Tribunal Criminal Tribunal for the Former Yugoslavia

Page 6890

1 Tuesday, 26 February 2008

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 this

6 afternoon.

7 Madam Registrar, will you please call the case.

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

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

10 JUDGE MOLOTO: Thank you very much.

11 Could we have the appearances for today, starting with the

12 Prosecution, please.

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

14 Good afternoon, Your Honours, Counsel, and everyone in and around

15 the courtroom. Daryl Mundis and Laurie Sartorio for the Prosecution,

16 assisted by our case manager, Alma Imamovic.

17 JUDGE MOLOTO: Thank you very much.

18 And for the Defence.

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

20 afternoon to my learned friends from the Office of the Prosecutor, to

21 everyone in and around the courtroom. Vasvija Vidovic and Nicholas Robson

22 for the Defence of General Delic, with legal assistants Lana Deljkic and

23 Lejla Gluhic.

24 JUDGE MOLOTO: Thank you very much.

25 I hope we come back from this break all ready to work hard and get

Page 6891

1 the case finalised. But before we start and because of the longish break,

2 I'd just like to find out if there's anything from Mr. Delic about his

3 health or conditions of detention.

4 Is he okay?

5 MS. VIDOVIC: [Interpretation] Your Honour, shortly before the

6 start of this session, I spoke to General Delic. His health remains

7 unchanged. It has not deteriorated. And in his view, he can attend the

8 trial, and we can resume the trial as per normal.

9 As for his conditions in the Detention Unit, he has never had any

10 complaints to raise in that regard.

11 JUDGE MOLOTO: Thank you very much, thank you very much.

12 The purpose of this afternoon's session is really to render the

13 judgement on the 98 bis motion, and the Trial Chamber will proceed to do

14 so.

15 The Trial Chamber today delivers its judgement on the Defence oral

16 submission of 14th February 2008, pursuant to Rule 98 bis. The Defence

17 moved for an acquittal in respect of count 3 of the indictment, which is

18 rape as a violation of the laws or customs of war. The Prosecution

19 responded on the same day and concurred with the Defence that the accused

20 Rasim Delic should be acquitted on count 3 at this stage in the

21 proceedings.

22 Pursuant to Rule 98 bis of the Rules, the Trial Chamber shall

23 enter, by oral decision, and after having heard the parties' oral

24 submissions, a judgement of acquittal on any count if there is no evidence

25 capable of supporting a conviction. The test to be applied is whether

Page 6892

1 there is evidence which, if accepted, could and not would lead a tribunal

2 of fact to a finding of guilt beyond reasonable doubt of an accused on the

3 count in question. Therefore, where there is no evidence to sustain a

4 count, the judgement of acquittal will be entered. Where there is some

5 evidence, but it is such that taken at its highest, a Trial Chamber could

6 not convict on it, the judgement of acquittal will also be entered.

7 By way of providing procedural background to the present

8 submission, the Trial Chamber notes that the Prosecution, on the 7th of

9 December, 2007, sought leave to withdraw count 3. The Trial Chamber

10 denied that request by deciding that:

11 "The withdrawal of a count after the accused has entered a plea

12 and on which the Prosecution has led evidence would not be in the

13 interests of justice because the accused could be tried again on that

14 count," and because he is entitled to a formal verdict on that count, once

15 he has entered a plea of not guilty.

16 The indictment, at paragraph 48, alleges that three individuals,

17 DRW-1,DRW-2 and DRW-3 were taken to Kamenica camp where allegedly they

18 were subjected to sexual assault, including rape. The allegation of rape

19 in this paragraph is the basis of count 3.

20 The evidence of DRW-1,DRW-2 and DRW-3 is now before the Trial

21 Chamber. Moreover, the Trial Chamber has heard evidence provided by

22 Edin Saric and Zakir Alispahic, two witnesses who interviewed the alleged

23 victims. Based on the evidence before the Trial Chamber, including the

24 testimonies and statements of the above-named witnesses, the Trial Chamber

25 finds that it has not been presented with evidence capable of supporting a

Page 6893

1 conviction in relation to count 3 for rape, as defined by the

2 jurisprudence of this Tribunal.

3 For the sake of clarity, the Trial Chamber notes that count 3

4 covers the crime of rape, while other sexual assaults amounting solely to

5 cruel treatment are covered by count 4. The Trial Chamber, therefore,

6 acquits Rasim Delic of count 3, rape as a violation of the laws or customs

7 of war.

