdo Softic
9 is that right?
10 A. Softic, yes, and Ramiz Zdenac, yes.
11 Q. The place where the murder took place was a place that was not
12 frequented by Serbs; isn't that right?
13 A. Right. Correct.
14 Q. And the place where the murder took place is a neighbourhood of
15 Banja Luka inhabited by Muslims, is it not?
16 A. Yes.
17 Q. And at the time of the murder, it was already night-time, was it
19 A. Yes.
20 Q. How many people were there in the street at the time of the
22 A. I cannot tell you the exact number of people, but I said, and I
23 stand by what I said, that there were quite a number of people in groups
24 of twos and threes. I don't think more than three persons to a group,
25 because we were not allowed to gather in larger groups. And that was the
1 only place where we thought in those days that we were safe. We felt
3 Q. And just then, in that street, was Ceko the only Serb there?
4 A. Yes.
5 Q. Would you allow for the possibility that Ceko fired because he was
7 A. That's out of the question. I said yesterday that all our people
8 had been instructed and advised. I personally advised them and asked them
9 not to engage in any conversation or any discussions, passing on the
10 experiences of Mr. Radic, who said that a nasty look would be sufficient
11 to provoke a Serb soldier to use his weapon. And especially, I told them,
12 with respect to Softic and Zdenac, these were very, very quiet, warm, fine
13 men, so there's no theoretic possibility even that they could have
14 provoked a Serb soldier.
15 Q. Yes. But that was not my question. I didn't say that they
16 provoked Ceko. My question was simply whether he may have been afraid.
17 A. I don't know what he could have been afraid of.
18 Q. But you were present when this murder took place.
19 A. Every Serb in Banja Luka knew that Muslims, if any, the few that
20 were there, were certainly unarmed. Earlier on this was a child who grew
21 up amongst us, and there were never any problems until that fatal night. I
22 don't know why he could have been scared and what he could have been
23 scared of. Would any one of us scared walkers have had the strength to
24 insult or provoke an armed Serb soldier? I beg you to tell me, is that
1 Q. Were you present when this murder took place?
2 A. I said yesterday yes.
3 Q. And you said that you saw Zeljko Ceko walking up to you. How was
4 he going towards you? Was he in a car? Was he on foot? On a bicycle?
5 How was he approaching you?
6 A. I don't know whether I said this yesterday. He was guiding his
7 bicycle and walking along it, and he carried sidearms. And I'm not sure
8 now. I know it was a long-barreled weapon. Now, whether it was a rifle
9 or a light machine-gun, because they were almost the same. There was very
10 little difference between the two.
11 Q. Were you on the scene of the crime when the police arrived?
12 A. I was.
13 Q. Do you know whether it was the civilian police or the military
15 A. For us, they were all the same. They wore the same uniforms.
16 They performed the same duties. Now, whether they were called civilian or
17 military, believe me, I don't know.
18 Q. You don't make any distinction between the military police and the
19 civilian police?
20 A. As we were saying yesterday, we were talking about the military
21 police with the white belts. These were -- did not have those belts.
22 They were wearing blue camouflage uniforms.
23 Q. Do you know whether Ceko was arrested after this murder?
24 A. I think that I said yesterday loud and clear. And I will repeat
25 what I said now. He was taken into custody, interrogated, because I would
1 see him in the street. He was not in prison. And his punishment was to
2 be sent to the front.
3 Q. Were there any proceedings against him?
4 A. Believe me, I don't know.
5 Q. And you personally were not called to testify as a witness.
6 A. I said yesterday, and I'll repeat. No one, not even the closest
7 relatives of the victims, were called to testify, let alone me or the 10
8 or 15 of us that were there. I don't know now for sure, in view of the
9 fear and the crowd. But no one was ever called to testify.
10 MS. FAUVEAU-IVANOVIC: [Interpretation] Could the registrar show
11 the witness document P537. That is the indictment. [In English] The
12 document 537.8.
13 Q. [Interpretation] Sir, do you have before you indictment against
14 Zeljko Ceko, dated the 8th of May, 1993?
15 A. I see the date of the 10th of May, 1993, but I see it.
16 Q. It's the 10th of May on the stamp, is it not?
17 A. Yes.
18 Q. And in the second paragraph, beginning --
19 MS. FAUVEAU-IVANOVIC: [Interpretation] Excuse me, Mr. President?
20 A. Yes, I see. The 8th of May.
21 Q. I think it is the second page in English. The first paragraph on
22 page 2 of the English version and in Serbo-Croatian it is second paragraph
23 on the first page, beginning with the words: [In English] "For the
24 following reasons, 19 hours on 5 December 1992 in Banja Luka."
25 [Interpretation] Is that the description of the murder that you witnessed?
1 A. As far as I know, Zeljko did not commit anything else, so judging
2 by the names I see that this is the case that we are discussing.
3 Q. Could you now look at the second page, please, or page 4 in the
4 English version, the paragraph beginning with the words [In English] "The
5 following persons were heard as witnesses during the investigation."
6 [Interpretation] Have you found that paragraph?
7 A. Yes.
8 Q. Do you see the name Ajsa Dedusic there?
9 A. Yes, I do.
10 Q. And a bit further down Bahrudin Spahic?
11 A. Yes.
12 Q. And a little further on Dakir Imamovic?
13 A. Yes.
14 Q. And then a in the next paragraph Suad Krnalic?
15 A. Suada Krnalic.
16 Q. And in the next paragraph Sakib Coco?
17 A. Yes.
18 Q. Are these people Muslims?
19 A. Yes.
20 Q. Were those persons present at the scene of the crime?
21 A. They were, as were many others.
22 Q. Yesterday --
23 MS. FAUVEAU-IVANOVIC: [Interpretation] I've finished with that
24 document, Mr. Usher.
25 MR. ACKERMAN: Your Honour, there's a problem with the computer
1 monitor. We can't see anything that's being put on the ELMO. I don't
2 know why, but it's not coming through on the computer monitor channel.
3 JUDGE AGIUS: Have you pressed --
4 MR. ACKERMAN: Yes, Your Honour. I've pressed every button.
5 Everything is plugged in. I'm not about to join --
6 JUDGE AGIUS: Okay. Can you put just one document on the ELMO,
8 THE INTERPRETER: Microphone, please. Your Honour. Microphone.
9 JUDGE AGIUS: Yes. Can you put any document on the ELMO.
10 MR. ACKERMAN: It's there now.
11 JUDGE AGIUS: It's there now.
12 MR. ACKERMAN: Yes.
13 JUDGE AGIUS: This sitting is jinxed, I think.
14 MR. ACKERMAN: Well, Your Honour, as long as you have raised the
15 issue, I'm a big fan of capitalism; but I think the OTP trying to sell
16 coffee cups by putting ads on the backs of documents they give us is a
17 little over the top. And maybe they tried to sell them to you too. If
18 you look on your exhibits, you might find an ad on the back of the pages
19 for a coffee cup.
20 JUDGE AGIUS: It may be on yours, but not ours, Mr. Ackerman.
21 Let's go on. Madam Fauveau.
22 MS. FAUVEAU-IVANOVIC: [Interpretation]
23 Q. I've come to my last group of questions. Yesterday you said that
24 in 1992 a policeman came to see you and to seize your cars from you. I'm
25 not talking about the Mercedes but the other vehicles you had. I'm
1 talking about the incident when the two policemen came to your house and
2 took you to the police station after that. Do you remember that incident?
3 A. I do. I said two inspectors. That is how the other people
4 addressed them. They were in civilian clothes, and they had pistols on
6 Q. Very well, sir. You said that this was in the summer of 1992.
7 Could you possibly be more precise and tell us the month?
8 JUDGE AGIUS: But Madam Fauveau, I have a strong impression that
9 the -- Ms. Sutherland for the Prosecution insisted on that same question
10 twice yesterday, and it was still the reply -- the answer of the witness
11 that he couldn't remember with precision except that he could confirm to
12 us that it was certainly summer. But he couldn't say whether it was July,
13 August, or whatever. I will allow the question again. And if the witness
14 can be more precise, perhaps he could tell us. Otherwise, we could go
16 Yes, sir. Do you remember more precisely the month or the week or
17 the date, the precise date?
18 THE WITNESS: [Interpretation] I would have said it immediately
19 yesterday. I only know that it was quite warm, and I don't know the exact
21 MS. FAUVEAU-IVANOVIC: [Interpretation]
22 Q. And at the time, one of your cars, the Mercedes, had already been
23 taken; isn't that so?
24 A. Yes.
25 Q. I apologise, but I'm asking you once again for precision. It's
1 very important for my case. Could you tell us roughly how much time prior
2 to the arrival of these two policemen was your Mercedes seized? If you
3 don't know, tell me that you don't know.
4 A. I don't know, but Mr. Samardzija said that he already knew that
5 the Mercedes had been seized. But I don't know exactly when that was.
6 JUDGE AGIUS: Madame Fauveau is right. Perhaps you could tell us
7 whether it was a question of days before, whether it was a question of
8 weeks before, or whether it was a question of months before that the
9 Mercedes was taken from you until you were taken or asked to go to the
10 police station.
