1 Friday, 26 April 2002
2 [Motion Hearing]
3 [Open Session]
4 --- Upon commencing at 9.35 a.m.
5 [The accused entered court]
6 JUDGE SCHOMBURG: Good morning, everybody.
7 Could you please call the case?
8 THE REGISTRAR: Good morning, Your Honour. This is the case
9 number IT-99-36-T, the Prosecutor versus Radoslav Brdjanin and
10 Momir Talic.
11 JUDGE SCHOMBURG: Thank you. And may I have the appearances,
13 MS. KORNER: Joanna Korner, Andrew Cayley, for the Prosecution,
14 assisted by Denise Gustin, case manager.
15 JUDGE SCHOMBURG: And for the Defence, please?
16 MR. ACKERMAN: Good morning, Your Honour. I'm John Ackerman. I'm
17 with Marela Jevtovic, on behalf of Mr. Brdjanin.
18 JUDGE SCHOMBURG: And I have to ask the accused, can they follow
19 the proceedings in a language they understand?
20 MS. FAUVEAU-IVANOVIC: I am sorry, my name is Natasha
21 Fauveau-Ivanovic, on behalf of General Talic.
22 JUDGE SCHOMBURG: Once again, the accused, can they follow the
23 proceedings in a language they understand?
24 THE ACCUSED BRDJANIN: Good morning, Your Honour. I can hear and
25 understand you.
1 THE ACCUSED TALIC: Good morning, Your Honour. There is something
2 wrong with my headphones and I cannot follow; I cannot hear you.
3 JUDGE SCHOMBURG: Thank you very much. Please be seated again.
4 MR. ACKERMAN: Your Honour, excuse me for a moment. You may not
5 have heard General Talic. He said that he could not hear. I guess he
6 can hear now. It guess it's been fixed.
7 JUDGE SCHOMBURG: I had the impression that it was fixed and I saw
8 from the reaction that it was functioning.
9 MR. ACKERMAN: I am sorry. I'm very sorry.
10 JUDGE SCHOMBURG: Everybody can follow the proceedings. So the
11 issue of this morning's session is only the motion of 25 April, 2002 to
12 qualify the Trial Chamber hearing the Brdjanin Talic trial.
13 Such a motion is a very serious issue, of course. To a certain
14 extent, it may endanger the continuity of the ongoing trial. In any
15 event, it threatens the necessary atmosphere of mutual trust in the
16 courtroom. Evidently, such a motion is a signal that one party has, to a
17 certain extent, lost confidence in this common spirit of cooperation
18 necessary also and especially in adversarial procedure. Therefore, it
19 demands immediate reaction in order to come back to proceed to next
20 business as soon as possible, whatever the outcome of this procedure will
22 Though this procedure is a very formal one, I want to give them
23 general remarks in the beginning. I would invite the parties to show
24 throughout the discussion of this motion the necessary self-restraint,
25 even though the matter before us may invite for a possible discussion cum
1 ira et studio, with zeal and fury, whereas lawyers always should act sine
2 ira et studio, without zeal and fury. This is especially true and here I
3 want once again appeal to you in an International Tribunal.
4 The Judges of this International Tribunal and also, to a certain
5 extent, the participants in such a trial, are not only mandated to hear
6 the trial in a criminal court, but what we are doing here is at the same
7 time a peace-keeping mission, and we should bear this in mind also when
8 dealing with issues with very sensitive issues as it was brought before us
10 I want in this context to quote from Security Council Resolution
11 827 of 1993, Kofi Annan saying, "This Tribunal has to contribute to the
12 restoration and maintenance of peace." And from my point of view this has
13 also an impact on our behaviour, on our attitude to these criminal
14 proceedings. Having a lot of experience for all sides of the Bench, as an
15 acting Defence counsel, as an acting Prosecutor, I know very well that it
16 doesn't help to put things just under the carpet to come as close as
17 possible to harmony. This is not the point. The point is that we should
18 try to be fair to each other, to be fair to each other in a very special
19 environment, a special environment because we should always take into
20 account that we have to bring together totally different legal
21 traditions: Legal traditions of the civil law system and the common law
23 Some Judges have a more diplomat background, some have a more
24 criminal law background. To come from this from outside, it is sometimes
25 really difficult to understand the other system, and this may cause some
1 difficulty of understanding. To give you an example, something you can
2 identify in the Rules, for example, the request to have a kind of
3 judgment after the hearing of the Prosecutor's case would be impossible
4 in some legal systems. And this would be a reason for calling Judges
6 Other issues you have to be aware of in this Tribunal
7 sometimes are really surprising for a judge, a lawyer coming from a civil
8 law system: Not to have contacts directly with the Judge, not to have
9 contacts directly with the Prosecutor, going through legal officers, and
10 so on. This causes additional problems and this is why -- and I am quite
11 sure you are aware of all the former decisions on this qualification of
12 Judges, be it decisions as such, be the threshold given in other
13 judgments, that this threshold here is a very high one.
14 We came together today under Rule 15(B). On purpose, I quote:
15 "Any party may apply to the Presiding Judge of a Chamber for the
16 disqualification and withdrawal of a Judge of that Chamber from a trial or
17 appeal upon the above grounds. The Presiding Judge shall confer with the
18 Judge in question, and if necessary the Bureau shall determine the matter.
19 If the Bureau upholds the application, the President will assign another
20 Judge to sit in place of the disqualified Judge." Already here, and
21 therefore I quoted it.
22 In other legal systems, one could come to the conclusion that the
23 motion as it is before us is obviously inadmissible because it is on the
24 disqualification of the Trial Chamber. And for example, in my judicial
25 system, such a motion would be rejected immediately because it is not on
1 the individual, let's call it "misbehaviour," alleged misbehaviour of a
2 single Judge or of three Judges. But you never can't challenge a Chamber
3 in my system, just to show you the different approaches in different legal
5 Having said this, of course, I don't want to say that this motion
6 is not admissible. I only wanted to point out here that we have
7 different approaches.
8 15(B) leaves us alone, to a certain extent, on the question how
9 to proceed. Of course, the presiding Judge shall confer with the Judge
10 in question, and this I did. I formally summoned the three Judges and I
11 report on the outcome of this immediately. There is nothing about a
12 hearing, but I personally read the Rules always in the view of the human
13 rights, especially the European Convention of Human Rights, and therefore
14 I regard it necessary, having conferred with the Judges in question, to
15 inform you on that because this forms part of the right to be heard
16 before a decision.
17 And as you may see, it is open for discussion. The Rules provide
18 that possibly the presiding Judge can decide, and if he regards it
19 necessary, he can transfer the case to the Bureau. This was the reason
20 why I invited you on yesterday's first decision to a hearing in
21 application of 65 ter (I) correspondingly. But I learned that it was
22 the wish of both parties to have a hearing in public, and I appreciate it,
23 especially in a Tribunal working in a system of total transparency.
24 Therefore, we have come together and we should discuss the issues before
25 us. The issue is limited by the motion before us and I invite the
1 parties, once again, also here to show self-restraint and not to go over
2 this limit given by the motion from 25 April, 2002.
