Tribunal Criminal Tribunal for the Former Yugoslavia

Page 10857

1 Thursday, 17 October 2002

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 2.16 p.m.

5 JUDGE AGIUS: Yes. Madam Registrar, could you call the case,

6 please.

7 THE REGISTRAR: Yes, Your Honour. This is the case number,

8 IT-99-36-T, the Prosecutor versus Radoslav Brdjanin.

9 JUDGE AGIUS: Mr. Brdjanin, can you hear me a language that you

10 can understand?

11 THE ACCUSED: [Interpretation] Good afternoon, Your Honours. I can

12 hear you and understand you.

13 JUDGE AGIUS: Good afternoon to you.

14 Appearances for the Prosecution.

15 MS. KORNER: Your Honour, Joanna Korner, Anna Richterova, assisted

16 by Denise Gustin, case manager. Good afternoon, Your Honours.

17 JUDGE AGIUS: Good afternoon to you.

18 Appearances for Mr. Brdjanin.

19 MR. ACKERMAN: Good afternoon --

20 THE INTERPRETER: Microphone, please.

21 MR. ACKERMAN: I'm John Ackerman with Milan Trbojevic and Marela

22 Jevtovic.

23 JUDGE AGIUS: And good afternoon to you too.

24 There was sort of an understanding yesterday that we'd start with

25 the witness first.

Page 10858

1 MS. KORNER: Yes. Your Honour, before we come on to the witness

2 who's here and ready to testify -- and Ms. Richterova is going to deal

3 with him -- there's one matter that arises out of yesterday's testimony

4 from the witness Ms. Sutherland called. Your Honours may recall that he

5 was asked by Ms. Sutherland in chief about how his wife came to leave.

6 JUDGE AGIUS: Yes.

7 MS. KORNER: And he said he had to sign over the property.

8 Your Honours, what happened was that he said -- he told us that

9 his wife was in possession of documents. They were faxed over yesterday

10 to the Victims and Witnesses Unit. Regrettably they didn't drift up to

11 our office until sometime during the afternoon. A translation was then

12 done, and it's now here. Your Honours, we haven't had a chance to give it

13 to either Mr. Ackerman or to Your Honours, but can we do that. My

14 application would be this afternoon that those documents be entered as

15 evidence subject to, obviously, any objection that Mr. Ackerman may make.

16 I make that application now. Perhaps we can hand out the documents and

17 then deal with it.

18 JUDGE AGIUS: [Microphone not activated]

19 THE INTERPRETER: Microphone, please.

20 JUDGE AGIUS: I will hear what Mr. Ackerman has to say after he

21 has obviously seen these documents.

22 MS. KORNER: Okay.

23 JUDGE AGIUS: Okay. So these documents can be handed --

24 MS. KORNER: Yes, they can, Your Honour.

25 JUDGE AGIUS: Yes. Straight away to Mr. Ackerman and to

Page 10859

1 ourselves.

2 Can we proceed with the next witness, Mr. Ackerman? Thank you.

3 Yes. The witness, please, 7.101. Does he enjoy any protective

4 measures? Not that I --

5 MS. RICHTEROVA: No, Your Honour.

6 JUDGE AGIUS: Not that I remember.

7 [The witness entered court]

8 [Trial Chamber and registrar confer]

9 JUDGE AGIUS: Yes. Good afternoon to you, sir.

10 THE WITNESS: [Interpretation] Good afternoon.

11 JUDGE AGIUS: Very soon you will be starting your testimony. You

12 will start giving evidence in this case. But before you can proceed, the

13 rules of this Tribunal require us to ask you -- to request from you to

14 make a solemn declaration, something which is equivalent to an oath, that

15 in the course of your testimony you will be speaking the truth, the whole

16 truth, and nothing but the truth. The text of the solemn declaration is

17 contained on the piece of paper that the usher is going to hand to you.

18 And may I ask you to read that declaration aloud, please. And that will

19 be your undertaking with this Tribunal that -- to this Tribunal that in

20 the course of your testimony you will be telling us the truth and the

21 whole truth.

22 THE WITNESS: [Interpretation] I solemnly declare that I will speak

23 the truth, the whole truth, and nothing but the truth.

24 WITNESS: ATIF DZAFIC

25 [Witness answered through interpreter]

Page 10860

1 JUDGE AGIUS: You may sit down. Thank you.

2 You are Mr. Atif Dzafic, aren't you?

3 THE WITNESS: [Interpretation] I am.

4 JUDGE AGIUS: Welcome to this Tribunal.

5 THE WITNESS: [Interpretation] Thank you.

6 JUDGE AGIUS: You will be here for a short time. We know that you

7 have already made some statements. And the purpose of your presence here

8 is to give an opportunity to the Defence of Radoslav Brdjanin, who is the

9 accused in this case, to put a series of questions to you. Otherwise, I

10 want you to know that the Chamber, as well as the parties, are aware of

11 the contents of the statements that you have made previously.

12 THE WITNESS: [Interpretation] Very well.

13 JUDGE AGIUS: You are going to be asked some questions by -- is it

14 you, Mr. Ackerman?

15 MR. ACKERMAN: Yes, Your Honour.

16 JUDGE AGIUS: By the lead counsel for the Defence, Mr. John

17 Ackerman. And it is my duty to explain to you that this is a right that

18 the accused has, to have all witnesses brought forward by the Prosecution

19 cross-examined.

20 The fact that you are going to be asked questions by the Defence

21 doesn't mean that you have a right to put up an opposition to those

22 questions. You have a duty to answer those questions as fully and as

23 accurately as possible and certainly truthfully.

24 So I now leave you in the hands of Mr. Ackerman.

25 THE WITNESS: [Interpretation] I understand.

Page 10861

1 JUDGE AGIUS: Mr. Ackerman, you know what our decision was on the

2 application of Rule 92 bis. You have a maximum of one hour.

3 MR. ACKERMAN: Your Honour, I thought that Ms. Richterova wanted

4 ten minutes or so before I started my cross-examination to ask this

5 witness some questions. I don't have any objection to her doing that.

6 JUDGE AGIUS: If it's the case, I will certainly allow it.

7 MR. ACKERMAN: I have no objection to her doing that.

8 MS. RICHTEROVA: No, Your Honour. I had just introductory

9 questions. But because we all have the statements, I just wanted to

10 tender those statements and those --

11 JUDGE AGIUS: Yes. Yes, please go ahead.

12 MS. RICHTEROVA: And the certification.

13 JUDGE AGIUS: Yes, certainly. Okay. Go ahead. It's not a

14 problem.

15 Examined by Ms. Richterova:

16 Q. Mr. Dzafic, just for the record, can you tell us your full name.

17 A. Atif Dzafic.

18 Q. You were born on the 15th of April, 1950 in Sanica in the Kljuc

19 municipality?

20 A. Yes, I was.

21 Q. You gave to the representative of the Tribunal two statements.

22 One was on the following days, 17th, 19th, and 20th of February, 2001; is

23 that correct?

24 A. Yes, it is.

25 Q. And the other one was on the 20th of August, 2001.

Page 10862

1 A. Yes, that's right.

2 Q. Only the first one with the attachment was certified, and this is

3 the reason I want to tender as evidence -- as -- excuse me, as an exhibit

4 the statement from 17, 19, and 20th of February, 2001, which was certified

5 and was accepted as Rule 92 bis.

6 After your arrival to The Hague, did you have an opportunity to

7 read this statement from 17th, 19th, and 20th of February?

8 A. Yes, I did.

9 Q. Is the content of this statement correct?

10 A. Yes.

11 Q. You also made yesterday a small correction which were put down by

12 the investigator, and we handed over this supplemental information sheet

13 to the Defence. Is it correct?

14 A. Yes, yes.

15 Q. So as far as these changes which are in the supplemental

16 information sheet and also in the amendment to your statement, which were

17 certified, and amendments were made on 27th of July, 2001, you can state

18 that everything what you said is correct?

19 A. Yes.

20 MS. RICHTEROVA: Your Honour, I would like to tender the statement

21 and the amendment and the supplemental information sheet as the

22 Prosecution Exhibit P1123.

23 MR. ACKERMAN: I have no objection, Your Honour.

24 JUDGE AGIUS: Thank you, Mr. Ackerman.

25 MS. RICHTEROVA: And I do not have more questions.

Page 10863

1 JUDGE AGIUS: Thank you.

2 So Mr. Ackerman, the witness is in your hands.

3 MR. ACKERMAN: Thank you, Your Honour.

4 Cross-examined by Mr. Ackerman:

5 Q. Good afternoon, sir.

6 A. Good afternoon.

7 Q. I don't have a great number of questions to ask you, and we'll try

8 to move through this as rapidly as we can so that you can return home.

9 How many years have you spent of your life as a police officer?

10 A. From the 1st of September, 1977 -- since the 1st of September,

11 1977.

12 Q. So you're getting -- you're around 25 years being a police officer

13 of one form or another.

14 A. Yes.

15 Q. Now, I want to talk to you about the structure of the police in

16 Bosnia-Herzegovina right prior to the multi-party elections and how it

17 changed, if any, right after the multi-party elections.

18 The first thing: The structure, the way the police was organised,

19 was all regulated by law, wasn't it?

20 A. Yes.

21 Q. And at the very top of the police structure was the Minister of

22 Interior of the Republic of Bosnia-Herzegovina; is that correct?

23 A. Yes.

24 Q. And at least after the multi-party elections, the person who held

25 that position was Alija Delimustafic; isn't that the case?

Page 10864

1 A. As far as I can remember, yes.

2 Q. Can you tell the Chamber how it would have been under the law that

3 Alija Delimustafic would have gotten that position. How would he have

4 been chosen to have that position as head of -- as Minister of the

5 Interior?

6 A. Well, after the multi-party elections, the parties that won the

7 highest number of votes agreed amongst themselves which party would

8 appoint the Minister of Internal Affairs. It was the party with the

9 largest number of votes.

10 Q. And that, in this case, would have been the SDA. And so it would

11 have been up to the SDA party to determine and appoint who would be the

12 Minister of the Interior. Is that a fair statement?

13 A. Well, you asked me a moment ago. I told you how long I've been

14 working as a policeman. Then and always we were not allowed to engage in

15 politics, and we were expected to do it ourselves exclusively, to

16 professional police work [As interpreted].

17 Q. I understand that. I think you probably misunderstood my

18 question. My question was only this: After the multi-elections, the post

19 of Minister of the Interior was a post that was determined would be filled

20 by the SDA, that they would appoint whoever it was that would take that

21 post. That's true, isn't it?

22 A. Yes, yes.

23 Q. And was it an individual that would make that appointment or the

24 main board of the party, or how did that work? Do you know?

25 A. The appointment would have to be decided by the government.

Page 10865

1 Q. So if there is a document of appointment of Alija Delimustafic,

2 chances are it's signed by Mr. Izetbegovic.

3 A. Believe me, I don't remember these things.

4 Q. It's okay if you don't know. Don't worry about that.

5 Now, in his position as Minister of the Interior, he would have

6 had authority over all of the police of Bosnia-Herzegovina; correct?

7 A. Yes. That is regulated by the law on internal affairs.

8 Q. Yes. And the next level of authority underneath the Minister of

9 Interior were these CSBs that you talked about, the regional police

10 offices; correct?

11 A. Yes.

12 Q. And -- go ahead.

13 A. In a specific case, the municipality of Kljuc, we belonged to the

14 regional centre of the security services in Banja Luka.

15 Q. And after the multi-party elections, the chief of the Banja Luka

16 CSB was a gentleman named Stojan Zupljanin; correct?

17 A. Yes.

18 Q. And do you know who it was that appointed Mr. Zupljanin to that

19 position?

20 A. I assume the same minister that appointed me.

21 Q. And that would have been Mr. Delimustafic?

22 A. I cannot remember, but I do know that the decision was handed to

23 me appointing me to commander by the inspector from the Republic

24 Secretariat for Internal Affairs in Sarajevo.

25 Q. And who signed your appointment?

Page 10866

1 A. I do not remember.

2 Q. Okay. If we go, then, on down to the local police departments,

3 the SJB in Kljuc, that next level at one point at least became the chief

4 of the police -- the chief of the police became a gentleman by the name of

5 Vinko Kondic; correct?

6 A. Yes.

7 Q. And do you know who appointed Vinko Kondic?

8 A. I even remember the date when Mr. Vinko Kondic was appointed,

9 because later on he appointed me. It was on the 7th of June, 1991. I was

10 given the decision by the same inspector from the Republican Secretariat

11 of Internal Affairs in Sarajevo.

12 Q. And you became -- you continued basically in your position as

13 commander of the uniformed police, did you not?

14 A. Yes, until the appointment of Mr. Kondic, I also performed the

15 duty of acting chief because it took a long time. We waited for a long

16 time for his appointment to be formalised.

17 Q. Okay. Once Mr. Kondic was appointed, he then became your

18 superior, your direct superior, didn't he?

19 A. Yes, yes.

20 Q. And his direct superior then at that time would have been

21 Mr. Zupljanin?

22 A. According to the system of subordination, yes. But the main

23 decisions -- our most important person, the minister, was the one

24 headquartered in Sarajevo.

25 Q. Yes. And that would have been Mr. Zupljanin's direct superior,

Page 10867

1 the Minister of the Interior; correct?

2 A. According to the subordination, the hierarchy goes the centre of

3 the security services in Banja Luka, and then further up Sarajevo. But

4 all decisions and orders that reached us came from Sarajevo.

5 Q. Okay. Now, when one became a police officer under the laws of the

6 Republic of Bosnia-Herzegovina, one of the things you had to do to be a

7 police officer was to take an oath, didn't you?

8 A. Yes.

9 Q. And I want to read you an oath and have you tell me if this is

10 basically as you recall the oath that police officers are required to

11 take.

12 "I hereby solemnly declare that I shall perform the duties of

13 authorised officer conscientiously and in good faith, that I shall abide

14 by the constitution and the law and protect to the best of my abilities

15 the constitutional order of the republic, rights, freedoms, and security,

16 and that I shall perform those and other duties of authorised officer even

17 when that means risking my own life."

18 Do you recall that that's essentially the oath that you and other

19 officers were all required to take?

20 A. Words to that effect. Yes, that was the solemn oath.

21 Q. There came a time -- and sir, please understand when I ask you

22 these following questions that I am not asking you to agree that the

23 establishment of the Serbian Republic of Bosnia-Herzegovina was a legal

24 process. I want to only ask you questions about what happened after that

25 occurred.

Page 10868

1 At some time after the multi-party elections and after Vinko

2 Kondic became -- or at least sometime after the multi-party elections

3 there was a declaration of the Serbian Republic of Bosnia-Herzegovina,

4 which then later became Republika Srpska, wasn't there?

5 A. I do not remember the date, but I do know that it was sometime in

6 mid-March that Mr. Vinko Kondic at a meeting in Banja Luka accepted the

7 Kljuc Public Security Station, ranking it among the other 14 or 16 police

8 stations that constituted the SAO Krajina, and he said that from then on

9 we do not have any obligations towards Sarajevo and that we should not act

10 according to their orders and telegrams, and on each document from then on

11 there was the heading that said "The Serbian Republic of

12 Bosnia-Herzegovina." This can be seen from the documents written in those

13 days and while I was still an acting officer, it was required of me to put

14 that in the heading.

15 Q. And so then the police came under the authority of the Minister of

16 Interior of the Serbian Republic of Bosnia-Herzegovina at that point;

17 correct?

18 A. This accession and joining to the centre of security services in

19 Banja Luka and renouncing obedience to Sarajevo was accepted by policemen

20 of Serb ethnicity, whereas the other police officers of non-Serb ethnicity

21 objected and did not accept.

22 Q. Yes. We're going to get into that.

23 What I'd like now for you to do is look at an exhibit.

24 MR. ACKERMAN: Your Honours, it's a new exhibit. Brdjanin 097,

25 which was handed in just today.

Page 10869

1 Q. Sir, I'll tell you that the page you have before you comes from

2 the Official Gazette of Republika Srpska and it deals with the police.

3 And the particular paragraph that I'm interested in having you look at is

4 under Article 41, the last paragraph of Article 41. And I'm wondering if

5 you could just tell us what that paragraph is, first of all, and then read

6 it out for us, please.