11 THE WITNESS: [Interpretation] As far as I can remember, it wasn't
12 long after that. Maybe a month or two on the outside. But I don't dare
13 claim with a hundred percent degree of certainty.
14 JUDGE AGIUS: Yes. Madam Fauveau, you may proceed. Thank you.
15 MS. FAUVEAU-IVANOVIC: [Interpretation] Could the registrar show
16 the witness Exhibit P540. And please do not put it on the ELMO, as it
17 contains confidential information.
18 Q. Is that the certificate you spoke of yesterday and which,
19 according to you, testifies to the fact that your vehicle was seized? The
20 receipt, in other words.
21 A. Yes.
22 Q. You find the letters "MZ" on the right-hand side of that
23 document. Did you see those letters? Don't those letters stand for local
24 commune, or Mjesna Zajednica? Do you agree with me?
25 A. I don't know.
1 Q. Could you look at the bottom right-hand corner of that document.
2 That is your signature, is it not? Could you read --
3 A. Yes.
4 Q. Could you read the words printed above. Could you read those
5 words, please, just above your signature.
6 A. "Summons received."
7 Q. Could you now look at the signature on the left-hand side of that
8 document and read the words printed just above that signature.
9 A. "Summons delivered by."
10 Q. Sir, could you look at that receipt very closely, please. Do you
11 agree with me that that receipt doesn't testify to the fact that your
12 vehicle was taken but only that you received a summons to deliver the
14 A. We can't agree, because I read the solemn declaration yesterday
15 that I would speak the truth and nothing but the truth. And now if I say
16 that this is a summons means that I was lying. This is a document that I
17 received when I handed over my vehicle and the content. Surely you will
18 not blame me for it. Now, whether this is a summons -- if it says "a
19 summons delivered by such and such a person," one of the three who came --
20 I don't even know who signed it -- I would be able to recognise the person
21 if I saw him now. I don't know his first or last name. I had to be the
22 other party to say that I had received the summons. But I claim that this
23 is the document that was given to me when I handed over my vehicle. And
24 it's easy to check whether I was the owner of the vehicle, whether the
25 vehicle was confiscated, and everything else.
1 JUDGE AGIUS: Let's clarify this, because I think it's important
2 for the Chamber to know as well.
3 Looking at this document again, sir, what's the first word, the
4 first line right in the middle, Potvrda? Can you read that word?
5 THE WITNESS: Potvrda, receipt.
6 JUDGE AGIUS: Then the next line, Sopstvenik, that means your
7 name. No? Without the need to pronounce it?
8 THE WITNESS: Owner. It means owner.
9 JUDGE AGIUS: Sopstvenik, means owner, okay.
10 And the next line potvrdujemo prijem poziva, can you read that,
11 please, the whole line.
12 THE WITNESS: "I confirm receipt of the summons for the execution
13 of a material obligation for the OSDARU --" shall I go on?
14 JUDGE AGIUS: Yes.
15 THE WITNESS: [Interpretation] "M/V Mercedes 200 D.
16 JUDGE AGIUS: Yes. Madam Fauveau, you may proceed. Thank you.
17 MS. FAUVEAU-IVANOVIC: [Interpretation]
18 Q. Yesterday you spoke of a person called Crnobrnja. Do you remember
19 that? Do you remember that person? Is Crnobrnja a name that exists in
21 A. Now, you've asked me several questions and I'll answer in order.
22 I do remember I spoke about Mr. Milo Crnobrnja, a member of the 4th Light
23 Infantry Brigade headquartered in the Deumic's factory. As far as I know
24 in Deumic's factory, Crnobrnja, as far as I know is not a
25 Serb surname from Banja Luka.
1 Q. I asked you whether Crnobrnja was a surname that exists in Bosnia,
2 not in Banja Luka.
3 A. In Bosnia, probably, yes.
4 Q. You just said that you spoke yesterday about Crnobrnja, who was in
5 the 4th Light Infantry Brigade. But yesterday you said -- and that is on
6 page 56: [In English] "Before that I, met this policeman whose name was
7 Crnobrnja." [Interpretation] Are you sure that these two persons are one
8 in the same person?
9 A. Mr. Milorad Crnobrnja had a direct contact with me. He's not
10 from Banja Luka. By occupation, he's a waiter. He's tall -- well,
11 roughly about 170, 175 centimetres, well built, probably in his 30s.
12 Again, don't hold me to my word. Maybe a year more or less. You may tell
13 me tomorrow that I said he was 30, and he was 28. So he was about 30.
14 Q. You're telling us now that the name of this person is Milorad
15 Crnobrnja. But yesterday during your testimony you did not know his first
16 name. Isn't that right?
17 A. I know Crnobrnja. I told you from the beginning, because he came
18 several times. We had several contacts. And I know exactly the person
19 I'm talking about. If you want me to be even more precise, he came with
20 Mr. Jovo Sovilj when there was a report that the bridge at Novoselija had
21 been mined. And Mr. Jovo, whom I considered to be a good man, said to him
22 that I was a person that he could trust in that area.
23 Q. My question was that yesterday during your testimony here in court
24 you did not know his first name. You saw his first name on a document;
25 isn't that right?
1 A. As I know who the man is, sometimes -- believe me -- I forget even
2 people closest to me. But I can claim with a hundred percent certainty
3 that I'm referring to the person from the 4th Light Infantry Brigade,
4 because nobody called him by his first name Milorad but by Crnobrnja. As
5 you know, it's very frequent in our part of the world for people to be
6 addressed by their surnames.
7 Q. Could you answer very briefly. His first name, you did not know
8 it. You saw it on the documents provided by the Prosecutor; isn't that
10 A. Perhaps at one moment I had a kind of blockade and I couldn't
11 remember. But it was not a different man. I stand by what I said. This
12 is the same man. This is the man in question.
13 Q. However, yesterday on page 56 of the transcript, you said: "[In
14 English] I don't know exactly his first name."
15 A. I could say that about Stevandic as well, because I knew Stevandic
16 personally, their commander. And I also said about the young man Zeljko
17 Ceko in the first statement that his name was Dragan. Believe me, these
18 are -- this is a question of years and time passing. Sometimes people
19 forget. But we cannot forget what they are and who they are.
20 JUDGE AGIUS: Let's move to something different, Madam Fauveau,
22 MS. FAUVEAU-IVANOVIC: [Interpretation] I have no more further
23 questions. I'll make you very happy, Mr. President.
24 JUDGE AGIUS: Thank you.
25 Now, Mr. Ackerman.
1 Now, Mr. Ackerman, as I explained to you yesterday, is the lead
2 counsel for Radoslav Brdjanin. He has every right to put questions to
3 you, and your duty is to answer the question. Thank you.
4 MR. ACKERMAN: Good afternoon, sir.
5 THE WITNESS: [Interpretation] Good afternoon.
6 Cross-examined by Mr. Ackerman:
7 Q. Do you still have before you the statement that you gave to the
8 Office of the Prosecutor?
9 A. Yes.
10 Q. You -- when you began your testimony in this case, I believe you
11 pointed out some errors that you had found in that statement and corrected
12 them here in open court. One of them had to do with a statement that said
13 only the Mercedes --
14 A. Yes.
15 Q. Yes that. Only the Mercedes was in your name. And you changed
16 that to all the vehicles were in your name.
17 And the other change had to do with a statement that the Serbs
18 asked if they could come in your house. And you then said that wasn't the
19 case; that they didn't ask, they just came in.
20 Those are the two changes that I recall. It's not important that
21 I recall them all. But I have some questions I want to ask you about
23 A. That's right.
24 Q. Do you have also the English version of your statement there in
25 front of you?
1 A. No. Just the one in Bosnian.
2 Q. Okay. I'll ask that the English version be provided to you,
4 MR. ACKERMAN: Mr. Usher, the Prosecutor has the English version
5 over there, if you want to go and get it and bring it to the witness.
6 Q. The first thing, sir: It's the case, is it not, that this
7 statement was taken in the course of an interview on 3 October 2001? Last
9 A. That's right.
10 Q. If you look at the English version of the statement, you will see
11 some handwriting on the bottom of each page. Do you see that?
12 A. You mean these signs?
13 Q. It looks like signatures or initials.
14 A. Yes.
15 Q. One of the marks there, would that be your signature?
16 A. My signature is above what looks like to be initials. My
17 signature is visible.
18 Q. And it appears on each page, does it not?
19 A. That's right.
20 Q. Could you tell the Trial Chamber how it was you came to sign each
21 one of these pages. How did that happen?
22 A. When I was giving the statement, which lasted several hours, there
23 was the investigator and the interpreter. And after the end of the
24 interview and the giving of the statement, I signed each of these pages
25 and this is the original.
1 Q. Do you read English, sir?
2 A. I understand a little, but I don't speak it. I can understand a
4 Q. So did you then read each one of these pages in English and
5 confirm that it was what you said, or did someone read it to you, or how
6 did it -- your signature there at the bottom is, as I understand it, your
7 confirmation of the accuracy of the material on that page. How did you
8 know what the page said?
9 A. The statement was of course read back to me, and they asked me if
10 there was anything that I wanted to change or add. And after I answered
11 that I did not, there followed the signing of the statement.