3 To come to a certain order, additionally, I want to invite the
4 parties first to address factual questions, and later on, legal questions
5 on the basis of former decisions of the Tribunal on disqualification of
7 Proceeding now, I want to tell you what was the outcome of the
8 conference with the challenged Judges and, therefore, may I ask the usher
9 to distribute the minutes of this meeting.
10 THE INTERPRETER: Could the interpreters have a copy, Your Honour,
11 please? Could the interpreters have a copy of the document, please?
12 JUDGE SCHOMBURG: For the record, I want to read out the minutes
13 of this meeting convened this 26th of April, 8.30, on the basis of an
14 order given yesterday.
15 The document reads: "Minutes of the meeting Judge Schomburg held
16 with the Judges Agius, Janu and Taya on the motion for disqualification of
17 the Bench submitted for the Defence of Brdjanin and Talic.
18 1. The three Judges were aware that the pre-municipality meeting
19 was scheduled for 25 April, 2002, chaired by senior legal officer.
20 2. Judges Janu and --
21 THE INTERPRETER: Could the President slow down, please, for the
23 JUDGE SCHOMBURG: 3. Judges Janu and Taya had not been informed by
24 their own staff of the agenda of that meeting.
25 4. Judges Janu and Taya had never seen the list of potential
1 agreed facts prior to the pre-municipality meeting. The Bench at no point
2 prior to the pre-municipality meeting discussed the agenda of that
4 6. The Bench at no point prior to the pre-municipality meeting
5 discussed the question of whether draft agreed facts should be presented
6 and at no point discussed the list distributed.
7 7. Judge Agius knew that the legal staff working on this case had
8 prepared an agenda for this meeting and knew the issues to be discussed.
9 8. Judge Agius instructed the staff to consult with parties
10 through this pre-municipality meeting to try to identify with the parties
11 facts on which they could possibly agree. This would possibly avoid
12 witnesses to testify upon such facts.
13 9. Judge Agius consulted prior to the pre-municipality meeting
14 with the senior legal officer about the pre-municipality meeting. During
15 this meeting, the focus was on methods to speed up the trial as much as
17 10. Judge Agius knew that there was a list prepared.
18 11. Judge Agius was not involved in the drafting of the list.
19 12. Judge Agius never saw the distributed list prior to the
20 pre-municipality meeting but was aware that it was distributed amongst
21 parties one day before the pre-municipality meeting by the legal staff.
22 13. Judge Agius was provided a memo on the pre-municipality
23 meeting one day before that meeting. That memo included also a possible
24 list of agreed facts but was not identical to the one distributed to the
25 parties. Inter alia the heading of the document distributed did not
1 appear in the memo provided to Judge Agius.
2 14. If Judge Agius would have seen the document prior to
3 its distribution, he would not have agreed with certain parts of the text.
4 The parts he would not have agreed upon include inter alia the
5 introduction to the list, the paragraph on the criminal responsibility of
6 the accused, the paragraph on the composition of the population of Sanski
7 Most in 1995, and the paragraph stating that Manjaca camp belonged to the
8 1st Krajina Corps.
9 15. Also, Judges Janu and Taya would not have agreed to this
10 version of the list being distributed.
11 So far the report on the meeting based on Rule 15(B) of our Rules
12 of Procedure and Evidence.
13 I would now invite first the moving party to address in short and
14 in the limits of their own motion first the factual and then legal
15 aspects of this motion.
16 MR. ACKERMAN: Your Honour, if I may begin on behalf of Mr.
17 Brdjanin, if that is agreeable with you.
18 I have listened carefully to your opening remarks, Your Honour,
19 and I appreciate them, and to a great extent, I accept and adopt and agree
20 with them. I want to begin with what you have just presented us, and that
21 is the minutes of your meeting with the Judges, and I will say that the
22 results of that meeting confirm what I had initially suspected to be the
23 facts and reality of this situation.
24 I have a statement prepared, Your Honour, that was -- that is a
25 joint statement on behalf of both parties, and I hope that you will see it
1 as following the guidelines that you have set down this morning.
2 Yesterday, Your Honour, I had occasion to speak upon this matter
3 several times, both formally and informally. With the exception of every
4 Defence lawyer here who understood it without exception, I had the
5 definite feeling that I was not being understood. That can only be my
6 fault and I must therefore try again.
7 First, I must say that I fully accept the statement of Judge Agius
8 made in open court yesterday on behalf of himself and the Judges Janu and
9 Taya. I accept completely and understand that a Trial Chamber has the
10 right, and perhaps even the duty, to attempt to get the parties to come to
11 agreement regarding facts in the case as to which there is no reasonable
12 dispute. Some believe that my challenge was that the Chamber did not have
13 that right. That is not the case, and I do not challenge that aspect of
14 this matter.
15 On April 24th, we were handed a document which in its preamble
16 told us two things: One, the Chamber had asked the Prosecutor for a list
17 of facts that the parties can agree on or do not contest. It appears from
18 the document that this was an ex parte communication. Whether ex parte or
19 not, it is in my mind an improper communication.
20 On the other hand, a letter to all parties in which the Prosecutor
21 is asked to supply a list of facts to the Defence as a possible basis for
22 agreement and discussion is wholly appropriate and fully accomplishes the
23 apparent intent of the Trial Chamber.
24 It would have developed, Your Honour, that in the course of this
25 case, such agreements would have been forthcoming. I must say to you,
1 because I think it impacts upon what it is you are called upon to do with
2 this matter, that the likelihood of such agreements in the future has been
3 severely diminished. I cannot enter into any agreement on agreed facts
4 without the consent of my client. That can't happen.
5 The second thing that the preamble of the document told us was
6 this: That with regard to the Sanski Most phase of the case, the Trial
7 Chamber had compiled such a list of facts itself. Numerous questions rise
8 from that immediately: How did the Chamber arrive at this list; from what
9 source did the Chamber compile these alleged facts; what criteria did the
10 Trial Chamber use in including some facts and eliminating others; how
11 could the Trial Chamber have gotten so many of the alleged facts
12 completely wrong; have they not been listening to the evidence in this
13 case; how could the Trial Chamber include facts as subject to agreement
14 that have been disputed long and loud from the first day of this case. Is
15 this list an expression by the Trial Chamber that, after serious
16 consideration, it believes these to be facts that the Defence could not
17 reasonably challenge; what price will the defendant pay if the defendant
18 refuses to agree to the Chamber's suggestions.
19 All these are questions directly related to the question of
20 whether this is a fair trial by an impartial Tribunal. Although I accept
21 that the three Judges were completely unaware of this document, modified
22 this morning, Your Honour, by what you learned in your consultation with
23 Judge Agius, the Judges permitted this to happen either by action or
24 inaction. It is of no particular import, it seems, by whom this document
25 was authored. It came from Chambers, from persons who have impact on
1 the thinking of the Judges, who advise the Judges and consult with them on
2 both legal and factual matters.