7 A. I think that I didn't provide this in my statement. So in my

8 judgement, there's no need for me to comment on this now.

9 Q. Well, as the Judge told you at the beginning, that you don't get

10 to make those kind of decisions. And I'm asking you to tell us what is

11 that paragraph and then to read it to us, please.

12 JUDGE AGIUS: [Microphone not activated] Yes. Please do as you've

13 been told.

14 THE INTERPRETER: Microphone, please, Your Honour.

15 JUDGE AGIUS: Yes. You are to answer the question, please.

16 When you've finished reading it to yourself, tell me so that we

17 will proceed with the question.

18 Are you ready?

19 MR. ACKERMAN:

20 Q. Have you read it, sir?

21 JUDGE AGIUS: Have you read it?

22 THE WITNESS: [Interpretation] Yes, I have read it.

23 JUDGE AGIUS: Yes. So the question is: Could you please tell us

24 what in your opinion that paragraph is, what it represents.

25 THE WITNESS: [Interpretation] This paragraph is a well-known

Page 10870

1 paragraph from the law on internal affairs regulating -- that is, the

2 minister defines which persons are considered authorised officers and what

3 their rights and duties are in executing their tasks as police officers.

4 JUDGE AGIUS: The paragraph the question referred to is the last

5 paragraph of Article 41, that is, the paragraph which states "Authorised

6 officers shall take their solemn oath before the minister," et cetera, et

7 cetera. Would you explain to us what that paragraph states.

8 THE WITNESS: [Interpretation] In this last paragraph is the text

9 of the solemn declaration. It is more or less well known to all

10 authorised employees in the police. And before starting employment, each

11 individual is obliged to make that solemn declaration.

12 JUDGE AGIUS: Yes.

13 MR. ACKERMAN:

14 Q. Yes. And that language is virtually identical to what I read to

15 you a moment ago, which you said was the kind of oath that you would have

16 to take to be a police officer in the Republic of Bosnia-Herzegovina,

17 isn't it?

18 A. Yes.

19 Q. In fact, what I did read to you, sir, was the English translation

20 of that paragraph.

21 Now, when the police force came under the control of the Serbian

22 Republic of Bosnia-Herzegovina, officers were then asked to take this new

23 oath, pledging their allegiance to the Republic of Bosnia-Herzegovina,

24 weren't they?

25 And while you're thinking about the answer to that, I'd like the

Page 10871

1 registrar to get Exhibit P140 and show it to you, please.

2 MR. ACKERMAN: And I don't know if Your Honours have it, but I can

3 put it on the ELMO so you can see it.

4 JUDGE AGIUS: You can put it on the ELMO, yes. Thank you.

5 MR. ACKERMAN:

6 Q. Now, sir, this is -- this is a document which you in fact turned

7 over to the Prosecutor and which you identified as the declaration, the

8 oath, that police officers were asked to take after the Kljuc municipality

9 became part of the Serbian Republic of Bosnia-Herzegovina. And that's

10 what this is, isn't it?

11 A. Yes. But this declaration was preceded by a change of uniforms

12 and insignia and a lot of other things.

13 Q. Well, I'm only asking you about the declaration. This is what

14 I've suggested it is.

15 Do you recognise the name on this declaration?

16 JUDGE AGIUS: Can we have it on the ELMO, please.

17 MR. ACKERMAN: Here.

18 Q. Do you recognise the name on this declaration, the person who

19 actually signed it?

20 A. Of course. This is signed by my former deputy. I know his

21 handwriting, and this is his original handwriting.

22 Q. And was he a Serb or a non-Serb?

23 A. Of course he was a Serb. But please, I was -- I am here and it's

24 all -- it's like the final say here. Many things preceded this. This is

25 the declaration, and we all know that. But in practice, it didn't

Page 10872

1 function like that. Let's talk about that. Let's talk about some

2 practical things which preceded this. For example, the change of

3 uniforms, the joining of the Kljuc police to the security services centre,

4 and things like that.

5 Q. Well, sir, we've heard about those things at length over the last

6 several weeks. And the question I'm asking you has to do with this

7 particular document that I've shown you. And it indicates that it wasn't

8 just non-Serb police officers who were asked to sign new oaths, but it was

9 all members of the police that were asked to sign these new solemn

10 declarations, wasn't it?

11 A. Look, the signing and also putting on uniforms which had

12 exclusively ethnic insignia was not something that affected police

13 officers who were non-Serbs.

14 Q. Well, I'm going to insist, sir, that you answer my question, and

15 my question is this: All police officers, Serbs and non-Serbs, were asked

16 to sign this new solemn declaration, weren't they?

17 A. No, because in the meantime, while pressure was exerted,

18 specifically by my superior on me and other non-Serbs to sign over loyalty

19 to the Serb Republic, at the same time the Republican Secretariat for

20 Internal Affairs in Sarajevo instructed us not to sign these declarations

21 of loyalty because in taking over the duty of the commander, I did not

22 make an oath to the security services centre but I made the oath to the

23 existing government, which at that time was legally elected and which was

24 functioning.

25 JUDGE AGIUS: That's all -- that's all very clear to us. And

Page 10873

1 these are matters which, as has been pointed out to you, have been

2 explained to us by several of the previous witnesses. However, the

3 question was a very simple one, sir, and I will phrase it myself and

4 hopefully that will bring us to the next question then. I would assume

5 that in the police force before the takeover there were policemen from all

6 ethnicities, from all ethnic groups in Bosnia-Herzegovina. There were

7 Serb policemen or policemen of Serb ethnicity, policemen of Croat

8 ethnicity, policemen of Bosniak ethnicity, and possibly also of other

9 ethnicities. My question to you: Were policemen of Serb ethnicity after

10 the takeover asked to make this solemn declaration as well or not?

11 THE WITNESS: [Interpretation] Yes.

12 JUDGE AGIUS: Were the Croats -- Croat policemen or policemen of

13 Croat ethnicity asked to make this solemn declaration?

14 THE WITNESS: [Interpretation] Yes, yes.

15 JUDGE AGIUS: And were the Muslim policemen or policemen of

16 Muslim -- not exactly ethnicity, because that's a religion -- of Bosniak

17 ethnicity, were they also -- and you have explained this -- were they also

18 asked to make the solemn declaration, the oath of loyalty?

19 THE WITNESS: [Interpretation] Yes, yes.

20 JUDGE AGIUS: So finally, were there any policemen that were

21 exempted, that were not asked to make this solemn declaration?

22 THE WITNESS: [Interpretation] No, there were no police officers

23 who were exempted.

24 JUDGE AGIUS: Yes.

25 MS. KORNER: Your Honour, this witness has been brought here -- I

Page 10874

1 understood -- Mr. Ackerman gave no reasons for asking him to come here.

2 But all of this was set out on page 13 of his statement. It's absolutely

3 clear. We've spent ten minutes going around the houses.

4 MR. ACKERMAN: Your Honour, that's not true that it was in his

5 statement. He didn't say all police officers were required to take the

6 oath.

7 MS. KORNER: Your Honour, if one looks at page 13 "Reserve

8 policemen from all stations in the municipality of Kljuc were summoned to

9 the respective buildings to sign the oath of loyalty. This included the

10 Serb and non-Serb reserve police officers."

11 MR. ACKERMAN: Reserve police officers, yes. I haven't even asked

12 about them yet. I probably won't.

13 JUDGE AGIUS: [Microphone not activated] Yes, Mr. Ackerman. Next

14 question, please.

15 MR. ACKERMAN:

16 Q. All right, sir. Prior to the takeover by the Serbs in the

17 establishment of the government of Republika Srpska, if a person wanted to

18 become a police officer and were handed a solemn declaration for them to

19 sign, and they refused to sign it, could they become a police officer?

20 A. No. But may I clarify that?

21 Q. Yes.

22 A. By signing this declaration in a ceremony, this was preceded by

23 three or four important things. Please allow me to state what they are.

24 Following the multi-party elections in Kljuc, the SDS party received the

25 leading place. So Vinko Kondic became the chief, and the commander's post

Page 10875

1 was awarded by the SDA party and that post was given to me.

2 MR. ACKERMAN: [Previous translation continues] ... and has

3 nothing to do with an explanation of the answer.

4 JUDGE AGIUS: [Microphone not activated] And the points he is

5 mentioning --

6 THE INTERPRETER: Microphone, please.

7 JUDGE AGIUS: And the points he is mentioning more or less we know

8 already.

9 Just try to answer the question. This is a simple question. You

10 don't need to worry about the consequences arising out of these questions

11 because those, we have to decide and not you or Mr. Ackerman or

12 Ms. Korner.

13 The question was a very simple one: Would anyone who would refuse

14 to sign such an oath of loyalty expect or be expected to be then recruited

15 as a police officer?

16 THE WITNESS: [Interpretation] According to the present or current

17 conditions, no.

18 JUDGE AGIUS: No. That's it.

19 Next question, Mr. Ackerman.

20 MR. ACKERMAN:

21 Q. That solemn declaration that you have there -- that you had there

22 before you. I don't know what you did with it, but you had it there.

23 There it is. Sir, nowhere in there does it pledge any kind of loyalty to

24 the Autonomous Region of Krajina, does it?

25 A. Of course it's not mentioned, no.

Page 10876

1 Q. All right. I want to have my original back. I just have one

2 thing to say for the record about it, Your Honour. I want to point out,

3 Your Honour, for the record that the original of this document refers to

4 the law on internal affairs of the Serbian Republic of Bosnia-Herzegovina,

5 Official Gazette number 4 of 23 March 1993. That's what -- now, the

6 original says "1992." The translation says "1993." It's a mistranslated

7 document.

8 All right, sir. The president of the municipality after the

9 multi-party elections was Jovo Banjac; correct?

10 A. Yes.

11 Q. And the vice-president was Omer Filipovic?

12 A. Yes.

13 Q. And in your statement -- and I'm not going to go through all of

14 these things, because that isn't what you're here for. In your statement

15 you spoke of a lot of changes that were taking place in Kljuc after the

16 multi-party elections and especially as we got up to the early parts of

17 1992, culminating with that takeover of the police that we've just been

18 talking about on May 7th of 1992. What I -- and that's the way that --

19 the question I want to ask you: In addition to Jovo Banjac being the

20 president of the municipality, there was a gentleman by the name of Omer

21 Filipovic who was vice-president; correct?

22 A. Yes.

23 Q. What I'd like to ask you is: Why is it that Omer Filipovic did

24 not prevent these things from happening by ordering Kondic, for instance,

25 not to demand this new oath of police? Why didn't he just take over and

Page 10877

1 order that these changes not be made? I mean, he was the vice-president.

2 A. He was the vice-president, but it is difficult for me to talk

3 about why he didn't do that. I know that he tried on several occasions,

4 according to the ethnic structure, to improve the participation of the

5 Bosniak ethnic group in the police station, so that persons prone to

6 crimes or extremists do not be accepted into police service. So these

7 things really he didn't manage to achieve.

8 Q. But as vice-president he had the same authority as Jovo Banjac,

9 the president, didn't he, the same power and authority?

10 A. Yes.

11 Q. Why didn't he exercise that authority and keep these things from

12 happening? That's what I want to know.

13 A. I don't know why he didn't. I've already said that he tried to do

14 certain things, but he couldn't do that. It couldn't get past Mr. Vinko.

15 Why he didn't do that, I don't know.

16 Q. I want to go to another matter. It to refer to some language on

17 page 15 of your statement. It's down near the bottom. It has to do with

18 the death of Dusan Stojakovic. What you say in your statement is that, "I

19 learned that Stojakovic had been killed in Krasulje after Pudin Han and

20 Velagici had been shelled. The people of Krasulje had gathered by the

21 road. Some of them had hunting rifles. A police patrol and about seven

22 to eight members of the manoeuvring unit arrived in the village of

23 Krasulje led by Stojakovic. When he got out of the car, he shot a round

24 of automatic rifle fire towards these people. Somebody from the group of

25 civilians from this village must have returned fire and hit him and killed

Page 10878

1 him."

2 When you say you learned about this, where did you learn about

3 this?

4 A. I learned about it in the Manjaca camp, because on the 22nd of

5 May, when I refused to sign this declaration of loyalty that we discussed

6 a little while ago, I went to Sanica with my family because the school

7 year finished one month earlier because my wife, who was the manager of a

8 retail store, was sent on holiday. So I went to Sanica and I was there

9 until the 1st of June, until the Serb police officers and reserve officers

10 pickled me up from my brother's house and took me away.

11 Q. So you weren't there, and the only way you know what happened is

12 because of what someone told you.

13 A. Yes. I heard about this while I was at the Manjaca camp. I knew

14 Dusan Stojakovic very well, while we worked together, before all the

15 problems appeared. We worked very well together. And for a while I was

16 his superior.

17 Q. [Previous translation continues] ... just answer my questions when

18 I -- the question was very simple. What you know about this you learned

19 in Manjaca, and you've answered that.

20 The next question I want to ask you about is you mentioned in your

21 statement on page 20 that while you were at Manjaca a man by the name of

22 Vojo Kupresanin came to visit. My question is simple: Do you know what

23 his position was at the time he came and visited Manjaca, what position he

24 held, if any?

25 A. I don't know what his position was, but I know that he came

Page 10879

1 because as the person in charge of the barn I was -- the stable, so I was

2 there together with people who were performing the same functions as I

3 was.

4 Q. The -- you made a statement of 8 August 1995, and it's a statement

5 that was made to -- it says "Security Services Centre Banja Luka," signed

6 by you and a couple of other people. You're familiar with that statement,

7 I take it? If you need to see it, I can have it given to you so you can

8 see it. I want to be fair with you about what I'm going to ask you.

9 A. I would just like to look at the signature of that statement, and

10 then I can comment on it.

11 Q. That's fine. I'd like the Prosecutor to give you that statement

12 of 8 August 1995. It's 00488270.

13 A. Yes. I gave this statement to a colleague, but I don't know if

14 you are aware that in Travnik there was a Security Services Centre Banja

15 Luka. It had its headquarters in Travnik. After the soldiers came to

16 Kljuc and liberated Kljuc and Sanski Most and so on, they continued to

17 collect such statements, but the heading was still "The Centre for

18 Security Services Banja Luka." But here it doesn't state that this is the

19 Travnik HQ.

20 Q. We're aware of all these things, sir. We've seen other documents

21 like this.

22 I want to refer you to the second page. You're talking about what

23 happened in Manjaca to Omer Filipovic, and there's a paragraph that begins

24 with the language "Three or four days after Omer's conversation by the

25 kitchen."

Page 10880

1 It says "Omer was taken to a solitary cell where he spent 15 days.

2 After the period spent in the solitary cell, Omer was brought back to the

3 barn. He had been beaten up, half alive. They made a calf box in the

4 barn. He was placed in there, and nobody was allowed to come closer to

5 him. He spent one or two nights there, but he was taken for interrogation

6 even in that condition on 27/28, or 28/29 August 1992. After the lights

7 out, a group of policemen came and asked him to come out of the barn."

8 Now, with regard to that, sir, I have just a couple of questions:

9 Were you in the barn -- in that same barn when policemen came and called

10 Omer Filipovic to come out?

11 A. No. I wasn't in that barn. That was in barn number 3. I was in

12 barn number 2. But as the person in charge of the barn, in the morning I

13 heard about all of this from my colleague on duty in barn number 3, Zukic,

14 who told me all about it.

15 Q. All right. So again, this is not something you yourself witnessed

16 but something you heard.

17 A. I saw a group of police officers when they took him out, because

18 the barns had cracks. We spent seven months there -- almost seven months

19 there. So we could see through the cracks between the planks when they

20 took him away.

21 Q. So I assume you could also hear. Did you hear them call him out?

22 A. I cannot say. I knew that it was Omer, but ...

23 Q. Do you know Adil Draganovic?

24 A. Yes. I met him at Manjaca.

25 Q. What barn was he in?

Page 10881

1 A. He was in barn number 3.

2 Q. You talked in your statement about the visit of Stojan Zupljanin

3 to Manjaca. And at first in your statement you said that he was wearing a

4 blue camouflage uniform. Then when you reviewed that statement on July

5 27th, 2001, you changed your mind and said he was wearing civilian

6 clothes. Can you tell us why you made that change?

