Tribunal Criminal Tribunal for the Former Yugoslavia

Page 177

1 Monday, 2 July 2007

2 [Pre-Trial Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.17 p.m.

6 JUDGE MOLOTO: Good afternoon, everybody. Just before we start

7 and because we've got our new judge today, let me start off by saying that

8 the Bench in this Trial Chamber is composed of Judge Lattanzi on my left,

9 Judge Harhoff on my right, and myself, Judge Moloto. May we please have

10 the appearances starting with the prosecution. Mr. Mundis.

11 MR. MUNDIS: Thank you, Mr. President, Good afternoon, Your

12 Honours, counsel and everyone in and around the courtroom. For the

13 Prosecution, Daryl Mundis. I'm assisted today by my co-counsel, Kyle

14 Wood, Laurie Sartorio, Aditya Menon and we're assisted today by our case

15 manager, Alma Imamovic.

16 JUDGE MOLOTO: Thank you, Mr. Mundis. Ms. Vidovic for the

17 Defence?

18 MS. VIDOVIC: [Interpretation] Good afternoon, Your Honours, I'm

19 Vasvija Vidovic, attorney at law from Sarajevo, together with Mr. Nicholas

20 David Robson, attorney at law from Great Britain. I represent the Defence

21 of General Rasim Delic. Together with us is Ms. Lana Deljkic our case

22 manager and our legal assistants, Lejla Gluhic and Asja Zujo.

23 JUDGE MOLOTO: Thank you very much, Ms. Vidovic.

24 The next item I would like us to deal with is the condition of

25 Mr. Delic. General Rasim Delic returned to the UNDU on Monday, the 25th

Page 178

1 of June after being on provisional release following the Trial Chamber's

2 decision of the 6th of May 2005.

3 Can the accused hear the proceedings in a language that he

4 understands?

5 THE ACCUSED: [No interpretation]

6 JUDGE MOLOTO: Thank you very much, Mr. Delic. Mr. Delic, can you

7 tell us about your health. Are you okay? Are you healthy? Do you have

8 any complaints about your health?

9 THE ACCUSED: [Interpretation] Your Honours, the stage of

10 adaptation is over. I'm healthy and as far as I'm concerned, we are trial

11 ready.

12 JUDGE MOLOTO: Thank you very much, Mr. Delic. And do you have

13 any complaints about your conditions of detention at the UNDU?

14 THE ACCUSED: [Interpretation] No, no. No complaints. I cannot

15 expect a hotel, so everything is in accordance with the prescribed

16 conditions. I as a soldier have no complaints in terms of anybody's

17 conduct or the conditions there. Thank you.

18 JUDGE MOLOTO: Thank you very much, Mr. Delic. You may be seated.

19 The next item on the agenda relates to opening statements. At the

20 65 ter conference on the 29th of June 2007, the Prosecution indicated that

21 its opening statement would take a maximum of one court day or about three

22 to three and a half hours. The Defence indicated that in accordance with

23 Rule 84, it elects to make its opening statement after the Prosecution's

24 presentation of evidence. The Defence also indicated that the accused

25 will not make a statement pursuant to Rule 84 bis. Do you confirm that,

Page 179

1 Mr. Mundis?

2 MR. MUNDIS: Yes, Your Honour, thank you.

3 JUDGE MOLOTO: Thank you very much.

4 And Ms. Vidovic?

5 MS. VIDOVIC: [Interpretation] That is correct, Your Honour.

6 JUDGE MOLOTO: Thank you very much.

7 And you do confirm, Madam Vidovic, that it is still the position

8 of the accused not to make a statement in terms of Rule 84 bis today?

9 MS. VIDOVIC: [Interpretation] Yes, Your Honour.

10 JUDGE MOLOTO: Thank you.

11 Well, then we would expect then to call the first Prosecution

12 witness on July the 10th. Okay.

13 The next item relates, then, to pending motions. Then again at

14 the 65 ter conference, the parties were informed that decisions on the

15 pending motions would be taken by the Trial Chamber and that decisions

16 would be forthcoming in the near future. With respect to the pending

17 Prosecution motion to amend its 65 ter witness and exhibit lists, it could

18 be noted, as was done at the 65 ter conference on the 29th of June 2007,

19 that the impact of this motion has been considered during the assessment

20 of the length of time to be awarded to the Prosecution for presentation of

21 evidence and the number of Prosecution witnesses.

