Tribunal Criminal Tribunal for the Former Yugoslavia

Page 9915

1 Thursday, 19 September 2002

2 [Motion Hearing]

3 [Open session]

4 [The accused entered court]

5 [The accused Talic not present]

6 --- Upon commencing at 2.33 p.m.

7 JUDGE AGIUS: Madam Registrar.

8 THE REGISTRAR: Good afternoon, Your Honours. May I call the case

9 number?

10 JUDGE AGIUS: Yes, please. Please proceed.

11 THE REGISTRAR: And the case number is IT-99-36-T, the Prosecutor

12 versus Radoslav Brdjanin and Momir Talic.

13 JUDGE AGIUS: Thank you.

14 My monitor as yet, at least, is -- I did press -- yeah, and I

15 pressed it already. Oh, yes. It's coming now.

16 Okay. Mr. Brdjanin, can you hear me in a language that you can

17 understand?

18 THE ACCUSED BRDJANIN: [Interpretation] Good day. Yes, I can hear

19 you in a language that I can understand.

20 JUDGE AGIUS: Good afternoon to you. And thank you.

21 Appearances for the Prosecution.

22 MS. KORNER: Joanna Korner, assisted by Denise Gustin, case

23 manager. Good afternoon, Your Honours.

24 JUDGE AGIUS: Good afternoon to you.

25 Appearance for Radoslav Brdjanin.

Page 9916

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

2 with Milan Trbojevic and Marela Jevtovic.

3 JUDGE AGIUS: Good afternoon to you.

4 Appearances for General Talic.

5 MR. ZECEVIC: Good afternoon, Your Honours. Slobodan Zecevic and

6 Natasha Ivanovic-Fauveau for General Talic.

7 JUDGE AGIUS: I notice, Mr. Zecevic, that your client is not

8 present today.

9 MR. ZECEVIC: That's right, Your Honours.

10 JUDGE AGIUS: Do we have his consent to proceed in his absence?

11 MR. ZECEVIC: Yes. Yes, we do. Thank you.

12 JUDGE AGIUS: And may I take this first opportunity I have to

13 congratulate you, Mr. Ackerman, and you, Mr. Zecevic, for your respective

14 appointment as president -- first president and first vice-president of

15 the newly formed Defence Attorneys Association.

16 MR. ACKERMAN: Thank you, Your Honour. I appreciate that.

17 MR. ZECEVIC: Thank you, Your Honour.

18 JUDGE AGIUS: It's an honour which I'm sure you both deserve.

19 Thank you.

20 [Trial Chamber and registrar confer]

21 JUDGE AGIUS: I am informed that the representative of the FRY has

22 just arrived. I suppose we can proceed with admitting him in the

23 courtroom straight away. Any objection to that or anything you would like

24 to raise before -- okay.

25 Please, usher.

Page 9917

1 I think we need two chairs.

2 Good afternoon to you.

3 MR. CARIC: Good afternoon.

4 JUDGE AGIUS: Yes. I see that you are prepared to address us.

5 Could I kindly ask you to repeat your name again for the record, please,

6 and your capacity.

7 MR. CARIC: Your Honour, distinguished member of the court.

8 JUDGE AGIUS: You may sit down, by the way.

9 MR. CARIC: Thank you. Thank you, Your Honour.

10 Your Honour, distinguished member of the court, my name is

11 Slavoljub Caric, and I am the councillor of the Embassy of FRY, and I will

12 present the explanation of guarantees of government of the Federal

13 Republic of Yugoslavia in the case of Mr. Talic for provisional release of

14 him.

15 JUDGE AGIUS: You may proceed. Thank you.

16 MR. CARIC: Thank you very much.

17 Let me read --

18 JUDGE AGIUS: Before you --

19 MR. CARIC: -- the explanation in Serbian.

20 JUDGE AGIUS: Before you proceed, may I ask the gentleman who is

21 sitting to your right to introduce himself and ask him also whether he

22 will be addressing this Chamber.

23 You may sit down. You may remain seated.

24 [Interpretation] Thank you. Your Honours, my name is Miodrag

25 Panceski, I'm the first secretary of the Embassy of the Federal Republic

Page 9918

1 of Yugoslavia in The Hague. I'm here before you to help colleague Caric

2 present the guarantees of the Federal Republic of Yugoslavia. Allow me to

3 inform you that in this case only my colleague Mr. Caric shall present --

4 shall address you. Thank you.

5 JUDGE AGIUS: Thank you. Mr. Caric, you may proceed. Thank you.

6 MR. CARIC: Thank you.

7 [Interpretation] The Federal Republic -- the federal government of

8 the Federal Republic of Yugoslavia in the Momir Talic case, which is being

9 conducted in front of the International Criminal Tribunal for the former

10 Yugoslavia, under IT-99-36/1 suggests that the above-mentioned person be

11 provisionally released in order to undergo medical treatment at the

12 military academy -- at the Military Academy Hospital in Belgrade. And we

13 undertake, if the Trial Chamber should render a decision according to

14 which the accused Momir Talic may be allowed to defend himself while out

15 free, we undertake to respect all the Trial Chamber's orders, and if

16 necessary, to surrender Momir Talic to the International Criminal Tribunal

17 at any time if so requested. This guarantee includes under A, the

18 undertaking of the Federal Republic of Yugoslavia to take over Momir Talic

19 from the Dutch authorities at the Schiphol airport at a time and a date to

20 be determined by the Trial Chamber.

