Tribunal Criminal Tribunal for the Former Yugoslavia

Page 80

1 Wednesday, 15 November 2006

2 [Status Conference]

3 [Open session]

4 --- Upon commencing at 8.01 a.m.

5 JUDGE THELIN: Good morning. Could we have the case called,

6 please.

7 THE REGISTRAR: Your Honour, this is IT-04-83-PT, the Prosecutor

8 versus Rasim Delic.

9 JUDGE THELIN: Thank you.

10 And the representation for the parties. Prosecution.

11 MR. MUNDIS: Thank you, Your Honour. Good morning to everyone in

12 and around the courtroom. For the Prosecution, Daryl Mundis, Kyle Wood,

13 Ruth Frolich, and our case manager, Alma Imamovic.

14 JUDGE THELIN: Thank you.

15 And for the Defence.

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

17 morning to my learned friends from the OTP. My name is Vasvija Vidovic,

18 and together with Mrs. Quincy Whitaker, I appear on behalf of General

19 Rasim Delic. Together with us is our case manager Ms. Lejla Gluhic.

20 JUDGE THELIN: Thank you.

21 Before we go into the subject matter, let me first offer my

22 apologies for we not being able to hold the traditional 65 ter conference.

23 As you know, the reason for that was a change of guard in the Senior Legal

24 Officer's position, but I know that the parties met yesterday and before

25 that there was also an exchange of letters which I'm privy to. So I'm

Page 81

1 certain that we, as far as preparations are concerned, are ready to go.

2 Before we enter into, for what the parties may seem to be outstanding

3 matters, let me just go through what I think we have before us as far as

4 pending motions.

5 We have a motion regarding judicial notice of adjudicated facts,

6 which was timely submitted by the Prosecution. We have a response

7 containing a request for a stay, which was granted by the -- by the

8 Chamber, and that was due to the non-translation of the Hadzihasanovic

9 case into English. And the ruling is that once that is completed, the

10 re-filing shall be made in two days and then the Defence has 14 days to

11 respond to that. I believe now that the translation is imminent in the

12 sense that it will probably be completed before the end of this month. So

13 we expect to have these things complied with according to the order.

14 We also have the submission of agreed facts by the Prosecution

15 filed on the 18th of October, 2006, so we'll come back to the question of

16 agreed facts later.

17 The third motion is a motion filed the day before yesterday from

18 the Prosecution regarding protective measures and delayed disclosure.

19 That was a re-filing following a decision on the 8th of November because

20 the original motion was ex parte and it was felt it should be

21 interparties. And I can assure you that the Chamber would deal with that

22 motion as soon as it's ready. It's pending a reply from the Defence.

23 So those were the motions that, from this side, are pending at the

24 moment. By nods, I see that we are in agreement on this.

25 Could we then move to the question of outstanding issues which

Page 82

1 were reflected in the exchange of letters that I saw. As I said, you had

2 a meeting, my understanding, yesterday, and I hope that that was

3 satisfactory in the sense that you managed to solve, if not all, at least

4 most of the matters. It dealt with disclosure matters and it was from the

5 Defence a lot of clarifications and answers were sought.

6 So I turn to Defence first. I ask whether you are now satisfied

7 or whether you have any outstanding matters relating to that exchange.

8 MS. VIDOVIC: [Interpretation] Your Honour, I will start with Rule

9 66(A)(i), that is the obligation on the part of the Prosecutor to disclose

10 evidence according to that Rule. What was missing was a statement. We

11 went through the material forwarded yesterday by the OTP. We received 27

12 CDs, and to the extent we were able to go through it, I believe we now

13 have that material in our possession. Although I must say here that we

14 haven't been able to go through all of it and we weren't able to verify

15 whether we received all the material put by the OTP to various witnesses

16 as regards footage and documents. Therefore, we will address the OTP. We

17 will send a letter as regards that.

18 As for 66(A)(ii), we discussed this at length yesterday with the

19 OTP, and yesterday they turned over 22 DVDs and you will understand of

20 course that we will -- were unable to check them all. We just went

21 through it quickly, and we established that there are six statements

22 missing. As for the Prosecutor, they told us that there were five

23 missing; however, after this session, we will meet the OTP yet again, upon

24 their request, and we'll try to settle that matter.

