Tribunal Criminal Tribunal for the Former Yugoslavia

Page 37

1 Thursday, 11th November, 1999

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 4:00 p.m.

6 JUDGE HUNT: Call the case, please.

7 THE REGISTRAR: Case IT-99-36-PT, the

8 Prosecutor versus Brdjanin and Talic.

9 JUDGE HUNT: Appearances for the Prosecution,

10 please.

11 MS. KORNER: Your Honour, I represent the

12 Prosecution. My name is Joanna Korner, senior trial

13 attorney. I'm assisted by Mr. Michael Keegan and

14 Ms. Anna Richterova, trial attorneys, Ms. Ann

15 Sutherland, a legal officer, and Ms. Adele Erasmus, who

16 is the case manager.

17 JUDGE HUNT: Thank you very much. For the

18 accused, for Mr. Brdjanin.

19 MR. ACKERMAN: Your Honour, my name is John

20 Ackerman. I'm from the United States, and I appear

21 here today on behalf of Mr. Brdjanin.

22 JUDGE HUNT: Thank you. And for General

23 Talic?

24 THE INTERPRETER: Microphone, please.

25 MR. PITRON: [Interpretation] Michel Pitron,

Page 38

1 barrister from Paris.

2 JUDGE HUNT: Thank you very much. This is a

3 Status Conference held in order to comply with

4 Rule 65 bis. At this particular stage of the

5 proceedings, very little can be done in accordance with

6 that Rule, but there are some matters, I think, which

7 shall have to be cleared up.

8 First of all, Ms. Korner, what has happened

9 to the application to amend?

10 MS. KORNER: I'm sorry. I'm afraid it is all

11 new to me, so I forget to switch the court microphone

12 on.

13 The situation is this: As we have informed

14 both the Court and those who represent the defendants,

15 it's our intention to lodge an application with the

16 Confirming Judge to amend the indictment. The only

17 reason that that hasn't happened so far is that the

18 Prosecutor, Ms. del Ponte, has been away for the last

19 fortnight, and it is for her to consider whether or not

20 she wishes to sign the proposed amended indictment

21 before it can be transmitted.

22 JUDGE HUNT: Did you promise to do it within

23 28 days. Will you be able to do that?

24 MS. KORNER: That's up by next Friday. Yes,

25 we will. She's back on Monday.

Page 39

1 JUDGE HUNT: And will this be an application

2 to file an indictment naming both of the accused

3 presently in custody, jointly?

4 MS. KORNER: It will.

5 JUDGE HUNT: Yes. Thank you very much.

6 Now for the accused, I should say I have

7 received a letter from Mr. de Roux. It appears to have

8 been written in response to the letter which was

9 written on behalf of the Prosecution concerning the

10 nature of the amendments that are to be made to the

11 indictment. I would like to point out that that letter

12 itself was written in response to an oral request to

13 give us some idea of the nature of the amendments being

14 sought. The letter from the Prosecution was filed.

15 It was not an invitation to the parties to

16 start debating before the Trial Chamber or to any Judge

17 thereof the merits of the application to amend. That's

18 a matter for the Confirming Judge, not for the Trial

19 Chamber.

20 But I would like to point out to you,

21 Mr. de Roux, that it really isn't appropriate to send

22 letters directly to the Judges anyway. If you would

23 mind following the usual procedure, that anything that

24 you want said should be filed and it will be filed and

25 taken account of in the usual way.

Page 40

1 However, having read it, there is one matter

2 which you do raise which concerns me as the pre-trial

3 Judge, and that is the statement that you make that the

4 Defence has never had access to the documents

5 supporting the initial indictment against your client.

6 This is a matter that was raised at the

7 initial appearance, and I'm a little dismayed to hear

8 that you haven't got it yet. Have you still not

9 received any of the accompanying material? You have to

10 turn your microphone on.

11 MR. DE ROUX: [Interpretation] Your Honour, of

12 course. Your Honour, we saw the supporting materials

13 for the initial indictment, and at first sight, we

14 believe that in the supporting materials there is

15 nothing establishing a prima facie case for which

16 General Talic is charged with.

17 On the other hand, we know that a

18 considerable amount of documents was seized in Banja

19 Luka. Among such documents were the military archives,

20 the archives of the police, and those of the

21 municipality. We know that the documents are available

22 to the Prosecution, and we believe that in order to

23 properly defend General Talic we need to have access to

24 the same documents in the same way as the Prosecution

25 does. It seems to be a normal course of things so

Page 41

1 there is an equality of arms when it comes to

2 interpreting documents. We should not be given

3 documents in dribs and drabs, according to the whims of

4 the Prosecution.

