Tribunal Criminal Tribunal for the Former Yugoslavia

Page 122

1 Monday, 21 May 2007

2 [Status Conference]

3 [Open session]

4 [The accused is not present]

5 --- Upon commencing at 3.02 p.m.

6 JUDGE MOLOTO: Let the registrar please call the case. And good

7 afternoon to everybody.

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

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

10 JUDGE MOLOTO: Thank you very much.

11 Welcome to everybody and may we please have the appearances.

12 Prosecution, first.

13 MR. MUNDIS: Good afternoon, Your Honours, counsel and everybody

14 in and around the courtroom. For the Prosecution, Daryl Mundis,

15 Laurie Sartorio, Aditya Menon and our case manager, Alma Imamovic-Ivanov.

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

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

18 afternoon to my learned friends from the OTP. Good afternoon to all.

19 I'm Vasvija Vidovic, attorney-at-law from Sarajevo. I represent

20 General Rasim Delic along with my colleague, Nicholas David Robson, a

21 lawyer from the UK. We are joined today by our case manager,

22 Mrs. Lana Deljkic.

23 JUDGE MOLOTO: Thank you very much. Before we proceed, I notice

24 that the defendant is not in court. Is there any reason why he is not

25 here?

Page 123

1 He is on provisional release. Thank you very much. So okay.

2 By way of introduction that we just said, at the last Status

3 Conference in the present case was held on the 27th of February, 2007,

4 pursuant to Rule 65 bis of the Rules of Procedure and Evidence, "A status

5 conference shall be convened within 120 days of the last, in order to

6 organise exchanges between the parties to ensure the expeditious

7 preparation for the trial and to allow for the accused to raise issues in

8 relation to the case."

9 In view of the fact -- I beg your pardon, in view of the start of

10 the trial within the near future, the Trial Chamber has deemed it

11 necessary to call the Status Conference in order to deal with pending

12 matters. And seeing that the accused is not here, we are going to skip

13 the next item that relates to the verifying whether the accused can

14 understand, and whether he has got any complaints to raise with the

15 Court, and we will move on to the next item which is update on

16 disclosure.

17 Now, both the Prosecution and the Defence, in their joint

18 submission on outstanding issues filed on the 29th of March, 2007, the

19 parties agreed that the following issues remain outstanding in relation

20 to disclosure obligations: A) There was the disclosure under Rule 65 ter

21 and 66(A)(ii) of statements of witnesses, 4, 13 and 49 on the Prosecution

22 confidential list -- witness list; and B) The Prosecution's ongoing

23 disclosure obligations under Rule 66(B) and 68.

24 What the Trial Chamber would like to hear from the parties is

25 what the status of those disclosures is specifically with respect to the

Page 124

1 statements of the three witnesses; and secondly, the large number of -- I

2 beg your pardon, the materials shown to witnesses during interviews with

3 the OTP investigators. This is what was contained in a letter from the

4 Defence about those disclosures.

5 Mr. Prosecutor.

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

7 Turning first to the issue of the three witness statements, it is

8 correct that there are three witnesses on the Prosecution's Rule 65 ter

9 list for whom the Prosecution does not have written or tape-recorded or

10 audio-recorded statements from those witnesses. It is our position that

11 there is no such requirement under the Rules; however, as we've assured

12 the Defence repeatedly, if and when written or recorded statements are

13 taken from those witnesses, they will be disclosed to the Defence as

14 quickly as possible.

15 I will also indicate that with respect to one of those three

16 witnesses, we have disclosed notes taken by the interviewer with that

17 witness. With respect to a second witness, we have disclosed a series of

18 e-mail exchanges that this office has had with that witness. That

19 witness's testimony relates primarily to the authenticity of a particular

20 document in this case. We do not have statements from these three

21 witnesses. In the event we take statements from them, we will disclose

22 those to the Defence and, of course, immediately prior to their

23 testimony, when we interview the witness for purposes of proofing, any

24 such proofing notes will be disclosed to the Defence promptly and

25 certainly prior to the witness appearing for testifying.

Page 125

1 JUDGE MOLOTO: Thank you, Mr. Mundis. Has there been any

2 communication with the third witness? You have referred to the first

3 two.

4 MR. MUNDIS: Yes, and we are currently in the process of

5 compiling some notes that would be of assistance to the Defence with

6 respect to that witness.

7 JUDGE MOLOTO: Thank you very much.

8 Any comment, please.

9 MS. VIDOVIC: [Interpretation] No, Your Honour. What Mr. Mundis

10 has said is entirely true. We have received the letters exchanged

11 between the two witnesses and the Prosecutor. We understand that should

12 there be any statements, the Prosecutor will be submitting those to us as

13 soon as they are in possession of those.

14 JUDGE MOLOTO: Thank you very much. I'm going to come back to

15 you, Mr. Mundis. At this state, and I know it may not be ease to say, is

16 it the intention of the Prosecution to take statements from these

17 witnesses, and is there anything been done towards that?

18 MR. MUNDIS: With respect, let me start with the witness for whom

19 I mentioned deals primarily with the authenticity of a document and very

20 limited testimony that goes to the issue of notice. This witness is

21 currently residing in the United States, and we are in -- attempting to

22 identify a suitable OTP staff member who perhaps is on leave or will be

23 going on leave to the United States for purposes of taking a statement or

24 to be included during such a trip. It's simply resources are such that

25 it not particularly useful, in our submission, to send an investigator

Page 126

1 for the limited purpose of taking a very short statement and showing one

2 document to a witness. So we are endeavouring to identify a suitable

3 staff member who is on leave or going to be on leave in the United States

4 who could perhaps make a detour and take a statement from that witness.

5 With respect to the other two witnesses, they are certainly on

6 tap to have statements taken from them, but as I would anticipate the

7 Trial Chamber might appreciate given the fact that we have -- it would

8 appear that we are moving up to a very close start date in this case,

9 there are a number of other tasks that need to be done, and in the event

10 we do take statements, they will be disclosed. They are on the list of

11 priorities in order to be done, but I can't commit to any particular

12 time-period where it's likely that such statements will be taken.

13 JUDGE MOLOTO: Mr. Mundis, precisely because we are moving close

14 to the start date of the trial, I think it leaves the Chamber a little

15 concerned if the taking of statements must depend on whether somebody is

16 or is likely to go to the United States and can make a detour.

17 I understand that the length of the statement may not necessarily

18 be so long or as to justify a whole trip there, but it -- it's not the

19 length of the statement, it's the importance of the statement. And I

20 think it if is important enough for the witness to be brought to this

21 trial, I would impress upon the Prosecution to take slightly more

22 definitive steps to try and obtain the statement than depending on

23 somebody going on leave and making a detour.

24 MR. MUNDIS: We'll certainly take that into consideration in our

25 planning, Your Honour. Thank you.

Page 127

1 JUDGE MOLOTO: Thank you very much.

2 I have been engaging Mr. Mundis. Do you have anything to say on

3 what I have been saying, Ms. Vidovic?

4 MS. VIDOVIC: [Interpretation] Your Honour, at any rate, what we

5 expect is this: The Prosecutor intends to bring these witnesses to

6 testify. We must have sufficient time, in keeping with Article 21 of the

7 statute, for preparing our Defence and our cross-examination.

8 JUDGE MOLOTO: Thank you very much. In other words, you're

9 endorsing what I have just been saying on behalf of the Chamber.

10 Are you able to comment then on the materials that were supposed

11 to have been shown to witnesses during interviews with OTP investigators,

12 Mr. Mundis?

13 MR. MUNDIS: Thank you, Mr. President. We have received during

14 the course of the pre-trial proceedings in this case a number of requests

15 from the Defence for missing documents, including those shown to

16 witnesses, and I believe we have always moved as expeditiously as

17 possible to provide any such missing materials. That would include the

18 recent correspondence that we received late Friday to the effect of

19 missing material from remaining witness statements, and I believe we'll

20 be in a position to disclose that material by the end of this week.

