Tribunal Criminal Tribunal for the Former Yugoslavia

Page 15648

1 Monday, 24 September 2007

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.06 a.m.

5 JUDGE AGIUS: Good morning, Madam Registrar. Good morning,

6 everybody else. Could you call the case, please.

7 THE REGISTRAR: Good morning, Your Honours. This is the case

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

9 JUDGE AGIUS: I thank you, ma'am.

10 For the record, all the accused are here.

11 From the Defence teams, I notice the absence of Mr. Josse and

12 Mr. Ostojic.

13 Prosecution, we have Mr. McCloskey and --

14 MR. McCLOSKEY: Ms. Janisiewicz.

15 JUDGE AGIUS: Thank you.

16 So we have got a whole agenda ahead of us to discuss before we

17 take decisions this morning. Almost everything that there is on that

18 agenda needs to be dealt with until we reach the decision in private or

19 closed session. However, before we do -- we start on that subject, I'd

20 like to know whether you have any other preliminary matter that you would

21 like to raise, which is unrelated to the next witness.

22 Incidentally, we are sitting pursuant to 15 bis today. Judge

23 Stole is not with us and will not be with us for the entire week.

24 I take it there are no preliminary matters. Okay. So let's go

25 into -- just for the record, so that the public is made aware, we have to

Page 15649

1 go into private session now to discuss various issues related to a witness

2 that is due to testify here. These relate to protective measures that are

3 being sought and contested in his regard.

4 So let's go into private session, please.

5 [Private session]

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14 [Open session]

15 JUDGE AGIUS: We are going to decide the three motions that we

16 discussed earlier on: That's Prosecution motions for protective measures

17 and closed session, and the Defence, joint Defence motion, for the

18 rescission of the protective measures granted to the accused previously.

19 This is our decision: The Trial Chamber, having heard the

20 witness, and taking cognizance of the submissions of parties, both written

21 and oral, is not satisfied that there are sufficient reasons to justify

22 the rescission of the protective measures previously granted to this

23 witness in another case, to which you have referred in the course of your

24 submissions.

25 We are of the view that the conditions or circumstances that

Page 15701

1 formed the basis for that Trial Chamber's decision to grant the witness

2 protective measures remain the same today.

3 As a consequence, the joint Defence motion for rescission is

4 hereby being denied and the Prosecution motion for protective measures to

5 continue are therefore granted. The witness, therefore, shall testify

6 with the same protective measures that he was granted before.

7 There remains the issue of whether his testimony should be

8 received or heard in closed session or in open session.

9 The Trial Chamber has given this a lot of thought and is of the

10 view that, given the witness's position and role in the events, the vast

11 majority of his evidence would unavoidably identify him to the public,

12 neutralising the effects of the protective measures that he would continue

13 to enjoy. This is further aggravated by the fact that the witness has

14 already previously testified in public on these events, and his identity

15 would, as I said, unavoidably, be revealed if he now testifies in public.

16 It is, of course, possible to hear the witness's testimony in open

17 session, but there would definitely be the need for constant use of

18 reversal to private session to protect his identity.

19 Given the circumstances, however, the Trial Chamber cannot and

20 does not see any practical benefit in hearing his evidence in that manner

21 in open session; therefore, the Prosecution motion for closed session is

22 hereby being granted.

23 Now, I don't know how we are going to do this. Madam Registrar, I

24 need to be directed by you. Do we now go into closed session and bring in

25 the witness? Yes. All right.

Page 15702

1 Yes, one moment, Mr. Bourgon.

2 MR. BOURGON: Thank you, Mr. President.

3 JUDGE AGIUS: One moment. We are still in open session. Do you

4 wish to address us in open session?

5 MR. BOURGON: In open session, for one moment.

6 JUDGE AGIUS: I see. I misunderstood you. I apologise to you.

7 Please go ahead.

8 MR. BOURGON: Thank you, Mr. President. At this point in time, we

9 are grateful for the Trial Chamber's decision regarding these motions that

10 were filed. It is the intention of the Defence, I cannot say if it's all

11 the Defence teams or only some of the Defence teams, to ask for

12 certification orally of this decision; and in order to coordinate our

13 arguments into one submission, we would ask for a short break of no more

14 than ten minutes, simply to coordinate and say which of the accused are

15 wishing -- do wish to ask for certification and to try and get a

16 coordinated submission.

17 Thank you, Mr. President.

18 JUDGE AGIUS: Actually, we had anticipated that, Mr. Bourgon. So

19 we'll have a short break.

20 Will you advise our registrar if you need more than ten minutes,

21 Mr. Bourgon, please?

22 MR. BOURGON: Will do, Mr. President, but it should not take very

23 long.

