Before: Judge Adolphus G. Karibi-Whyte
Judge Elizabeth Odio-Benito
Judge Saad Saood Jan
Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh
Decision of: 3 February 1997
ZDRAVKO MUCIC, also known as "Pavo"
ESAD LANDZO, also known as "Zenga"
DECISION ON THE APPLICATIONS FOR
ADJOURNMENT OF THE TRIAL DATE
The Office of the Prosecutor:
Mr. Eric Ostberg Mr. Giuliano Turone
Ms. Teresa McHenry Ms. Elles van Dusschoten
Counsel for the Accused:
Ms. Edina Residovic, Mr. Ekrem Galijatovic, Mr. Eugene OSullivan, for Zejnil Delalic
Mr. Branislav Tapuskovic, Ms. Mira Tapuskovic, for Zdravko Mucic
Mr. Salih Karabdic, Mr. Thomas Moran, for Hazim Delic
Mr. Mustafa Brackovic, Mr. Cynthia McMurrey, for Esad Landzo
I. INTRODUCTION AND PROCEDURAL BACKGROUND
Pending before this Trial Chamber of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 ("International Tribunal") are separate motions for the adjournment of the date set for commencement of trial in the present case on behalf of two of the accused, Esad Landzo and Hazim Delic.
The Defence for the accused, Esad Landzo, filed its motion on 6 January 1997 and supplemented it on 13 January 1997, while the Defence for the accused, Hazim Delic, filed its motion on 14 January 1997 (together "the Motions"). The Office of the Prosecutor ("Prosecution") responded to both Motions in two separate filings on 16 January 1997. Both the Prosecution and the Defence for the two accused presented oral arguments before the Trial Chamber at a hearing held on 17 January 1997. The Trial Chamber also heard counsel for the other accused, Zejnil Delalic and Zdravko Mucic, at the same hearing. The Trial Chamber issued an oral decision denying the Motions, as sought, at the same hearing and reserved the written decision to a later date.
THE TRIAL CHAMBER HAVING CONSIDERED the written submissions and oral arguments of the parties,
HEREBY ISSUES ITS DECISION.
A. Applicable Provisions
1. In both Motions, the Defence for the accused relies on the provisions of Article 21(4)(b) of the Statute of the International Tribunal ("Statute") and Sub-rule 72(A) of the Rules of Procedure and Evidence ("Rules"). Article 21(4)(b) provides:
In the determination of any criminal charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality:
(a) . . .
(b) to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;
. . . .
Sub-rule 72(A) states: "After the initial appearance of the accused, either party may move before a Trial Chamber for appropriate relief or ruling. Such motion may be written or oral, at the discretion of the Trial Chamber." The Defence, therefore, relies on the procedural provisions of Sub-rule 72(A) to preserve the substantive rights of the accused person as expressed in Article 21(4)(b) of the Statute.
1. The Defence
a) Esad Landzo
2. The Defence argument, in sum, is that it will not be adequately prepared to defend the accused if the trial commences, as set, on 28 January 1997. The accuseds right to have adequate time for the preparation of his defence, guaranteed in Article 21(4)(b), and, by implication, his right to a fair trial will be violated if the trial proceeds as scheduled. For this reason, the Defence submits that the Trial Chamber should adjourn the trial until 20 May 1997.
3. The Defence alleges that it has encountered difficulties in preparing for trial as a result of the Prosecutions non-compliance with its disclosure obligations. First, the Defence asserts that the Prosecution did not adhere to the date of 2 December 1996 set by the Trial Chamber for disclosure to the Defence of the statements of the witnesses it intends to call at trial. Secondly, the Defence submits that there are many documents for use at trial, including witness statements and the reports of some non-governmental organisations, which the Prosecution has disclosed only in English. It argues that the Prosecution has refused to fulfil its obligation to translate all these documents into the accuseds language, Bosnian. It declares that it is in the process of translating the documents into Bosnian, and that it is impossible to translate all of them before the trial date. Thirdly, the Defence states that the Prosecution has provided it with the names of three expert witnesses it intends to call at trial as well as a very brief document regarding their potential findings and opinions. The Defence argues that this brief is insufficient for it to prepare its own expert witnesses for trial without additional material. It contends that it will not be sufficiently prepared to confront these experts at trial by 28 January 1997. Fourth, the Defence avers that certain video tapes which are necessary for the preparation of the Defence were not made available to it by the Prosecution in time. The Defence contends further that when these tapes were eventually made available, it was not immediately provided with viewing facilities, and so it will be impossible for the Defence to complete viewing in preparation for trial by 28 January 1997.
4. The Defence submits that, hitherto, counsel was preoccupied with pre-trial proceedings relating to Esad Landzos mental condition and has not, therefore, had adequate time to devote solely to preparing for trial. The Defence also maintains that counsel requires additional time to prepare for trial because he spent a considerable period of time familiarising himself with the law and procedure applied by the International Tribunal. In addition, co-counsel has only recently been appointed to assist counsel for Esad Landzo. Co-counsel will also need additional time beyond 28 January 1997 to become sufficiently oriented with the antecedents of the case.
