Tribunal Criminal Tribunal for the Former Yugoslavia

Page 32

1 Wednesday, 29 June 2005.

2 [Status Conference]

3 [Accused not present]

4 [Open session]

5 --- Upon commencing at 3.34 p.m.

6 JUDGE KWON: Good afternoon, ladies and gentlemen. Please call

7 the case.

8 THE REGISTRAR: Yes, Your Honour. This is the case number IT-

9 04-83-PT, the Prosecutor versus Rasim Delic.

10 JUDGE KWON: Thank you. Could the parties make their

11 appearances, please?

12 MR. MUNDIS: Thank you, Your Honour. Good afternoon. For the

13 Prosecution, Tecla Henry-Benjamin and Daryl Mundis.

14 JUDGE KWON: Thank you, Mr. Mundis.

15 MS. VIDOVIC: [Interpretation] Good afternoon, Your Honour. I'm

16 Vasvija Vidovic. Together with Mr. Geoff Roberts, my legal assistant, I

17 appear today on behalf of General Rasim Delic.

18 JUDGE KWON: Thank you, Ms. Vidovic. You are quite recently

19 appointed as permanent counsel. I'd like to say, welcome on board.

20 MS. VIDOVIC: [Interpretation] Thank you, Your Honour.

21 JUDGE KWON: I don't see there are many issues today. There are

22 no outstanding motions, so let me deal directly with the disclosure matter.

23 My understanding is that 66(A)(1) disclosure is complete with the caveat

24 that former duty counsel hasn't reviewed the documents but the Accused

25 himself received the statements, all the documents, and the 30 days period

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1 during which the Defence can file a preliminary motion started only as of

2 the date of the assignment of the permanent counsel. Is that right?

3 MS. HENRY-BENJAMIN: That is correct, Your Honour. And a little

4 addition to that in that this morning we met with Defence, and they, too,

5 were served with the supporting material. So that's in order.

6 JUDGE KWON: Thank you. I was informed by our Chamber's Senior

7 Legal Officer that Prosecution raised a possibility of amending the

8 indictment during the 65 ter meeting last week. Do you have any comment on

9 that? In particular, I'd like to know what the amendment would look like,

10 whether it is an addition or some replacement of counts or restructuring

11 this legal basis. Yes, please, Mr. Mundis.

12 MR. MUNDIS: Thank you, Your Honour. The Prosecution in its

13 investigation of this case was looking at a number of different crime

14 bases. As Your Honour appreciates, given that the Accused is the former

15 commander of the ABiH and in a relatively senior position, there were a

16 large number of potential crime bases that we were investigating. There

17 are still approximately three of those crime bases that we are interested

18 in with respect to this Accused. So the short answer to Your Honour's

19 question is that we would be looking to add three additional crime bases to

20 the indictment as it currently exists.

21 JUDGE KWON: In addition to the current charges?

22 MR. MUNDIS: That's correct, Your Honour. We are not looking to

23 replace any of the existing crime base but, in fact, to add three

24 additional crime bases to the indictment as it currently stands.

25 JUDGE KWON: Thank you. But when do you think the Prosecution

Page 34

1 could file the amendment, actually leave to amend the indictment?

2 MR. MUNDIS: I would anticipate, Your Honour, that we would be

3 in a position to seek leave to amend the indictment no later than the end

4 of October 2005.

5 JUDGE KWON: It will be about around four months time from now.

6 MR. MUNDIS: That is correct, Your Honour.

7 JUDGE KWON: Could it not be done a bit earlier? By the end of

8 September?

9 MR. MUNDIS: I assure you, Your Honour, that we are working as

10 quickly as possible. It might be possible, but the --

11 JUDGE KWON: Why don't you set an aim date by the end of

12 September, and if necessary, you can ask for an extension of time.

13 MR. MUNDIS: Thank you, Your Honour.

14 JUDGE KWON: Let's proceed on that basis. 66(A)(2) disclosure.

15 I was informed that you anticipate about 50 or 60 witnesses as the

16 indictment stands, as it is now.

17 MS. HENRY-BENJAMIN: That is correct, Your Honour.

18 JUDGE KWON: When do you think you can complete the disclosure,

19 together with expert witnesses?