7 A. When I gave the statement for the first time, I wasn't

8 concentrating very well. But since I knew Mr. Zupljanin, I purposely

9 avoided meeting him at Manjaca. And later when I concentrated, then I

10 could see the image -- I remembered exactly where he was, in a suit with a

11 few tie and a white shirt. So it was a civilian shirt, navy blue. There

12 was so much fear in Manjaca, so that when I gave my statement for the

13 first time, perhaps I thought that he was in uniform, because I became

14 used to seeing him in uniform.

15 Q. When did you leave Manjaca?

16 A. On the 16th of December, 1992, the group before last.

17 Q. Did you have a jacket that had been issued to you by the Red

18 Cross, a winter jacket?

19 A. Yes.

20 Q. Could you describe that jacket to the Court, please.

21 A. Those winter jackets are well known. Practically all of us got

22 one. It was green and blue here. It was a long time ago. I know that I

23 reached Karlovac in that jacket.

24 Q. And you also were wearing shoes that were issued by the Red Cross,

25 weren't you?

Page 10882

1 A. No, not shoes.

2 Q. All right.

3 MR. ACKERMAN: That's all I have, Your Honour. Thank you.

4 JUDGE AGIUS: I thank you, Mr. Ackerman.

5 Is there re-examination or some questions maybe?

6 MS. KORNER: No, Your Honour. I just want to be sure I

7 understand. Is there anything that this witness said in his statement

8 that is actually challenged?

9 JUDGE AGIUS: Mr. Ackerman.

10 MR. ACKERMAN: My examination speaks for itself, Your Honour. I

11 won't go beyond it.

12 MS. KORNER: Well, there's no re-examination of this witness.

13 JUDGE AGIUS: Thank you.

14 So Atif Dzafic, that brings us to the end of your testimony here.

15 You're free to leave this courtroom and return to your country, and in

16 fact the usher will escort you out of this courtroom, and then you will be

17 attended to by other officials of this Tribunal, who will make sure you're

18 assisted in your return.

19 Before you leave this courtroom, however, it is my duty and also

20 my wish on behalf of the Tribunal and on behalf of the two Judges that sit

21 with me in this trial to thank you for having accepted to come here and

22 give evidence. Thank you, and you may now leave.

23 THE WITNESS: [Interpretation] I should like to take advantage of

24 the opportunity to thank all those who have invested time and effort and

25 made many sacrifices to prove the truth as to what happened in Bosnia and

Page 10883

1 in Kljuc municipality.

2 JUDGE AGIUS: Thank you, sir. Have a safe journey back home.

3 [The witness withdrew]

4 JUDGE AGIUS: So ...

5 MS. KORNER: Your Honour, I can make -- I'm going to make no

6 comment on the content of the cross-examination, if that's what it was,

7 only to ask this: That in future perhaps reason should be given for why a

8 witness's statement is not accepted under Rule 92. No reason was given --

9 reasons were given on behalf of General Talic, but no reason was given on

10 behalf of Brdjanin.

11 JUDGE AGIUS: I don't quite agree with you.

12 MS. KORNER: If Your Honour looks at your own decisions on this

13 witness - it's page 4 of the decision --

14 JUDGE AGIUS: Yes.

15 MS. KORNER: -- and you state: "Brdjanin does not give any

16 reasons -- at paragraph 9: "Brdjanin opposes the admission into evidence

17 pursuant to Rule 92 bis of this witness's statement unless the witness is

18 required to appear for cross-examination." And then you set out your own

19 ruling that "The Defence should explain the reasons for its objection,

20 having regard to the fact as set out in Rule 92 bis. Brdjanin does not

21 give any reasons for his opposition."

22 JUDGE AGIUS: Okay. Yes, Mr. Ackerman.

23 MR. ACKERMAN: Well, as a matter of fact, Your Honour, I had -- I

24 didn't think this witness was even going to be here. I thought I took

25 care of that earlier in the week when I said I had not objected to the

Page 10884

1 Rule 92 bis people, so I couldn't demand that they be here. And when I

2 got a phone call at 4-something yesterday afternoon I was quite surprised

3 that there was an additional witness.

4 JUDGE AGIUS: You were not the only one to be surprised.

5 MR. ACKERMAN: I thought we had finished with the Kljuc part of

6 this case. So I would hope --

7 JUDGE AGIUS: Okay. Let's move to the rest of our business today.

8 Yes, Ms. Korner, before we do so, the --

9 MS. KORNER: Oh, yes, Your Honour, I'm sorry -- before we do that,

10 the motion that was filed.

11 JUDGE AGIUS: Not the motion, the --

12 MS. KORNER: No, Your Honour, but I'm sorry, there's something

13 urgent that needs to be done. I was rung by your court deputy and asked

14 whether this motion could be filed openly. The only name that was

15 mentioned in the motion -- that she mentioned was that of Vinko Kondic.

16 And I said no. However, Your Honour, I was unaware of the fact that

17 Mr. Ackerman proceeded to quote a massive chunk from the interview of the

18 witness who is coming, 7.234. Your Honour, that chunk will undoubtedly

19 identify who he is. Your Honour will recall that the witness summons was

20 a confidential one, as far as the matter is concerned, and I am told that

21 by -- when we were informed, the summons had been served, this witness

22 wanted protective measures. So Your Honour, I would ask -- I know it's a

23 bit late, but I only appreciated that when I had a chance to look at it --

24 but that the motion be not handed to the press section and be filed

25 confidentially now.

Page 10885

1 JUDGE AGIUS: Unless it has already been handed to the press.

2 MR. ACKERMAN: No objection to that, Your Honour. I didn't know

3 these things about this witness.

4 JUDGE AGIUS: I take your word, Mr. Ackerman.

5 However, we -- Ms. -- Madam Chuqing, do I have an assurance that

6 this motion has not yet been handed to the press, to the public?

7 MS. KORNER: I don't know, Your Honour. I hope it hasn't. It was

8 only filed at 11.30.

9 THE REGISTRAR: We will move very fast. We will try to get it

10 back.

11 JUDGE AGIUS: All right. But it's the decision of this Chamber

12 obviously is in conformity with the requests of the Prosecution as

13 accepted or as not opposed by the Defence. So it will be filed

14 confidential.

15 What I wanted to tell you, Ms. Korner: The document signed by

16 Mrs. Maric, which was faxed to you and which you presented earlier, I

17 suppose is being tendered as an exhibit? In which case, please, could you

18 give us --

19 MS. KORNER: The next number, Your Honour --

20 JUDGE AGIUS: 112 --

21 MS. KORNER: I think will be P -- Your Honour, the first one would

22 be P1124. That's the record. I'm sorry, that's the one dated the 4th of

23 August. And then the second one, dated the 30th of October, 1992, would

24 be P1125.

25 JUDGE AGIUS: Which is the one -- oh, 4th of August.

Page 10886

1 Do you have both, Mr. Ackerman, or do you have one?

2 MR. ACKERMAN: I have them, and I have no objection to them, Your

3 Honour.

4 JUDGE AGIUS: Okay. Thank you. So they are so being admitted as

5 P1124 and P1125 respectively.

6 Thank you, Ms. Korner.

7 Thank you, Mr. Ackerman.

8 Yes. We now come to the motion. And as I take it now, certain

9 points of it will probably require us to go in private session then. No?

10 MS. KORNER: Your Honour, no, I don't think so. Not for the

11 moment. My concern was that when I saw this chunk -- I say "when I saw

12 it," it was somebody else on the team realised what it would do -- is that

13 that would identify him clearly to anybody reading it.

14 As far as the references to Mr. Kondic are concerned --

15 JUDGE AGIUS: That's okay. There's no problem.

16 MS. KORNER: There's no reason, no, why we need to go into private

17 session.

18 JUDGE AGIUS: All right. So --

19 MS. KORNER: Mr. Kondic's name has been mentioned throughout this

20 case.

21 JUDGE AGIUS: All right. So it's 3.25. Shall we start straight

22 away or shall we have a short break now and start immediately after? What

23 do you prefer?

24 MR. ACKERMAN: Is it your intention to go through this motion

25 today, Your Honour, and then --

Page 10887

1 JUDGE AGIUS: Yes, of course.

2 MR. ACKERMAN: Because the Prosecution hasn't responded to it.

3 JUDGE AGIUS: Yeah, but -- I only got it -- it was almost half

4 12.00 when I was informed of the contents and about 20 minutes later when

5 I first saw it. So I am not surprised at all that the Prosecution have

6 not yet filed a response.

7 MS. KORNER: Your Honour, I --

8 JUDGE AGIUS: But I would expect the Prosecution to make

9 submissions orally.

10 MS. KORNER: Your Honour, I'm proposing to. I have one small

11 hesitation, and that's in relation to the first part of this motion, which

12 is that any rulings Your Honour make has an effect on other cases in this

13 building, and that's why I was -- I would prefer to have that dealt with

14 tomorrow after I've had a chance to consult, A, with the Prosecutor, and

15 B, with other people. But Your Honour, I prepared to deal with it this

16 afternoon.

17 JUDGE AGIUS: No, we'll deal with it. It's a very serious matter,

18 Ms. Korner, as presented.

19 MS. KORNER: Yes.

20 JUDGE AGIUS: And this Trial Chamber has to look at it, having

21 heard one bell, one bell only for the time being. I think it's our

22 duty to deal with it straight away. We'll certainly listen to what you

23 have to say. And if you need a short time after that to verify things and

24 perhaps then supplement your oral submissions -- your oral argument with

25 further written ones, you will certainly have that opportunity. However,

Page 10888

1 I think we should -- we should take stock of the whole motion today.

2 MS. KORNER: Exactly.

3 JUDGE AGIUS: Whether each and every one of these requests being

4 put forward by the Defence will be decided today or not is another matter.

5 But I think we need to hear submissions today.

6 MS. KORNER: Well, Your Honour, I'm perfectly prepared to do that.

7 Your Honour, in a sense, I'd prefer to deal with part 2, because

8 that is the more urgent. I hope when Your Honour has heard what I have to

9 say about what in many respects is a misleading account of events given to

10 you on part 1, then Your Honour will feel that that in itself will have no

11 effect on the progress of this trial. But part 2 certainly does, because

12 if Your Honour accedes to Mr. Ackerman's motion, it's effectively -- this

13 trial should be brought to a halt. He's never said it before, but I think

14 he's now saying he can't possibly be ready for Prijedor next week, even

15 with the time off.

16 JUDGE AGIUS: Yes. But even with regard to the first part of the

17 motion, the Rule 68 applicability or alleged violation of, if you see para

18 32 of the motion, Mr. Ackerman believes that the logical conclusion of his

19 argument, if accepted by this Tribunal -- by this Chamber, should be

20 seizing the presentation of witnesses until this matter is sorted out.

21 MS. KORNER: Well, Your Honour, it's just another -- it's another

22 go, if I may put it that way, at stopping the Prijedor evidence being

23 called at this stage.

24 JUDGE AGIUS: Yes. But let's hear Mr. Ackerman first.

25 Do you prefer to start now or after the break, Mr. Ackerman?

Page 10889

1 MR. ACKERMAN: Well, Your Honour, I think -- I think I have stated

2 my position fairly clearly in the motion. I have tried to. If there are

3 questions that Your Honours have --

4 JUDGE AGIUS: No, no.

5 MR. ACKERMAN: I'd be happy to answer that.

6 JUDGE AGIUS: We certainly don't have questions. What I was

7 trying to get out of you is whether you want to supplement any further --

8 these arguments with any further oral submissions.

9 MR. ACKERMAN: No, I don't.

10 JUDGE AGIUS: If you're happy with what you have -- and we are

11 incidentally -- I told my assistant legal officer to inform both of you

12 that your request to exceed the usual -- was being granted. So if you're

13 happy with what you have here and feel you don't need to supplement it

14 with any further oral submissions, then we can move to the Defence -- to

15 the Prosecution and see what they --

16 MR. ACKERMAN: Well, as Your Honour knows, I was trying to file it

17 as quickly as I could and I --

18 JUDGE AGIUS: Yeah. I appreciate that.

19 MR. ACKERMAN: I probably could make it better. So I'm not

20 totally happy with it, but I'm satisfied that it states my position.

21 MS. KORNER: I'm sorry, I don't know what Your Honour -- exceeds

22 the usual what?

23 JUDGE AGIUS: The page limit.

24 MS. KORNER: We haven't been given any indication of any page

25 limit because we said we'd reply orally. So I don't know anything about

Page 10890

1 it. The page limit of the motion?

2 JUDGE AGIUS: Yes.

3 MS. KORNER: In fact, we were told, I think -- I don't think it

4 does exceed the page limit, does it? Twelve pages.

5 JUDGE AGIUS: It does.

6 MS. KORNER: I see. Well, Your Honour, I take no point --

7 JUDGE AGIUS: But anyway, I think it's neither here nor there.

8 It's something that is of marginal or of any -- it's a de minimis, thing

9 anyway.

10 So do you prefer to start now, Ms. Korner?

11 MS. KORNER: Your Honour, I'm perfectly happy. Whatever you want.

12 JUDGE AGIUS: Yes. Please go ahead.

13 MS. KORNER: Would Your Honour like me to deal with it then in the

14 way the motion is set out?

15 JUDGE AGIUS: I would suggest so because I think although all

16 the -- all the matters that -- the items that are discussed here -- and it

17 is indeed three motions in one. But the last two are more or less

18 interrelated. The first one is --

19 MS. KORNER: I think it's two motions in one. I don't think

20 there's a third that I'm aware of. The first is the alleged deliberate

21 failure of the Prosecution to disclose Rule 68 --

22 JUDGE AGIUS: Then there is the military one as a result of the

23 severance. And then there is the Prijedor --

24 MS. KORNER: But I think military and the Prijedor are wrapped up

25 together.

Page 10891

1 JUDGE AGIUS: Yeah, they are wrapped up, but they are separate

2 too.

3 MS. KORNER: Right.

4 JUDGE AGIUS: The --

5 MS. KORNER: Well, Your Honour, those are very simple, in our

6 submission.

7 THE INTERPRETER: Could the speakers please not overlap.

8 JUDGE AGIUS: Yes, exactly. Like Mr. Trbojevic and the rest of

9 the clan.

10 So we'll try to pause between interventions, Ms. Korner and

11 myself.

12 MS. KORNER: I'm sorry, I didn't --

13 JUDGE AGIUS: Yeah. Because we are committing the same sin that I

14 have been censoring Mr. Trbojevic for.

15 MS. KORNER: I see.

16 Your Honour, the first point I must make, and I have been making

17 it repeatedly over the last few days or the last few weeks, is that I take

18 the gravest possible exception to the constant allegations of deliberate

19 prosecutorial misconduct. Your Honour, there is no foundation for those

20 allegations other than they look good in print. And I deeply deplore the

21 attitude that has been taken in recent times by Mr. Ackerman. Up until

22 now, this trial has been conducted in what I hope is a fairly amicable

23 manner on all sides, and no suggestions have been made on any side of

24 deliberate misconduct. This is now apparently ceasing.

25 Your Honour, this question of the interviews that have been

Page 10892

1 conducted with these persons has been an on-and-off topic since September

2 of last year -- I think last year. And Your Honours may recall that from

3 time to time that the topic has been mentioned, and I cannot now

4 immediately remember in what content I said it or when, but I recall quite

5 clearly telling the Court that the Prosecution was disclosing Rule 68

6 material from these interviews but was not prepared to hand over the

7 transcripts unless and until, as in the case of the witness that Your

8 Honour knows about, these people were being called as witnesses by us.

9 Your Honour, those are the rules. If the rules are changed, then

10 of course we will abide by them. But Rule 66 says we are obliged to

11 supply to the Defence -- if I turn to -- "disclosure" -- Rule 66:

12 "Disclosure by the Prosecutor."

13 66(A)(ii): "within the time-limit prescribed by the Trial Chamber

14 or by the Pre-Trial Judge, copies of the statements of all witnesses whom

15 the Prosecutor intends to call to testify at trial and copies of all

16 written statements taken in accordance with Rule 92 bis," et cetera, et

17 cetera.

18 Our only obligation in respect of these interviews is to notify

19 under Rule 68: "The Prosecutor shall, as soon as practicable, disclose to

20 the defence the existence of material known to the Prosecutor which in any

21 way tends to suggest the innocence or mitigate the guilt..."

