Tribunal Criminal Tribunal for the Former Yugoslavia

Page 11304

1 Monday, 4 November 2002

2 [Open session]

3 --- Upon commencing at 9.32 a.m.

4 [The accused entered court]

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

6 THE REGISTRAR: Yes, Your Honour this is case number IT-99-36-T,

7 the Prosecutor versus Radoslav Brdjanin.

8 JUDGE AGIUS: Yes, Mr. Brdjanin, good morning to you.

9 THE ACCUSED: [Interpretation] Good morning, Your Honour.

10 JUDGE AGIUS: Can you here me in a language that you can

11 understand.

12 THE ACCUSED: [Interpretation] I can hear you and I understand you.

13 JUDGE AGIUS: Thank you, you may sit down.

14 Appearances for the Prosecution.

15 MS. KORNER: Joanna Korner, Anna Richterova and Ann Sutherland

16 assisted by Denise Gustin, case manager. Good morning, Your Honours.

17 JUDGE AGIUS: Good morning to you.

18 Appearances for Radoslav Brdjanin.

19 MR. ACKERMAN: Good morning, Your Honours, I'm John Ackerman and

20 I'm here with Milan Trbojevic and Marela Jevtovic.

21 JUDGE AGIUS: I thank you Mr. Ackerman and good morning to you as

22 well. Was the time I gave you this morning to consult with your client

23 sufficient?

24 MR. ACKERMAN: Yes, it was Your Honour and I want to express my

25 gratitude for doing that -- it had to with

Page 11305

1 JUDGE AGIUS: I don't need to know but I want to make sure it was

2 enough.

3 MR. ACKERMAN: I want to hand the usher some documents and there

4 is one for each of you and I've given one to the Prosecutor, Your Honour.

5 And these have to do with the numbers of pages that I told you were

6 being-- was being worked on. And I'll explain it to you just very

7 briefly, there are three columns, one are pages of material that are

8 unrelated to the Stakic case, second column are pages of material that are

9 related to the Stakic case and therefore came to us fairly recently. And

10 then the last column are the total number of pages for each of the

11 witnesses and then you see the totals at the bottom. And that's what I --

12 I can't represent that this is 100 per cent accurate. There have been

13 materials that have been delivered to us since these numbers were prepared

14 so it's actually a higher number than you see there but I think those are

15 the numbers.

16 JUDGE AGIUS: That's very useful, Mr. Ackerman. I suppose

17 Ms. Korner you have been kept up to date on all this?

18 MS. KORNER: Your Honour, yes, I have. I'm told, Ms. Richterova,

19 informed me that Your Honours asked for the total number of pages so that

20 Mr. Ackerman or somebody could speak to Mr. Rohde about --

21 JUDGE AGIUS: Yes, I'm trying to organise to hold a short meeting

22 in my chambers for you and the Defence to make sure that we don't have

23 obstacles or hindrances for proceeding with the case as smoothly as

24 possible. I don't want to come here on any specific morning only to be

25 told we haven't had time or we need time. We will organise this

Page 11306

1 beforehand. We will have it all planned, scheduled, and I'll make sure

2 that the Defence are put in a position by the office to enable them to go

3 through this and not have the time or the payment curtailed without taking

4 into due consideration the work and the hours needed to deal with all this

5 stuff. I mean I was personally -- literally taken aback this morning when

6 I found on my desk the transcripts related to 7.45.

7 MS. KORNER: Your Honour, I want to deal with that.

8 JUDGE AGIUS: Less the transcripts coming from Tadic, because

9 that's still got to be delivered.

10 MS. KORNER: Your Honour, I wanted to mention that witness in

11 particular this morning. As far as the meeting is concerned, Your Honour,

12 I think it would assist Your Honours best if Ms. Richterova and

13 Ms. Sutherland attended because Ms. Richterova I understand Your Honours

14 thought that I might have something to do with disclosure. Ms. Richterova

15 is - if I can put it that way - the queen of disclosure as far as the

16 Prosecution is concerned and Ms. Sutherland of course has a detailed

17 knowledge of the Prijedor case so I think it would probably assist if they

18 attend.