3 As lead counsel in this case, I could not absolve myself of
4 responsibility for a document filed with the Trial Chamber by explaining
5 that I had not seen it before it was filed; nor should I be able to.
6 While I accept that the Trial Chamber did not know of the document, the
7 Trial Chamber must accept responsibility for it. I did not hear that in
8 the statement of Judge Agius yesterday. In fact, what the Judge said was
9 this: "The three Judges wish to state that the motion is obviously based
10 on a misconception, in that none of us, the three Judges in this trial,
11 had anything to do with the compilation, let alone the drafting, of the
12 list of possible agreed facts for consideration." I could compare that
13 statement with the minutes that you gave us this morning, Your Honour. I
14 will leave that to you. I must ask how this could have happened if the
15 Judges had nothing to do with it, although I have learned this morning
16 that the President of the Court did have something to do with it.
17 Finally, the author of this document and those responsibility for
18 distributing it obviously did not think for even a fleeting moment about
19 the impact such a document would have on the accused in this case.
20 Your Honour has spoken this morning correctly about part of the
21 mission of this Tribunal being a peace-keeping mission. You know that
22 this Tribunal has been frequently criticised both in the Serbian press and
23 in other non-Serbian highly regarded publications for being decidedly
24 anti-Serb. The numbers are difficult to explain. The award of
25 provisional release is difficult to explain in any other terms. To come
1 forward with a document that on its face would suggest to an already
2 suspicious accused that the Chamber had made conclusions regarding the
3 Sanski Most facts after hearing only two hours of testimony from one
4 witness is shocking in its complete naivete.
5 I hate to the say this, but I must speak the truth: This document
6 will haunt this case from now on. It will never be forgotten. It will
7 always be seen by the accused as a stark indication that they are not
8 receiving, and will not receive, a fair trial. That is an unfortunately
10 Nothing we do here today or in the coming days can change that
11 unfortunately reality. The perception of this Tribunal by the public will
12 change in some perceptible degree. That change has already begun. It
13 seems to me that this Tribunal now has an obligation to show the world, to
14 show these accused, that the concern for peace-keeping and peace-making
15 and fairness and impartiality is a real one. What I believe as counsel,
16 what I believe myself, Your Honour, as counsel, regarding the partiality
17 or impartiality of this Trial Chamber as presently constituted is of
18 little moment at this stage. There has clearly been an impropriety. Its
19 impact on the accused has been profound. No amount of explanation about
20 how it was a mistake, a misunderstanding, or that the Chamber did not know
21 of it, will remove it and its stain from this case.
22 I want to for just a moment make an additional statement that is
23 not part of our agreed joint statement, because I think it is appropriate.
24 The minutes of the meeting that you held with the Judges, I said at the
25 beginning, confirmed some suspicions that I had. It appears from those
1 minutes that Judges Janu and Taya had no knowledge whatsoever of any of
2 the matters contained in this motion until sometime yesterday, when they
3 were handed their copies of the motion. I think that is very unfortunate,
4 and had I known that, they of course would not have been included in this
5 motion. In the process of disposing of this motion, it may very well be
6 the appropriate disposition that those Judges be treated differently than
7 the presiding Judge who was aware of what was happening. I say that only
8 for myself and my own client, Your Honour.
9 Your Honour has invited me to discuss the law. I have not
10 prepared myself to do that. I am somewhat familiar with prior matters
11 regarding these issues as they have gone on in this Chamber because I have
12 written on them and because I was somewhat intimately involved in the
13 evidence to disqualify Judge Odio Benito. I think I can only say this:
14 That with regard to the issue of Judge Odio Benito, it was a matter that
15 arose very, very, very deeply into that trial and a matter in which no
16 showing was made, or could have been made, of actual or real impartiality
17 on the part of that Judge.
18 With regard to the matter that arose in the Furundzija case, where
19 an attempt was made to disqualify Judge Mumba, I believe the Chamber was
20 correct in the sense that mere membership on a United Nations commission
21 regarding the status of women could not reasonably be seen as a basis for
22 the disqualification of a Judge. There was no allegation of any kind made
23 against Judge Mumba that impacted her specific impartiality regarding
24 specific issues in the Furundzija case.
25 So I think these cases that have been previously dealt with by
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 this Tribunal really shed very little light beyond some sort of general
2 principles as to how the matter before Your Honour now should be treated.
3 It seems to me that this case is at an early enough stage that there may
4 be a fairly simple solution to the problem. And I will suggest that
5 solution if I am asked to, but I think it is not my place to do that
6 unless asked.
7 I appreciate being given the opportunity to address Your Honour
8 about this. I need to try to make clear to you that this was not
9 something that I think was filed irresponsibly or precipitously. I think
10 it is a very, very serious matter that goes to the very heart of what goes
11 on in this Tribunal. And I hope it will be taken as seriously as it is
12 intended to be. Thank you.
13 JUDGE SCHOMBURG: Thank you, Mr. Ackerman.
14 Madam Fauveau-Ivanovic.
15 MS. FAUVEAU-IVANOVIC: Thank you, Mr. President. I entirely
16 support what has been said by Mr. Ackerman as far as Judges Janu and Taya
17 are concerned and, in any case, it was a joint declaration. However, I
18 should like to add the following. The list of facts that has been given
19 to us shows and demonstrates profound knowledge of the facts which took
20 place in Sanski Most. I am not saying that these facts are correct or
21 incorrect, however, the fact that such a list has been composed
22 demonstrates that the author of the list has a certain opinion regarding
23 the events which occurred in the municipality of Sanski Most.
24 The knowledge of these facts was not obtained, however, in the
25 courtroom. Such a knowledge was obtained elsewhere. Rule 15(A),
1 Rules of Procedure and Evidence provides as follows: "A Judge may not sit
2 on a trial or appeal in any case in which the Judge has a personal
3 interest or concerning which the Judge has or has had any association
4 which might affect his or her impartiality." I consider that the fact
5 that an individual who -- a staff member who belongs to a Chamber has
6 knowledge of the facts demonstrates that he has some association with this
8 I have also seen the minutes of the meeting which have just been
9 given to us. In point 14, it seems that Judge Agius was not agreeable to
10 certain facts which are contained in the list which has been given to us.
11 Let me draw your attention to the fact that the list in question contains,
12 apart from the facts that Judge Agius conceded that should not have been
13 incorporated in the list, it contains the destruction of the mosque in
14 Kukavica, which is part a part of the allegations in the indictment. The
15 list also includes the transport of the dead to the Manjaca camp from
16 Krings, which is also not contained in the indictment. It also contains
17 the death of the individuals during the transport from the Sanski Most
18 sports hall to Manjaca, a fact which is also not included in the
19 indictment. I don't know how the author of this list was able to obtain
20 such knowledge.
21 I do not intend to instigate an inquiry into the issue. It does
22 not fall within my competence. I do not see how the serious facts such as
23 the death of 18 people, 20 people, and the destruction of the mosque, the
24 facts which are not contained in the indictment, can be found on this
25 list. And now we are asked to agree to these facts.