25 Of course, we also expect the OTP to turn over all the material

Page 83

1 shown to various witnesses, be it the witnesses whose statements we have

2 from before. And the OTP claimed yesterday that we were given all that,

3 although I cannot verify that necessarily today. However, we also wish to

4 receive all the material shown to witnesses, the video material,

5 photographs, documents, and so on and so forth, on top of the six

6 statements. There is a difference in position between us and the

7 Prosecutor when it comes to these statements. The Prosecutor mentioned

8 five; we mentioned six. It seems to me that the Prosecutor believes that

9 they are not duty-bound at this moment to forward those statements because

10 not all the statements have been taken from all the witnesses. But I

11 believe that falls under 66(A)(ii) as well; namely, these are witnesses

12 that the Prosecutor intends to call here. Therefore, we need to have all

13 the material shown to them so as to be able to respond and to prepare our

14 case. We need to be able to put together our pre-trial brief. That's why

15 I do not believe that that material falls under the category of other

16 witnesses.

17 Something else that was discussed yesterday, and I wanted to have

18 that in the transcript of this Status Conference. And it is the

19 following: We received a letter on the 29th of September which concerned

20 disclosure according to 66(A)(ii), in which the OTP stressed that until

21 the 31st of October, as directed by the Chamber, will forward a list to

22 the Defence. In that letter, the OTP states that they are to forward an

23 interim list, a provisional one, and they stated that it is their right to

24 add other witnesses to the list in the period before the commencement of

25 the trial. This will, of course, be regulated by the Chamber's decision

Page 84

1 or decisions.

2 This is my third case before this Tribunal, and I have some

3 unfortunate experience with such OTP policies; namely, I just wouldn't

4 like to see things from the Oric case happen again. We were there -- put

5 in a situation in which we received one list concerning 66(A)(ii), and

6 then a few months or six months later, immediately prior to the

7 commencement of the trial, the list is changed so as to remove 20

8 witnesses and add another large group of, say, 12. I believe this is not

9 something that falls under the Rules. Actually, I believe that is

10 contrary to Rule 21, item 4(b) of the Statute, if I recollect it

11 accurately. We need the time and the means to prepare the case. In such

12 a case, if we are given 12 new witnesses immediately prior to the trial,

13 we cannot prepare ourselves for a quality cross-examination. We just

14 wanted to state this in advance. I'm not stating it is going to take

15 place; I just wanted to have this in the record, however.

16 Another thing concerning 66(A)(ii). The Prosecutor submitted

17 their motion as regards delayed disclosure for protected witnesses;

18 however, I believe that they should have included a summary in their

19 pre-trial brief, the summary of what that witness is to testify about,

20 that is the witness's code and the summary of evidence. We have the right

21 to prepare and to know what it will concern generally speaking. Yesterday

22 we were told by the Prosecutor, that's at least the way I understood it,

23 that their brief will contain a redacted statement. I hope we will see it

24 as soon as possible, since we haven't received it up until now.

25 I believe I said enough as regards 66(A)(ii) for the time being,

Page 85

1 but while I'm still on my feet, perhaps I can address Rule 92 bis as well.

2 We haven't received that material, and the OTP confirmed that they are not

3 to disclose this moment and that no brief will be submitted.

4 As regards 94 bis, the Prosecutor confirmed that they agree with

5 us on the deadline of 30 days in which we, as the other party, are to

6 provide a reply concerning the expert findings, but that deadline has not

7 been set in motion. In our view, statements are incomplete, there are

8 parts missing, based on which we could assess the expert's knowledge and

9 competence. In any case, I want to state here that we will ask for

10 cross-examination of all proposed witnesses, provided the Prosecutor

11 forwards their statements according to 92 bis. We will also object to

12 parts of witness statements as regards their competence to a certain

13 extent.

14 JUDGE THELIN: Thank you, Ms. Vidovic.

15 Comments from you, Mr. Mundis.

16 MR. MUNDIS: Thank you, Mr. President.

17 Just a couple of quick comments, particularly with respect to Rule

18 66(A)(ii) disclosure. It is, in fact, the case that with respect to five

19 of the witnesses listed on the Prosecution's witness list that was filed

20 on the 31st of October, 2006, that the Prosecution does not have written

21 witness statements with respect to those five witnesses. There is, in our

22 respectful submission, no requirement for written witness statements,

23 although, of course, if we have them, we disclose them. Having said that,

24 we anticipate in the very near future, within the next two to three

25 months, taking written witness statements from several of those five

Page 86

1 individuals.

2 It would seem, although, again, without having the benefit of

3 having the Defence provided enough time to go through the materials that

4 were disclosed to them, I would venture to say that the sixth missing

5 statement that Mrs. Vidovic refers to probably relates to the witness who

6 is the subject of the delayed disclosure motion. And again, pending a

7 ruling from the Trial Chamber, we would provide a redacted version of that

8 statement as soon as we were ordered to do so by the Trial Chamber.

