Tribunal Criminal Tribunal for the Former Yugoslavia

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1 Thursday, 3 November 2005

2 [Open session]

3 [The accused not present in court]

4 --- Upon commencing at 10.02 a.m.

5 JUDGE KWON: Good morning, ladies and gentlemen. Would the

6 Registrar please call the case.

7 THE REGISTRAR: Yes, Your Honour. Good morning, Your Honour.

8 This is case number IT-04-83-PT, the Prosecutor versus Rasim Delic.

9 JUDGE KWON: Thank you. Can I take the appearances. From the

10 Prosecution.

11 MR. MUNDIS: Good morning, Your Honour, counsel, and to everyone

12 in and around the courtroom. For the Prosecution, Tecla Henry-Benjamin

13 and Daryl Mundis, assisted by our case manager Andres Vatter.

14 JUDGE KWON: Thank you, Mr. Mundis. For the Defence, please.

15 MS. VIDOVIC: [Interpretation] Good morning, Your Honour, good

16 morning to our colleagues from the OTP. I am Vasvija Vidovic. I appear

17 for the Defence of General Rasim Delic. Together with me is Mr. Geoff

18 Roberts, legal assistant.

19 JUDGE KWON: Thank you. There are several outstanding motions. I

20 will deal with those, but before that I would like to go into private

21 session briefly.

22 [Private session]

23 (redacted)

24 (redacted)

25 (redacted)

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11 Page 53 redacted. Private session.















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1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 [Open session]

7 THE REGISTRAR: We are in open session, Your Honour.

8 JUDGE KWON: So the two most important motions of the outstanding

9 motions would be the Defence motion alleging defects in the form of the

10 indictment and the Prosecution motion seeking leave to amend the

11 indictment.

12 Originally I anticipated the Chamber would be able to issue a

13 decision on the Defence motion challenging the form of the indictment so

14 that the Prosecution could incorporate any suggestions from the Chamber,

15 if any, into the proposal to seek the leave to amend the indictment.

16 However, it turned out not to be the case, and we have to sort out a way

17 to deal with these two motions in an appropriate order and manner.

18 According to my observation, the new indictment, if I can call the

19 proposed amendment that way, into three parts. The first one would be the

20 addition of new charges or crime bases under the count of murder and cruel

21 treatment. And the second part would be the addition edited parts of the

22 current indictment as the Prosecution had indicated in the response to the

23 Defence motion as it -- as it would do so. And the third part will be the

24 remaining parts which remain the same as before.

25 So could I propose to the parties not to deal with the second and

Page 55

1 third parts for the moment. That is, the Chamber will consider, first of

2 all, the -- whether to allow the addition of charges.

3 So if the leave was granted, we'll deal with the form of -- the

4 challenge on the form of the indictment altogether, and then if rejected,

5 then we'll deal -- the Chamber will make a decision on the motion which is

6 outstanding in relation to the previous indictment.

7 But I understand there's an issue in relation to the supporting

8 materials for this proposed amendment, and the Chamber has been briefed on

9 the position of the Prosecutor as well as the Defence, but the Chamber

10 made its position very clear in earlier cases. So the Chamber issued a

11 decision in the case of Stanisic and Simatovic on 15th of June this year

12 where it was -- the Prosecution was ordered to disclose the supporting

13 materials to the Defence. So the Chamber deliberated on this matter, so

14 it can be so ordered.

15 For the record, I cite two paragraphs from the earlier decision:

16 "Considering that after the confirmation of the indictment there are no

17 provisions in the Rules or Statute of the International Tribunal that

18 require or permit the supporting materials to be filed ex parte while the

19 Rule explicitly provides that the parties shall be heard.

20 Considering further that to give efficacy to the right of the

21 Defence to be heard on the Rule 50(A)(i)(c) by enabling it to consider

22 whether the proposed amendment might cause unfair prejudice to the

23 accused, it must be furnished with all the material supporting the

24 proposed amendment and that, should there be need for any such material to

25 be given protection, the Prosecution may apply for such protection."

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1 For those reasons, the Chamber ordered the Prosecution to disclose

2 supporting material to the Defence subject to protective measure, if

3 necessary, and it is so ordered here on behalf of the Chamber.

4 Can I ask, Mr. Mundis, whether, having said that, whether you need

5 any kind of protective measures in relation to that. And can I ask when

6 you can complete this disclosure.

7 MR. MUNDIS: One moment, please, Your Honour.


9 [Prosecution counsel confer]

10 MR. MUNDIS: Your Honour, my understanding at this point in time

11 is that there are a few examples of material that was taken from other

12 cases that is subject to, for example, private-session testimony or

13 perhaps even exhibits that were tendered under seal. We will review that

14 material on an expedited basis and inform the Trial Chamber or make a

15 filing as quickly as possible as to which material would require

16 continuing protective measures from previous rulings. There may also be

17 some material that was covered by Rule 70. We'll have to take a full

18 examination, but I don't anticipate that would take a significant period

19 of time.