12 Q. It was read to you in your language.
13 A. Yes.
14 Q. So is it your contention then, that the translator that was
15 reading it to you did not read it to you accurately with regard to these
16 two changes that you made yesterday?
17 A. Yesterday I said that because of the vehicles, I was given a
18 beating and Mr. Samardzija told me, "You're lying," because he knew that
19 the vehicles were in my name, they were registered in my name. And that's
20 the true. But how the actual error happened, a mistake happened, that was
21 the translator's error, I don't know. But I noticed it after I was given
22 it to have a look at both mistakes. It was not my mistake. And it's true
23 what I'm saying. All vehicles were registered in my name.
24 Q. And so it's your position that is -- the changes you made actually
25 reflect what you told the investigator during this interview in October of
1 last year. You didn't tell the investigator the things that appear in
2 this statement that you say are incorrect.
3 A. I said that all the vehicles were in my name and that my
4 associates were using the vehicles. That is what I wanted to say in my
5 statement. This is what I am stating here today.
6 Q. And that's what you also told the investigator from the Office of
7 the Prosecutor in October; is that your position that you told them the
8 same thing that you've told us with regard to these two matters that
9 you've changed?
10 A. That's what I am standing by. That's what I'm saying.
11 Q. Okay. That's all I'm trying to clear up.
12 In the -- in the first -- it's the first page of your statement.
13 The English version is actually page 2. It has a paragraph. The last
14 paragraph begins with the words: "The leaders of the SDA in Banja
15 Luka ...." Can you find that in the B/C/S version, "The leaders of the
16 SDA in Banja Luka." I think it's on page 3 --
17 A. Yes. Yes.
18 Q. What you said in your statement is: "The leaders of the SDA in
19 Banja Luka --" I'm sorry. That's not the paragraph I want to refer you
20 to. It's my mistake. I want to refer you to the next paragraph,
21 beginning: "The leaders of the SDS party in Banja Luka ...."
22 A. Yes.
23 Q. You say that The leaders of the SDS party in Banja Luka were
24 Radovan Vukic, Radoslav Brdjanin, Nikola Koljevic, and Ostoja Kremenovic.
25 Was Nikola Koljevic from Banja Luka?
1 A. Yes.
2 Q. Was Ostoja Kremenovic from Banja Luka?
3 A. I'm not sure.
4 Q. What evidence do you have, sir, other than what you may have heard
5 from someone, that Mr. Brdjanin was a leader of the SDS party in Banja
7 A. What I said was that as far as politics were concerned -- I'd ask
8 you to spare me. What I said here, I stand by what I said. The exact
9 posts, the number of people, what their duties were, this kind of question
10 just wouldn't suit me. But I know for certain that Radovan Vukic was the
11 president of the SDS in Banja Luka.
12 Q. Well, the question may not suit you, but I would like an answer.
13 Do you have any evidence, other than what someone told you, that
14 Mr. Brdjanin was a leader of the SDS party in Banja Luka?
15 JUDGE AGIUS: You can be very specific, actually, sir. You can
16 say, if that is the case, everyone knew it, it was always in the papers.
17 When he was appointed president, it was announced in the paper, on TV, on
18 the radio. It's got nothing to do with politics or involvement in
19 politics. I know who the all the ministers and undersecretaries in the
20 government of my country are, not because I have gone to the archives. I
21 can go back to the beginning of the century and tell -- give you the whole
22 list one by one, not because I am involved in politics or I like politics
23 but because I -- I just know. If you ask me, I have read about them. So
24 go ahead. Answer the question.
25 In your statement, you didn't say, "I know that they were members
1 of the SDS party. I presume that they were members of the SDS party."
2 You said that they were leaders of the SDS party. So you had no problems
3 with stating that they were leaders. And now you just have to answer how
4 did you come to know that they were the leaders of the SDS party.
5 THE WITNESS: [Interpretation] Absolutely, yes.
6 Yes, that's what I'm claiming now, because the media were
7 available. And you know that. Each one of us was able to see it, to hear
8 it, and to read it.
9 JUDGE AGIUS: Okay.
10 MR. ACKERMAN:
11 Q. So it is your position that in the media in Banja Luka it was
12 reported that Mr. Brdjanin was a leader of the Banja Luka SDS?
13 A. I said one of the leaders.
14 Q. I think that's what I said too, "one of the leaders." And I have
15 to ask you the question again. It is your position, sir, that in the
16 media in Banja Luka Mr. Brdjanin was reported to be a leader, one of the
17 leaders, of the SDS?
18 A. That's correct.
19 Q. Now, can you be more specific? Was it the radio or the television
20 or the newspaper or all three?
21 A. I think everywhere.
22 Q. All right. So if we look at every issue of Glas for that period
23 of time, we will find that story; is that your position?
24 JUDGE AGIUS: Mr. Ackerman, that's not a fair question to come to
25 that conclusion.
1 MR. ACKERMAN: I'll drop it, Your Honour.
2 Q. Sir, I want you to go down -- you don't actually have to look at
3 this unless you wish. It's about two paragraphs down. It begins with: "In
4 1991." You're talking about businesses of non-Serbs being blown up in
5 late 1991 and into 1992. Isn't it the case that about 20 per cent of the
6 businesses that were blown up were Serb businesses?
7 A. I cannot speak about the percentages, but I know for sure, as I
8 put in the statement, the roasting -- coffee roasting facility owned by
9 Muslims was blown up. A grocery store was also blown up. That's what I
10 stated, and that's what I'm stating now.
11 Q. Well, what you stated was that the explosions were in businesses
12 owned by non-Serbs. And all I'm asking you is: Wasn't it the case that
13 there were also explosions in businesses owned by Serbs? In fact, about
14 20 per cent of them were in businesses owned by Serbs. Now, you can
15 either tell me that you know that or you don't know it?
16 JUDGE AGIUS: Now, let's take it one by one, Mr. Ackerman, because
17 you've mixed the two together. And in the question you're also suggesting
18 that there were 20 per cent. So let's leave that for the time being and
19 put the first question.
20 Are you aware or do you know whether in 1991 and 1992 businesses
21 of Serbs were also blown up and not only those of non-Serbs?
22 THE WITNESS: [Interpretation] I don't know about the Serb
24 JUDGE AGIUS: So the second question, therefore, now, doesn't fit
25 in any more, Mr. Ackerman.
1 MR. ACKERMAN: You're right.
2 Q. You told us yesterday, sir, about attending a rally in Banja Luka
3 of the SDS; correct?
4 A. Yes.
5 Q. Did you ever attend any rallies of the SDA in Banja Luka or
7 A. I did.
8 Q. In Banja Luka?
9 A. In Banja Luka.
10 Q. Isn't it the case that the theme of SDA rallies was to try to get
11 people to become part of the SDA party?
12 A. I said yesterday, if you remember, sir, that all the parties in
13 the electoral campaign offered such programmes and were promising rose
14 gardens in Bosnia. And I think that you remember that as well. And it is
15 normal that in such promotional rallies, each party wanted to have as many
16 voters as possible, which is quite normal.
17 Q. So the answer to my question is yes; right?
18 A. Every party wants as many members in their ranks as possible.
19 Q. Did you attend any rallies of the HDZ party?
20 A. Not so much the HDZ.
21 Q. Did you attend even one HDZ rally?
22 A. Not directly at a rally, but I spoke to their leading people.
23 Q. There were also other parties active in Banja Luka at this -- at
24 this time during this run-up to the elections, weren't there?
25 A. Those that were most active, as far as I'm concerned, were the
1 nationalist parties: The SDS, the SDA, the HDZ. I don't know about
3 Q. You don't even know a name of the -- one of the parties at that
5 A. If you followed what I said correctly, then I said I don't know.
6 Q. Do you know that there was a socialist party?
7 A. I don't know.
8 Q. All right. You claimed in your testimony that you saw
9 Mr. Brdjanin often on TV at the end of 1991, the beginning of 1992. What
10 television station?
11 A. At first I saw Mr. Brdjanin on Bosnian TV, because this is what I
12 think was true. I believe that he was a deputy, that he was a Serb
13 representative in the government of Bosnia-Herzegovina.
14 Q. So you saw him on television coming out of Sarajevo.
15 A. At first, yes.
16 Q. What other TV did you see him on? What other station?
17 A. Later we saw him on the Serb TV.
18 Q. Coming from where? From Belgrade?
19 A. I think that the centre was in Banja Luka.
20 Q. You told us that you heard Mr. Brdjanin in one of his -- or
21 more -- one or more of his speeches advocate the destruction, the
22 destroying of persons in mixed marriages. You told us that, didn't you?
23 A. Yes.
24 Q. Do you stand by that statement today?
25 A. Yes.
1 Q. I suggest to you, sir, that it was not Mr. Brdjanin who said that
2 but Dr. Vukic. Isn't that the case that it was Dr. Vukic you heard say
3 that, not Mr. Brdjanin?
4 A. I am certain -- I believe that this was said by Mr. Brdjanin.
5 Q. I suggest to you, sir, that inasmuch as Mr. Brdjanin's two
6 brothers are both in mixed marriages that he would have neither thought or
7 uttered such words?