21 JUDGE MOLOTO: Thank you very much. At least you're giving us a

22 time-line this time. Can we tie you down to the end of this week?

23 MR. MUNDIS: It will be done.

24 JUDGE MOLOTO: Thank you very much.

25 Do you have any comments?

Page 128

1 MS. VIDOVIC: [Interpretation] Your Honours, we had a meeting with

2 the OTP today. We have had very good cooperation so far with

3 Mr. Mundis's entire team. They have always fulfilled all of their

4 promises, and they said that we would be receiving these documents over

5 the next several days. We are not talking about an enormous amount of

6 documents. There are about 20 documents that we are expecting.

7 JUDGE MOLOTO: In various communications, Ms. Vidovic, you have

8 expressed your appreciation for the cooperation you are getting from your

9 colleagues from the OTP. I just want to make -- mention to you that the

10 Chamber is taking note of that and is grateful to hear that there is this

11 cooperation between the two of you.

12 But be that as it may, yes, we do want to make sure that things

13 happen and happen as expeditiously as possible. Okay. So specifically,

14 Mr. Mundis, we're going to tie you down to Friday of this week for -- for

15 the delivery of those materials. And what is the date on Friday? 25th?

16 Let the record show that by the 25th, the OTP will supply those

17 materials.

18 Now, under the continuing obligations, there was a need to

19 disclose in terms of Rule 66(B) and Rule 68. Now, it has been also

20 mentioned that a large number of documents remains to be disclosed. This

21 again was mentioned by the Defence. Now, I'm not quite sure what a large

22 number of documents means. I don't know whether it is possible if I can

23 start with you, Ms. Vidovic, to give some kind of approximation of how

24 large this large number is. I guess that might just help the Prosecution

25 to identify. If I'm not mistaken, there was communication from the

Page 129

1 Prosecution to you to say that. Can you talk about it and try to

2 identify what is outstanding?

3 MS. VIDOVIC: [Interpretation] Your Honours, about a year ago, we

4 submitted a set of criteria to the OTP. We asked for disclosure to be

5 conducted in keeping with those criteria. Sometimes it was about a

6 single criterion. For example, in the case of Rasim Delic, this was

7 about thousands of exhibits in the possession of the OTP; documents which

8 they tracked down.

9 We defined about 20 of these criteria. The OTP have conducted

10 searches and they have submitted to us documents in relation to seven of

11 those criteria. Procedures are underway for another criterion as part of

12 this ISU search. We have also agreed to have a look at another list of

13 criteria, especially as regards certain locations that we at this point

14 in time deem to be a priority.

15 I will certainly complete this by the end of this week. The

16 nature of the ISU searches is such that normally for each search, the OTP

17 must submit anything between hundreds and several thousands such

18 documents, and that is what I had in mind when I talked about the

19 documents that we are still expecting.

20 JUDGE MOLOTO: I'm afraid, Ms. Vidovic, you haven't answered my

21 question.

22 My question, in a nutshell really, required an answer that says

23 700 or 2.000 or 2 million, you know. I'm just trying to get an idea of

24 how large this large number is and whether the Prosecution is aware of

25 what exactly it is that the Defence requires.

Page 130

1 Now --

2 MS. VIDOVIC: [Interpretation] Yes, Your Honours, now I understand

3 you much better. The OTP know exactly what it is that we're after. It's

4 very difficult to say, but the OTP have much better information. I think

5 we just might be dealing with several tens of thousands of documents in

6 this case.

7 JUDGE MOLOTO: Mr. Mundis.

8 MR. MUNDIS: Thank you, Mr. President. Let me -- let me try to

9 explain what it is that Ms. Vidovic is specifically referring to.

10 As she indicated, more than a year ago the parties met and

11 jointly developed a list of search terms that the ISU would search for,

12 conduct electronic searches on. Among these search terms were 14 named

13 individuals; a number of military units, such as the 306th Mountain

14 Brigade or the 7th Muslim Mountain Brigade; a number of groups, such as

15 Mujahedin; a number of locations that feature in the indictment or which

16 otherwise would feature in the case.

17 These ISU searches been conducted beginning in earnest several

18 months ago. From those -- and they began with the 14 named individuals.

19 Full system searches were conducted on these 14 names or are in the

20 process of being conducted. It's difficult for us to even at this point

21 anticipate how many additional documents might be the result of these

22 searches. But let me stress one thing. Of the 14 named individuals,

23 eight of those searches are complete, seven of those search results have

24 been disclosed in total to the Defence with the exception of any

25 documents that fall within the purview of Rule 70. Those documents are

Page 131

1 being independently reviewed for purposes of Rule 68, and in the event

2 any of those documents contain Rule 68 material, we then contact the

3 Rule 70 provider to seek consent to disclose those documents.

4 So of the 14 named individuals, including the accused

5 Rasim Delic, seven of those have been fully disclosed; we're in the

6 process of disclosing the results on the eighth. The remaining six named

7 individuals, the searches on those are being conducted as we speak. I

8 have been informed by ISU that we should have all of those six remaining

9 results within two weeks. It will take us then approximately one week to

10 process those. I would expect within three weeks, all 14 of the named

11 individuals that we conduced full-system searches on will be disclosed to

12 the Defence.

13 That leaves us then with the groups, the military units and the

14 locations, and as I discussed my learned colleague just an hour and a

15 half ago, she will provide us with a list -- a revised list of those

16 search terms and or prioritisation of those terms so that the ISU can

17 focus on those terms which the parties believe will be the most relevant.

18 That is being undertaken simply because, again, due to time constraints,

19 it will not be possible to run all of those searches in the immediate

20 future, so we're trying to, again, engage between the parties to identify

21 those terms which are the most relevant, and we will conduct full system

22 searches for those locations, military units, groups of individuals et

23 cetera.

24 As soon as those results are available, we have an agreement with

25 the Defence whereby we disclose to them the entirety of those search

Page 132

1 results with the exception of any documents that fall within the purview

2 of Rule 70, which as I indicated, are then specifically reviewed by the

3 OTP, and in the event any of those Rule 70 documents contain Rule 68

4 material, we then seek the consent of the Rule 70 provider in order to

5 disclose them.

6 So the short answer, Your Honour, if I may, is it is unknown how

7 many documents we're talking about, because the searches are not yet

8 finished.

9 JUDGE MOLOTO: Thank you very much, Mr. Mundis. But you have

10 said that within three weeks' time, are you in a position to deliver

11 certain documents?

12 MR. MUNDIS: With respect to the 14 named individuals, those

13 documents should be disclosed to the Defence in three weeks. We should

14 have the results back from ISU in two weeks, and we expect it will take

15 us about a week to process those search results and disclose them.

16 JUDGE MOLOTO: You will appreciate that because we want to decide

17 on the trial date, I'm going to pushing very hard on time-lines.

18 Now, let's put it on terms of three weeks for the 14. You've

19 said that of those 14, seven have already been fully disclosed. So it's

20 actually the remainder, out of 14.

21 MR. MUNDIS: And one of those will be disclosed this week. We

22 believe that the -- that the 8th one will be disclosed this week --

23 JUDGE MOLOTO: This week.

24 MR. MUNDIS: -- which leaves us with six --

25 JUDGE MOLOTO: Six, okay.

Page 133

1 MR. MUNDIS: -- and those six, we expect, will take two weeks to

2 complete the searches and a week to process that information of that

3 material and disclose it to the Defence.