1 If the author of the list had the knowledge of these facts, if he
2 was able, he or she was able to obtain such knowledge from the statements
3 of the witnesses of Sanski Most municipality, it is inappropriate before
4 this Chamber that the Chamber should reach conclusions, should make
5 findings on the basis of the statement of witnesses who have not been
6 heard by the Chamber. It is also inappropriate to consider a statement of
7 a witness to be truthful without having heard this witness and without
8 having given the opportunity to the witness to cross-examine -- the
9 opportunity to the Defence to cross-examine the witness.
10 At any rate, it is inappropriate for a Chamber, be it a Judge or
11 a member of the Chamber, to ask from us to recognise the facts, to agree
12 to the facts which are not contained in the indictment. If it is in the
13 interest -- if the purpose is to expedite the proceedings and the
14 Chamber considers there should be no hearing on such facts, then they
15 should have asked the Prosecutor not to call evidence concerning the facts
16 which were not contained in the indictment, and not to ask the accused to
17 agree to such facts.
18 JUDGE SCHOMBURG: Merci. Before I give the floor to Office of the
19 Prosecutor to be very precise on the limits of the motion before us, is it
20 my correct understanding that the Defence counsels' intent to withdraw the
21 motion as regards Judge Janu and Judge Taya?
22 MR. ACKERMAN: Yes, Your Honour.
23 MS. FAUVEAU-IVANOVIC: Yes, Mr. President.
24 MR. ACKERMAN: Based upon your conversations with them, it is
25 clear that they had absolutely nothing to do with this.
1 JUDGE SCHOMBURG: Thank you for this. And then we can have the
2 contribution of the Office of the Prosecutor, limited to the remaining
3 part of the issue. Thank you.
4 MR. ACKERMAN: Excuse me, Your Honour. I am sorry. I had told
5 Judge Agius yesterday that I would tell you straightaway today that we
6 also have no objection to the Trial Chamber as presently constituted
7 continuing to hear this case during the pendency of this motion.
8 JUDGE SCHOMBURG: : This was already part of my order yesterday.
9 Thank you.
10 MS. KORNER: Your Honour, I want to deal first of all, because it
11 is the simplest, with what Ms. Fauveau has just said about the facts that
12 were put into this document. She said, and I have said this before to
13 her, that it doesn't appear in the indictment the Krings issue. We have
14 always made it clear that what was put into the indictment was not all the
15 incidents about which we were going to lead evidence, because there were
16 so many of them. We specified the major incidents at the request of Judge
18 It was clear, not only from the evidence but from the pre-trial
19 brief, and we have turned it up and it is in the part that deals with
20 Sanski Most, where we make it absolutely clear that we are going to be
21 leading the evidence about that. And I should imagine, as that is a
22 public file document with the Chamber, that that is where these facts were
23 taken from.
24 Can I come back to the very real issue in this case. I attempted
25 yesterday, in a lengthy explanation, really for the benefit of the
1 accused, what such a document was intended to achieve. And I don't
2 propose to go through it again because they had me say this yesterday.
3 Mr. Ackerman has said, as he said yesterday and in the conference that was
4 held with Mr. Harmon - with Mr. Von Hebel, I'm sorry - that everyone
5 should consider the impact on the accused.
6 Your Honour, I have to say that I am surprised that counsel of
7 the experience of Mr. Ackerman and Ms. Fauveau, who are both trusted by
8 their clients - because there has been a number of discussions about
9 representation during the course of this trial - were unable to explain to
10 their clients what has been so obvious right from the beginning and is
11 obvious to both Defence counsel: First, that this was not, clearly, at no
12 stage, any expression of any bias or belief by the Trial Chamber that
13 these facts that were set out, and I quote, "for consideration, to
14 consider the facts for discussion," was any type of expression of their
15 finding of fact.
16 In addition to which, Mr. Ackerman told Your Honour that this was
17 after hearing two hours of evidence. At the time that this list was
18 handed out to counsel, not one word of evidence in respect of Sanski Most
19 had been heard because the witness who is now testifying had not yet
20 started to testify. And so clearly that cannot be right, and that is why
21 I say that I am surprised that this was not explained to the two accused
22 properly by their own counsel.
23 It is clear that these facts were written for consideration. That
24 is repeated again. And it is equally clear that what the Chamber through
25 its legal officers was attempting to do, as has been made clear in
1 numerous discussions both before Judge Hunt and the Trial Chamber as it
2 is now constituted, or Judge Agius when he was acting as Pre-Trial Judge,
3 that in a case which involves the superior responsibility of the accused
4 where, because they have no personal knowledge or evidence to contradict
5 evidence of crimes in which it is not alleged they personally took part,
6 in order to try and reduce the trial to manageable proportions, which is
7 in the interest of the accused, as I explained yesterday, it is possible
8 and it is universal, I think, in all jurisdictions that facts which are
9 not disputed do not specifically have to be proved by the calling of
11 Now, what happened, and it is clear to everyone and Defence
12 counsel have made it clear that they accept it, is that part of the staff
13 or someone on the staff prepared a set of facts for consideration arising
14 from what was said in the pre-trial brief, which they thought it was
15 possible to discuss and see if their agreement to be reached. They put
16 down facts clearly on which, had they known, had they followed the
17 progress of events for the last two and-a-half years, were never likely to
18 be agreed, namely, for example, that General Talic accepted that he was a
19 member of the ARK Crisis Staff.
20 Even if it was never likely to be agreed, what is the problem with
21 saying, however politely or impolitely it is put, of course we can't agree
22 that that is a matter which is in dispute.
23 It is the Prosecution's submission that regrettably, and maybe for
24 reasons that are somewhat outside this, the way this motion is put, this
25 matter has been blown up out of all proportion. Your Honour, it would
1 seem to the international community that one of the major efforts that
2 should be achieved by Judges of this Tribunal is that the trial should be
3 kept manageable, be dealt with expeditiously, and that people who are
4 awaiting trial in this Tribunal - if the press are right, more are likely
5 to arrive - should be able to stand trial as soon as is proper within the
6 interest of justice. And there is nothing wrong with the preparation of
7 such facts for discussion.
8 It is open at any stage for the Defence to say we will not or we
9 cannot agree these particular facts. But there has already been agreement
10 reached in respect of a particular witness who was called some fortnight
11 ago now, where both counsel got up in terms and said that they were not
12 going to dispute the killing, that this witness had been called to testify
13 about. And there was discussion that there had been, perhaps we can say
14 it was a misunderstanding by the Prosecution, but we had not understood
15 that it was unnecessary to call this witness and, indeed, there was
16 discussion about whether or not in future the Defence could make it
17 absolutely clear, in advance, what evidence they were not disputing from
18 particular witnesses.
19 So I have to say Your Honours, again, that I find it a little
20 difficult to understand why these two Defence counsel were unable to
21 explain to their clients how this document had been drafted when it jumped
22 out at everyone.