22 Now, Your Honour, I am aware, and indeed we have never for one

23 moment suggested that we should simply tell the Defence that we are in

24 possession of Rule 68 material. We have turned over the nature of that

25 material.

Page 10893

1 Now, Your Honour, this matter did arise in September, as

2 Mr. Ackerman rightly says, at a Status Conference, because it was very

3 shortly after the first series of interviews with these persons had been

4 conducted, and it received a great deal of publicity in Banja Luka. And

5 the matter arose in the way as Mr. Ackerman quotes, save for this: There

6 was a discussion about how the material should be turned over. And in the

7 end the order that Judge Hunt made reads as follows, and I quote from page

8 357:

9 "Ms. Korner, you've heard what I said." I was -- at that stage --

10 I should read the previous part. I said: "Until we have the transcripts,

11 we can do no more than indicate that," what the Rule 68 material is. And

12 Judge Hunt said: "Well, Ms. Korner, you heard what I said. I don't

13 accept that. I expect you to do better than that, to indicate the subject

14 matter of the material, the nature of it, even if you haven't got the

15 precise wording of it. It's your obligation to do it. And whilst if we

16 had another year to wait before the trial started, it would be perfectly

17 appropriate to wait until you've got the transcripts, but this is far more

18 urgent than that and you've just got to cooperate by helping do more than

19 you basically feel you have to."

20 Now, that's, I think, the obligation that we are entitled to

21 insist on both sides but particularly the Prosecution in relation to this

22 material."

23 Your Honour, that was the end of the matter. There was at no

24 stage, contrary to what Mr. Ackerman asserts in paragraph 9 of the motion,

25 that he ordered provision of the actual transcripts at a later date,

Page 10894

1 because at all times since that time we have made it clear we will not

2 provide the transcripts.

3 Now, Your Honour, since that time -- we haven't had an

4 opportunity, because as I say, we got this motion quite late to add up the

5 number of witnesses -- we have disclosed to the Defence from the persons

6 interviewed a bundle of this size, containing not the actual words -- I

7 agree, but a summary of the nature of the -- or in the type that is

8 referred to by Mr. Ackerman.

9 I can hand to Your Honour, because that's been specifically

10 referred to -- to Your Honours -- what we provided. And I accept only on

11 the date mentioned the Rule 68 material from the interview of Mr. Kondic.

12 JUDGE AGIUS: When -- let me see the document first.

13 And that was handed to the Defence? When.

14 MS. KORNER: On the date given to Mr. Ackerman. I think two or

15 three days or the beginning of the week.

16 JUDGE AGIUS: 15th October; correct?

17 MS. KORNER: 15th October. If that's the date.

18 JUDGE AGIUS: Correct?

19 MS. KORNER: Yes.

20 Now, Your Honour, on this one occasion, I accept there was a

21 delay. And the reason for that delay -- and I would hope in the light of

22 what Mr. Ackerman knows of me and Your Honours would accept that this was

23 delayed for two reasons: The first is that the investigator who conducted

24 the interview left to go on another mission almost immediately. I was

25 aware that he had been taken off doing -- going through the interview

Page 10895

1 again just before he left because one of the other things we have been

2 doing is conducting a massive, massive Rule 68 search in relation to

3 Prijedor. I think Your Honours have heard this before, that within this

4 building Prijedor is probably the most over-investigated municipality that

5 there ever was. It was the first municipality to be investigated. And

6 the Office of the Prosecutor has accumulated huge quantities of

7 statements, not only taken by the investigators from the Office of the

8 Prosecutor but also submitted by the Bosnians themselves in the original

9 language. Because we were aware of the problems that had been caused in

10 some of the cases that are going to appeal at present, we decided that we

11 would have to do a thorough search not only in relation to the obvious

12 exculpatory material but to see whether witnesses who we were not using

13 had made any statements which contradicted, in a material element, the

14 statements of the witnesses we had chosen to call, because that is an

15 obligation under the Rules.

16 As a result of that, the -- every investigator working was

17 virtually put onto this job, which ran for months. And at the end of

18 that, we have actually disclosed some of the material.

19 I appreciated suddenly that we had never actually completed this

20 exercise in relation to the interview of this man, who was interviewed as

21 a suspect, so that he had a lawyer present. Your Honour, part of the

22 problem arose -- and I make an apology for that simply because of all the

23 events involving General Talic, it just slipped my mind. And remembered

24 it last week and I said that it had to be disclosed. And so on this

25 occasion, I'm sorry, there was late disclosure. And I appreciate that

Page 10896

1 what he has to say is relevant to the municipality of Kljuc.

2 If Your Honour looks at what he's actually saying, we have always

3 erred on the side of, as it were, leniency, because many of the things he

4 says in my view probably aren't Rule 68, but nonetheless we thought it

5 better, as I say, to err on the side of leniency. We have disclosed

6 throughout anything -- and we're going to go back and check through all

7 the interviews to make sure that we haven't missed anything -- that we

8 took could be Rule 68 from these interviews. Not one person, not one

9 witness -- and the Banja Luka people were the first to be interviewed --

10 has ever been cross-examined on any of the matters that we disclosed.

11 There is a further added aspect to this case. Most of the

12 witnesses - most - a goodly proportion have been seen at one stage or

13 another by the Defence. These are people all available to the Defence

14 living in Banja Luka, all of whose names the Defence are aware of. The

15 witness who is being called, who as I shall explain when we come to

16 calling him, is in a special category of witness, has been seen by

17 Mr. Ackerman's own investigator before we even interviewed him.

18 So Your Honour, we are in the situation where we have not

19 disclosed the word-for-word but the gist or a summary of what was said and

20 what could be said to be constituting Rule 68.

21 Your Honour, Mr. Ackerman's demands, if I go through them --

22 JUDGE AGIUS: I was going to suggest to you that we take the first

23 part bit by bit as presented by Mr. Ackerman. You've dealt with the

24 Kondic matter. And if you look at para 4, there are two points that are

25 brought up by Mr. Ackerman: First he considers or he submits that there

Page 10897

1 is at least a situation which demands an explanation. And I think you

2 have provided the Chamber with an explanation.

3 And then the second point made by Mr. Ackerman is how could it be

4 that an interview is conducted on 30th August and 1st September and its

5 contents cannot be disclosed until the Defence until 15th October? This

6 is a violation of this as soon as practicable language of 68. You seem,

7 if I read you well, to agree in principle that it is not in conformity

8 with -- what happened was not in conformity with Rule 68, however --

9 MS. KORNER: Yes. I mean --

10 JUDGE AGIUS: As explained by you --

11 MS. KORNER: Yes. Your Honour, I accept full responsibility.

12 JUDGE AGIUS: All right.

13 MS. KORNER: It should have been disclosed earlier and owing to a

14 combination of factors it wasn't. But there was one added factor. And if

15 and if my word is not accepted on this, I will call evidence.

16 The tapes on this interview which was conducted turned out to be

17 extremely bad, and the -- it had to go back to be enhanced and re-recorded

18 before someone could listen to it. But Your Honour, that still doesn't --

19 only accounts for a small proportion of the time. The majority -- it was

20 my failure. I forgot about it.

21 JUDGE AGIUS: And then the next point arises out of what follows.

22 And particularly I refer you, Ms. Korner, to paras 19, 20, 21 in

23 particular, because that's where I fit into the scene. And it seems that

24 there is an allegation that although a year ago more or less -- it's not a

25 year ago, but we're talking of ten months ago -- we had a commitment on

Page 10898

1 the -- on your part that you will be handing -- will be providing the

2 Defence with Rule 68 material with the caveat that you maintained your

3 position that certainly this would not be the full transcripts. Okay?

4 Mr. Ackerman seems to allege, if I read you -- if I don't read you

5 well, please do correct me, Mr. Ackerman. But the allegation as contained

6 in para 23 is that you have not fulfilled this commitment; in other words,

7 that in these ten months, you have not provided the Defence with the Rule

8 68 material that was in your possession then and which you were working

9 upon.

10 Do I read you well?

11 MR. ACKERMAN: Yes.

12 MS. KORNER: Well, Your Honour, I thought I'd dealt with that.

13 JUDGE AGIUS: But I want to know whether that allegation --

14 whether you are accepting that allegation or not.

15 MS. KORNER: No.

16 JUDGE AGIUS: You're not accepting it.

17 MS. KORNER: Absolutely not.

18 JUDGE AGIUS: So in other words you're saying that whatever Rule

19 68 material you were working upon way back in January of this year, when

20 all this was entered into the records of this case, has been disclosed to

21 the Defence under Rule 68.

22 MS. KORNER: Your Honour, the interview -- we disclosed before

23 January of this year, immediately after -- or I can't remember how long

24 after, but we've got a record -- the summaries of what was said which

25 could be considered to be Rule 68.

Page 10899

1 JUDGE AGIUS: Yeah. Okay.

2 MS. KORNER: Not the actual wording. We've never disclosed the

3 actual wording.

4 JUDGE AGIUS: Yeah. Okay. I mean -- let's have a break, because

5 I realise that I have overstepped.

6 Let me make the point. If you go back with your memory, as I'm

7 trying to do now, to January of this year. At the time you made the

8 statement, if I remember well, that upon a specific submission or request

9 from Mr. Ackerman, that there were several -- there was probably several

10 material under Rule -- which you would be required to disclose under Rule

11 68 which you will disclose in due course. But in the meantime, you were

12 still waiting for transcripts of tapes and --

13 MS. KORNER: Your Honour, I'll go back in the break and get out

14 the --

15 JUDGE AGIUS: Yes. Check that.

16 MS. KORNER: The actual transcript for January.

17 JUDGE AGIUS: Yes. That was precisely what we discussed back in

18 January. I do remember it. Take your time. But obviously you need

19 translations and transcripts to be provided before you can actually

20 determine that there is indeed Rule 68 material to be disclosed.

21 So we'll take up the matter from there after the break. We have

22 25 minutes' break. All right?

23 --- Recess taken at 3.51 p.m.

24 --- On resuming at 4.20 p.m.

25 MS. KORNER: Your Honour, I copied for Your Honours the relevant

Page 10900

1 part of the Pre-Trial Conference.

2 JUDGE AGIUS: Yes.

3 MS. KORNER: Of the 16th of January. Can I hand that in.

4 JUDGE AGIUS: Yes. Thank you, Ms. Korner.

5 MS. KORNER: And Your Honour, I'm sorry. Can I just go back for a

6 moment, while I remember, to the documents that I put in this morning.

7 One of them reveals the whereabouts of the witness. Your Honour, rather

8 than file the document confidentially, could we have leave to redact from

9 the version that we've given to the Registry just the country, and that

10 way it can remain an open document.

11 JUDGE AGIUS: Any objection, Mr. Ackerman?

12 MR. ACKERMAN: No, Your Honour.

13 JUDGE AGIUS: Okay. So that's how it will be.

14 MS. KORNER: Thank you.

15 JUDGE AGIUS: Okay.

16 MS. KORNER: If it's given back to us, we'll give the redaction

17 ourself and then give it back to the Registry.

18 JUDGE AGIUS: Yes. Okay.

19 MS. KORNER: Your Honours, the matter was raised by Mr. De Roux at

20 page 496. And Your Honours, you'll see that I say: "We are doing exactly

21 what we were ordered to do last time by Judge Hunt, which is to go through

22 the interviews and disclose in them anything which may be of Rule 68. And

23 that will happen. And it's simply a question of the investigators at the

24 moment re-listening to the tapes. Anything that is Rule 68 will be --

25 THE INTERPRETER: Could Ms. Korner please slow down.

Page 10901

1 MS. KORNER: -- December, but in fact I think Your Honour was

2 mistaken there because there was a discussion about Rule 68, but nothing

3 to do with -- I've just checked that-- with the transcripts of these

4 interviews.

5 Your Honour, I've now checked, and of those interviews that were

6 conducted in December of 2001, we disclosed Rule 68 information in

7 relation to one -- I've lost them now. Here we are -- one, two, three,

8 four witnesses. That was disclosed. So I reject Mr. Ackerman's

9 suggestion that we disclosed nothing.

10 And Your Honour, I'm going to come to the question of

11 Mr. Ackerman's memory of disclosure. I don't say he's doing this

12 deliberately but --

13 JUDGE AGIUS: Were there others that were not disclosed?

14 MS. KORNER: There were others that were read but did not contain

15 Rule 68 material. I mean, others -- I'm sorry, "read" is the wrong way --

16 that we went through, but there was no Rule 68 material that we could see

17 in them.

18 JUDGE AGIUS: So when you say that you disclosed four, you

19 disclosed the entire.

20 MS. KORNER: No, we've never disclosed, Your Honour. And I've

21 said this over and over again, and Mr. Ackerman even quotes me saying it

22 in his motion. We have never disclosed the full transcripts.

23 JUDGE AGIUS: No, no, no. I'm -- leave for the moment -- leave

24 out completely any reference to whether it should be a full transcript --

25 MS. KORNER: Yes.

Page 10902

1 JUDGE AGIUS: -- or not, because I think that is something which

2 we've heard about enough in the past and which has been dealt with

3 elsewhere as well, and I don't think we need any lectures on that.

4 However, you say: "Your Honour, I've now checked. And out of

5 those interviews that were conducted in December of 2001, we disclosed

6 Rule 68 information in relation to one -- I've lost them now. Here we

7 are -- one, two, three, four witnesses. That was disclosed. So I reject

8 Mr. Ackerman's suggestion that we disclosed nothing." So we disclosed

9 four. Were there any others -- going back to the period December --

10 September 2001 and December 2001 that should --

11 MS. KORNER: All of that --

12 JUDGE AGIUS: -- should have been disclosed, or was the four that

13 you disclosed the entire -- in other words, you fulfilled entirely your

14 obligation under Rule 68 when you disclosed those four?

15 MS. KORNER: By the -- yes. By that stage, Your Honour, when this

16 was raised we had already, I think, in September or October disclosed Rule

17 68 information in relation to the first set of interviews. I don't know

18 why I keep calling them witnesses. Persons interviewed.

19 JUDGE AGIUS: Yes.

20 MS. KORNER: And then there was as Mr. De Roux pointed out, it was

21 known that we had interviewed further people in December and we then

22 complied with our Rule 68 obligation in relation to those interviews.

23 Your Honour, I -- in the interval, Ms. Richterova very kindly has

24 gone back and done a check for me, and I should say that interviews were

25 conducted in relation to the Stakic case.

Page 10903

1 JUDGE AGIUS: One moment. Before you move to the Stakic case, one

2 moment, Ms. Korner.

3 MS. KORNER: Yes.

4 JUDGE AGIUS: Let's -- be patient. We -- because there are

5 several allegations, and I don't want to miss any one of them here.

6 There is para 24, which states as follows: "As best as can be

7 determined, what has been provided with regard to the 6 September 2001

8 order by Judge Hunt are a few notifications of the existence of Rule 68

9 material. Among these are notifications of interviews with a number of

10 persons that are mentioned here, including an indication of the nature of

11 the Rule 68 material contained in those interviews. In all cases only

12 notifications were supplied. No transcript have been supplied of these

13 interviews." I don't want any submissions on whether transcript should

14 have been supplied. I will then let Mr. Ackerman make submissions on this

15 if he wants to, but for the time being that's not being discussed.

16 And then he says: "The defendant believes and therefore contends

17 that numerous additional interviews have been conducted as to which no

18 material in any form has been supplied."

19 As I read you, Mr. Ackerman, when you say "no material in any

20 form," are you also, because that's the only way it would make sense,

21 suggesting or intimating that not even a notification was supplied.

22 MR. ACKERMAN: Your Honour, what I'm suggesting is that we have

23 information that as many as 30 or 40 witnesses have been --

24 JUDGE AGIUS: Interviewed.

25 MR. ACKERMAN: -- been interviewed on these summons kind of basis.

Page 10904

1 JUDGE AGIUS: But persons, not necessarily interviews. Persons.

2 MR. ACKERMAN: Yes. And I believe that to be the case. And the

3 disclosure that was made just last week of Witness 7.242 that they

4 intended to call --

5 JUDGE AGIUS: 234.

6 MR. ACKERMAN: Whatever it is. -- is an absolutely prime example

7 of that. We never knew that that person had been interviewed for three

8 days by the Prosecutor. No information had ever been supplied to us about

9 that, and that had taken place quite some time before.