4 JUDGE MOLOTO: Okay. So that we don't have many time-lines,

5 we'll club that one -- that is going to be disclosed this week, together

6 with the remaining six, and say for those seven, we're putting you on

7 terms for three weeks to disclose. And what is the date three weeks

8 hence?

9 MR. MUNDIS: It's the 11 of June.

10 JUDGE MOLOTO: The 11th of June. Can we put on terms that you

11 will deliver those by the 11th of June, Mr. Mundis? And then you said,

12 additionally to those, there are six officers who -- about whom you still

13 have to do ISU investigations and what have you. Are you able to give a

14 time-line for those?

15 MR. MUNDIS: The six -- the six are part of the 14.

16 JUDGE MOLOTO: Yeah. The six are part of the 14.

17 MR. MUNDIS: So, we will, Your Honour, I will commit to

18 disclosing all of the ISU search results for the 14 named individuals,

19 half of whom are already done, by the 11th of June.

20 I then need from the Defence, which we've discussed, a

21 prioritisation of the remaining search terms which are not named

22 individuals but are place names, unit names, names of groups. Those we

23 need to narrow and prioritise because it is simply not possible, given

24 the demands of other cases and -- including this case, where full system

25 searches are being done on the Prosecution witness list, to complete

Page 134

1 those ISU searches for those remaining search terms which, again,

2 includes locations, groups and military units.

3 And Ms. Vidovic, earlier today, has indicated to me that by the

4 end of the week, I will get a prioritisation list from her which we will

5 then submit and attempt to get expedited so that those ISU searches can

6 be done with respect to those remaining search terms.

7 JUDGE MOLOTO: Thank you very much.

8 Ms. Vidovic, do you confirm that?

9 MS. VIDOVIC: [Interpretation] Yes, Your Honour, I do.

10 JUDGE MOLOTO: Now, I see you saying it in one sentence, which I

11 appreciate, you confirm that you have received complete disclosure with

12 respect to the seven, that you will be given the one, the eighth one, in

13 this week or in three weeks, with the other six and that within a week,

14 you will provide the Prosecution with criteria for further searches.

15 Now, we're going to put to you a limit -- by within a week this

16 Friday. Do you mean by this Friday?

17 Okay, the record then will then show --

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

19 JUDGE MOLOTO: -- the record will then show that by the 25th of

20 this month, you will have provided further criteria to the Prosecution

21 for them to be able to conduct further searches that need to be done.

22 Having got those further criteria, how long do you think it will

23 take you, sir, to do the remaining search?

24 MR. MUNDIS: That depends on how many terms I get from the

25 Defence.

Page 135

1 JUDGE MOLOTO: We'll let you off the hook on that one in terms of

2 time-lines. Are you able to advise the Chamber more or less how long you

3 think it will take you once you have gone through the criteria?

4 MR. MUNDIS: Well, the ISU is currently focussing on the witness

5 list of the first approximately 20 witnesses that the Prosecution will

6 call. I can certainly inform the Chamber's legal officer once I have

7 received the list from Ms. Vidovic as to approximately how long I think

8 it will take.

9 JUDGE MOLOTO: You confuse me, Mr. Mundis. You're talking about

10 the first 20 witness list. I thought the remaining search is going to be

11 done on places and troops and what have you?

12 MR. MUNDIS: Yes. Okay, that is exactly right, and I apologise

13 for confusing the Chamber. What the ISU unit is currently focusing on,

14 with respect to this case, are conducting searches on the Prosecution

15 witness list of the first approximately 20 witnesses we will call. I

16 will be in a position to inform the Trial Chamber as to an expected

17 time-frame once I have the list from the Defence, and I would propose

18 that if I get that list from Ms. Vidovic by Friday, that perhaps by the

19 following Tuesday, I can send a letter to the Chamber's legal officer

20 informing them of how long I think it will take for the searches to be

21 complete. If that would be acceptable. I simply can't give an estimate

22 how long it will take until I know how many terms.

23 JUDGE MOLOTO: I appreciate that. But I just want to be sure we

24 are on the same page. You need that information from Ms. Vidovic to be

25 able to advise the Chamber by Tuesday on how long it will take you to

Page 136

1 disclose on the witnesses you still say, not places.

2 MR. MUNDIS: On the -- on the search terms.

3 JUDGE MOLOTO: On the search terms, okay. Thank you very much.

4 We're on the same page on that one.

5 MR. MUNDIS: Yes.

6 JUDGE MOLOTO: Okay. So the record will then show that by

7 Tuesday next week, which should be the 29th, that the Prosecution will

8 advise the Chamber how long they estimate it will take them to do further

9 searches pursuant to Rules 66(B) and 68.

10 Okay. Anything else under that item that anybody wants to say?

11 Mr. Mundis?

12 MR. MUNDIS: Nothing, Your Honour.

13 JUDGE MOLOTO: Ms. Vidovic?

14 MS. VIDOVIC: [Interpretation] Nothing.

15 JUDGE MOLOTO: Thank you very much. Can we move on to the next

16 item, which is expert reports?

17 On the 31st of October, 2006, the Prosecution submitted as

18 required its expert reports to the Defence, and on the 15th of November,

19 the Defence was ordered either within 30 days from the 15th of November

20 or 30 days after receiving the reports in B/C/S from the Prosecution to

21 file its notice pursuant to 94 bis (B). It appears the Defence has

22 provided notifications to the Prosecution only. There are no registered

23 filings of any Defence notices under Rule 94 bis.

24 Are you able to tell us something, Ms. Vidovic?

25 MS. VIDOVIC: [Interpretation] Your Honours, on the 14th of

Page 137

1 November, so one day before the Status Conference, we had held a meeting,

2 a joint meeting, with the OTP. I told the OTP at the time that I would

3 certainly be cross-examining the witness and that I would be requesting

4 additional material not contained in the expert report, material that

5 would allow us to assess the qualifications of this expert witness and to

6 assess certain portions of his finding.

7 At the 15th of November conference, I received an order from the

8 Chamber to file a response within 30 days from receipt of the entire set

9 of documents in the Bosnian language from the OTP. We have been

10 exchanging letters with the OTP about the expert report, and the

11 situation is as follows:

12 By this day, we have received from the OTP the finding of

13 Mr. Robert Cooper in both languages, as well as references to the works

14 that he published and the relevant literature. Rather, this is about

15 Edwin Corbin, what I have been saying now. We have his report in the

16 Bosnian and in the English language. We received some of the documents;

17 however, we have not received some others in Bosnian or in English.

18 There is a concern amount of documents that we have not received in

19 Bosnian.

20 Likewise, speaking of Mr. Cooper's report, we have not received

21 from the OTP the information that we sought. The OTP told us that they

22 would be submitting such information as soon as they got it from

23 Mr. Cooper, and this is about the works that he published, his research

24 and works published in scientific journals, which would allow us to

25 assess the expert report.

Page 138

1 We spoke about this today with the OTP, and we reached an

2 agreement to the effect that the OTP would be submitting these documents

3 to us over the next following days, which would place us in a position

4 where we could respond to our commitments, the commitments imposed upon

5 us by the Pre-Trial Judge.

6 At any rate, at the 15th of November Status Conference, we had a

7 concern amount of information available to us, and based on that, we

8 decided that we would be cross-examining, and also that we would be

9 challenging certain portions of the expert's report.

10 JUDGE MOLOTO: [Previous translation continues] ... hear you,

11 Mr. Mundis.

12 MR. MUNDIS: Thank you, Your Honour. We have -- we will commit

13 to disclosing any of the remaining material concerning the expert,

14 Robert Cooper, and the expert, Evan Coleman, by Friday, the 25th of May.

15 That is this week.

16 Ms. Vidovic has pointed out and provided us with a list of some

17 material that was missing. We will disclose that by this Friday.

