1 Monday, 10 March 2003

2 [Open session]

3 --- Upon commencing at 2.20 p.m.

4 [The accused entered court]

5 JUDGE AGIUS: Yes. Call the case, please.

6 THE REGISTRAR: Good afternoon, Your Honours. This is case number

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

8 JUDGE AGIUS: Thank you. Mr. Brdjanin, good afternoon to you.

9 THE ACCUSED: [No interpretation]

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

11 understand?

12 THE ACCUSED: [Interpretation] Yes, I can.

13 JUDGE AGIUS: Please take a seat. Appearances for the

14 Prosecution.

15 MS. KORNER: Your Honour, Joanna Korner, Julian Nicholls assisted

16 by Denise Gustin, case manager. Good afternoon, and may I before the

17 witness comes in, briefly raise one matter?

18 JUDGE AGIUS: Right. And good afternoon to you. Appearances for

19 Radoslav Brdjanin?

20 MR. ACKERMAN: Good afternoon, Your Honours. I'm John Ackerman,

21 I'm here with Milan Trbojevic, Barbara Baruch and Marela Jevtovic and I

22 also have a couple of matters to discuss.

23 JUDGE AGIUS: Thank you. Good afternoon to you. Let's start with

24 the Prosecution, then I also have something to raise in relation to the

25 document that has been left here for me.

1 MS. KORNER: I want to raise it as well. That's what my point is.

2 JUDGE AGIUS: All right. That's easier, then, yes, Ms. Korner.

3 MS. KORNER: Your Honour, it's the response to the Rule 92 motion

4 for Prnjavor which says no more than the defendant objects to the

5 treatment of two witnesses on the grounds that the statements do not

6 indicate their testimonies are cumulative of the testimony of viva voce

7 witnesses. Your Honour that's how we stated it in our original motion.

8 One, there is no indication why Mr. Ackerman states they are not

9 cumulative. And it is our submission that it simply must be more that is

10 required under the Rule than simply to say we want him for

11 cross-examination or it's not cumulative. Your Honour, in the light of

12 events in this case, it is absolutely vital that we should not have to

13 call witnesses viva voce unless absolutely necessary and Your Honour we

14 have already seen a number of witnesses arrive who were virtually not

15 cross-examined at all. Your Honour, the Rule states that a Trial Chamber

16 may admit, in lieu of oral testimony, which goes to proof a matter other

17 than the acts and conduct of the accused as charged in the indictment,

18 factors in favour of admitting evidence in the form of a written statement

19 include, and I emphasise the following words, "but are not limited to

20 circumstances" in which the evidence in question, and it gives a list.

21 Your Honour, if the Defence require us to call a witness who does

22 not go to acts and conduct of the accused, in our submission, there must

23 be a fuller reason given. Your Honour, I'm raising it now briefly. We

24 will not be going to Prnjavor now until after the break or continuing with

25 it so it will give Your Honours an opportunity to consider that.

1 Your Honour, the only other matter I wish to mention is this:

2 Strictly Your Honours have not yet ruled on Mr. Ackerman's application for

3 an adjournment as of this Friday.

4 JUDGE AGIUS: Yes, we have the decision ready. And I think it

5 will be filed either this afternoon or tomorrow morning. But the decision

6 is ready. And I think I will hear what Mr. Ackerman has to say. Yes,

7 Mr. Ackerman? I can advise you beforehand that we are going to grant the

8 adjournment so be prepared for it. Yes, Mr. Ackerman?

9 MR. ACKERMAN: Your Honour, I don't know if you want me to respond

10 to what Ms. Korner has said regarding --

11 JUDGE AGIUS: I would suggest so let me explain to you,

12 Mr. Ackerman, how I am reading your objection. You are saying defendant

13 objects to Rule 92 bis treatment of witnesses so and so, on the grounds

14 that their statements do not indicate that their testimonies are

15 cumulative of the testimony of viva voce witnesses.

16 MR. ACKERMAN: Yes.

17 JUDGE AGIUS: I find it a little bit -- not too vague but very

18 vague. Let's not use the adjective "too," but it's definitely very vague.