21 JUDGE AGIUS: Please slow down, because you're going too fast for

22 the interpreters. Thank you.

23 MR. CARIC: Under B, we undertake, the Yugoslav authorities

24 undertake to escort the accused during his journey to the Federal Republic

25 of Yugoslavia.

Page 9919

1 Under C, the Yugoslav authorities undertake to escort the accused

2 from the Federal Republic of Yugoslavia to the Schiphol airport and to

3 hand him over to the Dutch authorities at a date and time to be determined

4 by the Trial Chamber. The accused shall personally -- we shall personally

5 take the accused from the Dutch authorities and escort him during his

6 journey and surrender him to the Dutch authorities, and this shall be done

7 by someone whom the Federal Republic of Yugoslavia shall appoint.

8 Under E, we undertake, the Ministry of the Interior undertaking

9 through the relevant secretary of the Ministry of the Interior of the

10 Republic of Serbia, we undertake to ensure that the accused shall report

11 on a daily basis to the police station for a record of this to be

12 compiled, and we undertake for monthly written reports to be submitted in

13 which it will be confirmed that the accused has complied with these

14 obligations, and the international criminal Tribunal shall immediately be

15 informed should the accused fail to present himself.

16 Under F, the Yugoslav authorities undertake to immediately arrest

17 the accused should he attempt to flee or should he violate any of the

18 conditions of provisional release and we undertake to inform the

19 International Criminal Tribunal of this in order to make preparations for

20 him to be surrendered to the Tribunal again. This guarantee is being

21 given by the federal government for humanitarian reasons above all, taking

22 into consideration the serious medical condition of the accused, Momir

23 Talic, and the need for him to be provided with medical treatment in a

24 specialist institution in the military medical institution -- in the

25 Military Medical Academy in Belgrade. The federal government guarantees

Page 9920

1 this on the basis of the authority invested in them on the basis of

2 Article 36 of the law on cooperation with the International Criminal

3 Tribunal for prosecuting persons responsible for serious violations of

4 international humanitarian law committed in the territory of the former

5 Yugoslavia in 1991. The President of the federal government, Dragisa

6 Pesic, has signed the document.

7 JUDGE AGIUS: Thank you, sir.

8 Who would like to go first?

9 MS. KORNER: Your Honour, I just have one question: Sir, you said

10 that the Federal Republic of Yugoslavia would comply with any conditions

11 that the Court might impose. Would that include conditions not listed

12 here?

13 MR. CARIC: These are undertakings that we are quite ready to

14 fulfil. We have accepted this. So these are not conditions. At the

15 moment I'm not in a position to add anything else. All I can do is

16 provide the Trial Chamber with a photocopy of the text that I have just

17 read out, that is to say, of the guarantee. I apologise because

18 everything happened very rapidly, so I am -- I will be submitting a

19 photocopy that is not very good. But tomorrow with regard to the Martic

20 case, Mr. Savo Markovic, the federal Minister of Justice will be coming to

21 the Tribunal and he will be in a position to provide you with more details

22 with regard to any questions you might have.

23 Allow me, Your Honours, to provide you with a photocopy of this

24 guarantee.

25 JUDGE AGIUS: Can I ask you if this will be followed by the usual

Page 9921

1 note verbale, whether it will be formalised, in other words, by -- yeah.

2 MR. CARIC: Yes, by all means.

3 JUDGE AGIUS: Thank you.

4 MS. KORNER: Thank you very much, sir. But can I just remind you

5 of what you said to us when you first started. You said that "If the

6 Trial Chamber should render a decision according to which the accused

7 Momir Talic may be allowed to defend himself free, we undertake to respect

8 all the Trial Chamber's orders," and you then said that the guarantee

9 includes and listed a number of items.

10 Now, all that I want to know, sir, from you, if you can assist, is

11 does that mean that the federal government, if we read this literally,

12 will respect orders made by this Trial Chamber which are -- which include

13 aspects outside those listed?

14 MR. CARIC: All I can say, Your Honours, is that we stand by the

15 decision that was presented, that is to say, that all the duties -- all

16 the obligations that are to be determined by this Trial Chamber, these

17 decisions will be respected. That's all I can say.

18 MS. KORNER: And let me explain one reason why I'm asking you

19 this. Clearly if he's undergoing treatment or too ill, he cannot report

20 daily to a police station, and therefore it would be helpful to know if in

21 those circumstances if the Trial Chamber were to make an order that the

22 police were to go to where he was to check, that would be done.

23 MR. CARIC: Yes, by all means.

24 MS. KORNER: Thank you.

25 JUDGE AGIUS: May I ask you, Mr. Zecevic, whether you would like

Page 9922

1 to pose any questions to the councillor?

2 MR. ZECEVIC: Thank you, Your Honours. We don't have any

3 questions.

4 JUDGE AGIUS: All right. Thank you.

5 MR. ZECEVIC: Thank you.

6 JUDGE AGIUS: Mr. Ackerman?

7 Any submissions?

8 MS. KORNER: Well, yes, but I don't think they're -- they're not

9 going to trouble this gentleman.

10 JUDGE AGIUS: Yes, exactly. But when I said "any submissions,"

11 with the understanding, as we did last time, whether you want them to be

12 here or whether we can ask them to go back to the embassy.

