Tribunal Criminal Tribunal for the Former Yugoslavia

Page 6687

1 Friday, 7 November 2007

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 2.16 p.m.

5 JUDGE MOLOTO: Good afternoon to everybody in court.

6 Mr. Registrar, would you please call the case.

7 THE REGISTRAR: Thank you and good afternoon, Your Honours. This

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

9 JUDGE MOLOTO: Thank you very much. Could we have the appearances

10 for today starting with the Prosecution, please.

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

12 Your Honours, Counsel, and everyone in and around the courtroom.

13 Daryl Mundis and Kyle Wood for the Prosecution, assisted by our intern

14 Sarah Houlihan and our case manager, Alma Imamovic.

15 JUDGE MOLOTO: Thank you very much. And for the Defence?

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

17 afternoon to my learned friends from the OTP, everyone in and around the

18 courtroom. Vasvija Vidovic and Nicholas Robson for General Rasim Delic.

19 Our case manager is Lana Deljkic.

20 JUDGE MOLOTO: Thank you. Just for the record, today

21 Judge Harhoff has joined us and so we are not sitting pursuant to Rule 15

22 bis. Mr. Mundis?

23 MR. MUNDIS: Your Honours, the next witness will be handled by my

24 colleague, Mr. Wood.

25 JUDGE MOLOTO: Mr. Wood?

Page 6688

1 MR. WOOD: Yes, Thank you, Mr. President. If we could just go

2 into closed session to discuss something about this witness before he's

3 brought in?

4 JUDGE MOLOTO: May the Chamber please move into closed session.

5 [Closed session]

6 (redacted)

7 (redacted)

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Page 6689











11 Pages 6689-6710 redacted. Closed session















Page 6711

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17 (redacted)

18 [Open session]

19 JUDGE MOLOTO: Yes, Mr. Mundis?

20 MR. MUNDIS: Thank you, Mr. President. There are no additional

21 witnesses available to testify today. The Prosecution does have three

22 oral motions to present to the Trial Chamber. I am cognizant of the time.

23 I don't believe that those can be dispensed with prior to the next recess

24 but I can certainly -- as I discussed this issue with the Defence and with

25 the Chamber's legal officer, I can certainly highlight what these three

Page 6712

1 oral motions concern and then perhaps that might be an appropriate time

2 for us to take a recess unless the Chamber would like to push on, on the

3 issues. But at this point in time, Your Honours, the Prosecution would

4 make three oral motions. One would be to seek leave to amend the

5 indictment in order to withdraw count 3, the rape count. The second oral

6 motion would be asking the Trial Chamber to reconsider its decision with

7 respect to the 92 bis statement of Witness DRW-1. And the third oral

8 motion would be a request for additional time for the Prosecution to

9 complete presentation of its case in chief.

10 I am prepared to address all three of these motions at this time

11 or if the Chamber would prefer, we could either take the recess now or

12 perhaps sit a little bit longer but I don't expect that I would be able to

13 fully put forth the Prosecution position on these three matters in the few

14 minutes remaining before the time that we regularly recess.

15 JUDGE MOLOTO: I suggest that we take a break now and come back at

16 4.00 to hear your arguments on those motions and the Defence's response.

17 Would that be okay?

18 MR. MUNDIS: That's certainly acceptable, Your Honour.

19 JUDGE MOLOTO: Thank you very much. We will take a break, then,

20 and come back at 4.00.

21 Court adjourned.

22 --- Recess taken at 3.24 p.m.

23 --- On resuming at 4.00 p.m.

24 JUDGE MOLOTO: Yes, Mr. Mundis.

25 MR. MUNDIS: Thank you, Mr. President. As I indicated right

Page 6713

1 before the break, the Prosecution has three oral motions to present to the

2 Trial Chamber, two of which are intricately linked, those being a motion

3 to withdraw count 3 and reconsideration of the Trial Chamber's decision

4 concerning the 92 bis statement of DRW-1.

5 JUDGE MOLOTO: What reconsideration do you want on that statement?

6 MR. MUNDIS: Well, perhaps, Your Honours, if I could address the

7 issue of seeking leave to withdraw the rape count first, I think then the

8 reconsideration motion would make a little bit more sense.