19 MR. ACKERMAN: Well, Your Honour, it was filed that way because

20 that was the contention made by the Prosecutor to justify 92 bis that it

21 was cumulative of the testimony of other witnesses and when you look at

22 the statements, it clearly is not, that there is significant additional

23 testimony and significant disagreement between witnesses as to events, and

24 with regard to -- I didn't -- I didn't do all the work on this. I had

25 someone else do it or we wouldn't have advanced this far but with regard

1 to at least one of the witnesses, that witness's statement is subject to,

2 I think, significant query on cross-examination as to its truth and

3 veracity and I just think ordinarily like, for instance, with Donji Vakuf

4 I objected to none of the witnesses because they did fit within what the

5 Prosecution suggested, but in this case these two witnesses do not, they

6 clearly do not, and if you would like me to file a supplemental response,

7 I would be delighted to do so to make it a little more specific as to what

8 it is that is the problem.

9 [Trial Chamber confers]

10 JUDGE AGIUS: There is agreement here that if you could amplify on

11 your response and explain yourself in some detail it will help us reach a

12 decision.

13 MR. ACKERMAN: You'll have it tomorrow, Your Honour.

14 JUDGE AGIUS: Because obviously, Mr. Ackerman you can't expect us

15 to tell you here or now, either you or Ms. Korner, whether we agree that

16 this is cumulative or not because we would be prejudging the issue so if

17 you can substantiate your statement, your objection, so much the better,

18 and then we can -- we promise you we'll be in a position to decide it

19 tomorrow. If you file it by tomorrow, we will be able to decide it by

20 tomorrow.

21 MR. ACKERMAN: I'll have it in your hands tomorrow, Your Honours.

22 I can do it this evening.

23 JUDGE AGIUS: In all fairness also, we have not had time to

24 discuss it amongst us so that's the position.

25 MR. ACKERMAN: The motion -- the response was actually filed --

1 well, maybe it was sent to the Registry about an hour ago or so.

2 JUDGE AGIUS: I wasn't aware of it. I only got to know about it

3 when we entered the courtroom. So, all right, that's -- that takes care

4 of that issue. Anything else you'd like to raise?

5 MR. ACKERMAN: Your Honour, I even hesitate to raise it but I

6 think I should. The events of last week have created significant trouble

7 and turmoil and distraction in the Defence of this case such that I was

8 able to devote very little time to the preparation of cross-examination of

9 this witness over the weekend because of all of the other issues that were

10 raised by the Registry's decision that needed to be dealt with, and were

11 dealt with throughout the weekend. I'm thinking of asking you to defer

12 the cross-examination of this witness because I have not had adequate time

13 to prepare but I don't want to make that request until I see how much I

14 can get done by tomorrow at this time. If I can be -- it's possible that

15 without additional distractions, I can be prepared by tomorrow at this

16 time to go forward. I would rather not do part of the cross-examination

17 and defer it. I'd either like to be prepared to do it all or ask that it

18 all be deferred, and I know that is an extraordinary application, but what

19 happened last week was an extraordinary event also, and right now, all I'm

20 doing is kind of giving you a head's up and that I haven't really made the

21 decision to make that request yet but it's something I'm certainly

22 considering making.

23 JUDGE AGIUS: Ms. Korner?

24 MS. KORNER: Well, Your Honour, I'll wait for the actual request

25 but I think it would be only right to make Mr. Ackerman aware that in the

1 light of the length of time that he's had the statements and documents,

2 the length of time of notice that was given that this witness would be

3 called, that -- and I appreciate the events of last week may

4 administratively need some sorting out, but I don't think that our

5 position will be that it would be right for this witness's

6 cross-examination to be postponed for six or longer weeks, until

7 Mr. Ackerman is back.

8 JUDGE AGIUS: Why six now?

9 MS. KORNER: Because he won't be back for six weeks. Ms. Baruch

10 is going to be here and she can't cross-examine this witness.