18 The second point is we clearly, based on what Ms. Vidovic has

19 told us on the 15th of November, we clearly are on notice that she will

20 challenge the expertise of those witnesses and she wishes to

21 cross-examine them. So that issue, at least as far as the Prosecution is

22 concerned, is not an open issue. We are well aware that she wishes to

23 cross-examine these witnesses and will challenge their expertise.

24 JUDGE MOLOTO: Thank you very much, Mr. Mundis. Maybe you might

25 be able to guide me here. Maybe my colleagues must know this, but I

Page 139

1 don't. You are well aware that the Defence intends to cross-examine

2 these witnesses. Should the Defence not file that kind of notice that is

3 with registry, not just with the Defence -- with the Prosecution, isn't

4 the Chamber not supposed to be notified that, indeed, you do intend

5 cross-examining these witnesses, Ms. Vidovic?

6 MS. VIDOVIC: [Interpretation] Your Honour, yes, yes, and at any

7 rate, I do have that in mind, but in order to give you our view, under

8 Rule 94, I do need the additional materials because the expert refers to

9 those additional materials in his report, and I have not seen them. I'm

10 very well aware of my obligations under Rule 94, and I do have to inform

11 the Trial Chamber accordingly, but I simply did not have all the

12 materials that would allow me to make that statement.

13 This is something that I have discussed with the Prosecution, and

14 I will quite soon be in a position to make this statement, and this is

15 definitely the only thing that is proper in accordance with the rules and

16 the decision that was handed down by the Pre-Trial Judge.

17 JUDGE THELIN: Well, if you allow me, it seems to me that in

18 light of what Mr. Mundis now have told us, the clock starts to run on the

19 25th of May. So the 30-year -- sorry, 30-day period under the rule would

20 then be complete a month later. So that's, I think, where we are on

21 this.

22 JUDGE MOLOTO: Thank you very much. Then let the record show,

23 as Mr. Mundis has promised, that he will deliver by the 25th of this

24 month, from which date the 30-day period for the response by the Defence

25 will begin to run.

Page 140

1 Thank you very much and thank you very much, Judge.

2 And I guess that closes that item.

3 Can we move on to the update on additional agreed facts? Again,

4 here, on the 26th of March, the Prosecution submitted a table containing,

5 I suppose, nearly 900 proposed additional agreed facts derived from the

6 pre-trial briefs filed by the parties and seven proposed adjudicated

7 facts.

8 I'm sorry. Currently, I'm rattling away, and the interpreters

9 are not able to keep pace with me.

10 I was just saying that on the 26th of March, 2007, the

11 Prosecution submitted a table containing nearly 900 proposed additional

12 agreed facts derived from the pre-trial briefs filed by the parties and

13 seven proposed adjudicated facts. And at that time, the Prosecution

14 indicated that it would take at least six additional weeks for the issue

15 of agreed facts to be finalised.

16 I think we're well beyond six weeks from the 26th of March, 2007,

17 and the Trial Chamber would like to know how this matter has been

18 finalised, if at all.

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

20 I'm pleased to announce that the parties met again earlier today.

21 I believe we have now come to an agreement with respect to approximately

22 80 additional agreed facts. Your Honour will probably recall we

23 previously had agreed to 40 facts and so --

24 JUDGE MOLOTO: 48, you mean?

25 MR. MUNDIS: 40 in total before and now an additional 80, 8-0.

Page 141

1 In addition to that, and I have discussed this with the Defence

2 and they will come back to me in the next couple of day, there were also

3 approximately 75 of the adjudicated facts which the Defence had indicated

4 that they had accepted, and I'm awaiting to hear word from them as to

5 whether their view would be that those adjudicated facts which the

6 Defence accepted should be converted into agreed facts, which would then

7 take us up to about 200 agreed facts in total.

8 But we, at this stage, have agreement on approximately 120 agreed

9 facts, and as soon as we have a chance, the parties have a chance to

10 review the final list, we will be filing something with the Trial Chamber

11 concerning all of the agreed facts.

12 JUDGE MOLOTO: Do you confirm, Ms. Vidovic?

13 MS. VIDOVIC: [Interpretation] I can confirm this, Your Honour.

14 But the end of this week, I think it's the 25th of May, we will also be

15 giving our view to the Prosecution regarding this additional issue

16 related to the adjudicated facts.

17 JUDGE MOLOTO: Thank you very much, Ms. Vidovic. By this Friday,

18 the Defence will be giving the OTP their view. What the Chamber is

19 ultimately interested in is -- the OTP having received that view, when do

20 you think we could finalise this question of agreed facts?

21 MR. MUNDIS: Again, I believe we'll be in a position shortly

22 after I hear from the Defence on those 75 adjudicated -- proposed

23 adjudicated facts which they have accepted, and if the Defence view is

24 that those, in effect, should now be considered agreed facts, since the

25 Defence have accepted them as potential adjudicated facts, then we would

Page 142

1 file one consolidated list that would have approximately 200 agreed facts

2 in total.

3 So I'm waiting to hear word from the Defence this Friday as to

4 those adjudicated facts, whether they should be, in effect, converted, if

5 you will, into agreed facts.

6 JUDGE MOLOTO: Thank you very much, Mr. Mundis. If I can just

7 push you slightly to my question, by when does the OTP think it could

8 file the 200 --

9 MR. MUNDIS: Monday. I get a response from her on Friday, I will

10 file on Monday.

11 JUDGE MOLOTO: What is the date on Monday?

12 MR. MUNDIS: The 28th of May.

13 JUDGE MOLOTO: I'm going to hold you down to the 29th, the

14 following day. I'll give you an extra day bonus.

15 MR. MUNDIS: Thank you very much.

16 JUDGE MOLOTO: 29th, you will file that. Let the record show

17 that.

18 [Trial Chamber confers]

19 JUDGE MOLOTO: Judge Thelin has just brought to my attention

20 something apparently -- whatever is going to happen to those adjudicated

21 facts is likely to impact on the Prosecution motion for judicial notice

22 of adjudicated facts of the 29th of September, 2006, and therefore there

23 would have to be an adjustment one way or the other. I'm not quite sure

24 how.

25 MR. MUNDIS: If -- if -- I would suggest the following,

Page 143

1 Your Honour: If the Defence informs us that their view is that those 75

2 or approximately 75 adjudicated facts that we have put forward in our

3 motion in last September are acceptable to be converted, if you will,

4 into agreed facts, then in our filing we will list a chart with those 75

5 facts so that, in effect, the Trial Chamber no longer has to consider

6 those as adjudicated facts on the basis that they're now agreed facts.

7 And so we would simply ask that those 75 facts -- adjudicated facts be

8 withdrawn from the Trial Chamber's consideration.

9 And it would seem to us, and this why we propose this to the

10 Defence, that since we put them forward as adjudicated facts and they

11 have accepted them as such, the best course of action would simply be to

12 call them agreed facts. But I have left that up to my learned colleagues

13 from the Defence to provide me with their views on that, and that's what

14 they're going to do on Friday. And then on Tuesday, I will take their

15 views and either you get a list with 120 agreed facts, or you'll get a

16 list with about 200 agreed facts. And that list, if it includes the

17 adjudicated facts, will have a separate table informing the Trial Chamber

18 that we're withdrawing those potential adjudicated facts from the pending

19 motion.

20 JUDGE MOLOTO: Thank you very much. In fact, you agree with

21 that, Ms. Vidovic?

