1 Wednesday, 11 July 2007
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.09 a.m.
5 JUDGE AGIUS: All right. Good morning, everybody, and good
6 morning to you, Madam Registrar. Could you kindly call the case, please.
7 THE REGISTRAR: Good morning, Your Honours. This is case number
8 IT-05-88-T, the Prosecutor versus Vujadin Popovic et al.
9 JUDGE AGIUS: I thank you, ma'am. For the record, all the accused
10 are here. From the Prosecution -- from the Defence teams I only notice
11 the absence of Mr. Ostojic, Mr. Ostojic. Prosecution is Mr. McCloskey and
12 Mr. Nicholls.
13 So we -- unless there are other matters that will be raised --
14 that are raised, today we have got two issues that we are going to hear
15 submissions upon. You will recall -- I'll start with the first one.
16 You will recall that on the 6th of July, we received a Prosecution
17 motion for hearing and ruling regarding interviewing witnesses, that is,
18 witnesses of the Defence, and this Monday -- last Monday, sorry, last
19 Monday we directed that the issues raised in that motion be the subject of
20 oral submissions this morning.
21 More recently, that's on the 10th of July, Mr. Zivanovic,
22 representing Mr. Popovic, filed a request for guidelines regarding
23 interviewing Defence witnesses by the Prosecution. Basically, guidelines
24 are requested which are on essentially the same issues as those raised by
25 the Prosecution motion, and my proposal to you is that I open now the
1 discussion on these issues, which will of course not only be limited to
2 the Prosecution motion and the Popovic filing but any other related matter
3 which you could have included in a separate filing and did not, but must
4 be related to this subject matter, please.
5 Who wishes to go first? I suppose since you initiated all this,
6 Mr. McCloskey, you -- or Mr. Nicholls, yes.
7 MR. NICHOLLS: Good morning, Your Honours.
8 JUDGE AGIUS: Good morning.
9 MR. NICHOLLS: I hate to disappoint you, but a full hearing I
10 think may not be necessary after discussions with my friend this morning
11 on this topic. The reason is after receiving my friend's filing last
12 night, we read it, and the points he makes in section 2, background,
13 paragraphs 3.1 and 2, were the key points in issue which is why we filed
14 our motion initially. This position is new to us, that our right to
15 interview witnesses is -- Defence witnesses, quote, is not in dispute and
16 that there's no property in a witness.
17 That was our main concern and point of dispute. While I'm not in
18 full agreement necessarily with everything else in the motion, especially
19 in the discussion session, I've talked to my friend this morning, and we
20 think we may be able to have -- have further discussions and talk about
21 our respective conduct with -- with the witnesses on both sides without
22 necessarily needing any guidance or ruling from Your Honours. So I'm
23 sorry about that, but once I sent case law to my friend last night, he
24 sent me this motion last night and we've been talking this morning, so I
25 think from our perspective the two main points are no longer in issue and
1 the guidelines, which are new, we can discuss.
2 JUDGE AGIUS: That is perfectly acceptable in relation to the
3 Popovic Defence team, but I would like to know whether any of the -- first
4 of all Mr. Zivanovic himself, but if any of the other Defence teams wish
5 to make submissions on these guidelines because obviously this is not a
6 case that relates only to interviewing Defence -- Popovic Defence
7 witnesses but could apply to other Defence witnesses.
8 Yes, Mr. Zivanovic.
9 MR. ZIVANOVIC: Thank you, Your Honour.
10 Mr. Nicholls just informed you about everything we agreed.
11 Disputed issues from the point of view of our Defence were -- are in the
12 paragraph 9 of our motion, and it is something that we'd like to discuss
13 about, and we put all our questions in paragraph 11 of this motion. So I
14 have nothing to add to this. Thank you.
15 JUDGE AGIUS: Do you wish to comment on that, Mr. Nicholls?
16 Thank you, Mr. Zivanovic.
17 MR. NICHOLLS: No, Your Honour. I will be talking with
18 Mr. Zivanovic later.
19 JUDGE AGIUS: Any other -- of the other Defence teams wish to
20 address it? Madam Fauveau first. She beat you, Mr. Bourgon.
21 Madam Fauveau.
22 MS. FAUVEAU: [Interpretation] Mr. President, since we are talking
23 already about this issue, I would like to draw your attention to the fact
24 that we are in special conditions of accessing Prosecutor evidence after
25 their filing of 65 ter lists. We contact them, ask for authorisation, and
1 after receiving their authorisation we contact their witnesses. We have
2 so far never received such authorisation either because it was a sensitive
3 witness or because he refused to talk to us. Otherwise, we are authorised
4 to talk to the witness but in the presence of OTP.
5 I am perhaps jumping ahead a little, but I want to know what
6 happens after we file our 65 ter list. I would like to ask that the
7 Prosecutor at this stage of the proceedings has the same conditions of
8 access to our witnesses as we have to theirs. That is, for every contact
9 with any of our witnesses they have to go through the Defence, which would
10 inform them whether the witness is willing to talk to them and whether
11 they would be allowed to contact them, or if the witness doesn't want to
12 be interviewed by them, they will be able to have access to the witness
13 after the witness finishes testifying here. Thank you.
14 JUDGE AGIUS: I thank you, Madam Fauveau. Who is going to respond
15 to that? Yes, Mr. Nicholls.
16 MR. NICHOLLS: Your Honour, what Ms. Fauveau has said is simply
17 not true. We haven't put any conditions that they must contact -- go
18 through us to contact witnesses on our list. That might be her
19 understanding, but that's not been a condition that we've made, and it's
20 not something that the other Defence teams have followed. The Nikolic
21 team has interviewed a lot of our witnesses -- not our witnesses but
22 witnesses on our list, and we find that out when we -- when they're here.
23 We sometimes ask them have you been interviewed by any Defence or if we
24 don't ask them, they say, yes, I've been interviewed twice, I've been
25 interviewed before. We've had no problem with that.
1 I think when the witnesses arrive here we sometimes get requests
2 from the Defence and what we always do is, because the witness is here, we
3 ask the witness if they want to meet, and many of the times the witnesses
4 say yes. That's not up to us. We don't discourage or encourage or in any
5 way try to influence a witness whether or not the witness should meet with
6 the Defence, and we don't insist on being present. We ask the witness if
7 they would like us to be present, and I think in perhaps all but one case,
8 I might be wrong, the witness said no, that's not necessary, and then
9 they've met very often -- at least in my memory with the Nikolic team and
10 the Pandurevic team without us being present. And we -- once we get their
11 witness list, I think the same conditions should apply. The whole point
12 that I think we all agree on is that there is no property in a witness and
13 that both sides are free to contact witnesses and try to talk to them.
14 Now, there may be -- there may be instances of particularly
15 sensitive witnesses or witnesses in one or another category where -- where
16 there is a request from their side for us to notify them or -- and I don't
17 think we have any problem with that, and we can talk about that if it's a
18 special case, but in general, witnesses, as the case law which I was
19 prepared to argue today before I got my friend's motion says that
20 witnesses do not belong to anybody and either party is free to talk to
21 them. And I'm not -- I didn't mean that when she said it's not correct
22 that she was misrepresenting, but that's just not I understanding of the
23 way it's been working.
24 JUDGE AGIUS: I thank you, Mr. Nicholls.
25 Ms. -- Madam Fauveau.
1 MS. FAUVEAU: [Interpretation] Mr. President, in these proceedings
2 we received the first Prosecution witness list before the 65 ter list.
3 That was in 2005, at the very beginning, and there were several hundred
4 individuals on this list, and for each and every person on this first list
5 we contacted the Prosecution to obtain authorisation from them, and from
6 the very beginning this is -- or this was a mutual agreement between the
7 Prosecution and ourselves.
8 When the witnesses were in Bosnia, in fact, we did not have any
9 problems, except in the cases of sensitive witnesses. But as far as I'm
10 concerned, I never asked to have access to a witness who was a sensitive
11 one. I never had any problems contacting witnesses, but we always did ask
12 the office of the Prosecution for authorisation.
13 JUDGE AGIUS: I don't want to be categoric about this, but knowing
14 the jurisprudence of this Tribunal on -- even on this particular issue, I
15 think you're talking at cross-purposes, because the jurisprudence has been
16 quite clear that although there is no written rule that it should be so,
17 the party wishing to interview a witness from the other side ought not to
18 do it behind the back of the other party, and therefore that due notice
19 should -- should be given. Together with the other principle that if the
20 witness declines to give evidence, then you should not proceed, so -- not
21 to give evidence, to give an interview, then you should not proceed. Do
22 you wish to add anything to this, Mr. Nicholls?
23 MR. NICHOLLS: No, Your Honour. I think that's right. I think
24 what I recall from early on is that we got e-mails before the trial
25 started saying we intend -- from some of the parties saying we intend to
1 interview the following witnesses, but it wasn't as though we gave
2 permission at any point or said, yes, this one, not number 3. And so I
3 think Your Honour is correct.
4 JUDGE AGIUS: Okay. Thank you. Anybody else would like to make
5 submissions? Mr. Bourgon.
6 MR. BOURGON: Thank you, Mr. President. Good morning,
7 Mr. President, good morning Judges, good morning colleagues.
8 JUDGE AGIUS: Good morning to you.
9 MR. BOURGON: Mr. President, we had prepared also some submissions
10 this morning in relation to the Prosecution's motion and also addressing
11 some of the issues raised in my colleague's response representing the
12 accused Popovic, and I'd like to go through some of these issues that we'd
13 like to raise with the Trial Chamber this morning, and I think we agree
14 that what is mentioned in the Prosecution's motion in the first place,
15 there is no property in a witness, I believe, Mr. President, that
16 everybody agrees on this issue.
17 And the second issue which I guess is also resolved already
18 between the parties this morning and the question was, it is contrary to
19 the rights of the accused for the Prosecution to meet with a potential
20 Defence witness, and once again I think this is quite clear that it is not
21 contrary to the right of the accused and the Prosecution has a right to
22 meet potential Defence witnesses.
23 However, our submission this morning relates to the conditions,
24 and this was already introduced this morning, the conditions in which the
25 Prosecution may and will meet with potential Defence witnesses. And
1 firstly, we also agree with the -- what the Prosecution said in its
2 motion, that the decision whether the witness will meet or not with the
3 Prosecution or the opposing party rests with the witness. It's for the
4 witness to say whether I consent or I do not consent to be interviewed by
5 the opposing party.
6 But even when we say that this decision rests with the witness, we
7 must be sure and try to be as clear as possible that that decision is that
8 of the witness and not that of the party calling the witness. And what we
9 say is it would not be right for either the Defence to say Prosecution,
10 you should not meet with the witness because the witness refuses. There
11 has to be a mechanism by which the Court is aware that it is the witness
12 who has decided that he does not want to meet with the opposing party.
13 That's the reason why when a witness shows up in The Hague what
14 the mechanism that we have adopted so far is we provide a letter to the
15 Prosecution, and we ask the Prosecution, please hand this letter to the
16 witness, and this letter basically explains who we are, what -- why we
17 want to meet with the witness. We also mention specifically in that
18 letter that it is a voluntary decision on the part of the witness, that he
19 is not obligated to meet with us, and we also explain why we believe it is
20 in the interest of the witness and everybody that we have this meeting
21 before we proceed with the testimony.
22 We also ask the Prosecution to basically give the letter, have it
23 signed by the witness that he has read it and then the Prosecution will
24 inform us of the decision of the witness whether to meet with us or not.
25 And the advantages of proceeding in this way, the thing is, we know
1 exactly that the answer comes from the witness on the one hand. We also
2 ensure that there is no undue pressure by either party because we know the
3 witness has seen why such a meeting would be appropriate and then he
4 decides. The witness knows his rights, that he's not obligated to show up
5 and he also knows specifically why we want to meet with him.
6 Secondly, Mr. President, there are in our view in addition to the
7 fact that it must be the witness' decision, that there are exceptions to
8 the rule. It's not always the witness that may decide whether to meet or
9 not. And the first exception to this would be, for example, if a party
10 has -- sorry. The first exception is whether the Trial Chamber has issued
11 a binding order at the request of the Prosecution, for example. And this
12 is addressed in part in the Prosecution motion.
13 If the decision issued by the Trial Chamber then the witness will
14 have no choice but to meet with the other party. But the witness, even if
15 the party has the obligation to show up if the Court issues a binding
16 decision, the witness still has a right not to answer any questions, and
17 that must be made clear to the witness. And I think that's the part that
18 we are most interested here, because we want to avoid that any pressure,
19 whether direct or implied or indirect, must be exerted on the witness to
20 convince him to answer questions and to provide information. And this is
21 where we have some concern.
22 For example, if the Prosecution obtains an interview with the
23 witness following a subpoena that was issued by the authorities of
24 Republika Srpska, then the fact that a witness receives such a subpoena
25 that he has to show up for an interview with the Prosecution on a certain
1 date, we believe that this is a kind of indirect pressure where the
2 witness feels that he must answer the questions of the Prosecution. And
3 in that regard, Mr. President, I believe it is important to refer to the
4 situation as it was described by my colleague Mr. Zivanovic in his motion.
5 It is also our position that the people living in Republika
6 Srpska, and especially in the Zvornik area today, are very scared. The
7 situation described by Mr. Zivanovic is indeed accurate. The fact that
8 there is a list out there that is being publicised in the media that there
9 would be 28.000 persons who would be suspect and that everyone could be
10 allegedly part of a joint criminal enterprise makes the people in the area
11 very nervous and very scared, and in that respect, if they receive on top
12 of this a subpoena to appear with the judicial authorities of Republika
13 Srpska, then it might be very easy to influence them in the wrong
15 The second exception, Mr. President, to this rule that the --
16 JUDGE AGIUS: Let me try to understand you better. What would
17 these circumstances be? Because the only thing that can occur to my
18 mind -- let's do it like this. Let me present it. Prosecution knows that
19 there is Mr. XY who will be one of your witnesses. Okay. And they wish
20 to interview him, and they will contact you.
21 MR. BOURGON: That's not always the case but if they do --
22 JUDGE AGIUS: But I'm presenting two cases because I want to see
23 clear on what your submission is.
24 They contact you. You contact your witness and give them all the
25 information as to his rights, et cetera, and he confirms that he doesn't
1 wish to meet with the Office of the Prosecutor. At that point in time,
2 the Prosecution should back off, because if the witness is reluctant or
3 refuses to meet with the Office of the Prosecutor, the Prosecutor as such
4 does not then have the right to interview your -- your client. But it
5 could well -- that would be interviewing your client, presumably, on the
6 matters that relate to this case. Not your client, sorry, your witness.
7 But it could well be that your witness, your witness, may in the
8 eyes of the Prosecution be involved in other issues that they have
9 investigated and that they may require him to be a witness for them in
10 some other case. In that case, they will not be -- necessarily be
11 interviewing your witness on the subject matter of this trial, but they
12 would be -- or they would want to interview your witness on other -- other
13 matters. At that point in time, they don't need to inform you
14 specifically, although strictly speaking I would expect them to inform you
15 that they are approaching that person.