8 That's the end of the judgement.

9 That being done, there are a couple of housekeeping matters which

10 the Trial Chamber would like to raise with the parties, and the Trial

11 Chamber would like to invite the parties to be thinking of any issues that

12 relate to housekeeping that they would like to raise at this stage.

13 First of all, there was a Defence bar table motion filed on the

14 5th of February, 2008, and on the 25th of February, 2008, the Defence

15 filed its reply, suggesting that the Prosecution would have previously

16 filed their response. And with respect to that motion, the Trial Chamber

17 would like to let the parties know that a decision will be handed down

18 hopefully early next week.

19 Okay. Secondly, there is the Prosecution motion to amend Exhibit

20 106, filed on the 25th of February, 2008. And with respect to that, the

21 Trial Chamber would like to find out from the Defence if the Defence

22 wishes to respond, possibly orally, at this stage, or are you not ready to

23 do so?

24 Yes, Mr. Robson.

25 MR. ROBSON: Your Honours, we would certainly wish to file a

Page 6894

1 response, but we're not in the position to do so at this moment. We can

2 certainly do so orally, if the Chamber wishes to do so, but I would

3 suggest perhaps it could be done next Tuesday.

4 JUDGE MOLOTO: That's fine. We won't push you. If you would like

5 to give a written response, that's fine, that's your prerogative.

6 MR. ROBSON: Okay.

7 JUDGE MOLOTO: Thank you very much. Then can we tie you down to

8 next week, Tuesday?

9 MR. ROBSON: Yes, Your Honour, certainly.

10 JUDGE MOLOTO: You are so tied. Thank you.

11 Could the Chamber please move into private session.

12 [Private session]

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Page 6896

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3 [Open session]

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

5 JUDGE MOLOTO: Thank you very much.

6 The last point that the Trial Chamber wanted to raise with the

7 parties, and this concerns particularly the Defence, is whether the

8 Defence is in a position to go into a pre-defence conference at this stage

9 or would you like some time to get yourselves ready for that? And if so,

10 how long you would need?

11 MS. VIDOVIC: [Interpretation] Your Honours, we are ready.

12 JUDGE MOLOTO: You're ready.

13 MS. VIDOVIC: [Interpretation] Yes.

14 JUDGE MOLOTO: Okay. Then can I -- can the Trial Chamber shoot

15 from the hip?

16 MS. VIDOVIC: [Interpretation] Your Honours, it would be helpful if

17 you sent us issues that you're interested in. We can have a break, and

18 then perhaps we can discuss those matters after the break, if my learned

19 friends from the OTP are agreeable to that.

20 MR. MUNDIS: We certainly would agree with that.

21 JUDGE MOLOTO: Thank you very much.

22 The main issue I would like to raise with the Defence,

23 Madam Vidovic, is the possibility of cutting down your hours. We know you

24 have made a substantial cut, and we've made a substantial cut also on the

25 number of witnesses, but the Trial Chamber had ideas on further cuts that

Page 6897

1 we thought could be made, and we just want to find out if you are able to

2 cut it a little leaner than you have done so far. Do you want a break for

3 that?

4 JUDGE HARHOFF: Maybe we should add, Madam Vidovic, that the

5 reason being that we find that in the witness lists and your list of

6 exhibits, there are witnesses that appear, at least, to be -- or could be

7 repetitive, and the same with some of the documents, so we thought that we

8 saw, at least, in your list of witnesses and your list of exhibits, some

9 room for further reduction, and we wanted to know if you were able to

10 exploit that rule.

11 JUDGE MOLOTO: And if I may just take that point a little further,

12 not just repeatedly from amongst themselves, but also repeatedly what was

13 said by the Prosecution witnesses, and we wondered whether one or two

14 witnesses could just confirm that. Do you need that many? But also

15 whether you cannot or could not increase the number of your 92 bis or 92

16 ter witnesses.

17 If you're able to -- if you want a break for that, we can take a

18 break, but if you're ready to answer, we're ready to listen.

19 MS. VIDOVIC: [Interpretation] Your Honours, if you gave us a

20 guidance in that regard, i.e., what sort of witnesses do you deem to be

21 repetitive, and the number of hours concerned, we will gladly look into

22 that matter.

23 As far as the number of witnesses pursuant to 92 bis is concerned,

24 I don't think we will be increasing the number.

25 (redacted)

Page 6898

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15 JUDGE MOLOTO: I am awfully sorry, Madam Vidovic. Is that what

16 you wanted to say?