9 With respect to the materials shown to the witnesses, I believe

10 with a couple of exceptions - and those were indicated in previous

11 correspondence - that all such materials have been provided to the

12 Defence. Of course, our position is very clear on this and let me make it

13 absolutely clear. If a document or a photograph or a video or a map was

14 shown to a witness during the course of their interview, and that is

15 referred to in the witness's written statement, we will disclose that

16 document, photograph, video, or map to the Defence. It's sometimes a

17 question of missing material when we review the statements and don't

18 necessarily capture all of the material. Sometimes documents are referred

19 to in witness statements by date or by a brief description of the

20 document, but the document in question does not yet -- at that time, did

21 not have an ERN number. So some of these materials, just as would be the

22 case for the Defence, are sometimes difficult for us to then locate five

23 or six years later based on a brief description in a statement. In the

24 event the Defence is missing any of that material, still missing any of

25 that material, with the exception of the two or three items I specifically

Page 87

1 indicated will be forthcoming, clearly, we will provide that material as

2 soon as they can identify to us specifically what is missing.

3 With respect to adding witnesses and exhibits, clearly, we are in

4 the Trial Chamber's hands in that respect. We filed our witness list, we

5 filed our exhibit list. I believe Ms. Vidovic was referring to a footnote

6 in the cover motion to our pre-trial brief, whereby we specifically

7 reserve the right to seek leave, to either file a revised pre-trial brief

8 shortly before -- by shortly before, I don't mean two weeks, I mean

9 several months before trial. We may seek leave to file an updated

10 pre-trial brief. We, of course, are fully aware that to add or to alter

11 the witness list or to add to or to alter the exhibit list requires the

12 leave of the Trial Chamber. And make no mistakes about that. We are not

13 going to be unilaterally making any changes to either of those documents.

14 We would be doing so only after having sought leave of the Trial Chamber

15 and being granted such leave.

16 And finally, with respect to the witness that was the subject of

17 the delayed disclosure motion that was filed on the 13th of November, I

18 believe that we have provided in that motion an adequate summary of the

19 expected testimony of that witness for the benefit of the Defence, but

20 again, we will be in a position to provide a redacted version of that

21 witness's written statement as soon as we are ordered to do so by the

22 Trial Chamber.

23 Turning very quickly to Rule 92 bis clearly -- what we've

24 indicated in our 65 ter filing is what the Rule requires, an indication of

25 which witnesses we anticipate might be 92 bis witnesses. We, at this

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1 point, of course, are not filing a motion seeking that those 92 bis

2 statements be admitted into evidence. It is, based on my experience here

3 and the jurisprudence, it's a bit premature to be making such a filing for

4 the actual admission of 92 bis statements. So that, of course, is an

5 issue for the future. Similarly, with respect to the 94 bis expert

6 reports that have been disclosed, I informed the Defence yesterday that it

7 was not our interpretation of the Rule necessarily that -- that they have

8 now 30 days to respond to those expert reports, but simply -- I believe

9 that the Rule basically requires them to inform us whether they accept the

10 statement and whether they want to cross-examine the witnesses, and I

11 believe Mrs. Vidovic has done that. In our respectful view, the Defence

12 [sic], at this point in time, is not required to make any further

13 submissions concerning those expert reports. It's entirely up to the

14 Defence whether they wish to do that now or at a later point in time. I

15 believe those are all the subjects that Mrs. Vidovic has raised thus far.

16 So let me just sit down at this point.

17 JUDGE THELIN: Thank you very much. Well, we have one overriding

18 uncertainty, that is that Ms. Vidovic has not been able to absorb the

19 material that was handed over to her yesterday. So one could anticipate

20 that out of that could come yet other unclear matters. But let me clarify

21 one thing, and that relates to the necessity to give Mrs. Vidovic and the

22 Defence a redacted version of the -- of the statement relating to the

23 motion of the protective measures and delayed disclosure. You are hereby

24 so ordered to do that and do that -- what is practical for you that would

25 seem not many days, but give me an indication when you can have that.