16 When you speak of subpoena, these are the two possibilities that I
17 see. Where do you fit it in, because in the first case I don't see it
18 coming in. I mean, how can the witness be subpoenaed to have an interview
19 with the Prosecution if -- if he has refused within his rights to meet
21 MR. BOURGON: Thank you, Mr. President.
22 JUDGE AGIUS: One moment, Mr. Bourgon.
23 [Trial Chamber confers]
24 JUDGE AGIUS: I mean, I can even about a little bit further. I
25 mean, in the area of a subpoena, the only -- only circumstance in which
1 you could speak of a subpoena served on the witness to have an interview
2 with the Prosecution, with the Office of the Prosecutor, is that there has
3 been an ad hoc motion which we have never had. But in your submission you
4 didn't actually state a subpoena by -- or from the Tribunal. You said a
5 subpoena from local authorities, say the authorities in Republika Srpska.
6 So I think you need to expand on this and explain to us what you have in
7 mind. What would be the origin in such subpoena?
8 MR. BOURGON: Thank you, Mr. President. Indeed --
9 JUDGE AGIUS: Because I don't -- I can't envisage, imagine, the
10 Office of the Prosecutor asking, for example, Republika Srpska authorities
11 to issue a subpoena to interview Witness X, who is a Defence witness, on
12 these -- that matter of these proceedings, bypassing the Tribunal. I
13 don't see it happening. I mean on the other hand, we've never had any
14 such requests for such -- for the issuance of such subpoenas. So if you
15 could expand a little bit on this as well, perhaps it would help us.
16 MR. BOURGON: Thank you, Mr. President. This is exactly our
17 point, that in the event there is a refusal by the witness, a potential
18 Defence witness, to meet with the Prosecution, our submission is that the
19 Prosecution should turn solely to the Trial Chamber to get a binding order
20 if it believes it is necessary.
21 Now, I'm advised that the word "subpoena" might not be the right
22 word to use for what has been happening in the region. In order to meet
23 with witnesses, the Prosecution has been using invitation issued by the
24 police on paper and given to some -- to witnesses, but that's all
25 witnesses, and the Prosecution will be able to confirm this. That's the
1 way they have proceeded in the past. It's been difficult for them, as it
2 has been difficult to us to meet with witnesses, and those papers are
3 given to witnesses saying you are invited and you need to show up to the
4 Prosecutor's -- to the Prosecution's regional office for an interview.
5 Whether --
6 JUDGE AGIUS: Presumably that invitation would not be issued or
7 would not be made before the Prosecution has contacted you, and you have
8 indicated that you will inform -- inform your witness, because otherwise,
9 it would not be in conformity with -- with the procedure that our
10 jurisprudence has laid down.
11 MR. BOURGON: Mr. President, it's something different. It is
12 happening, Mr. President, that the Prosecution will meet witnesses and
13 will issue these invitations. In many instances we have witnesses who
14 came here who testified and they referred to whatever the paper they
15 received, whether it's a subpoena, whether it's a formal invitation,
16 whether it's simply a strong suggestion that they show up to meet up with
17 the Prosecution. And this has happened before with the Prosecution to
18 meet its own witnesses.
19 And what we're saying is that if in the situation -- what we want
20 to avoid is that if in the situation the Prosecution exactly as you
21 referred to talks to us, we speak to the witness, witness refuses, then
22 the Prosecution should not use this kind of invitation to give that to the
23 witness. It should turn to the Trial Chamber to get a formal binding
25 JUDGE AGIUS: Okay. One question. This invitation that is issued
1 by the local police, et cetera, are you stating that this is issued also
2 when the Prosecution already knows that that person is going to be a
3 Defence witness, because you could have two cases. You could have
4 absolute ignorance on the part of the Prosecution whether that person is
5 going to turn up as a Defence witness or knowledge already that that
6 person will be a Defence witness.
7 In the first case, I think --
8 MR. NICHOLLS: I don't want to interrupt, Your Honours, but one
9 point is this is all somewhat hypothetical in the future because we don't
10 have a Defence witness list.
11 JUDGE AGIUS: Yes, I know.
12 MR. NICHOLLS: Yeah, and so it may be a problem that doesn't
13 even --
14 JUDGE AGIUS: All right.
15 MR. NICHOLLS: -- arise but --
16 JUDGE AGIUS: Let's do -- it doesn't arise as a matter of speaking
17 but on the other hand, you have had several indications by the various
18 Defence teams in relation to certain persons that they will be called as
19 Defence witnesses, so at least as far as those persons are concerned you
20 already have an indication even though you don't have the 65 ter list that
21 we will have later on which Madam Fauveau referred to.
23 JUDGE PROST: Mr. Bourgon, would your position be different if the
24 witness has not been contacted at all by the Prosecution but instead of
25 contacting you, the Prosecution asks for the local police to ask the
1 witness whether he or she will appear for an interview? So there's been
2 no refusal on the part of the witness but the initial contact is made
3 through the local police on behalf of the Office of the Prosecutor.
4 MR. BOURGON: Thank you very much, Judge. Indeed this is our
5 position. We would like to avoid the going to local authorities, that's
6 the Prosecution going to the local authorities, does not take place before
7 they speak to us if they know it's a potential Defence witness and after
8 we've informed them that the potential witness refuses to meet them, then
9 also that they do not refer to the local authorities, that they refer to
10 the Trial Chamber if there is a problem. That's -- this basically is our
11 submission, Mr. President.
12 But there's a second exception to the rule, and unless you have
13 other questions, I'll move on to my -- thank you, Mr. President.
14 The second submission to the general rule that the Prosecution
15 will meet with a witness if he or she accepts is that there's a
16 possibility for a party to seek an order for protective measures
17 concerning that witness. This was the case for Witness PW-101 and also
18 PW-108. So these are exceptions to the rule.
19 Now, should the Prosecution call the Defence and say we would like
20 to meet with a specific potential Defence witness, they know that we've
21 contacted the witness, they know that they've been informed that this is a
22 potential Defence witness, in the event, Mr. President, that we inform the
23 Prosecution that either it's our intent to ask for an order for protective
24 measures or that we have already initiated the process by filing a motion
25 to get an order for protective measures, in such a case our position is
1 that the Prosecution should wait until the matter has been resolved by the
2 Trial Chamber before proceeding with meeting that witnesses. And I don't
3 think the Prosecution would object to such a procedure.
4 Now, the reason I say this is that the four witnesses which are --
5 or the two witnesses, at least, which are referred to in the Prosecution
6 motion and the Defence motion are witnesses who were referred to during a
7 cross-examination recently, and for these witnesses the information that
8 they provided is indeed very sensitive, and the witnesses are in a very
9 delicate position, if I may use these words.
10 For some of these witnesses, we indeed would like to apply for an
11 order for protective measures to ensure that these witnesses will not be
12 met by the Prosecution, but we have specific reasons for this, and we
13 would like to apply. In this case, we had no time. We -- it was a rush
14 for us to find these witnesses, to speak to them, to mention their names
15 in cross-examination, and immediately on the same day both the Prosecution
16 and Defence were looking for the same people. They found these people
17 after having been given the names during the cross-examination, and that's
18 when -- we never had any time to say, listen, please, we'd like to apply
19 for an order for protective measures. Please wait until you meet them.
20 There is no rush for the Prosecution to meet these witnesses exactly the
21 day that we've met them or a few days thereafter.
22 JUDGE KWON: What kind of protective measures do you have in mind
23 when you refer to protective measures?
24 MR. BOURGON: Protective measures that these witnesses would like
25 to appear before the Trial Chamber with maybe a pseudonym --
1 JUDGE KWON: I mean in relation to the Prosecution. You did not
2 have in mind the delayed disclosure, because it is already disclosed.
3 MR. BOURGON: It is already disclosed and they know basically the
4 gist of the information that these witnesses will bring. However, there
5 are issues that we'd like to address the Trial Chamber as to why a
6 specific witness should not meet with the Prosecution. Not meet. That's
7 the measure. And why it would be --
8 JUDGE KWON: You are arguing the -- you have poverty in that
10 MR. BOURGON: No property. There is a reason why the witness
11 should not meet with the Prosecution, because he might be involved, for
12 example, in other matters that it would not be appropriate for him to meet
13 with the Prosecution.
14 JUDGE AGIUS: Let me try and see clear in what you're submitting,
15 because I'm not. Are you suggesting that once one of your would-be
16 witnesses is granted protective measures such as pseudonym, facial
17 distortion, and voice distortion, then there is no way the Prosecution can
18 interview that witness?
19 MR. BOURGON: No, Mr. President, it's not --
20 JUDGE AGIUS: Even if he or she wants to be interviewed?
21 MR. BOURGON: Well, if the person wants to be interviewed, there's
22 nothing we can do about that --
23 JUDGE AGIUS: All right. But --
24 MR. BOURGON: -- if the person tells --
25 JUDGE AGIUS: -- if the person refuses, then automatically there
1 shouldn't be an interview. So what's the point of this submission?
2 MR. BOURGON: Because at some point when a witness refuses, the
3 Prosecution may try by other mechanisms still to get to the witness.
4 That's what we're trying to avoid.
5 JUDGE AGIUS: All right. And your contention is that there are
6 protective measures, such protective measures are operative also in
7 relation to the Prosecution?
8 MR. BOURGON: No, Mr. President.
9 JUDGE AGIUS: Because they are operative in relation to the
10 general public.
11 MR. BOURGON: The protective measures would be specific protective
12 measures. For example, if one of these witnesses would like to be
13 relocated and we have set in motion the procedure -- the procedure for the
14 witness to be relocated and for the witness not to meet with anybody.
15 Like, for example, we have not been authorised to meet with Witness PW-101
16 despite the fact that even after we tried to -- we obtained his name,
17 we're not able to meet with PW-101 because the Prosecution did not want
18 for protective -- protection reasons the Defence to meet with this
19 witness. This might be the case, and we are dealing with some witnesses
20 who can provide information that is quite sensitive, and there are reasons
21 why these witnesses should not meet with the Prosecution. But I agree
22 that this is a theoretical concept that today, that is it is speculation
23 as of this day, but these are very sensitive issues and witnesses that we
24 are dealing with.
25 But all this to say, Mr. President, is that our position at this
1 time, and we'd like to make sure that there's one issue we disagree in the
2 Prosecution motion, and that is when the Prosecution says that because
3 they've got the burden of proof they should be able to call witnesses
4 during its case in chief. And what we are saying is that there is no link
5 with the fact that the Prosecution has the burden of proof and that it
6 should be in a position to call these witnesses that we've identified.
7 The interests of justice requires that when there is information
8 that is known and available it should be put to the Trial Chamber during
9 the trial. It doesn't have to be put via the Prosecution. In our
10 submission, this is why the Judges have the power to call witnesses at the
11 end of the case that they're aware of and that have not been called by
12 either party. Also the reason why the Prosecution may have -- there's the
13 rebuttal phase which is provided for in the rules. So the interests of
14 justice require that the information be put to the Trial Chamber as part
15 of the trial, but it does not require necessarily that the Prosecution
16 presents these witnesses during its case in chief. And what appears on
17 the face of the Prosecution motion is that if we identified a potential
18 Defence witness and they interview that witness, what is suggested in
19 their motion is that they could call that witness in the Prosecution's
20 case, and that's where we disagree. It doesn't have to be this way.
21 There is no link between the two issues.
22 JUDGE AGIUS: Have you -- have you never been in a case where the
23 same person is witness for the Prosecution and also witness for the
24 Defence? Because I have.
25 MR. BOURGON: I have, too, Mr. President. That's not -- again,
1 maybe I'm not making myself clear. This is a witness that wasn't known to
2 the Prosecution before. There was an agreement for that person to show up
3 as a Defence witness in the case for the Defence. The person disagrees
4 and does not want to meet with the Prosecution. In such a case there is
5 no connection between this issue and the fact that the Prosecution would
6 like to now call this witness during its case in chief.
7 JUDGE AGIUS: But you seem to have --
8 MR. BOURGON: It's two different matters to us, Mr. President.
9 JUDGE AGIUS: You also seem to have predicated, unless I'm
10 misunderstanding you, that such a problem would arise because the
11 Prosecution comes to the conclusion that that person is important for
12 their case and they have the onus of proving the guilt in the first
13 place. And you're saying that this notwithstanding, then they shouldn't
14 have the right to bring that person as a Prosecution witness, or they
15 shouldn't try to bring that person, because I'm not understanding you a
16 hundred per cent.
17 MR. BOURGON: It's not the fact that they do not have the right to
18 bring that witness; it is that there's no connection with the fact that
19 they may want to bring the witness and whether the witness will meet with
20 them or not. But there's no connection between the two.
21 JUDGE AGIUS: All right.
22 MR. BOURGON: And lastly, Mr. President, what we suggest in order
23 to make it easy for all parties is that we proceed the same way for both
24 the Prosecution and the Defence with the use of a letter that can be given
25 to the witness. We suggest that this will ensure that we have a prima
1 facie showing that there's been no pressure, that the witness understands
2 that he does not have to consent to an interview, that the witness
3 understands that has the right, even if he shows up for an interview, not
4 to say anything.
5 It is our experience in this case, Mr. President, that most of the
6 people in Republika Srpska and Bosnia today are very little informed about
7 their rights and due to this -- the rumours being spread around in the
8 media, they are very sensitive to any invitation they get to provide
9 evidence to the Prosecution. We feel that if we could proceed with such a
10 letter, then this would solve all problems. The Court would be satisfied
11 that witnesses and that there is a relationship of trust between the
12 Prosecution and the Defence and that the decision whether to consent or
13 not to consent to an interview is that of the witness and not of the party
14 calling the witness.
15 Thank you, Mr. President.
16 JUDGE AGIUS: Thank you, Mr. Bourgon.
17 Mr. Nicholls.
18 MR. NICHOLLS: Thank you, Your Honour, that's a lot and I'll try
19 to respond it point by point and I hope I don't miss anything. But the
20 starting point I would like to make clear is that to my knowledge, and I'm
21 sure of this, the Nikolic team has never once contacted us before talking
22 to one of our witnesses in the field, ever, and asked if that -- and asked
23 them to contact the witness. And we haven't required that. He's
24 contacted many of our witnesses many times and interviewed them without
25 ever telling us or asking us or having anything to do with us, and we
1 haven't had a problem with that.
2 The second -- the first point he raised is the topics of these
3 letters. Now, they have several times given these letters to us. I have
4 always given the letter to the witness. I have told my friend that I'm
5 not going to have the witness sign the letter that he's received it,
6 because if I say I've given it to the witness, then he should trust me and
7 that's good enough for him and I'm not going to force witnesses to sign
8 documents to be returned to Defence, and he's accepted that.
9 I don't think there's any need for us to give letters to the
10 Defence because we don't trust the Defence otherwise to speak to the
11 witnesses. I think we're all professionals here and I don't think there
12 needs to be any suggestion that either side would -- would lie and say
13 that the witness has refused to meet with you and that was not the case or
14 has tried to influence the witnesses. So I will trust everybody on the
15 other side with whatever they say if they represent to me whether or not a
16 witness is willing to meet with us, and I would expect them to do the
18 The -- the question about the subpoenas of witnesses, I don't
19 think there are any exceptions to witnesses being available to either
20 side, and there is no -- if a witness should refuse to meet with either
21 side, the law on this case, which I think Your Honour was pointing to, the
22 Halilovic appeals decision on subpoenas, that's from 21st of June 2004, is
23 very clear, that a party may apply for a subpoena for somebody on the
24 other -- another party's witness list, and the reason for that is as Your
25 Honour said, the witness may be able to provide evidence for the party who
1 wishes to speak to them, the party wishing to subpoena them, and that
2 cannot be cut off by one party just placing them on the witness list.