19 JUDGE AGIUS: Okay. That's no problem.

20 MS. KORNER: But Your Honour can I raise -- really it applies

21 mostly to 7.145 because he's the man who has testified more often.

22 JUDGE AGIUS: 7.45.

23 MS. KORNER: 7.45. Your Honours, when I reached the agreement

24 with Mr. Ackerman that the transcripts effectively should be the evidence

25 in chief save where the Prosecution indicated otherwise, I had in mind

Page 11307

1 that -- and I should have perhaps made it clear, that where somebody had

2 testified, like 7.45 on a number of occasions, effectively one transcript,

3 that is to say the one that was the most comprehensive, should be the

4 evidence in chief and that the other transcripts would of course be

5 supplied to Mr. Ackerman and to Your Honours to be used for

6 cross-examination purposes. So Your Honours, in respect of 7.45, it is my

7 suggestion to Your Honours, and I've spoken to Mr. Ackerman about it this

8 morning, that the evidence he gave in Stakic is the most comprehensive.

9 It covers everything about which he has testified before and additional

10 material which wasn't available and so that is the transcript that we

11 would ask Your Honours to read. The other transcripts, those from Tadic,

12 Keraterm, where again he was just cross-examined, and Kovacevic where he

13 gave his evidence again, which is effectively a repetition of his Tadic

14 evidence because there was no Rule 92 then, that is all covered in the

15 Stakic transcript. And so Your Honours, we will be seeking to say that

16 the Stakic transcript is his evidence in chief. I will be asking further

17 questions because there are matters A, that were edited out relating to

18 Mr. Brdjanin, and further matters that he can say. So I will be asking

19 additional questions on top.

20 JUDGE AGIUS: In fact I did notice that there are several

21 paragraphs, entire paragraphs, that have been redacted from the Stakic --

22 coming through the pages because I have not started.

23 MS. KORNER: That's because it related to Mr. Brdjanin.

24 JUDGE AGIUS: Okay. I was going to ask. I imagined so much but

25 that -- I was going to ask you anyway.

Page 11308

1 MS. KORNER: So Your Honour that is my suggestion because it seems

2 to me if Your Honours look at the Stakic transcript, together with the

3 documents, Your Honours can see the full picture with the exception of any

4 evidence directly affecting Mr. Brdjanin of what that witness has to say.

5 JUDGE AGIUS: Mr. Ackerman?

6 MR. ACKERMAN: Your Honour, that is not what my understanding of

7 the agreement was and the specific language of the agreement uses the word

8 "transcripts" in plural, dealing with all the transcripts of the prior

9 statement, the prior testimony of any witness, to say that you should

10 only consider the one the Prosecution decides is that which is most

11 favourable to the Prosecution sounds decidedly unfair to me.

12 It seems to me you must consider them all. It's like saying to

13 you this witness has made five statements to the OTP, Your Honours but we

14 would like you to only consider the last one because that's the one we

15 believe is most favourable to us in this case. Regardless of how this

16 irons out, you'll have to be given all the transcripts because they

17 represent the prior --

18 JUDGE AGIUS: I don't think that's an issue.

19 MR. ACKERMAN: Yes, the prior testimony so what it really boils

20 down to is this question: What will be a Prosecution exhibit and what

21 will be a Defence Exhibit? If the Prosecution wants to honour the

22 agreement and make them all Prosecution exhibits then we can do it that

23 way. If they don't, then those that they do not make Prosecution exhibits

24 I'll simply ask to make defendant Brdjanin exhibits because I thought at

25 the beginning, after having looked at some of this material, that it was

Page 11309

1 important for you to see all of that material because frankly, Witness

2 7.45, for instance, the story changes from one case to another, and that's

3 an important thing for this Trial Chamber to consider and of course I

4 won't hesitate to point it out at the appropriate moments so you'll see

5 that. So that's my view on it. And I don't think it is a major issue,

6 Your Honours, we can go either way and I don't particularly care which way

7 we go as long as it's clear that you are not only entitled but I think

8 almost bound to consider all that material.