8 MS. KORNER: Your Honour, I'm sorry. The form of that question is
9 objectionable. Whether these are mixed marriages or not is pure
10 comment. He's made the suggestion, very properly, if I may say so.
11 MR. ACKERMAN: Your Honour, I'm putting my case to him. She wants
12 me to do it. Now she's objecting to me doing it.
13 JUDGE AGIUS: Yes. But you could put your case in a rephrased
14 manner, Mr. Ackerman. You could first ask him whether he knows the facts
15 that you are suggesting and whether -- and then you -- I am not going to
16 tell you or suggest to you the way you should put the question to the
17 witness. But Ms. Korner is right.
18 MR. ACKERMAN:
19 Q. Do you know, sir, that Mr. Brdjanin has two brothers that at the
20 time and today are in mixed marriages?
21 A. I don't know.
22 Q. And it's the case, isn't it, that you did not hear Mr. Brdjanin
23 make such a statement? That if you heard someone make it, it was
24 Dr. Vukic?
25 JUDGE AGIUS: He has already answered that question, Mr. Ackerman.
1 MR. ACKERMAN:
2 Q. You claim, sir, to have seen SOS soldiers --
3 A. Yes.
4 Q. -- for the first time in the summer of 1991 at the municipal
5 building; correct?
6 A. Yes.
7 Q. Do you stand by that statement?
8 A. I said I think so, and that's what I think now.
9 Q. So you are not certain about that.
10 A. I heard about them much before. But as far as I remember, the
11 first time I saw them was in the summer of 1991.
12 Q. So there's no question in your mind that you heard of the SOS and
13 even saw SOS in the year 1991; right?
14 A. I have no doubts.
15 Q. All right. And are you as certain about that as you are about all
16 the other things you've told us in your testimony?
17 A. Don't put a question to me linked to time, back of events took
18 place ten years ago, and do not place it on equal footing with judgement
19 of my entire statement.
20 Q. So what you're telling me in that answer, I guess, is that you're
21 not really certain about when you first heard of or saw SOS soldiers, and
22 you're just guessing.
23 A. If I need to repeat for a third time, I said "I think."
24 Q. Actually, you said -- the question was: "There's no question in
25 your mind that you heard of the SOS and even saw SOS in the year 1991;
1 right?" And your answer was: "I have no doubts." Now, that's different
2 from "I think," isn't it?
3 JUDGE AGIUS: Yes. But Mr. Ackerman, before -- let's read the
4 whole sequence.
5 "You claim, sir, to have seen the SOS soldiers?" "Yes." "For the
6 first time in the summer of 1991 at the municipal building; correct?"
7 "Yes." "Do you stand by that statement?" "I said I think so, and that's
8 what I think now." "So you are not certain about that." "I heard about
9 them much before. But as far as I remember, the first time I saw them was
10 in the summer of 1991." "So there's no question in your mind that you
11 heard of the SOS and even saw SOS in the year 1991; right?" "I have no
13 I don't -- I don't think you are entitled to ask for more than you
14 have been told already, Mr. Ackerman.
15 MR. ACKERMAN: Well, Your Honour, when he says "I have no doubt,"
16 that's different from his saying "I think that I saw them in 1991."
17 JUDGE AGIUS: Well, he has no doubt as to what you stated before.
18 Because you are trying to extract from him a different statement. He was
19 just confirming or reconfirming his previous statement.
20 MR. ACKERMAN: Well, Your Honour, I don't think that's what it
21 says, so I'll ask him again.
22 Q. Sir, is it the case that you saw SOS soldiers or heard of them in
23 1991? And if that's the case, are you certain about that?
24 A. I said that I think that I had heard about them in the summer of
25 1991 and saw them.
1 Q. All right. I'll leave it at that.
2 You gave us yesterday the names of several persons who you
3 personally know were picked up by this red van you talked about. You
4 remember giving us those names yesterday, do you not?
5 A. Yes.
6 Q. Can you tell us when that happened? When were those people picked
7 up by that red van? And I know you're not going to be able to give me an
8 exact date, but get as close as you can.
9 A. My statement yesterday is the same as what I'm saying now. From
10 the beginning of the arrest and persecution of non-Serbs, it was not just
11 the red van that was operating. I said there was a white one and a blue
12 one and a red one; therefore, at different times, at different periods.
13 And I never said that those men were picked up altogether but at different
14 times. But mostly by the red van and in various places.
15 JUDGE AGIUS: Are we talking of 1991, 1992?
16 THE WITNESS: [Interpretation] 1992.
17 JUDGE AGIUS: 1992. The first half of 1992 or the second half of
18 1992 or throughout the whole of 1992?
19 THE WITNESS: [Interpretation] Almost throughout the whole of
20 1992. I'm not sure, but I think that the red van was operating throughout
21 1992. A white Mercedes, a blue -- I think it was a Volkswagen; they were
22 there at the beginning, I think, in 1991.
23 JUDGE AGIUS: Thank you.
24 MR. ACKERMAN: I've completed my questions, Your Honour. Thank
1 Thank you, sir.
2 MS. SUTHERLAND: No re-examination, Your Honour.
3 JUDGE AGIUS: Yes, Ms. Sutherland. Thank you.
4 That's the end of it. We have finished with you. I wish on
5 behalf of the Chamber to thank you for having accepted to come over and to
6 give evidence before this Tribunal. And you will now be escorted out by
7 the usher and be taken care of and returned to where you would like to
8 go. We are also making sure that in going out of this courtroom, you will
9 not be seen by any of the members of the public.
10 MR. ACKERMAN: Your Honour, may --
11 THE WITNESS: [Interpretation] Thank you very much. And I wish you
12 success in your future work, and I hope you will successfully complete the
13 task you have undertaken. Thank you very much.
14 JUDGE AGIUS: I thank you.
15 Yes, Mr. Ackerman.
16 MR. ACKERMAN: May my legal assistant be excused for a couple of
18 JUDGE AGIUS: Yes, certainly.
19 [The witness withdrew]
20 JUDGE AGIUS: [Microphone not activated] Thank you.
21 And let's wait, because I think now we go in -- we stay in public
22 session, and I don't want the curtains down, or --
23 MS. KORNER: No. But, Your Honour, I think we'll have to go in
24 private session to discuss the matters.
25 JUDGE AGIUS: [Microphone not activated] Yes. I think we need
1 first to --
2 THE INTERPRETER: Microphone, please, Your Honour.
3 JUDGE AGIUS: Yes. We'll wait a little bit until the usher
4 returns, and we'll lift the curtains.
5 In the meantime, I think we're going to change the tapes now. So
6 that will require about three minutes before we start.
7 Yes. We need to -- okay. Thank you.
8 THE REGISTRAR: Would you like to go into private session?
9 JUDGE AGIUS: Yes. I think Ms. Korner would like --
10 MS. KORNER: Your Honour, just in case, because I'm going to deal
11 with the Rule 70 motions.
12 JUDGE AGIUS: Are you going to deal with the motions or with just
13 the motion from Mr. Ackerman to delay the production of witnesses 7.223
14 and 224?
15 MS. KORNER: I'm going to deal with that motion but also with
16 Madam Fauveau's motion, because it doesn't seem to me that requires --
17 JUDGE AGIUS: Okay. So that -- I don't think it -- we need to be
18 in private session for that.
19 MS. KORNER: Your Honour, with respect to the discussion about the
20 witnesses and Mr. Ackerman's motion to delay, I'm just anxious.
21 JUDGE AGIUS: Okay. No. I will put your mind at rest, and we'll
22 go into private session. That's the safest way to proceed, even though I
23 tend to disagree with you. I mean, I have read and reread his motion
24 under --
25 [Private session]
12 Pages 4493-4501 – redacted – private session
24 [Open session]
25 MS. KORNER: Well, I should add, I don't think -- I've dealt with
1 what I want to say about the witness, so we can stay out of private
2 session for the remainder of the discussion.
3 JUDGE AGIUS: Okay. Thank you, Ms. Korner.
4 So number one was Tuesday next we will be sitting as usual.
5 And the next thing is you are aware that the Prosecutor has
6 informed -- come forward with the information with regard to Rule 92 bis
7 statements for the Sanski Most municipality, so much so that there has
8 already been a formal objection forthcoming from the bench for the Defence
9 team for General Talic. We have heard nothing from you, Mr. Ackerman. So
10 more or less I would imagine there's -- time is still running in your
11 favour. But more or less we wanted to know, since the Sanski Most
12 municipality is approaching, whether to expect anything from you or
13 whether the situation is, as it obtains now, and we can deal with the
15 MR. ACKERMAN: I -- my position with regard to that is I met with
16 Madam Fauveau, and we went through these together, and she --
17 JUDGE AGIUS: She filed an objection.
18 MR. ACKERMAN: She indicated she would file an objection to
19 basically all of them, I think. And so I decided it didn't make any sense
20 for me to just copy and that file that. So that's the situation.