5. Finally, the Defence states that the recent inclement weather conditions all over Europe, particularly in the Republic of Bosnia and Herzegovina, greatly hampered its ability to effectively investigate the case.
b) Hazim Delic
6. Having fully accepted and supported the arguments put forth on behalf of Esad Landzo, the Defence on behalf of Hazim Delic seeks adjournment of the trial date to 28 April 1997. The Defence asserts that because the relationship between the Federal Republic of Yugoslavia and the Republic of Bosnia and Herzegovina has improved, it now intends to commence investigations which had hitherto been impossible in the territory of the Republika Srpska. The Defence contends that these investigations are such that it will require a three-month adjournment to complete them.
7. The Defence also alleges that Hazim Delic has to undergo physiotherapy treatment for injuries sustained during the war. It declares that his ability to stand trial during the period of treatment is limited, and requests the Trial Chamber to postpone the commencement of trial until after it is completed.
8. The Defence further submits that counsel for Hazim Delic devoted a significant amount of time to pre-trial proceedings challenging the form of the indictment and has, therefore, not had sufficient time to devote to preparing for trial.
9. The Defence also argues that, as three of the accused and three of the Defence counsel are Muslims, the trial should not start on 28 January 1997 which is during the Islamic holy month of Ramadan or in the three day Bayram period that follows that month. The Defence contends that if the trial starts during that period, it will have "a bad echo among the Muslims throughout the whole world" (Official Record at Registry Page ("RP") D2385 - D2380 at para. 8).
c) Zejnil Delalic
10. The Defence, supporting the Motions for adjournment, contended that Defence counsel for Esad Landzo and Hazim Delic presented valuable and valid arguments. Defence counsel submitted that it is impossible to prepare for the trial in the time proposed by the Prosecution, but left it to the discretion of the Trial Chamber to schedule the trial for a fair date.
d) Zdravko Mucic
11. The Defence opposed the Motions for adjournment and argued that the trial should commence, as set, on 28 January 1997.
2. The Prosecution
12. The Prosecution avers that the Defence has had ample time from the initial appearance of the accused to prepare for trial.
13. It denies the accusation of untimely disclosure. It rejects the submission that it is under any obligation to serve every statement under discovery in the language of the accused, rather it relies on the previous Decision of the Trial Chamber in which it was held that "discovery of documents shall be made in the language in which the item was originally obtained if that is the language of the accused, or in one of the working languages of the International Tribunal, and any translation desired shall be the responsibility of the party requesting it." Prosecutor v. Zejnil Delalic et al, Decision on Defence Application for Forwarding the Documents in the Language of the Accused, Case No. IT-96-21-T, T.Ch. II, 25 Sept. 1996 at p. 8 ("the Language Decision"). The Prosecution declares that many of the documents referred to are not lengthy and, in any event, are currently being translated into Bosnian, after which they will be provided to the accused.
14. The Prosecution declares that the Defence has had notice of the existence of the video tapes since 3 July 1996 with invitation for their inspection. Viewing facilities were made available as soon as the Defence requested them. In any event, the Prosecution maintains that since these facilities are now available the argument is irrelevant.
15. The Prosecution submits that its expert witnesses are objective witnesses to assist the Trial Chamber with background information within their expert knowledge. It declares that it does not have any statements of these experts and that it is unnecessary to present detailed information about what they will testify.
16. The Prosecution concedes that a considerable period of time was spent in the proceedings relating to Esad Landzos mental health problems and application for provisional release. With respect to Hazim Delics alleged medical needs, the Prosecution submits that, in the absence of a medical report certifying him as unfit for trial, this ground for adjournment cannot stand.
17. It contends that the assignment of co-counsel does not justify the long delay sought, and rejects the weather conditions as a valid ground for adjournment.
18. The Prosecution suggests adjournment of trial to 18 February 1997.
19. Article 21(4)(b) of the Statute is designed to ensure a fair trial for the accused. The provision is not intended as a vehicle to delay trial but to guard against hasty trials where the Defence is unprepared.. The operative phrase in the Article, "adequate time", is flexible and begs of a fixed definition outside the particular situation of each case. It is impossible to set a standard of what constitutes adequate time to prepare a defence because this is something which can be affected by a number of factors, including the complexity of the case, and the competing forces and claims at play, such as consideration of the interests of other accused persons.
20. There is no question that this case presents issues of some difficulty and that a few days cannot suffice to prepare a defence in matters of such complexity. The question is: Will the Defence have had adequate time to prepare for trial by 28 January 1997? Only a review of all the circumstances can show this.