9 MS. KORNER: Your Honour, this is the whole point in fact. Of

10 course Your Honours will get the transcript and Mr. Ackerman has the right

11 to cross-examine on any part of the transcripts that he chooses, if he

12 wishes to show, as he states, a change in the story. Our application is

13 not that it's the most favourable but it's the most comprehensive and

14 there was lengthy comprehensive cross-examination indeed in the Stakic

15 trial. What my concern is, is what we make as exhibits we will be asking

16 Your Honours to read, not have summarised by Your Honours' legal officers

17 and therefore my application and I appreciate it said transcript or

18 transcripts, I was assuming, I'm afraid, and that was my error that that

19 meant what we chose to put in as the evidence in chief but as I say if

20 Mr. Ackerman doesn't cross-examine on a previous transcript, then what is

21 the point of Your Honours reading through something that is effectively a

22 repetition? But Your Honour, that's my application. In a sense, if

23 Mr. Ackerman follows what he wants to do namely make them all exhibits

24 regardless, well, then it is six of one, half a dozen of the other but my

25 application at the moment is in respect particularly of 7.45, that the

Page 11310

1 only transcript that we seek to make an exhibit at this stage is the

2 Stakic transcript.

3 JUDGE AGIUS: I think you have made yourselves very clear, both of

4 you, and we'll come to that because I'm pretty sure also that it may well

5 be when the time arrives that there will be one or two of those

6 transcripts, apart from the Stakic one, which Mr. Ackerman himself won't

7 really need to -- but anyway, I don't want to prejudice his position or

8 compromise his position on that. We will take it up as we go along.

9 MS. KORNER: Thank you.

10 JUDGE AGIUS: Okay. Anything further?

11 MS. KORNER: I'm going to ask to go into private session to deal

12 with the next witness and the application I have but before that, can I

13 hand out to the Court and Your Honours the transcript of Witness 7.185,

14 who didn't testify last week?

15 JUDGE AGIUS: Yes. So you're seeking to tender this.

16 MS. KORNER: As an exhibit.

17 JUDGE AGIUS: As an exhibit.

18 MS. KORNER: Which is P1135 it has the redactions requested by

19 Mr. Ackerman.

20 MR. ACKERMAN: Your Honour I'm wondering if the Prosecution

21 intends to --

22 JUDGE AGIUS: First of all are we in private session or not yet.

23 MS. KORNER: Not yet.

24 MR. ACKERMAN: I'm wondering if the Prosecution intends to tender

25 the additional proofing statement of that witness that happened last

Page 11311

1 week?

2 JUDGE AGIUS: Yes, Ms. Korner?

3 MS. KORNER: Your Honour, may I have until tomorrow morning just

4 do think about that, thank you very much.

5 JUDGE AGIUS: All right. Thank you.

6 MS. KORNER: But I would like now to go into private session.

7 JUDGE AGIUS: Otherwise do you have any objection to this being

8 tendered as an exhibit?

9 MR. ACKERMAN: I do not, Your Honour. I've looked at it in

10 accordance with my request to the Prosecutor they've let me view it and I

11 think it's right.

12 JUDGE AGIUS: Okay. So this will be Exhibit number P1135?

13 MS. KORNER: 35.

14 JUDGE AGIUS: Shall we go into private session, Madam Registrar,

15 please?

16 [Private session]

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12 [Open session]

13 JUDGE AGIUS: That's the end of the closed session.

14 MR. ACKERMAN: It says we are in open session, Judge.

15 JUDGE AGIUS: Yes, we are in open session, thank you.

16 MR. ACKERMAN: Your Honour, there are just some profound document

17 problems going on today and it all has to do, I suppose, with the fact

18 that we are hurrying and working beyond our -- all of our capacities. The

19 last document that we have been dealing with, the last portion that's the

20 minutes of the executive committee, we have no translation of that. Even

21 though we were handed what purported to be a translation of that just a

22 few moments ago but we only have the translation of the first portion, the

23 municipal board meeting. That's number 1. Number 2, the exhibit P861,

24 P861, Your Honour, purports to be a document that has a stamp and a

25 signature on it. But in fact, the last page of that document, the B/C/S

Page 11384

1 portion of that document, is totally unrelated to the rest of the

2 document.