9 Pursuant to Rule 50(A)(i)(c), the Prosecution respectfully

10 requests leave of the Trial Chamber to amend the indictment in order to

11 withdraw count 3, which alleges rape pursuant to Articles 3 and 7(3) of

12 the statute.

13 As Your Honours are certainly aware, the gravamen of this count

14 relates to Witness DRW-1 and is described in her statement dated 7

15 November 1999 which the Prosecution had sought to have admitted pursuant

16 to Rule 92 bis.

17 On 5 December 2007, pursuant to Rule 92 bis, the Trial Chamber

18 admitted the written statement of Witness DRW-1 but ordered the witness to

19 attend for purposes of cross-examination.

20 Despite the best efforts of the Prosecution trial team,

21 Witness DRW-1 has informed members of my trial team that she is not

22 prepared to attend for purposes of cross-examination and similarly is

23 unable to be cross-examined by way of videolink.

24 As a result of that decision by the witness, the Prosecution

25 respectfully requests leave to withdraw that count from the indictment.

Page 6714

1 And I would be prepared to answer any further questions concerning that

2 matter and depending of course upon the question, we may or may not be

3 able to address that in open court. We may need to go into private

4 session, but if there are questions concerning that aspect of what we are

5 requesting I am prepared to answer any questions that I'm able to answer.

6 JUDGE MOLOTO: Okay. I have questions to ask you, Mr. Mundis. I

7 don't think they need us to go into private session.

8 Mr. Mundis, Rule 50(A)(i)(c) that you refer us to doesn't seem

9 absolutely opposite to the situation that we are dealing with here. This

10 Rule relates to assignment of a case to a Trial Chamber but it doesn't say

11 at what stage the case is. Now, here we have a case where the accused has

12 pleaded, evidence has been led, and you now want to drop a count. What

13 about the accused's rights?

14 MR. MUNDIS: Well --

15 JUDGE MOLOTO: Let me finish. The accused, don't you think that

16 the accused is entitled to a verdict on that count? Why do you want to

17 expose him to the risk of double jeopardy?

18 MR. MUNDIS: Let me take -- I see two prongs to that question,

19 Mr. President. The first point being that I believe that Rule 50(A) which

20 makes reference to the Prosecutor amending an indictment under

21 subparagraph 1(c) indicates after the assignment of the case to the Trial

22 Chamber with the leave of that Trial Chamber although the rule does not

23 speak specifically of withdrawal of counts, certainly in order for us to

24 withdraw the count we would argue is in effect an amendment to the

25 indictment and so that would be the best rule or the most applicable

Page 6715

1 provision within the rules for this application.

2 Turning to the second prong, certainly what I'm envisioning and we

3 can certainly put this or make this more clear on the record, is that what

4 we are doing obviously is seeking the leave of the Trial Chamber to

5 withdraw, as we would say in my jurisdiction, with prejudice, in other

6 words that this count cannot come back to life before this Tribunal. I

7 would not envision that it would be coming back to life before any other

8 Tribunal or any other court.

9 JUDGE MOLOTO: That is just what you cannot envision but in

10 principle, it could happen. It may not necessarily happen in this case

11 but in principle, it could happen because the accused has not had a

12 verdict.

13 MR. MUNDIS: That is correct.

14 JUDGE MOLOTO: That's right. And what does the law say on double

15 jeopardy?

16 MR. MUNDIS: Certainly the position would be that any other court

17 would not be bound in that respect by that withdrawal.

18 JUDGE MOLOTO: Indeed.

19 MR. MUNDIS: Indeed.

20 JUDGE MOLOTO: And then would then charge the accused so the

21 accused is exposed to double jeopardy. He has been tried here halfway on

22 the charge, on the count. Now he can be tried somewhere else because this

23 Chamber did not give a final verdict.

24 MR. MUNDIS: Well, if the position of the Chamber would rather be

25 to enter a not guilty finding, I'm not sure if this would be the

Page 6716

1 appropriate time for that or --

2 JUDGE MOLOTO: It is not appropriate.

3 MR. MUNDIS: -- at the conclusion of the Prosecution case but the

4 point simply being that with respect to Witness DRW-1, that witness will

5 not appear for reasons I can explain and so there will be no further

6 evidence on the rape count.

