1 Tuesday, 27 February 2007
2 [Status Conference]
3 [Open session]
4 [The accused not present]
5 --- Upon commencing at 9.00 a.m.
6 JUDGE THELIN: Good morning to everyone.
7 Could we please have the case called.
8 THE REGISTRAR: Good morning, Your Honour. This is case number
9 IT-04-83-PT, the Prosecutor versus Rasim Delic.
10 JUDGE THELIN: Thank you.
11 And representations, Prosecution.
12 MR. MUNDIS: Good morning, Your Honours. Good morning to everyone
13 in and around the courtroom. For the Prosecution, Daryl Mundis, assisted
14 today by Matthias Neuner, Ruth Frolich, and our case manager Alma
16 JUDGE THELIN: Thank you.
17 And for the accused.
18 MS. VIDOVIC: [Interpretation] Good morning, Your Honours. I
19 apologise, the interpretation is a little late, so because of that, I am
20 Vasvija Vidovic and, together with Mr. Nicholas David Robson, I represent
21 the Defence of Rasim Delic. With us we have Mrs. Lana Deljkic, our case
22 manager, and Ms. Asja Zujo, our legal assistant in this case.
23 JUDGE THELIN: Thank you very much, Ms. Vidovic. We know that the
24 accused is on provisional release and there is, I take it, no issue on his
25 part to take part in this Status Conference. Is that correct,
1 Ms. Vidovic? You're nodding assent.
2 MS. VIDOVIC: [Interpretation] Yes, Your Honour.
3 JUDGE THELIN: Thank you.
4 First of all, let me note that since we had the last Status
5 Conference of the 15th of November, things seem very much to be well on
6 track, and I thank the parties for the cooperation and the timely filings
7 on the part of the Defence on the pre-trial brief, which I think happened
8 on the 19th of January.
9 The way I see it in the picture, and we will explore that today,
10 is that the only thing that is now stopping this case to be formally
11 concluded in the pre-trial phase seems to be some disclosure matters. Is
12 that an understanding that meets with the parties as well?
14 MR. MUNDIS: Thank you, Your Honour. That would seem to be the
15 case, and of course it's completely contingent upon translation of certain
16 materials, which is the disclosure problem that we're encountering at the
18 JUDGE THELIN: Ms. Vidovic.
19 MS. VIDOVIC: [Interpretation] Your Honours, the Prosecution has
20 made significant progress, as far as we are concerned, regarding
21 disclosure. We received a lot of material, and mostly, except for two
22 statements which we still have not received - these are statements of
23 witnesses that the Prosecution has not interviewed yet - so we have
24 received all the statements that were on the Prosecutor's list, on their
25 65 ter list.
1 Also, the Prosecutor has made significant progress as far as
2 admission of documents in accordance with Rule 68, and we are very
3 grateful for that. We still have a few minor matters that we will discuss
4 after this Status Conference with the Prosecutor, and I think that we are
5 going to surmount that the Prosecutor, just like they have so far, will
6 respect all the instructions of the Trial Chamber, and we don't foresee
7 any problems there.
8 Yesterday we received a letter from the Prosecutor regarding Arab
9 interpretations, or translations of Arab material. I don't know, perhaps
10 I'm going too far in advance, but perhaps this is the moment to explain
11 this --
12 JUDGE THELIN: That's fine. Thank you. My idea was that we will
13 go into details of disclosure later, but I'm grateful for the comments
14 you've made, Ms. Vidovic.
15 Let me say or note that all filings as far as adjudicated facts
16 seem to done, so it's incumbent upon the Chamber, in due course, to make a
17 decision on this. We also note that Ms. Vidovic has been joined in late
18 January by Mr. Robson as co-counsel.
19 Let me, on adjudicated facts, put two questions, or, rather, one
20 question to the parties, primarily to the Prosecution. A favourable
21 decision, i.e., a granting of the motion of adjudicated facts, what is the
22 assessed impact on the Prosecution's case as far as witnesses are
23 concerned, if any?
24 MR. MUNDIS: Thank you, Your Honour. I would not expect -- to be
25 quite frank, I would not expect that to result in us dropping any
1 witnesses. I would expect, however, that we might be able to shave some
2 of the time estimates off some of the currently listed witnesses. So I
3 would expect that there would be some savings in time in terms of in-court
4 requirements, but I would not go so far as to say that it would cause a
5 significant reduction in time.
