Tribunal Criminal Tribunal for the Former Yugoslavia

Page 20586

1 Thursday, 28 August 2003

2 [Open session]

3 --- Upon commencing at 9.05 a.m.

4 [The accused entered court]

5 JUDGE AGIUS: Yes. Good morning, Madam Registrar. Could you call

6 the case, please.

7 THE REGISTRAR: Good morning, Your Honours. This is the case

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

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

10 follow in a language that you can understand?

11 THE ACCUSED: [Interpretation] Good morning, everybody. Yes, I can

12 follow it in a language I understand.

13 JUDGE AGIUS: Appearances, Prosecution.

14 MS. KORNER: Good morning, Your Honours. Joanna Korner together

15 with Denise Gustin, case manager.

16 JUDGE AGIUS: I thank you, and good morning to you.

17 Appearances for Radoslav Brdjanin.

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

19 I'm here with David Cunningham and Aleksandar Vujic.

20 JUDGE AGIUS: I thank you, Mr. Ackerman. Good morning to the

21 three of you.

22 So I understand we're going to start in open session, and I will

23 move to closed session to hear the evidence of our witness today.

24 Are there any preliminaries? First of all, I assume you have

25 received the Rule 98 bis motion and that you're working on it.

Page 20587

1 MS. KORNER: Sorry. Your Honour, I can assure you we are working

2 on it, yes.

3 JUDGE AGIUS: I can imagine. So are we. So are we, and we look

4 forward to your response.

5 MS. KORNER: Your Honour, I know Mr. Ackerman filed a day early,

6 but we will be filing at the nth hour. It will be filed by midday, but

7 not before.

8 JUDGE AGIUS: Okay. It should not be a problem. I was informed

9 yesterday by one of my legal officers that there are two witnesses from

10 Prnjavor municipality whose testimony was admitted under Rule 92 bis, and

11 they were supposed or expected to be brought over for cross-examination,

12 and apparently they haven't.

13 MS. KORNER: We'd have to do a check on that, Your Honour. I have

14 no recollection at this moment.

15 JUDGE AGIUS: It escaped me completely. If this is so, you know,

16 it escaped me completely. Mr. Gallmetzer is not here at the moment, is

17 going to be authorised by me to contact both you, Ms. Korner, and

18 Mr. Ackerman, to give you the details of these two witnesses, and then you

19 tell me, please, what you intend to do.

20 MS. KORNER: Your Honour, I can tell you already, because

21 Ms. Gustin has already spoken to one of the legal officers about it. It

22 seems to have escaped through the net, but I think we made the decision

23 that we wouldn't trouble the Court with them because we didn't have enough

24 time to bring them over for cross-examination left. But I don't think we

25 need trouble further about that.

Page 20588

1 JUDGE AGIUS: You would need to know who they are, Mr. Ackerman, I

2 suppose.

3 MS. KORNER: I can tell Your Honour, it's 7.140 and 7.219.

4 JUDGE AGIUS: All right. Thank you.

5 Yes, Mr. Ackerman.

6 MR. ACKERMAN: I assume, then, that the 92 bis is withdrawn with

7 regard to the two of them.

8 MS. KORNER: Yes.

9 JUDGE AGIUS: You're assuming right, Mr. Ackerman.

10 MS. KORNER: Yes. Right. If Your Honours' order is to bring them

11 for cross-examination and we didn't, well then, we can't rely on that

12 evidence.

13 JUDGE AGIUS: Last thing from our side is that the decision on the

14 intercepts has been drafted and redrafted and it's practically ready. We

15 need to go through it, again the three of us, and then it will be handed

16 over. I mean, it's -- that's the position. Later on, knowing that

17 this -- not probably, surely is important for you to know, Ms. Korner, in

18 preparation for your response to the Rule 98 bis. I will discuss with my

19 two colleagues whether it's wise to tell you here in Court what the

20 decision is going to be, and then you will expect it in writing later on.

21 Reason why we feel it should be in writing, because it touches upon a very

22 important legal issue and I think such an issue deserves to be recorded in

23 writing.

24 MS. KORNER: Your Honour, I absolutely agree, because it's an

25 issue that will affect other cases in this Tribunal

Page 20589

1 JUDGE AGIUS: Obviously.

2 MS. KORNER: All that I would ask is if Your Honours feel able,

3 just to give us a verbal indication today or tomorrow, that would be very

4 helpful.

5 JUDGE AGIUS: Yes, yes, Ms. Korner. But I want to make sure that

6 my two colleagues agree with me that it is wise to do so. That's the

7 only --

8 MS. KORNER: As Your Honour anticipates, we're relying on a number

9 of these intercepts in our response.

