1 Tuesday, 24 February 2004

2 [Open session]

3 --- Upon commencing at 9.04 a.m.

4 [The accused entered court]

5 JUDGE AGIUS: Yes, Madam Registrar, could you call the case,

6 please.

7 THE REGISTRAR: Yes, Your Honour. Good morning, Your Honours.

8 Case Number IT-99-36-T, The Prosecutor versus Radoslav Brdjanin.

9 JUDGE AGIUS: I thank you, ma'am. Mr. Brdjanin, good morning to

10 you. Can you follow the proceedings in a language that you can

11 understand?

12 THE ACCUSED: [Interpretation] Good morning, Your Honours. Yes, I

13 can follow in a language I understand.

14 JUDGE AGIUS: Please, sit down.

15 Appearances, Prosecution.

16 MS. KORNER: Good morning, Your Honours. On day 284, the last day

17 of evidence, it's Joanna Korner, Julian Nicholls, Denise Gustin, case

18 manager.

19 JUDGE AGIUS: I thank you, Ms. Korner, and good morning to you.

20 Appearances for Radoslav Brdjanin.

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

22 David Cunningham, Aleksandar Vujic, and Cynthia Dresden.

23 JUDGE AGIUS: I thank you. And good morning to you and your team.

24 Before we bring in the witness, the meeting that was scheduled

25 for -- or that is still scheduled for 11.30 this morning may run a hitch.

1 The problem is Mr. Roberts is at least until now indisposed, and he is the

2 one with whom I have been dealing and who knows most of the details, some

3 of which I asked him to keep for himself. So he has instructed one of the

4 other members of the staff to stand for him, to take it over, but I'm not

5 that happy to proceed with the meeting in the absence of Mr. Roberts.

6 Now, Mr. Roberts also told me that he will do his level best to try and

7 come over at 11.30 for the meeting. So after all, we might well be able

8 to proceed. So I will keep you posted later on. I will keep you updated.

9 Although we can still meet in his absence and discuss certain matters, but

10 certainly not be able to cover the whole territory.

11 MS. KORNER: Your Honour, I think it would probably make more

12 sense just to have the one meeting.

13 JUDGE AGIUS: That's what I think. This has just come up now, a

14 few minutes before the start of this hearing. I have been actually trying

15 to get hold of the other legal officer, but he was apparently busy in some

16 other room and I didn't know exactly which room, so I didn't have the

17 time, the physical time, to track him down and see what the position is.

18 But I will keep you posted. I suppose by 10.30 I should more or less know

19 if Mr. Roberts is coming over. If he is, then obviously I will contact

20 you and the meeting will take place as scheduled. If not, we'll have it

21 postponed. But Mr. Roberts has got serious back trouble this morning.

22 MS. KORNER: I have every sympathy.

23 JUDGE AGIUS: I know what it means, too. So it's not likely that

24 we will have the meeting this morning anyway. Thanks.

25 Yes, shall we admit the witness. Is it in closed session?

1 MR. NICHOLLS: We had requested closed session, Your Honour. I

2 don't think we got a written response from the Defence, and I think that

3 the Court had decided it would question the witness, and then come to a

4 decision. But I can confirm that she requests closed session, and I think

5 the reasons are valid.

6 JUDGE AGIUS: Yes, Mr. Ackerman.

7 MR. ACKERMAN: Your Honour, I'd like to go into private session

8 for just a moment for a preliminary matter.

9 JUDGE AGIUS: Yes, let's go into private session for a while,

10 please.

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13 [Open session]

14 MS. KORNER: Your Honour was about to deal with the meeting. That

15 will be in your Chambers, will it?

16 JUDGE AGIUS: Yes, because I had asked for the meeting to be held

17 in Room 177. However, we were late for that. It had been taken by

18 someone else. And rather than going through the whole exercise of finding

19 another room somewhere else, I decided on my Chambers. So 11.00, when we

20 finish in my Chambers.

21 MS. KORNER: Well, Your Honour, say about 10 minutes, I need to

22 collect the papers that relate to it.

