Tribunal Criminal Tribunal for the Former Yugoslavia

Page 69

1 Thursday, 29 June 2006

2 [Status Conference]

3 [Open session]

4 [Accused not present]

5 --- Upon commencing at 5.00 p.m.

6 JUDGE THELIN: Good afternoon. Could we have the case called,

7 please?

8 THE REGISTRAR: Good afternoon, Your Honour. This is case number

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

10 JUDGE THELIN: Thank you. And for the record, the appearances for

11 the parties, Prosecution?

12 MR. MUNDIS: Thank you, Your Honour. For the Prosecution, Daryl

13 Mundis, assisted today by Tecla Henry-Benjamin, Kyle Wood, our intern

14 Kornelis Kasper and our case manager, Carmela Javier.

15 JUDGE THELIN: Thank you very much and for the accused?

16 MS. VIDOVIC: [Interpretation] Good afternoon, Your Honour. Good

17 afternoon to the Prosecution. My name is Vasvija Vidovic and together

18 with Ms. Quincy Whitaker we represent Mr. Rasim Delic. With us is our

19 legal assistant, Mr. Geoff Roberts.

20 JUDGE THELIN: Thank you very much. And we note the accused is

21 enjoying provisional release. Will there be any matters in connection

22 with that that needs to be reported?

23 MS. VIDOVIC: [Interpretation] Thank you, Your Honour, but no.

24 JUDGE THELIN: Thank you.

25 Well, as the parties are well aware, this is the -- if my

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1 calculation is correct and as parties know, I'm a new Pre-Trial Judge on

2 this case, it's the 6th Status Conference and the case has been going on

3 for nearly one year and a half. I think the issues that have been, if you

4 will, occupying the parties and the Trial Chamber are close to a

5 resolution and it means that, I think, we could be able to see the

6 pre-trial phase end with the end of this year, and I'm aware that the

7 parties met with the Senior Legal Officer two days ago in a 65 ter

8 conference and let me remind you that any issues that were discussed at

9 that point, you do not need to raise here again.

10 The way I want to proceed is just to check some of the matters

11 regarding disclosure, first of all, and then we will go over and discuss

12 the way forward, as it were. Let me, before that, indicate, which I'm

13 certain that was discussed also two days ago, that the pending motion of

14 the indictment, I had hoped to be able to inform you that the decision of

15 the Chamber was either taken, been filed or could be filed tomorrow. I'm

16 afraid we will have to wait until next week but I think I can assure the

17 parties that the decision will be handed down in such good time before the

18 recess that should any of the parties seek, request for certification, in

19 order to appeal it I think that could be well dealt with within the normal

20 time-frame that we have from now and until the recess.

21 Any questions, Prosecution or Defence has on this point? The

22 Prosecution?

23 MR. MUNDIS: No, Your Honour.

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

25 JUDGE THELIN: I also note for the record that that is not a

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1 matter for the trial level, that there is a pending case regarding the

2 accused's request for material in the Blaskic case and that is being dealt

3 with by the Appeals Chamber so that is at the moment of no concern to us.

4 Could we then turn to where we are regarding the disclosure

5 matters and let me say that I'm grateful for Prosecution for having

6 submitted the status following the request done at the 65 ter Conference

7 and I think it would be proper for you to comment and give the information

8 which you handed over, so please.

9 MR. MUNDIS: Thank you, Your Honour. Pursuant to the request of

10 Mr. Boas at the 65 ter Conference, we did reduce to writing as Your Honour

11 has indicated the disclosure status to date and again at the outset I note

12 that in cooperation with the Defence we have taken a very liberal

13 disclosure policy and have disclosed all witness statements taken in the

14 course of the investigation of this case, which is why there are

15 significantly more witness statements disclosed pursuant to Rule 66(A)(ii)

16 than we anticipate actually calling at trial. Having said that, based on

17 the information as of yesterday our records indicate we've disclosed 28

18 witness statements pursuant to Rule 66(A)(i), that would be supporting

19 material, we have disclosed 156 statements pursuant to 66(A)(ii) from

20 which we will eventually determine a pool of witnesses that we will call

21 at trial, and we have disclosed two witness statements pursuant to Rule

22 68(i). Again pursuant just for sake of completeness we have indicated

23 that at this point we will call approximately 70 witnesses at trial, of

24 which approximately 15 we would expect would be written witness statements

25 or written testimony in the form of transcripts from prior cases. We

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1 would anticipate an approximate additional 15 witnesses by way of which we

2 would seek to use Rule 89(F) to adduce their testimony and we would at

3 this point anticipate the likelihood that we would be calling two expert

4 witnesses, one dealing with military issues and one dealing with what is

5 colloquially known as the Mujahedin issue, and depending on circumstances

6 relating to a currently ongoing exhumation site there may be a package of

7 forensic expertise in the form of perhaps pathologists or archeologists --

8 or anthropologist that is we may seek to be calling. That exhumation site

9 was recently discovered and currently is being worked upon.