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

23 JUDGE MOLOTO: The Chamber would urge and encourage the parties

24 to follow that route, rather than file adjudicated facts. I think it

25 will be easier and it makes the life of a trial easier if they come in as

Page 144

1 agreed facts.

2 So if you can move into that directions, you are urged to -- to

3 go that way, indeed.

4 I guess there isn't anything else to -- to say, save for the fact

5 that does the record show any time-line on these adjudicated facts?

6 Friday and Monday -- Friday and Tuesday. Good, thank you very much.

7 And the next item relates to an update on transcripts and

8 translations of the Arabic language video material.

9 Yes, Mr. Mundis.

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

11 The Arabic language videotapes have all now been transcribed into

12 Arabic. They have been -- they have translated from Arabic into English,

13 and there are three -- approximately three of the, I think, 33 or 34

14 Arabic tapes, three of them have yet to be translated into the Bosnian

15 language. So approximately 30 of them have been translated into

16 Arabic -- or transcribed into Arabic, translated in English and Bosnian.

17 So we have three outstanding videos that are yet to be translated into

18 Bosnian. So we're very close on the Arabic language videotapes.

19 JUDGE MOLOTO: Thank you very much. And how long do you think it

20 might take to finalise the three?

21 MR. MUNDIS: I would say by the 31st of May, we should have the

22 remaining three --

23 JUDGE MOLOTO: 31st of May it will be.

24 MR. MUNDIS: Thank you.

25 JUDGE MOLOTO: You're tied down, the record shows.

Page 145

1 Any comment, Ms. Vidovic? 31st of May will be fine by you?

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

3 JUDGE MOLOTO: Thank you very much. You don't have anything to

4 add on to that item, do you?

5 MS. VIDOVIC: [Interpretation] No, Your Honour. Expect for the

6 fact that we still -- we have yet to check whether this list of 30 is the

7 full list. We always tend to check this.

8 Thank you very much.

9 JUDGE MOLOTO: [Previous translation continues] ... thank so

10 much.

11 The next item then relates to the Prosecution's motion for

12 pre-trial admission of evidence as the law library. A number of issues

13 that's arise from this, I don't know whether these have been communicated

14 to you by the Chamber staff, Mr. Mundis.

15 MR. MUNDIS: No. We have received --

16 JUDGE MOLOTO: First of all, the motion includes a table listing

17 48 documents; however, the motion does not include the documents that the

18 Prosecution requests to have admitted. It's a list. I don't know how we

19 admit the documents based just on their titles without seeing the list.

20 I don't know whether these documents have been previously filed

21 somewhere, are they available in the court -- in the registry? Can the

22 OTP refer us to them, or is it possible to annex them?

23 MR. MUNDIS: I think, Your Honour, with all due respect, the

24 easiest course would be for us to provide the Trial Chamber with copies

25 of this material would be certainly easier than referring you elsewhere.

Page 146

1 Basically, what it is is it's a series of primarily laws, decrees,

2 regulations, official type of documents of the sort that at this point

3 the parties have both agreed can go into evidence.

4 JUDGE MOLOTO: What kind of volume are we looking at here?

5 MR. MUNDIS: Some of them are criminal codes and criminal

6 procedure codes, so some of the documents are relatively lengthy, but

7 they're all basic kind of court documents that are not case specific but

8 contain, for example, the constitution of -- constitutions, criminal

9 procedure codes, criminal law codes, decrees, these type of official

10 documents that are -- will be referred to by numerous witnesses,

11 particularly those from the court system or military justice systems

12 concerned.

13 So it's -- it potentially is a large number of pages within the

14 48 documents, but of course it's the basic legal provisions that are

15 applicable and which the parties have agreed shouldn't require a lot of

16 time in court to authenticate or anything of that nature. So that's why

17 we went down this path.

18 [Trial Chamber confers]

19 JUDGE MOLOTO: Sorry about that, did you hear anything?

20 The next point that I wanted to raise with you is the fact that

21 the motion suggests that the Defence agrees to this motion, but it is not

22 a joint motion. And I would like it to be a joint motion by the parties.

23 Then at least we have on the face of the document the approval of the

24 Defence that, indeed, they agree with it. That's the one thing.

25 The other point is that, as Judge Thelin has just been making me

Page 147

1 aware of the fact, the parties are actually asking that these documents

2 be admitted into evidence as exhibits. And I think the motion must say

3 so expressly. I raised the question with Judge Thelin, he gave me an

4 answer, but I raise the same question with the parties. If they are

5 being exhibits, is it for the pre-trial Bench to admit them into evidence

6 or is it for the trial Bench to admit them into evidence?

7 MR. MUNDIS: Okay. Let me -- let me take a couple of points

8 first. We will endeavour to meet tomorrow with the Defence and submit a

9 joint motion asking that they be admitted as exhibits. I'm not sure if

10 we'll be in a position to print out all documents and attach them

11 tomorrow. We perhaps can indicate that they will be forthcoming and will

12 be provided as soon as we can print them out and put them into binders

13 for the benefit of the Trial Chamber.

14 Let me go to the more fundamental issue of the pre-trial Bench

15 versus the trial Bench. It has always been the Prosecution position that

16 the very reason why we can benefit from a robust pre-trial process is by

17 having Pre-Trial Chambers admit material and render decisions at the

18 pre-trial phase so that we can take advantage of all of the steps that

19 have been taken, all the motions that have been taken.

20 I know that that view is not shared among all the judges. But

21 our view is that -- that that's exactly why we have put in place a number

22 of rules that provide for robust pre-trial practice in this institution,

23 so that cases by the time the actual Trial Chamber is assigned can go to

24 trial very, very quickly thereafter and not have to undergo additional

25 delays perhaps as the newly constituted Trial Chamber renders decision on

Page 148

1 outstanding pre-trial motions.

2 JUDGE MOLOTO: I appreciate the way, Mr. Mundis, you -- you

3 choose your words to make sure that the Chamber goes along with your --

4 with your suggestion, so that if we go against you, we're not robust

5 enough.

6 I understand that, but can't this be something that is done on

7 the very first day of trial when the full Bench is there?

8 MR. MUNDIS: A motion like this one, perhaps, could very well.

9 On the other hand, of course, the parties -- the more advance notice that

10 we have with respect to what documents or any of the pre-trial motions

11 that are pending, the adjudicated facts, this law library, any of the

12 other pre-trial motions that may be pending or that may be filed in the

13 next couple or three or four weeks, the more certainty the parties have,

14 the more smoothly the proceedings can proceed simply because we have a

15 better knowledge of what's actually in, what actually we need to do at

16 trial.

17 So our view would be that certainly -- there are certainly some

18 types of pre-trial motions that could be decided a few days before the

19 trial begins, and this law library motion, for example, certainly fits in

20 that category. Some of the other pre-trial motions that we might be

21 talking about later this afternoon might not fall into that category.

22 And So I think that the better course overall would be, in our

23 respectful submission, for the Pre-Trial Chamber to deal with pre-trial

24 motions so that the parties have a greater understanding and expectation

25 of what exactly is going to happen at trial once it commences.

Page 149

1 JUDGE MOLOTO: Thank you. File your motions as advised and the

2 Chamber will decide. Thank you very much.

3 Do you have anything to add to that, Ms. Vidovic?

4 MS. VIDOVIC: [Interpretation] No, Your Honour.

5 JUDGE MOLOTO: Thank you very much.

6 The next item relates to pending motion on adjudicated facts.

7 Haven't we dealt with that now? Now that we have -- we can turn them

8 into agreed facts if we agree? Doesn't that resolve the question of

9 adjudicated facts? This another matter?

