Tribunal Criminal Tribunal for the Former Yugoslavia

Page 106

1 Tuesday, 27 February 2007

2 [Status Conference]

3 [Open session]

4 [The accused not present]

5 --- Upon commencing at 9.00 a.m.

6 JUDGE THELIN: Good morning to everyone.

7 Could we please have the case called.

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

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

10 JUDGE THELIN: Thank you.

11 And representations, Prosecution.

12 MR. MUNDIS: Good morning, Your Honours. Good morning to everyone

13 in and around the courtroom. For the Prosecution, Daryl Mundis, assisted

14 today by Matthias Neuner, Ruth Frolich, and our case manager Alma

15 Imamovic.

16 JUDGE THELIN: Thank you.

17 And for the accused.

18 MS. VIDOVIC: [Interpretation] Good morning, Your Honours. I

19 apologise, the interpretation is a little late, so because of that, I am

20 Vasvija Vidovic and, together with Mr. Nicholas David Robson, I represent

21 the Defence of Rasim Delic. With us we have Mrs. Lana Deljkic, our case

22 manager, and Ms. Asja Zujo, our legal assistant in this case.

23 JUDGE THELIN: Thank you very much, Ms. Vidovic. We know that the

24 accused is on provisional release and there is, I take it, no issue on his

25 part to take part in this Status Conference. Is that correct,

Page 107

1 Ms. Vidovic? You're nodding assent.

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

3 JUDGE THELIN: Thank you.

4 First of all, let me note that since we had the last Status

5 Conference of the 15th of November, things seem very much to be well on

6 track, and I thank the parties for the cooperation and the timely filings

7 on the part of the Defence on the pre-trial brief, which I think happened

8 on the 19th of January.

9 The way I see it in the picture, and we will explore that today,

10 is that the only thing that is now stopping this case to be formally

11 concluded in the pre-trial phase seems to be some disclosure matters. Is

12 that an understanding that meets with the parties as well?

13 Prosecution.

14 MR. MUNDIS: Thank you, Your Honour. That would seem to be the

15 case, and of course it's completely contingent upon translation of certain

16 materials, which is the disclosure problem that we're encountering at the

17 moment.

18 JUDGE THELIN: Ms. Vidovic.

19 MS. VIDOVIC: [Interpretation] Your Honours, the Prosecution has

20 made significant progress, as far as we are concerned, regarding

21 disclosure. We received a lot of material, and mostly, except for two

22 statements which we still have not received - these are statements of

23 witnesses that the Prosecution has not interviewed yet - so we have

24 received all the statements that were on the Prosecutor's list, on their

25 65 ter list.

Page 108

1 Also, the Prosecutor has made significant progress as far as

2 admission of documents in accordance with Rule 68, and we are very

3 grateful for that. We still have a few minor matters that we will discuss

4 after this Status Conference with the Prosecutor, and I think that we are

5 going to surmount that the Prosecutor, just like they have so far, will

6 respect all the instructions of the Trial Chamber, and we don't foresee

7 any problems there.

8 Yesterday we received a letter from the Prosecutor regarding Arab

9 interpretations, or translations of Arab material. I don't know, perhaps

10 I'm going too far in advance, but perhaps this is the moment to explain

11 this --

12 JUDGE THELIN: That's fine. Thank you. My idea was that we will

13 go into details of disclosure later, but I'm grateful for the comments

14 you've made, Ms. Vidovic.

15 Let me say or note that all filings as far as adjudicated facts

16 seem to done, so it's incumbent upon the Chamber, in due course, to make a

17 decision on this. We also note that Ms. Vidovic has been joined in late

18 January by Mr. Robson as co-counsel.

19 Let me, on adjudicated facts, put two questions, or, rather, one

20 question to the parties, primarily to the Prosecution. A favourable

21 decision, i.e., a granting of the motion of adjudicated facts, what is the

22 assessed impact on the Prosecution's case as far as witnesses are

23 concerned, if any?

24 MR. MUNDIS: Thank you, Your Honour. I would not expect -- to be

25 quite frank, I would not expect that to result in us dropping any

Page 109

1 witnesses. I would expect, however, that we might be able to shave some

2 of the time estimates off some of the currently listed witnesses. So I

3 would expect that there would be some savings in time in terms of in-court

4 requirements, but I would not go so far as to say that it would cause a

5 significant reduction in time.

