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
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
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
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
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
19 MS. HENRY-BENJAMIN: Much obliged.
20 JUDGE KWON: Together -- and how many expert witnesses? Three,
21 I heard.
22 MS. HENRY-BENJAMIN: Three.
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
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
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
24 MS. HENRY-BENJAMIN: All relevant material.
25 JUDGE KWON: It's because of that word.
1 MS. HENRY-BENJAMIN: Yes.
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
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
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
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
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
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
19 JUDGE KWON: Sorry to interrupt. Are they part of supporting
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
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
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
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
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
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
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
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
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
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
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
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,
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
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?
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
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
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
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.