5 The charges against General Talic are very

6 serious; we have in mind crimes against humanity. This

7 is a very serious case involving the very history of

8 the Yugoslav conflict in 1991 and 1992. There's a lot

9 of work to be done, and presently we are faced with

10 this rather strange situation.

11 In as much as the charges and the indictment

12 was held secret, we do not know today how many

13 co-accused there may be in this case, neither do we

14 know on which foundation the Prosecution is basing her

15 charges, to what extent there is more documentation and

16 whether, among the documents, there may be exculpatory

17 documents as well as the documents incriminating the

18 accused. We need to have a purview of the entire

19 documents so that we can have an idea of the documents

20 that are incriminating and those that are exonerating

21 the accused, which is not the case today, and I shall

22 insist on this.

23 If we read the papers that were disclosed to

24 us, at first sight, it does not appear that a prima

25 facie case can be established for crimes against

Page 42

1 humanity against General Talic. So we request from the

2 Prosecution to say what her foundation is.

3 Your Honour, I had an instantaneous reaction

4 when I heard that the indictment was being amended, and

5 it was for this reason: I had the feeling that the

6 indictment may not be amended on the basis of documents

7 or facts that were already known to the Prosecution

8 when the initial indictment was issued.

9 So this is our position as far as these

10 proceedings are concerned.

11 JUDGE HUNT: I understand you have a number

12 of complaints to make, Mr. de Roux, but I do want an

13 answer to the question that I asked you originally.

14 Have you received the documents which the Prosecution

15 say consists of the accompanying material which was

16 provided to the Confirming Judge? I'm not concerned at

17 this stage with whether they are sufficient or whether

18 there should be others. All I want to know is have you

19 received those documents?

20 MR. DE ROUX: [Interpretation] Yes.

21 JUDGE HUNT: Thank you. Well, then the rest

22 of it is not really a matter for me to determine,

23 either at this stage or, I think, at all; however, that

24 may the subject of some further debate at a later

25 stage.

Page 43

1 I think I should explain to you, however,

2 there is a difference between the documents which are

3 the accompanying material and those documents which

4 have to be disclosed by the Prosecution subsequently

5 under the Rules, under their duties of disclosure;

6 there is yet a further distinction between those and

7 the documents which the Prosecution must disclose

8 because they are exculpatory in nature. It may be that

9 when you have had the opportunity to consider the

10 Rules, and a number of decisions in relation of them,

11 that distinction will become more apparent to you.

12 Now, at this stage, Ms. Korner, it seems that

13 the promise by Mr. Stewart at the Initial Appearance

14 has been carried out. You, no doubt, are also getting

15 ready the material to place before the Confirming

16 Judge, the additional accompanying material, are you?

17 MS. KORNER: Yes.

18 JUDGE HUNT: At that stage, you'll be able to

19 supply that to the accused.

20 MS. KORNER: Yes.

21 JUDGE HUNT: Then you will have to comply

22 with the obligation of discovery, under whichever Rule

23 it is, I've forgotten the number of it --

24 MS. KORNER: 68.

25 JUDGE HUNT: -- yes, which is quite different

Page 44

1 from the present problem we face.

2 MS. KORNER: Yes.

3 JUDGE HUNT: Thank you for that.

4 Is there anything else that any of the

5 parties wanted to raise in accordance with Rule 65

6 bis?

7 MS. KORNER: Your Honour, there is a matter

8 that I want to raise which is slightly out of the

9 ordinary, but it is a matter that I feel ought to be

10 before the Court. I've raised the matter with Mr. de

11 Roux outside court.

12 I don't know whether Your Honour was ever

13 provided with an article from a French newspaper called

14 Sud Ouest Dimanche.

15 JUDGE HUNT: No. I'm sorry. It may have

16 been in the press cuttings, but I'm afraid, as

17 Mr. de Roux has already pointed out, my native tongue

18 is English.

19 MS. KORNER: Your Honour, we've had it

20 translated into English, and I wonder whether I could

21 pass it up to Your Honour because there are two matters

22 which --

23 JUDGE HUNT: Have you got a copy of it for

24 Mr. de Roux?

25 MS. KORNER: He's got it, I've given him a

Page 45

1 copy, and Mr. Ackerman has got an English translation

2 of it.

3 JUDGE HUNT: Thank you.

4 MS. KORNER: Your Honour, the relevant parts

5 that concern us can be seen in the English translation

6 at page 3, headed "Secret Documents".


8 MS. KORNER: Your Honour, this, I understand

9 from Mr. de Roux, was an interview that was conducted

10 with him and an article written as a result, but he

11 says that it is 50/50 accurate, I understand it.