Page 89

1 MR. MUNDIS: The interview of that witness, Your Honour, was tape

2 recorded and took place over the course of approximately three days. So

3 it's not a five- or eight-page written single-spaced statement, it is

4 rather a transcript that runs many, many pages, probably several hundred

5 pages. I don't expect it would take us a significant period of time to do

6 that, but I will notify the Defence and perhaps the Trial Chamber by way

7 of letter to -- via the Legal Officer, as to an expected date when we

8 would be in a position to do that. I would not anticipate that it would

9 take us longer than a week, but it would be difficult for me to commit to

10 that standing here right now. But it should be a matter of just a few

11 days I would think, perhaps a week. But I will consult with the actual

12 person who was involved in the interview, who obviously is the best-placed

13 person to do that, to make those redactions, and get an indication from

14 him as to how long that might take and inform the Defence and the Trial

15 Chamber via the Legal Officer accordingly, if that's satisfactory.

16 JUDGE THELIN: Thank you, Mr. Mundis. I think we should nail it

17 down to a week from today, and then obviously the response time for the

18 Defence is computed from the end of that submission.

19 Regarding the question of 94 bis, I think it's also proper,

20 despite the generosity shown by you, Mr. Mundis, to also clarify that when

21 it comes to the time in which you should react, and you have reacted today

22 Mrs. Vidovic, indicating your wish to cross-examine, is that the 30-day

23 period should run as of today or when some outstanding issues connected to

24 that has been handed over to you in B/C/S. So either 30 days from today

25 or 30 days from when you have received the full material in B/C/S from the

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1 Prosecution related to the expert reports.

2 Let me offer also a comment on the question of the change of

3 witness and evidence. There were, obviously, two filings in the sense --

4 the 29th of September and also the pre-trial brief. I also, Mr. Mundis,

5 noticed the footnote which Mrs. Vidovic already has, through you,

6 indicated that she has, namely, that there seems to be, from your side, an

7 opinion that if the case is not docketed, the pre-trial brief could be

8 compiled with a lighter touch. Let me call it the pre-trial brief light,

9 than if the case is docketed. That is not the opinion of the Chamber, and

10 for very good reasons. Even if the global scheduling and docketing of

11 cases is not within our hands, it's our duty to make sure that this case

12 is brought forward. And for, again, the very simple reason: If the

13 best-laid plans are not fulfilled, the Court would perhaps find itself in

14 a position where there would be room available but no cases ready. So I

15 think the notion of not taking the pre-trial brief seriously -- I'm not

16 saying, Mr. Mundis, that you haven't, but the footnote that you indicated

17 is sort of -- was something that I think should be brought to the fore in

18 this matter and also to encourage you, obviously, Mrs. Vidovic, to make

19 sure that the Defence brief is written in the light of this is the brief,

20 as it were. Any comments? I think this is fully clear. By nods, I see

21 that you are in agreement.

22 Let me offer, regarding any other outstanding issues that we have

23 touched upon here now, the possibility that we -- if the parties are

24 unable to solve the outstanding issues between yourselves, the court

25 officers or the Senior Legal Officer who could then arrange a meeting, and

Page 91

1 you could sort out the outstanding issues. I'm thinking of the question

2 of supporting materials and others. I think those things could be

3 cleared, and as I said, other matters will possibly need to be raised once

4 you have absorbed the material you received yesterday. I don't think we

5 need to set a time for that meeting. It could either be before you are to

6 file your Defence brief, Mrs. Vidovic, or it could be immediately

7 thereafter. We will work through the Senior Legal Officer to make sure

8 that this is set up. Would that be to the parties' liking?

9 MR. MUNDIS: That's completely satisfactory to the Prosecution,

10 Your Honour.

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

12 JUDGE THELIN: Thank you very much.

13 I think we then, for completeness, should just comment on some of

14 the issues we haven't touched upon. We noticed at the last Status

15 Conference in the end of June that the Defence did not intend to offer any

16 special defence. The time-limit for offering that has now expired and I

17 take it the position is unchanged, Mrs. Vidovic. By your nod, I see that

18 you agree.

19 We have also received, as indicated, the agreed facts from the

20 Prosecution. We have the outstanding issue of adjudicated facts. But I

21 would like to encourage -- and I think that was anticipated in the

22 Prosecution's submission on agreed facts that there will be additions to

23 it.

24 Mr. Mundis.

25 MR. MUNDIS: One always tries to remain optimistic and hopeful in

Page 92

1 such situations. Certainly, additional agreed facts are something that

2 the Prosecution takes very seriously and I know the Defence do as well.

3 One of the issues for the agenda between the parties commencing at 9.30

4 this morning will be perhaps some -- setting some time-lines or at least

5 exchanging views on additional agreed facts. I assure you that we will

6 continue working together in that regard with respect to coming up with

7 some additional agreed facts and narrowing the issues that will be

8 litigated at trial to the bare minimum number of issues. I'm extremely

9 hopeful that we will be able to do that in the spirit of cooperation with

10 the Defence.