23 Now, Your Honour, I am going to turn to the law. I am a little
24 surprised that Mr. Ackerman wasn't prepared because I raised it with him
25 yesterday that there was authority that I proposed to refer to. Before I
1 do that, Your Honour, I have no doubt that Your Honour will be impressed
2 by what I can only call an inter alia approach taken by Mr. Ackerman,
3 namely, that this trial will be prolonged because it is unlikely that he
4 will be able to enter into any agreement on any facts in the light of
5 this, or that nothing about this document can be forgotten. These are, I
6 imagine, statements made for public consumption but in our submission do
7 not assist on the criteria that Your Honour has to apply, now reduced to
8 the question of Judge Agius remaining on this trial.
9 Your Honour, if one starts with the two Rules that Your Honours
10 have already referred to, Rule 15, "A Judge may not sit on a trial or
11 appeal in any case in which the Judge has a personal interest," that
12 doesn't seem to be the matter that is raised, "or concerning which the
13 Judge has or has had any association which might affect his or her
14 impartiality," and I imagine, although it's not very clearly expressed in
15 the motion, that it is based on that.
16 And then Rule 15(B), the application. Your Honour, this matter
17 has been considered on our researches in this Tribunal on three separate
18 occasions. I don't know whether Your Honours has been given or has
19 already got a copy of a decision in the Prosecutor versus Delalic and
20 others on the 25th of October, 1999. It was a decision of the Bureau. We
21 can hand, I think --
22 JUDGE SCHOMBURG: It is before me.
23 MS. KORNER: Your Honour has it. I am grateful.
24 THE INTERPRETER: Microphone, please.
25 MS. KORNER: On the 21st of July, the case of the Prosecutor
1 against Furundzija, which was an Appeals Chamber decision and where there
2 was a consideration of all the authorities and then, finally, on the 18th
3 of May last year -- I'm sorry, 2000, so two years ago nearly, in this
4 particular case, Brdjanin and Talic. Does Your Honour have a copy of all
5 three? I am grateful.
6 Your Honour, if one starts with what is generally known as the
7 Celebici case and that decision, Delalic and others, this was a motion
8 that Judge Odio Benito should be disqualified from presiding on the basis
9 that she had been appointed the Vice President of Costa Rica. And it was
10 a discussion of the applicable law which began at page 5, paragraph 6:
11 The issue of the grounds of disqualification of a Judge from sitting in a
12 particular case. And they then quoted the Statute in the following
14 Your Honour, I am going to go straight to paragraph 10, where
15 they dealt with the two issues. There may be some overlap between the two
16 issues, that is to say whether the Judge is disqualified for reasons of
17 the two matters set out in Rule 15. This may happen when a party to a
18 trial or appellate proceedings claims that the fact that the Judge is
19 sitting in that case has engaged in political, administrative or
20 professional activities which entails the consequence that this Judge
21 has a personal interest in the case or has some association with the case
22 causing the Judge to be biased and hence to lack the required
23 impartiality. Clearly, in this case, the party raising the issue of
24 disqualification must show that the alleged incompatibilities with the
25 judicial function are such as to bring about a lack of impartiality in the
1 case at issue. In other words, that party must show a link between the
2 activity allegedly incompatible with the judicial function and the
3 particular case at issue.
4 It would not be sufficient for that party to claim merely that
5 the Judge in question is exercising a political, administrative or
6 professional activity incompatible with his or her judicial functions.
7 And, in fact, the Judges ruled that the defendants, the accused in this
8 case, had failed to demonstrate that. But I emphasise that the burden
9 lies squarely on the applicant to show that there is good reason why a
10 Judge should not continue to sit.
11 Your Honour, if one turns to the case of Furundzija, decided by
12 the Appeals Chamber on the 21st of July, 2000. This related again to
13 Judge Mumba, who seems to be somewhat unfortunate as far as these motions
14 are concerned. This was, as Mr. Ackerman has rightly stated, the question
15 of whether her activities in a particular woman's organisation
16 disqualified her. If one goes straight to paragraph 177, which dealt with
17 the Article 13 of the Statute, providing that the Judges of the
18 International Tribunal shall be persons of high moral character,
19 impartiality and integrity.
20 Going then on to 55, I think, but paragraph 179: "Interpretation
21 of the fundamental human right of an accused person to be tried by an
22 impartial tribunal is carried out by considering situations in which it is
23 alleged that a Judge is not or cannot be impartial and therefore should be
24 disqualified from sitting on a particular case. A two-pronged approach
25 appears to have developed. Although interpretation on a national or
1 regional level is not uniform, as a general rule, courts will find that a
2 judge might not bring an impartial and unprejudiced mind to a case if
3 there is proof of actual bias or of an appearance of bias." And in fact,
4 of course, it was actually decided after the Talic decision because that
5 comes straight from the Talic decision, so I should have dealt with that
6 one first.
7 Your Honour, they then went on to say, "The appellant acknowledges
8 that he makes no claim that Judge Mumba was actually biased." And indeed,
9 as I understand it, neither accused counsel alleges that Judge Agius is
10 biased. What is suggested is that by the fact of his knowledge that
11 something like this document was to be handed to us, he has given some
12 kind of indication of bias, and as I have already said, any common sense
13 reading shows this just cannot be so.
14 Your Honour, if one goes in the Furundzija judgment to paragraph
15 182: "In considering subjective impartiality, the Court has repeatedly
16 declared that the personal impartiality of a Judge must be presumed until
17 there is proof to the contrary. In relation to the objective test, the
18 Court has found that this requires that a Tribunal is not only genuinely
19 impartial, but also appears to be impartial. Even if there is no
20 suggestion of actual bias, where appearances may give rise to doubts about
21 impartiality, the Court has found that this alone may amount to an
22 inadmissible jeopardy of the confidence which the Court must inspire in a
23 democratic society.
24 The Court considers that it must determine whether or not there
25 are ascertainable facts which may raise doubt as to impartiality. In
1 doing so, it has found that in deciding," and the quote is given, and this
2 comes from a human rights case called Housechild, I think, something like
3 Housechilde, "whether in a given case there is legitimate reason to fear
4 that a particular Judge lacks impartiality, the standpoint of the accused
5 is important, but not decisive. What is decisive is whether this fear can
6 be held objectively justified. Thus one must ascertain, apart from
7 whether a Judge has shown actual bias, whether one can apprehend an
8 appearance of bias."
9 Your Honour, in our submission, this is, as it were, squarely on
10 all fours. Mr. Ackerman says that the two accused cannot understand this.
11 I have already dealt with the inability to fully comprehend why
12 experienced counsel couldn't explain this. But in any event, having heard
13 discussed in open court in front of them - and digressing for a moment,
14 Your Honour, that is why we thought it important to have this hearing so
15 that the accused can be present. Having heard the discussion, having
16 heard what is being said, Your Honours, we submit that any fears that they
17 may have had must be allayed by what they have heard discussed and what
18 Your Honours -- what Your Honour has told them.
19 Your Honour, the discussion then went on to look at the various
20 Rules arising from the various jurisdictions: From the United Kingdom,
21 real danger of bias rather than a real likelihood, finding it is
22 unnecessary in formulating the appropriate test to require that the Court
23 should look at the matter through the eyes of a reasonable man because the
24 Court has first to ascertain the relevant circumstances from the available
25 evidence, knowledge of which would not necessarily be available to an
1 observer in Court at the relevant time. And it goes on to say that other
2 common law jurisdictions have rejected this test as being too strict.