20 JUDGE KWON: I don't think you need a decision from the Chamber

21 for that purpose.

22 MR. MUNDIS: We would -- we would certainly, however, Your Honour,

23 call to the Chamber's attention and to the attention of the Defence that

24 material which is subject to protective measures in other proceedings.

25 Whether or not we need an order from the Chamber, we feel it's our

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1 responsibility to call to the attention of the Defence and to the Trial

2 Chamber that material which is covered by protective measures in other

3 proceedings.

4 JUDGE KWON: So can I ask you here that -- to disclose them as

5 soon as possible.

6 MR. MUNDIS: We will so do, Your Honour. If I could take this

7 opportunity, my case manager a moment ago also drew to my attention that

8 the version of the indictment which was -- or proposed amended indictment

9 which was filed contained again, under counts 3 and 4, the identities of

10 the victims, which Your Honour is well aware the public version of that

11 material has been filed in a redacted format. So we would ask again if

12 the confidential nature of the proposed amended indictment is released,

13 either the Registry redact the identity of those individuals, or that we

14 be permitted to substitute the redacted version pursuant to the earlier

15 order that allowed us to protect the identities of those victims listed

16 under counts 3 and 4.

17 JUDGE KWON: I assume the Defence would have no opposition as for

18 the protective measures vis-a-vis it's public, but their concern may be

19 whether there should be delayed disclosure to the Defence.

20 MR. MUNDIS: The identities of these victims is known to the

21 Defence, and the statements of these witnesses have been disclosed to the

22 Defence. Our concern at this point in time is the public -- the

23 revelation in public of the identities of these victims listed in counts 3

24 and 4, and Your Honour will recall that previously we had asked that

25 pseudonyms be used in place of their names in the public version of the

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1 indictment. And so to amend what I said earlier in terms of our

2 willingness to consent to lifting the confidential nature of the proposed

3 amended indictment, we would ask that prior to that proposed amended

4 indictment being released to the public, that either the Registry redact

5 the identities of those individuals or that we be permitted to substitute

6 the redacted version with respect to the identity of those three named

7 victims under counts 3 and 4 so that that not be put into the public

8 domain.

9 JUDGE KWON: It should have been so noted by the Defence as well

10 as the registrar. Thank you.

11 So then that said, the Defence would be required to file its

12 response as to the issue of addition of new charges only in 14 days from

13 the receipt of the supporting material.

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

15 JUDGE KWON: Yes. And afterwards, after the Chamber will issue

16 the decision as to the addition of new charges, the Chamber will consider

17 the issue of challenge on the form of the indictment, if any. So if the

18 Defence -- this is the case when the amendment was -- leave to amend the

19 indictment was granted -- would be granted. If the Defence is going to

20 file a challenge on the amended indictment, I would like to request the

21 Defence to incorporate all the submissions submitted in the previous

22 filing into the new motion so thereby replacing the old motion for the

23 convenience of the Chamber to consider the matter.

24 Could you do that, Ms. Vidovic?

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

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1 JUDGE KWON: Thank you, Ms. Vidovic.

2 There's one matter for which I would like to ask a clarification

3 from the Prosecution, which arose in the course of the deliberation of the

4 Chamber on the issue of the challenge on the form of the indictment, and

5 that is related to the character of the conflict pleaded in the

6 indictment.

7 One of the challenge of the Defence is that character of the armed

8 conflict has not been specifically pleaded in the indictment, whether it

9 is an international armed conflict or internal armed conflict, and the

10 Prosecution's response is that in the case of Article 3, the character of

11 the armed conflict is not a material fact, and I can -- in a general sense

12 I can understand that, but in one of the paragraphs -- is it paragraph 17?

13 Let me check. I think it's paragraph 10. There's a mention of the

14 alleged involvement of the army of the Republic of Croatia, HV. So my

15 question is: Why do you need that passage? In other words, whether the

16 Prosecution intends to establish any commission of any offences for which

17 an international armed conflict nexus is required.

18 MR. MUNDIS: The simple answer is no, and that's another reason in

19 conjunction with our position with respect to Article 3 and the charges in

20 this indictment, that we don't need to characterise the armed conflict as

21 being either international or non-international, and that is a position

22 that is, I believe, consistent throughout the pleadings of the OTP.

23 I simply add also, Your Honour, that in -- it is possible that

24 evidence will be led during the course of the trial that at least mentions

25 the involvement of the HV, and we took the position that we should

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1 specifically insert that so as to avoid any potential problems later as to

2 the relevance of why evidence or witnesses were testifying about the

3 involvement of the HV. And so it's not necessarily a fact that is -- that

4 is absolutely critical or crucial to the Prosecution case, but on the

5 other hand, we do anticipate that evidence will be not necessarily led but

6 will be put before the Trial Chamber --

7 JUDGE KWON: That's nothing to do with the material facts of the

8 case.