10 JUDGE AGIUS: I can imagine so, Ms. Korner. Thank you.

11 Anything else? Today's witness is still in closed session; no?

12 MS. KORNER: Oh, yes, absolutely. And perhaps we can go into

13 closed session straight away and then I can just give Your Honour one or

14 two administrative details.

15 JUDGE AGIUS: All right. Okay. So let's go into closed session,

16 Madam Registrar.

17 [Closed session]

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

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Page 20681

1 (redacted)

2 [Open session]

3 JUDGE AGIUS: I can also add that of course the question of

4 authenticity and reliability are being reserved until the end of the

5 trial, when the Chamber itself goes into -- starts with its deliberations.

6 That's with regard to the intercepts.

7 MS. KORNER: I can't hear. I couldn't hear what Your Honour was

8 saying, frankly, but I've just looked at it.

9 JUDGE AGIUS: Yes, Ms. Korner.

10 MS. KORNER: Your Honour, what we never actually had formally

11 admitted into evidence was the article in the Washington Post written by

12 Mr. Randall. We had a lot of discussion about it, but we checked and it

13 was never formally admitted.

14 JUDGE AGIUS: Yes. You are correct.

15 MS. KORNER: Could we ask that it be admitted as P1697. I don't

16 know why we jumped to that. No, backwards, sorry. We're going backwards.

17 JUDGE AGIUS: 1697.

18 MS. KORNER: 1697. And can I hand out copies?

19 JUDGE AGIUS: It is so being admitted, in terms of what we had

20 decided ourselves in --

21 MS. KORNER: Yes, Your Honour, that's right. So if we hand over -

22 I don't know - all the copies? We'll just hand them out. I think

23 Mr. Ackerman already has a copy.

24 Your Honours, second thing is the videolink, the potential

25 videolink.

Page 20682

1 JUDGE AGIUS: Yes.

2 MS. KORNER: Your Honours will recall there's a witness due to

3 return who was emotionally extremely disturbed by the evidence that he had

4 to give to Your Honours, and he had to return, if I'm right in my

5 recollection, because of a diary, and therefore he couldn't be

6 cross-examined. Such contact as we had, he was due in fact to return

7 yesterday but he's still apparently under a doctor, and in any event,

8 wasn't available. The suggestion was made that he should be dealt with by

9 way of a videolink. Your Honour, that suggestion was put by us to

10 Mr. Ackerman, and my understanding of the Defence attitude to this is

11 they're content with that, provided counsel who is cross-examining can be

12 there in the place where the witness is. Your Honour, that's not what a

13 videolink is supposed to be about. A videolink is supposed to be the

14 witness is on video with counsel here, and that's I think to have counsel

15 there doing it wouldn't really relieve the problem that this witness has

16 with recounting these events.

17 So our application would be, and I think Your Honours can make the

18 ruling, that he be allowed to give his evidence by videolink. The effect

19 is the same. His face can be seen, his reaction to the questions, but

20 that counsel, all counsel in the case, will be present here.

21 JUDGE AGIUS: I don't know how this has been done in the past,

22 Ms. Korner. Is there usually the practice of having at least a

23 representative over there of the Prosecution and of the Defence? Because

24 that's what I'm used to.

25 THE REGISTRAR: We will send our one representative of Registry in

Page 20683

1 the field, and in the -- that place can be regarded as extension of this

2 courtroom. So only representative of the Registry and the witness is

3 allowed in the room where the witness is going to be.

4 JUDGE AGIUS: I see. That's how it has been done in the past. I

5 don't know.

6 MS. KORNER: Your Honour, that's right. And Your Honour saw very

7 clearly the state this witness was in, and the idea that we should try and

8 alleviate the problem as much as possible.

9 JUDGE AGIUS: Yes, Ms. Korner. I mean, the Trial Chamber

10 certainly has no intention of aggravating the state of health, mental and

11 emotional, of this witness. Far from it.

12 MS. KORNER: The reason I'm asking now is either for a ruling or

13 perhaps the Defence to reconsider their position on this, is that we'll

14 need to make the application, to set it up, and we would intend to put him

15 in, for him to be further cross-examined just before the return of

16 Mr. Treanor to be cross-examined. I understand the cross-examination is

17 not likely to take more than half an hour.

18 JUDGE AGIUS: The other thing I'm concerned about is this: Do you

19 have medical clearance for a videolink?

20 MS. KORNER: We don't --

21 JUDGE AGIUS: Because --

22 MS. KORNER: Your Honour, we would certainly have to make --

23 ensure that this would be possible, but it's our view that this may be

24 something that would be agreeable to the witness and his medical advisors.