6 JUDGE THELIN: Thank you.
7 Would that meet with your assessment as well? It's difficult
8 since you're on the other side, Ms. Vidovic, but I would love to hear what
9 you have to say.
10 MS. VIDOVIC: [Interpretation] Your Honour, it's hard to make any
11 assessment, but I don't think that that will significantly affect the
12 number of witnesses or the time we plan to spend on the witnesses that we
13 intend to call.
14 JUDGE THELIN: Thank you very much. Those two comments from you
15 were helpful as far as assessing the scope of the case.
16 Let's now move to disclosure, and I understand that discussions
17 were held after the 65 ter Conference and obviously, under the able
18 chairmanship of the senior legal officer, was something that was
19 accomplished as well during the conference yesterday. As you indicated,
20 Ms. Vidovic, you anticipate further contacts with the Prosecution on this.
21 My intention was not to go into detail on all the questions
22 arising from that, apart from one, and that is I need to, for the sake of
23 the Chamber, have a better assessment as to the problems of the
24 translation of the Arabic videotapes.
25 So if I turn to you first, Mr. Mundis, if you could give me your
1 best estimate as of today, what has been done and what is requested as far
2 as time, in that respect I would be grateful.
3 MR. MUNDIS: Thank you, Your Honour.
4 I have indicated, and I explained this yesterday, the Tribunal
5 does not have a certified Arabic interpreter or translator on staff within
6 CLSS, and as a result of that, of course, we've had to contract outside
7 the Tribunal in order to employ the services of a certified translator.
8 We have on our exhibit list 29 videotapes that are at least
9 partially, if not completely in Arabic; the total is approximately 47
10 hours of such material. To date, six of those have been completed,
11 representing approximately eight hours of the total amount of the video
12 material that's partially or completely in Arabic.
13 It's extremely difficult for to us to anticipate how much longer
14 it will take, partially because the person that the Tribunal has employed
15 is not working full time on this project, but, rather, he has a -- as a
16 freelance translator and interpreter, he has a number of other projects
17 that are ongoing.
18 I can assure the Trial Chamber and the Defence that we are doing
19 everything possible to divert as many resources as possible to this
20 issue. Of course, that then means, because of limited CLSS resources,
21 which is not something that the Prosecution controls, of course, that we
22 have some stumbling blocks in our way in terms of getting these done. We
23 are, however, moving as quickly and as expeditiously as possible to get
24 all of this material available in Arabic.
25 First he produced an Arabic transcript, which he then translates
1 himself into English, which is then submitted to CLSS for translation into
2 the Bosnian language. So there is really a three-step process that this
3 single individual has been asked to do. We are moving as quickly as we
4 can to get that done, but it's very difficult for to us predict, first of
5 all, how many hours CLSS will put him on a contract for and how many hours
6 he can actually produce these tapes, or how long it will take him to
7 produce the tapes once those contracts are prepared and executed.
8 JUDGE THELIN: Thank you, Mr. Mundis. I would like to underscore
9 what you say that there is a need, obviously, to move as quickly as
10 possible on this because the importance this would have for the Defence.
11 On the other hand, I fully understand the limitations that you are
12 facing. But I would urge you to do whatever you can, and if there are
13 ways that the Chamber can assist you to unlock further resources or make
14 any intervention with the Registry, we would be happy to do that.
15 MR. MUNDIS: I appreciate that offer, Your Honour. We very well
16 may take you up on that. Thank you.
17 JUDGE THELIN: Thank you.
18 Ms. Vidovic.
19 MS. VIDOVIC: [Interpretation] As you have said, Your Honour, these
20 translations are very important for us, perhaps they could be actually
21 crucial for this case, so that we really do wish to receive this material
22 as soon as possible. And we can see that the Prosecution is doing their
23 utmost to provide that for us.
24 I would just like to say that our information about the number of
25 these videotapes do not correspond to the number that the Prosecutor has
1 mentioned, and we will explain why.
2 On the 14th of November, 2006, with receipt number 14, we received
3 22 DVDs from the Prosecution with 154 videos, 34 of which are in Arabic;
4 and on the 9th of January, 2007, we received an additional four videos.