3 And if you look at paragraph 12 of that decision, it states to
4 deprive the expecting party of such an ability to apply for a subpoena
5 would hand unfair advantage to the opposing party which would be able to
6 block its opponent's ability to interview crucial witnesses simply by
7 placing them on the witness list. That can't be the law. It's not the
8 law. It's true that that decision states that you can't subpoena a
9 witness just to prepare for cross-examination, but if you believe and have
10 a good-faith belief that that witness may be able to provide important
11 information and that name is one that was not available to you before, you
12 didn't have an opportunity to interview them before then, of course you
13 can -- you can apply for a subpoena.
14 Regarding the --
15 JUDGE KWON: Would it not be different if the Prosecution case is
16 already over?
17 MR. NICHOLLS: No, I don't think so, because it might be important
18 for rebuttal. I think that it's true that if the Prosecution case is
19 already over and it was -- it was solely to -- to -- to prepare for
20 cross-examination, that might be right, but I don't think the law would
21 change. It could very well be that the Prosecution needed to interview
22 that witness even after its case was over, either for rebuttal or to
23 bolster information that had already been provided or even possibly to ask
24 theoretically to reopen on a certain limited point if the information was
25 truly unavailable before.
1 JUDGE KWON: Thank you. Proceed, please.
2 MR. NICHOLLS: As far as the local authorities assisting, my
3 friend has talked about how the witnesses are nervous, some of them, and
4 again these are not in general witnesses who are on any list. We don't
5 have a Defence witness list. But one of the practices we have is -- is to
6 ask the local police to contact the witness and tell them that we would
7 like to interview them, and there's two reasons for that. One, often we
8 don't have any contact information and can't locate these witnesses
9 despite looking in the phone book or something; and two, it is to make it
10 easier on the witness, because then we don't - the investigator doesn't
11 drive up to the front of their house in the village in a big UN vehicle
12 which the witnesses may prefer just to be told that they should -- that an
13 interview has been requested.
14 JUDGE PROST: Mr. Nicholls, are there any protocols in that region
15 that require contact with the local authorities on the part -- if the
16 Office of the Prosecutor wishes to interview someone? I know those are in
17 place with some countries but perhaps not in that region?
18 MR. NICHOLLS: Not that I'm aware of, Your Honour, and sometimes
19 witnesses when they have been asked by police to come don't come and say
20 they -- the police say he can't come or this person can't come and then
21 that's that.
22 JUDGE PROST: So it's not a mandatory requirement of the
23 authorities in Republika Srpska, for example, that you contact them first
24 before approaching a witness?
25 MR. NICHOLLS: No. Sorry.
1 JUDGE PROST: Thank you.
2 MR. NICHOLLS: I didn't understand you completely. No, it's not.
3 JUDGE PROST: It's something you do as a choice and for the
4 reasons you've explained?
5 MR. NICHOLLS: Yes.
6 JUDGE PROST: That you.
7 MR. NICHOLLS: Namely because it's easier. It's easier that way
8 for us to make contact.
9 There's obviously a separate process, which is where we go through
10 the RS liaison office and ask for a summons to bring somebody to our field
11 office. That's not what we've been talking about and generally the
12 interviews we've been -- that my friend has been discussing here are not
13 conducted in a field office but just somewhere local, a local police
14 station or somewhere.
15 Moving to his argument on protective measures, I really frankly
16 don't quite understand what my friend is saying. Protective measures have
17 nothing to do with the other party's ability or right to interview
18 witnesses. The one -- the one area where it would -- would affect that
19 ability is -- Judge Kwon asked a question about delayed disclosure,
20 delayed disclosure which is applied through the Court, then the other
21 party is not aware of that witness until a certain time that -- so of
22 course they can't contact them, but other than that there's no -- there's
23 no basis for applying for protective measures as a way from shielding the
24 witness from being interviewed by the other party.
25 I mean, many of our witnesses have had protective measures and
1 have been interviewed and either when they're here they've been asked if
2 they would consent to an interview and they've said yes and then they've
3 been interviewed. It's got -- it's apples and oranges. It's got nothing
4 to do with it, and it sounds to me like just a way to try to shield the
5 witness from access by the other party.
6 The third point my friend got to was whether or not we can call
7 witnesses in chief who arise through either cross-examining by the Defence
8 or the Defence says we may call this person as a witness whether or not we
9 can go interview that person and call that person in chief. And I think
10 of course we can. That's recognised specifically in the Mrksic decision
11 from 1st September 2006, paragraph 3, which I won't read that paragraph,
12 but if you look at it, what it states is that -- that a party has to be
13 able to and the Prosecution has to be able to during its case and even --
14 during its case it has to have access to witnesses that may be able to
15 provide probative, relevant information that will help the Trial Chamber.
16 There's -- there's nothing in the law and there is no rationale
17 that I can think of that at some stage in the middle of the Prosecution's
18 case when they learn of a witness who may be useful that they can't
19 interview that witness and then call them. And we intend to do that.
20 We've interviewed witnesses whose names have come up, names we've never
21 had before. They have come up in cross-examination. We will go interview
22 those witnesses and we will call these witnesses if we think -- we will
23 apply to call these witness if is we think that they have important
25 If we try to save that for rebuttal, I'm sure the Defence would
1 argue, well, rebuttal can only be used for information that was not
2 available that could not be foreseen and that doesn't -- it doesn't fall
3 into that category because you knew about it in the middle of your case.
4 And I think that can be argued further and fleshed out when we make a
5 filing to add these people that we've recently heard about and talked to
6 to our list.
7 I think that's it. Again, in the end my friend talked about the
8 letter. I don't plan on giving any letters to the Defence for them to
9 hand -- when they give us our witness list we will cooperate with them,
10 and I won't require my friends to give letters to the witnesses to sign
11 and give back to me.
12 JUDGE AGIUS: Yes.
13 MR. JOSSE: Your Honour, sorry to interrupt, but basically I want
14 to make some submissions on what Mr. Bourgon has said and I suspect he
15 would like to the right to reply to what I'm about to say, because --
16 JUDGE AGIUS: All right. Go ahead. Go ahead.
17 MR. JOSSE: In essence I support everything he said in relation to
18 the subpoena or the local police issue and what I submit in relation to
19 that is that the Trial Chamber needs to be realistic and there isn't a
20 level playing field in reality between how the Defence can act and react
21 in relation to witnesses and how the Prosecution can act and react.
22 The Prosecution have a well-established, well-oiled machine, for
23 which we make no criticism at all, liaising with the local police and
24 clearly that is going to impact on local people and local witnesses in an
25 obvious way, and that is something that we would invite the Trial Chamber
1 to take into account if it does lay down any guidelines as to how the
2 Prosecution should behave come the Defence phase of the case in relation
3 to the Defence witnesses, because frankly if I could use the military
4 analogy, they have far more armory at their disposal in that regard.
5 So far as Mr. Bourgon's second point is concerned, that -- frankly
6 I have slightly more concern about. Could I endorse what the Prosecution
7 said in their motion of the 6th of July at paragraph 6 where they stated
8 that the Prosecution bears the burden of proof. It must be able to call
9 witnesses during its case. And I'm not going to read out the rest of that
10 sentence, but whilst as a matter of trite law, no doubt everyone in this
11 room would agree with that, it is extremely important in practice, in our
12 submission, and it's worth remembering at all times that the Prosecution
13 bear the burden of proof and these defendants, all seven of them, don't
14 have to prove anything at all, and they don't have to prove their
16 And in that regard, what Mr. Bourgon is suggesting, and I know he
17 don't mean this and I'm sure he doesn't mean this, might in some way
18 suggest that the burden is shifting. It does not shift, it must not
19 shift, and any suggestion in that regard must be rejected by the Trial
21 Could I just say this in fairness to my learned friend Mr. Bourgon
22 and his client. Practically the issues that have arisen in this case that
23 he's alluded to relate to his case, his team and don't relate, in
24 fairness, to my client and the team in which I'm involved and therefore I
25 can understand his concerns and that's something that the Trial Chamber
1 may want to grapple with. Nonetheless, any suggestion that the burden
2 shifts must be rejected.
3 JUDGE AGIUS: I thank you, Mr. Josse.
4 One moment.
5 [Trial Chamber confers]
6 JUDGE PROST: Before we hear from Mr. Bourgon, Mr. Nicholls, we
7 had a question for you regarding the submissions that have been made.
8 Once you receive the Defence list of witnesses, is it your position that
9 you do not have to contact the Defence or notify the Defence regarding
10 interviews that you wish to conduct of those Defence witnesses and that
11 you can do so directly without notifying them? Or Mr. McCloskey.
12 MR. McCLOSKEY: We clearly understood the President's -- I'm not
13 sure it was a ruling but his feelings on that, and of course we will abide
14 by that unless an issue meaning -- yes, if that's what he chooses, if
15 that's what you choose. Whether we are legally required to do that, I
16 would say that we're not.
17 JUDGE PROST: Well, take it that we haven't ruled particularly on
18 that, what is the Prosecution's submission as to whether or not you have
19 to notify the Defence or make arrangements through the Defence?
20 MR. McCLOSKEY: We would say absolutely not. We have a duty under
21 Dayton, a mandate to investigate these crimes, and these -- this will
22 continue until the closing arguments of this case in order to respond to
23 the defences and bring forward the case in as much truth as we can, and we
24 will work with counsel and we'll of course abide by your rulings, but we
25 do not feel that we are limited in any way by the Defence witness list.
1 JUDGE PROST: Thank you, Mr. McCloskey.
2 MR. NICHOLLS: And if I could just add. I'm sorry I don't have
3 the case law right at my fingertips, but I believe what is said in the law
4 is that it's -- this would be a courtesy and it may be a good idea at
5 times to avoid any -- any inference or appearance that pressure is being
6 given but it is not required to go through the other party. And I think
7 that's clear. And the Defence have not gone through us. They would do so
8 if they thought that was a legal requirement.
9 JUDGE AGIUS: Okay. Madam Fauveau.
10 MS. FAUVEAU: [Interpretation] Mr. President, this wasn't a joint
11 case at the beginning. There were several ones. Miletic and Gvero was a
12 separate case, and we had agreed with Mr. McCloskey to demand for
13 authorisation. We did this on each and every occasion. The Statute of
14 this Tribunal should be respected, and the Prosecution should conduct
15 itself in the same manner as we have conducted ourselves. We have the
16 right to prepare our case in the same way and under the same conditions as
17 the Prosecution. We have the right to call witnesses for the Defence
18 under the same conditions as the Prosecution. So I would like the
19 Prosecution to inform us when they have our witness list. I'm not talking
20 about the situation at the present but when we have our 65 ter list filed,
21 I would like the Prosecution to realise that they have the obligation of
22 contacting us when they want to contact our witnesses.
23 JUDGE AGIUS: All right. Yes, Mr. Stojanovic, and then
24 Mr. Bourgon.
25 MR. STOJANOVIC: [Interpretation] Good morning, Your Honours.
1 Maybe I -- you will allow me just to digress a little following up the
2 question of Judge Prost on how the issues are regulated in the region with
3 the local authorities.
4 In its Official Gazette number 52, from 2001, 17th October, the
5 Republika Srpska enacted a law on the cooperation with the ICTY,
6 stipulating, or rather, regulating the issues that he would discussed
7 today among others. Since I have this law in front of me now, it might
8 help if I read Article 18 of that law governing the issue of legal
9 assistance to the Tribunal, which says: "In addition to assistance in
10 investigations conducted by investigators at the request of the ICTY, the
11 competent authorities of Republika Srpska shall conduct certain
12 investigative actions, collect information on criminal acts, perpetrators,
13 and issue warrants," and I want to emphasise this, "deliver summons to
14 persons in the Republika Srpska that were issued by the Tribunal."
15 In keeping with the observation assisting practice and invoking
16 this law, the local authorities, including the Ministry of the Interior of
17 Republika Srpska, have so far delivered summons and subpoenas in this way.
18 Under this law, there is no possibility to send official summons by the
19 Defence through official channels into Republika Srpska, and that is where
20 the difference between us lies. That is what I wanted to stress in
22 JUDGE AGIUS: Do you mean to say that if you wish to bring forward
23 a witness that suddenly refuses to come other, you are precluded from
24 asking the Trial Chamber to issue a subpoena? Because if that is what you
25 are suggesting, I wouldn't agree with you.
1 I don't know what you are suggesting, because I don't see any --
2 any inequality or lack of clarity of arms when comes to that, at least,
3 between the two parties, the two sides. I mean, there have been requests
4 in several cases for the issuance of subpoenas by the Defence, and they
5 were -- they were granted. And they would have been executed by the
6 authorities in Republika Srpska pursuant to what you have just read,
7 because it says "collect and deliver summons to people in Republika Srpska
8 that were issued by the Tribunal."
9 [Trial Chamber confers]
10 JUDGE AGIUS: Yes, Mr. Stojanovic, you can conclude on this.
11 Perhaps we could see better into it.
12 MR. STOJANOVIC: [Interpretation] Your Honours, not for a moment
13 did I say that Defence teams did not have opportunity to ask the Chamber's
14 assistance to invite witnesses who otherwise refuse contact. Such
15 situations have arisen, and I have encountered them in my work in the
16 Tribunal so far and that is not in dispute.
17 The provision that I have read, and it is set out quite clearly in
18 the law, governs the issue of summoning witnesses by the Prosecution or by
19 the Defence. Since this is the law on cooperation with the Tribunal,
20 summons go normally through usual channels to the party. That is all I
22 JUDGE AGIUS: Thank you, Mr. Stojanovic.
23 Yes, Mr. McCloskey, and then finally you will have your turn,
24 Mr. Bourgon, unless you have changed your mind in the meantime.
25 Yes, Mr. McCloskey.
1 MR. McCLOSKEY: I'll try to deal briefly with Mr. Stojanovic. The
2 Prosecutor does have the right to summons witnesses in her powers. I
3 can't remember the Rule. And we have done that through the Republika
4 Srpska. That's how we initially brought people to Banja Luka to speak to
5 us. The Defence do not have that, that power, however -- and we also have
6 a liaison officer that helps us find people and work with the local
7 police, though I believe that liaison officer is open to the Defence
8 and -- for both sides, both the federation and the Republika Srpska. And
9 we will offer our assistance if they need to find someone or they need
10 encouragement to the police to find one.
11 However, would I gladly trade the RS police for their
12 investigators, because as you know - and I won't go into the history, it's
13 a little different than Mr. Josse said - the RS police are part of the
14 perpetrators in this. And it's the light -- it's much different than it
15 was two years ago, and so we are getting some cooperation, but it is not
16 the situation of a well-oiled machine working hand in glove with the RS
17 police. It's far from that; but again, that is not an issue.
18 But I do offer our assistance where -- in any of these matters if
19 we can give it.
20 JUDGE AGIUS: Thank you, Mr. McCloskey.
21 Mr. Bourgon.
22 MR. BOURGON: Thank you, Mr. President. Quickly, I just wish to
23 reply to the points that were made by my colleague for the Prosecution.
24 First, it's been said that the Defence has not contacted the Prosecution
25 in order to conduct interview with Prosecution witnesses. I believe,
1 Mr. President, that this is incorrect.
2 With respect to witnesses in the field, we have provided the
3 Prosecution, in September or October of 1995, with the list of all those
4 that we wanted to interview. We have also received a response to this
5 request, saying that go ahead, meet with whoever you want, inform us of
6 the victims or the sensitive witnesses beforehand. And we have been
7 confirming with this agreement.
