Tribunal Criminal Tribunal for the Former Yugoslavia

Page 15723

1 Tuesday, 25 September 2007

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 2.19 p.m.

5 JUDGE AGIUS: [Microphone not activated]

6 THE REGISTRAR: Good afternoon, Your Honours, this is the case

7 number IT-05-88-T, the Prosecutor versus Vujadin Popovic et al.

8 JUDGE AGIUS: I thank you, ma'am. All the accused are here.

9 The Defence teams, I notice the absence of Mr. Josse and

10 Mr. Ostojic.

11 Prosecution, it's same composition as yesterday.

12 All right. I understand that -- I need someone to write down the

13 Polish surname which I find difficult to pronounce and I want to make sure

14 that I pronounce it well.

15 Mr. Bourgon, I understand you have some preliminary issue to

16 raise.

17 MR. BOURGON: Indeed, Mr. President. Good afternoon,

18 Mr. President, good afternoon, judges, good afternoon, colleagues.

19 Mr. President, we have looked carefully at what took place yesterday

20 during the debates concerning the missing interview of 14, 15, 16, and 19

21 May 2003. And we believe, Mr. President, that further relief is required

22 for the following reasons. This interview, pursuant to the Rules, 42 and

23 43, should have been recorded. What the Prosecution told us yesterday, it

24 was a deliberate decision from them not to record this interview even

25 though it was conducted in the room in which the equipment was available

Page 15724

1 to conduct recorded interviews.

2 We believe, Mr. President, that based on the information that we

3 think came about in this interview, that simply saying that we do not have

4 an audio is not sufficient. We are of the view that the Prosecution must

5 have detailed notes of this interview which lasted four days, notes that

6 go way beyond the three-page information report that we have received and

7 we would ask, Mr. President, that the Prosecution be ordered to disclose

8 their notes of an interview which was conducted deliberately contrary to

9 the Rules of Procedure and Evidence.

10 Thank you very much, Mr. President.

11 JUDGE AGIUS: I thank you, Mr. Bourgon.

12 Mr. McCloskey?

13 MR. McCLOSKEY: This is the first request we've had for any notes

14 of any interview. I'll look into it and get back to us when I have a

15 chance to look into it.

16 JUDGE AGIUS: I thank you, Mr. McCloskey.

17 Now, we promised you that first thing today we'll come down with

18 our decision on your -- on the Defence joint motion, oral motion, for

19 certification to appeal from our decision of yesterday, which, apart from

20 confirming the existing protective measures, augmented same by decreeing

21 that the proceedings or the testimony of this witness will take place in

22 closed session. This is our oral decision.

23 In our view, the impugned decision relates to two issues: The

24 continuation or rescission of existing protective measures for Witness

25 116, and the augmentation thereof through the use of closed session.

Page 15725

1 For clarity, I shall consider each of these points with reference

2 to the two-pronged test for certification required and established by Rule

3 73.

4 Our decision not to rescind the protective measures is based on

5 the very particular facts before us relating to this specific witness. We

6 therefore do not consider that the issue of the continuation of these

7 measures, put in place by a previous Trial Chamber, is one that would

8 significantly affect the fair and expeditious conduct of the proceedings

9 or the outcome of the trial. While it is unnecessary to go further, we

10 are not of the opinion that the immediate resolution by the Appeals

11 Chamber may materially advance the proceedings either.

12 With the protective measures of voice and face distortion, as well

13 as pseudonym, the second issue relates to enhancing those protections by

14 the use of closed session proceedings. Again, the Trial Chamber's

15 decision on this point is premised entirely on the very particular

16 circumstances of this witness, including the concerns which he outlined to

17 the Trial Chamber yesterday when interviewed by us, combined with his

18 testimonial history in this Tribunal. Therefore, once again we are of the

19 opinion that the decision rendered does not raise an issue which meets

20 either of the prongs, the two prongs, for certification.

21 Finally, the Trial Chamber has further considered taking into

22 account the arguments advanced by the Defence yesterday, whether the

23 overall decision on protective measures for this witness is one which

24 meets the test for certification. We have done so assuming that the

25 witness is, as has been described by some of you, a very important

Page 15726

1 Prosecution witness. However, we have come to the conclusion that even

2 so, the decision to continue and augment his protective measures is not

3 one that can be said to affect the fair and expeditious conduct of this

4 trial. While public scrutiny is indeed an important protection, it is a

5 matter that must be considered in terms of the trial overall and not with

6 reference to a single witness. Accordingly, the joint Defence request for

7 certification is hereby being denied.

8 And I think we can now start.

9 Mr. McCloskey, when do you think you will be able to come back

10 with a reply for Mr. Bourgon?

11 MR. McCLOSKEY: Probably by this evening or certainly tomorrow

12 when I get a chance to look into it more.

13 JUDGE AGIUS: Please try not to delay it beyond early tomorrow,

14 please. Thank you.

15 I think you need to draw the curtains now.

16 You didn't tell me yesterday that you agree with our

17 interpretation of the protective measures, namely that there is no point

18 in having the facial distortion and the voice distortion once we will be

19 hearing the testimony in closed session. All right.