20 MS. HENRY-BENJAMIN: Your Honour, as my colleague just

21 indicated, this is a very --

22 JUDGE KWON: Apart from the amendment, yes.

23 MS. HENRY-BENJAMIN: Yes. I think it's a bit premature to give

24 a specific time period because of the fact, as my colleague indicated

25 before, the seniority of the Accused, we are still in doing some

Page 35

1 investigations ongoing. And so I think it may be a little premature at

2 this stage for us to be able to give an exact, period and that is why I

3 think we said maybe 50 to 60 witnesses because we are still assessing.

4 JUDGE KWON: Which means you can disclose these materials on an

5 ongoing basis?

6 MS. HENRY-BENJAMIN: Yes, Your Honour. That's precisely what I

7 said. We are disclosing as an ongoing basis, but as to say when completion

8 -- to give a date for completion, it's a bit difficult at this moment.

9 JUDGE KWON: The Chamber, as well as myself, wish to have this

10 case be ready for trial as soon as possible. So I'd like to have -- very

11 much to have an aim date for -- but it may be a bit too early but roughly.

12 Can it not be done in three months' time from now? Is it too early?

13 MS. HENRY-BENJAMIN: I was just suggesting that to my colleague,

14 maybe in terms of three to four months, I would think. Probably the end of

15 October -- possibly the end of September, October. Let's have it the end

16 of September.

17 JUDGE KWON: Let's endeavour to have it completed by the end of

18 September.

19 MS. HENRY-BENJAMIN: Much obliged.

20 JUDGE KWON: Together -- and how many expert witnesses? Three,

21 I heard.


23 JUDGE KWON: Yes. Is there any problem or issues in relation to

24 Rule 68 disclosure?

25 MS. HENRY-BENJAMIN: No. This is an ongoing process. The

Page 36

1 translations have been sent on to ISS, and that's been ongoing, and we have

2 created the folders for the Defence for EDS, and that is in progress.

3 JUDGE KWON: When reading the transcript of 65 ter conference, I

4 read -- a Delic directory? You create a special directory for the purpose

5 of specific Accused?

6 MS. HENRY-BENJAMIN: That's correct, Your Honour.

7 JUDGE KWON: Is it not the case that you allow access to entire

8 material, which is called EDS to the Accused?

9 MS. HENRY-BENJAMIN: That is it, EDS.

10 JUDGE KWON: EDS. And what's different? EDS contains every

11 material.

12 MS. HENRY-BENJAMIN: All the material.

13 JUDGE KWON: Even not related to the Delic case. You create a

14 specific EDS for every case?

15 MS. HENRY-BENJAMIN: Yes, Your Honour. Each individual Accused

16 has -- and Defence have their own EDS directory.

17 JUDGE KWON: Then it should be the Prosecution who makes the

18 first search programme, first off, at the outset.

19 MS. HENRY-BENJAMIN: Yes, it is.

20 JUDGE KWON: Is it due to a word in the rules? Because --

21 what's the -- 68(2) or (B)? Is it because the Rule 68(2) says the

22 Prosecutor shall make available to the Defence collections of relevant

23 material?

24 MS. HENRY-BENJAMIN: All relevant material.

25 JUDGE KWON: It's because of that word.

Page 37


2 JUDGE KWON: Now I understand. Thank you.

3 MS. HENRY-BENJAMIN: You're welcome.

4 MS. VIDOVIC: [Interpretation] Your Honour. Your Honour, by your

5 leave, I would just like to briefly add something to the questions that you

6 have now been discussing with the Prosecutor. Firstly, I received the

7 supporting materials to the indictment, and just for the record I would

8 like to state something. The material so far received by the Accused also

9 comprised certain documents that were not originally seen by the judge who

10 confirmed the indictment. I wish to state for the record that we do not

11 consider this to be proper supporting material since it was never confirmed

12 by the relevant judge. Secondly, the materials received by the accused,

13 bearing in mind the fact that he was not sufficiently qualified to go

14 through these documents, we might now be able to say that there are certain

15 drawbacks to this material, certain parts missing, whole sections of

16 various transcripts, indicating certain statements. I just want the record

17 to reflect this. I will be asking the Prosecutor to have a discussion

18 about this later on.