17 How can we correct that, redact what we have just said?

18 [Trial Chamber and registrar confer]

19 JUDGE MOLOTO: May the Chamber please move into private session.

20 [Private session]

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

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Page 6899

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14 [Open session]

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

16 JUDGE MOLOTO: Fine. If I may just repeat myself, then.

17 That last area is the area where we're talking about the influence

18 of civilian authorities. And I know we've heard a lot about that point

19 during the Prosecution case, about civilian authorities having far more

20 influence over the EMD and what have you. That's another area.

21 I don't want to suggest too many point areas where we think you

22 could cut the fat, but those are the areas. Do you think you would like

23 to have some time to consider that, Madam Vidovic?

24 MS. VIDOVIC: [Interpretation] Yes, Your Honour. Could you also

25 give us guidance with regard to the number of hours concerned, if you have

Page 6900

1 an idea, as to how many hours we should cut down, that would also be

2 helpful to us.

3 JUDGE MOLOTO: That's a difficult point for the Trial Chamber at

4 this stage. If you'll just give me half a second.

5 [Trial Chamber confers]

6 JUDGE MOLOTO: How about 55?

7 MS. VIDOVIC: [Interpretation] That would indeed be a bit too much.

8 At any rate, Your Honours, I hope that you are merely joking about the 55.

9 We will look into that over the break, if we could have a half-hour break

10 now. But I do repeat, I hope you're joking about 55 hours.

11 JUDGE MOLOTO: From 63. It's 20 to 3.00.

12 THE INTERPRETER: Microphone for His Honour.

13 JUDGE MOLOTO: We usually take our break at half past 3.00, isn't

14 it, and come back at 4.00, or is that too long? Let's come back at half

15 past 3.00, then. Is that okay?

16 Come back at half past 3.00. Court adjourned.

17 --- Recess taken at 2.40 p.m.

18 --- On resuming at 3.30 p.m.

19 JUDGE MOLOTO: Madam Vidovic, I guess I misspoke about the number

20 55. I was not suggesting cut down by 55. I meant cut down to 55.

21 MS. VIDOVIC: [Interpretation] Your Honour, my apologies. It may

22 have been my mistake. I understood you to say that you wanted to cut down

23 the hours of expected testimony by 55 hours.

24 At any rate, Your Honour, may I address you at this stage to

25 respond to the issues that you raised?

Page 6901

1 JUDGE MOLOTO: Thank you very much. Please do.

2 MS. VIDOVIC: [Interpretation] Your Honours, allow me to explain to

3 you, in a couple of sentences, the filing that we made. We don't want to

4 be misunderstood in our intentions.

5 Our team did not hire a lawyer who would waste Their Honours'

6 time. In the decision -- in deciding, that is, which witnesses to call,

7 our intention was to present -- to portray the situation which

8 General Delic found as he took up his position, but not only in light of

9 the difficulties that the Army of Bosnia-Herzegovina was faced with, but

10 also due to the specific events that are the subject of the indictment and

11 because of his knowledge of these events. The context involved is of

12 paramount importance. It is significant for us to portray the context to

13 Their Honours and for Their Honours to fully comprehend it in order to be

14 able to gauge General Delic's abilities or lack thereof to deal with the

15 situation and to grasp the issues General Delic had to deal with. It is

16 perhaps for this reason that it may seem that we insisted on having

17 testimony on these facts.

18 The context and the difficulties that the general found himself in

19 also had a bearing on effective control that he may have had. This is

20 another reason why we wanted to deal with this issue so extensively. Also,

21 the influence of the civilian authorities is another matter that we

22 considered very important in light of the Judges' position as to when a

23 given unit is under the dura command, and it is the de facto situation

24 that we would like to establish.

25 These are, in short, Your Honours, the reasons why the Defence

Page 6902

1 insisted on these facts. However the case may be, we will accept your

2 ruling, and we do believe we'll be able to lead the evidence in the time

3 that you suggested, i.e., the 55 hours, and we will do all we can to make

4 sure that once a given area or set of facts have been covered that are of

5 importance to our client, we will not be calling other witnesses who

6 may -- whose evidence may prove to be repetitive in terms of these facts.

7 In short, we will try to do it within the framework of 55 hours.

8 At this stage, however, I am not in a position to be able to

9 decide which of the witnesses out of the 24 that we have on the list we

10 will be calling and which we will not. This will depend on the

11 developments with regard to their evidence. At the point in time when we

12 will have felt that we have covered certain ground and certain facts, we

13 will not be calling other witnesses who are expected to testify on these

14 same matters. We will do our best to lead our evidence as soon as

15 possible and as efficiently as possible, for the benefit of the Court,

16 whilst covering all the facts that we deem relevant to our defence.

