Status Conference (Open Session) 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
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
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
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
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,
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
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
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