10 MR. MUNDIS: The adjudicated facts motion -- I don't have it in

11 front of me, but the adjudicated facts motion had significantly more

12 adjudicated facts than the 75 that the Defence have indicated were

13 acceptable to them. So even if we took out the 75 and converted those to

14 agreed facts, there would still be a number of adjudicated facts that

15 would be before the Trial Chamber or Pre-Trial Chamber for deliberation.

16 [Trial Chamber confers]

17 JUDGE MOLOTO: Okay. Thank you very much. I guess, then, once

18 we have withdrawn or have not withdrawn the 75, as we said a little

19 earlier, this motion here will be impact that, and then the Trial Chamber

20 can decide on it once it has been redrafted.

21 This means, in fact, that the Trial Chamber or this Pre-Trial

22 Chamber is not going to consider this motion now because we still have to

23 define it. And, of course, this Trial Chamber will still apply its mind

24 to decide whether this is a pre-trial Chamber matter or a Trial Chamber

25 matter.

Page 150

1 JUDGE THELIN: I seem to recall, Mr. Mundis, on this that we had

2 a brief discuss at one of the Status Conferences what the result would be

3 for you in your preparing of the case to have this resolved. And I seem

4 to recall that you said that even if all in the motion was granted, it

5 would only have a marginal impact on preparation of your case. Isn't

6 that correct?

7 MR. MUNDIS: That is correct, Your Honour. But let me -- let me

8 stress that the proposed adjudicated facts, all of which come from the

9 Hadzihasanovic and Kubura case, all impact the very first part of the

10 component of the present case in the sense that all of the adjudicated

11 facts, although they impact very well, might be -- might be of a little

12 limited nature, they all impact the evidence that will be led in the

13 first four to eight weeks, perhaps even less, four to six weeks of the

14 trial. So that there might be, even though it's a marginal effect

15 overall, it would certainly have a slightly more important impact on the

16 first part of the case because that's -- the Hadzihasanovic and Kubura

17 case dealt with the 1993 time-period which is relevant in part to this

18 case.

19 JUDGE MOLOTO: If we were to quantify the kind of effect, maybe

20 it might reduce the eight weeks to one? Are you in a --

21 MR. MUNDIS: It might reduce -- let me -- let me say it might

22 reduce the four to six weeks of the first part of the case to perhaps two

23 to -- two to three weeks. It could -- it could reduce the first

24 component of the case by up to 50 per cent if the Chamber were to accept

25 all of them.

Page 151

1 JUDGE MOLOTO: Thank you.

2 Other items requested by the parties. Now, in e-mails sent to

3 the Trial Chamber on the 16th of May, both parties indicated to be --

4 items to be discussed at the Status Conference, amongst them pre-trial

5 motions to be filed pre-trial motions to be filed by the Prosecution,

6 motion to add witnesses to the 65 ter witness list, motion to add

7 exhibits to the 65 ter exhibit list, Rule 94 (B) motion concerning

8 exhibits admitted in the -- Hadzihasanovic case and Kubura case and Rule

9 92 quater motion. Let's take them seriatim.

10 Mr. Mundis, pre-trial motions to be filed by the Prosecution.

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

12 As we have indicated, the Prosecution anticipates that we will be

13 filing a motion to both add witnesses and exhibits to the Prosecution's

14 65 ter witness and exhibit lists. I can imagine that the Presiding Judge

15 will want a date by which we expect to file these motions. I would

16 respectfully ask for two weeks from today to file both of those motions

17 concerning seeking leave to add witnesses and exhibits to the 65 ter

18 lists. 4th of June.

19 JUDGE MOLOTO: Sorry, shall I repeat that. My mic was not on.

20 4th of June, I had said. So let me just get it straight, Mr. Mundis. By

21 the 4th of June, the Prosecution undertakes to file 65 ter witness list

22 and 65 ter exhibit list.

23 MR. MUNDIS: Well, we have already filed those. What wee would

24 be doing is seeking leave to make additions to those lists. If the

25 Chamber would prefer me to refile the entire list with those proposed

Page 152

1 additions, I can do that, or alternatively we would simply file the name

2 and the additional witnesses and we would provide that in the format of a

3 65 ter filing so that you would have a summary of expected testimony,

4 expected length, et cetera. We can certainly provide that.

5 JUDGE MOLOTO: Thank you very much.

6 Any comments, Ms. Vidovic.

7 MS. VIDOVIC: [Interpretation] Your Honour, of course, we will

8 present our views in our response, but I have to reiterate something that

9 I already stated at the Status Conference, I think, on the 15th of

10 November. I'm really disappointed by the Prosecution's decision to add

11 12 new witnesses to the list. The very thing that I was talking about at

12 that Status Conference in fact happened. I said that I had very bad

13 experience from other cases regarding the Prosecution usual practice,

14 whereby they give us an extensive witness list, say 70 witnesses and the

15 Defence which never has sufficient funds then has to prepare for this

16 huge number of witnesses in order to be ready for trial, and then just

17 before the trial is about to start, some witnesses withdraw and then I

18 mention the figure 12 because it seemed like a very high number to me.

19 The Prosecution now told me precisely the same thing. They indicated

20 that they be adding 12 new witnesses to the list. I think that this is

21 not in accordance with the statute. But I don't want to really bother

22 the Trial Chamber, now. We will be filing a dailied response, but I

23 think that in a the situation that we're facing now, where we have to

24 have expeditious trials and we can only have an expeditious trial if the

25 Defence is fully prepared for the cross-examination so that we don't have

Page 153

1 to ask for any adjournments. I'm really quite disappointed that we're

2 now facing this situation. Despite the fact that several months ago we

3 warned about this precise situation. But at any rate, Your Honour, I

4 have discussed the issue with the Prosecution. We will demand the time

5 that is guaranteed to us by Article 214 B of the statute. The time that

6 we need to investigate the matters, the issues that will be raised in the

7 testimony of those witnesses. We will want to check -- or verify the

8 documents that the Prosecution intends to use through these witnesses.

9 This is something that we cannot do in such a short time. We have to do

10 it in the field. It will take at least three or four months.

11 But what we're asking -- okay, if the motion is granted, we ask

12 that this -- that those witnesses be called at a later stage so that

13 they're not called in May or June. This may be premature, but I really

14 did want to raise this issue. We will, of course, be presenting our

15 detailed views on each witness in our response, in our motion.

16 JUDGE MOLOTO: Thank you very much, Ms. Vidovic. The Trial

17 Chamber takes to heart what you say and if it is any comfort to you, at

18 least this time, unlike in previous cases they are not withdrawing, they

19 are adding. So at least it's not going to a question of efforts put to

20 waste. Yes, you will have to make further efforts to investigate but it

21 will not be put to waste. We heard what you said about how you would

22 challenge the motion if it does come and I think let's keep the challenge

23 to the time when the motion comes. I see you're on your feet.

24 MS. VIDOVIC: [Interpretation] Your Honour, one thing I forgot to

25 mention. The OTP informed us that they would be dropping a number of

Page 154

1 witnesses from that list. Not dropping but simply not calling a certain

2 number of witnesses from that list. So that is what disappoints me. We

3 were in a situation where we were preparing a certain number of witnesses

4 and conducting certain investigations whereas now we will be in a

5 situation to conduct other investigations. That is what I'm talking

6 about.

7 JUDGE MOLOTO: I hear what you say. I suppose part of what you

8 call occupational hazards, Ms. Vidovic. I'm sympathetic, and don't think

9 that I'm saying that flippantly. I'm not. But it is still a hazard of

10 the job.

11 You have heard, Mr. Mundis. I don't know if you have any

12 comments to make or not on what she has just said? Or do you want us to

13 move on to the next point?

14 MR. MUNDIS: Ms. Vidovic and I discussed this prior to this

15 Status Conference. I'm familiar with her position, and I think it's

16 probably best to leave that to the written filings.

