IN TRIAL CHAMBER II
Judge David Hunt, Presiding
Judge Florence Ndepele Mwachande Mumba
Judge Liu Daqun
Mrs Dorothee de Sampayo Garrido-Nijgh
27 June 2000
Radoslav BRDJANIN & Momir TALIC
DECISION ON MOTION BY MOMIR TALIC FOR DISCLOSURE OF EVIDENCE
The Office of the Prosecutor:
Ms Joanna Korner
Ms Anna Richterova
Ms Ann Sutherland
Counsel for Accused:
Mr John Ackerman for Radoslav Brdjanin
Maître Xavier de Roux and Maître Michel Pitron for Momir Talic
1. The accused Momir Talic (Talic") has sought three orders in his Motion for Disclosure of Evidence:
(1) setting a deadline in accordance with Rule 66(A)(ii) of the Rules of Procedure and Evidence ("Rules") for the disclosure by the prosecution of copies of the statements of all witnesses to be called to give evidence in the trial and all sworn statements or affidavits of such witnesses permitted by Rule 94ter;
(2) that the prosecution communicate to him within the same deadline "all other documents not included under the aforesaid statements"; and
(3) that the prosecution, in compliance with Rule 68, communicate to him all material likely to exculpate him.
2 The background
2 On 17 December 1999, Talic received redacted copies of the material supporting the indictment. On 25 February 2000, he received two binders of additional documents which he says did not fall within that category. Talic asserts that this present case is the fourth brought by the prosecution concerning the identical events in the same region, and that theprosecution has been investigating those events since 1994. The prosecution must therefore be considered, he says, to have all the material necessary to support the charges against him. He needs this material so that he can prepare his defence.
3. The right of the prosecution to redact the copies of the material supporting the indictment is the subject of a separate motion, in which a decision may be expected shortly. The present Motion does not seek any relief in relation to those documents.
4. Talic does not disclose whether or not the two binders of documents he received were described as having been made available to him in compliance with Rule 66(A)(ii), but his Motion proceeds upon the basis that they did not purport to have been so. The prosecutions Response, which was filed before Talic corrected the error in his Motion concerning the Rule under which he sought relief, does not suggest that these two binders of documents were made available in compliance with its obligation under that Rule, and its opposition to the order sought may suggest that they were not.
5. Rule 66(A)(ii) obliges the prosecution to make available to the accused the documents referred to in the first order sought by Talic within the time-limit prescribed by the Trial Chamber or by the Pre-Trial Judge. Talic now seeks to have such a time-limit prescribed. The prosecution responds that the application is premature, as there is not yet any suggested date for the trial of the accused, nor a decision on the Protective Measures Motion.
6. The Trial Chamber does not accept the submission implicit in that response that the prosecutions obligations under Rule 66(A)(ii) are necessarily determined by either the need for protective measures or the propinquity of a trial date. Even if the Trial Chamber were to accept the arguments of the prosecution in the Protective Measures Motion, the prosecution would still have to comply with Rule 66(A)(ii) once the time-limit has been prescribed, by making redacted copies of the relevant documents available to the accused. But, given the imminence of the decision in that motion, the Trial Chamber agrees that it would be appropriate to withhold relief in relation to the first order sought until that decision has been given. Appropriate orders can be made, if required, at the Status Conference scheduled for 20 July 2000.
7. The nature of the documents referred to in the second order sought by Talic has not been described. The entitlement of an accused to a general disclosure from the prosecution is defined by Rules 66 and 68. If any particular documents are said to exist which do not fall within either rule, and if an accused requires them for a legitimate forensic purpose, then he must make an application which specifies the documents he needs for that purpose. An accused is not entitled simply to ask for copies of all documents in the possession of the prosecution to be supplied to him. The practice of this Tribunal, in common with that of many other jurisdictions, does not permit a party to conduct a fishing expedition of that nature; before obtaining access to material in the possession of any other person, a party must demonstrate that such access is likely to assist his case materially, or that there is at least a good chance that it will give that assistance. Insofar as Talic seeks documents beyond those to which he is entitled by Rules 66 and 68, he has not shown a sufficient basis at this time for the order he seeks.
8. The third order sought by Talic is based upon Rule 68. The obligation of the prosecution to disclose to the accused the existence of any evidence known to it which in any way tends to suggest the innocence of, or mitigates the guilt of, the accused or which may affect the credibility of prosecution evidence must be discharged "as soon as practicable". The word "evidence" in Rule 68 must be interpreted very widely. It is not restricted to material which is in a form that would be admissible in evidence. It includes all information which in any way tends to suggest the innocence of, or mitigates the guilt of, the accused or which may affect the credibility of prosecution evidence. The obligation is a continuing one, and one which does not depend upon the imposition of any time-limit. If the prosecution knows of the existence of any such evidence at the present time, it must disclose it to the accused "as soon as practicable". The prosecutions response that it is presently premature for it to do so, and that it should be permitted to wait until the decision in the Protective Measures Motion has been given, is rejected.
9. The Trial Chamber does, however, sympathise with the complaint made by the prosecution that the issues raised by this Motion would have been more appropriately resolved by a discussion between counsel for the parties. It is only where counsel are unable to resolve such issues by a discussion that a motion would be warranted. Having now made the prosecutions obligations under Rule 68 clear, the Trial Chamber does not believe that it is appropriate to make any order at this stage.
4 A postscript
10. Talic has complained that the English translation of his Motion (which was filed in French, as is his right) is erroneous in two respects. Whether or not that is so, it would be of more assistance to everyone if such acomplaint is accompanied by a statement identifying what he considers the correct translation should have been.
11. For the foregoing reasons, the Trial Chamber refuses the orders sought.
Done in English and French, the English text being authoritative.
Dated this 27th day of June 2000,
At The Hague,
Judge David Hunt
[Seal of the Tribunal]