19 What we believe is particularly relevant at this point in time

20 is the application of Rule 68. It is obviously the position of the

21 Prosecutor that the materials available on EDS that the Defence now has

22 access to need not be served to the Defence pursuant to the rule on

23 disclosure. I believe the fact that there are materials available on EDS

24 does not absolve the Prosecutor from their duty to deliver these materials

25 to us pursuant to Rule 68. I have a lot of experience with EDS, and based

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1 on this experience I can say these materials are sometimes exceedingly

2 difficult to access. There is an enormous amount of these documents. I've

3 not checked whether there is a special directory for the Delic case; I

4 certainly didn't see that there was. At any rate, I remain adamant that we

5 be given these documents, as well as any other materials related to Rule

6 68.

7 Something else I realised when I read the transcript from the 65

8 ter conference: The Prosecutor is familiar with the material from the

9 Hadzihasanovic case. They are exceedingly familiar with the evidence in

10 that case. I've been monitoring this case on a sporadic basis, and I

11 notice there was a lot of 68 Rule material being used. Needless to say, we

12 shall search every database that we have access to, but we believe that

13 among those documents there were documents that were delivered to the OTP

14 pursuant to Rule 70. Be that as it may, we remain adamant that exhibits

15 should be delivered to us as soon as possible, pursuant to Rule 68. I was

16 very surprised when I read that the Prosecutor had referred to four

17 specific documents under Rule 68. I am positive that they have a lot more

18 in their possession, a lot more exhibits in their possession pursuant to

19 Rule 68. What I have managed to do in these days since I was appointed, I

20 got in touch with the relevant archives, the relevant state archives in

21 Bosnia-Herzegovina, and I was informed that since 2003 the Prosecutor have

22 had in their possession a lot of documents, and this group of documents

23 includes documents under Rule 68. Even if these documents had not yet been

24 translated into English, I believe that the OTP now have a lot of people in

25 their teams who know the Bosnian language, and they should start

Page 40

1 translating these documents. It may seem now that we have a lot of time on

2 our hands to prepare our Defence, but as we all know, time flies, and I

3 think these documents should be delivered as soon as possible.

4 Finally, concerning the fact that the OTP appears to have

5 certain amendments to the indictment in store, I believe we shall be filing

6 our own motion concerning any amendments, and we shall not wait for mid-

7 October or even late October to file this motion. Rather, we shall be

8 filing the motion before that time.

9 That's all I have for the time being. Thank you, Your Honour.

10 JUDGE KWON: Thank you, Ms. Vidovic. There are some parts I

11 didn't follow. When you said that there are four statements, what are

12 they?

13 MS. VIDOVIC: [Interpretation] Your Honour, I'm not sure how this

14 has been interpreted. In actual fact, what I said was that there were

15 certain testimonies that the Prosecutor referred to in the annex to the

16 documents they have delivered. These are not complete testimonies; these

17 are just excerpts. I will talk to the OTP about this, and I will ask that

18 --

19 JUDGE KWON: Sorry to interrupt. Are they part of supporting

20 materials?

21 MS. HENRY-BENJAMIN: The documents that we referred to?

22 MS. VIDOVIC: [Interpretation] Yes. What I'm speaking about is

23 the fact that the OTP served on the Accused excerpts from a number of

24 testimonies instead of complete testimonies. But this is something that I

25 can discuss with the OTP after this status conference; I don't think we

Page 41

1 should be going into further into that issue now. Further, there is one

2 document that seems to be missing in its entirety. So much for the

3 supporting material.

4 As for exculpatory material, I've referred to four documents.

5 At the 65 ter Rule conference the OTP mentioned as few as four documents,

6 which they believe they are in their possession. They believe these are

7 Rule 68 documents, and this is something that worries me since I happen to

8 believe that there are a great deal of other documents that the OTP are

9 aware of that are most certainly in their possession and that surely must

10 be considered Rule 68 documents.

11 JUDGE KWON: Yes. Let us deal with this one first. It's Rule

12 68 documents. What are those four documents? I didn't follow. Yes.

13 MS. HENRY-BENJAMIN: Your Honours, it was four orders that we

14 had that have already been translated.