7 JUDGE MOLOTO: Let me put it this way: You're the dominus litis.

8 It is not for the Trial Chamber to dictate to you how to prosecute your

9 case. If you are not going to lead any further evidence, that's fine.

10 That's your decision. The Trial Chamber at the appropriate time will look

11 at the evidence that's before it and give a verdict accordingly. And give

12 certainty to the accused about his status, because he's entitled to it.

13 MR. MUNDIS: Certainly. And that's exactly why -- notwithstanding

14 the fact that the Prosecution is dominus litis, obviously we need leave of

15 the Trial Chamber in order to do that. And if that leave is not granted,

16 then certainly the course of action would be open to the Trial Chamber to

17 find the accused not guilty and to give him that certainty at the

18 completion of the Prosecution case.

19 JUDGE MOLOTO: That's what you're suggesting, the Trial Chamber

20 has not applied its mind to the question of verdict just yet.

21 Let me just remind you, Mr. Mundis, of an analogous situation. At

22 the beginning of this trial, when the Prosecution was asking for 73

23 witnesses and the Trial Chamber had cut you down to 50, you made a

24 statement in court, in which you said, "Unless the Chamber gives the

25 Prosecution 73 witnesses, then the Prosecution is not going to lead

Page 6717

1 evidence." And the Trial Chamber asked you, "Are you putting a gun to the

2 head of the Trial Chamber?" You remember that statement?

3 MR. MUNDIS: I will probably remember that statement for many

4 years to come.

5 JUDGE MOLOTO: That's right. And do you remember that your

6 argument then was that once you start leading evidence, you can't

7 withdraw? That is why you didn't want to cross that threshold.

8 MR. MUNDIS: That is correct.

9 JUDGE MOLOTO: Now, why do you think you can cross it now? You

10 can withdraw now?

11 MR. MUNDIS: Well, Your Honours, one way that we are approaching

12 this is -- and I think we are actually looking at this from slightly two

13 different angles in terms of fairness to the accused by leaving that count

14 in the indictment -- from a fairness perspective to the accused, by

15 leaving a count in that the Prosecution no longer believes it can prove or

16 establish, also puts the accused in a position of jeopardy.


18 MR. MUNDIS: Because notwithstanding the fact that the Prosecution

19 doesn't believe it can prove that count, the Trial Chamber itself might be

20 satisfied on that count.

21 JUDGE MOLOTO: So? And if the Trial Chamber is satisfied -- would

22 be satisfied that the charge has been proved, then the accused is not put

23 into any jeopardy because he will get a verdict. Whatever the verdict is

24 going to be. But he will get certainty thereafter.

25 MR. MUNDIS: Yeah. I certainly understand that point,

Page 6718

1 Your Honours. All I'm able to do as the Prosecutor in this case is to

2 take those steps that are within my authorised realm, if you will, and one

3 of those would be seeking leave to withdraw the indictment.

4 JUDGE MOLOTO: And one of those would be just silently resting

5 your case on that count.

6 MR. MUNDIS: Absolutely.

7 JUDGE MOLOTO: That's right.

8 MR. MUNDIS: And we are certainly in the Trial Chamber's hands

9 with respect to that issue. I will say, however, that with respect, and

10 perhaps if there is no further questions on this particular issue, I would

11 then turn to the second aspect of this which is reconsideration of the 92

12 bis decision as it relates to this witness. But I am -- certainly would

13 be prepared to entertain any additional questions concerning the

14 withdrawal.

15 JUDGE MOLOTO: Let me ask you a question. Is your second motion

16 on reconsideration not dependent on the outcome of your motion on the

17 withdrawal?

18 MR. MUNDIS: Well, they certainly are related.


20 MR. MUNDIS: And that's perhaps why I would move on to that point

21 and that may raise additional or further questions concerning the rape

22 count.