3 And then Webb and the South African Rugby Football Union case,
4 again, which was Human Rights case, I think, say that -- use the
5 reasonable person as the arbiter of bias, investing him with the requisite
6 knowledge of the circumstances before an assessment as to impartiality can
7 be made. I'm sorry, it was the Supreme Court of South Africa that dealt
8 with the football case. They dealt with the Australian authorities. And
9 then at paragraph 188, the German code of criminal procedure, which I
10 wouldn't have the temerity to address Your Honour on.
11 Finally, the standard to be applied by the Appeals Chamber which
12 is at paragraph 189 onwards, "Having consulted this jurisprudence, the
13 Appeals Chamber finds that there a general rule that a Judge should not
14 only be subjectively free from bias, but also that there should be nothing
15 in the surrounding circumstances which objectively gives rise to an
16 appearance of bias. On this basis, the Appeals Chamber considers that
17 following principle should be directed interpreting and implying the
18 impartiality requirement of the Statute. A Judge is not impartial if it
19 is shown that actual bias exists. No such bias has been shown or is
21 B, there is an unacceptable appearance of bias if, one, a Judge
22 is a party to the case or has a financial or proprietary interest in the
23 outcome of a case or if the Judges decision would lead to the promotion of
24 a cause in which he or she is involved together with one of the parties.
25 Under these circumstances, a Judge's disqualification from the
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 case is automatic. Or, two, the circumstances would lead a reasonable
2 observer, properly informed, to reasonably apprehend bias. In terms of
3 the second branch of the second principle, the Appeals Chamber adopts the
4 approach that the reasonable person must be an informed person with
5 knowledge of all the relevant circumstance including the traditions of
6 integrity and impartiality that form a part of the background and apprised
7 also of the fact that impartiality is one of the duties that Judges swear
8 to uphold.
9 Your Honour, the reasonable observer informed of the facts that in
10 an effort to manage a long and complex, heavily documented, weighty trial,
11 the Presiding Judge attempted to find some method through the legal
12 officer whereby the parties could discuss and reach agreement on certain
13 facts in the case, but through some perhaps not particularly good
14 draftsmanship which it might be said, I suppose, that the Judge to that
15 limited extent, perhaps, should have exercised the right to correct,
16 attempted to draft matters for discussion could in any way be said to be
17 not impartial or biased towards the accused. And I should add, as I said
18 yesterday, Judge Agius, when he was discussing this in one of the earlier
19 conferences, said that in no way would any agreement on facts that need
20 not -- that might not be in issue in any way suggest the guilt or any
21 admission of culpability by the accused.
22 Your Honour, we submit -- and, Your Honour, I think that is the
23 test because the rest deals with the particular application to Judge
24 Mumba. Your Honour, unless Your Honour would like me to go through the
25 Brdjanin and Talic decision, in fact, I think most of the principles were
1 covered by this.
2 Your Honours, our submission is a very simple one and I said it
3 before and I will say it again. Not only has no bias been alleged or
4 demonstrated, but on the facts of this case, they cannot be said to be any
5 impression given that there could be bias or anything to take away from
6 the principal that justice must not only be done but be seen to be done.
7 Your Honour, unless there is any other aspect that you would like me to
8 address you on, those are our submissions.
9 JUDGE SCHOMBURG: Not on the moment, but thank you. I should
10 give the opportunity for an answer of course to the Defence counsel.
11 Please understand that I can't go into any substantive points. May I only
12 add two words I still have in my mind from the contributions of the
13 parties. First of all, the word proportionality should be one main factor
14 of that what is contributed here. And as I said before, having been
15 involved myself as a Defence counsel in situations in that you are right
16 now, having submitted myself motions on the disqualification on Judges, I
17 must admit that to a certain extent I can understand your point. That
18 doesn't mean that I share your view. But please one thing I wanted to ask
19 you, you said this document this will never be forgotten.
20 I believe in life and in courtroom that is a part of life. We
21 should never proceed with the idea something will never be forgotten,
22 something will never be forgiven. We are all human beings making
23 possibly the one or other mistakes. But please I appreciate to hear your
24 additional comments.
25 MR. ACKERMAN: You have clearly pointed out that that point needs
1 some clarification, Your Honour, and I will give it to you. What I mean
2 when I say to you, "that document will never be forgotten," I look back at
3 the Celebici case which started, I believe, in the spring of 1998 and the
4 case is still going on. I see this case still going on perhaps in the
5 Appeal Chamber four or five years from now, and this document remaining a
6 part of the issues in the case throughout that entire period. There is no
7 way for me to predict what this document will mean outside this trial --
8 this Tribunal. I don't know. So when I say it will not be forgotten, I
9 say it will affect and haunt this case throughout its life.
10 I do want to comment if you will permit me just very briefly on a
11 couple of things Ms. Korner said to you. She first said that the
12 International Community is interested in trials being held here in a
13 manageable and expeditious way. And I agree with that. But that is a
14 secondary consideration. The first consideration of the International
15 Community is that the trials here be fair and impartial and be seen to be
16 fair and impartial. It is not enough just that justice be done, but
17 justice must be seen to be done.
18 I think this case changed rather dramatically this morning. What
19 Ms. Korner said to you was the case until this morning about the factual
20 basis for our motion, this is not easy for me. Yesterday, in open court,
21 Judge Agius said, "None of us, the three Judges in this trial, had
22 anything to do with the compilation, let alone the drafting of the list of
23 possible agreed facts for consideration."
24 This morning, as a result of your meeting with the Judges, we
25 learned that Judge Agius instructed the staff to consult with parties
1 through this pre-municipality meeting and try to identify with the parties
2 facts on which they could possibly agree. Paragraph 13, Judge Agius was
3 provided a memo on the pre-municipality meeting one day before that
4 meeting. That memo included also a possible list of agreed facts that was
5 not identical to the one distributed to the parties inter alia. The
6 heading of the document did not appear in the memo provided to Judge
7 Agius. Although it is a bit ambiguous, Your Honour, it appears that the
8 facts that appeared in the memo distributed to us were in the memo
9 received by Judge Agius and it was only the heading, the preamble to the
10 document, that was not there. I believe and I suggest to you that the
11 things Judge Agius has told you in your meeting with him differ rather
12 significantly from what he told us in open court yesterday. And I think
13 that raises additional concerns that Your Honour needs to address. Thank
15 JUDGE SCHOMBURG: Madame Fauveau.
16 MS. FAUVEAU-IVANOVIC: Mr. President, I am quite surprised that
17 Ms. Korner tells us what is the problem to say that we do not agree that
18 General Talic was a member of the Crisis Staff. In fact, I wouldn't have
19 had this problem if this was coming from the Prosecutor, but I do know
20 that the Prosecutor would never have asked this question. Because
21 however paradoxical it sounds, the Prosecutor looks at our motions and
22 reads them and listens to us. But this person who wrote this has never
23 read any of our conclusions, any of our lists, has not read anything or
24 has not been listening to us during the hearings, and this is a great
25 worry to us.