12 He said to the newspaper, rather along the

13 line of the theme he's enumerated today, that there was

14 no evidence against his client. He then goes on to

15 say: "I put this question to Mrs. Korner," in the

16 original my name is misspelled, but it's been

17 corrected, "one of the English prosecution attorneys at

18 the ICTY in charge of the case file. She

19 replied, 'Fine, so there's nothing the 350 official

20 documents ...'" I imagine that's meant to mean I agreed

21 with his suggestion, but that I had "'secret documents

22 in my possession which will get him convicted.'"

23 Your Honour, I don't want to go into the ins

24 and outs of what was an out-of-court conversation, save

25 to say this: that should there be any suggestion in

Page 46

1 future that at any stage I ever said that I had "secret

2 documents in my possession which will get him

3 convicted," I completely and utterly refute that.

4 JUDGE HUNT: I suppose, Ms. Korner, you start

5 with the proposition that you should never accept what

6 you read in the newspapers.

7 MS. KORNER: Exactly.

8 JUDGE HUNT: Having spent most of my life

9 appearing both for and against the newspapers, I think

10 I am very well aware of that.

11 However, there is a more fundamental problem

12 that I see with this article. It is little help to

13 this Tribunal to have the merits of its cases debated

14 in the media before we have had the opportunity of

15 hearing the case. It seems to me a little unfortunate

16 that we now have these interviews taking place in

17 France, as they appear to take place regularly in the

18 United States.

19 I'll only say this: What is said in the

20 media about trials is disregarded by this Tribunal, it

21 will have no effect upon us, but that's not the evil of

22 trying to debate cases in the media. What it does, it

23 seeks to influence public opinion in advance of

24 findings by the Tribunal, and that is both unfortunate

25 and, if I may say so, with all due respect,

Page 47

1 irresponsible. I hope that it will not continue.

2 MS. KORNER: Your Honour, with respect, I

3 agree. I should say that Mr. de Roux accepts that what

4 appears in that article, by and large, was stated by

5 him. I don't know what powers the Tribunal has in

6 respect of counsel before the Tribunal giving

7 interviews about matters in which they're engaged.

8 Certainly, I know in my jurisdiction, and I believe in

9 Your Honour's, it isn't allowed.

10 But, Your Honour, it does seem to me not only

11 unhelpful but positively deleterious to the

12 administration of justice if such a thing were to be

13 repeated.

14 JUDGE HUNT: I think I've made my position

15 clear, Ms. Korner. I hope it will not be repeated.

16 Now, is there anything that you want to

17 raise?

18 MS. KORNER: No. Thank you very much.

19 JUDGE HUNT: Anything on behalf of the

20 accused?

21 MR. ACKERMAN: If Your Honour, please. I

22 just want to address you and the record with the

23 following proposition. I appear here today under some

24 reservation in that I have filed a motion to dismiss,

25 attacking the jurisdiction -- questioning the

Page 48

1 jurisdiction of this Tribunal under the current

2 indictment. That issue is now before the Appellate

3 Chamber, and I would not want my appearance here today

4 to be seen as any accession to the Court's jurisdiction

5 under the present indictment and, therefore, appear

6 here under that reservation.

7 JUDGE HUNT: Thank you.

8 MR. ACKERMAN: In addition I make no requests

9 of any kind regarding the current indictment for fear

10 that that might also be seen as an accession to

11 jurisdiction. Thank you.

12 JUDGE HUNT: Thank you, Mr. Ackerman.

13 Mr. De Roux, is there anything that you want

14 to raise in accordance with Rule 65 bis?

15 MR. DE ROUX: [Interpretation] Mr. Pitron.

16 JUDGE HUNT: Thank you very much.

17 Yes, Mr. Pitron.

18 MR. PITRON: [Interpretation] Yes, I would

19 like to say a few words, Your Honour. First all, on

20 behalf of General Talic, we shall express the same

21 reservations as our colleague John Ackerman did,

22 because we too filed a request challenging the

23 jurisdiction of this Tribunal.

24 Moreover, since we are in a Status

25 Conference, I would like to turn to the next deadlines

Page 49

1 in terms of proceedings. I hope I'm right. I'm

2 seeking confirmation from you on this point.

3 We are today expecting a possible amended

4 indictment from the Prosecutor, and if I understand the

5 case law of this Tribunal, we should get a new draft

6 amended indictment before it is submitted for

7 confirmation to the Confirming Judge.

8 If I understood correctly, the Confirming

9 Judge may grant this new amended indictment and

10 following such a decision by the Confirming Judge, new

11 time periods will be allowed which will make it

12 possible to reply to the two requests or applications

13 we have filed. They relate to a motion for severance

14 of cases between Talic and Brdjanin, and they also

15 relate to the jurisdiction of this Court. So if that

16 was possible, could you confirm the time periods?