13 MS. KORNER: Well, I mean, I don't mind at all, Your Honours. I

14 mean, clearly I --

15 JUDGE AGIUS: Last time we decided -- and actually, it proved to

16 be quite useful -- to proceed with the debate in their presence, and at

17 the end of the day we realised that we did the right thing because we

18 could ask certain questions which they could then report back upon. And

19 knowing that the minister is coming tomorrow, perhaps there may be some

20 relevant matters that can be raised by either -- either side and they

21 could be referred to should we have any further difficulties.

22 MS. KORNER: Yes. Your Honour, I'm perfectly content to --

23 JUDGE AGIUS: So unless you have other urgent matters to attend

24 to, and if you would like to remain and assist for the rest of the debate,

25 you're free to do so.

Page 9923

1 MR. CARIC: We can stay until the end of the hearing.

2 JUDGE AGIUS: Thank you.

3 So at this point I think we will entertain any final submissions

4 that you may have and then adjourn for a decision, depending, of course,

5 on the submissions that will be forthcoming.

6 Yes, Ms. Korner.

7 MS. KORNER: Well, Your Honour, the guarantee is phrased in the

8 terms of "provisional release." But it's our submission it's clear that

9 very properly the Federal Republic of Yugoslavia will comply with any

10 conditions imposed by Your Honours.

11 Your Honours, our application remains the same: We don't oppose,

12 as it were, a transfer of Momir Talic so that he may receive medical

13 treatment in Belgrade. We do oppose for the reasons I expressed any kind

14 of transfer that would involve him being allowed to go to Banja Luka, and

15 indeed our request -- I have instructions to tell Your Honours that our

16 request is still that the transfer be under terms of detention.

17 The only other thing I would say is this, that in the event of

18 Your Honours' ruling in favour of provisional release, as opposed to what

19 we submit would be the proper course, then the conditions should include

20 one that he should not be allowed to go to Banja Luka and clearly a

21 condition merely that he report to the police station is not likely to be

22 sufficient.

23 JUDGE AGIUS: Well, that's -- I would imagine that given the

24 circumstances attaching -- special, particular circumstances attaching to

25 his medical condition and what is likely to -- what this medical condition

Page 9924

1 is likely to be in the future, it doesn't make much sense concentrating on

2 a provision like that.

3 MS. KORNER: Well, Your Honour, again I say what I said last time.

4 Any prognosis at the moment is so wrapped in doubt that one has to look at

5 the situation, which is he may, for example, go into remission. I mean,

6 anything is possible.


8 MS. KORNER: And so Your Honour has to look at all eventualities.

9 JUDGE AGIUS: Even miracles can happen.

10 So -- Mr. Zecevic.

11 MR. ZECEVIC: Thank you, Your Honour. The Defence stays by its

12 motion for provisional release under Rule 65 and as well as the amendment

13 to the motion for provisional release which was filed two days before. It

14 leaves the opportunity for this Trial Chamber to decide whether it would

15 accept the submission made by the -- by our learned colleague from the

16 Prosecutor's side concerning the Banja Luka.

17 As far as we have already stated that we will accept any

18 conditions imposed by this Trial Chamber as the Trial Chamber deems fit in

19 accordance with the jurisprudence of this Tribunal.

20 There is one other thing that I would like to state very clearly,

21 that we very strongly oppose a request filed by the Prosecutor in its

22 Prosecutor's response concerning the -- the application for a stay of

23 decision if provisional release is granted to our client. We're strongly

24 opposing that due to the factors that we already stated about the time and

25 his medical condition. Thank you, Your Honour.

Page 9925

1 MS. KORNER: Well, Your Honour, we're obliged under the Rules to

2 put that in, and it depends very much, of course, on the terms of the

3 decision.

4 JUDGE AGIUS: Exactly. And as I understand you, if I read you

5 well, is -- it's that while in the context of the document, your response,

6 you did rule out outright the possibility of provisional release, now you

7 are sort of -- still against it but presenting it in a different

8 perspective. If it excludes Banja Luka, if it excludes this or that.

9 You're still against provisional release.

10 MS. KORNER: Your Honour, I'm sorry if I've mislead you. As I

11 say, I have strict instructions that our application remains the same.

12 JUDGE AGIUS: Okay. Any further submissions?

13 Now the position is as follows: We need to have the communication

14 of from the federal -- from the government of the Federal Republic of

15 Yugoslavia translated into English.

16 And Madam Registrar, this must receive the -- must be done with

17 the utmost urgency, if possible within the hour. Because although we can

18 have the transcript -- although we can have the transcript, I would rather

19 have a proper translation of it made by the office that does the

20 translation, because a word here or a word there may make a difference and

21 I want to make sure of the text that we could possibly rely upon if we

22 hand down an order accepting or modifying the motion of General Talic.

23 That's number one.

24 Number two, of course you realise we need to sit down together,

25 the three Judges, and discuss this last development; namely, the

Page 9926

1 communication from the government of the Federal Republic of Yugoslavia.

2 We will do that immediately after this sitting. And then there will be

3 nothing left except to draft the decision and hand it down at the first

4 opportunity. We promise you we will not sleep on it. We will -- we will

5 give it our utmost attention.