6 JUDGE THELIN: Thank you.

7 Would that meet with your assessment as well? It's difficult

8 since you're on the other side, Ms. Vidovic, but I would love to hear what

9 you have to say.

10 MS. VIDOVIC: [Interpretation] Your Honour, it's hard to make any

11 assessment, but I don't think that that will significantly affect the

12 number of witnesses or the time we plan to spend on the witnesses that we

13 intend to call.

14 JUDGE THELIN: Thank you very much. Those two comments from you

15 were helpful as far as assessing the scope of the case.

16 Let's now move to disclosure, and I understand that discussions

17 were held after the 65 ter Conference and obviously, under the able

18 chairmanship of the senior legal officer, was something that was

19 accomplished as well during the conference yesterday. As you indicated,

20 Ms. Vidovic, you anticipate further contacts with the Prosecution on this.

21 My intention was not to go into detail on all the questions

22 arising from that, apart from one, and that is I need to, for the sake of

23 the Chamber, have a better assessment as to the problems of the

24 translation of the Arabic videotapes.

25 So if I turn to you first, Mr. Mundis, if you could give me your

Page 110

1 best estimate as of today, what has been done and what is requested as far

2 as time, in that respect I would be grateful.

3 MR. MUNDIS: Thank you, Your Honour.

4 I have indicated, and I explained this yesterday, the Tribunal

5 does not have a certified Arabic interpreter or translator on staff within

6 CLSS, and as a result of that, of course, we've had to contract outside

7 the Tribunal in order to employ the services of a certified translator.

8 We have on our exhibit list 29 videotapes that are at least

9 partially, if not completely in Arabic; the total is approximately 47

10 hours of such material. To date, six of those have been completed,

11 representing approximately eight hours of the total amount of the video

12 material that's partially or completely in Arabic.

13 It's extremely difficult for to us to anticipate how much longer

14 it will take, partially because the person that the Tribunal has employed

15 is not working full time on this project, but, rather, he has a -- as a

16 freelance translator and interpreter, he has a number of other projects

17 that are ongoing.

18 I can assure the Trial Chamber and the Defence that we are doing

19 everything possible to divert as many resources as possible to this

20 issue. Of course, that then means, because of limited CLSS resources,

21 which is not something that the Prosecution controls, of course, that we

22 have some stumbling blocks in our way in terms of getting these done. We

23 are, however, moving as quickly and as expeditiously as possible to get

24 all of this material available in Arabic.

25 First he produced an Arabic transcript, which he then translates

Page 111

1 himself into English, which is then submitted to CLSS for translation into

2 the Bosnian language. So there is really a three-step process that this

3 single individual has been asked to do. We are moving as quickly as we

4 can to get that done, but it's very difficult for to us predict, first of

5 all, how many hours CLSS will put him on a contract for and how many hours

6 he can actually produce these tapes, or how long it will take him to

7 produce the tapes once those contracts are prepared and executed.

8 JUDGE THELIN: Thank you, Mr. Mundis. I would like to underscore

9 what you say that there is a need, obviously, to move as quickly as

10 possible on this because the importance this would have for the Defence.

11 On the other hand, I fully understand the limitations that you are

12 facing. But I would urge you to do whatever you can, and if there are

13 ways that the Chamber can assist you to unlock further resources or make

14 any intervention with the Registry, we would be happy to do that.

15 MR. MUNDIS: I appreciate that offer, Your Honour. We very well

16 may take you up on that. Thank you.

17 JUDGE THELIN: Thank you.

18 Ms. Vidovic.

19 MS. VIDOVIC: [Interpretation] As you have said, Your Honour, these

20 translations are very important for us, perhaps they could be actually

21 crucial for this case, so that we really do wish to receive this material

22 as soon as possible. And we can see that the Prosecution is doing their

23 utmost to provide that for us.

24 I would just like to say that our information about the number of

25 these videotapes do not correspond to the number that the Prosecutor has

Page 112

1 mentioned, and we will explain why.

2 On the 14th of November, 2006, with receipt number 14, we received

3 22 DVDs from the Prosecution with 154 videos, 34 of which are in Arabic;

4 and on the 9th of January, 2007, we received an additional four videos.

5 They were on the list of the 31st of October, but we did not receive them

6 then.