10 So again, those -- Your Honour, at this point in time, are the

11 figure that is we provided to the legal officer, Senior Legal Officer

12 yesterday pursuant to his request at the 65 ter Conference held the day

13 before yesterday.

14 JUDGE THELIN: Thank you. Before I let the counsel for the

15 accused comment on this, could I ask you, Mr. Mundis, if you have in light

16 of the number of witnesses that you now anticipate you would call, and

17 also conditioned obviously upon the decision regarding the scope of the

18 indictment, whether it would be possible for you to estimate in a number

19 of months the size of the Prosecution case.

20 MR. MUNDIS: Well --

21 JUDGE THELIN: If you haven't done that exercise I will not press

22 you to do it but if you have, please reveal it to us.

23 MR. MUNDIS: I have in fact, Your Honour anticipated that that

24 question may be one that would be put to us. Based on the figures and the

25 estimates that we currently have at this point in time, and again subject

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1 to also in terms of cross-examination times, we would anticipate that the

2 Prosecution case, as it currently exists with the currently existing

3 indictment, would require approximately four to five months for the

4 Prosecution phase of the case. Again, assuming that the cross-examination

5 times were roughly the same amount of time required by the Prosecution in

6 its direct examination of the witnesses. Again, Your Honour would be very

7 familiar with the filings concerning the proposed amendments. Again, we

8 don't anticipate that, were the Chamber to grant leave to amend, that that

9 time would be significantly lengthened due to the fact that the three

10 proposed crime bases have been the subject of prior litigation or partial

11 litigation. So again we are looking we believe at this point in time a

12 Prosecution case of approximately four to five months or perhaps five to

13 seven months if the Chamber were to grant us leave to amend to include the

14 additional three crime bases.

15 JUDGE THELIN: Thank you very much, Mr. Mundis.

16 Comments from counsel for the accused on this?

17 MS. VIDOVIC: [Interpretation] No, Your Honour. Thank you.

18 JUDGE THELIN: I take that to mean that you are in accord with the

19 estimates that the Prosecution has done and, as far as you can view it,

20 it's a question of the amount of cross-examination. I seem to recall that

21 I saw that you wanted more than the double time that Mr. Mundis

22 anticipated. Is that correct?

23 MS. VIDOVIC: [Interpretation] Your Honour, what I said last time,

24 at the Status Conference, the last Status Conference, and what I asked the

25 registry is that they be a little more realistic in assessing the time

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1 necessary for the production of evidence, and I still consider that it is

2 more realistic to go along with the second point the Prosecution made,

3 that their part will last five to seven months and we will certainly need

4 the same time for the cross-examination as they take for the

5 examination-in-chief, and in certain cases, longer. We will need more

6 time than the Prosecution spends on the examination-in-chief and we are

7 going to ask the Trial Chamber to give us that time.

8 JUDGE THELIN: Thank you very much. Well, we are shooting as it

9 were at the moving target so I don't think there is it any need at this

10 point to try to narrow it down more. But we're looking at something

11 around six months for the Prosecution case regardless of the outcome of

12 the decision on the indictment, given the comments from counsel now.

13 Could I then move it something that we haven't touched upon which

14 is the question of adjudicated facts which obviously also would be linked

15 to the scope of the Prosecution case?

16 I would like to hear Mr. Mundis on this, please.

17 MR. MUNDIS: Thank you, Your Honour. We have given this issue

18 some thought as well and again it was briefly discussed with -- at the

19 Status Conference or the - excuse me - the 65 ter Conference. Part of the

20 issue here as Your Honour is well aware is that the crimes that are

21 charged in the current indictment, the Maline/Bikosi crime base has been

22 the subject of litigation in the Hadzihasanovic and Kubura case. The

23 Kamenica camp part of the indictment has never been litigated here before.

24 The Hadzihasanovic case is under appeal or a number of issues from that

25 case are under appeal so that the potential for adjudicated facts with

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1 respect to the indictment as it currently stands is rather limited,

2 although there could be some that go to the general context or the general

3 armed conflict on the territory of Bosnia-Herzegovina during the relevant

4 time periods. But the specifics concerning the actual crime base itself,

5 in terms of adjudicated facts, we believe are rather limited with respect

6 to the indictment as it currently stands. Again, if we were to be talking

7 about an amended indictment based on those three additional crime bases

8 there would be in the Prosecution's submission significant number of

9 adjudicated facts and/or prior testimony that would be the subject matter

10 of -- of litigation that we would be putting before the Trial Chamber for

11 its consideration. But the number of adjudicated facts that would be

12 applicable because of the nature of the indictment and the crimes alleged

13 therein is rather limited in this case.

14 To move to the next issue of agreed facts, that's certainly

15 something that I believe both of the parties are interested in, in

16 pursuing in good faith, once we have the issue of the indictment

17 finalised. We probably can then sit down on some of the issues and reach

18 some agreements with respect to agreed facts once the indictment is

19 finalised.

20 JUDGE THELIN: Thank you, Mr. Mundis.

21 Mrs. Vidovic, comments on this? I'm particularly interested to

22 hear your supporting comments regarding the spirit of openness with which

23 you address the question of agreed facts in particular.