11 JUDGE AGIUS: Okay.

12 MS. KORNER: Your Honours, as I say, I'll wait to hear. Not to

13 mention the days wasted when we have so little time left but Your Honour,

14 I'll wait for the proper application.

15 JUDGE AGIUS: We will have to wait as well. We reserve our

16 position until you have reconsidered your position, Mr. Ackerman, and

17 feeling sure that you will, as has always been the case, act in a most

18 responsible manner and keeping also in mind that this is a witness who is,

19 I think, a very important witness for both of you, both sides, and I think

20 it will be better for both of you if there is no interruption in his

21 testimony for a variety of reasons but I would from my experience at

22 least, and I suppose that from your experience as well, it would be very

23 foolish thing to do to interrupt his testimony and take it up again in

24 four or six weeks' time.

25 MR. ACKERMAN: Your Honour, I really tend to agree with you about

1 that and I would really like to be able to finish it during this week, and

2 I'm not saying that's not possible. I'm just saying it has become a

3 concern.

4 JUDGE AGIUS: I appreciate that, Mr. Ackerman. I appreciate that.

5 MR. ACKERMAN: There was indication before you came in that there

6 might be some changing in the scheduling of sittings for this week, which

7 could impact on that also. Right now I'm counting on the proposition that

8 I will have all of this evening and tomorrow until 1.30 or so to prepare.

9 If I don't have that, that changes things rather dramatically, I think.

10 JUDGE AGIUS: What I can tell you is that upon our instructions,

11 the Registrar has been very active the entire morning, trying to see what

12 all the options open were or are, and there are some possibilities of --

13 for adding up some extra hours if they are needed, if they are needed but

14 then I got the message that you were no longer in agreement with that and

15 that -- I mean the message that I got was that you think that I would be

16 in a position to finish, to conclude by the end of this week so I said if

17 Mr. Ackerman thinks that is the case, I will ask Mr. Ackerman to figure

18 out how many days or how many hours he thinks he requires for his

19 cross-examination, so that then I can turn on the Prosecution and make

20 sure that they conclude the examination-in-chief in time to allow you all

21 the time you require. That was the intention that we had. We just

22 discussed it before we came in the courtroom, and it's still our

23 proposition to you.

24 MR. ACKERMAN: If it is the case that Mr. Nicholls will finish

25 tomorrow, I think he said before the close of tomorrow's session, but even

1 if he can finish sometime tomorrow, even at the end of the day, I'm

2 satisfied that if I have the time to be prepared, that I can conclude the

3 cross-examination fairly easily by the end of business on Friday.

4 I don't expect it to be an extraordinarily long cross-examination

5 but it needs to be a very carefully thought out cross-examination.

6 JUDGE AGIUS: I agree with you.

7 MR. ACKERMAN: And that's what I need -- I'm just sitting here --

8 standing here thinking about I may even ask to be excused for part of the

9 afternoon session so that I can try to assist the Chamber by preparing

10 some of my cross during the afternoon.

11 JUDGE AGIUS: Thank you. That's very considerate of you,

12 Mr. Ackerman, and I have no hesitation, unless my colleagues disagree with

13 me, but I have no hesitation of excusing you for the rest of the sitting.

14 Who will be in charge?

15 MR. ACKERMAN: Mr. Trbojevic obviously because he's co-counsel but

16 I probably won't leave until the first break to see how things get

17 started.

18 JUDGE AGIUS: Okay. Let's not waste more time. Please, we go

19 into closed session. Curtains down, and we get the witness.

20 [Closed session]

21 (Redacted)

22 (Redacted)

23 (Redacted)

24 (Redacted)

25 (Redacted)

1

2

3

4

5

6

7

8

9

10

11

12 Pages 15434 to 15511 – redacted – closed session.

13

14

15

16

17

18

19

20

21

22

23

24

25

1 --- Whereupon the hearing adjourned at

2 6.29 p.m., to be reconvened on Tuesday,

3 the 11th day of March, 2003, at 2.15 p.m.

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25