23 JUDGE MOLOTO: Okay. Go ahead.

24 MR. MUNDIS: What the Prosecution is proposing to do is to

25 substitute a redacted version of DRW-1's statement in lieu of the

Page 6719

1 statement that has been admitted, with the paragraph describing the rape

2 incident being redacted for the purpose of not requiring the witness to

3 attend for cross-examination. In other words, and I've provided the

4 registrar with a copy of the statement with the proposed redaction, which

5 is at the bottom of page 3, the Prosecution is of the view that there is

6 other evidence in the written statement of DRW-1 that is important for the

7 Trial Chamber to consider.

8 JUDGE MOLOTO: And why would you want to redact the statement?

9 MR. MUNDIS: Because --

10 JUDGE MOLOTO: Why do you want to tamper with that statement?

11 MR. MUNDIS: Because, Your Honours, the Trial Chamber has ordered

12 the witness to appear for cross and she will not come with the result that

13 the statement then does not go into evidence. There are other paragraphs

14 of the statement --

15 JUDGE MOLOTO: But the statement is in evidence already, isn't it?

16 MR. MUNDIS: Yes, it is but --

17 JUDGE MOLOTO: With an additional order that the witness comes

18 forth for cross-examination.

19 MR. MUNDIS: Exactly.

20 JUDGE MOLOTO: So it is in evidence. What are you saying?

21 MR. MUNDIS: If the witness doesn't appear for

22 cross-examination --

23 JUDGE MOLOTO: Then we'll look at that statement of hers in the

24 light of a statement that is not supported by a person coming for

25 cross-examination and whether the witness is dealt with for contempt is

Page 6720

1 another matter. That's a different story.

2 MR. MUNDIS: Well, Your Honours, it's precisely for that point

3 that the Prosecution takes the position that we will be relying on the

4 material in her written statement.


6 MR. MUNDIS: And if the Chamber deems that statement to have no

7 weight whatsoever because the witness failed to appear, and/or may be

8 subjected to contempt proceedings because she failed to appear, in our

9 view, that statement would have little or no weight whatsoever. And

10 because the Prosecution seeks to rely on the evidence contained in that

11 statement, outside of her description of the actus reus of the rape, it is

12 our position that we would rather have the entire statement in, without

13 the rape count, than to forgo the evidence contained in the written

14 statement.

15 JUDGE MOLOTO: Mr. Mundis, if the statement goes in in a redacted

16 form, the witness doesn't come here for cross-examination. If the

17 statement goes in unredacted and the witness still doesn't come for

18 cross-examination, that statement is in, the witness in both situations

19 has not come in for cross-examination, the probative value that will be

20 attached to that statement will be the same. To the extent that that

21 statement is corroborated by other evidence, there may be a different

22 value attached to that but to the extent that it stands uncorroborated,

23 that's another matter. So I don't see how redacting the statement or not

24 redacting the statement affects the status of the statement in evidence.

25 The statement is there in evidence. What probative value will be given to

Page 6721

1 it will be given to it at the time that that is being considered but I

2 don't see why it should be redacted.

3 MR. MUNDIS: Well, Your Honour, it would seem to be the case or at

4 least one position that would seem to be the case, as far as the

5 Prosecution is concerned, is that if you have a written statement of a

6 witness who is ordered to appear for cross-examination, and that witness

7 does not appear for cross-examination, and potentially faces contempt

8 proceedings for failing to appear, the Chamber very well might be inclined

9 to take a dim view of that written statement in light of the fact that the

10 witness failed to appear.

11 JUDGE MOLOTO: Sure. But to the extent that that statement is

12 corroborated by other evidence, the view that the Chamber will take of

13 that statement will be different.

14 MR. MUNDIS: Yes.

15 JUDGE MOLOTO: Except for the important live issue between the

16 parties that is uncorroborated.

17 MR. MUNDIS: Yes.

18 JUDGE MOLOTO: So, for me, I don't see any reason for redacting

19 the statement.

20 MR. MUNDIS: Well, what the Prosecution, Your Honours, is seeking

21 to avoid is a situation where efforts might be taken to compel this

22 witness to attend, and that goes to the issue of what will happen if the

23 statement, as it exists now, with the decision as it exists now, remains

24 in place.


Page 6722

1 MR. MUNDIS: And I can elaborate upon that but I would ask to go

2 into private session with respect to submissions on that point.

