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A: Through: SIC De International Criminal Tribunal for Rwanda Tribunal Penal International pour le Rwanda Amha lntematlonal Conference Centre P.O.Bax 6016,Arusha, Tanzania - B.P. 6016,Arusha, Tanzanie Tel: 255 27 2504207-11 2504367-72 or 1 212 963 2850 Fax: 255 27 2504000/2504373or 1 212 963 2848149 OFFICE OF THE PROSECUTOR BUREAU DU PROCUREUR To: Office of the Registrar Date: July 26,2002 Attn: Dr. Koffi Afande A: Co-ordinator, Trial Chamber III Through: Barbara MULVANE~ SIC de: Senior Trial Attorney From: Drew White De: Legal Advisor Subject: Motion for Judicial Direction - filing with Registry -- Dear Sirs: Accompanying this letter please find the Prosecutor's Motion for Judicial Direction, dated July 26, 2002, for filing and circulation to all four defence counsel. We believe the Annex A that is attached to the Motion has previously been sent by the Registry to translation. If you have any additional queries, please do not hesitate to contact this office, through the Senior Trial Attorney, Ms Barbara Mulvaney. 0-egal Advisor Tribunal Penal International pour le Rwanda UN~TED-NATIONS NATIONS UNIES International Criminal Tribunal for Rwanda IN TRIAL CHAMBER I11 Before: Judge Lloyd George WILLIAMS, Presiding Judge Pave1 DOLENC . .I I- Judge Andresia VAZ i:(1" ' I Registrar: Mr Adama DIENG Date of Filing: 26 July 2002 THE PROSECUTOR v Theoneste BAGOSORA w* + d Gratien KABILIGI - >.3 Aloys NTABAKUZE Anatole NSENGIYUMVA Case No.: ICTR-98-41-T PROSECUTOR'S MOTION RESPECTING DISCLOSURE COMPLIANCE AND FOR FURTHER DIRECTIONS WITH REGARD TO THE TRIAL CHAMBER'S ORAL ORDER OF 28 JUNE 2002 Prosecution Counsel Defence Counsel Ms Barbara MULVANEY Mr Raphael CONSTANT Mr Drew WHITE Mr Jean Yaovi DEGLI Mr Segun JEGEDE Ms Sylvia OLYMPIO Ms Chstine GRAHAM Mr Clemente MONTEROSSO Mr Rashid RASHID Mr Andre TREMBLAY Mr Kennedy OGETTO Mr Gershom Otachi BW'OMANWA I. PROSECUTION'S REQUEST 1) The Prosecution hereby sets forth its state of compliance in respect of the Trial Chamber's order of 28 June 2002. It further asks for directions on how to proceed with regard to the issue of outstanding disclosure obligations due to non-availability of translations into both working languages of the Tribunal. In the alternative, the Prosecution seeks an order directing the Registrar to use all means at his disposal to finalize all outstanding translation requests from the Prosecution in this case as soon as is reasonably possible.1 11. PROSECUTION'S SUBMISSIONS 2) During the Status Conference held on 28 June 2002, the Trial Chamber directed the Prosecution to discharge any outstanding disclosure obligations in both working languages of the Tribunal no later than 30 July 2002. From the context of the Conference, it was uncertain whether that direction pertained specifically to disclosure obligations relating to the upcoming 4 week trial segment commencing September 2nd,2002, or more broadly to every disclosure obligation throughout the course of the trial, or to some other combination of disclosure issues. 3) In any event, the Prosecution has disclosed to the Defence all material that it knows to be in its possession concerning witness statements and exhibits, which is both relevant and disclosable, in redacted or unredacted form, excepting for recently-translated items in the process of being catalogued and provided. The Prosecution therefore submits that it has fulfilled its disclosure obligation to the extent it is physically possible. In order to give the Trial Chamber a better understanding of the status of the disclosure process and the availability of translations, the Prosecution submits the following. 4) The Prosecution understands that the Trial Chamber's order requires it to finalise the disclosure process of material which falls under Rules 66, 67, 69, 75 and 94bis. Accordingly, the Prosecution must disclose to the Defence the following categories of documents: 1 See Minutes of Proceedings pursuant to Rule 35 of the Rules and Article 44 of the Directive for the Registry on Court management, dated 1 July 2002, line 1. A) redacted witness statements of protected witnesses pursuant to Rules 66(A)(ii), 69 and 75; B) unredacted witness statements of protected witnesses no later than 35 days before the protected witness testifies at trial pursuant to the Trial Chamber's orders of 29 November and 5 December 2001; C) unredacted witness statements of unprotected witnesses pursuant to Rule 66(A)(ii) of the Rules; D) expert witness reports pursuant to Rule 94bis; and E) exhibits that the Prosecution intends to offer pursuant to Rule 66(B) and the April 2002 agreement reached between the Prosecution and the Defence. A. Disclosure of REDACTED witness statements of protected witnesses 5) The Prosecution has disclosed to the Defence, in at least one of the working languages of the Tribunal, the redacted witness statements of all 150 protected witnesses on the Prosecution's active witness list. Out of these, the majority of the redacted witness statements