11 JUDGE THELIN: Thank you, Mr. Mundis.

12 And, Mrs. Vidovic, your testimony to this effect?

13 MS. VIDOVIC: [Interpretation] Your Honour, I wanted to raise

14 another issue today concerning pre-trial briefs, and I believe there may

15 be problems with it during the trial itself; namely, the Prosecutor's

16 pre-trial brief contains Annex C. It is a list of 52 victims killed in

17 Vozica. When we received the indictment, we objected to its imprecision

18 concerning that. It contained a small number of names. At a certain

19 point, the Prosecutor added the names of 52 people, as it seems. However,

20 Your Honour, if you look at the names in Annex C, you will notice that the

21 degree of its imprecision is such that we are unable to deal with it. We

22 cannot prepare for our case. For example, person number 6 is given two

23 names Cvjetko or Svetko Kaurin born on this or that year in this or that

24 town. For some people, we have two names, two different years of birth,

25 and two different places of birth. Your Honour, this is something which

Page 93

1 is completely unacceptable for us. We cannot prepare our case against

2 this part of the indictment, provided the annex remains as such. I just

3 wanted to direct your attention to it in a timely fashion. I believe that

4 the Army of Republika Srpska did, indeed, keep neat records on soldiers

5 killed, and I believe this problem should have been overcome by now. What

6 I need to point out is that we will not be able to run any checks whether

7 some of those people have indeed been killed or whether they are alive.

8 We cannot run our checks with two differents names and two different years

9 of birth. And sometimes the years differ by a full decade and sometimes

10 we have even up to three places of birth. I wanted to have this on the

11 record because it presents a problem.

12 Another thing, Your Honour, you were probably able to see it for

13 yourself in the previous Status Conferences' transcripts. I discussed the

14 application of Rule 68 at length and the different interpretations between

15 the two parties. It seems to me that at a certain point we have overcome

16 that problem and that the Prosecutor began disclosing material pursuant to

17 Rule 68 concerning the material from the Hadzihasanovic case. I wanted to

18 remind you that at the Status Conference of the 29th of June, 2005, the

19 Prosecutor accepted in page 42 of the transcript, lines 7 through 11 --

20 said this, they said they will provide it to the Defence immediately, but

21 until today, we haven't received it. We have had ongoing discussions with

22 the Prosecutor as regards that matter, and we are to raise it yet again

23 today. It is crucial for us and a big problem. I know that a lot of

24 those collections are available on EDS, but I don't believe the Prosecutor

25 has met their obligation pursuant to Rule 68 if they put it on the EDS.

Page 94

1 First of all, the means Defence has at its disposal and the number

2 of our personnel disallow any such massive search. We have to be

3 realistic to know what any Defence team can do. On the other hand, this

4 Prosecution team was directly involved in this case and they do have

5 current knowledge of what is mitigating material. This is not only

6 material which has been exhibited, be it by Defence or the OTP, but rather

7 during their investigations, they must have come across a lot of material

8 which falls under Rule 68. And I believe Mr. Mundis will be realising it

9 himself and we will discuss this again. I forwarded a large number of

10 criteria to Mr. Mundis, search criteria, but what I'm concerned with is

11 that Mr. Mundis sent a letter in which he stated that some of that

12 material, the material unavailable to us but is in their archives, that

13 that material will be forwarded as late as next spring.

14 The means, the financial resources, given to us by the Registry

15 will expire in December. We will not have the means to deal with it,

16 especially having been given such enormous material as that of yesterday.

17 I truly wanted to ask the Prosecutor - and I'm not saying this to

18 criticise them in any way - I was just asking them to try and understand

19 that they are duty-bound to assist us in preparing our case when it comes

20 to material pursuant to Rule 68 because they have far more means and

21 resources than Defence. I wanted to have this in the transcript. Thank

22 you, Your Honour.

23 JUDGE THELIN: Thank you, Mrs. Vidovic.

24 Comments on these two points, Mr. Mundis.

25 MR. MUNDIS: Let me turn very briefly to Annex C of the

Page 95

1 indictment. Clearly, we have provided the specific information that we

2 have in our possession. With respect to perhaps alternative spellings of

3 names or slight variations in the spellings of names and/or dates or

4 places of birth is the best information we have available or was, I should

5 say, the best information we had available when the indictment was

6 prepared. I will re-visit this issue with my team, and to the extent we

7 can make any corrections to those names, dates, or places of birth, I will

8 notify the Defence accordingly and perhaps seek leave to make a minor

9 amendment to the indictment, to Annex C of the indictment, to correct that

10 information. We will undertake a review of that for certain.