3 JUDGE MOLOTO: May the Chamber please move into private session?

4 [Private session]

5 (redacted)

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Page 6723











11 Pages 6723-6732 redacted. Private session















Page 6733

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12 [Open session]

13 THE REGISTRAR: Your Honours, we are now in open session.

14 MR. MUNDIS: The Prosecution was granted 109 hours for the direct

15 examination of its witnesses. According to figures supplied by the

16 Registry at the conclusion of the proceedings yesterday, the Prosecution

17 has consumed 108 hours, 45 minutes, leaving us with approximately 15

18 minutes before we hit the 109 hour mark, and pursuant to Rule 73 bis(F),

19 the Prosecution makes an oral application for additional time in order to

20 complete its case in chief.

21 I am specifically requesting an additional six hours, although I

22 don't believe six hours will be required, but allow me to explain. We do

23 have two additional witnesses who are currently scheduled. One

24 Mr. Omerasevic is scheduled to appear on Monday for cross-examination only

25 pursuant to Rule 92 bis. I don't expect we would require much time, if

Page 6734

1 any, in terms of re-examination with respect to him. And then of course

2 we have Mr. Awad scheduled for the week of the 15th of January who is

3 currently listed for four hours.

4 Beyond those two witnesses there is one additional 92 bis motion

5 outstanding concerning the witnesses Negovetic and Vukovic. In the event

6 the Trial Chamber either denies that motion and requires those witnesses

7 to appear viva voce and/or requires one or both of those witnesses to

8 attend for cross-examination, there would be some additional time perhaps

9 required for either direct examinations or cross-examinations of those two

10 witnesses, which is how I came up with the figure of six hours. If we

11 were only talking about Mr. Awad, I believe four hours will be sufficient

12 for the direct examination of that witness; but, again, I believe under

13 these circumstances that the Prosecution is justified in seeking a slight

14 increase over the 109 hours that we were previously granted.

15 JUDGE MOLOTO: Mr. Mundis, if I understood you well, you have one

16 witness who is scheduled for four hours?

17 MR. MUNDIS: That's correct.

18 JUDGE MOLOTO: And you have a number of other witnesses who may or

19 may be coming for cross-examination. Are you absolutely sure that the

20 others will fit into the remaining two hours?

21 MR. MUNDIS: Well, again, I have one witness coming for cross on

22 Monday, I don't believe we'll require much time if any for re-examination,

23 although that depends on the cross. The other two witnesses could each be

24 done in no more than one hour of direct examination in the event they were

25 both required to appear to testify viva voce. If they were only required

Page 6735

1 to attend for cross-examination, then the amount of time required for any

2 possible re-examination would likely be less than one hour each.

3 JUDGE MOLOTO: Is your short answer that the remaining witnesses

4 outside the four-hour witness can fit into two hours?

5 MR. MUNDIS: Yes.

6 JUDGE MOLOTO: Is that your short answer?

7 MR. MUNDIS: Yes.

8 JUDGE MOLOTO: You're sure you don't want to increase this number

9 6 to something else?

10 MR. MUNDIS: Can I go for eight? Your Honour, I would ask for

11 eight, then, just so that I'm not doing this again.

12 JUDGE MOLOTO: I want you to avoid coming again because you're not

13 likely to get sympathy when you come again.

14 MR. MUNDIS: Right. The only significant witness for direct

15 examination left is Mr. Awad and I believe he can be done in four hours of

16 viva voce. So I believe six hours is adequate but let me revise that

17 figure upward to a maximum of eight hours.


19 MR. MUNDIS: In total.

20 JUDGE MOLOTO: You've got eight hours.

21 MR. MUNDIS: Thank you, Mr. President. Thank you, Your Honours.

22 JUDGE MOLOTO: Thank you very much.

23 Sorry about that. I didn't have my ducks in a row now.

24 [Trial Chamber confers]

25 JUDGE MOLOTO: Monday, we sit in the morning at 9.00. Do you

Page 6736

1 confirm, Mr. Registrar? And we are in Courtroom II. Okay. Then the

2 Court stands adjourned until Monday, 9.00, in Courtroom II.

3 Court adjourned.

4 --- Whereupon the hearing adjourned at 4.55 p.m.,

5 to be reconvened on Monday, the 10th day of

6 December, 2007, at 9.00 a.m.