8 Secondly, when the witness shows up at the Tribunal, we have also
9 requested, via the Prosecution before meeting with anybody, using the
10 letter to which my colleague agrees is a good mechanism, and this way
11 there has been less difficulties.
12 Second point, I'd like to -- of course, I appreciate the
13 intervention of my colleague, Mr. Josse, and I fully agree with him, and I
14 thank him for raising the issue that there is no shift in the burden of
15 proof. However, the argument that the -- I wish to make in this regard,
16 the Prosecution, of course, has a right to call a witness as part of its
17 case in chief. That is not the issue here. The issue is in the event a
18 potential witness for the Defence has said, No, I do not wish to meet with
19 the Prosecution; on the other hand, the Prosecution believes that it must
20 call this witness as part of its case, those are two different things.
21 And if the Prosecution wants to make a case that it must meet with
22 the witness beforehand, despite his or her refusal, they have to turn to
23 the Trial Chamber and not to local authorities. That's the second point,
24 Mr. President.
25 The third issue is concerning protective measures. My colleague
1 says he doesn't see the point. Well, this is what happened in respect of
2 Witness PW-101. Once disclosure took place, in conformity with the Trial
3 Chamber's order, we were given the statements of this witness. From that
4 point on, during that period of 30 days that we were given this material,
5 we were not entitled to meet with the witness because the Prosecution had
6 legitimate concern, because this witness was about to be relocated and for
7 reasons to the witness they did not want anybody from the Defence to meet
8 with the witness.
9 What I'm saying is that the same could happen with a potential
10 Defence witness; and in fact, Mr. President, we have one of the witnesses
11 for whom we will be applying for both relocation as well as specific
12 protective measures that that witness will not be contacted by the
13 Prosecution. The name of that witness is not known at this stage to the
14 Prosecution, and we will apply to also maintain as part of the protective
15 measures to maintain the name, address, and location of this witness,
16 until he appears before the Trial Chamber, for exactly the same reason as
17 the Prosecution did with regards to Witness PW-101.
18 JUDGE KWON: Just to be clear, are we talking about PW-101 who
19 appeared in February this year or Witness number?
20 MR. BOURGON: No, PW-101.
21 JUDGE KWON: Who appeared if February.
22 MR. BOURGON: Indeed. The last issue is concerning the issue of
23 the summons or the use of the local authorities. Again, our only
24 submission is that if it has been indicated by the witness, by the
25 potential Defence witness, that he does not want to meet with the
1 Prosecution, then in such a case, if the Prosecution believes otherwise,
2 they should turn to the Trial Chamber and not to local authorities.
3 If they believe that there's a reason why they should be
4 authorised to meet with the witness, then they should make their case and
5 such -- where we will be able to respond to the Prosecution's argument,
6 and the Trial Chamber will decide whether the Prosecution can meet or not
7 with that witness, over the witness objection. And that's why I was
8 calling about two exceptions to the rule; whereas, the witness decides
10 JUDGE PROST: Mr. Bourgon, then you're not submitting that the
11 Prosecution should be precluded from making their initial contact with the
12 witness using the local authorities. Your concern is where the witness
13 has already indicated they do not wish to meet with the Prosecutor and the
14 use of local authorities at that stage, as opposed to an approach by the
15 Trial Chamber. Is that your position?
16 MR. BOURGON: It is, as long as it's made on the -- on the
17 assumption that the Prosecution has contacted the Defence and the Defence
18 has informed the Prosecution that the witness does not want to meet with
20 JUDGE PROST: So you're -- you're submission is twofold: First,
21 that all contacts with the Defence witnesses should be notified to the
22 Defence; and secondly, that if in the case of a refusal they can't resort
23 to local authorities.
24 MR. BOURGON: That's exactly the point, Judge.
25 JUDGE PROST: Thank you.
1 JUDGE AGIUS: Thank you. I think we can -- yes, Mr. Josse.
2 MR. JOSSE: Your Honour, I'm sorry to hark back to the very
3 beginning of this particular debate, but my learned friend Mr. Zivanovic
4 highlighted paragraph 11 of his filing of yesterday and said that that
5 poses the various questions to which he requires answers.
6 Now, I understand that Mr. Nicholls and Mr. Zivanovic had a
7 discussion this morning but the rest of us were not party to that
8 discussion. I would ask Mr. Nicholls in terms to answer those three
9 questions in paragraph 11 so that we know exactly what the Prosecution's
10 stance is in relation to them.
11 JUDGE AGIUS: Yes, Mr. Nicholls, I am under the impression that he
12 did refer specifically to paragraph 11 when he first spoke but I may be
14 MR. NICHOLLS: I see we're four minutes from the break, I wonder
15 if we could --
16 JUDGE AGIUS: How much time do you require?
17 MR. NICHOLLS: Just if we could the break now, I can -- I have to
18 respond to Mr. Bourgon and Mr. Josse.
19 JUDGE AGIUS: Yes, by all means. Perhaps you can --
20 MR. NICHOLLS: And I think 10 minutes once we get back.
21 JUDGE AGIUS: Okay. Okay.
22 MR. NICHOLLS: And we can maybe talk.
23 JUDGE AGIUS: We will have a 30-minute break. Thank you
24 --- Recess taken at 10.25 a.m.
25 --- Upon commencing at 11.02 a.m.
1 JUDGE AGIUS: Yes, Mr. Nicholls.
2 MR. NICHOLLS: Thank you, Your Honours.
3 A couple things first. The case I was trying to remember, which
4 name I couldn't remember before when I talked about the notifying the
5 other party would be a courtesy and may be a good idea but is not required
6 is the Mrksic decision on Prosecution's motion to interview Defence
7 witnesses of 1st September 2006, paragraph 4. That's what I was referring
9 Second, Ms. Nikolic is correct and I apologise for that. They did
10 send us back in 2005 a list of some of the witnesses on our provisional
11 witness list that they intended to interview and our response was go
13 Just to be clear, we did not set or make any condition that we
14 would then contact each and every one of those witnesses and -- and get
15 back to them. I think the response was a blanket response that they
16 should go ahead.
17 In terms of Mr. Bourgon's question about if they -- if they inform
18 us that a witness refuses, whether we will -- whether we should be allowed
19 to just use the local process, what I think we would intend to do is
20 follow Mrksic, in general. We're courteous so much as we can be.
21 However, what we will do is inform the Defence I believe of the witnesses
22 that we intend to interview once we get their witness list and then we'll
23 go out and try to interview them. And this is still far in the future,
24 and I don't think any ruling needs to be made and we can still discuss
25 this further. That has all come up just today, but I don't think we would
1 be foreclosed by attempting to interview witnesses under those
3 I also want to be clear that I'm not being critical of the Defence
4 teams for going and interviewing witnesses without telling us in advance
5 or getting our -- our consent. What I meant was that we haven't heard
6 from the field, we intend to interview your person on your witness list
7 number X next Tuesday, and that's fine. We don't think that they need to
8 tell us that they're going to go interview somebody who is on our witness
9 list, and that's what I meant when I find out after the fact sometimes
10 when the witness gets here that they've been interviewed once or twice by
11 one or more Defence teams.
12 Coming to my friend Mr. Josse's question regarding paragraph 11 of
13 Mr. Zivanovic's motion which relates back to the information in paragraph
14 9, in general of course it's always okay to -- to inform a witness of any
15 rights the witness may have, but it all depends on how it's done and at
16 what stage it's done.
17 And for instance, taking a statement from a witness, getting it
18 signed, getting that information and then emphasising to the witness you
19 don't need to talk to anybody else, you should have -- that could -- that
20 could create in the witness the feeling that he ought not to speak to
21 anybody else, but I don't want to go into that. I've spoken with
22 Mr. Josse about that and he says that he's satisfied with my answer to him
23 during the break.
24 And the same as I discussed with Mr. Zivanovic earlier. I think
25 it would be more helpful for -- for us to discuss with all the Defence
1 teams what the guidelines, if any, ought to be rather than get into this
2 at this point. And frankly without being cryptic and I don't want to get
3 into it, we have had some concerns, but I don't want to get into that, and
4 I think we should just discuss it amongst ourselves and we may be able to
5 come to a conclusion.
6 JUDGE AGIUS: Thank you, I think that should conclude -- no.
7 Mr. Bourgon.
8 MR. BOURGON: Just a very quick point, just what my colleague just
9 said. I would just like to know whether the Prosecution is willing to
10 accept that if they do contact us about a witness and we inform them that
11 the witness has refused to meet with them, will that be sufficient for
12 them or will they go still and try to contact the witness. That's what
13 we're trying to avoid, Mr. President. Thank you.
14 JUDGE AGIUS: Yes, Mr. Nicholls.
15 MR. NICHOLLS: I would just say in this vacuum now I can't say
16 that for all situations and all hypothetical situations in the future when
17 we have a witness list that we would foreclose that. I'm not going to
18 promise now or say now that we would never go attempt to interview a
19 witness after that information. But that's again something that we can
20 discuss and work on when we get a witness list and when we get to the
21 Defence case.
22 JUDGE AGIUS: And I think you already stated that you are all
23 professionals here, and in any case, questions can be asked, can be put to
24 the witness when he is here, and I don't think any lawyer would risk
25 giving false information to the opposite party only to be exposed later
1 on. So I would leave it for the time being. I wouldn't discuss that.
2 I think that we can safely bring this discussion to an end here.
3 Of course we will be coming back to you very shortly.
4 The next item on our agenda for today is the issue -- next item on
5 our agenda for today is the issue raised some time back and raised again
6 more recently by the Prosecution and the Borovcanin team, as well as the
7 Beara Defence team in relation to various issues related, concerning the
8 tape recording of -- and transcript thereof of the interview which took
9 place sometime back with Accused Borovcanin.
10 We are going to deal first with the issue that was debated and
11 which we -- as to whether the Prosecution should have the opportunity to
12 play back excerpts of the tape recording, and then from then onwards we
13 will move to other issues raised by both the Borovcanin team and the Beara
14 team, as well by Mr. Josse and I understand also by Mr. Bourgon and --
15 yes, exactly.
16 So before receiving submissions as requested, we wish to address
17 the issue raised yesterday regarding the playback of the tape or parts
19 The Prosecution, as we understand, proposes to tender through
20 Witness Alistair Graham a tape recording and the transcript of a purported
21 interview with Mr. Borovcanin. The Defence of Mr. Borovcanin have
22 objected to the admissibility of the interview on several grounds and have
23 given a very general outline of the basis for that objection during one of
24 the hearings.
25 The Trial Chamber is of the view that the procedure for
1 consideration of the purported statement of Mr. Borovcanin should be in
2 stages. The first step would be the examination of the issue of
3 admissibility. We therefore wish to hear first and foremost of all direct
4 evidence and cross-examination relevant to the issue of admissibility.
5 Without prejudice to the issue of redactions to be dealt with in due
6 course, for the purpose of this particular stage both the tape and the
7 transcript will, for the time being, be marked for identification,
8 however, with just one exception.
9 We do not see any need for the playback of the tape in whole or in
10 part at this stage with respect to the question of admissibility. The
11 sole exception that I have just referred to would be where the Prosecution
12 can establish that the playing of a portion of the tape is directly
13 relevant to the question of admissibility and the point that would be
14 demonstrated by such playback is not apparent from the transcript itself.
15 If a portion were to be played back for this purpose, it would, of course,
16 be open to the Defence on cross-examination to play other parts of the
17 tape to demonstrate a larger or different context, and that is in response
18 to the point raised by Mr. Lazarevic that playing parts could result to be
19 out of context.
20 Similarly, on redirect, if there will be one, the Prosecution may
21 be permitted to play a part of the tape if relevant to the issue of
22 admissibility and to a matter raised during cross-examination.
23 So that disposes of the -- one of the issues raised by the parties
24 as to whether during the testimony of Mr. Alistair Graham you should have
25 the opportunity to play back parts of the tape recording at your choice.
1 In other words, we are restricting that -- yes, we are restricting that
2 within the parameters that we have established.
3 Now, in order not to take you by surprise, which is not the style
4 that this Trial Chamber adopts, yesterday after we had consultations in
5 Chambers we instructed our Senior Legal Officer to contact you to give you
6 prior notice on what we would like you to make submissions upon during
7 today's hearing. I take it that this was -- or the e-mail was delivered
8 to each and every one of you. If that's not the case, please stand up and
9 inform us.
10 So basically now I would like to approach the discussion along the
11 lines of the points that were made known to you yesterday in Mr. Cubbon's
12 e-mail. And the first issue that I would like you to discuss is an
13 important matter, namely if the Borovcanin is -- Borovcanin interview is
14 admissible, what probative value, if at all, does it have with reference
15 to other accused in this trial, that is, other accused, other than
16 Mr. Borovcanin. And I think this is the first issue that we would like
17 you to -- that you should now address the Chamber.
19 MR. LAZAREVIC: Your Honours, can I very briefly address the Trial
20 Chamber, because I have one concern that I would like to share with the
21 Trial Chamber, and if we can move into private session just to make sure
22 that we are doing this properly.
23 JUDGE AGIUS: Yes. Let's go into private session.
24 [Private session]
11 Page 13710 redacted. Private session
23 [Open session]
24 JUDGE AGIUS: Yes, we are in open session now.
25 Before we proceed, because -- before we proceed, Judge Prost is
1 reminding me, so that we lay the parameters of what the discussion should
2 be limited to.
3 Following the e-mail, Mr. Cubbon's e-mail to you, we are informed
4 that Mr. McCloskey replied to Mr. Cubbon by means of another e-mail
5 seeking guidance as to whether or not you -- we would want the parties to
6 make reference to the Borovcanin interview specifically where
7 Mr. Borovcanin mentions other accused or whether the parties should answer
8 the questions generally without making a specific reference to the
9 information in the interview.
10 Correct me if I am wrong, but that's the information that we
11 have. We haven't seen the e-mail.
12 And then we are also informed that Mr. Josse interjected after
13 Mr. McCloskey's e-mail, pointing out to Mr. Cubbon that the Defence, I
14 take it his Defence team, would --
15 MR. JOSSE: That's right. I should have made that clear in the
16 e-mail and I didn't.
17 JUDGE AGIUS: Okay. That the Defence for General Gvero would wish
18 to make oral submissions on the question raised by Mr. McCloskey prior to
19 the Trial Chamber making any decision on it.
20 So our decision on this is that on this first point that I've
21 raised with you the debate should be in general terms and not with
22 specific reference to the bits and pieces or parts of the Borovcanin
23 statement as they may or may not relate to other co-accused in this case.
24 So it's a generic debate on a legal level that we are expecting to -- from
1 Yes, Mr. McCloskey.
2 MR. McCLOSKEY: Thank you, Mr. President, and I -- that's what I
3 thought the answer was since you do not have this statement yet, and so
4 that's what I have been prepared to deal with this generally, and my
5 comments today will be -- will try to be brief, though you have touched on
6 a rather significant issue that, as you know, is a matter of among all
7 three of the large cases before us, Prlic, Milutinovic and our case. I'll
8 speak briefly to that, but let me go down your list as you've said.