17 That's why we are applying to you to let our list stand at this stage as

18 it is, and in due time we will be deciding which witnesses will be called

19 or not.

20 We will, of course, be keeping both the Chamber and the OTP

21 informed of these developments.

22 JUDGE MOLOTO: Thank you very much for that submission,

23 Madam Vidovic. The Trial Chamber's appreciative of the attempts that

24 you've made to cut down, but at the same time the Chamber wants to

25 emphasise that you are not going to compromise your client's rights to the

Page 6903

1 extent that it is necessary for you to put your client's case before the

2 Court, you must do so. And of course the Rules do allow. If at a later

3 stage you realise that you need more time than the 55 hours, you can

4 always ask, and the Chamber will look at your request at that stage and

5 see whether there's merit in it. Thank you so much.

6 So can we then officially say that the Defence will use, as of

7 this stage, 55 hours?

8 MS. VIDOVIC: [Interpretation] Yes, Your Honour, 55 hours for our

9 case, which does not cover the cross-examination or the Judges' questions

10 and housekeeping matters. I wish to state that for the record.

11 JUDGE MOLOTO: Thank you very much. We understand that.

12 I do not think the Prosecution had anything to --

13 MR. MUNDIS: Thank you, Mr. President. I did have one very quick

14 issue that I wanted to put on the record. I did discuss this with

15 Mrs. Vidovic shortly after the last recess.

16 This relates to searches being conducted by the Office of the

17 Prosecution with respect to the Defence witness list. There is a bit of a

18 lacuna, if you will, in the Rules concerning disclosure of witness

19 statements that the Prosecution discovers that pertain to Defence

20 witnesses, leaving aside anything that might be contained therein that

21 would relate to Rule 68. Obviously, those will be disclosed and have been

22 disclosed to the extent we've located them.

23 My understanding from the Defence is that they very much would

24 like any statements in the possession of the Prosecution of any of the

25 Defence witnesses to the extent that those have not been disclosed, and we

Page 6904

1 are, of course, pleased to oblige them in that respect.

2 What I did want to indicate is that the ISU Unit within OTP, which

3 is the unit that does electronic searches, prioritizes those searches in

4 such a way that they will begin the searches once the witnesses are

5 actually scheduled, so that they are searching in the order that the

6 witnesses appear. And I just wanted to indicate, as I've informed the

7 Defence team, that we will be consulting those searches and disclosing any

8 statements that we might have that haven't been disclosed of Defence

9 witnesses on a rolling basis, based on the information that we receive

10 from the Defence in terms of the court schedule.

11 So, for example, we have four witnesses currently scheduled. Those

12 witnesses are the priority in terms of doing searches, and we have

13 identified at least one statement disclosed to the Defence concerning one

14 of those four witnesses. But I do want to indicate that it's obviously to

15 the benefit of the Defence as well that the more notice we get concerning

16 the actual order in which the witnesses appear, the quicker and the more

17 time she will have or the Defence team will have in order to review any of

18 those statements that we have in-house concerning their witnesses, and so

19 I do want to just put that on the record, that there might be instances

20 where we're disclosing statements of these witnesses with relatively short

21 notice to the Defence, but the more notice I have of the actual order that

22 the 24 witnesses come, the better it is for everyone involved in terms of

23 time to prepare.

24 So I simply wanted to put that on the record. As I indicated, I'm

25 happy to provide those statements to the Defence, and we've discussed this

Page 6905

1 with Mrs. Vidovic and her team during the break.

2 JUDGE MOLOTO: Thank you very much, Mr. Mundis.

3 Was that okay by the Defence, Madam Vidovic? You may remain

4 seated, Madam Vidovic.

5 MS. VIDOVIC: [Interpretation] Thank you, Your Honour.

6 Thanks to my colleague, Mr. Mundis.

7 In relation to these issues, I want to recall that whilst

8 preparing for this trial, the Defence asked that the Prosecutor act in

9 compliance with Rule 66(B), which means that we wanted statements to be

10 delivered to us, but not only statements; all the other documents relevant

11 for the case of the Defence as well, including documents pertaining to the

12 witnesses on the list, both those of the Defence and the Prosecution, and

13 we expect the Prosecution to honour that. We expect that we shall be

14 receiving such documents as well.

15 Of course, I said, Your Honours, that we will do our best, that at

16 the point when we decide to call a certain witness, to inform the

17 Prosecution as well as soon as possible. Of course, this will depend on

18 the evidence of the other witnesses as well.