10 JUDGE AGIUS: So in other words, basically what you are intimating

11 is that first you believe that there was a substantial number of persons

12 that were interviewed. Secondly, that the interviews might or could

13 contain Rule 68 material; third, that no notification of any 68 material

14 related to these interviews has been made to you; and in addition, no

15 material of any kind has been forthcoming from the Prosecution. This is

16 your contention.

17 MR. ACKERMAN: Your Honour, I was very careful in paragraph 24 to

18 say "as best as can be determined." We made a serious effort to make sure

19 we listed the names.

20 JUDGE AGIUS: But before -- before I put the question to

21 Ms. Korner, I need to read you clear.

22 MR. ACKERMAN: Yes, that's what I'm contesting.

23 JUDGE AGIUS: All right. Okay.

24 MR. ACKERMAN: Now, I will concede that there may be an additional

25 name or two that should have been included here that we missed in our

Page 10905

1 search for the last day of trying to find all of these. But I -- I think

2 we've got them all. I'm not certain of that.

3 JUDGE AGIUS: Okay. So ...

4 MS. KORNER: Now, can I deal with each of these aspects, Your

5 Honour. Let's deal with paragraph 24 first.

6 JUDGE AGIUS: Yes, please.

7 MS. KORNER: A few notifications. Amongst these are notifications

8 of interviews and then there is a list of names.

9 JUDGE AGIUS: Yes. Forget those list of names, because it's --

10 the complaint from Mr. Ackerman is that you've just furnished a

11 notification.

12 MS. KORNER: Exactly. That's untrue. That's what I'm saying.

13 JUDGE AGIUS: Okay. Then explain that. Yeah. Because if he is

14 expecting also the transcripts.

15 MS. KORNER: No, Your Honour. He -- if by no he means we didn't

16 supply -- by notification, I understand to mean we simply told him we

17 interviewed these people not true. We provided --

18 MR. ACKERMAN: Well, let me be very clear before we go further.

19 Can I do that, Your Honour?

20 JUDGE AGIUS: Yes, Mr. Ackerman. We need to clear this up.

21 MR. ACKERMAN: Yes. By "notification," what I mean is the

22 Prosecutor says we have spoken to this witness and in the things this

23 witness have told us there is the following list of items which we think

24 might be Rule 68. The witness told us things and we think -- our

25 impression is that these 24 items contain within those statements might be

Page 10906

1 Rule 68 material. So we're telling you those items are in there.

2 JUDGE AGIUS: To me that is not a notification.

3 MS. KORNER: Correct.

4 MR. ACKERMAN: That is a notification that there is evidence that

5 contains Rule 68 material. It is not supplying the Rule 68 material

6 because it is not the statement of the witness. It's the statement of the

7 Prosecutor. I'm not -- I don't want the statement of the Prosecutor. I

8 want the statement of the witness. That's the Rule 68 material; not the

9 Prosecutor's statement.

10 MS. KORNER: Your Honour, this is the problem. It is -- this wild

11 form of allegation, or perhaps it's the use of -- Mr. Ackerman's use of

12 English.

13 Can I show Your Honour: For example, what we -- what is alleged

14 to be notification in the case of Mr. Veljko Kondic, for example. I

15 haven't copied it. I can just show Your Honours for a moment.

16 There are five pages.

17 JUDGE AGIUS: Yes.

18 MS. KORNER: Your Honour, it's not the exact words of the witness,

19 but as far as we understood, we complied with Judge Hunt's order, which

20 was to give the Defence proper notification -- now, that's different

21 from -- there are two Kondics, Your Honour. One Veljko and one Vinko.

22 And Your Honour, this is my complaint, that all these motions are

23 made public. And each time this type of allegation is made, I have to

24 stand up in public and rebut what is a slur on my professional integrity.

25 And I really do take exception to this.

Page 10907

1 JUDGE AGIUS: All right. So at least we understand now what

2 Mr. Ackerman means by "notifications," which is not what I thought the

3 word would mean, according to my knowledge of that word. But anyway --

4 so --

5 MS. KORNER: Your Honour, the next point --

6 JUDGE AGIUS: But the next point I want to know is whether apart

7 from these persons that are listed here in para 24 --

8 MS. KORNER: Yes.

9 JUDGE AGIUS: -- whether it's true that a further number of

10 persons were interviewed.

11 MS. KORNER: It is so. That's right.

12 JUDGE AGIUS: As a consequence of which there is 68 -- Rule 68

13 material that should have been disclosed, and it hasn't.

14 MS. KORNER: Well, there are two matters, Your Honour. The first

15 is we are under no obligation to tell the Defence who else we've

16 interviewed.

17 JUDGE AGIUS: That's another point which --

18 MS. KORNER: Which Mr. Ackerman is making, yes.

19 JUDGE AGIUS: But --

20 MS. KORNER: But the second is: In respect of the other people

21 that we have interviewed -- and I think -- it's quite difficult to sort

22 of -- the witness that we're about to call, he was interviewed, as

23 Mr. Ackerman -- you see, I'm not sure Your Honours have been supplied yet

24 with the transcripts of interviews --

25 JUDGE AGIUS: No.

Page 10908

1 MS. KORNER: No. On three occasions. And we made the decision at

2 the end that we would disclose the whole set of transcripts, because we

3 proposed to call him.

4 Now, Mr. Ackerman referred to what he asserts and has printed is

5 Rule 68 material. Your Honour, for the life of me I can't see how this

6 can be said to be Rule 68 material, how -- if this is meant to be the part

7 that's italicised -- how it could have been used to cross-examine. If

8 that's what Mr. Ackerman is basing it on, then the answer is no. With

9 this exception, Your Honour -- and that's what I was about to say -- some

10 persons have been interviewed in conditions of confidentiality. I can put

11 it that way? A decision is still being made as to what is to be done with

12 those witnesses. And if there is Rule 68 material in those statements,

13 that hasn't yet been disclosed because we're still trying to work out how

14 to deal with it. But one way or another it will be disclosed. The

15 difficulty is -- is how we do it. But Your Honour, we have that well in

16 mind.

17 And the other exception is this, Your Honour, that interviews were

18 conducted in March of this year in relation to the Stakic case, and those

19 interviews have yet to be gone through before -- we've been disclosing

20 Prijedor Rule 68 or what may be Rule 68 evidence before the evidence

21 starts. So there are some witnesses there that haven't yet been gone

22 through for the purposes of Rule 68 in this case.

23 And Your Honour, if -- and finally on this point, if the

24 Defence -- and of course they are aware, because the whole of Banja Luka

25 knows exactly who is being interviewed, regrettably. Then it's because

Page 10909

1 there was no Rule 68 material contained within those interviews.

2 JUDGE AGIUS: The thing is, Ms. Korner -- and we have in one of

3 our previous decisions touched upon this matter and also decided whether

4 it was specifically or it was just obiter dictum I don't remember. But my

5 mind takes me back to a decision which we hand down some months ago

6 related to the applicability of Rule 70, that is, matters which are not

7 subject to disclosure, and I remember quite vividly that we did discuss

8 and decide whether Rule 70, the exemption under Rule 70 covers also

9 material to be disclosed under Rule 98, and we said that -- Rule 68, and

10 we did decide, if I remember well, that the exemption does not apply to

11 Rule 68. Whatever you have, which needs -- which should be disclosed

12 under Rule 68 should be disclosed.

13 MS. KORNER: No, Your Honour, I'm well aware of that. I'm not

14 suggesting that if there was Rule 68 and we felt that we were in a

15 position where we couldn't disclose it, we wouldn't be putting it before

16 Your Honour. All I'm saying at the moment is we have yet to make a

17 decision about these people. And I can say that it's not something --

18 well, I'll have to go back over it.

19 JUDGE AGIUS: But if we're talking of persons that were

20 interviewed months ago, if not a year ago, and confidentiality is not an

21 aspect that --

22 MS. KORNER: Your Honour, we're not. We're not talking about

23 anybody that was interviewed.

24 JUDGE AGIUS: Yeah. But what's keeping you? Because Rule 68

25 is -- "The Prosecutor shall, as soon as practicable, disclose to the

Page 10910

1 defence the existence of material known to it, which in any way tends to

2 suggest the innocence or mitigate the guilt of the accused or may affect

3 the credibility of the Prosecution's evidence." Because on the same

4 score, I mean, the -- I'm sure you understand the preoccupation and

5 concern of this Trial Chamber when an allegation is made -- now, whether

6 it's founded or unfounded is another matter. But what we have here are

7 basically two allegations that are very serious allegations. One is that

8 in regard to Kondic, you deliberately took your time to disclose the

9 material, waiting for Mr. Filipovic and Mr. Egrlic, I think, to finish

10 their testimony so that you would be literally taking the carpet from

11 under Mr. Ackerman's feet, disarming him and forcing a situation over

12 which he had no control.

13 The second one is that over the past year or so you have conducted

14 several interviews -- the allegation is -- there's nothing to substantiate

15 this allegation except what is -- what is referred to Witness 7.234, and

16 that -- irrespective of whether that holds water or not. But the

17 allegation is that basing himself on 7.234, he has reason to believe that

18 there are several others that you have interviewed -- several others where

19 there is or should be on your part knowledge of the existence of Rule 68

20 material, and this has not been disclosed. And this is another serious

21 allegation.

22 MS. KORNER: Your Honour, that --

23 JUDGE AGIUS: And obviously we require some kind of a categoric

24 and unequivocal declaration on the part of the Prosecution that this is

25 not so or that this is so. I mean, it's ...

Page 10911

1 MS. KORNER: Your Honour, I can -- by my count there are three,

2 maybe four, people who have been interviewed and where a decision is

3 pending. And I'm not even sure -- I would have to go back and

4 double-check -- that any of these four people have supplied what could be

5 constituted Rule 68 material. That is something that I can do fairly

6 quickly. I mean, by reading through.

7 Other than that, Your Honour, there is no -- and as I say, there

8 were three people -- four people interviewed in March and relation to the

9 Stakic matter, and those have to be gone through. But those -- there is

10 no problem about -- that -- if there is any Rule 68, that will be

11 disclosed.

12 JUDGE AGIUS: Yes. Then we'll move to the allegation related

13 to --

14 MS. KORNER: I'm sorry. And that I utterly refute again, Your

15 Honour, that I deliberately waited for Mr. Egrlic and Mr. Filipovic to

16 finish their evidence. And indeed, I know as well as Mr. Ackerman, that

17 the remedy -- if there is genuinely anything in that which could

18 constitute Rule 68 material on which they could be cross-examined is to

19 have theme brought back again. I don't want that -- Your Honour, if I

20 were deliberately withholding, A, we wouldn't be disclosing this at all;

21 and B --

22 JUDGE AGIUS: If there was a specific request, in other words --

23 MS. KORNER: There was no request.

24 JUDGE AGIUS: If there is a forthcoming specific request from

25 Mr. Ackerman for the two witnesses or three witnesses to be brought back

Page 10912

1 here for further cross-examination, you would not object to that.

2 MS. KORNER: Depending on -- I think they would have to satisfy

3 Your Honour that there was really something they couldn't have put before.

4 JUDGE AGIUS: But in principle, you would not object to that as

5 being a remedy if --

6 MS. KORNER: No.

7 JUDGE AGIUS: -- is in place.

8 MS. KORNER: Okay, that's fine. That must be right.

9 And Your Honour, I say I am hardly the one, having pointed out how

10 much the cost of keeping -- bringing these witnesses here is to

11 deliberately put the Prosecution in a position where it is obliged to have

12 the witnesses brought back.

13 JUDGE AGIUS: Okay. Let's move to 7.234. It's being alleged

14 first that this is a blatant case where there was Rule 68 material that

15 was not disclosed prior to the decision which was taken then to produce

16 this person as a witness. And secondly, the other point made, that this

17 is an example of -- of possibly other cases. Forget that this is possibly

18 an example of other cases, because that has been dealt with other sort of.

19 And do you agree that in the case of Witness 7.234, particularly as

20 regards the part quoted from one of his statements, that there was Rule 68

21 material that should have been disclosed before by you or not?

22 MS. KORNER: Your Honour, this is an example of it. No, I don't.

23 But Your Honour, to be fair, I'd have to go back and have another look at

24 it. The reason that, as I say, I was -- as Your Honours will see, I was

25 present at that last interview and not the earlier interviews. And it

Page 10913

1 became pretty clear to me listening to this that we were going to put this

2 witness -- put this man into the witness box. And so at that stage I

3 waited until the transcript had been typed up so we could then make the

4 application for a witness summons for him. And in all honesty, I have to

5 say that I didn't particularly go through that for Rule 68 material, but

6 I'd have to have another look. I certainly do not consider -- if this is

7 an example of what Mr. Ackerman considers to be Rule 68 material, the part

8 that's quoted, that there was anything. But I have to say, because I was

9 pretty certain we were going to put this man in, I took it in a slightly

10 different category.

11 JUDGE AGIUS: There is an allegation now -- and this you need to

12 do because para 27, Ms. Korner, specifically states that the quotation

13 from the -- one of the statements of this witness - and there were three

14 statements - is being included only for exemplary purposes.

15 MS. KORNER: Well, I took it that the best was being picked.

16 JUDGE AGIUS: Yeah. It was being picked -- it's being picked as

17 an example.

18 MS. KORNER: All right.

19 JUDGE AGIUS: But the contention is that it is not a complete

20 account of the Rule 68 material contained in his three statements. In

21 other words, the --

22 MS. KORNER: In --

23 JUDGE AGIUS: In three interviews. Yeah, okay. All right?

24 MS. KORNER: But Your Honour, I have to say here -- because as I

25 say, I ten attend the last of these three interviews, and because at that

Page 10914

1 stage I was pretty certain that he would be put in as a witness, I didn't

2 instruct or go back myself over those to double-check, because we were

3 going to disclose those to the Defence in any event, the whole thing. But

4 Your Honour, to that extent, if there is anything else which Mr. Ackerman

5 regards as Rule 68 material --

6 JUDGE AGIUS: All right.

7 MS. KORNER: But I have to go back over it.

8 JUDGE AGIUS: All right. Now, if you go to para 29, Ms. Korner,

9 Mr. Ackerman formulates some demands which, according to him, we should

10 take up.

11 MS. KORNER: Your Honour, I think that's set out at the end.

12 JUDGE AGIUS: Yeah. But let's take it first here before we go to

13 the end. Because at the end then he modifies the wording and we also come

14 to solemn declarations of some sort or another.

15 In para 29 Mr. Ackerman says: "First we need to order you to

16 advise us who are the witnesses who have been interviewed pursuant to

17 summonses in the Krajina or who in your word were involved in the events."

18 Do you agree that we should do this?

19 MS. KORNER: No, I don't. I don't see on what possible basis

20 Mr. Ackerman is entitled to this information.

21 JUDGE AGIUS: Number two: He requests that we order you to

22 identify any portion of the transcripts of any of these interviews that

23 have been provided to the Defence and describe the disclosures.

24 MS. KORNER: I don't understand what that means. No portion of

25 any transcript has ever been disclosed.

Page 10915

1 JUDGE AGIUS: Mr. Ackerman, may I ask you to explain this second

2 request in para 29, what you mean.

3 MR. ACKERMAN: I --

4 JUDGE AGIUS: Because the way it is drafted --

5 MR. ACKERMAN: I just want to know if the Prosecutor contends they

6 have ever given us a portion of a transcript of any of these interviews

7 that are the subject of this motion. And she's just told you that she's

8 not and that should satisfy the matter.

9 JUDGE AGIUS: Okay.

10 MS. KORNER: Let's just be clear. We've not -- at no stage, and

11 Mr. Ackerman knows that, have we ever disclosed verbatim transcription of

12 what was said. In each case the form has been, as Your Honours have seen,

13 with the Kondic interview.

14 JUDGE AGIUS: And then obviously the third one is --

15 MR. ACKERMAN: Let me just say: On occasion I have, with

16 Ms. Richterova and maybe others, said "I don't think I have this

17 document." I get some more information from Ms. Richterova and find that

18 I do have it somewhere. And just as a -- an abundance of caution, I put

19 that in there because maybe the Prosecutor did supply me with a transcript

20 that I've somehow misplaced or something. And so I just want to be

21 certain that there were none.