have been disclosed to the Defence in French, whereas the redacted witness statements for approximately 2 dozen witnesses have been disclosed to the Defence in English only, and another approximately 2 dozen witnesses have been disclosed to the Defence in both French and English. Most of these statements were provided in 1998, 1999 and 2000. B. Disclosure of UNredacted witness statements of protected witnesses 6) In respect of this category of witness statements, the Prosecution submits that it has disclosed, in at least one of the working languages of the Tribunal, the unredacted statements of all protected witnesses who are scheduled to appear during the first trial segment ( 2 - 26 September, 2002 ). Witness statements have been disclosed to the Defence in both French and English, except for two witnesses. One outstanding translation is that of witness XAM, consisting of 2 pages. The Prosecution submitted for the first time that statement for translation to LCSS on 25 September 2001. Subsequently, re-submissions were sent to the LCSS on 7 December 2001 and 2 July 2002. To date, the Prosecution has not received any translation of that document. The second outstanding translation is for witness CE, who provided 5 'statements' in French, only one of which has been translated into English. Those items were originally submitted for translation on July 28, 1998, ( CE-1 & 2 ) and November 2 & December 10, 1998, ( CE-4 ). Although it is possible these items for XAM and CE might be translated before July 3oth, it is unlikely they will be able to be catalogued, filed and delivered before that date. C. Disclosure of UNredacted witness statements of UNprotected witnesses The Prosecution submits that disclosure of all disclosable material that it knows to be in its possession, in at least one of the working languages, has been made for all unprotected witnesses. There are 42 witnesses in this category, including experts and investigators, as of July 19, 2002. This category has never had a fixed number of witnesses because of continual additions and deletions. Statements for 15 witnesses have been disclosed in both working languages of the Tribunal. Witness statements for 10 witnesses have been disclosed only in French whereas witness statements for 2 witnesses have been disclosed only in English. There are 15 witnesses who have no formal 'statements' as such. Of those 15, 4 are authors of significant publications; 4 are witnesses who must be dealt with through high-level diplomatic channels; 4 are investigative witnesses; 2 are witnesses who have created no statement but are believed to possess significant information and 1 is a witness who has given prior testimony and made other publicly printed statements. 10) Requests for translations of the witness statements which have been disclosed in only one working languages have been made to the Language and Conference Services Section (LCSS) on a wide variety of different dates between the period of 1996 and the present. The Prosecution has advised the LCSS of the importance of these translations. 11) In accordance with what has already been submitted orally during Status Conferences held on 3 April and 28 June 2002, the Prosecution further informs the Trial Chamber that it has, in respect of some of the unprotected witnesses, not provided a pro forma witness statement to the Defence. In 3 many instances, the Prosecution has disclosed information available in the public domain, such as official reports, books, news articles and interviews, which indicates and discloses with sufficient clarity the issues to which the Prosecution expects the witness to testify to at trial. The reason therefore is threefold: First, the materials in the public domain may be superior because they are more comprehensive, or original writings, or well-documented; Second, pro forma statements may not be readily available, either because of witness inaccessibility, diplomatic restriction, or budgetary constraint. Third, the principle of judicial economy . The Prosecution takes the view that it would be an imprudent waste of time and resources, as well as an unnecessary expense to dispatch investigators on distant missions to take a pro forma statement when there is public material available which puts the Defence on sufficient notice as to the nature of the expected evidence that the witness will provide during trial. D. Disclosure of expert witness reports. 12)The Prosecution has disclosed to the Defence in English the full statement of its first expert, Dr. Alison Des Forges, as well as filed the same document before the Trial Chamber. In accordance with Rules 3(A) and (E) of the Rules of Procedure and Evidence ("Rules) and Article 13(6) of the Directive for the Registry, the Registry on March 2gth, 2002 served the Defence with a translated version from English to French of the same document. 13) The Prosecution further sees a need to inform the Trial Chamber of the very recent request from Mr.
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