25 We haven't at the moment explored it any further because we haven't been

Page 20684

1 able to contact him personally, because, as I say, he's on holiday. But

2 at the moment, before we take the steps that are necessary, we'll need a

3 clear-cut, as it were, ruling or whatever that we can do it this way.

4 JUDGE AGIUS: Do you have any comments, Mr. Ackerman?

5 MR. ACKERMAN: Well, I maintain the position, Your Honour, that

6 the idea of a videolink is to deal with witnesses who, for one reason or

7 another, cannot attend the Tribunal. It's not that questioning must be

8 done by counsel here at the Tribunal by videolink, but that the witness

9 testify by videolink. And it's extremely, especially in this case, where

10 the witness testified here in Court during direct, to now be relegated to

11 cross-examined by videolink without being able to look at the witness, to

12 be in the presence of the witness, to judge the witness's full demeanour

13 rather than what the camera decides to show us, I think is just not

14 proper. Mr. Cunningham is no threat to anyone, so he certainly couldn't

15 be threatened by the presence of Mr. Cunningham. I think his problem was

16 travelling, and the things he's talking about not necessarily the presence

17 of Defence counsel or anything like that. So I think that's an

18 appropriate request and I think it should be done that way.

19 JUDGE AGIUS: Any way, you haven't filed a proper request as yet,

20 have you?

21 MS. KORNER: We did ask for videolink. We didn't put in a motion

22 applying -- but we've asked for it.

23 JUDGE AGIUS: I know.

24 MS. KORNER: That's why we're asking for a ruling, and therefore a

25 ruling that deals with this suggestion by Mr. Ackerman. Can I say that

Page 20685

1 nobody is suggesting that Mr. Cunningham intends to be or in normal

2 circumstances could be seen as a threat to the witness. It is, however,

3 clear from the medical report that Your Honours and Mr. Ackerman saw and

4 what happened that it's the pressures of being at this Court and having,

5 as it were, direct contact with either side that are the problem. And

6 Your Honours, as I say, videolink, you can see the face, you can see the

7 demeanour of the witness. So at some stage, Your Honour, in the near

8 future, could we just have a ruling. That's all I'm asking.

9 JUDGE AGIUS: You will have a ruling tomorrow morning, so in the

10 meantime I discuss a little with my two colleagues and also make sure what

11 the practice has been in the past and whether it has been a constant

12 practice. Because I am still relatively a newcomer to this Tribunal, and

13 I have not had videolink testimony as yet. So --

14 MS. KORNER: Your Honour, I can say in the Stakic case we had a

15 number and it was counsel in the courtroom and the representative of the

16 Registry present with the witness.

17 JUDGE AGIUS: In Stakic you had counsel there present as well?

18 MS. KORNER: No. Counsel were here in The Hague. The witness was

19 in the place with the representative.

20 JUDGE AGIUS: We'll decide tomorrow. I will check in the

21 meantime. I know what it has been in Vasiljevic and Stakic now, but I

22 will check others as well. And tomorrow morning, first thing before the

23 gentleman we've had before continues, proceeds with his testimony, I will

24 give a ruling. All right? Thank you.

25 In the meantime, I would also invite you, in case -- because there

Page 20686

1 will be a videolink in any case. I would invite you to try and agree on

2 having the videolink either on the 13th of October or on the 10th of

3 October. That will not disrupt the programme that we had before of you

4 starting the defence case or starting on the 14th.

5 MR. ACKERMAN: Probably the 13th would be the logical day, Your

6 Honour. Let me just say one more thing.

7 JUDGE AGIUS: The 13th is Monday.

8 MR. ACKERMAN: Yes, I think that would be okay.

9 The other thing I want to say about this is I don't believe, and

10 I'm quite certain that I'm correct about this, that there has been a

11 videolink situation at this Tribunal where the witness has testified in

12 direct at the Tribunal and then in cross-examination by videolink. So I

13 think this is a completely different kind of situation. Your Honours have

14 had the opportunity to see his demeanour during the direct examination. I

15 think there should be some way, and the only way I can think of is by

16 Mr. Cunningham being there to try to make the situation roughly the same

17 and fair. If the entire testimony was by videolink, then I wouldn't have

18 as much of a problem with it.

19 JUDGE AGIUS: All right. I thank you, Mr. Ackerman.

20 Anything else?

21 MS. KORNER: No, thank you, Your Honour.

22 JUDGE AGIUS: All right. So we'll adjourn until tomorrow morning,

23 9.00. Thank you. I think it's in this courtroom.

24 --- Whereupon the hearing adjourned at

25 1.33 p.m., to be reconvened on Friday,

Page 20687

1 the 29th day of August 2003, at 9.00 a.m.

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