21 JUDGE AGIUS: Okay. Thank you.
22 MS. KORNER: Your Honour, in fact, I think we may need to go back
23 in private session as a result of what we were discussing before the
25 But before we do that, can I say this: That in respect of the
1 Rule 92 aspect -- I know that Your Honour mentioned that you are -- I'm
2 not sure I was here. But I heard it anyhow -- were disinclined to issue
3 guidelines. I understand that, Your Honour, but I think it may be
4 important particularly in relation to the aspect that really concerns
5 Madam Fauveau, which is that each of these witnesses does say in some form
6 or another that the offences which, as I understand it, they don't dispute
7 the fact of the offences or the crimes. It's whether Serb soldiers were
8 involved. And this is a problem, Your Honour, that I think we will need
9 guidance on.
10 JUDGE AGIUS: No, definitely. I didn't say that the Chamber is
11 disinclined generally speaking, or as a rule. It's a question of will it
12 restrict itself to what it considers to be necessary. And as we go
13 along --
14 MS. KORNER: Yes.
15 JUDGE AGIUS: -- Don't expect a set of guidelines which then
16 possibly could be used either by the Prosecution or by the Defence, not
17 these teams but other -- by other teams in other cases and -- with the
18 consequence that I have to sit with other Judges and explain this and
19 explain that. So it's more or less -- you know, I mean, when we hand down
20 guidelines, they tend to be taken as guidelines of the Tribunal, while
21 they may well be guidelines of the particular Trial Chamber as composed
22 for a particular case. So more or less, do expect some guidelines but not
23 as -- or along the lines that sort of you gave us the impression -- when I
24 say "you," the three of you -- gave us the impression that you were
25 expecting. I mean, there will be some guidelines, but as we go along.
1 MS. KORNER: Yes. I think I know what Your Honour was referring
2 to in light of my discussions with Judge Schomburg the other day.
3 Your Honour, can I ask, then, to go back into private session just
4 to deal with the matter that Madam Fauveau raised, because I think it's
5 quite important.
6 JUDGE AGIUS: Yes. We'll go into private session, please. Thank
8 [Private session]
12 Page 4506 – redacted – private session
12 Page 4507 – redacted – private session
10 [Open session]
11 THE REGISTRAR: Your Honour, we are in open session now.
12 JUDGE AGIUS: Anything further? Ms. Korner, please.
13 MS. KORNER: Yes. The second matter on the motion on behalf of
14 General Talic is the third paragraph from the end, which I think I ought
15 to correct, which we suggest is a misstatement of fact. It says: "The
16 Prosecution has been granted excessive power in being able to choose which
17 entities can come under the provisions of Rule 70, since the Rule includes
18 no definition of the fortunate beneficiaries of these exceptional
19 arrangement. And it is even forbidden to name them in public."
20 We don't choose anything. Organisations and individuals supply
21 documents within -- even if they don't use the word "Rule 70," under the
22 conditions which apply to Rule 70. It's not that the Prosecution pick and
23 choose anything.
24 Your Honour, otherwise, I don't think there's anything further
25 that I want to say about the motion. It clearly supports Mr. Ackerman,
1 and we have responded in full to that.
2 The only matter that I really want to stress is this: It is our
3 submission that all of this is an attempt to prevent Your Honours from
4 hearing what is clearly cogent and relevant evidence from independent
5 persons, one of the few independent persons, present during this conflict.
6 And we suggest that it is important for the ascertainment of the truth of
7 these events that Your Honours hear this evidence.
8 JUDGE AGIUS: Yes. Mr. Ackerman, just to direct to your attention
9 to what this Trial Chamber considers to be relevant and important.
10 Number one: Let's keep separate and distinct your latest or most
11 recent motion; namely, the one filed on the 15th of April yesterday or
12 the day before yesterday to delay the testimony of the two scheduled
13 witnesses, 7.223 and 7.224, and the previous motion, which to this Trial
14 Chamber is the more important of the two, namely the motion challenging --
15 challenging the legality of Rule 70. There is, of course, the previous
16 motion for an order -- order but let's not discuss that for the time being
17 and concentrate on these two only.
18 What I would like to hear from you is the following: There are
19 two possibilities. Possibility number one is that well before the first
20 of these two witnesses is due in The Hague, we would have handed down our
21 decision on your motion dealing with the alleged illegality of Rule 70.
22 That is one possibility. And we are working on that possibility first.
23 We are trying first and foremost to put our priorities right and try and
24 decide that matter first and foremost.
25 Now, what would be the position with regard to your motion to
1 delay the testimony of these two scheduled witnesses in that eventuality?
2 That's number one.
3 Number two: If we encounter difficulties which can be of various
4 kinds, which would make it impossible for -- to us -- for us to hand down
5 our decision on Rule 70, pending the handing down of that decision what
6 should be our decision with regard to your motion for the -- for delaying
7 the production of these two witnesses.
8 Now, you put two forward -- two main reasons in your motion. And
9 that's in paragraph 6 of your motion of two days ago. And I would like
10 you to address those two reasons in the light of what I have just told you
11 and also in the light of the objections or response of -- oral response of
12 Ms. Korner earlier on in today's sitting. And stick to that. I mean,
13 avoid getting -- going into the merits of your motion dealing with Rule
14 70, except and insofar as it may -- it may in one or more events possibly
15 lead us to the conclusion that we should put an obstacle to the coming
16 forward of these two witnesses.
17 And then there is one last thing that Ms. Korner did not mention
18 and that I wouldn't expect you to mention but I would remind you of: That
19 this is not a court of justice sitting with a lay jury where sometimes
20 mistakes are made which -- to which there is no remedy except quashing.
21 In other words, where mistakes are remediably committed sometimes. This
22 is a Trial Chamber with professional Judges who have absolutely no
23 difficult at all if needs be to go backwards in time and cancel a part of
24 a disposition or the totality of the disposition.
25 May I also remind you of what was decided in Blaskic, precisely
1 with regard to Rule 70, leaving doors open in certain eventualities when
2 the Trial Chamber at any given moment would sense the danger of
3 prejudicing the right to a fair trial of the accused, reserving the right
4 precisely to do what I have just mentioned or to stop an evidence where it
5 is and sort of remove it from its agenda.
6 So with that on your desk, Mr. Ackerman, you may now proceed.
7 MR. ACKERMAN: Thank you, Your Honour. I want to, first of all,
8 tell you that I object very strongly to the Prosecutor's remark that what
9 I'm trying to do here is prevent witnesses from coming.
10 JUDGE AGIUS: I would tend to agree with you. The Trial Chamber
11 at no time has looked upon or tends to look or even just suspects that
12 that could be your intention.
13 MR. ACKERMAN: If I think my client's rights are being violated
14 under the Statute of this Tribunal, it's not -- it's not just something I
15 should do, but it's my duty, my obligation.
16 JUDGE AGIUS: You are right, Mr. Ackerman.
17 MR. ACKERMAN: I bring that to your attention.
18 JUDGE AGIUS: And we have told you -- we have told you before as a
19 Trial Chamber that we've taken your objection to Rule 70 very seriously,
20 and it's going to be one of the motions that -- on which we are going to
21 hand down comprehensive written decision, not just an oral decision but a
22 comprehensive written decision, because we think it touches upon something
23 which is fundamental in any criminal process, and that is the right to a
24 fair trial.
25 MR. ACKERMAN: The other thing, Your Honour, is I think there is
1 an unfortunate mixing of issues here that has complicated today beyond
2 where it needed to be. The motion that I filed yesterday does not relate
3 to my motion with regard to Rule 70 at all. The only relationship between
4 the two is this happens to deal with evidence that was acquired by the
5 Prosecutor pursuant to Rule 70. But beyond that, it doesn't affect it.
6 JUDGE AGIUS: Let me stop you awhile, Mr. Ackerman. This is why I
7 told you to refer to para 6 of your most recent motion. And although para
8 6, second paragraph number 13 refers to the motion of the 6th of March, in
9 reality what it says is that it is your contention that there is something
10 basically wrong which could lead to a -- an egregious violation of an
11 equality of arms -- of the equality of arms principle. And the only place
12 where you have questioned the equality of arms substantially is in your
13 motion attacking, challenging, the legality of Rule 70, not in your first
14 motion. In your first motion, you said they have given information to the
15 Prosecution; they haven't given information to us; they haven't even
16 answered our letter. This is not equality of arms. But what you're
17 saying here is basically something completely different.
18 MR. ACKERMAN: Yes.
19 JUDGE AGIUS: To the first one, there could still be a remedy. To
20 the second one, the question remains open. So let's say that there is a
21 little bit of confusion of the two issues.
22 MR. ACKERMAN: Yes.
23 JUDGE AGIUS: But basically the way the Chamber is reading this
24 second paragraph, which we have highlighted here in particular of para 6,
25 is precisely because it is very intimately related to your motion dealing
1 with the totality of Rule 70.
2 MR. ACKERMAN: The position that I'm taking with regard to this
3 motion, Your Honour, is this: The first thing that you must consider is
4 that we are dealing with an organisation -- are we in a private session?
5 JUDGE AGIUS: No. We are not in private session. We are in
6 public session. But you don't need to mention the organisation.