6 Yes, Mr. Zecevic.

7 MR. ZECEVIC: Your Honours, I'm sorry to interrupt, but I would

8 like to make another -- or actually inform the Trial Chamber that we have

9 filed with the UNDU the personal guarantees and it's been signed by our

10 client. And according to the procedure, it should have been filed with

11 the Registry. I don't know. We don't have any information at this

12 moment --

13 JUDGE AGIUS: It has been filed.

14 MR. ZECEVIC: Okay.

15 JUDGE AGIUS: And I think I can come -- I can come to that.

16 MR. ZECEVIC: Thank you. If was just wondering because we haven't

17 received a copy.

18 JUDGE AGIUS: No. It has been filed, Mr. Zecevic, and as well as

19 the other document which you filed in --

20 MR. ZECEVIC: Yes.

21 JUDGE AGIUS: -- confidential.

22 This is a document you're referring to which is the personal

23 guarantees.

24 MR. ZECEVIC: That is right, Your Honours.

25 JUDGE AGIUS: Of course, it's almost superfluous to say that if we

Page 9927

1 decide to grant some kind of release, be it under a detention regime or

2 under a provisional release regime, it may go beyond these guarantees, and

3 no such order will become operative unless there are the guarantees.

4 MR. ZECEVIC: I understand that.

5 JUDGE AGIUS: Now, as I understand it, as I take it, the

6 guarantees which are being offered by the Federal Republic of Yugoslavia

7 contain, as I see it, at least for the time being, a general umbrella

8 clause which should prove to be extremely helpful.

9 As regards General Talic, however, if we come to a conclusion to

10 release him, there will be more than this that will be needed.

11 MR. ZECEVIC: We understand that, Your Honour, and we are

12 prepared -- our client is prepared to sign this. Thank you.

13 JUDGE AGIUS: Thank you.

14 Yes, Ms. Korner.

15 MS. KORNER: Your Honour, can I just ask, is it your intention to

16 give a decision, as it were, in full verbally and then reduce it to

17 writing today or not?

18 JUDGE AGIUS: No. It's -- Ms. Korner, the situation is too

19 complicated and too delicate and we've come to the conclusion that we

20 better hand down proper written judgement straight away.

21 MS. KORNER: All right.

22 JUDGE AGIUS: Because there are more -- there are several aspects

23 involved and we would rather select our words properly and make sure --

24 MS. KORNER: Well, Your Honour, then I think if -- if I may ask,

25 if Your Honours rise, we could -- to discuss the progress, because it

Page 9928

1 has -- on the understanding that one way or another General Talic is not

2 going to be present at this trial.

3 JUDGE AGIUS: Well, let's -- you can take it that one way or

4 another --

5 MS. KORNER: Yes.

6 JUDGE AGIUS: -- he will not be present for two obvious reasons:

7 If we release him, he is not going to be here.


9 JUDGE AGIUS: And there is always the problem of his consent.

10 MS. KORNER: Yes.

11 JUDGE AGIUS: Okay? Over which we will not have any control,

12 because he will -- he will not be physically present anywhere nearby that

13 we can control. But we can control it from a distance and we will have to

14 depend on several others. That's number one.

15 The second thing: If we don't give release, I think it would be

16 very short-sighted on your part to anticipate him being present here. So

17 you will still face the same problem, not just you but also us.

18 MS. KORNER: All right. Well, Your Honour, I don't think this

19 aspect need trouble these two gentlemen any longer, so.

20 JUDGE AGIUS: I would rather have them here, to tell you the

21 truth.

22 MS. KORNER: Well, I can assure you this has got nothing to do

23 with the federal government of Yugoslavia, but anyhow ...

24 Your Honour, the first thing is this: Accepting that, there are

25 two possibilities for whatever happens. The first is that the trial

Page 9929

1 continues against General Talic in his absence. That requires, as it

2 were, a general waiver from General Talic. I've had some conversation

3 with Defence counsel, and I think I know what the answer is going to be,

4 but I'd be grateful if perhaps they could deal with whether that is going

5 to be given.

6 JUDGE AGIUS: You mean jointly with Brdjanin or separate?

7 MS. KORNER: I mean the trial goes on as a joint trial.

8 JUDGE AGIUS: As a joint trial.

9 Yes, Mr. Zecevic.

10 MR. ZECEVIC: Your Honours, we have already informed this

11 Honourable Trial Chamber and our learned friends from the Prosecutor that

12 our client has waived his right of presence for the witness which was in

13 the course of the cross-examination and the other two witnesses. And what

14 we suggested -- because we in all honesty do not -- do not see how it

15 would be possible that -- that any accused would give a general waiver,

16 because he has to specifically know what he's waiving his right from. So

17 what we suggested was that each Thursday when we get the list of -- from

18 the Prosecutor, we will inform them that day or perhaps on Friday morning

19 about the waiver of our client for the next week. That is the best what

20 we can do.

21 MS. KORNER: All right.

22 JUDGE AGIUS: The Chamber, of course, reserves its position on

23 this.

24 MS. KORNER: Yes, quite.

25 JUDGE AGIUS: We are making this very clear.

Page 9930

1 MS. KORNER: Your Honour, I don't think I need to draw Your

2 Honours' attention to the problems with that. I say that I have

3 instructions to continue against both, but it's a ruling for Your Honours

4 to make.