7 In other words, we think that -- well, we know that there is a

8 larger number of videos and so there will even be more time required for

9 the translation. And if the Prosecution doesn't do that, we will, in some

10 way, then be put in the situation of having to translate them. We have to

11 watch those videos.

12 So we just need to take into account that it's not 47 hours of

13 videos but probably slightly more. I think it's actually eight hours

14 more.

15 JUDGE THELIN: You care to comment on that, Mr. Mundis? Because

16 that adds to the complexity, doesn't it?

17 MR. MUNDIS: Absolutely. And I will again endeavour -- the person

18 on our team who's responsible for this issue provided me the numbers that

19 I have provided. We will revisit that issue and perhaps further engage

20 the Defence on that issue following this Status Conference.

21 JUDGE THELIN: Thank you. I think that would be a prudent course

22 of action.

23 Let's now, with that, leave matters of disclosure. The next thing

24 I have on my list is, again, a request to the Prosecution to make an

25 assessment to what extent use will be made of the 92 bis witness.

Page 113

1 MR. MUNDIS: Thank you, Your Honour. Clearly, when the

2 Prosecution made its 65 ter filings last year, we did provide indications

3 as to the number of expected witnesses that we would be seeking to adduce

4 by way of Rule 92 bis or Rule 92 ter.

5 As we indicated yesterday at the 65 ter meeting, we are constantly

6 revising and looking at those numbers and those figures. We would except,

7 of the approximately 70 witnesses on our witness list, that approximately

8 20 of them would fall under 92 bis or 92 ter. And, again, that's a figure

9 that we're constantly looking at and deciding whether a witness could be

10 moved from one category into the other, or vice versa.

11 We also made some indications yesterday that with respect to the

12 time estimates overall, we don't expect there would be significant

13 reductions because our intention had always been to reply upon those two

14 rules. We very well may be in a situation where we would seek leave from

15 the Trial Chamber internally to alter some of the numbers with respect to

16 witnesses, so that witness 14 might be a little bit longer than we

17 planned, but witness 23 might be slightly less than we expected. But we

18 don't anticipate at this point in time the actual number of hours required

19 for direct examination to be significantly different as a result of the

20 use of Rule 92 bis, 92 ter, or some internal reshuffling or recalculations

21 of time estimates.

22 JUDGE THELIN: Thank you, Mr. Mundis, that was helpful, and

23 especially the relationship between witnesses in written form, as it were,

24 and viva voce witnesses.

25 Ms. Vidovic, do you care to comment on this part?

Page 114

1 MS. VIDOVIC: [Interpretation] Yes, Your Honour, thank you. I

2 presented the position of the Defence yesterday regarding the witnesses

3 that the Prosecution intends to bring in according to 92 bis. We looked

4 at those statements. I would just like us to be realistic, to have a

5 realistic picture of that. I would like to also give our position on

6 that. We will probably oppose each of those witnesses being brought in

7 under 92 bis because they mostly refer to the conduct of the accused. And

8 I would like to have that in mind when we are estimating the time

9 necessary for the actual trial. Of course, we cannot foresee the

10 outcome. We're excepting submissions by the Prosecution and then we will

11 give our definite position on that.

12 As for time estimates, I said yesterday that I believe it was not

13 realistic. I already have experience in this Tribunal, and sometimes

14 things that are being plan sometimes turn out to take twice as long,

15 especially when we are talking about the Prosecution presentation of the

16 case.

17 Thank you, Your Honour. That is all that I have to say for now.

18 JUDGE THELIN: Thank you, Ms. Vidovic.

19 We note your principled position under 92 bis, and I take it that

20 to include 92 ter as well. Obviously, we'll see, once the motions are

21 in - and you will make your formal motions in this respect - how the Trial

22 Chamber will rule on it. But I note the comments made on both sides as to

23 the impact on the case of 92 witnesses.

24 Let me move then move to the question of agreed facts. We touched

25 upon adjudicated facts initially. I note that we have had filings since

Page 115

1 September and October on agreed facts, and I'm anxious to know whether

2 there are any prospects of a future exchange between the parties on agreed

3 facts.