5 They were on the list of the 31st of October, but we did not receive them
7 In other words, we think that -- well, we know that there is a
8 larger number of videos and so there will even be more time required for
9 the translation. And if the Prosecution doesn't do that, we will, in some
10 way, then be put in the situation of having to translate them. We have to
11 watch those videos.
12 So we just need to take into account that it's not 47 hours of
13 videos but probably slightly more. I think it's actually eight hours
15 JUDGE THELIN: You care to comment on that, Mr. Mundis? Because
16 that adds to the complexity, doesn't it?
17 MR. MUNDIS: Absolutely. And I will again endeavour -- the person
18 on our team who's responsible for this issue provided me the numbers that
19 I have provided. We will revisit that issue and perhaps further engage
20 the Defence on that issue following this Status Conference.
21 JUDGE THELIN: Thank you. I think that would be a prudent course
22 of action.
23 Let's now, with that, leave matters of disclosure. The next thing
24 I have on my list is, again, a request to the Prosecution to make an
25 assessment to what extent use will be made of the 92 bis witness.
1 MR. MUNDIS: Thank you, Your Honour. Clearly, when the
2 Prosecution made its 65 ter filings last year, we did provide indications
3 as to the number of expected witnesses that we would be seeking to adduce
4 by way of Rule 92 bis or Rule 92 ter.
5 As we indicated yesterday at the 65 ter meeting, we are constantly
6 revising and looking at those numbers and those figures. We would except,
7 of the approximately 70 witnesses on our witness list, that approximately
8 20 of them would fall under 92 bis or 92 ter. And, again, that's a figure
9 that we're constantly looking at and deciding whether a witness could be
10 moved from one category into the other, or vice versa.
11 We also made some indications yesterday that with respect to the
12 time estimates overall, we don't expect there would be significant
13 reductions because our intention had always been to reply upon those two
14 rules. We very well may be in a situation where we would seek leave from
15 the Trial Chamber internally to alter some of the numbers with respect to
16 witnesses, so that witness 14 might be a little bit longer than we
17 planned, but witness 23 might be slightly less than we expected. But we
18 don't anticipate at this point in time the actual number of hours required
19 for direct examination to be significantly different as a result of the
20 use of Rule 92 bis, 92 ter, or some internal reshuffling or recalculations
21 of time estimates.
22 JUDGE THELIN: Thank you, Mr. Mundis, that was helpful, and
23 especially the relationship between witnesses in written form, as it were,
24 and viva voce witnesses.
25 Ms. Vidovic, do you care to comment on this part?
1 MS. VIDOVIC: [Interpretation] Yes, Your Honour, thank you. I
2 presented the position of the Defence yesterday regarding the witnesses
3 that the Prosecution intends to bring in according to 92 bis. We looked
4 at those statements. I would just like us to be realistic, to have a
5 realistic picture of that. I would like to also give our position on
6 that. We will probably oppose each of those witnesses being brought in
7 under 92 bis because they mostly refer to the conduct of the accused. And
8 I would like to have that in mind when we are estimating the time
9 necessary for the actual trial. Of course, we cannot foresee the
10 outcome. We're excepting submissions by the Prosecution and then we will
11 give our definite position on that.
12 As for time estimates, I said yesterday that I believe it was not
13 realistic. I already have experience in this Tribunal, and sometimes
14 things that are being plan sometimes turn out to take twice as long,
15 especially when we are talking about the Prosecution presentation of the
17 Thank you, Your Honour. That is all that I have to say for now.
18 JUDGE THELIN: Thank you, Ms. Vidovic.
19 We note your principled position under 92 bis, and I take it that
20 to include 92 ter as well. Obviously, we'll see, once the motions are
21 in - and you will make your formal motions in this respect - how the Trial
22 Chamber will rule on it. But I note the comments made on both sides as to
23 the impact on the case of 92 witnesses.