5 The second option - and can I say that this is the matter for Your

6 Honours to make the ruling and I'm not going to say anything more on it -

7 is that the trial against General Talic is severed from that of

8 Mr. Brdjanin, and Your Honours will obviously make the ruling on that.

9 In the event that Your Honours rule that it's the second option

10 that happens, I -- I think it -- really the ball is in the Defence court

11 to this extent. I would be asking for time, but the time that I would ask

12 for, because it means a reconsideration of, if you like, the emphasis of

13 the evidence and the sort of evidence, would be for no more than a week.

14 There are two ways of achieving that. One is that we have next week off

15 but we sit again, not to waste any further time, on the 30th of September,

16 which at present is the week that Your Honours have arranged to take off.

17 Failing that, I will try and arrange for the witness -- if not -- I'm not

18 sure I can get him back for Monday -- but who was being cross-examined, to

19 be back on Tuesday and at least use up next week and take the following

20 week to reconsider the position.

21 JUDGE AGIUS: 30th and -- 30th September, 1st October there's

22 going to be a plenary session here.

23 MS. KORNER: What?

24 JUDGE AGIUS: Judge's plenaries.

25 MS. KORNER: On the 30th of September.

Page 9931

1 JUDGE AGIUS: And 1st of October. 30th September and 1st October.

2 MS. KORNER: Well, in that case, unless there's an objection I

3 think I'll make arrangements to see if I can get at least Mr. Filipovic

4 back for next week. But that's why I say -- and we'll use the week of the

5 30th to --

6 JUDGE AGIUS: But let's hear, because also, I mean, I -- we are in

7 the habit here of respecting what may have been previous arrangements if

8 commitments have arisen out of them.

9 MS. KORNER: But we were always sitting next week, Your Honour. We

10 were always sitting next week.

11 JUDGE AGIUS: Yes, yes. Okay. That, I understand. I would not

12 have expected anyone to make any different commitments as far as next week

13 is concerned. But as far as the -- the following week is concerned, I

14 have an impression, at least from Madam Fauveau and from Mr. Ackerman --

15 MS. KORNER: Madam Fauveau won't be here. I mean, working on the

16 basis that you're severing. And nor will Mr. Zecevic.

17 JUDGE AGIUS: I think we have discussed this already and I can

18 tell you, the position that we will be taking in this regard, if --

19 irrespective of what we will decide on -- on the provisional release

20 matter -- is that if you choose to proceed with the trial jointly - I mean

21 the two accused as co-accused - then that will also be our decision. Our

22 decision may change if at some later point in time we see or we come to

23 the conclusion that the trial itself is being obstructed, hampered, or is

24 difficult to proceed with the two accused together. So we will not at

25 this point in time take a decision to sever the two accused unless we have

Page 9932

1 a specific request coming from you or even maybe from the Defence. I

2 mean, we would -- we would entertain a motion from the Defence too in that

3 regard. But we will not be taking a decision ourselves at this stage.

4 MS. KORNER: All right. Well, Your Honour, I'm very grateful for

5 that indication, and I will -- I would like to be heard, then -- in fact,

6 if Your Honours would care to rise, I'm going take instructions straight

7 away.

8 JUDGE AGIUS: And if we -- if you let us know, then obviously we

9 can plan ahead better.

10 MS. KORNER: Well, Your Honour, I think in that case, can I ask

11 Your Honours to rise for 15 minutes, because I do think that we need to --

12 before Your Honours leave now. And Your Honours are going to issue a

13 written decision, as I understand it, on the motion.

14 JUDGE AGIUS: We will. And may I also assure everyone that the

15 fact that we are handing down a written decision will not in any way delay

16 our decision unduly. It will delay it by a little bit necessarily,

17 because it's something that has to be drafted and checked and re-checked.

18 MS. KORNER: Okay. Yes, so I see Mr. Ackerman wants to say

19 something, Your Honour. So before I carry on.

20 JUDGE AGIUS: Yes, Mr. Ackerman.

21 MR. ACKERMAN: Your Honours, the first thing I will tell you is

22 that -- that I will object very strongly to this case going forward as a

23 joint trial with General Talic not being here. And there are many reasons

24 for that. There -- the main one is that his counsel will not no longer be

25 able to take instructions from him in any kind of a meaningful way and so

Page 9933

1 it will just almost become a sham trial where we're pretending like

2 someone is on trial and --

3 JUDGE AGIUS: Why are you saying what they will be unable to do

4 before we actually hear what they will be able or unable to do? Because

5 at least --

6 MR. ACKERMAN: Well, I'm just making an assumption, Your Honour.

7 JUDGE AGIUS: Because at least Mr. Zecevic has already informed us

8 that he should be in a position on a weekly basis to tell us, given the

9 names of the witnesses -- so I presume that he assumes and he presumes

10 that he will be in continuous contact with his client.

11 MR. ACKERMAN: Well, I -- I seriously doubt that if your client is

12 not in The Hague that you will have anywhere near the kind of contact with

13 that client that you would have when your client is here. You have daily

14 contact here. You go to the detention centre with some frequency to

15 discuss matters. That's not likely to happen. But I want to leave that

16 aside at this point. I will object to a joint trial with General Talic

17 not being here. I will file a motion to sever these cases and go forward

18 with the Brdjanin case separate from the Talic case. And I can file that

19 as quickly, I suppose, as tomorrow if Your Honours would like me to. But

20 I strongly object to going forward as a joint trial with General Talic not

21 here.