15 JUDGE KWON: Orders. Yes.

16 MS. HENRY-BENJAMIN: So far. And I indicated to my learned

17 friend this morning that a translation is ongoing. Documents are in the

18 process of being translated now, and once they are translated then we

19 certainly would live up to our obligation. This morning, Defence counsel

20 indicated to us that she didn't mind receiving the documents in B/C/S, but

21 that was only this morning. Hence the reason why --

22 JUDGE KWON: So I would like to take this opportunity to make

23 sure that apart from that EDS, it is the obligation of the Prosecution to

24 disclose to the Defence exculpatory material in their actual knowledge on

25 an ongoing basis. Do you have any observation on this, Ms. Henry-Benjamin

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1 or Mr. Mundis?

2 MR. MUNDIS: Certainly, Your Honour, any documents that are in

3 our actual knowledge which fall within the scope of Rule 68 will be

4 disclosed. However, it's our position that by making entire collections of

5 documents available to the Defence in EDS, that that would satisfy our

6 obligation under Rule 68 such that the Defence would be in a position to

7 conduct its own electronic searches of that material. Now, with respect to

8 material that was, for example, tendered into evidence in the

9 Hadzihasanovic case and which is obviously in the direct knowledge or

10 actual knowledge of the Prosecution as being Rule 68, we will simply

11 provide that material to the Defence. We will also very shortly be

12 inviting the Defence to provide us with any search terms so that we can

13 conduct additional Rule 68 searches with respect to collections of material

14 that is not populated in the EDS system. And that, of course, would

15 include Rule 70 material, among other things. So we will be engaged in

16 ongoing discussions with the Defence, but it is clearly, Your Honour, our

17 position that one of the benefits of EDS is that it permits the Defence to

18 do their own searches, and they can search for their own material without

19 having to engage the Prosecution in that process. And we will certainly

20 disclose on an ongoing basis documents and material which are in our actual

21 knowledge which we believe fall within the scope of Rule 68. But making

22 entire collections, thousands and thousands and thousands of documents

23 available to the Defence in EDS will satisfy, in our opinion, our

24 respectful view, our obligations under Rule 68.

25 JUDGE KWON: And in addition to that, Defence is able to

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1 inspect or make a search of the documents in the possession of the

2 Prosecution according to Rule 66(B).

3 MR. MUNDIS: Absolutely.

4 JUDGE KWON: Ms. Vidovic, having heard these, is there any

5 specific measure you are seeking in relation to Rule 68?

6 MS. VIDOVIC: [Interpretation] Indeed, Your Honour. What I said

7 a while ago, and I wish to repeat now with great clarity, is it's not

8 sufficient for documents to be available on EDS. There are millions of

9 documents in that particular database. If we are expected to search this

10 database in order to track down Rule 68 documents specifically, then the

11 OTP must give us specific coordinates as to which collections we should be

12 searching in relation to Rule 68 documents. I would like the OTP to be

13 ordered immediately to serve on us Rule -- any remaining Rule 68 documents

14 that are in their possession. These documents stem from the state archives

15 of Bosnia-Herzegovina. We would like to gain access to potentially

16 exculpatory documents from the BH archives, especially from the military

17 security service archive. It is extremely difficult to identify these

18 documents given what the EDS looks like now. It's very difficult for us to

19 track these documents down and to find specific categories under which they

20 are.

21 JUDGE KWON: My recommendation is that -- in relation to the

22 remaining documents, as you had put it, which is not in the EDS, I don't

23 see any problem. The Prosecution will disclose it as soon as they find it.

24 And in relation to the difficulty in locating and searching through EDS, it

25 may be a bit early to resolve every matter at this stage. So I would very

Page 44

1 much encourage to have conversation with the Prosecution and resolve the

2 matter in that way.

3 And then I will turn to the supporting material. Are you -- Ms.

4 Vidovic, you mentioned that the materials you were served seem to be

5 different from that had been seen by the confirming judge. What's the

6 basis of that? Yes, perhaps Mr. Mundis can help us.