23 JUDGE AGIUS: Certainly. I mean, I think we will need to arrange

24 for you, Mr. Ackerman, but someone from my team will look after that.

25 I wish to make a statement, and this is a statement on -- not only

1 on my own behalf, but also on behalf of Judge Janu and Judge Taya,

2 statement on behalf of the Trial Chamber.

3 Yesterday, Mr. Ackerman on behalf of Mr. Brdjanin stated that the

4 Defence rested its case. It was already past quarter to 2.00. I knew

5 that today we would also have the last witness testifying, so I did not

6 make any statement yesterday. I'm going to make a statement today. So

7 yesterday, the Defence rested its case. Today, we can say that we have

8 concluded the rebuttal and rejoinder case, although there has not been a

9 rejoinder. In other words, we can safely state that the evidence --

10 evidentiary stage of this trial has finally come to an end. It took us

11 284 days of hearings, 284 sittings, to reach this stage. But this is not

12 a minor case by any means. This is undoubtedly the biggest and most

13 complicated case outside -- apart from -- after the Milosevic case.

14 During these two years, the Trial Chamber, we did our best, we

15 endeavoured to do our best to give each one of you as much room as

16 possible with the least restrictions possible, that is, to make your case

17 respectively. And this we tried to do and achieve with full respect to

18 the Rules of a fair trial according to the best standards of this

19 Tribunal. Also, without taxing unduly its resources. As in every case,

20 we have had, of course, our ups and downs, our difficult moments. But

21 overall, I can state on behalf of the Trial Chamber that it is thanks --

22 ultimately thanks to both of you that we have managed to bring this stage

23 of the proceedings to a close, more or less according to the schedule

24 which we had set way back. I said thanks to you, because you have shown

25 professionalism throughout these two years, great professionalism in your

1 work. You have done your best not to waste the time of this Trial

2 Chamber. And in a great majority of cases, you responded positively when

3 we appealled for your understanding and cooperation. So I thank you, Ms.

4 Korner, and you, Mr. Ackerman, for your excellent work and for your very

5 positive contribution in this trial. Our appreciation and our thanks,

6 gratitude, also -- is also extended, of course, to the other members of

7 your respective teams.

8 I do wish, however, to signal one person in particular, it's you,

9 Mr. Cunningham. I also wish to thank you. Your entry on stage in these

10 proceedings has certainly made a change and enabled Mr. Ackerman to

11 proceed smoothly with the case at a moment of crisis, first because of his

12 ill health, but also because of the more or less contemporaneous

13 termination of Mr. Trbojevic's assignment of co-counsel by the Registrar.

14 We now have a few more months to go before we can bring this case to an

15 end. These months will, of course, be crucial and will involve us and our

16 staff in detailed deliberations. Of course, we will be looking forward to

17 your final pleadings and submissions, which we have reason to believe will

18 be of the same high standard as those of your previous submissions in this

19 case.

20 Once more, Judge Janu, Judge Taya, and myself wish to thank you

21 for your cooperation and your good work. We also wish to thank all those

22 staff members who have worked with us in this case, and I am referring to

23 the members of the Registrar's office, to the members of the victims and

24 witnesses section, the interpreters, who have a very difficult job, and

25 the technical staff who have together many a time made it possible for the

1 Trial Chamber to sit beyond the normal hours to the benefit of the case

2 and to the overall benefit of the Tribunal in general. I think this ought

3 to be acknowledged publicly, and I am trying to do that today. Of course,

4 last but not least, I should like to thank the very hard-working members

5 of our legal staff who have been with us working Saturdays, working

6 Sundays sometimes, like you, Ms. Korner, and you, Mr. Ackerman, and the

7 respective members of your team have been doing. I also wish to thank the

8 members of the security section of this Tribunal who have secured the

9 order in which these proceedings have been conducted. With that, I think

10 we can rise.