17 And I have a last question. We also filed an

18 application so that we be allowed to be disclosed the

19 entire documents in French, for the documents submitted

20 to the Prosecutor be translated into French, and that

21 we be given deadlines or time periods that would start

22 as of the time when we received the translation, and to

23 date we have not yet any response from the Tribunal.

24 Sorry for the many questions I have put, but

25 I would like to know your answers to them.

Page 50

1 JUDGE HUNT: Well, I hope I have a note of

2 all the questions you've asked.

3 Firstly, the application by the Prosecution

4 to the Confirming Judge for leave to file an amended

5 indictment is an ex parte procedure. That is

6 fundamental to the Rules. That is why the Trial

7 Chamber has no jurisdiction over amendments to the

8 indictment prior to the commencement of the hearing of

9 the Prosecution. So I would not myself understand you

10 to be having any entitlement to a draft of that

11 document before it goes to the Confirming Judge.

12 If the Confirming Judge does grant the

13 amendment, then the Rules themselves provide for a new

14 timetable. Rule 50(C) provides:

15 "The accused shall have a further period of

16 thirty days in which to file preliminary motions

17 pursuant of Rule 72 in respect of the new charges and,

18 where necessary, the date for trial may be postponed to

19 ensure adequate time for the preparation of the

20 defence."

21 So that the time commences to run again as

22 from the new indictment. There does also have to be a

23 plea taken from the accused. That's pursuant to

24 Rule 50(B). That's in relation to any fresh charges.

25 So I think that answers the first two

Page 51

1 questions you asked.

2 The third one, in relation to the translation

3 of the documents from English to French. This has

4 produced a problem which has not yet been resolved.

5 It's a new experience for the Tribunal to have parties

6 exercising their undoubted right to file their

7 documents in French. There has been, I think, two or

8 three occasions previously when for a short period of

9 time the documents were being translated from English

10 to French in the special circumstances of a particular

11 case.

12 What has happened here has raised a

13 fundamental problem in relation to resources, and I am

14 afraid that those problems have not yet been resolved.

15 That is why you have not yet had a response to your

16 motion. It is, however, a matter that we are seeking

17 to resolve in a way which will be satisfactory to all

18 parties, and hopefully you will have an answer within

19 the next couple of weeks. It may be, however, that

20 there will have to be a complete rethinking of the

21 order for filing motions in this particular case

22 because of the special circumstances in it.

23 So I'm sorry you've had a delay. There's not

24 usually such a delay in deciding these matters, but it

25 will be resolved as soon as possible and you will be

Page 52

1 given a copy. You will be provided not only with an

2 English version but a French version of any orders that

3 are made.

4 Are there any other matters?

5 MS. KORNER: No. Thank you very much.

6 JUDGE HUNT: Yes, Mr. Ackerman.

7 MR. ACKERMAN: Almost in the nature of amicus

8 curiae with regard to the issue that's just been

9 raised, there is available on the market, at some

10 significant expense, $900, a computer programme called

11 Systran that contains all the legal terms, both in

12 French and English, that does a remarkably good job of

13 translating documents back and forth between French and

14 English. That could be a good solution, because we

15 really don't necessarily have to have these documents

16 completely accurate, as long as we can understand what

17 they're saying. So that's a possibility.

18 JUDGE HUNT: Is this something you feed a

19 piece of paper in one end and it comes out the other

20 end in a different language?

21 MR. ACKERMAN: You actually -- it's a

22 computer programme, and you take the French document in

23 your computer and say, "Turn it into English," and it

24 does that. It's not nearly as good as the professional

25 translators but it does the job, and it's probably

Page 53

1 cheaper at $900 than the personnel necessary to do it

2 otherwise.

3 JUDGE HUNT: I hasten to ask you: Do you

4 have some interest in this particular programme?

5 MR. ACKERMAN: Your Honour, I have no

6 interest in it whatsoever. However, if it becomes

7 popular around here I may acquire one.

8 JUDGE HUNT: Well, no doubt those who are in

9 the booths who have to wrestle with this problem will

10 take into account what you've said.

11 MR. ACKERMAN: I also want to say to the

12 people in the booths I'm not trying to deprive them of

13 their livelihood.

14 JUDGE HUNT: I don't think you need to worry

15 in this Tribunal. We will be going for a long time

16 with their work.

17 Thank you very much for your attendance.

18 There will have to be, obviously, if the -- I'll start

19 that again.

20 If there is an amendment to the indictment,

21 there will obviously have to be fresh pleas taken and

22 we will see you again then. Otherwise, there will be a

23 Status Conference within the next 120 days, but if you

24 have any problems that arise in the meantime, you may

25 file a motion and we will assemble again and hopefully

Page 54

1 resolve it.

2 I'll adjourn.

3 ---Whereupon the hearing adjourned at

4 4.28 p.m. sine die