24 Let me move then move to the question of agreed facts. We touched
25 upon adjudicated facts initially. I note that we have had filings since
1 September and October on agreed facts, and I'm anxious to know whether
2 there are any prospects of a future exchange between the parties on agreed
4 Mr. Mundis.
5 MR. MUNDIS: Thank you, Your Honour. "Absolutely" would be the
6 short answer to that question. We, as I indicated again yesterday, we
7 have undertaken a project whereby we are in the process of deconstructing
8 if you will, the Defence pre-trial brief in order to identify issues that
9 we believe should be the source of agreement between the parties, and we
10 do that because, as I'm sure Your Honour is aware, a number of the
11 positions set forth in the Defence pre-trial brief have actually been the
12 subject matter of cases before this Tribunal. As a result of that,
13 certainly the Prosecution is not going to disagree with facts which we
14 have established in other cases. So I would except that there would be
15 some additional agreed facts stemming from the Defence pre-trial brief.
16 I will also indicate, as I've informed the Defence previously,
17 that we are undertaking a similar project with respect to the Prosecution
18 pre-trial brief whereby we will attempt to engage the Defence further on
19 some issues from our pre-trial brief that we believe might not be
21 I also -- perhaps in a few moments I can address this concept of a
22 legal library which I have touched upon, which also can be of importance
23 to this issue, but I can yield the floor to the Defence on agreed facts
24 prior to doing so.
25 JUDGE THELIN: Thank you, Mr. Mundis.
1 Can I expect from you, Ms. Vidovic, the same readiness to work in
2 the spirit of coming to a maximum number of agreed facts?
3 MS. VIDOVIC: [Interpretation] Yes, Your Honour. I only wish to
4 remind you that we have also submitted a proposal to the Office of the
5 Prosecutor - this was done several months ago - and we proposed a
6 significant number of facts to the Prosecutor for his consideration. And,
7 of course, we shall continue to cooperate in this direction. We had a
8 meeting with the Prosecutor where we were told that they would re-submit a
9 list of facts for us to agree on, and of course we're willing to
10 cooperate, Your Honour.
11 JUDGE THELIN: Thank you. There seems to be good spirit on both
12 sides and we can except the discussions to yield a considerably larger
13 amount of agreed facts than now is the case.
14 I take it, Mr. Mundis, I'm aware of the discussion on the library,
15 and I take that is a part of the discussion on agreed facts. Unless you
16 wish to raise a specific topic on that, I don't see the need for us to
17 dwell into the particulars there. I'm privy to the exchange from the
18 parties on this, and certainly it seems, in terms of the Trial Chamber's
19 point of view, a good idea to try to come to an agreement on the normative
20 aspect, as it were, of the case.
21 I take it from the side of you, Ms. Vidovic, that you don't need
22 to raise this issue either at this point. You nod assent. Thank you very
24 That brings me to what we have touched upon, the anticipation of
25 the length of the trial. We are aware that there are outstanding issues
1 that could impact on it. The present estimate is one for the Prosecution
2 case of four to five months. Is that correct, Mr. Mundis?
3 MR. MUNDIS: Yes, it is, Your Honour, and I believe, if memory
4 serves me, that we had estimated we would require 117 or roughly 120 hours
5 to present the direct examination of the Prosecution case. The numbers
6 were included in the filing that we made with respect to our pre-trial
7 brief and 65 ter number filing, and those numbers, as far as we are still
8 able to determine, are the best estimates available to the Prosecution.
9 JUDGE THELIN: Comments from you, Ms. Vidovic?
10 MS. VIDOVIC: [Interpretation] Your Honour, I have stated more than
11 once that I feel it is unrealistic to have 70 witnesses if the Prosecutor
12 really intends to call 70 witnesses examined in such a brief space of
14 I have to be really candid today. What concerns me is that
15 something might happen which has already happened to me in other cases
16 before this Tribunal. For example, 30 or 40 witnesses might simply be
17 dropped by the Prosecution. This would be a significant problem for us,
18 because we would have wasted time on preparing for our defence case, on
19 preparing to cross-examine 30 or 40 witnesses, instead of focussing on a
20 smaller number of witnesses, 50, for example, who can be realistically
21 examined in this period of time. I would feel this to be unfair, Your
22 Honour, and that's why I'm raising this issue, because I want such a
23 situation to be avoided. I hope we will be informed on time about the
24 exact number of witnesses.
25 Your Honours, I only wish to add that we will need about the same
1 time for cross-examination as the Prosecutor will take for his
3 JUDGE THELIN: Thank you, Ms. Vidovic. Well, I'm fully aware that
4 even the best-laid plans could come to naught or would have to be
5 changed. I also understand your predicament in divesting resources into
6 something that eventually would be deemed to be superfluous. But I'm
7 certain that the Prosecution has, in its assessment, taken that into
8 account and not trying to play trickery with you, in order to exhaust you
9 already before the game has started, by bloating the number of witnesses
10 they seek to call.