11 MS. KORNER: Do you know, Your Honours, say -- I have to ask

12 Your Honours to come back for one moment to reality which is:

13 Your Honours have got to give us a ruling on the -- before you rise.

14 JUDGE AGIUS: Yes, the -- our decision on all those documents is

15 as follows: We had some difficulty only with regard to General Talic's

16 statement, but we have, after having gone through case law, come to the

17 conclusion that we should not exclude it a priori, and that together with

18 the other documents that have been objected to, they -- it will remain in

19 the records. In other words, they are being admitted. We wish to make a

20 point clear, however, particularly with regard to this document which is

21 essentially a statement made by a co-accused at a time when technically

22 speaking he was still accused before this Tribunal in a way which now

23 results in the impossibility of the Prosecution being able to

24 cross-examine the witness on the most fundamental parts contained in that

25 statement. This is of fundamental importance. We have taken this into

1 consideration, and it will, of course, affect our decision later on as to

2 whether to give this document, together with some other, any weight, any

3 weight at all. But our decision at the moment is that we cannot exclude

4 it a priori on the basis of unreliability or on the basis of any of the

5 points which have been made in some of the case law that we consulted. So

6 all the documents that we discussed yesterday, if needs to be, I will

7 repeat.

8 [Trial Chamber confers]

9 JUDGE AGIUS: Yes. Let me find the list. And we are talking of

10 DB288 and 289, DB344, DB345, which is precisely the statement that was

11 taken from General Momir Talic in December of 1992, that is, subsequent to

12 his release, provisional release, and finally DB361 to 373, being the

13 NIWD -- extracts from the NIWD reports. Yes, Ms. Korner.

14 MS. KORNER: Your Honour, I think I have to make it clear to

15 Your Honour -- to Your Honours that in normal circumstances we would

16 appeal the admission, in particular, of General Talic statement. It's not

17 sworn. It complies with none of the Rules at all. I take the view, and

18 the reason I'm saying this is if the OTP doesn't appeal that's a sign that

19 we accept the ruling, I take the view that there's no likelihood of

20 receiving a decision from the Appeals Chamber before we have to put in the

21 final brief, and therefore it's to clog up the Appeals Chamber even

22 longer. But I need to make that absolutely clear on the record so that in

23 future if this comes up again it can't be taken that the OTP accepted this

24 ruling.

25 JUDGE AGIUS: Yes. I fully understand that, Ms. Korner. And we

1 want to make it clear that we are fully aware of the shortcomings of this

2 statement, that it is not a sworn statement, that there is no possibility

3 of cross-examination, that it was not taken in any manner, one of the

4 manners that the Rules indicate, et cetera. But all these considerations

5 do not necessarily lead to the conclusion of inadmissibility from the very

6 word go. It's still a question of reliability at the end of the day, and

7 we are basing ourselves more or less on the line that case law, few

8 judgements that we have, have taken on this matter referring particularly

9 to how our Rules are conceived. In your jurisdiction or in my

10 jurisdiction, this would not have been admitted for sure, this statement.

11 In our case, we have this general rule which does not necessarily override

12 other Rules, but which needs to be read in conjunction with other Rules

13 that we have. And our decision is to prefer to reserve our decision on

14 what weight, if at all, to give to this final -- to this document, to our

15 final deliberations. And this applies not just to this document, it

16 applies to several other documents that we have in this case. And I can

17 tell you straight away that I personally attach a lot of importance to the

18 fact that there may be cases where we have statements made by persons who

19 have not been brought here or who cannot be brought here to be

20 cross-examined or to answer questions in relation to the contents of those

21 documents. This is something which I need hardly emphasise. It's basic.

22 And I think it also applies to General Talic's statement that was obtained

23 by...

24 MS. KORNER: Your Honour, I've made the position clear. While I'm

25 on the topic of the Appeals Chamber, Your Honour I was assured that we

1 would have a ruling by the first or second week of February. We are now

2 in the third week of February. We have had no ruling on the appeal in

3 respect of the joint criminal enterprise 3 decision by Your Honours. I

4 don't know whether Your Honours have any power to urge the Appeals Chamber

5 to give us a decision, please, within the next week. But it really is

6 important because we're all writing our final briefs.