22 I would like us to deal then with item 6, the time available for

23 presenting Prosecution evidence and the number of witnesses. The Trial

24 Chamber will now deal the matter of determination of the number of

25 witnesses the Prosecution may call on the time available to the Prosecutor

Page 180

1 for presenting evidence pursuant to Rule 73 bis(C) of the rules. The

2 Trial Chamber has considered the Prosecution's 65 ter witness list, which

3 was filed on the 31st of October 2006. The Trial Chamber has also taken

4 into consideration the Prosecution's motion for leave to amend its witness

5 list filed on the 4th of June 2007 and the subsequent defence response.

6 The Trial Chamber notes that there are several areas where the

7 Prosecution intends to call numerous witnesses to testify about the same

8 events or who will provide similar information. In particular, the Trial

9 Chamber considers that in relation to the following areas, the Trial

10 Chamber does not see any need to call all the witnesses listed by the

11 Prosecution or at least no need to hear all of them viva voce.

12 And these areas are: 1, the El Mujahid detachment. 2, the

13 alleged killings in Maljine and Bikosi. 3, the operations around Vozuca

14 in 1995, 4. The Kamenica camp. 5, the 3rd Corps structure and command

15 and control. And 6, prisoners of war. In light of its assessment of the

16 subject matter of the testimony of the witnesses, the Trial Chamber sets

17 the number of witnesses to be called by the Prosecution at 55.

18 And the Trial Chamber also determines that 170 hours will be

19 available to the Prosecution for the presentation of evidence. This time

20 reflects the time available for direct examination, cross-examination and

21 redirect, and allows for other procedural matters.

22 Is there -- did you want to say something, Mr. Mundis?

23 MR. MUNDIS: No, Your Honour.

24 JUDGE MOLOTO: Okay. Thank you very much. Can we then move on to

25 item 7, which is the 92 bis motions, 92 ter motions and motions for

Page 181

1 protective measures.

2 Now, at the 65 ter conference, the parties were informed of the

3 Trial Chamber's preference that the parties submit combined motions under

4 Rule 92 bis, Rule 92 ter and for protective measures. The Prosecution

5 noted that the Defence would require all witnesses indicated as 92 bis

6 witnesses in attendance for cross-examination. It is in view of this

7 opposition of the Defence that the Prosecution chose to call many of the

8 witnesses listed as 92 bis and 92 ter as viva voce witnesses. The

9 Prosecution stated that it seeks guidance of the Trial Chamber in this

10 respect. It should be noted that the Prosecution gave no indication at

11 the 65 ter conference of when it will file motions for protective

12 measures.

13 A question that I might put to the Prosecution, Mr. Mundis, is:

14 Can you just clarify what guidance the Prosecution requires in respect to

15 this matter?

16 MR. MUNDIS: Thank you, Mr. President, Your Honours. Of course,

17 the 65 ter procedure and the filing of the witness list pursuant to Rule

18 65 ter makes reference to which witnesses the Prosecution intends to call

19 by way of 92 bis and there has been some conflicting jurisprudence as to

20 whether once a party indicates a witness is to be a 92 bis witness,

21 whether that is binding or whether that is simply a reflection at the time

22 the witness list is filed as to whether that is an intention or whether

23 it's something that's binding.

24 We then engaged the Defence in some written correspondence on this

25 issue, as Your Honour has just referred to that, and so what we were

Page 182

1 seeking was some kind of guidance from the Trial Chamber with respect to

2 the Chamber's position concerning the witnesses that we previously

3 indicated that we would seek to lead by way of Rule 92 bis and whether the

4 Trial Chamber's view was that we were bound by that or whether there was

5 some flexibility afforded to us in terms of what we now know to be an

6 overall number of witnesses that we are permitted to call. In other

7 words, from that list, those ones which we previously indicated as being

8 92 bis, whether we are in effect stuck with that or whether there was some

9 flexibility for us to call those witnesses live, particularly if we

10 thought that the direct examination of such witnesses could be conducted

11 in a rather expeditious manner.

12 JUDGE MOLOTO: Thank you. And how soon would you like to have

13 this guidance?

14 MR. MUNDIS: Well, Your Honour, three of the first ten witnesses

15 that are currently scheduled fall into that category as to being witnesses

16 that we had previously indicated would be Rule 92 bis witnesses which are

17 now being proposed to be called as viva voce witnesses.

18 JUDGE MOLOTO: I understand that. My question still stands.

19 MR. MUNDIS: Well, it would require at this point, Your Honours,

20 if we are were to have a ruling that said that those witnesses had to be

21 92 bis witnesses, it might require us to jiggle the schedule for the first

22 three weeks of the trial somewhat in order to accommodate what the Trial

23 Chamber has just now ruled in terms of overall numbers of witnesses.

24 JUDGE MOLOTO: Can I press you a little bit harder? How soon

25 would you like the guidance?