22 MS. KORNER: Well, Your Honour, it's simply -- this is not good

23 enough. It is not for counsel -- responsible counsel to make these sort

24 of allegations and then say I'm very sorry, I've discovered that you did

25 give it to me. I'm going to come to that when we deal with the Prijedor

Page 10916

1 part because I have a great deal to say about that.

2 But Your Honour, I have never -- I have always made clear no

3 portion of any transcript verbatim has ever been provided.

4 JUDGE AGIUS: Okay. The third one is consecutive and a follow-up,

5 so we don't -- I don't need any explanations about that.

6 May I take you back, Ms. Korner, now to para 10, para 10. Now,

7 there is a suggestion here forthcoming from Mr. Ackerman that the Blaskic

8 decision that he refers to goes beyond what Judge Hunt and myself seemed

9 to have directed you to and that according to Mr. Ackerman, he can now

10 rest on the Blaskic decision and demand transcripts. Do you agree that

11 the Blaskic decision can be read and understood along the lines that

12 Mr. Ackerman is suggesting?

13 MS. KORNER: I do not, Your Honour. I have the -- I picked up the

14 wrong one -- the Blaskic decision here.

15 JUDGE AGIUS: This is the appeal decision.

16 MS. KORNER: This is the appeal decision on the 26th of September.

17 JUDGE AGIUS: 2000.

18 MS. KORNER: 2000.

19 This related to -- and I think we ought to put it into context.

20 It was in relation to the Kordic/Cerkez evidence, and the application

21 was -- effectively concerned with the disclosure of Rule 68 evidence after

22 the close of the whole case and what the Prosecution's obligation was.

23 And the argument was that the Prosecution was only required to disclose to

24 the Defence existence of evidence. And the ruling was that if the -- the

25 order was, I'm sorry, with -- the Appeals Chamber held that "it was

Page 10917

1 misconceived and that it does not make sense that the Prosecution can stop

2 short of providing exculpatory evidence in its possession, having pointed

3 out to the Defence that it possesses such evidence. If the evidence is in

4 the sole possession of the Prosecution, it is obvious that if the fourth

5 reason were upheld the Defence would be hindered from discovering it, thus

6 frustrating the principle of a fair trial. And the fourth reason cannot

7 stand."

8 And Your Honour, there was no order made in that decision at all,

9 that full transcripts should be provided. Merely that the information in

10 the possession of the Prosecution should be supplied even after the end of

11 the trial.

12 Your Honour, I do not agree that the Prosecution is under any duty

13 to supply to the Defence the full transcripts of these interviews. I do

14 not agree with the demand that the transcript be filed under seal with the

15 Registry in its complete form.

16 Your Honour, we have provided to the Defence the fullest possible

17 notification of what that Rule 68 material is. Your Honour, we say we've

18 complied with our obligations under Rule 68.

19 JUDGE AGIUS: Okay. It is also being suggested by Mr. Ackerman

20 that the decision of Judge Hunt of the 6 September 2001, as well as the

21 records preceding and also subsequent to that decision, if read properly,

22 mean that you are expected or you were expected by Judge Hunt to go beyond

23 what you have just been maintaining; namely, that basically that at some

24 point or another, after having initially disclosed the existence --

25 disclosed to the Defence the existence of exculpatory material under Rule

Page 10918

1 68 without delay, and then you would be expected also to provide the

2 actual transcripts at a later date.

3 MS. KORNER: Well, your, I'd be happy if --

4 JUDGE AGIUS: This is what is being suggested by Mr. Ackerman, and

5 I will go back to him at a later stage to explain -- to indicate to us the

6 precise parts of the judgement and records.

7 MS. KORNER: Yes, I agree. If Mr. Ackerman can point to where

8 Judge Hunt ordered us to provide the full transcripts, then I'll be happy

9 to see where it is.

10 JUDGE AGIUS: Okay. So you don't agree that that is the case.

11 MS. KORNER: No, I don't.

12 JUDGE AGIUS: And what is --

13 MS. KORNER: Your Honour, I'm sorry to keep repeating this point.

14 Before I finish, over and over again, as I have said when this matter has

15 been raised -- not over and over again. I think it's been raised two or

16 three times since then -- we will provide the Rule 68 material but we will

17 not provide the transcripts. At no stage has Mr. Ackerman or

18 Madam Fauveau, when she was here, sought to argue against that.

19 JUDGE AGIUS: All right. And last but not last, if you go to para

20 32, Mr. Ackerman is contending and suggesting that the presentation of

21 witnesses must cease while all this is sorted out, or as he puts it "while

22 it is all sorted out."

23 Do you agree that the presentation of witnesses should cease while

24 this is all sorted out, the Rule 68 business?

25 MS. KORNER: No.

Page 10919

1 JUDGE AGIUS: Okay. So I would stop here with the Prosecution and

2 with the motion for the time being, come back to you, Mr. Ackerman, see

3 what you have to state on this Rule 68 business, and then we'll go --

4 we'll visit the rest of the motion later. But we'll conclude on Rule 68

5 first and then we'll visit the rest of the motion.

6 MR. ACKERMAN: Your Honour --

7 JUDGE AGIUS: You're free to present your points in whichever

8 order you prefer.

9 MR. ACKERMAN: Yes. Thank you.

10 JUDGE AGIUS: If you want me to direct you, as I have directed

11 Ms. Korner, paragraph by paragraph, I am prepared to do that.

12 MR. ACKERMAN: I'd actually prefer to do it on my own --

13 JUDGE AGIUS: All right. Please do it.

14 MR. ACKERMAN: In my own way, if you'll let me.

15 JUDGE AGIUS: In your case, I think it would be better if I let

16 you to do it on your own.

17 MR. ACKERMAN: I want to begin with this: Every time that I make

18 any suggestion to this Court that the Prosecutor has not done what the

19 Rules or your order have required her to do, I'm accused of making

20 unwarranted, deliberate, public accusations against the Prosecutor. And

21 if she's getting tired of me making these kinds of requests, I'm getting

22 just as tired of her calling them deliberate, unwarranted accusations. So

23 I'm going to go back.

24 Just a moment. The last time she made that accusation, it had to

25 do with my suggestion to you that it appeared to be virtually deliberate

Page 10920

1 that the list of witnesses from the Prijedor municipality were not

2 provided until what I would consider the very last possible moment.

3 Ms. Korner told you that there was a very good reason for that, and she

4 gave you her explanation after having accused me of making another wild

5 accusation. She said her explanation was that the whole thing of

6 General Talic's situation came up and they had to re-evaluate as to what

7 they would remove from those lists before they gave them to me.

8 If Your Honours will look at the transcript of -- the transcript,

9 page 9342, Ms. Fauveau requested that that material be provided as quickly

10 as possible. Ms. Korner said: "We will have it to you by the end of the

11 week." The end of the week was September 6th. That was the date that she

12 said she would have it to us. That was before anybody knew that General

13 Talic had the condition that he had. It was not supplied then when she

14 said it should have been, and I don't back off from the position I took

15 initially when I raised this.

16 I now take the same position with regard to this Rule 68, and I

17 don't apologise for it, Your Honour, because I am correct. And I will

18 begin this way: At the time this matter was brought to the attention of

19 Judge Hunt, on the 6th of September, 2001, the Blaskic appeal decision of

20 26 September 2000 had been decided. And if you know Judge Hunt, as I do,

21 he probably virtually had it memorised, knew exactly what it said. And

22 what happened that's of importance to what we're talking about in that

23 case is this: The Prosecution said to the Appeals Chamber, "Even if Rule

24 68 applies here, Rule 68 doesn't require us to disclose written witness

25 statements, trial transcripts, things of that nature. It only requires we

Page 10921

1 disclose the existence of evidence but does not require the Prosecution to

2 actually provide the Defence with all the evidence in question." That was

3 the Prosecutor's position.

4 The Appeals Chamber said: "The view is misconceived in that it

5 does not make sense that the Prosecution can stop short of providing

6 exculpatory evidence in its position having pointed out to the Defence

7 that it possesses such evidence. If the evidence is in the sole

8 possession of the Prosecution --" which these transcripts I'm talking

9 about are -- "if the evidence is in the sole possession of the

10 Prosecution, it is obvious that if the forth reason were upheld, the

11 Defence would be hindered from discovering it and thus frustrating the

12 principle of a fair trial. The fourth reason cannot stand." That's what

13 the Appeals Chamber said. That's what Judge Hunt had in mind when this

14 hearing was held.

15 Now, if Your Honour looks at this hearing, I had gone through with

16 Judge Hunt that enormous process of all of those CDs that took so much

17 time to get through. And when I stood up and said something about these

18 interviews in Banja Luka, he thought I was going to the same place to get

19 a bunch of irrelevant material that again would have -- be of no -- no use

20 but just take up a bunch of time and maybe even delay the start of the

21 case. That was his original view, and it took me a while to convince him

22 that's not what I was talking about but that I was talking about something

23 else entirely. And that only happened when Ms. Korner decided to explain

24 the situation to him. She said to Judge Hunt: "Mr. Ackerman is aware

25 because it --" and I'm on page 353 "because it --

Page 10922

1 THE INTERPRETER: Could we ask counsel to slow down, please.

2 MR. ACKERMAN: Yes, I'm sorry.

3 "That an interviewing team went to Banja Luka with prosecutor

4 summonses. These people who are interviewed are people who are intimately

5 connected with the events in 1992 who have not been charged. No

6 statements were taken. They were interviewed, and the interviews are at

7 present being transcribed. If at the end of those transcriptions --

8 because a number of people did it, so it's impossible to assess them --

9 there is material which we consider to be Rule 68 material, then we will

10 decide which of the two courses to adopt. Of course, one is to notify the

11 Defence of the names and addresses of these witnesses. But it appears

12 quite clearly that Mr. Ackerman has already spoken -- I'm sorry. I say

13 witnesses of these people. They are not witnesses at present -- is aware

14 of who they are. Alternatively -- and it depends very much on how we see

15 things -- supply them with copies of the transcripts, but they haven't

16 been typed."

17 That was the first time Judge Hunt really understood what it was

18 we were talking about, and he interjects, "Just a moment, Ms. Korner. You

19 have people within the Prosecution's investigation service who have spoken

20 to these people?"

21 "Yes."

22 "They know what they've said?"

23 "Yes."

24 "And you say there may be things that they've said which may

25 amount to Rule 68 material?"

Page 10923

1 "Yes."

2 "Well, why don't you notify the Defence of that now in some

3 written form and give them the statements later." Those are his words.

4 Ms. Korner then says: "They're not statements. They're

5 interviews."

6 He says: "Or interviews later."

7 In other words, he's saying tell them what's in there, but then

8 give them the interviews later.

9 Ms. Korner then goes on to talk about how they went on for a long

10 time and it's very difficult to pick out from them whether they're Rule

11 68. And Judge Hunt says: "Look, you said you had a number of

12 investigators. You can ask each investigator was there any Rule 68

13 material which could be Rule 68 material raised. Have you got any

14 recollection of it? Write it down and notify them and say you will

15 produce the statements later." Again he says "produce the statements

16 later."

17 Ms. Korner says of these people that were interviewed: "I think

18 on balance one could say most of them in some form or another are helpful

19 to the Defence."

20 MS. KORNER: Could you read the previous sentence, please.

21 MR. ACKERMAN: The existence --

22 MS. KORNER: No, the whole sentence, please. "From if existence

23 of it is these people have been interviewed --"

24 MR. ACKERMAN: Yes, I will. "The existence of it is these people

25 have been interviewed, Your Honour. These people are known to the Defence

Page 10924

1 and most -- I think on the balance one could say most of them in some form

2 or another are helpful to the Defence. These are people who were involved

3 in the events."

4 So Ms. Korner characterised --

5 MS. KORNER: I'm sorry. Could you read the next sentence, please.

6 MR. ACKERMAN: Yes. "So Your Honour, the Defence to a certain

7 knowledge in one case -- in one case have already interviewed these

8 people," one of them that she knows about. But she's characterised the

9 content of these interviews as helpful to the Defence. Now, that's pure

10 Rule 68. You can't define it any better than that.

11 Judge Hunt says: "That's not an answer to your obligation under

12 Rule 68."

13 Ms. Korner says: "It's to notify the existence of Rule 68

14 material."

15 Judge Hunt says: "Is that right? Well, if you know of the Rule

16 68 material. You have to notify them."

17 She says: "Yes."

18 And then Judge Hunt goes on to a kind of a long dissertation about

19 some things and finally he gets down to where Ms. Korner says: "Your

20 Honour, in that case, having heard Your Honour on this --" and I'm on page

21 357 now -- "we will notify the Defence of the areas which appear to us

22 from these interviews to be of Rule 68 material."

23 Judge Hunt says: "I don't know what that means. It's what I

24 would call a weasel word. It means what you want it to mean at any

25 particular time. It really doesn't, so far as I can see, comply with Rule

Page 10925

1 68.

2 Ms. Korner: "Your Honour, that's why -- sorry, that's why I said

3 until we have the transcripts, we really can do no more than that."

4 Judge Hunt: "Well, Ms. Korner, you've heard what I've said. I

5 don't accept that. I expect you to do better than that, to indicate the

6 subject matter of the material, the nature of it, even if you haven't got

7 the precise wording of it. It's your obligation to do it. And whilst if

8 we had another year to wait before the trial started, it would be

9 perfectly appropriate to wait until you've got transcripts, but this is

10 far more urgent than that and you've just got to cooperate by helping do

11 more than you basically feel you have to do.

12 Now, that's what I think. The obligation that we're entitled to

13 insist of both sides, but particularly the Prosecution, in relation to

14 this material."

15 Now, this was done in the context, Your Honour, of a trial that we

16 were trying to get started rather quickly. And what Judge Hunt was saying

17 to Ms. Korner was you must give him the transcripts, but don't wait until

18 you've gone through them and picked out the Rule 68 material. Have your

19 investigators tell him now what's in there that's Rule 68. And so what

20 she did was the first part. She gave us the little lists of things that

21 she says are -- might be Rule 68 within these interviews but never, ever

22 did she give us the transcripts.

23 I raised it again -- and you will remember this one, Your Honour.

24 This was raised in front of you. And I want to make it clear that I never

25 requested, I don't believe, the full transcripts. All I requested was

Page 10926

1 Rule 68. Although it might be that the full transcripts should be

2 provided under Rule 66, as material important to the preparation --

3 JUDGE AGIUS: Well, Rule 66 is conceived on a completely -- a

4 completely different basis.

5 MR. ACKERMAN: I understand. But it might need to be provided

6 under Rule 66, and I'm not waiving that.

7 When I raised it, Your Honour, on 16 January in front of you, you

8 said, "I have quite the vivid recollection of what was stated was that

9 some tapes heard and transcripts made ready and they would be made

10 available. Other tapes were still not heard again and they needed to be

11 heard. And then there was an assurance coming on the part of the

12 Prosecution that whatever falls under Rule 68 would be disclosed."

13 There was then some additional discussion, and then you said to

14 Ms. Korner, "Anyway, I take it as a commitment on your part, Ms. Korner,

15 that anything that needs to be disclosed under Rule 68 will be."

16 Now, I concede that Ms. Korner said, "We will not supply the full

17 transcripts." And by simply saying to you, Your Honour, that they weren't

18 going to supply the full transcripts, left the implication that they were

19 going to supply the redacted transcripts that we'd been talking about from

20 the beginning. And that simply was not done.

21 Now, that puts it in context. That's where we are. And we have

22 this situation now where Ms. Korner is accusing me of making wild

23 accusations, after having had to apologise to Your Honours first today

24 regarding the Kondic matter, for not following Rule 68 with regard to

25 that, and then having told you upon inquiry that there are a great -- that

Page 10927

1 there are many more statements that probably have Rule 68 material that

2 they still haven't gotten through. And so this is clearly not a wild

3 allegation. She's admitted that it has a basis and it has a very sound

4 and significant basis.