22 JUDGE AGIUS: Mr. Zecevic.

23 MR. ZECEVIC: Thank you, Your Honours. As we have already said,

24 with all due respect to Mr. John Ackerman's comment, as we have informed

25 the Trial Chamber, we are very well aware of this situation and we have --

Page 9934

1 we have committed ourselves and our client has committed ourselves to

2 have -- we have as clear instruction for this witness and the next two

3 witnesses, and what I have said -- we are -- we are standing on the same

4 point that we will inform the Trial Chamber each Thursday about the

5 next -- the next coming week. And we believe that we can have enough

6 instruction that we need for -- from our client. Thank you.

7 MR. ACKERMAN: I do need to add, so there's no misunderstanding,

8 that I'm perfectly willing to sit next week and finish up with

9 Mr. Filipovic in the context of a joint trial. And if there's time, even

10 take the next witness. But after that, I would be concerned.

11 JUDGE AGIUS: And to think of it, that it was General Talic who in

12 the first place asked for his case to be heard and dealt with separately

13 from that of Brdjanin.

14 Yes. Anyway, I think we'll rise for 15 minutes. I think it will

15 be helpful for us to know exactly what the position which will -- the

16 Prosecution prefers at the present moment will be. And then we'll act

17 accordingly. It could also be a combination of both, along the lines that

18 Mr. Ackerman has suggested. I don't know. But for the present moment,

19 our message to you is that we will proceed with a joint -- a joint trial

20 unless the situation asks for a change and a separation of the two

21 accused, or the two trials. That's the position.

22 MS. KORNER: Your Honour, do I understand it that if

23 effectively -- amazingly enough Mr. Ackerman and I agree on something,

24 Your Honours will then act as -- as we require?

25 JUDGE AGIUS: You can take it at that. Unless -- because we --

Page 9935

1 we, like you, do have the interest of -- we have an interest that this

2 case goes on. That's the -- our responsibility as a Trial Chamber is to

3 ensure that this case goes on. Now, whether it goes on against the two

4 accused together or the two accused separately depends very much first on

5 your preferences, secondly on the events as they develop. There may come

6 a situation whereby today we may decide that it's in the better interest

7 -- the best interests of justice to proceed with the two cases jointly,

8 and tomorrow the situation may change. I mean, General Talic may start,

9 for example, on -- chemotherapy and we end up with a week --

10 MS. KORNER: Quite. Your Honours just --

11 JUDGE AGIUS: And --

12 MS. KORNER: No. Your Honours just hit the nail on the head.

13 If -- and I have to say that that's what my instructions are at the moment

14 if Your Honours are prepared to comply with it. But if it goes on against

15 both, the stop-start aspect of this trial, not to mention the cost of

16 getting witnesses up who sit on days for end not doing anything, is just

17 horrifying to contemplate.

18 JUDGE AGIUS: Yeah. But that's your responsibility, Ms. Korner.

19 MS. KORNER: No, Your Honour is quite right. It is my

20 responsibility.

21 JUDGE AGIUS: And the reason why we are saying tell us your

22 preference and then we will act accordingly is precisely because we don't

23 want to take on our shoulders the responsibility which is strictly yours

24 at this point in time. You realise as much as we do that irrespective of

25 where General Talic will be in the next weeks, he may well be in a

Page 9936

1 position where, having told us, "I waive my right to be present for the

2 proceedings," may not be even worth the paper it's written on. So please

3 do take everything into consideration, come back with a -- your

4 preference, and you can rest assured that we will not be insensitive to

5 the needs, both of the Prosecution and of the two Defence teams.

6 MS. KORNER: Yes. My instructions were that the Trial Chamber

7 should rule.


9 MS. KORNER: Your Honours have now thrown it back to me.


11 MS. KORNER: So I will make sure that we arrive at a decision

12 within 15 minutes.

13 JUDGE AGIUS: Yes. Whoever gave you those instructions should

14 realise that this is not the first time that we are -- at least, I myself,

15 dealing with a situation like this.

16 Okay. Fifteen minutes, or as long as you require.

17 MS. KORNER: Fifteen minutes will be sufficient.

18 JUDGE AGIUS: We will be in our chambers and you just let us know

19 when you want us to resume. Okay, 15 minutes.

20 --- Break taken at 3.19 p.m.

21 --- On resuming at 3.44 p.m.

22 JUDGE AGIUS: Yes, Ms. Korner.

23 MS. KORNER: Your Honour, I'm very grateful for the time that Your

24 Honours allowed me. Your Honours, I have the conduct of this case, and I

25 have to use my professional judgement in deciding what is the proper

Page 9937

1 method to proceed when an accused person is too ill to be physically

2 present for his trial where the continuance of his trial depends on two

3 things: First, his continued waiver, whether given on a weekly or a daily

4 basis; second, his ability to give instructions to his counsel as to the

5 witnesses or as to the nature of the evidence to be given by witnesses who

6 will be forthcoming. We also have a duty as an office, it is my

7 professional judgement, to consider the prospect of witnesses coming to

8 court to give evidence on matters which are of a deeply emotional and

9 emotive nature and being told that they cannot give that evidence because

10 one of the accused is not in a position to give instructions.