7 That's ...
8 MR. ACKERMAN: We do need to go to private session for just a
10 JUDGE AGIUS: Okay. Let's go to private session for just a
12 [Private session]
20 [Open session]
21 MR. ACKERMAN: The other thing that needs to be part of your
22 consideration is this: We are also dealing with an organisation that has,
23 based upon rulings of this Tribunal, the right to assert immunity.
24 Now, the question that I think implicates Article 21 of the
25 Statute, the equality of arms principle, the rights of the accused is
1 this: Can an organisation, especially one of the nature of this one, take
2 the position that we will provide documents and information to the
3 Prosecutor of the Tribunal that the Prosecutor believes will be helpful in
4 convicting the people who they have on trial? But we will assert our
5 right to immunity with regard to documents in our possession that might be
6 helpful to a defendant who is an accused in this Tribunal. I think the
7 answer to that is no. I think that can't happen. That violates, Your
8 Honour, just almost word for word Article 21(4)(e), giving the defendant
9 the right "to examine, or have examined, the witnesses against him and to
10 obtain the attendance and examination of witnesses on his behalf under the
11 same conditions as the witnesses against him." This is not a matter
12 probably over which any of us in this room have a great deal of control.
13 If that organisation wants to assert its immunity rights with regard to
14 requests that I make of them, bona fide requests that I make of them, I'm
15 not sure that even the Tribunal can prevent them from doing that. But it
16 certainly creates an unbelievably unfair situation.
17 This issue has nothing to do -- or it's peripheral to the issue of
18 cross-examination of these witnesses that are set out in the motion that I
19 filed yesterday. It might be -- it may very well be that if I am given
20 the same kind of document access, the same quality of document access that
21 the Prosecution was given, that I will find documents that will be helpful
22 in the cross-examination of these witnesses. But more than that, I have a
23 right under 21(4)(e) to bring witnesses from that organisation and have
24 them bring documents with them that I think are relevant to my client's
25 defence and sit here in this witness stand the same way the Prosecution
1 wants to have a witness do and identify those documents and put them
2 before Your Honours, or to bring a witness who was in the area at the time
3 and knows things about what happened in the area that are helpful to my
5 JUDGE AGIUS: If that -- if you are correct in this assertion or
6 in what you are contending, Mr. Ackerman, on what grounds would you base
7 your suggestion that you are in a disadvantaged position?
8 MR. ACKERMAN: I'm in a disadvantaged position if this
9 organisation decides that it's going to cooperate with the Prosecution and
10 not with the Defence. It's an enormously disadvantageous position. We
11 will give -- we will give the Prosecution documents to help convict, but
12 we don't give the Defence documents to help --
13 JUDGE AGIUS: This is why I suggested to you to keep separate and
14 distinct the two issues altogether, because in reality if we start
15 discussing Rule 70, we will not be discussing whether there should be a
16 delay of the production of these two witnesses, but we would be discussing
17 whether there is any violation of Article 21, in particular Article 21
18 para 4 of the Statute. That's not the point. The whole point is this:
19 Even assuming for the time being, just for the grace of the argument, for
20 argument's sake, that you may be right in part in your submissions
21 regarding the legality of Rule 70, do you see a valid reason why these two
22 witnesses ought not to be brought forward as scheduled considering two
24 Number one that the only instance where you are not put at par
25 with the Prosecution in Rule 70 is where you are requested, should you
1 elect to take advantage of Rule 70 itself as an accused, as a defendant,
2 to first seek the approval, the authorisation of this Tribunal. That's --
3 while the Prosecution is not. The Prosecution may avail itself of Rule 70
4 without the Tribunal even knowing, being aware of that, while you are not
5 in the same position. If that is so, how would it necessarily or how
6 should or ought it necessarily bring this Trial Chamber to the conclusion
7 to stay the production of these two witnesses, considering also a further
9 That the right of the Prosecution and also your right, given the
10 authorisation of the Court not to disclose the material to the other
11 party, refers only to that information which is tendered to the
12 Prosecution or to you on a confidential basis and -- this is where the
13 Trial Chamber lays its emphasis -- which has been - has been - in the past
14 used solely for the purpose of generating new evidence. The moment either
15 the Prosecution or the moment you, as Defence counsel, decide to make that
16 one further step forward and use that information by tendering it in
17 evidence, no longer are you covered -- can you claim to be covered by the
18 right not to disclose. And this is of fundamental importance. This is
19 not -- no longer a case where you can claim that the Prosecution has a
20 right to hide from you the evidence or the statement of these two persons
21 it intends to bring forward.
22 MR. ACKERMAN: I've never claimed that.
23 JUDGE AGIUS: But you are asking for the delay in the production
24 of these two persons. Now, you may have --
25 MR. ACKERMAN: Judge --
1 JUDGE AGIUS: -- valid arguments to bring forward that you require
2 time to prepare for your cross-examination, but that again should be
3 something -- something completely different.
4 MR. ACKERMAN: Judge, this is not a Rule 70 motion. It's not a
5 Rule 70 argument.
6 JUDGE AGIUS: This is why I told you -- this is why I told you
7 keep them separate.
8 MR. ACKERMAN: And I don't make an argument that there's no Rule
9 70 implication with regard to this matter. My argument is much simpler
10 than that. It is that it is incredibly unfair for this organisation to
11 say, "We will cooperate with one side. We will give the Tribunal evidence
12 that helps convict, but we will not cooperate with the other side and give
13 evidence that may acquit."
14 JUDGE AGIUS: But you --
15 MR. ACKERMAN: And that's the point. Now, just let me finish.
16 Because that's the position that we're in right now.
17 Now, negotiations are going on, and it may very well be that those
18 negotiations will result in us having the same kind of document access
19 that the Prosecutor has. They may very well wind up that way. But
20 they -- they could also take the position that we're going to assert our
21 immunity and not let you see any documents or give you any documents. If
22 they do that, I can't imagine how it's anything but just horribly unfair
23 for you to allow the Prosecutor to use evidence they got from that
24 organisation that helps -- that arguably helps convict people in this
25 Tribunal and not -- not see that there's a huge violation of the
1 defendant's rights under Article 21(4)(e): The Prosecution can bring
2 witnesses from that organisation and I can't. And how on earth does that
3 comport with a statutory provision that says I can summon witnesses under
4 the same conditions as they can? I can't.
5 JUDGE AGIUS: Yeah. But you yourself stated that you have that
6 right. This is why I asked you before if you assert -- if you seriously
7 believe that you have the right to summon witnesses from that
8 organisation, bring them forward, put questions to them, ask them to
9 confirm or deny the authenticity of documents, ask them to bring over
10 documents belonging or not belonging to that organisation. If you
11 seriously believe and assert that you have that right -- and I'm not
12 telling you that you don't have that right.
13 MR. ACKERMAN: I have the right to ask for that.
14 JUDGE AGIUS: But where is the disadvantaged position?
15 MR. ACKERMAN: Judge, I have the right to ask for that. But they
16 have the right to say, "No, we are going to assert immunity with regard to
18 JUDGE AGIUS: You wait. As the Trial Chamber once said in
19 Blaskic -- you wait until that happens and then you visit the problem
21 MR. ACKERMAN: It happened already.
22 JUDGE AGIUS: No, it hasn't happened. I'm sorry.
23 MR. ACKERMAN: Now we're in negotiations.
24 JUDGE AGIUS: We have had two instances, one from General Talic.
25 And at that point in time, we had to tell General Talic, "You haven't even
1 asked the humanitarian organisation to provide you with the documents."
2 MR. ACKERMAN: Well, I have.
3 JUDGE AGIUS: But exactly. At the same time, this was happening,
4 you filed your motion and the basis for your request was precisely that
5 you had written to the humanitarian organisation, and this humanitarian
6 organisation had not written back to you. That was the position in time
7 when you filed your motion.
8 MR. ACKERMAN: Yes.
9 JUDGE AGIUS: When we came to discuss it here, they had just
10 answered you.
11 MR. ACKERMAN: Yes.
12 JUDGE AGIUS: -- In a way as to open doors but not necessarily
13 conclude the matter.
14 MR. ACKERMAN: Right.
15 JUDGE AGIUS: And the situation is status quanti. I mean, it's as
16 it was a month ago. It hasn't changed at all.
17 MR. ACKERMAN: It has changed.
18 JUDGE AGIUS: No it hasn't changed --
19 MR. ACKERMAN: Yes it has --
20 JUDGE AGIUS: You're still waiting.
21 MR ACKERMAN: No. I got a letter back from them.
22 JUDGE AGIUS: When? Because the last information you gave us --
23 MR. ACKERMAN: A week?
24 JUDGE AGIUS: Exactly. So the information is that they have
25 written to you, asking for information from you, as we gathered, and that
1 negotiations are still underway --
2 MR. ACKERMAN: I heard from them a week ago.
3 JUDGE AGIUS: Yes. But listen --
4 MR. ACKERMAN: And I've now written back to them.
5 JUDGE AGIUS: But you yourself -- you are maintaining that the
6 situation is still open, and you yourself are hopeful that the door is not
7 closed, making it impossible for you to obtain all the information that
8 you have asked for from this humanitarian organisation.