Page 183

1 MR. MUNDIS: If we could have it by the end of today, that would

2 be very helpful.


4 [Trial Chamber confers]

5 JUDGE MOLOTO: Okay. The Trial Chamber has decided that you are

6 not bound by the choice you made earlier to make them 92 bis witnesses.

7 If you want to change them into viva voce witnesses, you are allowed to do

8 so. In return, the Trial Chamber would like to get some kind of answers

9 from you: How soon do you think the Prosecution would be in a position to

10 give the final list of the 55 witnesses allowed?

11 MR. MUNDIS: Your Honour, I believe that we could probably do that

12 within five days of the decision concerning whether we are allowed to add

13 any additional witnesses pursuant to the pre-trial motion that we've

14 filed. I believe once we know whether we are going to be allowed to add

15 any of those witnesses that we've proposed, I think within five days of

16 that decision of the Chamber, we could be in a position to supply that

17 information.

18 JUDGE MOLOTO: But in the decision that we just rendered about the

19 number of witnesses that the Prosecution is allowed to call, it is

20 indicated that it includes even that motion. That motion has been taken

21 into account. So in totality, the Prosecution is allowed 55 witnesses,

22 full stop.

23 MR. MUNDIS: I understand that, Your Honours, but if the question

24 is which 55 witnesses I'm going to call, I currently have, I believe 77

25 witnesses on the list. We've proposed adding a number to that and I would

Page 184

1 need to know the total pool of potential witnesses that I'm allowed to

2 call so that I could select which 55 I would call. Perhaps I'm

3 misunderstanding the question.

4 JUDGE MOLOTO: From the total number of witnesses that you have at

5 your disposal, you can pull 55. Which 55, the decision is yours.

6 MR. MUNDIS: Including the 12 additional witnesses I --

7 JUDGE MOLOTO: Including the 12 additional.

8 MR. MUNDIS: Then we would be in a position, say, by immediately

9 prior to the start of the trial, if I could have until perhaps Monday

10 morning, if need be. I would try to come up with a complete list by

11 Friday but just to be on the safe side, in light of other pressing issues

12 including as you can well imagine getting the trial under way, if we could

13 have say until Monday at 1300 hours I will provide the Trial Chamber and

14 the Defence with the list of the 55 witnesses we would call, taking into

15 account also the 170 hours.

16 JUDGE MOLOTO: Anything from your side, Madam Vidovic?

17 MS. VIDOVIC: [Interpretation] Your Honours, the deadline, the

18 Monday deadline, is acceptable, provided that there are no changes in

19 terms of the first ten witnesses on the list, the witnesses who are

20 supposed to testify from the 10th onwards. If there is any change, then

21 we would like to be notified of that straight away.

22 MR. MUNDIS: I apologise. I will give a commitment right now that

23 the witnesses that are currently scheduled for the first three weeks of

24 the trial, we will not change that. Simply because of time constraints we

25 would find it virtually impossible to do so, anyway. So I will give a

Page 185

1 commitment that of the 55 witnesses to be selected, the ten that are

2 currently scheduled will remain among the 55.

3 JUDGE MOLOTO: Thank you very much, Mr. Mundis, for the

4 clarification. Is that all from you, Madam Vidovic?

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

6 JUDGE MOLOTO: Thank you very much.

7 I guess then that disposes of that item unless anybody has

8 anything to say. I see Mr. Mundis nods. And you just said you haven't

9 got any more to say, Ms. Vidovic.

10 Could we then move on to item 8, the order and witnesses and lists

11 of exhibits to be used. Now, the parties are expected to inform the Trial

12 Chamber of the calling order of the witnesses at the end of every week for

13 the coming two weeks. In other words, for every two weeks in advance.

14 Moreover, the parties are expected to inform the Trial Chamber at least

15 five working days in advance of any changes to the calling order. And

16 lastly, the parties are required to provide a list of the documents which

17 they intend to use for the direct examination of each witness at least the

18 day before the start of the witness's testimony.

19 Any comments on that, Mr. Mundis? I see you smiling.

20 MR. MUNDIS: No. No comments, Mr. President. Thank you.

21 JUDGE MOLOTO: And Madam Vidovic?

22 MS. VIDOVIC: [Interpretation] Your Honours, I would just like to

23 have a particular matter clarified. One day before the testimony does not

24 put any obligation on the cross-examining side to provide the list of

25 documents that they will use during the cross-examination. That is how I

Page 186

1 understood the 65 ter meeting. Is my understanding of this correct?