21. At a status conference held on 1 November 1996, the Trial Chamber, with Judge Gabrielle Kirk McDonald presiding, set 2 December 1996 as the date by which the Prosecution should have disclosed, to the Defence, the statements of witnesses it intends to call at trial. The Trial Chamber also stated that the Defence should disclose all the evidence it intends to offer at trial to the Prosecution by 2 January 1997. At the same time, the Trial Chamber, recognising that disclosure obligations are of a continuing nature, indicated that if either party needed to disclose additional evidence after these dates, it must apply to the Trial Chamber, with reasons, for leave to do so. The Trial Chamber finds that the Prosecution failed to comply fully with the date fixed, but continued to disclose witness statements after 2 December 1996 without seeking leave. The Defence has, however, not sought to exclude the use of such witness statements as evidence at trial, but requests additional time to deal with them.
22. The Trial Chamber is cognisant of the fact that unless there is prompt and proper disclosure to the Defence, the Defence cannot make a decision on what evidence it will use at trial, and cannot therefore be adequately prepared for trial. This is especially so in this case where the disclosure was in English, making translation into the language of the accused necessary.
23. This is not to say, however, that the Defence interpretation of the Language Decision is correct. In that Decision, the Trial Chamber, having held that "all items of evidence, including the material submitted in support of the indictment, shall be translated by the Registry into the language of the accused", went on to declare that "discovery of documents shall be made in the language in which the item was originally obtained if that is the language of the accused, or one of the working languages of the International Tribunal, and any translation desired shall be the responsibility of the party requesting it." The implication of these findings is that it is not every single item of discovery that the Prosecutor is obliged to translate into the language of the accused. However, every item submitted in evidence during the course of trial must be so translated. The Trial Chamber therefore rejects the contention of the Defence that the Prosecution was under any obligation to translate each and every document disclosed. It is precisely because there are certain documents that may require further action by the Defence, in this case translation, that timely disclosure is of prime importance in a criminal trial.
24. The Trial Chamber accepts the submission of the Prosecution, uncontradicted by the Defence, that the Defence had knowledge of the existence of the video tapes since 3 July 1996. There is no valid reason why the Defence had to wait until a time so close to the trial date before making a request for the equipment for viewing the tapes. This is more so because the Defence is insisting on viewing, before the trial date, both a set of nine tapes to be used during the trial and another set of several tapes that will not be so used. While the Trial Chamber accepts that it is crucial for the Defence to have every opportunity to analyse the nine tapes in detail, and in conjunction with the accused, it cannot accept as a reason for requesting this long delay in the commencement of trial, the fact that the Defence must view several other tapes it could have viewed within the past seven months. The Trial Chamber finds it necessary to stress that the Rules are not designed to hide inefficiencies in trial strategy, but to ensure the smooth operation of the judicial process.
25. Expert witnesses are, ordinarily in most national systems, persons called upon to support a court by providing it with information within their special knowledge and expertise. In this respect the Trial Chamber accepts the Prosecutions submission that it is unnecessary to provide a detailed statement of what evidence its experts will give. A separate Order has already been issued on this matter. Prosecutor v. Zejnil Delalic et al, Order to Provide Notice of Expert Witnesses, Case No. IT-96-21-T, T.Ch. II, 25 Jan. 1997.
26. Furthermore, the fact that counsel are not familiar with all the legal issues that may arise during trial is no ground to warrant the adjournment of trial. Counsel have had a sufficient period of time to familiarise themselves with both the law and the procedure. The accused have a right to expeditious trial, and are charged with other accused persons one of whom, Zdravko Mucic, has strongly protested, both personally and through his counsel, any further delay in the commencement of trial. Further, the assignment of a co-counsel should be seen and employed as a means of expediting trial rather than retarding its progress.
27. The Trial Chamber cannot accept the submission of the Defence that trial should not commence until the physiotherapy on Hazim Delic has been completed. The Prosecutions argument that medical evidence is required to substantiate any allegation of his inability to stand trial is persuasive.
28. Finally, the Trial Chamber takes note of the inclement weather conditions in the Republic of Bosnia and Herzegovina as well as the religious beliefs of a number of participants involved in this case. It takes further note of the Defence argument that with the improved relationship between the Republic of Bosnia and Herzegovina and the Federal Republic of Yugoslavia further investigations are now possible. It, however, declines to accept any of these submissions as grounds to delay this trial for the period sought.
29. The Trial Chamber finds that the Defence has not established sufficient cause to justify the adjournment of the trial date to either 28 April 1997 or 20 May 1997. It, therefore, declines to grant the Motion as requested.
30. The Defence has demonstrated, to the satisfaction of the Trial Chamber, that the problems it has faced with the evidence disclosed by the Prosecution, including late disclosure and the need for substantial translation, has affected and still affects its ability to prepare for trial. Consequently, the Trial Chamber finds that it is in the interest of justice to adjourn this trial for a shorter period to 10 March 1997.
For the forgoing reasons, the TRIAL CHAMBER, being seized of the Motions filed by the Defence,
PURSUANT TO ARTICLE 21(4)(b) AND RULES 54 AND 72,
HEREBY DENIES the Motions for adjournment of the trial date as requested and adjourns the trial date to 10 March 1997.
Done in English and French, the English text being authoritative.
Adolphus Godwin Karibi-Whyte
Dated this third day of February 1997
At The Hague
[Seal of the Tribunal]