19 We are also aware of the fact that the searches depend to a large

20 extent on us informing the Prosecution of the name of the witness we will

21 be calling, and we will keep this in mind.

22 JUDGE MOLOTO: Mr. Mundis, it does look like Madam Vidovic expects

23 a little bit more from you than just the statement of the Defence

24 witnesses, but also other documents. Are you in agreement with that with

25 her?

Page 6906

1 MR. MUNDIS: Absolutely, but what needs to be understood is,

2 again, and this is partially where there's a bit of a problem, as we see

3 it from where we sit on this side of the courtroom, Rule 66(B) talks about

4 allowing the Defence to inspect material upon request. What we're doing is

5 proposing to actually disclose that material to her, which is a little bit

6 more than what is required by the Rule.

7 If the Defence position is that they want any document that

8 mentions the name of the witness or that the witness signed or -- these

9 are electronic searches, so when I type in the name of Witness A, I'm

10 going to get a list of every document in OTP's possession that has that

11 name on it, whether it's a statement, a document mentioning him, a third

12 witness statement referring to him, a document that -- there is

13 potentially a huge amount of material.

14 So the position that we would take would be certainly any of the

15 statements -- the statement of that witness in our possession, we will

16 affirmatively disclose to the Defence. That other material should be

17 available in the EDS for the Defence team themselves to conduct their own

18 searches on that material. But what I don't want to be doing is

19 necessarily be getting into a situation where, you know, the morning a

20 witness testifies, I deliver to the Defence a list with 92.000 documents

21 on it, which will cause all kinds of problems in terms of Defence

22 preparation. I know that the Defence team is able to rely upon and use

23 EDS. What I'm simply saying is we will provide the statements of these

24 witnesses as we discover them in the course of the searches that are being

25 undertaken.

Page 6907

1 If the Defence is asking for every document in our possession that

2 mentions the name of a witness, then we're in a completely different

3 category, and I'm not sure that that's actually covered under the Rule.

4 Now, clearly, if it's Rule 68, obviously that's a different story

5 altogether, but what I'm talking about, simply documents that the witness

6 may have signed, or documents that refer to the witness by name, or other

7 statements of other witnesses who refer to these -- to the Defence

8 witnesses. That's where we're talking about different, perhaps,

9 categories of documents and material.

10 JUDGE MOLOTO: I think, if I understand both parties well, I seem

11 to get the impression that, in principle, you are agreed on what should

12 and will be disclosed. And to the extent that there may not be absolute

13 agreement on the finer details of what exactly should be disclosed, can

14 we -- can the Trial Chamber leave that to the parties to sort out between

15 themselves and agree on what shall be disclosed?

16 I don't expect that every little document that mentions a name X

17 must then be disclosed, but if that's what the Defence wants, maybe you

18 can just give them that list early enough with that name and they can --

19 as they say, they can go into EDS. But I think you can sort out the

20 details amongst yourselves.

21 MR. MUNDIS: I have no doubt that we'll be able to sort out the

22 details amongst ourselves. I don't think we've had any serious disclosure

23 issues in this entire case, and I'm sure that will continue to be the

24 case. I'm sure we can work out an agreement. I simply want to put on

25 record the fact that the more notice I have of the actual order, the

Page 6908

1 sooner the Defence will get the material, and make it clear to everyone

2 that in the event that we're getting actual notice of the order a little

3 late, then that of course impacts when the material might actually be

4 delivered to the Defence.

5 JUDGE MOLOTO: I did note that Madam Vidovic, in her reply, did

6 note that, yes, the sooner they can give the list to you, the sooner they

7 can get their answers. But we'll leave the details to the two of you,

8 okay. Thank you very much.

9 Is there anything else that any of the parties would like to raise

10 before we call the next witness in the next session? Any housekeeping

11 matter, any outstanding issue, whatever it is, starting with you,

12 Mr. Mundis?

13 MR. MUNDIS: Nothing from the Prosecution.

14 JUDGE MOLOTO: Madam Vidovic.

15 MS. VIDOVIC: [Interpretation] Nothing, Your Honour. Thank you.

16 JUDGE MOLOTO: Thank you very much.

17 Then this seems to bring us to the end of this session, and the

18 case now stands adjourned to Tuesday, the 4th of March, at 9.00 in the

19 morning in Courtroom II, where we will hear the first witness for the

20 Defence.

21 Court adjourned.

22 --- Whereupon the hearing adjourned at 3.46 p.m.,

23 to be reconvened on Tuesday, the 4th day of

24 March, 2008, at 9.00 a.m.