11 And having heard what Mr. Ackerman on behalf of Mr. Brdjanin has

12 to say, that he will in any event be applying for Your Honours to sever

13 the trial, Your Honours, it is my considered professional judgement that

14 we cannot proceed with General Talic being absent and the trial against

15 him going on. It will be our application, I hope, at some stage, if

16 things progress more optimistically than as at present stated, that there

17 will come a trial -- I'm sorry, there will come a time when there is a

18 trial of General Talic, but this cannot be at present, and therefore our

19 application is that Your Honours sever the case against General Talic as

20 of today or tomorrow, whenever you make your ruling.

21 JUDGE AGIUS: Mr. Zecevic.

22 MR. ZECEVIC: We have -- Your Honours, we have clearly stated our

23 position. We don't think that the severance of the case is needed at this

24 time. I have explained to Ms. Korner that this is just a technical

25 matter, whether we would get the information on Tuesday or Thursday. If

Page 9938

1 we get the information on Tuesday, we can inform the Trial Chamber and the

2 Prosecutor about the waiver of our client for the coming week, so it will

3 have much -- more than enough time to inform the witnesses and all that.

4 As to the severance of the case, we leave that in the hands of the

5 Trial Chamber. Thank you.

6 JUDGE AGIUS: Mr. Ackerman, I suppose you have nothing to add.

7 MR. ACKERMAN: Nothing further.

8 JUDGE AGIUS: So at this point I think I can assure you that early

9 tomorrow morning or early in the day tomorrow morning we should be in a

10 position to hand down both decisions as regards the severance of the two

11 accused and as well as on the motion for provisional release and

12 response -- Prosecutor's response.

13 MS. KORNER: Your Honour, may I just add, then, I've spoken to

14 Mr. Ackerman and I imagine the same would apply in any event, depending on

15 Your Honours' decision to the counsel for General Talic. We will attempt

16 to get Mr. Filipovic back next week. It may not be Monday now, because of

17 the difficulties of arranging flights and giving him adequate warning. I

18 was reminded that the court in any event is not sitting next Friday

19 either.

20 JUDGE AGIUS: So it's -- basically what I suggest we do -- let me

21 hear what Madam Fauveau has to say.

22 MS. KORNER: Certainly.

23 JUDGE AGIUS: And then we'll deal with everything.

24 Yes, Madam Fauveau.

25 MS. FAUVEAU-IVANOVIC: [Interpretation] Mr. President, I have just

Page 9939

1 heard Madam Korner say a couple of minutes ago that my client is not

2 physically capable of attending the proceedings, and in fact Ms. Korner is

3 right. But what I wish to tell this Chamber is that when Ms. Korner says

4 that General Talic is not capable of attending when that suits her and

5 when we request provisional release, then she says that he is capable.

6 But I must say that in this case, Ms. Korner is right; he is not capable

7 of attending.

8 JUDGE AGIUS: I think what we have to decide upon is this: Number

9 one, the two decisions that will be handed down tomorrow, to start with,

10 followed by a decision as -- which depends on you -- as to whether to

11 bring Mr. Filipovic over next week to continue his evidence --

12 cross-examination, Mr. Ackerman. And if that is possible, I would suggest

13 that you communicate with Mr. Ackerman to make all the necessary

14 arrangements. We are at your disposal the whole of next week except

15 Friday, if I remember well, because that was the understanding. However,

16 if it needs be, if needs be, unless you have commitments and we need to

17 sit Friday, we will sit Friday. So that is -- I'm making this quite --

18 quite clear. But I don't think the cross-examination is anticipated to go

19 beyond -- beyond Thursday. That's number one.

20 Number two: I don't know, given what Mr. Ackerman hinted at the

21 last time we sat -- I don't know if in continuing and concluding his

22 examination he requires some kind of assistance from the two counsel for

23 General Talic. I would reserve your position on that. I don't know what

24 your preference is, and I would like to hear what -- what you have to say

25 in this regard, Mr. Ackerman.

Page 9940

1 MR. ACKERMAN: Well, I probably didn't make myself as clear

2 earlier as I should have. But what I was suggesting is that even if there

3 is to be a severance in this case that it not happen until we finish the

4 cross-examination of Mr. Filipovic for this simple reason: Mr. --

5 Mr. Zecevic is prepared to conduct a significant portion of that

6 cross-examination; I'm not. I'd prefer that he do it rather than take the

7 time to prepare that portion of the cross myself. And so if it was -- if

8 the Chamber decided that severance was the proper result, that that order

9 be effective after the testimony of Mr. Filipovic.

10 JUDGE AGIUS: Would you concur with that, Mr. Zecevic?

11 MR. ZECEVIC: We concur, Your Honour.

12 JUDGE AGIUS: And I take it that we will also have the consent of

13 General Talic to proceed?

14 MR. ZECEVIC: As I already informed the Trial Chamber, we have the

15 consent of General Talic for this witness and --

16 JUDGE AGIUS: Yes. But after having heard, Madam Fauveau, I want

17 to make sure that he is in a condition to proceed with that waiver.

18 MR. ZECEVIC: Well, that waiver was given last Tuesday. So we

19 informed the Trial Chamber at that time.


21 MR. ZECEVIC: And --

22 JUDGE AGIUS: So would you agree, Ms. Korner, that we postpone the

23 decision on the severance until Mr. Filipovic has concluded his evidence?

24 MS. KORNER: Well, it's a device, Your Honour, but I'm not going

25 to raise any particular objection to it.

Page 9941

1 JUDGE AGIUS: All right. So -- okay. That's agreed. That's

2 agreed.