11 Your comments are noted, and I think that the time that we have in
12 the immediate future, with the ongoing discussion on disclosure and the
13 ongoing discussion on agreed facts, would make it possible to perhaps come
14 to a firmer assessment also on the part of the Prosecution as to the
15 number of witnesses.
16 What I propose to do is, since my intention is to bring this, as I
17 said initially, to a close as far as the pre-trial phase is concerned and
18 formally report it as ready for trial, which, as you know, is the
19 mechanics -- and you may be aware, and I know this was touched upon
20 yesterday as well, that this case may be one that is going to be moved
21 quicker along the line than was anticipated only six months ago. It has
22 to do with the inner dynamics of planning of cases, which I'm concern that
23 you are both aware of.
24 So my intention is, and that was aired yesterday by the senior
25 legal officer, is to give the parties now a 30-day time window, if you
1 will, during which work is to be done on outstanding matters, and then at
2 the end of this period, a report from both sides as to where we are. And
3 if that yields, Mr. Mundis, a different assessment for your sake on the
4 number of witnesses and hence the scope of the Prosecution's case, that
5 will certainly be reported as for that.
6 So I formally now order the parties to file on Friday, the 30th of
7 March, a report on outstanding issues. On the back of that report, the
8 Chamber would then decide as and when to close the pre-trial phase.
9 Any questions in relation to that, Mr. Mundis?
10 MR. MUNDIS: I don't believe so, Your Honour. If we do, we'll
11 contact the senior legal officer. But I just want to be clear that you're
12 expecting one report from the Prosecution and one from the Defence, or a
13 joint report?
14 JUDGE THELIN: I omitted the word "each." It should be one report
15 each. And were the parties to come to such an agreement that is a joint
16 submission, no one could be happier than I.
17 MR. MUNDIS: I assure you, if we can do that, we'll probably do
18 that. And I at least speak for the Prosecution, but we've had a
19 relatively good relationship with the Defence and we very well may be in a
20 position to do that. But these would be outstanding issues that the
21 parties have identified, then?
22 JUDGE THELIN: Yes.
23 MR. MUNDIS: Thank you.
24 JUDGE THELIN: Ms. Vidovic, do you think you could rise to the
25 occasion and also cooperate in order to produce a joint report on the 30th
1 of March?
2 MS. VIDOVIC: [Interpretation] Your Honour, we shall see. It
3 depends particularly on the disclosure of the translations from Arabic,
4 but I see no reason why we should not be able to file a joint submission.
5 If possible, then certainly I will do my best.
6 JUDGE THELIN: Thank you. We note that and the time is noted by
7 the parties.
8 I then have one question for you and that is if we have any other
9 matter to discussed today.
10 Mr. Mundis.
11 MR. MUNDIS: The Prosecution has nothing further, Your Honour.
12 Thank you.
13 JUDGE THELIN: Thank you, Mr. Mundis.
14 Counsel is conferring.
15 Ms. Vidovic -- oh, Mr. Robson.
16 MR. ROBSON: Good morning, Your Honour. Yes. I just wanted to
17 mention a point that was raised at yesterday's meeting, and that is --
18 JUDGE THELIN: I thought you might.
19 MR. ROBSON: Obviously there's been a degree of discussion between
20 the parties with a view to trying to reach some agreement on facts and
21 narrow the issues. This, of course, will have, hopefully, an impact on
22 reducing the length of the trial. And with a view to that, the Defence
23 will be writing in the next few weeks to the Prosecution with a view to
24 obtaining some clarification.
25 JUDGE THELIN: Thank you. I noted that this was discussed
1 yesterday, and we now have it on record as well for the Status Conference
2 that. That is very helpful. It shows a readiness on the part of the
3 Defence to review matters in a light to come to agreement on certain
4 issues at least.
5 MR. ROBSON: Yes, Your Honour.
6 JUDGE THELIN: Thank you.
7 Well, with that, I think we have reached the close of this Status
8 Conference, and we stand adjourned.
9 --- Whereupon the Status Conference adjourned at
10 9.30 a.m.