11 With respect to Rule 68, there are a couple of particularly

12 important issues that I also want to put on the record. With respect to

13 the Hadzihasanovic and Kubura case, it is clear, as Mrs. Vidovic says,

14 that I was in fact involved in that case, but it is equally clear, as a

15 simple reading of the indictment, a comparative reading of the indictments

16 will show, that there's a huge amount of Rule 68 material that was

17 disclosed in the Hadzihasanovic and Kubura case that relates to incidents

18 other than the crime base in this case. And our position is that what

19 we're doing is we're reviewing Rule 68 -- reviewing collections for Rule

20 68 relating to this case, not relating to the Hadzihasanovic and the

21 Kubura case. We should also go to the fact that we don't see a need to

22 disclose Rule 68 material with respect to crimes that are not listed in

23 this indictment. If it goes to the issue of the Mujahedin, it's -- and

24 it's Rule 68, it's disclosed. If it goes to the issue of the murders in

25 Malina and it's Rule 68, it goes to the Defence. If it goes to the issue

Page 96

1 of Rule 68 in Vares, the Zenica music school, Dusina, Miletici, want and

2 destruction in Grahovici, Brajkovici and other places in Central Bosnia

3 that are not in this indictment, but which were Rule 68 material in the

4 Hadzihasanovic case, that's irrelevant to this proceeding and it's our

5 position that the Defence don't need that material because it has nothing

6 to do with this case. Again, with the exception from Hadzihasanovic and

7 Kubora case of material that relates to the Mujahedin, material that

8 relates to the Malina killings.

9 So it's a bit of apples and oranges to simply say the

10 Hadzihasanovic case, there's some overlap in the indictments between the

11 Delic and Hadzihasanovic cases and, therefore, all the Rule 68 material

12 from Hadzihasanovic must be disclosed in this case. If we're ordered to

13 do that, obviously I'll do it. But we're talking about substantial

14 amounts of information that is not relevant to this case. We're reviewing

15 the material. We're reviewing constantly the in-house material.

16 With respect to actual knowledge, we would be remiss on our end

17 for two reasons if we were not constantly undertaking searches and reviews

18 of material. First of all, and primarily because it's our obligation

19 under Rule 68, which we take very seriously, and second of all, that there

20 might be some material which is relevant to this case which we missed and

21 which might be the subject of a motion in the future to add to an exhibit

22 that we missed. So I assure everyone in this courtroom that we are

23 constantly reviewing this material and as we identify things that are Rule

24 68, they are disclosed.

25 Let me turn to the issue of the search terms and the ISU search

Page 97

1 terms. ISU is a unit within OTP that conducts searches. It is true that

2 more than a year ago, Mrs. Vidovic and I met together and came up with a

3 list of terms to be searched. Those terms included place names, names or

4 numerical designators for military units, as well as names of individuals

5 that we both anticipated would feature prominently in this case. Because

6 the case is not docketed, the priority given to those ISU searches by

7 necessity have been a lower priority than cases that are either in trial

8 or that are docketed for trial. Having said that, I have been informed by

9 that unit, that within the next couple of days, I will begin receiving the

10 ISU search results with respect to the accused, Rasim Delic. It is a

11 large number of documents. They will again be reviewed and if there are

12 additional documents which have not already been disclosed and which fall

13 under Rule 68, they will be disclosed.

14 But again, our position has remained consistent, that by making a

15 large number of document collections available in EDS, that the Defence

16 can search that as well, I am clearly aware of my obligation under Rule 68

17 to disclose material in my actual knowledge. We have done that. We are

18 continuing to do that. It's an ongoing obligation, and we will continue

19 to disclose material in our actual knowledge that falls within the

20 parameters of Rule 68. And I, myself, and my entire team are absolutely

21 committed to continuing to do that.

22 Now, because it's of the ongoing nature of that, we will not be at

23 a point where we can say, Rule 68 disclosure is complete. That's simply

24 not possible. But we are doing everything we can. We have disclosed

25 several hundred documents pursuant to Rule 68. It's my understanding that

Page 98

1 about 130 to 140 additional Rule 68 documents will be placed in an EDS

2 folder by the end of this month and additional Rule 68 material will be

3 provided when it's identified and when it comes within the actual

4 knowledge of the Prosecutor. Other than that, again, I understand some of

5 the practical difficulties encountered by the Defence, both with respect

6 to EDS in general and in respect of complying with the deadline for filing

7 their pre-trial brief, but the fact of the matter is they have access to

8 EDS and can run searches for certain key terms, places, names, just like

9 we can do. So that would be our general position with respect to Rule 68,

10 and again, it's an issue that I will continue to engage the Defence on,

11 I'm absolutely certain, into the future.

12 JUDGE THELIN: Mrs. Vidovic.

13 MS. VIDOVIC: [Interpretation] Your Honour, I'll be brief. As

14 regards Rule 68, we will address the Bench shortly by way of a motion. I

15 just wanted to ask my colleague to address you regarding our request that

16 has to do with our pre-trial brief, by your leave of course.

17 JUDGE THELIN: Before we do that, let me just confirm then that

18 regarding the discrepancies in the indictment in Annex C, the Prosecution

19 will undertake a review of that and obviously move for any change in the

20 indictment which this review may call for, and that should be done with

21 expediency.