7 JUDGE AGIUS: We certainly do not have power. But we will try and

8 do our best. I know that the President at the moment has got enough on

9 his mind.

10 MS. KORNER: I understand that.

11 JUDGE AGIUS: But we will do our best because it's also in our

12 best interests to know --

13 MS. KORNER: I think for all parties.

14 JUDGE AGIUS: -- where we stand in that. Today I had in mind of

15 dealing -- to deal with our programme for the next month.

16 MS. KORNER: Your Honour, can I just mention there's still

17 outstanding Mr. Ackerman's application in respect of the witness who

18 didn't attend for cross-examination.

19 JUDGE AGIUS: Yes.

20 MS. KORNER: Your Honour, I don't know whether Your Honours had a

21 chance to look at the decision --

22 JUDGE AGIUS: Kordic.

23 MS. KORNER: -- which in fact, of course, it was Judge Wald

24 presiding. And it goes a lot -- I did manage to recover the article.

25 Your Honour, we've also got the case referred to in the decision which is

1 Fulantelli [phoen] and St. Angelo against Italy, the court of -- European

2 Court of Human Rights. Your Honour, we would submit that although this

3 witness wasn't cross-examined and of course Your Honours have to take that

4 into account, I made an error yesterday. I thought cross-examination had

5 started, but it hadn't. But nonetheless, under the decision that was made

6 by the European Court of Human Rights, this is not fatal to the evidence

7 remaining part of the record. The right of the accused to examine the

8 witnesses against him must occasionally yield in appropriate circumstances

9 in the interests of considering the maximum amount of relevant evidence.

10 This evidence wasn't the sole evidence of -- in relation to the events

11 that were described unto the particular person. It was to that extent

12 cumulative. Your Honour, I can give the, Your Honour, names of the

13 pseudonyms of the other witness who is testified to the same type of

14 events involving the particular person. And it is not direct evidence

15 against the accused personally. So in those circumstances, I would invite

16 Your Honours to allow this evidence to remain with, of course, the major

17 caveat that no cross-examination was able to take place.

18 JUDGE AGIUS: Obviously. That is again crucial.

19 Yes, Mr. Ackerman. Do you have anything to state on this matter?

20 MR. ACKERMAN: Well, Your Honour, only this: We do operate a

21 little differently from most of the courts that would be members of the

22 European Community. We do have specific rules about those instances when

23 witnesses do not have to be brought here for cross-examination. And this

24 witness was brought here for direct and cross-examination for I would say

25 good and valid reason. And for reasons beyond everyone's control, the

1 situation developed that he was not able to be cross-examined. And so

2 it's -- in my view, it should be treated as if he had never come in the

3 first place.

4 JUDGE AGIUS: Yes, I come from a jurisdiction where that wouldn't

5 be the case, Mr. Ackerman, because more or less we apply the system --

6 even if I were presiding over a trial, a normal trial with a panel of

7 jurors, and we have a statement -- an occurrence identical to this, the

8 consequence, legal consequence, is not to throw out the statement or the

9 evidence simply because there is no longer the possibility of the Defence

10 to cross-examine that witness. But to put all this to the jurors and

11 explain to the jurors the importance that they need to attach to the fact

12 that that witness has not been cross-examined and that this should carry

13 its weight. Of course, if I am proceeding without a jury, then obviously

14 the matter assumes even -- this legal consideration assumes even more

15 weight. So our decision basically is to have the testimony of this person

16 remain in the records, and of course I am making it abundantly clear, I

17 hope, that we will, as we come to examine what weight to give to this

18 testimony, if at all, give all due consideration to the fact that you have

19 been unable to cross-examine this witness, Mr. Ackerman, due to no fault

20 of your own or of your client. So that's the position.

21 MS. KORNER: Your Honour, may I finally, going back to the very

22 kind remarks that Your Honours made, just mention this. Your Honours have

23 seen of course counsel appearing in front of you. Behind the scenes, as I

24 also imagine is the case with the Defence, there have been a number of

25 people, and in particular language staff who have had to work weekends as

1 well and really have worked beyond the call of duty to assist the

2 Prosecution team in making sure that the case went as smoothly as it

3 could. And I think it's only right that they should be mentioned as well

4 as the investigators who Your Honours have seen have done an enormous

5 amount to help to put this case together.