2 JUDGE MOLOTO: It is correct, ma'am.

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

4 JUDGE MOLOTO: Okay. Now, the Trial Chamber notes also that the

5 list of documents which will be used for a particular witness may change

6 as a result of the proofing of witnesses and the parties are requested to

7 inform the Trial Chamber of any such changes to the list of documents as

8 soon as possible to the extent possible. Okay?

9 The Trial Chamber also notes that as a result of new information

10 coming out of proofing sessions, it may be necessary to provide proofing

11 notes to the opposite party which update the 65 ter summary of the

12 relevant witness. The parties are requested also to submit such proofing

13 notes to the Trial Chamber. Thank you very much.

14 Any comment, Mr. Mundis?

15 MR. MUNDIS: No, Your Honour, thank you.

16 JUDGE MOLOTO: Madam Vidovic?

17 MS. VIDOVIC: [Interpretation] Your Honours, that is the position

18 of the Defence. We accept your interpretation, the one that you have just

19 given.

20 JUDGE MOLOTO: Thank you very much. If there is nothing else,

21 then maybe we can move on to item number 9: Outstanding translations and

22 disclosure matters. Now, in view of what the parties stated at the 65 ter

23 conference, do the parties have anything to add concerning translations or

24 disclosure?

25 Mr. Mundis?

Page 187

1 MR. MUNDIS: Prosecution has nothing to add. Thank you.

2 JUDGE MOLOTO: Madam Vidovic?

3 MS. VIDOVIC: [Interpretation] Your Honour, we have nothing to add

4 concerning translations, and even concerning disclosure, I'll be very

5 brief. The issue of witnesses whose statements we received in the form of

6 audio recordings is very important to us. In particular, we have received

7 statements of some important witnesses whose statements are in the form of

8 very long audio recordings. We already discussed this with the

9 Prosecution. (redacted)

10 (redacted). He's on the list. For him, we have only 12

11 and a half hour audio recording. The Prosecutor has promised to disclose

12 the transcript of that audio recording this week. What we have so far are

13 two excerpts, completely disjointed, and it would be a great problem for

14 to us prepare for cross-examination without complete transcripts. We

15 wouldn't be able to instruct our investigators. I am not going to mention

16 other names now. I'm going to submit a letter to the OTP on the subject,

17 and I also informed the Prosecutor at the 65 ter conference that we have a

18 number of very important witnesses for whom we don't have transcripts of

19 audio statements. Still I thought it would be a good idea to raise the

20 subject once again here, to have it on the record. As for other

21 disclosure issues, I have nothing to add to what I have already said at

22 the 65 ter conference.

23 JUDGE MOLOTO: Thank you very much, Madam Vidovic. Mr. Mundis, do

24 you have any response?

25 MR. MUNDIS: Thank you, Your Honour, we've responded to these

Page 188

1 concerns at the 65 ter conference. I believe the record adequately

2 reflects the fact that we are doing everything possible to get this

3 material transcribed and translated as quickly as possible and we will

4 disclose these tapes or the transcripts of these tapes to the Defence as

5 they become available without any further delay, which explains, as

6 Ms. Vidovic indicated, why some of them were disjointed. We are well

7 aware of this problem. We don't have transcripts of the tapes ourselves.

8 It's a big problem. We have disclosed the audiotapes themselves so that

9 they have the benefit of being able to listen to the interviews but

10 clearly it's much quicker and much more effective to work from the

11 transcripts rather than the tapes. We are doing everything possible to

12 get the tapes transcribed and translated as quickly as possible.

13 JUDGE MOLOTO: Do I understand that the delay is not just in the

14 transcribing but it's also in the translation?

15 MR. MUNDIS: We have taken steps, Your Honour, to provide the

16 B/C/S transcripts before the English translations are done of them so that

17 the interviews are conducted with simultaneous or consecutive

18 interpretation so that when you listen to the tape you hear question in

19 English, question in B/C/S, answer in B/C/S, answer in English so that the

20 transcribers actually work from only one language at a time and we have

21 expedited the transcription of the B/C/S transcripts rather than the

22 English transcripts to get this material into the hands of the Defence as

23 quickly as possible.

24 JUDGE MOLOTO: Thank you very much. I do remember reading that

25 from the transcript of the 65 ter conference.

Page 189

1 Madam Vidovic, are you happy or --

2 (redacted)

3 (redacted)

4 (redacted). Unless we get it until the

5 end of this week, we would be hard put to prepare our cross-examination.