1 As far as the facts that are concerned that are not in the
2 indictment but are linked to the trial, in the pre-trial brief, I would
3 like to say two things. The first thing is that this, the Appeals Chamber
4 of this Tribunal, in the Kupreskic case, said clearly that that person can
5 only be tried for the facts that are alleged in the indictment. And
6 another remark concerns exactly the impartiality. If a person who comes
7 from the Chamber could have taken this as truth without giving us the
8 possibility to contradict it, the content of the Prosecution
9 pre-trial brief, this is clearly a very clear signal
10 of partiality, of bias.
11 JUDGE SCHOMBURG: Thank you. Before coming to a break, I want to
12 ask the Defence counsels to be prepared to address also the point made by
13 the Office of the Prosecutor whether or not a possible negligence or
14 omission can amount to a reason of disqualification, can amount to a
15 Judge's being biased. This may be -- I can't at this point in time decide
16 what will be the actual and most important issues, but this may one
17 question and therefore I would ask you to address this as well. And in
18 addition, because it was said in Furundzija that the standpoint of the
19 accused is not decisive, but is important. I invite also the accused
20 themselves to speak to the court if they so want. And you may discuss
21 this issue during the break with your clients. We will adjourn and resume
22 at 11.30.
23 --- Recess taken at 11.00 a.m.
24 --- Upon resuming a 11.30 a.m.
25 JUDGE SCHOMBURG: We come back to the very serious issue before
1 us, and once again before giving you the floor, I want to emphasise that
2 we have to be aware of the tests to be applied and this is first of all
3 whether in a given case there is legitimate reason to fear that a
4 particular judge lacks impartiality. The standpoint of the accused is
5 important, but not decisive. What is decisive is whether this fear can be
6 held objectively justified. And therefore let me briefly address this
7 question once more.
8 I know this is only part and only one element of the entire issue,
9 but please understand that I have learned from a point of view of a
10 Defence counsel, it is sometimes better to know what is in the Judge's
11 head instead of being surprised later on the outcome of a decision. I
12 regard this is a part of the right to be heard. And therefore, as I said
13 before, having compared once again yesterday's statements and the minutes
14 of today, one could say that indeed Judge Agius was aware that, in
15 quotation marks, "something" should be presented to the parties on agreed
16 facts, but it remains he never saw the incriminative document. Isn't it
17 right that the possible problem comes down to the question, how is it
18 possible that this incriminated document came into the hands of the
19 parties? Shouldn't it be cross-checked before by the presiding Judge?
20 Isn't this more or less - I have to be cautious myself - negligence or an
21 omission? Can this really amount to being biased?
22 Shouldn't it also be taken into account that reading very
23 carefully yesterday's statement and the statement of today, being aware of
24 his duty to certain kind of loyalty against the staff, though having not
25 read the incriminated document, clearly dissociated himself from this
1 document? I would appreciate if you would comment on these additional
3 MR. ACKERMAN: The first thing I think, Your Honour, is you have
4 made it clear that from your own experience you have some understanding of
5 the difficulty that I face with regard to dealing with this situation and
6 I appreciate that very much. It is true, of course, that one can read the
7 statement of Judge Agius yesterday as a statement of loyalty, not just to
8 the staff, but to the other two Judges who obviously were completely taken
9 aback and surprised by receiving the motion yesterday and the document
10 attached to it.
11 On the other hand, Your Honour, you must also recognise that this
12 was not a private statement made by the Judge, but a public statement made
13 by the Judge regarding his own knowledge and participation with regard to
14 this document. And it certainly does differ from what he has told you a
15 day later.
16 Your question about can negligence ever form the basis for
17 disqualification, I don't know that any court in the world has ever
18 answered that question. It is an important question and an interesting
19 question. I think that the presiding Judge of a Trial Chamber must be
20 viewed very much like the captain of the ship. It may be that it was a
21 mistake for the person manning the machine-gun to fire on the lifeboat.
22 And it may be that the captain of the ship neither knew that would happen
23 nor directed that it happen, but the perception of the people in the
24 lifeboat is the same.
25 And I think that is the point here. Judge Agius is captain of
1 that ship and it happened on his watch and should not have, and he admits
2 that it should not have happened. The fact that it did changed the face
3 of this case. Now, whether it changed the face of this case to such an
4 extent that something must be done about it is a matter that is in, what I
5 believe to be, your very capable hands, Your Honour.
6 We are, to continue the naval analysis, sailing in uncharted
7 waters to some extent. I think we should sail carefully. And I hope that
8 I am doing that, and I have every confidence that you will. Before the
9 break you suggested that we consult with our clients to see if they wanted
10 to address you regarding this matter. I have done that. I think
11 Mr. Brdjanin would like to make a very brief statement to you. And if I
12 have not answered your question as completely as you would like, please
13 let me know and I will try to do better. Thank you.
14 JUDGE SCHOMBURG: Madame Fauveau. Please, first, Madame Fauveau.
15 MS. FAUVEAU-IVANOVIC: I fully support what my colleague
16 Mr. Ackerman has said.
17 JUDGE SCHOMBURG: Before coming to the statements of the accused,
18 I once more want to point out what are, in a comparative international
19 approach, first of all, the tests applied. And the tests applied, they
20 all, first of all, quote: "That on the basis of the additional facts
21 provided, that is concreto the statement yesterday, the minutes of today,
22 that on the basis of the additional facts provided, can a responsible
23 observer, an objective or neutral layman and/or accused not learned in the
24 legal sciences, still believe in the impartiality of a Judge?" This is a
25 question and I would appreciate to get an answer from Mr. Brdjanin and
1 General Talic, not before I have, as it is usual, to tell them, that it is
2 of course your right to remain silent, but you have to be aware that every
3 word in the courtroom may be used as evidence, even as evidence against
4 you. So it is only your right to speak. If you so want, Mr. Brdjanin,
5 please do so.
6 THE ACCUSED BRDJANIN: Your Honour, this is the first time that I
7 am witnessing a trial and it happens to be my trial. I have had, of
8 course, opportunity to see it on TV and on film. As you have indicated,
9 it is a rather technical matter for me, but if I may, I should like to say
10 the following: The conclusions and the findings reached must be true.
11 With my counsel, as it was who was appointed two years ago, I discussed
12 everything and I have always been quite satisfied. However, once this
13 trial started, I have had certain reasons for doubt. Not regarding the
14 counsel, but the fairness of the trial. I would like -- I wish I were
15 mistaken, but let me take this example. Let me explain to you what
16 happened with the document.
17 When it arrive yesterday, I said, "Mr. Ackerman, that it seems
18 that my doubts were not fully and justified." I know that this can be
19 used against me, but I have to say that it was my impression, my
20 impression. I have to emphasise that what I learned from films is
21 actually true, that the Judges do not only want to establish the truth. I
22 accept that -- I expect that the Judges place the utmost importance on the
23 truth, regardless of what the Prosecutor say. My first counsel, my
24 co-counsel was thrown out because of certain doubts, certain allegations,
25 that he was not telling the truth, then I can go on with many such
1 examples, but as I said, I am a lay person when it comes to these matters.