3 JUDGE AGIUS: Ms. Korner?

4 MR. ACKERMAN: What you've got is 1, 2, 3, there is four pages of

5 B/C/S and then there is a the fifth page with a stamp and a signature

6 which has nothing to do.

7 JUDGE AGIUS: In fact, Ms. Korner if I understood her well, did

8 hint that there was a problem with the last page that it may not have been

9 translated.

10 MR. ACKERMAN: It was.

11 JUDGE AGIUS: And she was going to go into that.

12 MR. ACKERMAN: It's not related -- it's a different document

13 completely. So the actual B/C/S document does not have a stamp and a

14 signature, and just to shed some light on what this is, where it says,

15 UHER 014 to 043, and UHER is a sophisticated German tape recorder and what

16 this is, is someone is listening to the tape between these tape numbers

17 and summarising what was said at that time and typing it out here. So

18 what we've got is a portion, it's not verbatim of the tape it's just

19 somebody's summary of what was being said on the tape at that time. This

20 last page of that document needs to be removed from the records of this

21 case because it's not part of the document.

22 JUDGE AGIUS: I'm sure you won't have any problems with that

23 Ms. Korner.

24 MS. KORNER: I think Your Honour that must be right because I just

25 looked at the numbering and I got a slight surprise when I saw it but it's

Page 11385

1 obviously a different document which somehow or other has been

2 photocopied. We will definitely arrange for new copies tomorrow.

3 JUDGE AGIUS: That will be taken care of, Mr. Ackerman.

4 MR. ACKERMAN: The diary that we've been dealing with all day,

5 Your Honour, apparently, at least the Prosecutor and perhaps Your Honours

6 too have a completely different translation of that diary than I have

7 because every time Ms. Korner is reading from what I think is a

8 translation of the diary it is totally different from what the one I have

9 says. So I'm mystified by that. Just to give you an example you

10 remember just a few minutes ago, there was that part where up at the top

11 it said, it was purported to have said, "Crisis Staff, 5, 10, 1991." And

12 then crossed out. My translation says, "Crisis headquarters,

13 05,/10,/1991" and it's not crossed out. And I just don't know -- there

14 is another place where the B/C/S version on September 9 lists the names of

15 Karadzic and Plavsic and so forth, that doesn't appear in the translation

16 that I have. That was page L 0074541. And there are several other places

17 that are either not translated or the translation is simply wrong.

18 Apparently there is a more recent translation of this that I don't have

19 but this is just not acceptable the way we are operating with these

20 documents. It's just a complete mess right now.

21 JUDGE AGIUS: That's what I imagine is the source of the problem.

22 May I ask you, Mr. Ackerman, where we have Crisis Staff 5th October, 1991,

23 crossed out, what page is that in your case? Is it page 13 of 25.

24 MR. ACKERMAN: It says 13 of 26 it has L 0074549 in the upper

25 right-hand corner.

Page 11386

1 JUDGE AGIUS: But the ET number top right corner do you have ET

2 0139-9500-0139-9524?

3 MR. ACKERMAN: I have got ERN with those numbers, not ET.

4 JUDGE AGIUS: What's the difference between ET --

5 MS. KORNER: Your Honour, what I do know is that there was an

6 original what I think is called in the vernacular, a dirty translation of

7 this diary because it had to be done at speed. It became absolutely

8 apparent that it was a terrible translation and so it was revised. And it

9 may well be, and if so I'm sorry, these things do happen occasionally that

10 Mr. Ackerman has got the original, in inverted commas dirty translation

11 and not the revised version that was certainly noticeable. If he has the

12 one that doesn't have ET numbers on it --

13 JUDGE AGIUS: I am under the impression that when I pointed out

14 that I myself only had the English translation, English version of this

15 document, and I handed back to Madam Registrar the version that I had and

16 she gave me the new version, I am under the impression that the same thing

17 was done with my colleagues and also with you. I think -- no?