24 JUDGE AGIUS: We are going to be around in any case, so I don't

25 think -- yes, Mr. McCloskey?

Page 15703

1 MR. McCLOSKEY: I'm not sure where we are with speaking to the

2 witness, but could I inform him of your decision with his counsel.

3 JUDGE AGIUS: I think the Victim and Witnesses Section can do that

4 and it will avoid any possible criticism.

5 MR. McCLOSKEY: Thank you, Mr. President.

6 JUDGE AGIUS: Or his lawyer can do that now, but I would prefer if

7 it's the Victims and Witnesses, because that's pretty neutral and no one

8 can say anything. He hasn't started giving evidence.

9 MR. McCLOSKEY: He does understand and speak a little bit of

10 English.

11 JUDGE AGIUS: Thank you. So we'll have a ten-minute break or more

12 if we need it. Thank you.

13 --- Break taken at 12.27 p.m.

14 --- On resuming at 12.49 p.m.

15 JUDGE AGIUS: Yes, Mr. Bourgon.

16 MR. BOURGON: Thank you, Mr. President.

17 We are grateful to the Trial Chamber for having the benefit of

18 discussing the issue amongst all Defence teams, and I am now in a position

19 to inform you that this is a joint Defence motion on behalf of all

20 co-accused in this case for certification of the Trial Chamber's decision

21 pursuant to Rule 73. There will be two of us addressing the Trial Chamber

22 on this issue. I will first begin, and I will then be followed by counsel

23 representing the Accused Pandurevic.

24 Two preliminary matters need to be said before we get into the

25 actual arguments. The first one is, of course, that if certification was

Page 15704

1 to be granted by the Trial Chamber, this would inevitably bring the

2 consequence of delaying the testimony of this witness for some period of

3 time.

4 Two things must be said on this issue: First of all, we believe

5 that if the testimony was, indeed, delayed, we can still proceed with this

6 trial and it would not disrupt the proceedings. There are other witnesses

7 available and this witness can be heard later.

8 Secondly, and more importantly, the issue of time does not rest on

9 the Defence and we believe that it should not be a criterion in granting

10 or refusing certification, and we are confident that the Trial Chamber

11 will not treat it as such, but it must be said in any event.

12 The second issue regarding to the second preliminary matter has to

13 do with Rule 73 itself, and, of course, everybody understands that it is

14 not the merits of the Trial Chamber's decision which is at stake here but,

15 rather, its consequences. There are two criteria which must be met in

16 order for certification to be granted. We also understand that both

17 criteria must be met in a cumulative manner and that still it would be in

18 the discretion of the Trial Chamber to grant certification.

19 I will address the first of these criteria, Mr. President; namely,

20 the fact that this, the Trial Chamber's decision, will affect the fair and

21 expeditious conduct of the proceedings as well as the outcome of the

22 trial. We are of the view, Mr. President, based on the Trial Chamber's

23 assessment of the particular circumstances of this case, (redacted)

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Page 15705

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8 The second reason, Mr. President, we are of the view that it would

9 be unfair to deny the Defence in this case the opportunity of discovering

10 witnesses who could decide to make themselves available, after hearing the

11 testimony of the witness, to contradict him, and that is very important,

12 Mr. President. It is contrary to the right of the accused to a fair and

13 public trial, and we say that the outcome of the trial, give that this is

14 the most important Prosecution witness in this case, at least in our view,

15 that it will affect the outcome of the trial, as the witness will not have

16 the incentive to tell the truth, and he will say things that might be

17 different from his prior testimony which the public will never hear.

18 The Trial Chamber has heard and seen enough about this witness to

19 already have a good idea, and we believe that because of the impact of

20 this witness in this case, it would be contrary, it would be unfair, and

21 it will affect the fairness of the proceedings in this case.

22 I leave it here on the first criterion, and I will now allow my

23 colleague for Mr. Pandurevic to address the second of the criteria, unless

24 the Trial Chamber has some questions.

25 JUDGE AGIUS: Not for the moment, before having heard what

Page 15706

1 Mr. McCloskey has to say.

2 MR. BOURGON: Thank you, Mr. President.

3 JUDGE AGIUS: Thank you, Mr. Bourgon.

4 Mr. Haynes.

5 MR. HAYNES: I'll be as brief as I can.

6 JUDGE AGIUS: Take your time. We are not rushing you. These are

7 not insignificant matters.

8 MR. HAYNES: That's really where I begin. The second limb under

9 Rule 73 is probably less onerous upon those seeking a certificate for

10 appeal because what is often forgotten is that it requires you to reach an

11 opinion that an immediate resolution by the Appeals Chamber may materially

12 advance the proceedings. And there are three separate concepts within

13 that sentence that merit consideration.