7 MR. MUNDIS: Perhaps it would be easiest for me to explain that.

8 Your Honour may recall some previous documentation that the Prosecution

9 submitted on this issue to the Trial Chamber. When this indictment was

10 submitted for confirmation, it appears as though the Prosecution

11 inadvertently, when producing the supporting material, among the supporting

12 material were a number of documents which had been printed using the

13 double-sided feature of the computer printing. When those documents were

14 then run through a photocopier, a number of pages were inadvertently not

15 submitted to the confirming judge as part of the confirmation process.

16 At the time when we discovered this, following the confirmation

17 of the indictment, when preparing this supporting material for the benefit

18 of the Accused, who at that time, as Your Honour is well aware, was not

19 represented by counsel, the Prosecution in disclosing the material

20 explained this to General Delic. And in order to provide him with the

21 fullest possible set of documentation, we provided General Delic with a

22 complete set of the -- what we had intended to submit to the supporting --

23 to the confirming judge, that is, we inserted the pages which had been

24 missing when it was submitted for confirmation due to a photocopying error.

25 In addition, we supplied him with a table indicating precisely which pages

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Page 46

1 we inserted and the page numbers based on the Registry pagination system

2 whereby those pages would be found. So that we explained to him that there

3 were a number of pages that we had intended the supporting -- to go with

4 the supporting material but which had not gone with the supporting

5 material. We inserted those pages so that the Accused and now counsel

6 would have the documents as we intended them to be, and we fully informed

7 him which pages, in fact, were missing.

8 So what we have is a situation where the Accused and as of today

9 counsel have been provided with the supporting material that was provided

10 to the confirming judge, but in addition to that, the pages which had

11 inadvertently not been photocopied and submitted at the time the indictment

12 was sent to the Registry for confirmation.

13 JUDGE KWON: However, my impression is that the part that

14 Defence is concerned about is not related to that matter. Is there any

15 redaction?

16 MR. MUNDIS: No. My understanding is that it is, in fact, that

17 very issue, Your Honour, that, in effect, the issue that my learned

18 colleague has raised is that we have provided them with more actual pages

19 than were submitted to the confirming judge. If I'm mistaken in what she's

20 -- the issue she's raising, I would be happy to be corrected, but --

21 JUDGE KWON: Ms. Vidovic, does the Prosecution's response

22 resolve your concern?

23 MS. VIDOVIC: [Interpretation] Your Honour, I understand what the

24 Prosecutor has just said. However, those are not my concerns. I'm

25 concerned about the fact that voluminous material is concerned. I don't

Page 47

1 know whether you have had the opportunity of seeing the material but there

2 is a lot of material from about 20 testimonies, and in each testimony, when

3 the judge was confirming the indictment, the judge didn't see four, five,

4 six or seven pages, and this is of extreme concern to me. I received this

5 material this morning, and I find this very odd. I still don't know why

6 this was done, and I believe that I have to analyse this issue very

7 carefully.

8 JUDGE KWON: Now I understand. That's a different matter from

9 disclosure. So if there is a problem, you can raise it another way.

10 MS. VIDOVIC: [Interpretation] Yes, yes, Your Honour, that's

11 quite correct.

12 JUDGE KWON: I don't believe this is the proper place to deal

13 with that matter.

14 MS. VIDOVIC: [Interpretation] Your Honour, I just wanted what I

15 had said with regard to the material to be entered into the record because

16 at the moment I don't really know what the significance of this is. That's

17 all I would like to say. Perhaps certain problems will arise at a

18 subsequent date and then I might want to return to the subject.

19 JUDGE KWON: Yes. We'll see what we can do when the issue will

20 arise.

21 One thing I would like to raise is the issue of agreed facts.

22 That's my preference as a Pre-Trial Judge, is to recommend the Prosecution

23 to send, raise questions or a list of proposed facts for agreement to the

24 Defence and then for the Defence to respond to that.

25 MS. HENRY-BENJAMIN: Your Honour, precisely what you said, but,

Page 48

1 in fact, counsel was just appointed, hence the reason why it not taken

2 place as yet.

3 JUDGE KWON: Yes, thank you. And then I'm going to deal with

4 some redaction in the indictment. I'd like to ask Mr. Mundis if I don't

5 deal -- name the actual names, we can deal with it in public session. Yes.