18 MR. ACKERMAN: [Microphone not activated]

19 JUDGE AGIUS: I stand to be corrected obviously but if that's the

20 case it can be easily.

21 MS. KORNER: I see, Mr. Ackerman I'm told has just been given the

22 same copy because we handed over another copy so he's not the same as us.

23 JUDGE AGIUS: May I have the one I had before back for a moment?

24 The one I gave you.

25 THE REGISTRAR: [Microphone not activated]

Page 11387

1 JUDGE AGIUS: Oh, you gave it to the interpreter?

2 MR. ACKERMAN: Your Honour, we weren't given another copy. We

3 were working all day off what we were given before.

4 JUDGE AGIUS: Yeah. I want to see why, then he wasn't furnished

5 with a copy.

6 Mr. Ackerman I've taken note of your points, the points you raise

7 and obviously it seems to me that if that is the case it doesn't seem to

8 be put in doubt, then obviously you are 100 per cent right and I'm sure

9 that all steps will be taken.

10 MR. ACKERMAN: Final thing Your Honour is one that I raised the

11 other day and it's continuing to bother me. When we have in the record of

12 this case a B/C/S document of 72 pages and an English translation of like

13 12, then clearly there is evidence in the case that is in B/C/S only.

14 Because it's an exhibit in the case, it is evidence in the case. So my

15 fear is this: That there will come a time when a submission will be made

16 by the Prosecutor regarding the content of the B/C/S document only and I

17 will never have become aware of what that document said unless I actually

18 took the time to have somebody sit and read it to me. And maybe the

19 solution, rather than translating the balance of that document, and this

20 just came to me this morning, maybe the solution is for Your Honours to

21 simply decree that the evidence in the case is only the translated

22 portions of the B/C/S documents that are there. In other words --

23 JUDGE AGIUS: We can easily do that but it was you who insisted on

24 having the rest of the document translated with reservations after Ms.

25 Sutherland said there may be obvious parts of the document which obviously

Page 11388

1 do not require any translation because they are totally irrelevant or --

2 and you agreed.

3 MR. ACKERMAN: That's what I'm saying now is there may be a better

4 solution.

5 JUDGE AGIUS: But you have to have to agree among ourselves. We

6 are not taking an initiative ourselves before we have at least an

7 indication that there is some sort of agreement between you or amongst you

8 as to which relevant parts you're talking about.

9 MR. ACKERMAN: If we just say it's not evidence unless it's

10 translated that solves the problem and I don't have to worry any more.

11 JUDGE AGIUS: But then it means also that -- because otherwise

12 there would have to be an empty space we would have to fill. We want to

13 make sure that if we adopt the system, that is -- that would be subsequent

14 to you, your agreeing that there is no need for any further translations.

15 MR. ACKERMAN: We could always --

16 JUDGE AGIUS: It could also be the result of an oversight.

17 MR. ACKERMAN: I assume we could always substitute later on if we

18 discover --

19 JUDGE AGIUS: I wouldn't like to take any risks in that regard so

20 we will do what you say if there is agreement --

21 MS. KORNER: Your Honour I think that must be right. Unless the

22 document is translated, or there has been sometimes you've had a through

23 the headphones the interpreters have given a translation which is on the

24 transcript, it can only be evidence if it's in a working language of the

25 Tribunal. So I agree with Mr. Ackerman. So if there is any other parts

Page 11389

1 that we feel necessary we will get the translations done.

2 JUDGE AGIUS: Okay. All right. So we will rise now and reconvene

3 tomorrow morning at 9.00 here in this courtroom. The rest of the week

4 will all be in this courtroom, Courtroom III, always in the morning. All

5 right. Thank you.

6 --- Whereupon the hearing adjourned at

7 1.51 p.m., to be reconvened on Tuesday,

8 the 5th day of November, 2002, at 9.00 a.m.

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