22 The disclosure of exculpatory material is obviously an important

23 aspect of it, and I understand that the Prosecution is doing what it

24 perceives to be the utmost to satisfy the Defence need in this case. Let

25 me just underscore that when it comes to interpreting the question of

Page 99

1 relevance, it's obviously for the Prosecution also to take a wide

2 perspective of it and not be restrictive in its interpretation of

3 relevance. It's obviously at this point impossible for the Bench to have

4 any meaning of this, since the material is unknown, but I would like to

5 underscore, that you should take a broad interpretation of what

6 exculpatory the material is. And I also note and, Mrs. Vidovic, with

7 satisfaction that the ISU unit now seems to get its hands or teeth or feet

8 into this material as well which may be of benefit for you. And you

9 anticipated further, Mrs. Vidovic, that you would move on 68 directly. So

10 we'll let this matter then rest for a while.

11 Finally, any issues related to this could also be the subject of a

12 discussion under the auspices of the Senior Legal Officer. So please bear

13 that in mind as well.

14 Now, I'm ready to listen to further submissions.

15 MS. WHITAKER: Thank you, Your Honour. If I could just deal with

16 the issue of the time-limit for filing our pre-trial brief. Your Honour

17 will appreciate that we've had numerous difficulties in terms of obtaining

18 material from which we start responding to the pre-trial brief. There was

19 a vast amount of material disclosed yesterday which we need to check to

20 ensure that everything said to be disclosed was disclosed. There are a

21 number of translations we're still awaiting for into B/C/S of witness

22 statements and translations of videos that are in Arabic currently, which

23 are said to feature General Delic, of which he doesn't speak Arabic and

24 neither do we, so we require those translations.

25 Your Honour, in relation to those matters that we would seek an

Page 100

1 extension of the time-limit to file, my learned friend from the

2 Prosecution has already indicated that they accept that a reasonable

3 extension is in order in light of the difficulties we have had. We would

4 ask -- ideally, we would ask for a certain time following full completion

5 of the disclosure obligations and it's not entirely clear when these are

6 going to happen, at least the Arabic translations are not said to be

7 available until next year, I believe, early next year was suggested, but

8 nonetheless, next year.

9 In any event -- and we would be most grateful if the Prosecution

10 could assist in this at all as providing a B/C/S version of the pre-trial

11 brief. We have very, very limited translation facilities at all. I see

12 my learned friend shaking his head. Clearly, this is the central document

13 which requires General Delic to be able to understand. He doesn't speak

14 English, as Your Honour may be aware, to understand it entirely and

15 respond himself. If the Prosecution are unable to assist and the Court

16 are unable to order them to do so, we will have to obviously obtain our

17 own translation. We have very limited monthly translation budget, which

18 again, will delay our capacity to do that.

19 It's in the light of all those matters which we would ask for a

20 time-limit of ideally a month after the Prosecution have completed

21 providing us with all the material so the General can go through the

22 material and the translations provided. In any event, we would ask that

23 this is not before March, in the light of the time -- see, we still await

24 B/C/S versions of statements on which he is to comment. He is to comment

25 on Arabic, on vidoes of which the relevance cannot be understood until

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1 they're in a language he understands and indeed that we understand, I

2 understand. And I say if there is no way in which the Prosecution can

3 assist by providing a B/C/S version of the pre-trial brief, that's a

4 further matter which delays us once we've been able to absorb -- firstly,

5 ascertain that it's all there and then absorb all the material that was

6 provided yesterday which in itself -- the checking process is in itself

7 for several weeks of working through a box full of CDs of material.

8 JUDGE THELIN: Well, thank you, Ms. Whitaker. I think I do

9 understand the scope of your predicament. On the other hand, if the

10 Defence pre-trial brief is going to be completed following when every I is

11 dotted and every T is crossed, as far as disclosure is concerned, this

12 could actually take quite some time and I'm a bit reluctant to exceed to

13 that. It seems your position is linked to the lack of resources. I'm not

14 in a position to fully assess those, but I take it you are engaged in a

15 dialogue with the Registry, who are responsible for those matters?

16 MS. WHITAKER: Your Honour, we are, yes. We are still awaiting a

17 response from the 20th of September. It is, of course, with great concern

18 that we view the prospect of -- as Your Honour mentioned, a pre-trial

19 brief light which then becomes substantively reworked during the course of

20 the year because, as it stands, we have no further resources and were to

21 have the prospect of there being an ongoing, rolling, revising of this

22 pre-trial brief which we then are required to respond to with further

23 details is, of course, of great concern.