9 MR. ACKERMAN: Well, I may be being way too literal about this,
10 Your Honour, but I have asked them for permission to show you the latest
11 letter that they sent me, because --
12 JUDGE AGIUS: Yeah. You told us that.
13 MR. ACKERMAN: They said in there that I should share it with no
14 one. And I'm taking them literal. I'm quite certain that they didn't
15 mean that I shouldn't share it with the Court. But until they tell me
16 that, I think I should err on the side of caution. But it would shed
17 light on what we're doing right now if I could show you that letter.
18 JUDGE AGIUS: Mr. Ackerman, I think this Trial Chamber has made it
19 very clear from the very, very outset of this trial that we never doubt a
20 single word of what you state in this courtroom. So what you say is taken
21 as -- as the situation, but it doesn't change anything. All the options
22 are open, including a negative response -- a final negative response from
23 the organisation.
24 MR. ACKERMAN: That's my point.
25 JUDGE AGIUS: So but the whole -- the whole issue, I mean, should
1 be debated when it arises, not hypothetically.
2 MR. ACKERMAN: Until they --
3 JUDGE AGIUS: Why should we go into the question and decide how we
4 should deal with this humanitarian organisation, or with some witnesses,
5 or information provided by this humanitarian organisation, not knowing
6 what this humanitarian organisation is going to tell you or how it's going
7 to be dealing with your request? Maybe it's the way your request is being
8 put that isn't digested well by the humanitarian organisation, or maybe
9 they will say, "Yes, you are right. We will treat you exactly the same as
10 we are treating the Prosecution."
11 When we went in private session for that few seconds, I think you
12 also ought to give proper weight to the significance of what you said at
13 that point in time, who this organisation is and if it's part of whatever
14 you said, does it make more sense the way you put it or the way it has
16 MR. ACKERMAN: I think it's a matter of just --
17 JUDGE AGIUS: It's -- no, I would like you to think about it,
18 because you are in exactly the same position. You may have, for example,
19 let's say another organisation. You may have, for example, the government
20 of -- a foreign government or you may have the secret service of a foreign
21 government or you may have at your disposal archives of a foreign
22 government which are not at the disposal of the Prosecution.
23 MR. ACKERMAN: Well, I don't.
24 JUDGE AGIUS: No. But I said you may, or you might.
25 MR. ACKERMAN: Theoretically, that's correct.
1 JUDGE AGIUS: Yes theoretically.
2 I mean, put yourself, then, in the that position, hypothetically,
3 and try to argue along the lines that I have been arguing. So let's say
4 there is a foreign government that is all out committed to help your
5 client, for example. So there is a vested interest.
6 MR. ACKERMAN: Well, I understand your point, Your Honour. I
7 don't think it changes --
8 JUDGE AGIUS: This Tribunal exists for what it stands for in terms
9 of its Statute. It has been created by the United Nations because it is
10 an ad hoc Tribunal.
11 MR. ACKERMAN: Your Honour -- Your Honour --
12 JUDGE AGIUS: And it has a mission.
13 MR. ACKERMAN: Your Honour Article 21(4) does not set out the
14 rights of the Prosecutor.
15 JUDGE AGIUS: No, of course not.
16 MR. ACKERMAN: It sets out the rights of the accused. And I'm
17 talking about the rights of the accused. And it doesn't say in here --
18 JUDGE AGIUS: Those are the rights that will be protected.
19 MR. ACKERMAN: It doesn't say in here that the Prosecutor has
20 the right to acquire witnesses under the same conditions that I do. Now
21 they do but it doesn't say that. I'm not talking about that. I'm talking
22 about the defendant's right to have witnesses under the same conditions as
23 the Prosecutor. And if the conditions the Prosecutor has is an
24 organisation that says, "We'll cooperate with you," and my conditions
25 are an organisation that says, "We won't cooperate with you." It's the
1 same organisation. That's unfair, that violates 21(4). That's my
3 JUDGE AGIUS: It's hypothetical. It could violate -- given
4 certain circumstances, maybe the Tribunal will come to that conclusion.
5 But not necessarily. It depends. This is why reading the decision in
6 Blaskic, it is very important, because there you have a hint -- a clear
7 hint at what the rationale of Rule 70 is or looks like it is.
8 MR. ACKERMAN: Well ...
9 JUDGE AGIUS: And the concern of that Trial Chamber all along was
10 given that something like Rule 70 is important within the context of such
11 a Tribunal, our concern is how to make sure that the due process and fair
12 trial rights of the accused are protected throughout the Trial.
13 MR. ACKERMAN: And I think it's very simple.
14 JUDGE AGIUS: And it is -- exactly. Your contention is a radical
15 one. I mean, if this organisation cooperates with the Prosecution but is
16 not prepared to cooperate with us, then the solution is a radical one: No
17 witnesses from that humanitarian organisation. Well, I'm not telling you
18 here and now that that is or should be infallibly and always the -- the
19 only necessary consequence. It could be. I don't know.
20 MR. ACKERMAN: Yes. There's nothing radical about that.
21 JUDGE AGIUS: Of course it is.
22 MR. ACKERMAN: Unless you think Article 21(4)(e) is radical.
23 There's nothing radical about my taking the position that I should have
24 the same access to material that they have. That's not radical.
25 That's -- that's the law. That's not radical.
1 JUDGE AGIUS: Mr. Ackerman, you are exactly in the same position.
2 If you were given authority -- authorisation by the Trial Chamber with
3 regard to information that you acquire in a confidential matter -- manner
4 and which you have used solely in generating evidence, you are exactly in
5 the same position as the Prosecution.
6 MR. ACKERMAN: No.
7 JUDGE AGIUS: Yes, of course you are.
8 MR. ACKERMAN: If you think I'm in the same position, go ahead and
9 issue the subpoena and watch how fast they assert immunity.
10 JUDGE AGIUS: Oh, I'm sure they will assert immunity. But also
11 the fact remains that they haven't told you no as yet.
12 MR. ACKERMAN: And that's why we need to wait. Why open the door
13 and let the horse out before we have to? You have an opportunity to do
14 justice. Why pass up that opportunity? There is no major hurry for those
15 witnesses to come here, no major hurry at all. Now, I understand it's a
16 difficult matter of scheduling, but we're going to be here a long time.
17 JUDGE AGIUS: That's the thing that worries this Tribunal least.
18 MR. ACKERMAN: It should, it should. Why assume that they're
19 going to cooperate with me the same way they did with the Prosecutor and
20 let this evidence come in and then later find out that they won't and say,
21 "Okay. We're going to ignore what all these people said." That's
22 difficult to do. We're human beings. And we come years from now to a
23 place, and we know we heard things, we're not sure we know where we heard
24 them. And so it's very hard, very difficult. Why put yourselves in that
25 position? Why put yourselves in a position where you might have to do
1 that? Just do justice right up front. That's all I'm asking.
2 JUDGE AGIUS: Okay.
3 Yes, Ms. Korner.
4 MS. KORNER: Your Honour, may I just say two things in response,
5 although I'd like to be -- at least start the next witness today if
7 The first is this: Mr. Ackerman repeats endlessly, like a mantra,
8 "The organisation provides evidence to help the Prosecution convict." It
9 does no such thing. It provides the Office of the Prosecutor with the
10 documents that partially Your Honour and the Defence have seen for the
11 purposes of pursuing investigations which we're required to do under the
12 Statute in to what occurred in the territories of Bosnia -- the former
13 Yugoslavia during the conflict.
14 The difficulty, I think, that Mr. Ackerman faces and because of
15 the fact that he's negotiating with the organisation is that if I
16 understand him correctly, he's saying if the Prosecution have been
17 supplied with documents by this organisation, then we must be supplied
18 with any of the documents they've got. And no organisation is going to
19 agree to that. If Mr. Ackerman's concerns are that he wishes the
20 organisation to provide him with material which may be Rule 68, in the
21 terms that it is exculpatory or challenges the credibility of the
22 witnesses we wish to call, then I'm sure that what he ought to be doing is
23 specifying. And that, I think, is probably the difficulty; that he's not.
24 And neither he nor -- I'm sorry. I don't know what it is. But I am
25 concerned that it should not be suggested that organisations are supplying
1 material deliberately aimed at helping the Prosecution to convict. They
2 are supplying material relevant to the period for which they are in
3 possession to enable investigation to be carried out. So Your Honour, I
4 think that ought to be made absolutely clear.
5 MR. ACKERMAN: Your Honour, first of all, Ms. Korner either
6 doesn't know or shouldn't know anything about what my request says. But I
7 can tell you that it is quite specific, very specific.
8 The other thing I want to mention is that Ms. Korner raised today
9 is this whole issue of Rule 68. It keeps getting brought up. But we
10 don't tell her what our defence is, and therefore she can't provide Rule
11 68 material.
12 I have said over and over, and I will say it again because of the
13 record. Our defence is that the Prosecution has an obligation to prove
14 the guilt of my client beyond a reasonable doubt. And I challenge by a
15 plea of not guilty every word of the Prosecutor's indictment.