9 If the Borovcanin interview is admissible what probative value, if
10 any, does it have with reference to other accused other than
11 Mr. Borovcanin. Now, I don't want to overlawyer that question, though I'm
12 sure I have. I have basically two kinds of answers for this in case --
13 I'm not sure exactly which one you were looking for.
14 But when I look at the term what probative value, I look at the
15 meaning the term probative value, and that is evidence that tends to prove
16 an issue. So is there anything in Mr. Borovcanin's that tends to prove an
17 issue related to one of the co-accused. The answer to that is clearly
18 yes, and again I won't get specific, but I think it's a good idea when
19 looking at an interview like this to roughly divide it into three parts.
20 There is -- there's information, background information, back -- personal
21 background to the accused, background to his history, structural
22 information about his -- his police force, things of that nature. I would
23 say that's roughly category one.
24 Category two would be information related to events around the
25 indictment, the factual events, the fall of Srebrenica, where troops went,
1 things like that that are more closely related to the events and the
2 charges of the indictment.
3 And then third, there is information that would go to the acts or
4 conducts of other accused, evidence that would tend to prove issues.
5 Presence at a particular location, things like that.
6 So I think the answer to the question of does it have probative
7 value, the answer is a resounding yes, it does, absolutely. Now, if the
8 question is more general, can a statement such as this have value for you
9 to be used against other accused, which I think is the big issue that I
10 referred to, and we've talked about it briefly, the answer to that again
11 is yes. And you have heard my view in the Jokic trial, and you've heard
12 briefly what the Prosecution's view is now, and the current view is that
13 yes, the interview of Mr. Borovcanin should be and can be used for all
14 three categories that I have mentioned.
15 Now, in my view the -- this is an issue that involves the
16 fundamental fairness, and I think as it's laid out most simply in Rule
17 89(C) and (D), where, as you're aware, a Chamber may admit any relevant
18 evidence which it deems to have probative value on the one hand, and (D)
19 the Chamber may exclude evidence of its probative value if substantially
20 outweighed by the need to ensure a fair trial.
21 So the balance that the Trial Chamber needs to make is we have
22 probative -- we have evidence of probative value, yes. In using that
23 evidence does that take away from the other accuseds' right to a fair
24 trial. And I think that now takes us into the legal argument, and it's a
25 legal argument that I can share briefly with you, though I think it's an
1 argument that I think all sides would like to brief thoroughly, because as
2 you know, it will be -- it will involve issues of international law,
3 issues of national law, issues of Tribunal law, and is -- obviously an
4 extremely significant issue that will soon be in the Appellate Chamber in
5 one of our -- in one of our cases very soon because I think it's the Prlic
6 case that there's actually a motion on this very point.
7 Now, under 89(C) and (D) the Trial Chamber has broad discretion,
8 as you know, and that is those of us from the common law systems know that
9 the right to cross-examination is partly what drives this issue, but the
10 civil law also has similar fairness issues and many civil law countries
11 also do not allow a co-accused statement though there are some that do,
12 and this is a complicated issue and it will take all of us lots of digging
13 to give you a good -- a good representative sample of this.
14 One recent case I think is helpful for us, it's the Martic appeals
15 case where you may remember an important witness for the Prosecution,
16 Mr. Babic, was on the witness stand and was making comments that directly
17 implicated the accused and then he died. And so the Court of Appeals had
18 to decide on that issue, and they did decide that cross-examination was
19 not an absolute and they did allow that evidence to go in
21 And one other area I'd ask you to look at is the court in -- the
22 Strasbourg court and the European Court of Human Rights has dealt recently
23 with this issue in September 2006 ruling called Carta versus Italy where
24 they had a similar situation and chose to allow the co-accused's statement
25 to be used. I won't get into the facts on that. I'm really probably not
1 qualified to. I haven't had a chance to read it thoroughly, but I think
2 it's something -- an interesting case, and is the kind of international
3 case that we should be looking to because of the international nature of
4 our Tribunal.
5 And so without going into the details of this very interesting and
6 complicated issue, I would leave it -- leave it at that, though I would
7 say -- of course the most difficult choice in my view for the Court is
8 looking at the area of acts or conduct: Is this something that should be
9 not admissible or it should -- just a matter of weight. Clearly a
10 statement of one accused, uncross-examined, that blames another accused or
11 says something about an accused is a matter that the Court I'm sure would
12 be looking at with -- with great -- a great critical eye and would be able
13 to give it the appropriate weight, if any, it needed. And that's --
14 that's to be expected, and I think this is an area of law throughout the
15 world, especially in jury trials, where jurors are -- are normally
16 instructed to take this kind of evidence or evidence of a co-accused or a
17 co-partner with some -- with a critical eye.
18 Though the background evidence that I spoke of or the evidence
19 related to crimes or the troop movements, these sorts of things, I think
20 they're going to -- they will have more indicia of reliability and I don't
21 see any reason why a Court can't consider those and give them the weight
22 they find appropriate.
23 So I would ask you to look at all three areas and consider all
24 three and give the weight that you find appropriate. This issue will come
25 up with the -- I believe it's 94 quater issues where we have had witnesses
1 that have recently died. Miroslav Deronjic, for example. The same issue
2 will come up, because he will testify -- or he has testified relating to
3 the acts or conduct of the accused. He's also testified about the -- the
4 famous July 17th document that you may recall Major Franklin having to
5 testify to that is something that doesn't go directly to acts or conduct.
6 So this issue is not going away. We will be filing a quater
7 motion very soon. But those are some of the cases, and this will be the
8 Prosecution's position, though the Prosecution's position is in the middle
9 of being formatted Prosecution-wise -- wide. So I don't believe it should
10 change much from what I have said, but as you know and as you can see from
11 my position in an earlier case, it is a changing area of the law.
12 So I can then -- if there is any other questions, I can go to
13 question two.
14 [Trial Chamber confers]
15 JUDGE AGIUS: Okay. Now, more or less we anticipated all this
16 yesterday when we were discussing, but we went a bit further than that,
17 and I will be asking you a question that we discussed amongst -- or
18 relating to an issue that we discussed amongst ourselves yesterday. Judge
19 Prost also will raise another matter with you relating specifically to the
20 kind of Tribunal procedure that we have here, and I understand also Judge
21 Kwon would be putting his.
22 My question to you is the following: In your mind in making this
23 submission, do you -- or are you making any distinction at all between the
24 fact when the person making the statement, in this case the accused at the
25 time who was a suspect, but the accused making the statement ultimately
1 decides to give evidence and, therefore, would be subject to
2 cross-examination, and the other case when he decides not to testify?
3 MR. McCLOSKEY: And in this submission I am assuming this --
4 Mr. Borovcanin would not testify, because I have no way of knowing at this
5 point whether he would or would not. And aside from asking Defence
6 counsel, but Defence counsel, that's a decision they have to make and it
7 can change. So I have assumed for this argument that he is not
8 testifying, though he may, and of course if he does testify he will be
9 open for cross-examination by everyone and the door is all open and no one
10 would have any objection, I take it.
11 JUDGE AGIUS: Thank you. Judge Kwon -- Judge Prost. Sorry.
12 JUDGE PROST: Mr. McCloskey, do you have any submissions as to
13 whether the facts that the Tribunal, unlike some of the jurisdictions
14 where such statements are not admissible against co-accused, in this
15 Tribunal hearsay is admissible, albeit there is a weight consideration
16 obviously. But is there -- do you have any submissions on that
17 distinction and the distinct nature of this Tribunal in terms of hearsay
18 with this statement in essence constituting a hearsay out-of-court
20 MR. McCLOSKEY: Yes. And as a matter of fact, the foundation of
21 my argument that you should especially look to the first two categories of
22 material that don't go to the direct acts or conduct of the accused is not
23 that different than 92 bis evidence and as an exception to the hearsay
24 rule, and so I think that's fundamental, which I should have mentioned.
25 The fact that hearsay is admissible is fundamental to the entire argument
1 that I am making. I went to the most fundamental cross-examination and
2 the fact that some civil law countries share that same concern under
3 basically a different theory. But this -- this entire argument is based
4 on -- in part on the fact that hearsay is admissible, especially all the
5 information that does not go to the acts or conduct of the accused.
6 JUDGE AGIUS: Thank you. Judge Kwon.
7 JUDGE KWON: Not necessarily, but my question was just treated by
8 Judge Prost's question. But when you say this is hearsay evidence, this
9 is hearsay evidence to be heard by one of the investigators of the
10 statement of the accused which you will tell about the story about the
11 other accused. So you follow so far then.
12 If it is to be allowed, then we should allow the Prosecution to
13 call the investigators, not the crime base witnesses to hear any crime
14 base or even the act and conduct of the accused. So it's not only the
15 hearsay matter but the -- fundamentally the fairness issue.
16 MR. McCLOSKEY: I think, Your Honour, that had this been an
17 interview where Alistair Graham had interviewed him and then taken notes
18 on -- on what was said and the -- the accused had -- and didn't sign the
19 notes, what we call an information report, what is a traditional way of
20 taking statements in many countries.
21 Had that been the case, I think what you're saying would be more
22 of a concern because you're really going so much on the integrity of
23 the -- of the investigator, which is fine and good and they have
24 credibility. And we -- sometimes we will be providing evidence that --
25 that a victim or a witness could have testified through the investigator.
1 You'll see that down the road. And in many cases, especially with crime
2 base issues, that's appropriate and investigators are credible, and I
3 think you'll be satisfied with that evidence. And if that's all we had, I
4 think your -- your decision would be more difficult. But I think the
5 rules protect us from having to make that particular decision because they
6 require that this be audiotaped.
7 And so we're really -- while it's coming through Alistair Graham,
8 mostly Alistair Graham is here to prove to you, to meet my burden that
9 this was done according to the rules and it was done freely and
10 voluntarily, and the words will be the words of the accused and -- and
11 Mr. -- and the investigators making the interview.
12 So I don't think it's a question that this would be a problem that
13 would -- that would affect the rest of the system or the -- or the
14 Tribunal as a whole.
15 JUDGE KWON: So my question was whether what we will hear from
16 Alistair Graham is related -- rather, related to the issue of
17 admissibility than the content of Mr. Borovcanin's statement.
18 MR. McCLOSKEY: Well, that is my understanding, and having
19 listened to your recent ruling, we would be -- and it will be Mr. Nicholls
20 that will be asking Mr. Graham the questions. It would fundamentally be
21 the background of the interview: Did you interview him? Did you do it
22 according to the rules? Did you make him any offers, any promises? Did
23 he agree to waive his rights? And any particular issue that the Defence
24 may raise that we need to -- need to deal with. There may be an exhibit.
25 Is this the summons that was served on him indicating he was a suspect?
1 Why did you say possible suspect in your -- in your reading? That kind of
3 And I wouldn't expect any content at all or probably based on your
4 ruling any need to play the -- any part of the -- of the transcript unless
5 at some point someone suggested that he -- that Mr. Borovcanin was coerced
6 or pressured in some way, and then we might want to play part of the
7 interview that showed the opposite. But I really doubt it. I -- I've
8 gone through hundreds of these sorts of things in other courts, and if
9 it's anything like those, it should be brief and legal and it shouldn't
10 involve much of the interview itself.
11 JUDGE AGIUS: Okay. Yes. I think I'm going to do the round
12 because -- yes. Who would like to go first? In relation only to this
13 first posit, yeah. Now all of a sudden, three, four stand up.
14 Yes, Madam Fauveau.
15 MS. FAUVEAU: [Interpretation] Mr. President, I completely agree
16 with the fact that the question of the probative value of the statement of
17 Mr. Borovcanin's interview has first to be resolved. If this statement
18 has no probative value, it can't be admissible. The rules are very clear
19 as far as this issue is concerned. In accordance with 89(C), only
20 evidence that has probative value and that is of relevance can be
21 admitted. Also pursuant to 89(C), Rule 89(C), any evidence the probative
22 value of which is inferior to the request for a fair trial must be
23 excluded. So this interview and any other forms of evidence, if it has no
24 probative value or if the probative value is outweighed by the need for a
25 fair trial, well such evidence has to be excluded.
1 I'd like to draw your attention to the fact that in the Blagojevic
2 case, there was a similar issue -- or rather an identical issue. It
3 relates to admitting Mr. Jokic's interview. In this case the Chamber
4 ruled that any interview with a suspect has a relative value because it's
5 quite natural that a suspect doesn't want attention to be focused on him
6 and will try perhaps to exaggerate the guilt of others.
7 In this particular case and in Mr. Borovcanin's interview the
8 Prosecution yesterday told us that on occasion there were interpretation
9 problems, as far as I have understood, certain problems were resolved,
10 given that there was a revised translation that was subsequently done.
11 But the problem of interpretation affects to a significant extent the
12 veracity of Mr. Borovcanin's statement, because during this interview the
13 interpretation was sometimes incorrect. The Prosecution told us quite
14 clearly that on occasion the question put had been altered as a result of
15 the interpretation.
16 So we have a question and an answer that does not completely
17 correspond to the question posed. In my opinion, this is extremely
18 important, because Mr. Borovcanin's answer could concern a different event
19 or a different date than the events and dates referred to in the question
20 and sometimes one may have the impression that Mr. Borovcanin is being
21 evasive or is failing to respond.
22 JUDGE AGIUS: Yes. I hate to interrupt you like this, Madam
23 Fauveau, but the -- our concern is that we try to approach this first
24 question to you in a -- from a general approach and not specifically with
25 reference to particular parts of the Borovcanin team, et cetera. So you
1 could -- we appreciate what you have, of course, submitted, but we suggest
2 that you try and go straight to the general issue from a general point of
3 view as to whether legally a statement by one accused against another
4 co-accused should have any bearing, any probative value vis-a-vis that
5 co-accused or co-accuseds.
6 MS. FAUVEAU: [Interpretation] Mr. President, I'll follow your
7 advice. All I wanted to say is that I believe this question of
8 interpretation is a general issue, but I will move on to another subject.
9 Obviously in my opinion an interview of a co-accused can't be
10 admitted in this case against other co-accused who also don't have the
11 right to cross-examine. I believe that the reference to Mr. Babic's case
12 is quite different because Mr. Babic testified before the Chamber and in
13 fact -- well, there was no cross-examination, but at least there were
14 certain procedural guarantees.
15 As far as this interview is concerned, well, it's a Prosecution
16 interview, and there is no guarantee that this interview fully corresponds
17 to a statement that would have been given before the Court. What I want
18 to say is that I don't want to reproach the Prosecution for having
19 conducted this interview as part of their investigation in order to be
20 able to use the material in the course of their investigation, but if such
21 an interview had been conducted before your Court, before your Chamber,
22 you would never have allowed a question to be put five times or a question
23 to be leading or for the Prosecution to provide advice, perhaps in good
24 faith, but advice provided to Mr. Borovcanin.
25 What I want to say is quite simply the following: The form of the
1 interview is such that in my opinion it should not be admitted.
2 MR. McCLOSKEY: Objection, Your Honour. She's going beyond the
3 question what you've already asked her and she's attacking the interview,
4 which is -- I'm not sure she has standing to do that either and it's --
5 JUDGE AGIUS: Again, Madam Fauveau, please, we made it clear that
6 we want submission -- submissions on this issue, namely just one simple
7 straightforward legal question. In this Tribunal, if a -- an accused
8 person makes a statement which -- in which he attributes acts or conduct
9 to other co-accused, does his statement have probative value? Can it be
10 used, basically, if it has probative value at the end of the day, against
11 the other co-accused? This is what we want to hear, and the reason is
12 that as has been stated, the practice varies from country to country. The
13 issue as such is relatively new to this Tribunal, and we would like know
14 what your respective positions are so that we will then be able to decide.