2 It all comes down to the fact that I do not think, I do not
3 believe that I will receive a fair trial.
4 MR. ACKERMAN: Excuse me, Your Honour, what Mr. Brdjanin is saying
5 to you is not being translated appropriately.
6 THE INTERPRETER: If Mr. Brdjanin could be kindly asked to slow
8 JUDGE SCHOMBURG: Probably the problem can be resolved --
9 THE INTERPRETER: The interpreters have problems following
10 Mr. Brdjanin. If he could please slow down.
11 JUDGE SCHOMBURG: If Mr. Brdjanin is slowing a little bit down,
12 but also the Judges can understand him or that I can understand you in a
13 language I understand. If you could slow down. Please repeat your last
14 sentences. It was on the first counsel.
15 THE ACCUSED BRDJANIN: I have lived to see my co-counsel
16 eliminated. To see my second investigator with a large amount of
17 experience was not appointed to be another co-counsel, and now we are
18 looking for a third solution. I have lived to see many things that have
19 increased my doubts in the fairness of the trial and that in the doubt of
20 my right to a fair trial. Now, that is what I wanted to demonstrate here
21 and that is why I believe -- I agree with Mr. Ackerman what he just said,
22 but I would like to emphasise again, that throughout this time it was Mr.
23 Ackerman who was telling me that I was not right to have these doubts, but
24 now this document has proved that I have been right, that I could not just
25 come to the trial quietly and expect to have this trial before the
1 International Tribunal, which is open and public. I cannot skip this and
2 so I will finish. I believe -- I believe that in this case, in our case,
3 there will be more protected witnesses than in other cases. All of this,
4 in my mother submission, is not legally based but all this has brought to
5 my opinion, to my viewpoint, and Mr. Ackerman has pointed out exactly what
6 I think, and I would like to -- I would have preferred if this hadn't
7 happened, and if I hadn't had the opportunity to come and to reach such
8 conclusions. Thank you very much.
9 JUDGE SCHOMBURG: Thank you.
10 General Talic, do you want to make a statement?
11 THE ACCUSED TALIC: [Interpretation] Your Honour, I do not wish to
12 make a statement.
13 MS. FAUVEAU-IVANOVIC: Mr. President, as representative of --
14 Defence counsel of General Talic, I would like to say, if we didn't have
15 doubts on the impartiality of the Chamber, we would not have submitted
16 this motion. The problem is not how this document came into our hands,
17 and it arrived into our hands in a very simple manner: It came directly
18 from the Chamber. It was communicated to us personally by one of the
19 legal officers of the Chamber. But that is not important. What is
20 important is how such a document could have been written.
21 This document speaks for itself. This document is irrefutable
22 proof, and it now has become public, of the partiality of one of the
23 Judges who is sitting on the Chamber.
24 JUDGE SCHOMBURG: Contributions from the OTP?
25 MS. KORNER: I am really sorry to have to say this, but I think
1 particularly this last contribution from Madame Fauveau is a deliberate
2 refusal to listen to the explanations that have been given by the Judges
3 and by everyone.
4 Your Honour, if I may respectfully say this, it seems to me that
5 what concerns Mr. Brdjanin is not this particular document but the fact
6 that co-counsel in this case has been suspended and that, as I say, I
7 imagined, on behalf of the Prosecutor, that there was more to this than
8 met the eye. The accused has already expressed his anxiety at an
9 investigation that has been launched and is being carried out by the
10 Registry into certain aspects of co-counsel's behaviour. And it seems
11 to us that effectively he hasn't dealt with whether he now understands the
12 situation now that it has been explained to him. And in response to Your
13 Honour's questions to Defence counsel as to whether negligence, if it is
14 negligence, can amount to a basis for disqualification, Your Honours, our
15 submission is, no, not on the authorities, not on the clear wording of the
16 Statute and the Rules.
17 JUDGE SCHOMBURG: Before concluding, I want to point out that, of
18 course, we have to remain in the framework of proportionality and I was
19 interested on the statements of the two accused, and what I heard from
20 Mr. Brdjanin was, first of all, the fear of impartiality or partiality -
21 better - of the entire proceedings, but nothing precisely on the alleged
22 partiality of Judge Agius, and as regards the comments of -- I say this
23 once again to give you another possibility if you so want to add
25 The contribution Madame Fauveau was, to put it very frank, on the
1 partiality of a document but not of a Judge, and I know this is a very
2 difficult situation and of course everybody, and I emphasise "everybody"
3 in the entire Tribunal, would have appreciated if this document never had
4 appeared. It's evidently the expression of the enthusiasm of the one -- I
5 didn't investigate it -- of the one or other member of the staff. But
6 please correct me. The basis before me does not prove that Judge Agius
7 was aware and authorised the publication of this unfortunate document, I
8 must say.
9 In concluding already, at university, and it was a very good
10 guidance throughout my life - at that time I was a defence counsel - my
11 highly estimated professor always told me, it is good to warn judges that
12 they may be biased, that they may give the impression to be biased and to
13 threaten with a motion on disqualification, and if there is an additional
14 necessity, file such a motion, but never let it be decided. And I believe
15 there is some truth in it because we all are, and should be, interested
16 that we have also internal peace in courtroom.
17 And therefore my serious question is to the Defence counsels: On
18 the basis what you have seen yesterday and today and also take into
19 account, though not being responsible for this, but acting on behalf of
20 the entire Tribunal, take -- please take my apologies what has happened
21 here with this unfortunate document.
22 MR. ACKERMAN: I think you just asked me if I accept your
23 apologies. And, of course, I do. I accept your apologies with what
24 happened with the document. It should not have happened. We both agree
25 with that.
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 JUDGE SCHOMBURG: So there is no intention at all, I understand,
2 to withdraw the motion?
3 MR. ACKERMAN: I cannot withdraw the motion. I absolutely cannot.
4 This motion should be granted. In the interest of the future of this case
5 and justice, it should be granted. There is a simple way to deal with
6 this and I'd be happy to tell you what it is, in my mind, and I have told
7 you that before.
8 JUDGE SCHOMBURG: Then the parties will as soon as possible
9 receive a decision in writing, first of all, as you know whether or not to
10 transfer the case to the Bureau or not. Unfortunately, I can't indicate
11 today when this will be, but as I said already in my decision yesterday,
12 please continue, first of all in the interest of justice, and
13 in the interest of the witness brought to The Hague with the case to be
14 heard this afternoon and in the following days.
15 MS. KORNER: Just in case Your Honour wasn't aware, the Brdjanin
16 and Talic case is not sitting at all next week. So maybe that will give
17 Your Honour the opportunity to deliver a judgment.
18 JUDGE SCHOMBURG: Whenever it will come out. Until then, the
19 hearing may continue as it was scheduled. We adjourn.
20 --- Whereupon the Motion Hearing
21 adjourned at 12.00 p.m.