6 I therefore urge the Prosecution to make arrangements with the appropriate

7 service of the Tribunal to have this transcribed as soon as possible.

8 General Delic would also like to read the transcript in the language he

9 understands.

10 (redacted)

11 (redacted)

12 MR. MUNDIS: Your Honour, I'm hopeful as I indicated last week

13 that we will have that complete by the end of this week. I cannot give a

14 guarantee of that. I'm personally incapable of doing the transcriptions

15 myself or I would do them. I believe we have one or two additional tapes

16 to be disclosed to the Defence today or transcripts of two or three of the

17 additional tapes today. Those will be made available and my case manager

18 is hopeful that we can get this done in two to three days but hopefully by

19 the end of the week at the latest.

20 JUDGE MOLOTO: Now, let's sort of get clarity. If you got this by

21 the end of the week, Madam Vidovic, would that be okay with respect to

22 this specific witness?

23 MS. VIDOVIC: [Interpretation] It will, Your Honour.

24 JUDGE MOLOTO: Thank you very much. Then let us hope, then, that

25 the Prosecution can provide the transcript by the end of this week, and

Page 190

1 possibly -- if it's not possible, is there a possibility that this witness

2 can be scheduled to come a little later?

3 MR. MUNDIS: That's possible, Your Honours. The flip side of

4 that, of course, is whether it's possible to schedule other witnesses to

5 fill the three or four days that this witness was scheduled to take.(redacted)

6 (redacted)

7 (redacted). I'm pretty

8 confident that sometime after the summer break he would be in a position

9 to do that. But then again we very well might be faced with similar

10 problems for any witness or witnesses that we would have to slot in to

11 take his place. So that would be a concern but again, I don't anticipate

12 there being a problem by getting this material into the hands of the

13 Defence by Friday. We will disclose additional material relating to this

14 witness today, and we will disclose the remaining material as soon as it's

15 available from the unit that's doing the transcriptions.

16 JUDGE MOLOTO: Okay. Thank you very much, Mr. Mundis.

17 I guess that's as far as we can take it, Madam Vidovic. Thank you

18 very much.

19 Can we then move on to item 10 which relates to guidelines? Now,

20 as indicated at the 65 ter conference, after the Pre-Trial Conference, the

21 Trial Chamber will provide the parties with two sets of proposed

22 guidelines. The first one will be guidelines on the standards governing

23 the admission of evidence and the second one will be the guidelines on the

24 standards governing presentation of evidence and conduct of counsel in

25 court. The parties' comments are to be submitted in writing by Tuesday,

Page 191

1 the 10th of July. Would that be okay? Thank you very much.

2 Any comment, Mr. Mundis?

3 MR. MUNDIS: Nothing from the Prosecution, thank you.

4 JUDGE MOLOTO: From the Defence?

5 MS. VIDOVIC: [Interpretation] That's all right, Your Honour.

6 Thank you.

7 JUDGE MOLOTO: Thank you very much.

8 (redacted)

9 (redacted)

10 (redacted)

11 [Private session]

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

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11 Page 192 redacted. Private session















Page 193

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 [Open session]

8 THE REGISTRAR: We are now in open session.

9 JUDGE MOLOTO: Thank you very much.

10 I'm sorry about that.

11 Can we move to the item dealing with scheduling? The following

12 scheduling issues are known I think at the moment, that due to the plenary

13 on the 12th of July, the trial will not sit beyond 4.00 in the afternoon.

14 And also, that on the 27th of July, the Chamber will not sit for

15 the whole day.

16 The parties are informed that discussions are ongoing in the

17 Registry and Chamber concerning the scheduling of seven trials. It seems

18 to be a very difficult exercise. And we are being accommodated as far as

19 it is possible. Thank you very much.

20 Are there any other matters that the parties would like to raise

21 which may perhaps not have been mentioned on the agenda?

22 Yes, Mr. Mundis?

23 MR. MUNDIS: The Prosecution has nothing further. Thank you, Your

24 Honours.

25 JUDGE MOLOTO: Thank you very much. Madam Vidovic?

Page 194

1 MS. VIDOVIC: [Interpretation] The Defence has nothing further,

2 Your Honour, thank you.

3 JUDGE MOLOTO: Thank you very much. Then there being no further

4 business, that brings us to the end of the Pre-Trial Conference, except

5 until we have to hear what Mr. Doraiswamy has to say before we close.

6 [Trial Chamber and registrar confer]

7 JUDGE MOLOTO: This conference stands adjourned.

8 --- Whereupon the hearing adjourned at 2.53 p.m.