20 MR. McCLOSKEY: Yes. We agree with that, Mr. President. We do

21 have I think the pseudonym sheet so we have that pseudonym number but

22 otherwise, that seems fine. Also, and I have spoken to the Defence about

23 it, we have some exhibits that we plan to show this witness and we have

24 them in a binder in his language that we were going to provide to him so

25 he can have easy reference to them so we are not locked into e-court. I

Page 15727

1 don't think there has been any problem with that.

2 JUDGE AGIUS: I don't know. You need to tell me. Mr. Haynes?

3 MR. HAYNES: For my part I agree that there is no need for the

4 additional measures. There were two or three things and I apologise for

5 not raising them earlier. Firstly, I take it that in closed session there

6 is really no restriction on how we refer to the witness.

7 JUDGE AGIUS: No, no, no.

8 MR. HAYNES: It's perfectly okay to call him (redacted), et

9 cetera. Secondly --

10 JUDGE AGIUS: One moment, because I would tend to agree with you,

11 but --

12 MR. HAYNES: We are in open session at the moment?

13 JUDGE AGIUS: Oh, I see, yes.

14 MR. HAYNES: I'm very sorry.

15 JUDGE AGIUS: Okay. We will redact that. There is no one outside

16 but we will redact it for the purpose of delayed transmission in any case.

17 MR. HAYNES: The second point is an allied point. Although it

18 will be appropriate to refer to him by name during his evidence, will we

19 not need to assign a number to him for any further public documents? I

20 assume he'll be PW-109, will he?

21 JUDGE AGIUS: Yes. What's his number going to be?

22 MR. McCLOSKEY: I'm told 168.

23 JUDGE AGIUS: 168, okay. So that you will keep for your records.

24 MR. HAYNES: And the third point is, Mr. McCloskey referred

25 yesterday to the witness's ability to speak English. I understand he

Page 15728

1 speaks English rather well and if there is to be any debate as to the

2 propriety of any line of questioning and the sort, he will need to leave

3 the Chamber, I think.

4 JUDGE AGIUS: Okay. Thank you, Mr. Haynes. Yes, Mr. McCloskey?

5 MR. McCLOSKEY: Yes. That's why I mentioned that so that we knew

6 that. I don't think he speaks it well but I think he understands it

7 pretty well.

8 JUDGE AGIUS: All right. And this witness being who he is, and I

9 think I won't be wrongly anticipating anything, I would suggest,

10 Mr. McCloskey, while you are in direct, to avoid direct questions or

11 leading questions because, otherwise, we'll start having objections and

12 that would delay the proceedings. So try to avoid leading questions as

13 much as you can, please.

14 MR. McCLOSKEY: Yes, Mr. President, the first couple of questions

15 I always start with. In this situation, this is a little different, is

16 (redacted)

17 (redacted)

18 JUDGE AGIUS: That's not what I meant. It's when you come to the

19 basics of his testimony. I saw you, Mr. Bourgon. Do you wish to address

20 the Chamber?

21 MR. BOURGON: Indeed, Mr. President, concerning the documents that

22 will be given to the witness while he testifies, I do agree with my

23 colleague that this will make it much easier for him because he can feel

24 the document and use it. However, not everybody in the courtroom has the

25 paper copy and it makes a dig difference between what the witness is

Page 15729

1 looking at and what we can look at. I've got the paper copies of most

2 documents that the Prosecution has included on the list, but when we used

3 to work with this old system at least everybody received a binder and when

4 the Prosecution said that too, then everybody had the paper copy so we

5 knew exactly what the witness had in his hands. That would be much

6 preferable if my colleague wants to go back to the old system, that we be

7 provided with copies and that goes for everybody in the courtroom so we

8 know exactly what the witness is looking at. In the meantime if we can at

9 least whenever he's going to refer to a document, to ensure that it is on

10 the ELMO so we know exactly what he's looking at when he answers any

11 specific questions. Thank you, Mr. President.

12 JUDGE AGIUS: Thank you, Mr. Bourgon. Is there a reason why not

13 all the Defence teams have a copy of this folder?

14 MR. McCLOSKEY: Mr. President, the time and effort it would have

15 taken and this folder sometimes I vary from it, it's not something that

16 is --

17 JUDGE AGIUS: All right. Okay.

18 MR. McCLOSKEY: It's just convenience. I will not hurry through

19 this so that we try to get this on the screen. And if I'm going too fast,

20 please, let me know.


22 MR. McCLOSKEY: If we could -- we need -- I can see we need

23 another redaction from something I said, page 6, line 15.

24 JUDGE AGIUS: Yes. Madam Fauveau?

25 MS. FAUVEAU: [Interpretation] Your Honour, in order to avoid any

Page 15730

1 redaction whatsoever, could we perhaps move into private session?

2 JUDGE AGIUS: Yes. We are just going to do that. Let's go into

3 closed session straight away.

4 [Closed session]

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15 --- Whereupon the hearing adjourned at 7.01 p.m.,

16 to be reconvened on Wednesday, the 26th day of

17 September, 2007, at 2.15 p.m.