14 That this issue merits consideration or resolution by the Appeals

15 Chamber, I hope, requires no great argument. We set out in great detail

16 arguments based on public policy and the interests of justice in the

17 motion that we filed to rescind the original or existing protective

18 measures and to oppose the Prosecution's motion. If anything, those

19 arguments on public policy and proper procedure before this Tribunal have

20 crystallised even further today during the evidence of the witness,

21 because unless I misunderstood what he was saying at line -- page 39 lines

22 1 and following, and unless I understood what Mr. McCloskey addressed to

23 the Trial Chamber earlier, (redacted)

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Page 15707

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4 (redacted). And so I do say that this is a matter that

5 merits resolution by the Appeals Chamber because of its very deep public

6 policy issues.

7 What I then have to show is that that resolution now may

8 materially advance the proceedings, and I'm bound to say that's an

9 obfuscating expression. It may materially advance the proceedings in this

10 way, I suppose. This is not the last witness --

11 JUDGE AGIUS: One moment. I'm really sorry to do this and

12 interrupt you, but we are in open session. Let's go into private session

13 so that I finish saying what I have to say in private session.

14 [Private session]

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14 [Open session]

15 MR. HAYNES: To summarise what I have to say about this, really I

16 say three things: Firstly, that the requirement that your opinion be that

17 an immediate resolution by the Appeals Chamber may materially advance the

18 proceedings is not a very high threshold to reach; secondly, I'd say that,

19 in relation to this particular issue, (redacted)

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Page 15709

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5 JUDGE AGIUS: Yes. You have done it again.

6 MR. HAYNES: I'm sorry.

7 JUDGE AGIUS: Okay. We'll have a redaction.

8 MR. McCLOSKEY: Your Honour, I would ask that we go into closed

9 session. This is, I think, one of the main reasons or one of the reasons

10 why it's so difficult to jump in and out and it's very hard for all of us

11 to try to walk that line, and, I think, we would be safer in closed

12 session on this topic.

13 JUDGE AGIUS: He is concluding any way. So we will redact this

14 part and we can conclude, Mr. Haynes; And then, if you wish to make your

15 submissions in open session -- in private session, we'll decide.

16 Yes, Mr. Haynes.

17 MR. HAYNES: Had your decision not been to order that the evidence

18 be heard in closed session, I don't believe we would have asked for

19 certification of the decision. It is really that which we believe strikes

20 at the very roots of the interests of justice. That that matter was

21 raised so late in the day has brought us to this position, and I really

22 underline the point that Mr. Bourgon makes.

23 We know and we are confident that you will not take any account of

24 the minor inconvenience that may be caused to witness scheduling in

25 arriving at any decision on this motion, but we do make the point that

Page 15710

1 this situation has arisen because the question of the manner in which this

2 witness was to give his evidence, which was apparently the subject of

3 discussion a year ago, was raised in so untimely a manner by those who

4 seek closed session.

5 But those are my submissions. This, it seems to me, is a matter

6 of fundamental importance, a matter which goes to the very heart of public

7 justice and the perception of this Tribunal, and it's a matter that ought

8 to be resolved by an Appeals Chamber because it is a matter of public

9 policy. And its resolution now would be better than waiting until the end

10 when there may be irreparable damage done to the accused in this case.

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

12 Mr. McCloskey.

13 MR. McCLOSKEY: Yes, Mr. President.

14 Briefly, there is a lot of talk about damage, but I don't see any

15 actual evidence or facts of what damage they are talking about.

16 Mr. Bourgon mentioned that, if it was done privately, the public would not

17 be able to respond and provide evidence. That's the only damage argument

18 I heard that had any -- actually the only one. Aside from what

19 prosecutors usually say, "This needs to be public; the world must know,"

20 that's the only argument I've heard.

21 And, frankly, and I need to go into private session --

22 JUDGE AGIUS: Okay. Let's go into private session.

23 [Private session]

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14 [Open session]

15 JUDGE AGIUS: We thank you all for your valuable contributions to

16 the issue of whether we should certify our previous decision or not. We

17 don't believe that these issues can be solved today. We've got 15 minutes

18 left, and I don't think we are capable of reaching a conclusion in such a

19 short time.

20 So we will be adjourning, and our promise is that tomorrow, when

21 we reconvene in the afternoon at 2.00, that's when we meet again -- no,

22 2.15, we will come down with our decision.

23 Thank you.

24 --- Whereupon the hearing adjourned at 1.30 p.m.,

25 to be reconvened on Tuesday, the 25th day of

Page 15722

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