15 MS. FAUVEAU: [Interpretation] Mr. President, I completely agree
16 with you, but the problem is that the form of a statement, of an
17 interview, is also an important matter when it comes to deciding on the
18 probative value and when it comes to deciding on its admissibility, a
19 priori, I am against this because I don't have the right to cross-examine
20 this witness. I don't have the right to examine, to cross-examine this
21 form of evidence.
22 If I can just say that I'm against this without explaining why,
23 I'll stop there, but if we're referring, for example, to civil law
24 countries, well one must be aware of the fact that such a statement
25 doesn't even -- such a form -- such a statement in such a form don't exist
1 in civil countries. We can't refer to continental countries, because
2 there, everything is before Judges where there aren't any leading
3 questions, there aren't repetitive questions. An accused doesn't follow
4 the framework of questions and responses. He just gives a statement,
5 narrates a story and finally if there are questions at the end, it's
6 within the framework of a certain procedure. There are no leading
7 questions, there are no questions that raise the issue of the form of an
9 So that's why I wanted to tell you that my thought that this
10 interview, apart from my general objection that -- apart from my general
11 objection --
12 JUDGE KWON: Madam Fauveau, the interpreter seems to have a
13 problem -- grasp with you, but I understand your point, but I think we
14 may come to the issues you like to discuss at the second point, but for
15 the first point, we'd like to confine the discussion to the issue whether
16 the -- one of the state -- statement of one of the accused can be used at
17 all against the other co-accused as a general matter of law when the
18 accused is not to be cross-examined.
19 JUDGE AGIUS: Exactly. I agree a hundred per cent with Judge
20 Kwon, and the question as to the form resorted to by the Office of the
21 Prosecutor in taking down statements is beyond discussion now. I mean,
22 that has never been in dispute here. It's not required. So I don't think
23 you should concentrate on that, although it may have its consequences, of
24 course. But you should concentrate basically on assuming that the
25 statement has been taken, assuming that the statement has been taken
1 voluntarily and according to the rules, assuming that in that statement
2 there are excerpts or there are parts where other co-accused are
3 attributed responsibility or there are -- there is information in relation
4 to other co-accused, can those parts of the statement of the accused be
5 used by the Trial Chamber in regard or vis-a-vis other co-accused.
6 This is what we need you to address for the time being. And the
7 reason is very simple. It's not yet been finally determined by -- by this
8 Tribunal. The only decision that there is bypasses really the issue and
9 doesn't address it, and -- and we are a Tribunal that is international and
10 does not necessarily stick to one or more of the systems existing in the
11 world. So this is why we seek your contribution in this debate so that we
12 will come out of it more enlightened than we started in the first place.
13 MS. FAUVEAU: [Interpretation] No, Mr. President. In my opinion it
14 can't be used. Quite simply, and I'll be very brief, because we don't
15 have the right to cross-examine, and there are no procedural guarantees.
16 And I'm not referring to Mr. Borovcanin's interview. I'm referring to
17 this case in general. The Prosecution conducts an interview with an
18 accused. There are no guarantees, no procedural guarantees that are
19 necessary in all systems and that includes this system. There are no
20 procedural guarantees when the Prosecution conducts an interview and when
21 it comes to the rights -- the protection of rights of others.
22 In the Prosecution's interview we are dealing with the rights of
23 the person interviewed if the person is a suspect, but there are no
24 guarantees so that the rights of others are respected and so that this
25 statement, this interview, fully corresponds to the truth and fully
1 corresponds to the facts.
2 JUDGE AGIUS: And I put to you the same question I put to
3 Mr. McCloskey. What if ultimately you -- it will be possible for you to
4 cross-examine the -- the accused making the statement? Would your
5 position change? Because if the basis of your position is merely the fact
6 that there is no right or no possibility for you to cross-examine the
7 accused making the statement, then if that possibility emerges or comes
8 into being, would the legal scenario change or remain the same?
9 MS. FAUVEAU: [Interpretation] As far as I'm concerned, yes. Yeah,
10 the solution would be different, but not completely different, because in
11 this case the accused would become a witness, and I believe that this
12 preliminary interview could be used as any other preliminary statement of
13 any other witness. Insofar as the party calling the witness, it would be
14 in a limited scope and for us it would be in a totally different scope.
15 If Mr. Borovcanin chose to testify, he would be called by his
16 counsel, and obviously the Prosecutor cross-examining this witness could
17 use this interview, which would be logical. But as long as we don't have
18 the right to cross-examine, I believe there is no legal ground that would
19 allow the use of this interview with respect to the other co-accused
20 without prejudice to their rights.
21 I just want to add that I'm not only concerned about the acts and
22 conduct of the co-accused but the total picture that this creates, because
23 it deals with the factual basis of certain criminal acts that our clients
24 are charged with. And if we don't have the right to cross-examine and
25 this picture created by the interview is false, is not true, I believe it
1 would create -- it could create irreparable damage to the other co-accused
2 even if it doesn't directly concern their acts and conducts.
3 JUDGE PROST: Oh, I'm sorry. I was listening in French. I'm
4 sorry. My apologies. Can you tell me what difference you would draw
5 between this out-of-court statement, hearsay statement, where the maker of
6 the statement is not available for cross-examination, assuming that's the
7 case, and other out-of-court hearsay statements where they are admissible,
8 albeit you don't have the opportunity to cross-examine the actual maker of
9 the statement since hearsay is admissible in this Tribunal? What
10 distinguishes this particular statement?
11 MS. FAUVEAU: [Interpretation] Your Honour Judge Prost, I believe
12 this Tribunal of course admits hearsay evidence, and I'm completely used
13 to that, although not in my country, but the difference -- the distinction
14 I wanted to draw -- I'm sorry, I can't see you -- goes to the details of
15 this particular interview. That's why I'm going into the details, because
16 I believe them to be very important. And they distinguish this particular
17 interview from other out-of-court statements that the Court may admit
18 without allowing cross-examination.
19 JUDGE AGIUS: I thank you, Madam Fauveau.
20 Who wishes to go next? Mr. Josse? I mean, I'll let you fight it
22 MR. MEEK: Thank you, Mr. President. Thank you, Mr. Josse. I
23 will be very brief.
24 Under question one whether the interview is admissible what
25 probative value it has against any other accused that are mentioned or
1 might be mentioned, none. Absolutely none. Very simple. Because this is
2 an unsworn statement made by a co-accused at a time that he was either
3 told he was a suspect or was going to be indicted or he believed that he
4 was going to be indicted.
5 Further, this statement was made long after the joint criminal
6 enterprise had ended. It wasn't made in the course of any joint criminal
7 enterprise if one even existed. Next, it's obvious that an individual who
8 is giving a statement to the Office of the Prosecutor or to the government
9 or to the Prosecutor here or in any other country knowing that he may get
10 indicted has a very large motive to shift the blame from himself to others
11 to protect himself. That -- the credibility of that declarant, the
12 statement he makes will absolutely be untested. If it's admissible and if
13 it is admissible and given probative value against any accused who might
14 be mentioned in that statement, again no chance to cross-examine, no
15 chance to confront the witnesses against them, no chance to test the
16 credibility of the declarant.
17 Since we can't, Your Honours, we can't cross-examine this paper,
18 that means that my client or any other accused here in this courtroom who
19 is affected by the statement of Borovcanin, if it comes in, it means that
20 their right to effective assistance of counsel has been denied.
21 And further and lastly, Your Honours, and very importantly, if you
22 make this ruling, we won't have the right to confront. We won't have the
23 right to cross-examine. We won't have the right to the credibility and
24 test. And what that will do, it will have -- effectively it will shift
25 the burden of proof from the Prosecution to the accused. That's my
1 submission as short as I can make it, Your Honour.
2 JUDGE AGIUS: You also have failed to address the two points or
3 the three points that were raised by us. Number one is precisely the
4 eventuality of your being able to cross-examine the accused, would that
5 change the scenario?
6 Number two is this Tribunal hearsay is allowed. A statement made
7 or released by one accused in the parts that he mentions other accused,
8 other co-accused, those parts are hearsay, and that would be hearsay and
9 therefore would, as explained by Judge Prost, be admissible under our
10 rules of evidence and procedure.
11 And thirdly, the point also made by Judge Kwon.
12 So you can address these issues. Would the scenario -- for
13 example, is it important at all for you or to you the fact that while in
14 your country, for example, hearsay, and in my country hearsay evidence
15 would not be admissible, in this Tribunal it is. Does it have any
16 importance for you or not?
17 MR. MEEK: No, no. It doesn't, Your Honour, and I'll tell you
18 why. I thought I did. Let me explain it one more time. This is a
19 special kind of hearsay. This is a hearsay coming from a co-accused.
20 This is hearsay that is obviously coming from a person who has a motive, a
21 very distinct motive to shift the blame from himself to others. So for
22 that reason it's different.
23 Now, the other question. If the declarant, Mr. Borovcanin,
24 decides to take the stand then we wouldn't be having this discussion in my
25 opinion because he would be subject to cross-examination, confrontation,
1 and we could test his credibility. However, however, I think you must
2 assume that he will not testify, and therefore you must assume if you
3 allow this, you do what the Prosecution asks of you, then my client and
4 many other accused, perhaps, are going to lose their right to a fair
5 trial, their right to confront and cross-examine, their right to effective
6 assistance of counsel and the burden of proof will be shifted from the
7 Prosecution to the accused.
8 JUDGE AGIUS: Yes, but the purpose of the whole -- of the question
9 that was put to you basically is this: Do you allow -- a question put to
10 you, all of you, was if the Borovcanin interview is admissible --
11 everything is predicated on this, okay? What probative value, if at all,
12 does it have with reference to other accused other than Mr. Borovcanin?
13 The question is: If the fact as to whether Mr. Borovcanin will
14 testify or not is unknown and will remain unknown until we come to the
15 crucial moment, if that is the case do you allow for the possibility from
16 a legal point of view that any decision as to whether the statement made
17 by Mr. Borovcanin in relation to vis-a-vis other co-accused can remain in
18 limbo until the moment we finally know whether you have the possibility of
19 cross-examining that witness -- that accused or not, in relation to the --
20 to the statement.
21 MR. MEEK: That's a little bit different question than I
23 JUDGE AGIUS: Yes, but the purpose of why we have put to you
24 whether you make any distinction between one and the other is precisely
25 because it could -- could have a bearing. We haven't decided anything of
1 course as yet.
2 MR. MEEK: My suggestion would be, Judge, and it's my position
3 that it can -- it can be, as you say, held in limbo. I don't know if
4 that's the correct phrase, but it certainly could be. There are, for
5 example, some passages that would just be redacted until such point in
6 time that Mr. Borovcanin, for example, decides to take the stand.
7 JUDGE AGIUS: That's another -- another issue for the discussion
8 for today. We'll come to that later. We'll come to at that later. I
9 think we have -- we have got the gist of your -- of your submission.
10 MR. MEEK: Okay.
11 JUDGE STOLE: I just wonder if any of the parties are in a
12 position to enlighten the Trial Chamber on the possible relevance of
13 jurisprudence from the European Court of Human Rights on Article 6 of the
14 European Convention on Human Rights on the principle of fair trial. I
15 know that there is jurisprudence on the question or -- under which
16 criteria a statement by a witness can be used in the case that he is not
17 available for cross-examination during the trial, and if there has been no
18 possibilities for the Defence before at pre-trial stage to -- to ask to
19 have -- to use the right to put questions to -- to the witness, the right
20 of contradiction, if there would be any submissions on that
21 jurisprudence. Thank you.
22 JUDGE AGIUS: Yes, Mr. McCloskey.
23 MR. McCLOSKEY: Yes. Your Honour, the case I cited is -- speaks
24 directly to Article 6, sections 1 and 3, and is a case from the European
25 Court of Human Rights. So it does speak directly to that and discusses
1 those -- those issues. It's the one case we could find on that -- on that
3 MR. MEEK: Thank you, Judge Stole. I would just cite for the
4 Court, there's another case. It's Luca, L-u-c-a, versus Italy. It's 2003
5 case at 36 EHRR 46. Another case is Unterpertinger versus Austria, 1986
6 case. Both of these cases are from the European Convention of Human
7 Rights and the European Court of Human Rights, and they do cite Article 6.
9 JUDGE AGIUS: I think this last one I'm familiar with. I don't
10 think it deals precisely with the point we are discussing. It deals with
11 something else that -- yes.
12 Yes, Mr. Josse. One moment, because ...
13 [Trial Chamber confers]
14 JUDGE AGIUS: Yes, Mr. Josse.
15 MR. JOSSE: I can come to Judge Stole's question in a few moments'
16 time, if I may. Perhaps I could begin by saying that there may be some
17 confusion, certainly there is on my part, between the use of the
18 expression "probative value" and "admissibility." And Mr. McCloskey very
19 carefully, and in my submission correctly drew a distinction between
20 whether something is probative and whether something is admissible. And
21 as I say, Your Honour, I had assumed that to be position, but
22 Mr. McCloskey, as I've already said, answered the question very carefully.
23 He went on in relation to, as he put it, the bigger question, the
24 admissibility question, and said that it's an issue that he would like to
25 brief in due course. I had rather assumed the Trial Chamber wanted to
1 hear oral submissions upon this today, in part because in order to deal
2 with question number two, which clearly has practical implications as to
3 how things are going to proceed next week, you need to decide on that
4 before we get to next week.
5 And so I will proceed on that basis, if I may, and make these
6 submissions: Your Honour, I'm sure the Court is well aware of the general
7 common law rule. The general common law rule was developed for good
8 reason, because it was thought unfair to a co-accused, and it was thought
9 unfair because it's worth remembering that at the interview of the
10 accused, the co-accused was not present nor represented when the accused
11 made the interview or made the statement, interview and statement being
12 interchangeable for this purpose. And so the account being given by the
13 accused was not capable of challenge.
14 And, Your Honour, my note goes on to deal with the very point that
15 Your Honour raised; namely, the position is, of course, completely
16 different if the accused in question, the one who gave the interview,
17 chooses to give evidence. Because if the accused chooses to give
18 evidence, then what the accused says is evidence in the case as a whole
19 and is evidence in the case of all the accused. And the co-accused,
20 through counsel, can, of course, cross-examine and challenge what the
21 accused has said.
22 However, in my submission, that does not, even in those
23 circumstances, render the interview admissible, unless and until the
24 accused adopts it in the witness box. If the accused adopts it and says,
25 "Yes, what I said in that interview is the truth," then it becomes
1 evidence against the co-accused, because at that point in time the
2 co-accused are able to cross-examine and challenge it.
3 If, on the other hand, the accused says, "What I said in the
4 interview is not true," not necessarily in whole but in part, then it
5 still doesn't become evidence for the very same reason, that at the time
6 that the accused made the statement or gave the interview, perhaps I
7 should say, the co-accused wasn't present and weren't in a position to
8 challenge it.
9 So that's how I contend the law should be in relation to that.
10 Your Honour, the fundamental objection, we contend, is that any
11 thought of admitting this statement against the co-accused would fall foul
12 of the very Statute. We say that Article 21(4)(e) would be breached,
13 which says: "In the determine of any charge against the accused, pursuant
14 to the present Statute, the accused shall be entitled the following
15 minimum guarantees in full equality, and is to examine or have examine the
16 witnesses against him and to obtain the attendance and examination of
17 witnesses on his behalf under the conditions as witnesses against him."