17 JUDGE MOLOTO: Okay. Thank you, so much.

18 MR. MUNDIS: Let me move on, then, to the next Prosecution

19 pre-trial motion. This is a 94 (B) motion that we anticipate filing,

20 asking the Trial Chamber to take judicial notice of a number -- a large

21 number of exhibits that were part of the Hadzihasanovic and Kubura or, as

22 we like to say, the H and K case, which might make it a little bit easier

23 for everyone. There are again, because of the overlap, particularly with

24 respect to the 1993 crime base in this case, there are approximately 500

25 exhibits on the exhibit list in this case that were also exhibits in the

Page 155

1 H and K case. We are in the process of preparing a spreadsheet that

2 would provide all of the relative information in accordance with the

3 jurisprudence of this Tribunal for 94 (B), motions such as the exhibit

4 number in this case, a description, the date of the document, the exhibit

5 number in the other case, the date it was admitted in the other case, the

6 witness through whom it was tendered in the other case and the relevant

7 paragraph of the pre-trial brief -- in our case, or indictment that the

8 document relates to. There is a relatively detailed process and I would

9 anticipate that it will require us approximately three weeks -- three

10 additional weeks, in order to complete the charting of these

11 approximately 500 exhibits -- which, again, represents approximately 20

12 per cent of the exhibit list in this case.

13 JUDGE MOLOTO: Thank you.

14 Ms. Vidovic.

15 Okay.

16 MR. ROBSON: Your Honours, good afternoon. If I could perhaps

17 deal with this particular issue. Again, Your Honour, it's rather like

18 the last motion we just discussed. Perhaps the Defence's substantive

19 response better wait until we receive the motion and then we can have

20 chance to consider it and look at the reasons that the Prosecution

21 provide. We would make note to the Trial Chamber our concerns that this

22 is a motion which will arrive in some three weeks time, which is exactly

23 the time perhaps some of the parties, here, have in mind that the --

24 perhaps a trial start date could be occurring. It's involves some 500

25 issues that could go really to the heart of the number of the issues

Page 156

1 before the Trial Chamber in this particular case. We would say that it

2 is a motion that would be best dealt with by the Trial Chamber that would

3 hear the case.

4 So again, Your Honour, it's really -- it's a matter that is

5 arriving late in the day that will require considerable consideration by

6 the parties and also the Trial Chamber.

7 JUDGE THELIN: Thank you very much, Mr. Robson.

8 The Trial Chamber -- or this pre-trial Chamber will decide on

9 whether it is for the Trial Chamber, itself, or for the Pre-Trial

10 Chamber. I will not share with you the prima facie view.

11 Mr. Mundis, anything to say.

12 MR. MUNDIS: No, not at this time concerning that, Your Honour,

13 other than if it is acceptable to the Trial Chamber that we have three

14 weeks to file that and then that's one more date we can lock into.

15 JUDGE MOLOTO: Yes. I would like to lock that in three weeks

16 from today, is what?

17 MR. MUNDIS: 11th.

18 JUDGE MOLOTO: 11th or 4th?

19 MR. MUNDIS: June.

20 JUDGE MOLOTO: 11 June. Okay by 11th of June, the Prosecution

21 will file its Rule 94 (B) motion. Thank you very much.

22 92 quater.

23 MR. MUNDIS: If could I briefly go into private session to

24 discuss this motion, please.

25 JUDGE MOLOTO: May the Chamber move into private session.

Page 157

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8 (redacted)

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10 (redacted)

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Page 158











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Page 167

1 (redacted)

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5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 [Open session]

13 THE REGISTRAR: Your Honours, we're back in open session.

14 JUDGE MOLOTO: Thank you very much.

15 I expect there's going to be a reverse argument here. We're not

16 able to give an estimated length of trial unless we know when we are

17 starting and all those things. But that's the next item.

18 MR. MUNDIS: It's not so much -- it's not so much when we

19 actually start, it's -- goes to some of the other issues we've talked

20 about today.

21 JUDGE MOLOTO: Sure. That's right.

22 MR. MUNDIS: I continue, Your Honour, to believe -- and I

23 discussed this and we actually threw out some numbers when we met with

24 the Defence, I continue to be of the opinion that the Prosecution case in

25 total, including cross-examination, including the whole -- the whole

Page 168

1 start from opening until we rest our case, will take between four and a

2 half and five months to complete.

3 JUDGE MOLOTO: Thank you very much. You're including questions

4 by the Bench, everything?

5 MR. MUNDIS: From -- from when I stand up and do the opening

6 until I stand up and say, The Prosecution rests, four and a half to five

7 months.

8 JUDGE MOLOTO: Thank you very much. That's the robust approach

9 that you are asking the Trial Chamber to go by.

10 MR. MUNDIS: That would -- that would make it four to four and a

11 half months, Your Honour.

12 JUDGE MOLOTO: Still. Still saying it very confidently.

13 Ms. Vidovic, do you have any indication on your side, any

14 comments to make?

15 MS. VIDOVIC: [Interpretation] I do, Your Honour, thank you.

16 At any rate, I think that if the Prosecutor intends to call that

17 many witnesses and adds 12 witnesses to its list, I think that this

18 estimate is not really realistic. I have already faced this kind of

19 situation in the Oric case where they called substantial -- substantially

20 less witnesses than anticipated, yet the trial took much longer than the

21 Prosecution anticipated.

22 But, at any rate, it is up to you, Your Honours, to make a final

23 estimate. What we expect to is to be given as much time as the

24 Prosecution has for the examination-in-chief for our cross-examination.

25 But what I'm concerned is the 500 documents, the situation regarding the

Page 169

1 500 documents and this motion. I will address this in our response, of

2 course, but if this huge number of documents is admitted into evidence,

3 that we will -- it will call -- we will have to confront the witnesses

4 with those documents, and that will mean that the trial will be longer.

5 The Defence will require for the presentation of its case the

6 exact time that was allotted to the Prosecution for its case, but it will

7 depend, of course, on the way the whole trial will proceed. So this may

8 be premature but given the situation that we have now, the witness list

9 and the documents, this is our estimate.

10 JUDGE MOLOTO: Thank you very much.

11 Ms. Vidovic, I -- again, the Chamber takes note of your concerns.

12 The kind of input that I personally was looking forward to was an input

13 at this early stage -- you're not going to be tied down to it but just a

14 ballpark figure of what you estimate the length of the Defence case to

15 be.

16 [Trial Chamber confers]

17 MS. VIDOVIC: [Interpretation] Your Honour, four and a half to

18 five months.

19 JUDGE MOLOTO: Four and a half to five months. Thank you very

20 much.

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

22 JUDGE MOLOTO: So from both parties put together, we're looking

23 at, on the outside, ten months. Thanks. That's quite helpful to hear.

24 Is there anything we can add on to that item at this stage? And

25 I understand these are ballpark figures, we still have to do other

Page 170

1 things. Nothing?

2 MR. MUNDIS: I think nothing from the Prosecution, Your Honour.

3 JUDGE MOLOTO: Thank you very much. Can we then move straight on

4 to start of the trial?

5 Now, again, I look at you, Mr. Mundis, but I understand that

6 there are a number of issues that are still outstanding in the pre-trial

7 stage. It is the parties who are better able to assess how long -- and I

8 know we've been sort of pushing you to give time-lines, how long it will

9 take you finally to have done everything such that you may able -- may be

10 in a position to estimate a trial start date.