4 Mr. Mundis.

5 MR. MUNDIS: Thank you, Your Honour. "Absolutely" would be the

6 short answer to that question. We, as I indicated again yesterday, we

7 have undertaken a project whereby we are in the process of deconstructing

8 if you will, the Defence pre-trial brief in order to identify issues that

9 we believe should be the source of agreement between the parties, and we

10 do that because, as I'm sure Your Honour is aware, a number of the

11 positions set forth in the Defence pre-trial brief have actually been the

12 subject matter of cases before this Tribunal. As a result of that,

13 certainly the Prosecution is not going to disagree with facts which we

14 have established in other cases. So I would except that there would be

15 some additional agreed facts stemming from the Defence pre-trial brief.

16 I will also indicate, as I've informed the Defence previously,

17 that we are undertaking a similar project with respect to the Prosecution

18 pre-trial brief whereby we will attempt to engage the Defence further on

19 some issues from our pre-trial brief that we believe might not be

20 contested.

21 I also -- perhaps in a few moments I can address this concept of a

22 legal library which I have touched upon, which also can be of importance

23 to this issue, but I can yield the floor to the Defence on agreed facts

24 prior to doing so.

25 JUDGE THELIN: Thank you, Mr. Mundis.

Page 116

1 Can I expect from you, Ms. Vidovic, the same readiness to work in

2 the spirit of coming to a maximum number of agreed facts?

3 MS. VIDOVIC: [Interpretation] Yes, Your Honour. I only wish to

4 remind you that we have also submitted a proposal to the Office of the

5 Prosecutor - this was done several months ago - and we proposed a

6 significant number of facts to the Prosecutor for his consideration. And,

7 of course, we shall continue to cooperate in this direction. We had a

8 meeting with the Prosecutor where we were told that they would re-submit a

9 list of facts for us to agree on, and of course we're willing to

10 cooperate, Your Honour.

11 JUDGE THELIN: Thank you. There seems to be good spirit on both

12 sides and we can except the discussions to yield a considerably larger

13 amount of agreed facts than now is the case.

14 I take it, Mr. Mundis, I'm aware of the discussion on the library,

15 and I take that is a part of the discussion on agreed facts. Unless you

16 wish to raise a specific topic on that, I don't see the need for us to

17 dwell into the particulars there. I'm privy to the exchange from the

18 parties on this, and certainly it seems, in terms of the Trial Chamber's

19 point of view, a good idea to try to come to an agreement on the normative

20 aspect, as it were, of the case.

21 I take it from the side of you, Ms. Vidovic, that you don't need

22 to raise this issue either at this point. You nod assent. Thank you very

23 much.

24 That brings me to what we have touched upon, the anticipation of

25 the length of the trial. We are aware that there are outstanding issues

Page 117

1 that could impact on it. The present estimate is one for the Prosecution

2 case of four to five months. Is that correct, Mr. Mundis?

3 MR. MUNDIS: Yes, it is, Your Honour, and I believe, if memory

4 serves me, that we had estimated we would require 117 or roughly 120 hours

5 to present the direct examination of the Prosecution case. The numbers

6 were included in the filing that we made with respect to our pre-trial

7 brief and 65 ter number filing, and those numbers, as far as we are still

8 able to determine, are the best estimates available to the Prosecution.

9 JUDGE THELIN: Comments from you, Ms. Vidovic?

10 MS. VIDOVIC: [Interpretation] Your Honour, I have stated more than

11 once that I feel it is unrealistic to have 70 witnesses if the Prosecutor

12 really intends to call 70 witnesses examined in such a brief space of

13 time.

14 I have to be really candid today. What concerns me is that

15 something might happen which has already happened to me in other cases

16 before this Tribunal. For example, 30 or 40 witnesses might simply be

17 dropped by the Prosecution. This would be a significant problem for us,

18 because we would have wasted time on preparing for our defence case, on

19 preparing to cross-examine 30 or 40 witnesses, instead of focussing on a

20 smaller number of witnesses, 50, for example, who can be realistically

21 examined in this period of time. I would feel this to be unfair, Your

22 Honour, and that's why I'm raising this issue, because I want such a

23 situation to be avoided. I hope we will be informed on time about the

24 exact number of witnesses.

25 Your Honours, I only wish to add that we will need about the same

Page 118

1 time for cross-examination as the Prosecutor will take for his

2 examination-in-chief.