18 In reality, in our submission, this would contravene that very
20 So far as these Rules are concerned, Your Honour has rightly taken
21 me to Rule 89(D), and I don't intend at this point to say anything more
22 about it.
23 Your Honour, addressing the argument that this is a piece of
24 evidence that the Trial Chamber can assess and weigh at the end of the
25 proceedings, we contend that that is a submission that needs to be treated
1 with great caution. We, of course, acknowledge that the threshold for
2 admission of evidence in this Tribunal is a relatively low one, and in
3 particular that hearsay evidence is admissible.
4 But this Trial Chamber in particular has been very keen, I
5 contend, to keep an eye on that particular issue and has kept under very
6 close control the extent and degree to which evidence can be put in,
7 without it showing, A, it has some probative value and, B, as I say more
8 fundamentally, it fits within the rights of the accused, as I've already
9 described. And in my submission, it's, if I could use a colloquialism,
10 asking for trouble to admit this, simply because -- and say at the end of
11 the case, it will all come out in the wash and we'll work out exactly what
12 use to make of it and how it might help, because really what the Trial
13 Chamber need is to be quite clear as to what the Prosecution are saying
14 its particular use is going to be.
15 But I'm not going to stray on to that in any more detail because
16 the Trial Chamber has said that it doesn't want to deal with it in its
17 particular form today, and I'm quite content with that notwithstanding the
18 e-mail that I sent yesterday.
19 So, Your Honour, that leads me to deal briefly with the situation
20 in various national jurisdictions. The common law position is well known,
21 and --
22 JUDGE PROST: Mr. Josse, just before you go further, and I'm sure
23 you can anticipate my question at this stage. Underlying the common law
24 principle in addition to -- as a component, a big component, of the
25 unfairness concept is the fact that hearsay, out of court statements, are
1 not admissible, and that makes the common law rule very consistent in
2 terms of the effect of a statement of one accused on other co-accused.
3 But what is your submission in a Tribunal where hearsay statements
4 are admissible, albeit the nature of them goes to their weight? What
5 distinguishes this particular out of court statement from other forms of
6 out of court statements that are admissible in this Tribunal?
7 MR. JOSSE: Well, unless one is going to say, as Judge Kwon has
8 observed, that this statement is admissible through Mr. Graham, in other
9 words, that Mr. Graham is really the witness and is simply repeating what
10 Borovcanin has said --
11 JUDGE PROST: And let's operate on that perspective.
12 MR. JOSSE: Because otherwise, of course, it falls foul of Rule
13 92. It clearly doesn't fall into any of the criteria of Rule 92. But if
14 one is going to deal with it on that -- on that very basis, in other
15 words, it's a hearsay statement and why is this particular piece of
16 hearsay more admissible than any other, then I am bound to say I don't
17 have a particular answer to that -- to that very conundrum. I accept
19 Save for the fact that it's really an absurd situation, I contend,
20 because the very maker of the statement is available. He's sitting in the
21 courtroom, in fact. He's not compelled to give evidence under
22 Article 21(4)(g), and it's taking the hearsay principle to an absurd and,
23 above all else, unfair extreme. That's really what I can tell you about
25 I mean, hearsay evidence needs some degree of sensible and proper
1 and fair - I emphasise the word "fair" - regulation; and in particular,
2 this would not be a fair regulation for the reasons as I've just
3 described, and in particular for the submission I've made as to why Mr. --
4 what Mr. Borovcanin says is not capable of challenge by any of the
5 co-accused in this case.
6 That's the answer I give, but technically it could be said to be a
7 piece of hearsay evidence. However, if I could say this - and it's not
8 meant to be a threat or a war - but doesn't it invite the Defence, when
9 this comes to our phase of the case, to put in newspaper articles, for
10 example, by the bucketful suggesting in some way the things the
11 Prosecution allege didn't happen, putting in all sorts of hearsay
12 statements? For example, what about calling people, investigators who
13 have said, "I've spoken to "X" in the field." And "X" says, "It's
14 absolutely nonsense. This defendant wasn't at that place at that given
16 It's an invitation, in my submission, to allow the Defence to
17 basically play exactly the same game, dare I use that particular word. In
18 my submission, hearsay evidence needs the most careful and close
19 regulation by the Trial Chamber; otherwise, it becomes, one, a free for
20 all and, two, a very unfair trial.
21 Dealing briefly, if I may, with what Judge Stole said. I, too,
22 had a note in relation to the case that Mr. Meek referred of Luca and
23 Italy, and what was said in that case -- I'm not aware of Mr. McCloskey's
24 case. I'm not saying it don't exist, but I haven't read it. But what was
25 said in Luca that is relevant, and I can read it: "If the defendant has
1 been given an adequate and proper opportunity to challenge the
2 depositions, either when made or at a later stage, their admission in
3 evidence will not in itself contravene Article 6(1) and Article 6(3)(d).
4 That's obviously of the convention.
5 The corollary of that, however, is that where the conviction is
6 based solely or to a decisive degree on depositions that have been made by
7 a person whom the accused has had no opportunity to examine or have
8 examined, whether during the investigation or at trial. The rights of the
9 Defence are restricted to an extent that is incompatible which the
10 guarantees provided by Article 6.
11 I'm not going to spend very much more time on domestic
12 jurisdictions. I could, of course, talk about the law in England. I
13 based, understandably, many of the submissions I've already made on the
14 law in England.
15 In the United States, and no doubt Mr. Meek will correct me if I'm
16 wrong about this, the matter is governed by the Sixth Amendment of the
17 United States Constitution, where it says: "In all criminal proceedings,
18 the accused should enjoy the right to be confronted with the witnesses
19 against him," I'm paraphrasing it slightly, "and the Supreme Court has
20 held that in substitution for oral evidence, the maker of a statement can
21 only be admitted if two conditions are satisfied: First, the accused must
22 have been afforded the right to confront the witness at some stage, if not
23 at trial; and second, it must be shown the witness is unavailable to give
24 evidence at trial." And I've already dealt with the second point.
25 I also understand, Your Honours, and I'm certainly not an
1 authority on this, to put it mildly, but broadly speaking, the same law
2 applies in the Netherlands by -- by virtue apparently of Article 341,
3 subsection 3 of the Netherlands Code of Criminal Procedure. A statement
4 made by an accused is admissible only against the accused who made the
5 statement. And that's been apparently affirmed by the Netherlands Supreme
7 Before I sit down, I would like to deal with one other matter,
8 which both Mr. McCloskey referred to, and Ms. Fauveau as well, and that is
9 Mr. McCloskey's concession in relation to this matter in the Blagojevic
10 and Jokic case. And I would like if I may, in fact, to hand out that
11 concession, because it's all well and good for him to say, "Well, the
12 law's moved on and I made that concession based on the law as it then
13 stood," but it was unambiguous and a robust concession at that time.
14 And I'm going to hand out the filing. Normally, I would simply
15 have cited it in the course of an argument. If I could have a moment.
16 Yes. I'm told by Mr. Krgovic that it's time for the break. I'll
17 be about another five minutes.
18 JUDGE AGIUS: If you have only got five minutes left, I think we
19 can finish with your submissions; then we can have the break, of course,
20 with the indulgence of everyone here, and then we would like to know who
21 else would like to address the Trial Chamber on these issues.
22 So please proceed for about five minutes, and then we'll have the
24 MR. JOSSE: Yes. I'm grateful to Mr. Meek. It shows how
25 dangerous it is for an English lawyer to talk about American law.
1 Apparently, it was the Sixth Amendment to the Bill of Rights, not the
2 Constitution. I imagine to an American, quite an important difference.
3 But, Your Honour, I've handed up the filing of Mr. McCloskey,
4 dated the 30th of June, 2003, in the Blagojevic and Jokic case. I'm not
5 going to read through it all now, by any means. The relevant paragraphs
6 are paragraphs 13 to 21, and I would invite the Trial Chamber to read
7 those paragraphs carefully in due course, because Mr. McCloskey --
8 MR. McCLOSKEY: Could we get a copy of this scandalous document?
9 MR. JOSSE: Absolutely. I'm not going to read through it now,
10 Your Honour. Your Honour, the legal officer would like one. I do have
11 another copy.
12 And to some extent, in the course of this filing, Mr. McCloskey
13 doesn't just make the concession, but he explains why he's making the
14 concession, and I would adopt and endorse the very learned words of
15 Mr. McCloskey in this particular filing.
16 I think, as I say, I can save some time by not reading through any
17 of the relevant passages, but I would ask the Chamber to pay close
18 attention to it, and I ask Mr. McCloskey rhetorically, through Your
19 Honours, what exactly has changed since he made the clear and very fair
20 concession that he did in that particular case.
21 So, Your Honour, those really are the submissions that I make in
22 relation to this particular issue. If I can help further, I'd be only too
23 glad to assist.
24 JUDGE AGIUS: Thank you. Before we break, who else wishes to
25 address the Trial Chamber?
1 MR. ZIVANOVIC: I'd like to just for two minutes.
2 JUDGE AGIUS: Yes. Who else?
3 MS. NIKOLIC: [Interpretation] Yes, Your Honours. I would also
4 like to address the Chamber for about ten minutes. Thank you.
5 MR. LAZAREVIC: [Previous translation continues] ... very briefly
6 because basically this topic is more related to other co-accused than to
7 us, but we would like to heard, very briefly.
8 JUDGE AGIUS: Yes. Okay. Mr. Haynes.
9 MR. HAYNES: I may, too.
10 JUDGE AGIUS: So we stand a chance of not even finishing the first
11 the first question.
12 [Trial Chamber confers]
13 JUDGE AGIUS: Half an hour break.
14 --- Recess taken at 12.36 p.m.
15 --- On resuming at 1.11 p.m.
16 JUDGE AGIUS: So let's continue with this very interesting
17 discussion, which will not finish today because there are also other
18 points that we have indicated to you we would like to hear submissions
19 upon. That will be tomorrow, of course, again, 9.00 in the morning.
20 After Mr. Josse, who would like to go next? Mr. Zivanovic.
21 MR. ZIVANOVIC: Thank you, Your Honour. I'll try not to be
22 repetitive, and I'll try to be very brief. So I just --
23 JUDGE AGIUS: You are a wise man, because you have anticipated the
24 consequences, Mr. Zivanovic.
25 MR. ZIVANOVIC: I just received my submission on the admissibility
1 of the parts of statements of an accused related to the other accused.
2 This is multi-accused trial, and it implies that the rights of all accused
3 must be respected. It includes the right of the accused not to testify in
4 his own trial, in his own case, and the right of the other accused to
5 cross-examine the witnesses against him.
6 It is our position that the statement is admissible just if the
7 rights of all co-accused are respected, unless the nature of cause arises.
8 In this case, in the case that the lack of cross-examination
9 results from the right of the other co-accused, the right not to testify
10 in his case, such statement could not be admissible because it would
11 violate the rights of co-accused. It is our position. Thank you.
12 JUDGE AGIUS: Thank you, Mr. Zivanovic, for repeating but not
14 Who is next? I understood that Mr. Lazarevic wanted to address
15 us. Mr. Haynes wanted to address us. Ms. Nikolic. Who wishes to go
17 Mr. Lazarevic.
18 MR. LAZAREVIC: Yes, it is very brief one. There is one thing
19 that I believe Trial Chamber should have -- should take into consideration
20 when assessing all the arguments that have been raised regarding this
21 issue, and that's the nature of the indictment against not just
22 Mr. Borovcanin but against all the accused.
23 This is a case with multiple accused but also case in which they
24 are all charged with participation in a joint criminal enterprise, and I
25 believe that these -- these facts should be taken into account when
1 assessing all these arguments. Each and every of the accused is charged
2 for acts and conducts of all the other participants in the joint criminal
3 enterprise. So I believe that it would be really unfair, even if
4 Mr. Borovcanin mentions himself in his interviews, which he does, I have
5 nothing to hide, that even such mentioning would have certain impact on
6 other co-accused.
7 JUDGE AGIUS: Thank you, Mr. Lazarevic.
8 Ms. Nikolic. Or Mr. Bourgon. I don't know who had the intention
9 of addressing us.
10 MR. BOURGON: Very quickly, Mr. President. We support and join in
11 the submissions that have been expressed so far with respect to the
12 conclusion that anything -- any probative value which can be attached to
13 parts of the statement made by one accused in this case should not be
14 considered against the other accused. We limit our submissions to the
15 fact that the important issue is acts and conduct of any of the
16 co-accused; and secondly, that this is a fair trial issue based on the
17 right to confront the source. And the last thing is what is important to
18 us is the reliability of the source.
19 Thank you, Mr. President.
20 JUDGE AGIUS: Thank you, Mr. Bourgon.
21 Yes, Mr. Haynes.
22 MR. HAYNES: Very, very briefly, Mr. President.
23 The position in the law of North America, if -- if the Canadians
24 and US citizens don't mind being lumped together for those purposes
25 appears to me to be properly summarised as this --
1 JUDGE AGIUS: I need consultation.
2 MR. HAYNES: Incriminating inculpatory extra-judicial declarations
3 of a co-accused made in the absence or without the knowledge of the
4 accused are inadmissible in evidence in a criminal trial to prove the
5 guilt of one other than the declarant. That, I can confirm is the
6 position in the common law jurisdictions with which I'm familiar.
7 The European Court of Human Rights in the case of Luca and Italy
8 said as follows and it seems to be precisely the point that Judge Stole
9 has in mind: If the defendant has been given an adequate and proper to
10 challenge the depositions either when made or at a later stage, their
11 admission in evidence will not in itself contravene Article 6. The
12 corollary of that, however, is that where a conviction is based solely or
13 to a decisive degree on depositions that have been made by a person whom
14 the accused has had no opportunity to examine or to have examined whether
15 during the investigation or at the trial, the rights of the Defence are
16 restricted to an extent that is incompatible with the guarantees provided
17 by Article 6.
18 And I submit that the practice of this Tribunal to date as
19 evidenced by the concession of Mr. McCloskey in a previous trial
20 concerning the same facts all point in the same direction, that the rule
21 at common law, the rule in American law and the jurisprudence of the
22 European Court of Human Rights has spoken with one voice for many, many
23 years now.
24 Of course this is a Tribunal that admits hearsay evidence but my
25 submission in answer to Judge Prost's question is really this: Interviews
1 under caution of suspects are a separate and very special category of
2 hearsay evidence which are governed by special rules and procedures in
3 virtually every jurisdiction all over the globe, including this one. To
4 adopt something Mr. Josse said, it is really stretching logic to the
5 extreme to say that a man who is sitting in a room with an investigator
6 and a chief Prosecutor, knowing that he is under suspicion for genocide
7 and crimes against humanity is in the real sense of the word willing to be
8 there and giving a similar account to somebody who might be making a
9 witness statement which is read out to a court.
10 There is very good reason why we guard against allowing into
11 evidence what people in those situations say about the acts, conducts, and
12 criminal conduct of others. It is easy and convenient for them so to do,
13 and that's why we've guarded against it down the years, and I submit there
14 is no good reason for doing so -- from departing from that rule now.