5 The evidence -- Rule 68 contemplates the disclosure of evidence.

6 The evidence are the statements made by the witnesses. That's the

7 evidence -- by the persons interviewing. The evidence is not what the

8 Prosecutor says it is.

9 JUDGE AGIUS: Rule 68 contemplates disclosure of material.

10 MR. ACKERMAN: Yes. And that -- the material is material that the

11 Prosecutor has in their position. What she is doing is creating material

12 and supplying it to us. It doesn't refer to material created by the

13 Prosecutor. It has refers to material she has at the present.

14 JUDGE AGIUS: What's the word in French? Does anyone have the

15 French text here, please? "Element de preuve" -- "element de preuve,"

16 that's the word which is used in the French text, which basically

17 means "material that can be adduced in evidence."

18 MR. ACKERMAN: Well, I don't know how I could adduce in evidence

19 the impressions by the Prosecutor of what was said by these witnesses.

20 That does not give me anything that is useful. I cannot say --

21 JUDGE AGIUS: Tending to prove, in other words.

22 MR. ACKERMAN: I cannot say to a witness on cross-examination,

23 "Sir, the Prosecutor says that someone says blah, blah, blah. How do you

24 feel about that?" That's not a -- that would be a ridiculous question to

25 ask in the first place.

Page 10928

1 JUDGE AGIUS: Basically it's material as well -- anyway ...

2 MR. ACKERMAN: Now, let me talk with regard to the Vinko Kondic

3 matter, which Ms. Korner says she didn't do anything wrong with regard

4 to. It may be that the investigator was gone, and it may be that it was

5 late in the game when that document was able to have been put together,

6 but Ms. Korner knew what Mr. Kondic had said. Ms. Korner knew that

7 Mr. Filipovic and Mr. Egrlic were coming here to testify.

8 On the 30th of July, I believe it was, was when that interview was

9 first conducted -- well, the interview with Kondic was conducted. That

10 was the first day that Mr. Filipovic started his testimony. It went on

11 for quite some time after that -- 30th August. I'm sorry. That was the

12 first day that Mr. Filipovic started his testimony. Ms. Korner was aware

13 of that and did not say to me or to Your Honours "There is material that

14 has been developed which might very well be Rule 68. We probably should

15 wait for calling these witnesses until we can properly provide it to the

16 Defence." She didn't do that. And I think it just amazingly curious that

17 it's only the day that Mr. Egrlic leaves town that that document becomes

18 available and is supplied to us. Now, it may be totally innocent, but it

19 certainly is curious.

20 Ms. Korner seems to be saying that if these are witnesses that we

21 have talked to or can talk to, then she has no obligation to supply

22 Rule 68 material that she might have in her possession regarding these

23 witnesses. No court in the history of the world has ever held anything

24 even remotely close to that. Rule 68 has nothing to do with whether the

25 Defence can on its own discover this material. Rule 68 has to do with

Page 10929

1 exculpatory material in the possession of the Prosecutor. It's like

2 saying, Your Honour, "We have this certified document and there's some

3 language in it which we think might be exculpatory and it says something

4 about a witness so and so," without ever giving us the do you want. You

5 wouldn't permit that to happen. You just wouldn't permit that to happen.

6 And no judge would permit that to happen. And what she's saying to you

7 now is "If I just kind of give them a hint as to what's in these

8 transcripts, that's good enough. I don't have to give them the

9 transcripts." Well, she does. She does. And it couldn't be more clear.

10 The Appeals Chamber has made it clear. Judge Hunt was making it clear

11 when we were talking about it back in September.

12 She says she can't imagine what kind of questions we could have

13 asked on cross-examination if we'd had the Vinko Kondic matter timely.

14 And, you know, I don't know. If I had the transcript, I will bet you I

15 could have done more than an hour of cross-examination just on the

16 transcript of the interview with Vinko Kondic that contains Rule 68

17 material. I'm not asking for full transcripts. I haven't ever asked for

18 full transcripts.

19 The Prosecution has a right to redact and to only supply those

20 parts of the transcripts that are Rule 68 material. But I question now

21 very seriously whether Ms. Korner knows what Rule 68 material is. She

22 told you today that she couldn't for the life of her, in looking at the

23 quote that I put in here from Witness 7.234, she couldn't for the life of

24 her see what in that quote represented Rule 68 material.

25 Now, if that is the way she makes judgements about what's Rule 68,

Page 10930

1 then when I ask that all these transcripts should be filed under seal with

2 the Registry, that's a request made in very good faith because I want to

3 be able if I have to someday to show an appeals court in this Chamber how

4 much Rule 68 materiel Ms. Korner did not turn over, and I can almost

5 assure you that there will be a great deal of it, if this is her view of

6 what Rule 68 material is.

7 Your Honour sat here and heard in the cross-examination of

8 Mr. Filipovic the contention that there was a coordinated simultaneous

9 attack by Muslim forces across the Krajina on Serb forces, that the

10 Muslims started this process by attacking not just in the Kljuc

11 municipality but in other municipalities all within a space of a very few

12 days. I'm then given, after that's all over, this transcript where a

13 witness from Kljuc says, talking about the 27th, when this killing took

14 place of Dusan Stojakovic: "Prior to that, around 10.00 in the morning,

15 it was observed in the building of the municipal assembly in Kljuc --"

16 MS. KORNER: If he's going to read out, I'd like to go into

17 private session.

18 JUDGE AGIUS: Yes. Exactly. I mean, it's --

19 MR. ACKERMAN: I'm sorry.

20 JUDGE AGIUS: Exactly. I was just going --

21 MR. ACKERMAN: I'm sorry. I should have said that.

22 JUDGE AGIUS: I was just going to suggest that myself.

23 Let's go into private session for a while, please.

24 [Private session]

25 [redacted]

Page 10931

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Page 10932

1 [redacted]

2 [redacted]

3 [redacted]

4 [redacted]

5 [redacted]

6 [redacted]

7 [redacted]

8 [redacted]

9 [redacted]

10 [redacted]

11 [redacted]

12 [redacted]

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14 [redacted]

15 [redacted]

16 [redacted]

17 [redacted]

18 [redacted]

19 [redacted]

20 [redacted]

21 [redacted]

22 [Open session]

23 JUDGE AGIUS: We are in open session again. Mr. Ackerman, please

24 proceed.

25 MR. ACKERMAN: There are two things that are exculpatory

Page 10933

1 primarily: The first is evidence that contradicts what the Prosecutor's

2 theory of the case is and indicates that what the Prosecutor is asserting

3 through witnesses and otherwise is not true; the other is evidence that

4 tends to show that the witness is not credible, that deals with

5 credibility of a witness. So that when a witness comes here and says A,

6 B, and C happened, if the Prosecutor has information from other persons

7 that A, B, and C did not happen, that is exculpatory, that is information

8 that affects the credibility of that witness.

9 JUDGE AGIUS: That is specifically stated in Rule 68 itself,

10 Mr. Ackerman.

11 MR. ACKERMAN: I know it is. I know it is.

12 So I think my requests here are proper. I think they're right. I

13 think they reflect what Judge Hunt ordered and what you obviously

14 understood he ordered, Your Honour, when you spoke about it on January

15 6th. And I think it's a very serious violation of Rule 68. And I request

16 that Your Honours take the steps that I have suggested in my motion that

17 you take in that regard. And I'll answer any questions you might have.

18 JUDGE AGIUS: You also maintain that the presentation of witnesses

19 must cease while this matter is sorted out, Rule 68 matter?

20 MR. ACKERMAN: That's kind of obvious, Your Honour, that that

21 would have to happen, and that's what Judge Hunt told Ms. Korner on 6

22 September is exactly what would happen if she didn't fulfil her

23 obligations regarding discovery and Rule 68. His exact language was: "If

24 the Prosecution gives you statements too late for you to be able to

25 investigate them properly and which would interfere with the --"

Page 10934

1 THE INTERPRETER: Please slow down.

2 MR. ACKERMAN: "And which would interfere with the proper

3 processes of the trial --"

4 JUDGE AGIUS: What page are you reading from?

5 MR. ACKERMAN: 350. I'm sorry. Bottom of the page.

6 "Then the Prosecution will not be permitted to rely upon them. If

7 they produce material under 68 in the same circumstances, then there will

8 have to be a very long adjournment whilst it's all sorted out." And I

9 think that's where we are. There has to be a long adjournment whilst it's

10 all sorted out.

11 I believe that all of the transcripts of all of these interviews

12 should be deposited with the Registry, that the Prosecutor should be

13 ordered to supply redacted versions of all of those to the Defence as

14 quickly as possible, and then that the Defence should be given a

15 reasonable amount of time to review them and make a report to the Court as

16 to how many witnesses may have to be recalled for additional

17 cross-examination.

18 JUDGE AGIUS: All right.

19 MS. KORNER: No, Your Honour, I'm sorry. I want reply.

20 JUDGE AGIUS: Yes. Very short, please, Ms. Korner.

21 MS. KORNER: First of all -- first of all, that's what I mean

22 about these wild allegations. It is suggested that at the time that I was

23 calling Mr. Filipovic I was aware that Mr. Kondic was giving Rule 68

24 information. Mr. Ackerman knows that that's impossible because Mr. Kondic

25 wasn't interviewed until the day that I was calling Mr. Filipovic and the

Page 10935

1 day after, when we'd started. I was -- I take full responsibility,

2 because the fact that I didn't know what was in the interview because I

3 wasn't there is not the point. But Mr. Ackerman is deliberately --

4 suggesting that I knew at the time that he had given an interview Rule 68

5 material. That is clearly impossible. Because he was interviewed, as

6 Your Honour sees, at the time I was --

7 JUDGE AGIUS: He was interviewed 30th August, 1st September.

8 MS. KORNER: And I called Mr. Filipovic --

9 JUDGE AGIUS: Mr. Filipovic came soon after the summer break, if I

10 remember well.

11 MS. KORNER: He was the first witness.

12 JUDGE AGIUS: Yeah, exactly.

13 MS. KORNER: So we started --

14 MS. KORNER: 26th, I think.

15 JUDGE AGIUS: Yeah. Exactly. I came back on the 19th and we

16 started on the 26th.

17 MS. KORNER: So Your Honour, that's what I mean --

18 JUDGE AGIUS: But Mr. Ackerman seemed to emphasise more

19 Mr. Egrlic. The insinuation is --

20 MS. KORNER: No, it was quite clear -- Mr. Ackerman said "in the

21 clearest possible terms the time I was calling Mr. Filipovic I knew that

22 Mr. Kondic had given Rule 68 material.

23 MR. ACKERMAN: That's true. That's absolutely true. Filipovic

24 was here until, what, the 25th of September? Was that the last day he was

25 cross-examined? Was that the last day he left? This guy was interviewed

Page 10936

1 on the 30th of August and she doesn't know by the 25th of September that

2 she's got material from Kondic? I mean, who's running the show in the

3 Prosecutor's office if she isn't? That's the same kind of thing I've

4 been talking about. She give you these weird explanations.

5 JUDGE AGIUS: The insinuation is there and --

6 THE INTERPRETER: Could we ask counsel to slow down, please.

7 Thank you.

8 MS. KORNER: It's a disgraceful performance.

9 Now, Your Honour, the second matter that I want to deal with is

10 this: We are clearly, and everybody has been at cross-purposes. I

11 understood from the word "transcripts" that Mr. Ackerman was asking for

12 the full transcripts.

13 JUDGE AGIUS: Yes, that's what he is definitely asking for.

14 MS. KORNER: And no. He now says he never asked for the full

15 transcripts. Throughout this the discussion has been transcripts or

16 notification of Rule 68. If Mr. Ackerman never wanted the full

17 transcripts but was expecting the redacted version of the transcripts,

18 then I'm sorry, but the ball really was in his court and it's never been

19 raised as to why when he was getting the version that we were giving in

20 the belief, Your Honour, that we were complying with the order that

21 Judge Hunt had made did he never come back to us or indeed to Your Honours

22 and say: "This is the order that Judge Hunt made and the Prosecution are

23 not complying with it." So until today, Your Honour, it's never been my

24 understanding that Mr. Ackerman wanted the redacted or the actual parts of

25 the transcript that dealt with Rule 68. The request was the full

Page 10937

1 transcript, as I understood, and that's what we were declining to give.

2 So Your Honour, I want to make that absolutely clear. And it may

3 be that there's a failure of understanding, although on the face of it we

4 all speak the same language. But I say quite fairly and squarely, if

5 that's what Mr. Ackerman was expecting and wasn't getting it, well, then

6 the remedy was to come back to us and say that or if we still said no, you

7 couldn't have the actual words said, then to raise it with Your Honours.

8 Because Your Honours, as I say, this disclosure has been going on since

9 whenever it was last year.

10 JUDGE AGIUS: All right. So that --

11 MR. ACKERMAN: Judge, I can respond really --

12 JUDGE AGIUS: Yes, Mr. Ackerman. Please. This will be the end of

13 it and we'll move to the next.

14 MR. ACKERMAN: The entire discussion with Judge Hunt on September

15 6th had to do with Ms. Korner's suggestion that she had to go through the

16 transcripts and redact those portions that were not Rule 68. That's what

17 it was all about. And Judge Hunt said, "Fine. Do that and then supply

18 them. But in the meantime, tell him what is Rule 68 in those

19 transcripts." I never said "Give me the full transcript." And Ms. Korner

20 knows that. And when she said to you on 16 January, "I want to make it

21 absolutely clear we are not going to disclose the full transcripts. We're

22 going to disclose the Rule 68 material," that's what she meant too, that

23 she was going to give us redacted versions. And it didn't happen.

24 JUDGE AGIUS: Yes. Okay.

25 MS. KORNER: I'm sorry, Your Honour. I -- I agree --

Page 10938

1 JUDGE AGIUS: That's the end of it, Ms. Korner. Finished.

2 MS. KORNER: No. Your Honour, I really must be allowed. Because

3 it's against me personally these allegations are being made.

4 JUDGE AGIUS: Yes. But he has been making these allegation

5 against you personally from the very beginning. I mean, it's -- the

6 allegations are not being made against --

7 MS. KORNER: Well, Your Honour, why does that --

8 JUDGE AGIUS: Against --

9 MS. KORNER: Why does --

10 JUDGE AGIUS: -- they are being made against you.

11 MS. KORNER: Why does that make it any better?

12 JUDGE AGIUS: It doesn't -- yesterday we even had a suggestion

13 that Mr. Trbojevic thanked his colleague of the prostitution instead of

14 his colleague from the Prosecution. But still -- let's leave it at that.

15 MS. KORNER: I don't follow that.

16 JUDGE AGIUS: Let's leave it at that.

17 I have taken -- I have taken stock -- note of what you've --

18 MS. KORNER: Your Honour, may I suggest that Your Honour goes back

19 and reads through --

20 JUDGE AGIUS: We are going to do that.

21 MS. KORNER: -- the full transcript.

22 THE COURT: Of course we will.

23 MS. KORNER: And indeed of the December Status Conference, because

24 I think Your Honour was under a misunderstanding. Then Your Honour can

25 see -- and indeed the Judge Hunt conference -- to see the situation. But

Page 10939

1 the situation in any event is left at this, that it's for Your Honours now

2 to rule whether we should supply the actual words used for the -- where

3 we've summarised it. But in any event, Your Honour, that should have no

4 effect --

5 JUDGE AGIUS: All right.

6 MS. KORNER: -- on the trial.

7 JUDGE AGIUS: And one other thing this Chamber is perfectly

8 capable of -- also of distinguishing between malice or maybe an oversight

9 or negligence. I mean, it's -- so I don't think any -- either of you need

10 to worry about the competence of this Tribunal, of this Chamber in

11 deciding these matters.

12 So next.

13 Before I give you the floor on the next matter, Ms. Korner, may I

14 ask Mr. Ackerman to amplify on this.

15 You maintained, Mr. Ackerman, in para 34 that from your client's

16 point of view or standpoint, military documents in this case had been

17 disclosed -- it's as if they have been disclosed to him within the last

18 few days. And then you go on to state that in the Kordic/Cerkez case, a

19 similar situation arose before the Appeals Chamber, and you maintained a

20 significant delay was granted so that counsel could review and digest

21 thousands and thousands of pages of new documentation.

22 Now, I realise that we have not had time to check on this. What

23 was the significant delay that was granted by the Appeals Chamber in the

24 Kordic/Cerkez case?

25 MR. ACKERMAN: What I have is -- is not the transcript of what

Page 10940

1 happened, Your Honour, but the report of a lawyer who claims to know, that

2 there was a three-and a half-month delay --

3 JUDGE AGIUS: And how many thousands and thousands of pages are we

4 talking about?