24 It is with Your Honour's comments, helpful comments, in mind,

25 whereby we would like to ensure our pre-trial brief is the substantive

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1 pre-trial brief Defence brief and not a working document which we add and

2 revise as when we ask for the additional time. And it isn't -- it

3 certainly isn't every aspect of disclosure, it is the substantive matter

4 of disclosure on which we require that General Delic to be able to give

5 specific instructions, which we are simply not able to do, particularly

6 with a lack of translation resources of which we have been accorded. But

7 we are hoping that the Registry may be able to assist in our difficulties.

8 JUDGE THELIN: Thank you, Ms. Whitaker.

9 Well, the counsel for Mr. Delic is obviously able to communicate

10 with him in a language he understands. I'm not that sympathetic obviously

11 to a notion of a extension, but I cannot -- the time-frame that you have

12 in mind, given the fact that, disregarding for a moment the footnote 1 in

13 the Prosecution pre-trial brief that was filed in time and according to

14 the work-plan. So what I will do at this stage is extend for 14 days your

15 Defence pre-trial brief filing to the 15th of December.

16 MS. WHITAKER: Well, could I raise, Your Honour -- it simply won't

17 be possible for us to do that. We simply don't -- we cannot get it into

18 B/C/S in that time-scale. We cannot even check the material that has been

19 disclosed that should have been given to us in accordance with the 31st of

20 October. We can't even check that within that time-scale. We have

21 virtually the resources you see in front of you. They are simply not in a

22 language -- we won't be getting statements in B/C/S on which the General

23 is required to comment by that time and it is not possible for us to,

24 other than leaving huge gaps and saying we will return to this later as

25 and when we are able to, which I submit is the most unsatisfactory.

Page 103

1 Does the Prosecution except that a reasonable amount of time, and

2 I do believe they were thinking of considerably more than 14 days and

3 certainly beyond the new year, when we would submit, in the light of the

4 other matters, it's not going to be -- this will not cause delay in the

5 long run, but would be of assistance to the Court, we hope, by being of a

6 complete nature. It could only be the most perfunctory document if we

7 were required to submit something by the 15th of December due to the vast

8 quantity of material that we received yesterday and some of it is not in a

9 language which the General understands, particularly, the pre-trial brief.

10 We simply don't have translation facilities to have that done by then.

11 Could I ask whether Your Honour would --

12 JUDGE THELIN: Mrs. Whitaker, in minded in the light of your

13 repeated entreaties on the matter to give you a further extension on this,

14 but that, I think, is going to be where it rests. And it will also mean

15 that the General and yourself will have to do some work during the holiday

16 season because, which as you know, is prolonged because we have the

17 discrepancy between ours and the Serbs and the original periods. But the

18 Friday of the 20th of January is the time in which you should file your

19 pre-Defence brief.

20 MS. WHITAKER: Thank you.

21 JUDGE THELIN: Could I -- when we think of this, have an

22 indication as to the scope of your Defence? I understand that this is a

23 question which is difficult to answer, given the fact what we just have

24 discussed, but some indication I think would be helpful. We know that the

25 Prosecution anticipates to take four months in its case. And with all the

Page 104

1 caveats that you are rightly entitled to put on an assessment, I still

2 would appreciate if you could give me some indication as to the scope

3 time-wise of your Defence.

4 [Defence counsel confer]

5 MS. WHITAKER: I think we envisage it would take approximately an

6 equivalent time as the Prosecution, so another four months, very

7 approximately.

8 JUDGE THELIN: Thank you very much. As you can understand, we are

9 not here scheduling the details of the case, but I think an indication of

10 the scope would be helpful for those who are doing the planning.

11 With that, we should bring this now, I think, to a close.

12 Fortunately enough, there is no trial following us, otherwise we would be

13 severely punished for exceeding the time-limit. If then the Defence brief

14 is filed and hopefully in a shape, given the limits you have indicated,

15 still would give us a basis to look ahead obviously. There's no point now

16 in speculating as to when the case would go to trial, but if the

17 scheduling part of the Tribunal is so minded, it could very well be in a

18 very brief time after we have completed all the necessary filings and set

19 a date for the -- for the pre-trial conference. I envisage that we should

20 have then a Status Conference sometime in February next year in order to

21 review matters. And to be preceded, hopefully, with the traditional 65

22 ter conference before that.

23 Now, are there any other issues you want to raise before we

24 adjourn, Mr. Mundis?

25 MR. MUNDIS: The Prosecution has no matters. Thank you.

Page 105

1 JUDGE THELIN: Mrs. Vidovic.

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

3 JUDGE THELIN: Thank you.

4 With that, we are now adjourned.

5 --- Whereupon the Status Conference

6 adjourned at 8.55 a.m.