24 MS. VIDOVIC: [Interpretation] Your Honour, at this point in time,

25 it is too premature to speak about adjudicated facts for the reasons

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1 presented by my learned colleague of the Prosecution, since the

2 Hadzihasanovic appeal is pending and in view of the fact that a decision

3 has not been made yet with respect to the request made to amend the

4 indictment.

5 As far as the second question is concerned, agreed facts, we will

6 certainly cooperate with the Prosecution. It is in the interests of the

7 Defence to see what facts can be agreed, and go to trial with agreed facts

8 as far as possible and wherever possible.

9 JUDGE THELIN: Thank you, Mrs. Vidovic. I take heart in that

10 approach.

11 I have understood from the 65 ter Conference that the Defence at

12 this point do not consider to put forward any special Defence submissions.

13 Is that correct? I'm referring now to Article 67(A) or Rule 67(A), I

14 should say.

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

16 JUDGE THELIN: Well, it seems that we have explored sort of where

17 we are at the moment, and as indicated we could then look ahead. And my

18 understanding is that there has hitherto not been a formally adopted work

19 plan for this case and for reasons that parties are well aware of. I

20 think the time has come now to adopt a work plan, and the times were

21 discussed at the 65 ter Conference, so the dates that I will now put

22 forward I hope will meet with the expectations of both counsel for the

23 Prosecution and counsel for the Defence.

24 So let me then first -- and this is obviously subject to if there

25 are any major changes following the decision forthcoming on the scope of

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1 the indictment. There could be revisions. But these dates are factored

2 in such a way that they should be neutral in relation to that decision but

3 one never knows so that's why I put that caveat in.

4 The -- let's start then with the continued disclosure of 66(A)(ii)

5 which could follow obviously from the indictment if there is leave to

6 amend it the way the Prosecution seeks. The Chamber would expect the

7 Prosecution to disclose that material not later than the 29th of September

8 this year.

9 At the same time, i.e. the end of September, the 29th of

10 September, the Prosecution should put forward its suggestion as to agreed

11 facts and the parties, if possible, come to an agreement as of the same

12 date. The same goes for adjudicated facts. The 29th of September is then

13 significant for three things, continued disclosure, 66(A)(ii), agreed

14 facts, and adjudicated facts.

15 The disclosure under Rule 68, i.e. exculpatory, is obviously

16 ongoing and by comments from counsel for the accused, seems to be

17 satisfactory.

18 We note that at present, counsel for the accused do not anticipate

19 to put forward any notification of alibi or special defence. Should that

20 change, the date for that submission should also be the 29th of September.

21 The pre-trial brief, which is the important phase obviously in the

22 pre-trial stage, from the Prosecution according to Rule 65 ter (E) and

23 expert reports under Rule 94 bis should be submitted not later than the

24 31st of October this year. The response then from the Defence, i.e. the

25 pre-trial brief for the Defence, under Rule 65 ter (F) should be submitted

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1 not later than the 1st of December, 2006.

2 We will obviously continue to have Status Conference, and the next

3 one would then be envisaged under there work plan to be sometime in

4 October. That will give us an opportunity to review submissions from the

5 Prosecution and where we are on the issue of agreed facts, end of

6 September. And obviously then any unclarity as to the scope of the

7 indictment should have vanished, if it doesn't vanish within the next

8 couple of days.

9 Any questions from counsel regarding this work plan?

10 MR. MUNDIS: Just one issue of clarification, Your Honour. With

11 respect to the remaining material that's required of the Prosecution

12 pursuant to Rule 65 ter, and I'm speaking specifically of a witness list

13 and an exhibit list, I note that Your Honour was silent as to those points

14 and I take it from that that we are not, pursuant to this work plan, being

15 asked to provide a witness list or an exhibit list within this time

16 period.

17 JUDGE THELIN: We are two time periods. We have the 29th of

18 September obviously and that should be fulfilled, and then what is not

19 there should obviously be in the pre-trial brief.

20 MR. MUNDIS: So that's the point I'm asking for clarification. Do

21 you want an actual exhibit list and a witness list as part of the

22 pre-trial brief that's due on the 31st of October?

23 JUDGE THELIN: I think that's preferable.

24 MR. MUNDIS: Thank you.

25 JUDGE THELIN: Mrs. Vidovic, any comments, questions?

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1 MS. VIDOVIC: [Interpretation] No, Your Honour, thank you.

2 JUDGE THELIN: Thank you. With this work plan now in place, I

3 think the substance of what we are here for today has been dealt with and

4 it only remains for me to ask whether counsel would like to raise any

5 other matters that we haven't touched upon.

6 MR. MUNDIS: Nothing from the Prosecution.

7 JUDGE THELIN: Mrs. Vidovic?

8 MS. VIDOVIC: [Interpretation] No, Your Honour, thank you.

9 JUDGE THELIN: Thank you. Well, that being the case, we now stand

10 adjourned.

11 --- Whereupon the Status Conference adjourned at

12 5.20 p.m.