5 MR. ACKERMAN: I was told that it might be as much as a million

6 papers.

7 JUDGE AGIUS: All right. Now, Ms. Korner --

8 MS. KORNER: Your Honour, I can assist. I spoke to counsel

9 involved. It was -- I don't know anything about this.

10 The counsel involved in this, on behalf of whichever accused it

11 was, since the convictions, a significant number of new document

12 collections have been received and the application was in relation to

13 them.

14 Now, Your Honour, I find this part a little surprising.

15 Mr. Ackerman says, "It is as though the military documents were disclosed

16 a few days ago." These documents were disclosed to both counsel at the

17 appropriate time. The fact that Mr. Ackerman took a decision that he

18 wasn't going to trouble to read those documents because they could be left

19 to be dealt with by Talic is negligent. He couldn't know whether those

20 documents were relevant to his client or might be relevant to his client.

21 It is the duty of counsel defending to read the documents supplied, and it

22 is not an excuse to say "I didn't bother because I had Talic's counsel to

23 deal with that."

24 JUDGE AGIUS: All right. Do you want to --

25 MS. KORNER: Now, Your Honour --

Page 10941

1 JUDGE AGIUS: I'm sorry. I thought you had finished on this.

2 MS. KORNER: Because the second part goes with it.

3 JUDGE AGIUS: But forget the second part, the Prijedor, for the

4 time being.

5 MS. KORNER: No, no, no. Sorry. Because -- the problems --

6 Prijedor are a problem that is equally applicable to this military

7 document side.

8 JUDGE AGIUS: Yes, yes. But I was coming to Prijedor separately,

9 because I prefer to -- because we have tackled both of them already in the

10 past two weeks, not exactly jointly but --

11 MS. KORNER: I'm sorry, Your Honour, but it's linked because --

12 JUDGE AGIUS: Yes, it is definitely linked.

13 MS. KORNER: Yes. But this is the next point, I'm afraid.

14 Mr. Brdjanin has chosen to instruct as co-counsel -- or Mr. Ackerman has

15 chosen as co-counsel a gentleman who doesn't, as I understand it, read or

16 understand English, which is a mistake, Your Honour. The languages of

17 the -- the official languages of the Tribunal are English and French.

18 Mr. Ackerman or Mr. Brdjanin must have realised that it was in the

19 interests of him that there should be counsel instructed who was able to

20 read the documents and assist.

21 Now, Your Honour, again, this is a failing on behalf of the

22 Defence -- I mean, how Your Honours are going to deal with it, I don't

23 know.

24 JUDGE AGIUS: Neither do we.

25 MS. KORNER: That's something else.

Page 10942

1 But you know, this is -- I'm sorry, Your Honour, but we are being

2 put -- or the Court is being put in this position because of the way that

3 the Defence has decided to conduct its case. And it is our submission

4 that the Court should not have been -- effectively is being blackmailed on

5 this.

6 JUDGE AGIUS: Yes.

7 Now, Mr. Ackerman, would you like to comment on this?

8 MR. ACKERMAN: Well, Your Honour, Ms. Korner may very well be

9 correct. She may very well be right that I am negligent for not having

10 read those documents. In hindsight, I virtually agree that I was. If I

11 had any inkling that General Talic was going to develop cancer and the

12 people who had agreed to assume the major lifting on that part of the case

13 were not going to be here, I certainly would have read them.

14 We were -- we were trying to get ready for trial. We were trying

15 to get this case gone to trial on January 23rd, and that was the way we

16 were able to do it, by dividing some of the responsibilities with regard

17 to these matters. That may very well have been a mistake. And if my

18 client is to be punished for my negligence in that regard, then there's

19 nothing I can do about that; so be it. The fact is that there are an

20 enormous number of documents that I simply have not paid a great deal of

21 attention to.

22 With regard to the assignment of counsel, the original rule in

23 this Tribunal was that to be assigned a counsel here, one needed to speak

24 one of the two working languages of the Tribunal. There was a great deal

25 of agitation about that, and the rule was then changed so that a person

Page 10943

1 who speaks neither English nor French but speaks the language of the

2 accused could be named as counsel. But we'd be in no better shape, I

3 suggest to you, if Mr. Trbojevic instead of speaking B/C/S spoke French

4 and not English, which would be one of the working languages of the

5 Tribunal, because he probably wouldn't -- well, we would be in better

6 shape because those transcripts, I think, are available in French.

7 In any event, Your Honours know that I spent the last two or three

8 days working, in addition to writing this motion - which didn't take all

9 that long - but I spent a great deal of time trying to prepare for the

10 Prijedor part of this case. And it became painfully aware that my

11 previous estimates to you of how much I could do in the course of the week

12 are just not right. I just cannot get to where I hoped I could get

13 because the material is just -- tends to be somewhat overwhelming. I'm

14 working at it several hours a day. That's all I can tell you.

15 I've filed my motion. I've said what I need to say. I think I

16 have made my points as clearly as I can possibly make them. I certainly

17 want to ask -- answer any questions Your Honours might have. I have no

18 ulterior motive here other than to try to get my client a fair trial.

19 JUDGE AGIUS: Ms. Korner, the --

20 MS. KORNER: Can I add one -- sorry.

21 JUDGE AGIUS: -- the Prijedor --

22 MS. KORNER: Can I add one thing, Your Honour? I don't understand

23 why they're in this position, because as I pointed out yesterday, the

24 tapes -- or whenever it was, the day before yesterday -- the tapes of --

25 in B/C/S were delivered in March and April of this year. So can I ask

Page 10944

1 what Mr. Trbojevic has been doing since March/April of this year, or

2 whoever it was. Anyhow, Your Honour, the fact is I don't think there's

3 much I can say, that Mr. Ackerman says he won't be in a position to --

4 JUDGE AGIUS: What have you been doing, Mr. Trbojevic?

5 MS. KORNER: I'm glad you think this is funny.

6 JUDGE AGIUS: Because --

7 MR. TRBOJEVIC: [Interpretation] I've been here since June, Your

8 Honour, and I have reviewed the tapes.

9 JUDGE AGIUS: This is, as I see it, the -- if I am analysing it

10 correctly, I think what is of concern to the Defence at this present

11 moment are two things which are concurrent and which are interacting: It

12 is obvious to me that the Defence is not happy with the decision of the

13 Registry to curtail on the hours that can be recognised for purposes of

14 remuneration; so much so that Mr. Ackerman is saying -- is asking that the

15 Registry should be ordered to suspend our restrictions on Defence counsel

16 and the necessary staff so that these matters will be resolved without

17 significant delay. And that is the first thing that I notice.

18 And secondly, that there seems to be a genuine concern as to the

19 volume of the documents that need to be read, that is, the statements and

20 previous testimonies of the witnesses that -- for part of the Prijedor

21 list. And we discussed this amongst ourselves, between us, earlier on

22 today, and we would like to know roughly what are we talking about? How

23 many pages? What's the documentation like? Is there anyone from the

24 Prosecution that knows?

25 MS. KORNER: I don't know, Your Honour.

Page 10945

1 JUDGE AGIUS: You don't know.

2 MS. KORNER: No. But I would certainly think it runs into a few

3 thousand pages altogether.

4 JUDGE AGIUS: A couple of thousand?

5 MS. KORNER: I don't know. Your Honour, one of witnesses has

6 testified in five -- this will be the fifth trial. But that's -- of the

7 witnesses we're starting with, it's fair to say, only one has testified

8 before. They're all new witnesses -- or in the Omarska trial. I can't

9 remember.

10 JUDGE AGIUS: The first of these witnesses, Ms. Korner, how long

11 do you expect him to be here for?

12 MS. KORNER: I haven't got the list, Your Honour. I think

13 about -- I think we estimated two days, because he's a new witness -- or

14 is he? Yes, he is. He's a new witness. So he hasn't actually testified

15 before.

16 Your Honour, I'm -- I'm told something in the region of 2.500

17 pages.

18 JUDGE AGIUS: And do you intend to spread Prijedor evidence to

19 when we break for the Christmas holidays, no? Do you intend to finish

20 Prijedor by --

21 MS. KORNER: By Christmas.

22 JUDGE AGIUS: By Christmas.

23 MS. KORNER: Yes. Your Honour, that's what our hope is.

24 JUDGE AGIUS: No. I just wanted to have a confirmation of that.

25 All right. Do you want to add anything to this, Mr. Ackerman?

Page 10946

1 MR. ACKERMAN: Well, Your Honour knows that I've requested in my

2 motion that -- that you allow me to actually count and tell you how much

3 material it is that I really have to get through, rather than doing this

4 guessing and speculating that I've been doing, and then we'll be able to

5 have a munch better idea. I really believe it's a great deal more than

6 2500 pages of transcript. That strikes me as a very small number,

7 considering the number of books of stuff I have stacked up on my shelf

8 right now.

9 JUDGE AGIUS: All right. I think we have dealt with everything.

10 Let's -- how much time have we got left? No, we can conclude now, if I

11 have the indulgence of the interpreters, we can conclude in five minutes.

12 THE INTERPRETER: Yes, yes, Your Honour.

13 JUDGE AGIUS: All right. Okay.

14 So just to make sure that we have covered everything. Your

15 requests, Mr. Ackerman, are the following: First, that the Trial Chamber

16 ordered the Prosecutor to advise the Trial Chamber in writing how and to

17 what extent it has complied with the orders of Judges Hunt and Agius

18 regarding Rule 68 arising from interviews --

19 THE INTERPRETER: Please could Your Honour slow down.

20 JUDGE AGIUS: -- as set out in the transcripts referred to in this

21 motion. That has been covered.

22 B, that the Trial Chamber should order the Prosecutor -- the first

23 one is order but now it's should order the Prosecutor to submit a signed

24 sworn affidavit to certify that she is aware of her continuing obligation

25 under Rules 66 and 68 and has produced to the Defence all material

Page 10947

1 required by the Rules.

2 Do you insist on this, Mr. Ackerman?

3 MR. ACKERMAN: No, Your Honour, I don't really insist on that. I

4 think there has to maybe be a --

5 JUDGE AGIUS: It's being withdrawn, in other words?

6 MR. ACKERMAN: Yes.

7 JUDGE AGIUS: Thank you.

8 C, that the Trial Chamber determine the additional remedies to be

9 applied for the clear violation of Rule 68. At the minimum the Trial

10 Chamber should order that it be provided be a list of names of all

11 persons -- and we have covered this.

12 Okay. D, after the delivery of the transcripts as contemplated in

13 the previous paragraph, time should be extended to the Defence to review

14 the transcripts and advise the Trial Chamber which witnesses, if any, must

15 be -- okay. We've covered this.

16 E, that the Trial Chamber provide time and direct that the Defence

17 determine the amount of material that needs to be read and processed in

18 order to become familiar with the military aspects of this case. Okay.

19 This, we have covered.

20 And F we have covered as well, that the Trial Chamber provide time

21 and direct that the Defence determine the amount of material that needs to

22 be read and processed in order to become familiar with the Prijedor.

23 Okay.

24 G, that the Registry should be ordered to suspend our

25 restrictions. That, we have taken note of, although it has not been

Page 10948

1 debated. But we also remember the complaint that you raised sometime

2 back, Mr. Ackerman.

3 And finally, that the trial should be indefinitely staid pending

4 the complete resolutions of all these matters. And this has been more or

5 less dealt with as well.

6 In the meantime, we are definitely taking one decision which we

7 are giving orally, and that is that we will resume definitely as planned

8 on the 28th of October and that the first witness that was planned to be

9 brought forward for that week will be brought forward, unless and until

10 this order is countermanded. We will certainly follow up with a written

11 decision, because I think the things being what they are and the

12 allegations being what they have been, I think that it is -- I will

13 discuss it with my -- with my colleagues, because initially I -- I must

14 admit that we had the intention to give -- to hand down an oral decision

15 and leave it at that. But I think matters have become a little bit more

16 convoluted than we had anticipated and I think that having considered what

17 has been stated and alleged here today, we owe it to the trial itself and

18 to both parties to hand down a written -- a written decision. We will

19 work on it as quickly and as efficiently as we can. And it will certainly

20 be handed down before -- well before the 28th October date, when we are

21 supposed to resume.

22 MS. KORNER: Your Honour, I don't think I've said -- I know I've

23 said this over and over again, but I think Your Honour needs to appreciate

24 a little bit more the difficulty of reorganising witnesses. In my cases

25 the VWS can't just ring them up and say you're on the plane or whatever.

Page 10949

1 They have to be gone and seen because they're not on the telephone and

2 things like that. Therefore, Your Honour, it cannot be left till next

3 week if we're going to have the stop the witnesses.

4 JUDGE AGIUS: But wait -- wait one moment. Because we can't live

5 like this. You know, it's all the time with time limits and deadlines

6 here and deadlines there.

7 Prijedor -- Prijedor municipality. Okay. You have the first one,

8 which is 7.68.

9 MS. KORNER: I haven't got a list.

10 JUDGE AGIUS: Can you follow me?

11 MS. KORNER: I haven't got a list. Sorry.

12 JUDGE AGIUS: Do you have your list -- do you have -- which I can

13 use?

14 All right. We are going to hand you the list. There is the first

15 witness, which is 7.68.

16 MS. KORNER: Yes.

17 JUDGE AGIUS: That is shown on the list. Is he or she, so that I

18 don't give a hint, because it's a closed session witness -- is this the

19 first witness that you intend bringing forward or not?

20 MS. KORNER: Yes.

21 JUDGE AGIUS: Correct. So bring that -- prepare to have that

22 brought forward. And that is a witness that according to you you require

23 for two days on chief.

24 MS. KORNER: No. I think we estimated two days in all.

25 JUDGE AGIUS: Two days all?

Page 10950

1 MS. KORNER: Yeah. I --

2 JUDGE AGIUS: All right. The next one, 7.178.

3 MS. KORNER: I think.

4 JUDGE AGIUS: He will be dealing with Omarska. And as I

5 understand it, is this a witness that has given evidence before? Because

6 it seems viva voce.

7 MS. KORNER: This is -- this is a witness that has testified

8 before but a long time ago. I don't know whether it's intended to call in

9 full or transcript.

10 JUDGE AGIUS: It seems to me --

11 MS. KORNER: Sorry, Your Honour.

12 JUDGE AGIUS: The way it put here, it seem that is he's going to

13 be produced in chief and then obviously on cross, as I see it.

14 MS. KORNER: Yes. I think -- well, Your Honour, it's not quite --

15 that's not quite the plan. The plan is that yes, his transcript will be

16 used but there may be further questions.

17 JUDGE AGIUS: Okay. Who -- how many of these witnesses did you

18 plan to have in the first week?

19 MS. KORNER: Without the list that I'd prepared, Your Honour, I

20 can't help at the moment. But I think we had, yes, about four -- the

21 first four.

22 JUDGE AGIUS: Okay. Plan to bring those four. In the meantime,

23 we will take -- because the points that have been raised are serious

24 matters. Forget certain points that have been made. But there are

25 certain points that have been made that need to be dealt with thoroughly,

Page 10951

1 especially the Rule 68 business. I don't want the Rule 68 business to

2 delay matters unduly or to complicate matters unduly, and therefore that

3 is a matter that we are going to give attention to immediately. The rest

4 I can tell you does not present major problems to us, so that we -- we

5 could have actually today separated the two issues. But since in Rule 68

6 there is also a request for the staying of proceedings, we prefer to have

7 everything in one bundle and decide -- decide that very early next week.

8 So prepare to have the first bunch of witnesses to be brought

9 forward as planned the first week of -- not the first week. The week

10 starting the 28th. And if necessary, if necessary, if we come to the

11 conclusion that that cannot be done, then we will make sure that the

12 situation is reversed before it is too late. But we will be working on

13 this motion, giving it our utmost attention, and handing down a written

14 judgement at our first opportunity.

15 All right. I think it is my duty, my obligation, to thank the

16 interpreters, the technicians for your indulgence. We have kept you here

17 beyond -- unduly, but you are also going home earlier. I thank you, and I

18 also thank the rest of the staff. Thank you.

19 --- Whereupon the hearing adjourned at 5.59 p.m., to

20 be reconvened on Monday, the 28th day of October,

21 2002, at 9.00 a.m.

22

23

24

25