6 And finally, I feel I should mention specifically Ms. Gustin and

7 the case manager unit generally. The counsel can do a good job once

8 they're in court provided they know how to do a good job. But we couldn't

9 actually operate without the exhibits, the papers, and everything being

10 got together by the case manager unit. And so I think it's only right

11 they should be acknowledged in open court.

12 JUDGE AGIUS: I thank you, Ms. Korner. I associate myself.

13 Yes, Mr. Ackerman.

14 MR. ACKERMAN: Well, I can't be left out of this, Your Honour.

15 JUDGE AGIUS: No one would dare do that.

16 MR. ACKERMAN: Let me start with all of the staff that serves this

17 Court who have just done a remarkable, stellar job as we have gone through

18 these two years, and I want to my own express personal gratitude to all of

19 them, the translators, the court reporters, the court staff, the Registry

20 staff, all of these people. We have had serving us a number of interns

21 that you are aware of. I don't know if you're aware that these people all

22 worked without any remuneration or compensation at all. And they all did

23 a great deal of work and contributed a great deal to our ability to keep

24 this case on track and get to where we got today. I must second, third,

25 and fourth your remarks regarding Mr. Cunningham. I'm astounded at how

1 quickly he was able to get up to speed in this case. He read an enormous

2 amount of material in going through all the transcripts and documents in

3 this case and spent enormous number of hours for which there's no hope of

4 him being compensated by the Registry. He didn't work within the very

5 severe limitations the Registry put upon him, but served this Court in the

6 highest tradition of our profession.

7 And finally, I must say this: I am frequently asked what kind of

8 a judge I appreciate, and my standard answer is I like judges who know,

9 believe in, and apply the law, and who otherwise leave lawyers alone to

10 try the case. And I can say that this Trial Chamber has met that in

11 spades, and I really do appreciate being allowed to try my case. And I'm

12 sure Ms. Korner feels the same way. We were allowed to be the kind of

13 lawyers we would like to be.

14 JUDGE AGIUS: And if there were times when we were hard, and yes,

15 Judge Janu tells me that there were such times, but she is excluding

16 herself. We want you to understand that the intention was not -- nothing

17 but to try and get this case -- move ahead, try to bring it within a time

18 frame which in one way would be acceptable; the second -- at the same

19 time, it would ensure, maintain the rights which each one of you had to

20 present your respective case properly. We may have been sometimes

21 difficult. I understand. It's not the first time in my life that I have

22 been difficult. Most of the time, I have had understanding, and I'm sure

23 that I have your understanding as well. Thank you once more. My legal

24 officer, Mr. Roberts, will eventually contact you both to short of revise

25 the schedule that we have for final pleadings and the rest. And if there

1 are requests on your part that you would like to make, we will be prepared

2 to entertain them.

3 MS. KORNER: Your Honour, all I think we're concerned about is

4 that Your Honour's not thinking of bringing forward the date of the 26th

5 of March for filing.

6 JUDGE AGIUS: No, we are not -- we do not intend to do that.

7 MS. KORNER: Thank you. Because we have been working towards

8 that.

9 JUDGE AGIUS: I think we are happy with the way things turned out

10 to be, that we are finishing the evidentiary stage before the end of

11 February. So it's not our intention to touch anything from the schedule

12 that we more or less had suggested to you. Rather, we are telling you if

13 you need more time, if you have problems, please come back to us and we

14 will see where -- how we can address those to your mutual satisfaction.

15 Okay? Or to our mutual satisfaction.

16 What time shall we meet in my Chambers?

17 MS. KORNER: Would Your Honour say midday?

18 JUDGE AGIUS: Yes. So noon.

19 MR. ACKERMAN: I assume someone will come get me.

20 [Trial Chamber and legal officer confer]

21 JUDGE AGIUS: I thank you.

22 --- Whereupon the hearing adjourned at 11.47 a.m.

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