6 The original indictment included the names of some victims of

7 rape, and the Prosecution filed a motion to redact those names in the

8 public version, and the Chamber granted it. But I must say, it must have

9 been by oversight on the part of the Prosecution and the Chamber; it was

10 filed ex parte. Was there any reason for ex parte?

11 MR. MUNDIS: No, Mr. President, or Your Honour, it was simply an

12 oversight that perhaps slipped by due to taking an overly cautious approach

13 with respect to the subject matter, but there is, in our respectful view,

14 no need for that to remain ex parte; certainly confidential, but not ex

15 parte.

16 JUDGE KWON: So I have to apologise to the Defence that Defence

17 was not properly informed, but there will be no harm in it. All changed is

18 that replacement of names into pseudonyms.

19 And the effect of the decision would be, there would be public

20 version of the indictment and the unredacted version, which should remain

21 under seal.

22 MR. MUNDIS: That is correct.

23 JUDGE KWON: And the Defence is under obligation not to disclose

24 the names of the victims of rape. Having said that, is there any matter to

25 raise from the Defence in relation to this matter?

Page 49

1 MS. VIDOVIC: [Interpretation] Your Honour, I have spoken about

2 this matter to my client, and my client accepts the explanation provided

3 with regard to the first indictment and in relation to the second

4 indictment, so there is nothing that I would like to add.

5 JUDGE KWON: Thank you. I think I dealt with all the agenda

6 items I noted down. I wonder if there is any matter for the parties to

7 raise. None from the Prosecution?

8 MR. MUNDIS: None from the Prosecution, Your Honour.

9 JUDGE KWON: And Ms. Vidovic?

10 MS. VIDOVIC: [Interpretation] Your Honour, there is just one

11 issue I would like to raise. I read the record of the 65 ter meeting, and

12 the length of the trial was discussed, rather, the length of the

13 Prosecution's case was discussed, and this also concerns the length of the

14 entire trial.

15 I have had some bad experience in the Oric case because of an

16 erroneous estimate of the length of the time the trial would take. And

17 this erroneous estimate in the Oric case, the Prosecutor 's erroneous

18 estimate of the length that the Prosecution case -- of the time that the

19 Prosecution case would last put us in a very difficult situation. I

20 wouldn't like this to be repeated. So when my colleague is estimating how

21 long the trial would length, I would be grateful if they could take the

22 following into consideration: If they believe that 50 to 60 witnesses will

23 be called, then it would be quite realistic to expect that we will need the

24 same amount of time for our cross-examination as the Prosecution for their

25 examination-in-chief. And in some cases, we'll need even more time. And

Page 50

1 during the Defence case, given the specific nature of this case, our client

2 was the commander of the ABiH and is charged with crimes that occurred in

3 the course of the conflict with the HVO, and the Republika Srpska army and

4 foreign combatants are also involved, so it's very complex matter. And

5 given all these factors, we believe that the Prosecutor's estimate with

6 regard to the length of the trial is not realistic. Our client has the

7 right to a fair trial, and we have the right to be allocated sufficient

8 time for cross-examination and to present our evidence in order to ensure

9 that the trial is fair. So I don't believe that the estimate is correct.

10 In the Oric case the estimate was the trial would last for four months or,

11 rather, the Prosecution case would last four months and in the end, it took

12 them 8 and a half months to complete their case.

13 JUDGE KWON: Thank you. The Prosecution must have heard that.

14 And as for length of time and number of witnesses for this case, it may be

15 a bit too early, so why don't you deal with it at next status conference,

16 after having the 66(2) disclosure be completed, and we will have a -- may

17 have the leave to amend the indictment by that time. So we can deal with

18 that matter, including the matter of pre-trial brief et cetera.

19 As for the estimation of length of time in Oric case, the fault

20 may have been on me, as well, as the Pre-Trial Judge for that case. So

21 let's try our best to have an exact anticipation of length of time in this

22 case.

23 So unless there are any other matters to be raised. Excuse me.

24 [Trial Chamber and legal officer confer].

25 JUDGE KWON: I will let the parties know the next date for

Page 51

1 status conference in due course. It may be around -- from four months time

2 from now, so it's about -- it's mid-October.

3 The hearing is now adjourned.

4 --- Whereupon the hearing adjourned at 4.15 p.m.