15 Of course the situation might be different as to the probative
16 value of those statements in the interview if the declarant, in this case
17 Mr. Borovcanin, gives evidence. But let's cross that bridge when we get
18 to it. And I've been involved in trials of this sort for well over 20
19 years now, and the way in which we deal with that is we present a redacted
20 or edited version of the interview at this stage, and if Mr. Borovcanin
21 goes into the witness box, Mr. McCloskey could, without any sensible
22 objection, produce the full version of the interview and cross-examine him
23 on everything he had to say about the other accused in the dock.
24 Those are my submissions.
25 JUDGE AGIUS: Thank you. Yes, Mr. -- before -- before I give you
1 the floor, Mr. McCloskey.
2 Mr. Haynes, reference to the Luca versus Italy case.
3 MR. HAYNES: Yes.
4 JUDGE AGIUS: What inferences if at all do you draw from the use
5 by the European Court of Human Rights of the words where a conviction is
6 based solely or to a decisive degree on depositions of a person, et
7 cetera, solely or a desire -- what difference do you draw in relation to
8 those instances where the conviction is not based solely or to a decisive
9 degree on -- on such a statement but such a statement is one other fruit
10 in the basket?
11 MR. HAYNES: A valid point. The difference of course is with Luca
12 versus Italy, it is a decision of the European Court of Human Rights based
13 on the conviction of a man, so necessarily they're looking back on
14 events. What I draw from that case is the principle that Article 6 --
15 excuse me a minute. I've lost it on my screen here. Article 6 really
16 forbids provisions which lead to the conviction of people where they do
17 not have the rights to a fair trial enshrined therein and set out in the
18 decision. If that decision, I submit, had been made before Mr. Luka had
19 stood his trial, his trial would not have take the same course, and the
20 evidence against him would not have been adduced. That's what I submit.
21 JUDGE AGIUS: Thank you. Thank you Mr. Haynes. Mr. McCloskey.
22 MR. McCLOSKEY: If I could speak briefly to these cases and the
23 Strasbourg court decisions. I'm learning more as we go because we've --
24 as you know, we're -- this was relatively new but I do think the
25 Strasbourg court and the Convention is extremely important authority for
1 you to look at. The Article that they're speaking of, Article 6 at
2 section 3, and it says, everyone charged with a criminal offence has the
3 following minimum rights, and then section D, to examine or have examined
4 witnesses against him and to obtain the attendance and examination of
5 witnesses on his behalf under the same conditions as witnesses against
7 So the right to cross-examine witnesses.
8 In addition, in a September 4, 2007, case of Gosa versus Poland,
9 the court points out something that they have apparently reiterated quite
10 a bit. 942007.
11 THE INTERPRETER: Microphone, please.
12 MR. McCLOSKEY: I can't imagine the European Court uses US dating,
13 but thank you for bringing me to the present. That's -- all right. The
14 point I wanted to make was that on page 15 of the decision it says, "The
15 Court reiterates that the admissibility of evidence is primarily a matter
16 for regulation by national law and as a general rule it is for the
17 national courts to assess the evidence before them. The Court's task
18 under the Convention is not to give a ruling as to whether statements or
19 witnesses were properly admitted as evidence but, rather, to ascertain
20 whether the proceedings as a whole, including the way in which evidence
21 was taken, were fair."
22 And that goes directly to what I had said earlier that it is
23 your -- that's what you're determining under 89(D), I believe.
24 Now, the case that I spoke to earlier from 2007, Carta, is in
25 French, but I have a rough outline of the holding that goes directly to
1 your question, Mr. President, and that is a case where -- it was an
2 Italian case where a statement of a co-accused was allowed to be used
3 against another accused, and that found its way to Strasbourg and the
4 Strasbourg court found that that was not a violation of Article 6, and --
5 and in their holding states that it had not been the sole piece of
6 evidence to convict the person, that it had been corroborated by other
7 evidence, and that the other accused had had the right to challenge the
8 information that came out of that interview.
9 This same holding was part of the Gosa versus Poland case that I
10 mentioned, and last -- but I should state before that the Italian case,
11 Italy changed its law and said this -- that you could not use statements
12 against co-accused. So Italy fixed their -- in their view, their domestic
13 situation, but the Strasbourg court said it did not violate Article 6. So
14 just to make that -- that clear.
15 And the -- we found a case out of Norway. We didn't find any
16 cases from Malta, unfortunately, but we did find a case from Norway that
17 is called case of Kaste and Mathisen versus Norway against -- 2007, and in
18 that case they found that the statement of the co-accused went to -- was
19 the sole bit of evidence, so they found it did violate Article 6. So --
20 and we will give you those cases, and I think in the future you'll find
21 that this is a very important source of authority, because it tracks so
22 closely with who we are and what we're trying to do.
23 Though I also wanted to point out that some of the factors we're
24 looking at, you really won't be able to evaluate until you see the whole
25 interview. So -- and I imagine that you're not going to be making this
1 decision regarding whether or not the interview can be used against other
2 accused until you've had a chance to see the whole interview, though that
3 hadn't -- we haven't discussed that. But in order to determine the
4 information in that interview, I can tell you it's not -- it's not the
5 sole evidence about anything. In fact, just generally I don't believe
6 Mr. Borovcanin blames anyone is my recollection of it, but he does mention
8 So I believe that this will be decided on a later date when
9 everyone has had a chance to more fully brief it. But I do have question
10 two in front of me, and we can get directly to that.
11 JUDGE AGIUS: Can we close the discussion on point one, question
13 Yes, Madam Fauveau.
14 MS. FAUVEAU: [Interpretation] Mr. President, I just want to make
15 something clarify -- clarify something. That Italian case I don't think
16 refers to a statement of a co-accused but a witness who became
17 inaccessible during the hearing. In my opinion, therefore, it is a
18 completely different situation and a completely different matter, because
19 my argument was that a statement or an interview of the co-accused is
20 completely different from any other statement by any other witness.
21 JUDGE AGIUS: We'll into these cases when -- when the time
23 As regards my country, you're not going to find anything because
24 the rule is absolute, and of course the Prosecution would try to obviate
25 by separating co-accused and trying them separately, and in that case the
1 other issue will arise whether the statement of an accomplice can be the
2 basis, the sole basis for a conviction unless it is -- in case it's not
3 corroborated, and our law specifically states that it needs corroboration
4 except in certain -- in relation to certain crimes, drug-related crimes.
5 Okay. So I think we can safely go to the second part. And the
6 second question, which shouldn't engage us too much, is the following: If
7 we were to determine that the evidence should have probative value with
8 respect to the other accused, what would be the permissible scope of the
9 submissions on and cross-examination of Witness number 3 by the other
10 accused at the stage of the proceedings where admissibility is to be
13 MR. BOURGON: Mr. President, I'd just like to intervene at this
14 time. There are two quick issues we need to bring forward today that are
15 unrelated to this second debate, and this will require five minutes. Just
16 to let you know, Mr. President.
17 JUDGE AGIUS: Thank you.
18 [Trial Chamber confers]
19 JUDGE AGIUS: Yes, Mr. Bourgon.
20 MR. BOURGON: The first issue, Mr. President, is -- refers to the
21 Defence submissions concerning the admissibility of proposed intercept
22 evidence. After filing our submissions late on Monday night, I found out
23 that I filed the wrong annex with my motion. I informed the Prosecution,
24 and the only change is in the last column of that annex, and we'd just
25 like to inform the Court that we will be filing the proper annex that
1 should have been filed at that time.
2 Thank you, Mr. President.
3 JUDGE AGIUS: Thank you. I take it there would not be any
4 objection on your part, Mr. McCloskey.
5 MR. McCLOSKEY: No, Mr. President.
6 JUDGE AGIUS: All right. Yes. Ms. Nikolic.
7 MS. NIKOLIC: [Interpretation] Thank you, Your Honour. Just very
8 briefly I would like to address the Chamber related to the submission, the
9 written submission we filed regarding Witness 108 and the accompanying
10 material and the possible hearing of this witness next week.
11 Our Defence is investing great efforts to complete our
12 investigation and prepare properly for the cross-examination of this
13 witness. We have heard a great number of witnesses and acquired a
14 documentation but we still have a lot of work to do in order to be
15 adequately prepared for this cross-examination. I will be completely
16 frank with the Chamber, as I have been with my learned friends in the
17 Prosecution, and I would appreciate it if we could move into private
18 session for a minute.
19 JUDGE AGIUS: Yes. We'll go into private session.
20 [Private session]
11 Page 13753 redacted. Private session
8 [Open session]
9 MS. NIKOLIC: [Interpretation] As for the submission filed by the
10 Defence team of Mr. Nikolic regarding the 68 material before the
11 questioning of this witness I hope we will receive today by the end of the
12 day what else has been discovered in this case. Our Defence withdraws the
13 submission and we will continue to discuss with our colleagues from the
15 The time we need to complete our investigation, which is time and
16 effort-consuming is such that it would be actually adequate to bring this
17 witness after the summer recess.
18 JUDGE AGIUS: Thank you, Madam Nikolic.
19 Mr. McCloskey.
20 MR. McCLOSKEY: I have nothing further. I think I have said what
21 I needed to say.
22 JUDGE AGIUS: Yes, but that was in private session. We are now in
23 open session.
24 MR. McCLOSKEY: We have had a chance to speak with counsel, and we
25 understand their concerns, and we have agreed not to object and to leave
1 this matter in the -- in your hands. We know that it's -- it's a
2 difficult situation to -- having witnesses not -- not here, but as I say,
3 we have good communication and a good relationship, and I think in the end
4 that has benefited this trial, and it's the speed and the efficiency by
5 which we've been able to work together.
6 JUDGE AGIUS: And where would that leave us, Madam Registrar? If
7 we could have the list of witnesses for this coming week. Tuesday.
8 [Trial Chamber and court deputy confer]
9 JUDGE AGIUS: We'll give you a decision later.
10 We have still got six minutes. Perhaps you can start on the
11 second posit that we made, Mr. McCloskey.
12 MR. McCLOSKEY: Yes, Mr. President. I think I can deal with that
13 in the time. And as I think I alluded to --
14 JUDGE AGIUS: One moment. Let me ask you this. If Witness 108
15 who was due to testify on Tuesday, start testifying on Tuesday, will come
16 later, would you still wait to get Mr. Graham to testify until Friday?
17 Wednesday. I see, I see, I see. Okay.
18 MR. McCLOSKEY: We may be able to move that -- move him up. We're
19 not sitting Monday; is that correct?
20 JUDGE AGIUS: Does he still work with the -- with the OTP or --
21 MR. McCLOSKEY: No. He's with the -- I believe the Manchester
22 police department. But he will be here over the weekend, and I will -- I
23 think we should be able to be prepared on Tuesday.
24 JUDGE AGIUS: Okay.
25 MR. McCLOSKEY: One thing I also forgot to mention regarding 108,
1 it's Mr. Nicholls is handling that witness. We need to contact that
2 witness and see, because we brought him here once. We need to make sure
3 that he's okay with that -- okay. All right. We've done that, and he is
4 okay with that, so we're all right.
5 JUDGE AGIUS: Okay. So you can remain standing, Mr. McCloskey.
6 Your position on number two.
7 MR. McCLOSKEY: Yes, Mr. President. I think as I alluded to, was
8 it yesterday or a previous day, that with the particular law and our
9 particular institution, I -- I don't think the traditional notions of
10 standing need to be applied as strictly as they may, so I would not be
11 objecting to cross-examination by any party that felt they had an interest
12 in cross-examining Alistair Graham, but I would request that -- that it be
13 a legal interest and that legal interest be identified in advance of the
14 cross-examination so that it is something that we're prepared to deal with
15 as is normal for, you know, items associated with law, and it not become a
16 general attack on Mr. Graham. He was the lead investigator after Mr. Ruez
17 for a few years, and as you can imagine, there may be Defence counsel that
18 want to go into other areas. But if we can limit it to the legal issue at
19 hand, and as other people feel affected by what may have come out of that
20 interview, I don't have an objection to that, and that would be my
22 JUDGE AGIUS: Thank you, Mr. McCloskey. Who wishes -- go ahead.
23 JUDGE PROST: Mr. McCloskey, you had mentioned the other day a
24 distinction between matters that are personal to Mr. Borovcanin versus
25 matters more general such as compliance with the rules. I'm taking it now
1 you're not necessarily insisting on that strict division and that you
2 would not be taking a position with respect to general questioning by the
3 Defence on all such issues.
4 MR. McCLOSKEY: I would -- I would insist on relevance, I think,
5 and to the degree that I -- and I've spoken to counsel after that and
6 heard their view on -- on, for example, whether or not there was coercion
7 involved. And if it was an issue that was very particular to -- to
8 Mr. Borovcanin and counsel and a position they were taking, I think it may
9 not be relevant for others to -- to get into that, in which case I may
10 object, but I think your discretion to determine what is relevant and what
11 is not is -- is fine, and I wouldn't go any further than that.
12 JUDGE PROST: Thank you.
13 JUDGE AGIUS: Thank you. Which Defence team wishes to address
14 this posit? Yes, Mr. Josse.
15 MR. JOSSE: Your Honour, I'd be lying if I said I was too
16 concerned about this, but having said that, to use one of my favourite
17 expressions, what's good for the goose is good for the gander.
18 If the Trial Chamber decide that this interview is or may be
19 admissible against the co-accused, then in my submission we are entitled
20 to challenge it in any way we so choose. The Prosecution really cannot
21 have their cake and eat it. They can't on the one hand say it's evidence,
22 it's evidence against you, your client, but you can't then challenge it
23 root and branch, and --
24 JUDGE PROST: That's three expressions in two sentences,
25 Mr. Josse.
1 MR. JOSSE: Yes. Apologies to the interpreters, because I suspect
2 I'm not making their life very easy at the moment.
3 Your Honour, if I could take an extreme example, we would submit
4 that we would be entitled to ask for a voir dire on the admissibility of
5 this particular interview and that Mr. Borovcanin would be a compellable
6 witness for the co-accused in the course of that voir dire, that voir dire
7 being a trial within a trial and not being part of the main trial, and
8 indeed if the Trial Chamber rule against us on one, then that's something
9 we'd contemplate on two.
10 JUDGE AGIUS: Yes. Thank you, Mr. Josse. Mr. McCloskey.
11 MR. McCLOSKEY: I'd anticipated this as a voir dire also, and I
12 don't -- and I am I'm not saying that -- or trying to suggest that they
13 can't challenge it as they can. Regarding Mr. Borovcanin, I will leave
14 that to another day.
15 JUDGE AGIUS: All right. And we have to leave our discussion to
16 another day as well. We are going to adjourn now until tomorrow morning
17 at 9.00.
18 Do you wish to address the Chamber, Madam Fauveau? Briefly,
20 MS. FAUVEAU: [Interpretation] Yes, Mr. President, very briefly,
21 and to -- I don't want to leave the impression that I wanted to mislead
22 you. When I spoke about that case that at the moment the witness gave the
23 statement, he was a witness. It was later he became a co-accused. I
24 don't want you to believe that I tried to mislead you.
25 JUDGE AGIUS: As I said, we will go through those judgements, at
1 least two of which I am familiar with in any case. So we stand adjourned
2 until tomorrow morning at 9.00.
3 --- Whereupon the hearing adjourned at 1.47 p.m.,
4 to be reconvened on Thursday, the 12th day
5 of July, 2007, at 9.00 a.m.