16 What is Rule 68 material? It is material that tends to show that
17 what the Prosecution alleges in their indictment is not the case. Also
18 it's material that would question the credibility of any witness that the
19 Prosecution calls in this case. Now, that's not a difficult thing for the
20 Prosecution to figure out. And the Prosecution cannot be absolved of
21 their responsibilities under Rule 68 because I am asserting the classic
22 defence in a criminal case, that is, we didn't do this stuff; you prove
23 it. Their obligations under Rule 68 are to provide material that is
24 inconsistent with what they allege in their indictment and material that
25 goes toward the credibility of witnesses they call in this case. That's
1 what it is. It's not hard to understand. And that's what I ask that they
2 provide and I demand that they provide.
3 MS. KORNER: Well, Your Honour, that is precisely the problem.
4 Your Honour, Mr. Ackerman says, "We dispute every word of the
5 indictment." In fact, they don't. We've seen that. They say, "We admit
6 to this, or we're prepared to admit if General Talic admits, but we don't
7 want to reveal it." This killing occurred. Your Honour, it is simply not
8 good enough to say, "That's all we're prepared to say. Prove your case,"
9 because of course, we do the very best we can to ensure that anything that
10 appears to us on that basis -- in other words, that challenges the
11 credibility, or is inconsistent with what the witness said, is disclosed.
12 But there may be other issues about what simply we don't know. And it's
13 not assistance that we require. And the mantra, the Prosecution has to
14 prove its case doesn't absolve the Defence of its duty. Mr. Ackerman's
15 duty to his client to provide us with what we need to do the relevant
16 searches. And to make a complaint at the end of the day when something
17 comes up, we then appreciate that it's part of the Defence case, which we
18 were unable to appreciate before and we see that there is material that
19 goes to that, well, you should have known that in advance.
20 But Your Honour, I think we've drifted right off the point now.
21 JUDGE AGIUS: We have, certainly.
22 MS. KORNER: Yes. But I want to make it absolutely clear --
23 that's fine. Mr. Ackerman can maintain this position. And in the event
24 his client is convicted, he can maintain this position before the Appeals
25 Chamber. But it is our contention that this is not a one -- a total
1 one-way street, as Mr. Ackerman contends. He is well aware, as the whole
2 world is, of the huge amount of information that has been supplied to the
3 Office of the Prosecutor, not necessarily obtained through seizures or
4 search warrants but by organisations and individuals. And if there's a
5 real refusal to give any sort of further information, which in fact was
6 required under the Statute, well, then he has only himself to blame if in
7 fact somewhere in the -- buried in the vaults of this institution was a
8 document which had he given us more information might have proved to be of
9 value. So I want to make that absolutely clear.
10 MR. ACKERMAN: Well, Your Honour, it's my understanding from
11 testimony given by Mr. Inayat right here in this Court that every document
12 that comes into the Prosecutor's office is scanned into the system that
13 you saw in operation here in the courtroom. You can search it in about, I
14 don't know, seconds for any word you want to search for. So it's not like
15 somebody has to go into a room full of documents and paw through them.
16 And I know they've been doing searches looking for these matters.
17 Now, just because I have said that I'm willing to concede that all
18 the killings listed in the indictment occurred does not absolve Ms. Korner
19 of the responsibility of telling all of us if they have evidence that one
20 of those killings didn't occur. So it doesn't -- it doesn't do anything.
21 She still has the obligation to at least be honest with this Tribunal and
22 say, you know, even as Mr. Ackerman concedes that it occurred, we have
23 evidence that it didn't.
24 JUDGE AGIUS: Still, let's -- let's redirect our arguments and
25 bring them to an end, to the real issue here.
1 I think -- do you agree with me? We have heard enough?
2 [Trial Chamber confers]
3 JUDGE AGIUS: We think that we have heard enough submissions on
4 this matter, and we will decide it in good time.
5 MS. KORNER: Your Honour, Mr. De Roux is on his feet, I think.
6 JUDGE AGIUS: Yes. I'm sorry, but Maitre de Roux, I -- in your
7 absence these last few days, I complained that I'm going to have a stiff
8 neck having to look at the Defence team of General Talic, because I have
9 to turn my head 45 degrees. Yes. And give my back to Judge Taya, which I
10 don't like to do.
11 MR. DE ROUX: [Interpretation] Mr. President, I will be extremely
12 brief regarding this matter. But I think that there are two quite
13 different problems here. There's the problem of substance, and that is
14 the implementation of Rule 70, and that is the requirement by an
15 organisation for protection which is provided by the Rules of Procedure
16 and Evidence and its refusal to cooperate with the Defence. And without
17 speaking about this organisation, the secret aspect of it is important.
18 Then there is the problem of knowing whether we can examine the
19 witnesses from that organisation before the Trial Chamber has terminated
20 the debate. Regarding this second point, the Defence of General Talic
21 fully relies on the wisdom of the Trial Chamber. The Trial Chamber may
22 decide to hear those witnesses before having made a ruling on the motion.
23 It may choose out of prudence to first make a ruling and then hear the
24 witnesses. But in any event, let us make things quite clear. The Defence
25 will perform fully its duty when the witnesses are called, and we will see
1 at that point in time how the witnesses will react. What we would not
2 like is to have this organisation respond -- because we too have contacted
3 them -- we would not like that organisation to say, "The Defence -- we
4 cannot be so precise and take certain side steps, while at the same time
5 clearly and without risking contradiction -- and I repeat that -- without
6 risking the possibility of being contradicted, its support for the
7 Prosecution. But I am saying that we will take that risk of contradicting
8 them. And I think that if an organisation -- if an entity cooperates with
9 the Prosecution, it is quite normal for the Defence at that point in time
10 to have all its rights, notwithstanding the limitations implied by Rule
11 70, but by applying the provisions of Article 24 [As interpreted] of the
12 Statute. That is all that I intended to say on behalf of the Defence of
13 General Talic.
14 JUDGE AGIUS: Yes. Thank you, Maitre de Roux. To the Chamber,
15 the position is very clear, frankly. I don't think we ought to repeat
16 anything on what -- what we have already stated.
17 Any way, Ms. Korner, yes, please.
18 MS. KORNER: The only thing that I would ask then, Your Honour, is
19 that simply if Your Honour is going to -- for Your Honour to make a ruling
20 on Mr. Ackerman's application to delay as soon as possible, because we
21 clearly need to tell the witnesses what the situation is.
22 JUDGE AGIUS: Yes, Mr. Ackerman.
23 MR. ACKERMAN: The transcript says that Mr. De Roux mentioned the
24 provisions of Article 24 of the Statute.
25 JUDGE AGIUS: 21(4), it should be.
1 MR. ACKERMAN: I think he meant 21(4). It should say 21(4).
2 JUDGE AGIUS: Thank you.
3 MR. DE ROUX: [No interpretation]
4 JUDGE AGIUS: Okay. Thank you. So the discussion on this motion
5 is concluded, and the intention of the Trial Chamber is to hand down its
6 decisions on both matters either simultaneously, and if not simultaneously
7 we'll see which ought to be decided first. But I don't know exactly here
8 and now what we will decide. So we'll take our time. But we will decide
9 in good time, Ms. Korner, not to put you --
10 MS. KORNER: Your Honour, yes. It's -- it's really the one that's
11 due at the end of May. He has to be told the position, because he's set
12 aside five days.
13 JUDGE AGIUS: It's not our intention to delay until the end of
15 MS. KORNER: No, I appreciate --
16 JUDGE AGIUS: We're just in the middle of April.
17 MS. KORNER: I know that, Your Honour. And I know it sounds awful
18 in the sense and -- it's not what -- he really -- he is somebody who has a
19 full diary and has set aside five days for the purposes of that testimony.
20 JUDGE AGIUS: Ms. Korner, the position is very simple. Actually,
21 with regard to point -- Rule 70, there's, I think, just one big issue to
22 be decided. The rest is not that important. But we still have to -- to
23 see to that. And with regard to this present motion, there isn't much to
24 say, keeping in mind particularly what has been said in Blaskic, because
25 Blaskic in its simplicity went deep and to the heart of the matter, and
1 that is definitely not the intention of -- at least at present -- of this
2 Tribunal to depart much from what was decided in that case.
3 So that closes the matter for the time being. I -- if I remember
4 well, the next witness is --
5 MS. KORNER: Is in closed session.
6 JUDGE AGIUS: Is in closed session. Correct?
7 MS. KORNER: He is, yes.
8 JUDGE AGIUS: So we have to bring down the curtains. We'll go
9 into closed session immediately.
10 MS. KORNER: Can I ask you -- is Your Honour sitting till half
11 past 6.00 or 7.00?
12 JUDGE AGIUS: Till half past 6.00.
13 At least to see his or her face.
14 MS. KORNER: Well, Your Honour, as I say, I can do a few
15 background preliminaries and leave it.
16 JUDGE AGIUS: And also to tell you frankly, I mean, we were only
17 handed the statement this morning or --
18 MS. KORNER: Well, I don't know why that is, Your Honour, because
19 it was handed in quite sometime ago. So it's -- this, I can say, has got
20 nothing to do with us.
21 [Closed session]
12 Pages 4533-4547 – redacted – closed session
11 --- Whereupon the hearing adjourned
12 at 6.32 p.m., to be reconvened on Thursday,
13 the 18th day of April, 2002, at 2.15p.m.