3 JUDGE THELIN: Thank you, Ms. Vidovic. Well, I'm fully aware that

4 even the best-laid plans could come to naught or would have to be

5 changed. I also understand your predicament in divesting resources into

6 something that eventually would be deemed to be superfluous. But I'm

7 certain that the Prosecution has, in its assessment, taken that into

8 account and not trying to play trickery with you, in order to exhaust you

9 already before the game has started, by bloating the number of witnesses

10 they seek to call.

11 Your comments are noted, and I think that the time that we have in

12 the immediate future, with the ongoing discussion on disclosure and the

13 ongoing discussion on agreed facts, would make it possible to perhaps come

14 to a firmer assessment also on the part of the Prosecution as to the

15 number of witnesses.

16 What I propose to do is, since my intention is to bring this, as I

17 said initially, to a close as far as the pre-trial phase is concerned and

18 formally report it as ready for trial, which, as you know, is the

19 mechanics -- and you may be aware, and I know this was touched upon

20 yesterday as well, that this case may be one that is going to be moved

21 quicker along the line than was anticipated only six months ago. It has

22 to do with the inner dynamics of planning of cases, which I'm concern that

23 you are both aware of.

24 So my intention is, and that was aired yesterday by the senior

25 legal officer, is to give the parties now a 30-day time window, if you

Page 119

1 will, during which work is to be done on outstanding matters, and then at

2 the end of this period, a report from both sides as to where we are. And

3 if that yields, Mr. Mundis, a different assessment for your sake on the

4 number of witnesses and hence the scope of the Prosecution's case, that

5 will certainly be reported as for that.

6 So I formally now order the parties to file on Friday, the 30th of

7 March, a report on outstanding issues. On the back of that report, the

8 Chamber would then decide as and when to close the pre-trial phase.

9 Any questions in relation to that, Mr. Mundis?

10 MR. MUNDIS: I don't believe so, Your Honour. If we do, we'll

11 contact the senior legal officer. But I just want to be clear that you're

12 expecting one report from the Prosecution and one from the Defence, or a

13 joint report?

14 JUDGE THELIN: I omitted the word "each." It should be one report

15 each. And were the parties to come to such an agreement that is a joint

16 submission, no one could be happier than I.

17 MR. MUNDIS: I assure you, if we can do that, we'll probably do

18 that. And I at least speak for the Prosecution, but we've had a

19 relatively good relationship with the Defence and we very well may be in a

20 position to do that. But these would be outstanding issues that the

21 parties have identified, then?


23 MR. MUNDIS: Thank you.

24 JUDGE THELIN: Ms. Vidovic, do you think you could rise to the

25 occasion and also cooperate in order to produce a joint report on the 30th

Page 120

1 of March?

2 MS. VIDOVIC: [Interpretation] Your Honour, we shall see. It

3 depends particularly on the disclosure of the translations from Arabic,

4 but I see no reason why we should not be able to file a joint submission.

5 If possible, then certainly I will do my best.

6 JUDGE THELIN: Thank you. We note that and the time is noted by

7 the parties.

8 I then have one question for you and that is if we have any other

9 matter to discussed today.

10 Mr. Mundis.

11 MR. MUNDIS: The Prosecution has nothing further, Your Honour.

12 Thank you.

13 JUDGE THELIN: Thank you, Mr. Mundis.

14 Counsel is conferring.

15 Ms. Vidovic -- oh, Mr. Robson.

16 MR. ROBSON: Good morning, Your Honour. Yes. I just wanted to

17 mention a point that was raised at yesterday's meeting, and that is --

18 JUDGE THELIN: I thought you might.

19 MR. ROBSON: Obviously there's been a degree of discussion between

20 the parties with a view to trying to reach some agreement on facts and

21 narrow the issues. This, of course, will have, hopefully, an impact on

22 reducing the length of the trial. And with a view to that, the Defence

23 will be writing in the next few weeks to the Prosecution with a view to

24 obtaining some clarification.

25 JUDGE THELIN: Thank you. I noted that this was discussed

Page 121

1 yesterday, and we now have it on record as well for the Status Conference

2 that. That is very helpful. It shows a readiness on the part of the

3 Defence to review matters in a light to come to agreement on certain

4 issues at least.

5 MR. ROBSON: Yes, Your Honour.

6 JUDGE THELIN: Thank you.

7 Well, with that, I think we have reached the close of this Status

8 Conference, and we stand adjourned.

9 --- Whereupon the Status Conference adjourned at

10 9.30 a.m.