3 After that, there will be a decision taken. We could actually

4 take the decision, making it effective after the -- we could do that.

5 MS. KORNER: Your Honour, there's one other matter - I'm sorry -

6 which arose out of the matter that I raised with you last week, and that's

7 the question of the article that was published. There was apparently some

8 query from the Defence as to whether the translation was accurate in

9 mentioning closed session. So we've had it properly -- I say properly.

10 We've had a rough translation. This is an authorised CLSS translation so

11 that Your Honours can see it. We can hand that in to Your Honours after

12 court and to the Defence.

13 JUDGE AGIUS: Thank you.

14 MS. KORNER: The only question is when Your Honours intended to

15 deal with that. It may be --

16 JUDGE AGIUS: Well, as soon as we have an indication of the person

17 that is responsible that could be summoned to appear before us, we could

18 do that.

19 MS. KORNER: Oh, I understood that the Registry was going to ...

20 JUDGE AGIUS: I haven't been informed as yet, at least. I haven't

21 received information.

22 MS. KORNER: Right. I think Your Honour did inquire of the

23 Registry whether they could achieve that. I think we can probably through

24 our own press some people.

25 JUDGE AGIUS: Yes, Madam Fauveau.

Page 9942

1 MS. FAUVEAU-IVANOVIC: [Interpretation] Yes. Thank you,

2 Mr. President. I said that this article was badly quoted during the last

3 hearing. In this article, the word "closed session" doesn't appear

4 anywhere, and those words do not appear in the article, and it seems that

5 those word bothered Ms. Korner the most.

6 MS. KORNER: [Previous translation continues] ... that the

7 authorised translation -- perhaps I can hand it in now and give the

8 Defence a copy.

9 JUDGE AGIUS: Do I take it -- I mean, I don't know enough about

10 the background, but is this a -- an Internet newspaper?

11 MS. KORNER: No. I think it's --

12 JUDGE AGIUS: Or sit an ordinary newspaper? What is it?

13 MS. KORNER: I think it's an ordinary -- I think it's an ordinary

14 newspaper. And like many others, the articles, then, are recycled for

15 the -- but I wouldn't swear to that. As I say, it's not a publication

16 I've come across before.

17 If you look at the first few lines, it states that "Momir Talic,

18 the Bosnian Serb army general indicted for genocide by the Tribunal in The

19 Hague is going home, or rather, to hospital. Following several days of

20 hearings closed to the public --" and then it gives the content of what

21 was said during those days of hearings closed to the public, and fairly

22 accurately too. And then in paragraph 2 begins: "According to Dani's

23 information at the hearing Wednesday, which was in closed session,

24 discussions were held about what to do next."

25 So I'm not quite clear what Madam Fauveau means when she says

Page 9943

1 there's no reference to closed session.

2 MS. FAUVEAU-IVANOVIC: [Interpretation] There's no reference that

3 something said in this article comes from a closed-session hearing.

4 However, that is what Ms. Korner said at the previous sitting.

5 JUDGE AGIUS: Okay. Let's -- we won't cross this at this moment.

6 What I would require to know is the person responsible -- some further

7 information on this, the person responsible for this publication. I

8 see -- I notice that the website is -- refers to BH Dani. It could be the

9 name of this person himself. I don't know. But please check and when we

10 have enough information, we can come back to you and tell you the way

11 we're going proceed and when.

12 MS. KORNER: Yes. Your Honour, I think it won't take very long

13 for us to provide you the name of the author.

14 JUDGE AGIUS: Yes, please. It shouldn't be difficult because I

15 see this is a properly registered -- and it has also got copyright. So I

16 would imagine that you should be able to trace -- if there is a press

17 register, which I would imagine there is.

18 Any further -- so I take it that next week we will be working --

19 proceeding with the cross-examination of Mr. Filipovic. Do I take it that

20 that will be all for next week?

21 MS. KORNER: Your Honour, I think it depends when we can get him

22 here. I'm unanxious to bring up another witness from Bosnia because of

23 having to send them back if we don't finish. But I'm going to make

24 inquiries today and tomorrow as to what can be achieved.

25 JUDGE AGIUS: And then after that I imagine that you still require

Page 9944

1 some time to reorganise --

2 MS. KORNER: No. Your Honour, we'll use the week that we're not

3 sitting to do that.

4 JUDGE AGIUS: Okay. That's perfect.

5 Is that okay with you, Mr. Ackerman?

6 MR. ACKERMAN: Well, there's a great -- there's a number of

7 imponderables that I think will have to await your decision tomorrow

8 before I can begin to pursue them and then I can communicate with you all

9 as to where I think we are.

10 JUDGE AGIUS: Okay. That's fair enough.

11 I thank you. We'll now rise. I am informed that the translation

12 of the communication of the government of the Federal Republic of

13 Yugoslavia should be ready by now, and the official translation should be

14 ready in an hour's time. I thank you. We will be working on it -- yes.

15 [Trial Chamber and registrar confer]

16 JUDGE AGIUS: Tomorrow, yes, of course. Tomorrow we will be

17 handing down the decisions. And I am going to hand the decisions in open

18 session. So we will communicate to you the time. It will probably be

19 sometime in the morning -- in the second half of the morning, the second

20 half of the morning, hoping that we finish by then. All right? Thank

21 you.

22 --- Whereupon the Motion Hearing adjourned

23 at 4.00 p.m.