11 MR. MUNDIS: If memory serves me correctly, Your Honour, the

12 final deadline for any of the pre-trial motions was three weeks from

13 today. Factoring in a two-week period for the Defence to respond

14 pursuant to the rules, you're looking at the final Defence responses to

15 the pre-trial motions of the Prosecution falling due roughly the 25th of

16 June. I would think it would be very, very difficult to start the case

17 while any of those pre-trial motions were pending or a significant number

18 of them were pending, particularly those relating to witnesses and

19 exhibits.

20 It also, as a general rule, takes us about four to six weeks

21 before we can get the first witnesses here. As a result of that, I -- I

22 don't see how we could possibly be in a position to start the case until

23 approximately the 5th to 10th of July.

24 JUDGE MOLOTO: 5th to 10th July.

25 JUDGE THELIN: May I put a question to you, Mr. Mundis, in this

Page 171

1 respect? It also goes back to the estimation of the length of trial. I

2 know you have indicated in your brief the number of witnesses you wish to

3 present through 92 bis and 92 ter. The estimate you now made, is that

4 predicated upon the fact that all those motions are granted?

5 MR. MUNDIS: If -- let me --

6 JUDGE THELIN: Sorry, to be -- to be correct, motions yet to come

7 you have indicated --

8 MR. MUNDIS: Yeah. Yes.

9 JUDGE THELIN: -- but I mean the amount of it, and then, of

10 course, if you file motions and 92 bis and 92 ter, you expect to have

11 them granted.

12 MR. MUNDIS: Yes. Yes. Let -- this is going to the overall

13 length of the Prosecution case?

14 Let me run through very quickly and very crudely, if I could, the

15 numbers that I used with the Defence a little bit earlier this afternoon.

16 The Prosecution in its 65 ter filings indicated, I believe the

17 number was, 117 hours of direct examination. So let's round that up to

18 120 hours. Double that for cross-examination, just as a rule of thumb.

19 I then added to that an additional 25 percent of time for questions from

20 the Bench, re-examination, et cetera. That gave me a figure of 300 hours

21 in total for the Prosecution case.

22 Assuming we sit five days a week, four hours a day, that's 20

23 hours of court time a week, you're talking about 15 weeks for the

24 Prosecution case. I then further -- which is, in effect, three months --

25 three months and three weeks.

Page 172

1 I then fudged into that an additional four or five weeks in terms

2 of any potential problems along the way or things go significantly longer

3 than we anticipated, and I came up with the four and a half to five month

4 figure. I think that there's sufficient time built into that schedule,

5 as I've just indicated, that we should have no problems meeting a four

6 and a half to five month time-period. And again that -- so --

7 So the short answer is even if those 92 bis motions were denied,

8 we still have, I think, a significant amount of leeway to still meet the

9 four and a half to five months schedule, because if you take the 120

10 hours, double it, add an additional 60 hours, you're still talking less

11 than four months, assuming we sit 20 hours a week.

12 JUDGE MOLOTO: Thank you very much, Mr. Mundis.

13 You were then saying on start-up date not earlier than the 10th

14 March -- 10th July, I beg your pardon.

15 MR. MUNDIS: I would think, Your Honour, anywhere between the 5th

16 and 10th of July we would probably be in a position. Again, assuming

17 that all the pre-trial motions and responses are before the Trial Chamber

18 by the 25th of June, I would -- again, it would be our view that those

19 motions, or the bulk of those motions, we would hope, would be -- we

20 would have decisions on before we started, and particularly those

21 relating to the 94(B) motion from the Hadzihasanovic and Kubura case and

22 the motions concerning additional exhibits and witnesses. We would be --

23 it would be very difficult for the Prosecution to start the trial not

24 knowing whether the witnesses that we'd proposed and the exhibits that

25 we'd proposed and the prior exhibits that we'd proposed had been accepted

Page 173

1 by the Trial Chamber. It wouldn't be impossible, but it would be -- it

2 would make things a little bit more complicated for us in terms of having

3 certainty as to which witnesses are actually -- have actually been

4 approved to be added to the list.

5 JUDGE MOLOTO: Thank you very much, Mr. Mundis.

6 Ms. Vidovic, between the 5th and 10th of July, how do you feel

7 about that?

8 MS. VIDOVIC: [Interpretation] Your Honour, I think that this is

9 realistic. As you could hear at the beginning of Mr. Mundis -- of what

10 Mr. Mundis said regarding the disclosure of this voluminous material that

11 we are supposed to receive from the Prosecution, we, I don't think, would

12 not be in a situation to start cross-examining those witnesses because

13 these are really crucial documents for the Defence before we actually get

14 them. Those are the documents that I was talking about that the

15 Prosecution is supposed to give us following those searches.

16 So it would be really very difficult for us to proceed to trail

17 before the 5th of June. We would have our case ready, we would not be

18 ready to cross-examine the Prosecution witnesses. What we would like to

19 know is the moment when --

20 JUDGE MOLOTO: Not the 5th of June, 5th of July.

21 MS. VIDOVIC: [Interpretation] Yes, I do have to apologise. Yes,

22 that's what I meant, 5th of July. Yes, definitely 5th of July, that's

23 right.

24 JUDGE MOLOTO: Okay. Do I understand you to say it would be

25 difficult to start before the 5th of July? On the 5th of July, between

Page 174

1 the 5th and the 10th of July, it would be okay; that's the short answer.

2 MS. VIDOVIC: [Interpretation] Yes.

3 JUDGE MOLOTO: Thank you very much.

4 Maybe, without tying the Chamber down, let's promise you

5 somewhere between the 5th and 10th of July for scheduling of the case.

6 Sorry, I withdraw the promise for now.

7 [Trial Chamber confers]

8 JUDGE MOLOTO: Okay. The Chamber has heard the submissions of

9 the parties. We will do our best to accommodate the parties' wishes

10 within the realms of possibilities.

11 I see you are on your feet, Mr. Mundis.

12 MR. MUNDIS: Thank you. I know we're past time to adjourn. But

13 if I could just indulge the Chamber on one final question, and that is:

14 In light of what the Presiding Judge said a few moments ago about the

15 summer recess, for the benefit of my own staff, and I'm sure for the

16 benefit of the Defence as well, will we certainly not be sitting between

17 the 30th of July and the 19th of August?

18 JUDGE MOLOTO: Yes, certainly.

19 MR. MUNDIS: So we can make -- I can allow my staff to make

20 holiday plans during that period with a degree of certainty that we will

21 not be sitting?

22 JUDGE MOLOTO: I would think so.

23 [Trial Chamber confers]

24 JUDGE MOLOTO: I think we can say with a certain level of

25 certainty that we will not sit between the 30th of July and 19th of

Page 175

1 August.

2 MR. MUNDIS: Thank you very much.

3 JUDGE MOLOTO: The Chamber will consider the start date that the

4 parties have suggested to the Chamber, and it also depends on when we --

5 the third Judge, when he or she can be here. It's going to be an outside

6 one.

7 Okay. May the Chamber please move into private session.

8 [Trial Chamber and registrar confer]

9 [Private session]

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8 [Open session]

9 THE REGISTRAR: Your Honours, we're back in open session.

10 JUDGE MOLOTO: Thank you very much.

11 Just for the record, Ms. Vidovic, can I ask you the question once

12 again: Do you have anything that you would like to say which was not

13 mentioned on the agenda?

14 MS. VIDOVIC: [Interpretation] No, Your Honour.

15 JUDGE MOLOTO: Thank you very much.

16 Mr. Mundis.

17 MR. MUNDIS: Nothing further from the Prosecution.

18 [Trial Chamber confers]

19 JUDGE MOLOTO: Okay. We are all happy to conclude, and the

20 proceedings is adjourned, stand adjourned.

21 Court adjourned.

22 --- Whereupon the Status Conference adjourned

23 at 4.46 p.m.