9 MR. MUNDIS: Right.

10 JUDGE KWON: So can I take it that the Prosecution wouldn't mind

11 if the Chamber would order to take out that passage?

12 MR. MUNDIS: Well, again our position would be that if we -- if we

13 were then precluded from any evidence being led, whether it was

14 intentional or whether a witness simply blurted out that the HV was

15 involved in the armed conflict, we would not want that evidence

16 necessarily to be stricken from the record for the simple reason that the

17 Defence said there's no reference to the HV in the indictment.

18 JUDGE KWON: My question is this: If that is not a material fact,

19 why would the Prosecution need that kind of evidence at all?

20 MR. MUNDIS: Well, we -- about all I can say at this point, Your

21 Honour, is that we have had similar issues arise in a number of other

22 cases where witnesses, in answering questions on their own have, in

23 effect, blurted out the presence of foreign armed forces in the territory

24 of Bosnia, and that has in some cases presented difficulties when the

25 parties then objected or asked that that material be excluded. So it was

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1 simply put in there in an abundance of caution so that in the event any

2 witnesses were to testify, or there were to be any documents that

3 mentioned the presence of HV units on the territory of Bosnia and

4 Herzegovina at the relevant time period, that that evidence would be part

5 of the overall context in which the alleged crimes took place. So it

6 could be part of the overall context in which the crimes, particularly in

7 Central Bosnia, occurred and took place.

8 JUDGE KWON: Thank you. I assumed that it may be related to

9 overall Prosecution position as to the nature of the conflict.

10 MR. MUNDIS: That's correct.

11 JUDGE KWON: Thank you. So did I make it clear that after the --

12 if the decision granting the amendment be issued, the Defence would file

13 preliminary motions, if any, in 30 days. A comprehensive one replacing

14 the previous one. Thank you.

15 And one -- another minor matter in relation to the amendment.

16 Annex B is a so-called red-line version, but I don't think it reflects all

17 the changes in the new indictment. Give me a minute.

18 So let us, for example, take paragraph 17 of the new indictment.

19 It says it added -- did you find it, Mr. Mundis?

20 MR. MUNDIS: Yes, Your Honour.

21 JUDGE KWON: It added "From 8th of June, 1993 until 12th of

22 January, 1995," which is not reflected here, and the "307th Motorised

23 Brigade" is a replacement for the previous text which is "7th Muslim

24 Mountain Brigade." So to the reader it is not clear how it was changed.

25 So if you -- the Prosecution could file, replace the Annex B with the

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1 so-called red-line version or "track change" version later on, it would

2 assist the Chamber as well as the Defence.

3 MR. MUNDIS: We will do so.

4 JUDGE KWON: Thank you. And -- thank you, Mr. Mundis.

5 There are other several motions. For example, Defence motion

6 seeking access to all confidential material in Kordic and Blaskic cases.

7 And also there's Prlic's motion for access to all confidential material in

8 Delic. The Chamber will consider these matters and issue its decision in

9 due course.

10 But could I ask Ms. Vidovic whether the Defence is minded to

11 respond to the Prlic's motion.

12 MS. VIDOVIC: [Interpretation] No, Your Honour.

13 JUDGE KWON: Thank you. Can I ask the parties whether there's

14 anything to raise in relation to the issue of disclosure. Mr. Mundis?

15 MR. MUNDIS: No, Your Honour, we don't have anything at this point

16 in time to add to what was said at the 65 ter meeting. Disclosure is

17 ongoing.

18 JUDGE KWON: Ms. Vidovic.

19 MS. VIDOVIC: [Interpretation] No, Your Honour. Yesterday, we met

20 with the Prosecutor, and we submitted a letter to him. We're still

21 working on that, so we have nothing at present. Thank you.

22 JUDGE KWON: Any other matters to raise at this moment?

23 MR. MUNDIS: Not from the Prosecution, Your Honour.

24 MS. VIDOVIC: [Interpretation] No, Your Honour.

25 JUDGE KWON: Give me a minute. Can I see the legal officer,

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1 please.

2 [Trial Chamber and legal officer confer]

3 JUDGE KWON: Yes, Ms. Vidovic.

4 MS. VIDOVIC: [Interpretation] Your Honour, yesterday I promised

5 that I would give an answer to a question, namely why we filed a motion

6 for access to confidential material in the Blaskic case to Trial Chamber

7 III. What we bore in mind was this was a different procedure according to

8 75(G)(ii). However, it's no problem. We can send it to another Trial

9 Chamber, too, but it was my assumption that there was a different

10 procedure involved before Trial Chamber III.

11 JUDGE KWON: I think there is no Trial Chamber seized of the first

12 proceeding, so I think it is this Chamber, seized of the second

13 proceeding, to deal with the matter.

14 So there are no further matters. This hearing is adjourned.

15 --- Whereupon the Status Conference adjourned

16 at 10.30 a.m.