Case No. IT-01-48-T

Before:
Judge Liu Daqun, Presiding
Judge Florence Ndepele Mwachande Mumba
Judge Amin El Mahdi

Registrar:
Mr. Hans Holthuis

Decision of:
27 July 2005

The Office of the Prosecutor:

Mr. Philip Weiner
Ms. Sureta Chana
Mr. David Re
Mr. Manoj Sachdeva

Counsel for the Accused:

Mr. Peter Morrissey
Mr. Guénaël Mettraux

TRIAL CHAMBER I, SECTION A, (“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 (“Tribunal”),

BEING SEISED of the Defence “Motion for Enforcement of Court Order re Electronic Disclosure Suite (“EDS”)”, filed on 24 June 2005 (“Motion”);

NOTING the “Prosecution Response to ‘Motion for Enforcement of Court Order re Electronic Disclosure Suite’” filed on 1 July 2005 (“Response”) with an Annex A containing a letter, dated 3 June 2005, sent by the Prosecution to the Defence concerning the EDS, attached thereto;

NOTING the oral submissions of the parties during the status conference on 5 July 2005 (“status conference”)¹ and the hearing on 14 July 2005 (“hearing of 14 July”)²;

NOTING the “Decision on Defence Objection to Prosecution Continued Disclosure ”, issued on 7 May 2004 by Trial Chamber III (“7 May 2004 Order”), seized of the case at that time, wherein Trial Chamber III ordered inter alia in paragraph 4 of the disposition that “the Prosecution shall provide the Defence with an index of material available for inspection pursuant to Rule 66 (B)” of the Rules of Procedure and Evidence (“Rules”);

NOTING that on 27 May 2004 the Prosecution filed a Report of Compliance,³ in which it announced that “an index of documents contained in the EDS shall also be provided, in accordance with paragraph 4 of the disposition of the decision”;⁴

NOTING that the Defence in its Motion (i) seeks an order from the Trial Chamber “for the enforcement of the 7 May 2004 Order regarding the providing of an index of the EDS to the Defence”,⁵ because the provision of an index remains outstanding⁶ and “the Defence is not in a position to review all material placed on the EDS, nor to affirm that all material relevant to its case as far as available on the EDS has been identified by the Defence”;⁷ (ii) requests that the index should contain the same sort of information as is contained in relation to each proposed exhibit in a Rule 65 ter list of the Prosecution ;⁸ and (iii) requests the Trial Chamber to order the Prosecution to notify the Defence every time new documents are being placed in the EDS folder specific of the present case (“Halilovic folder”);⁹

NOTING that the Prosecution in its Response submits that the Report of Compliance contained seven lengthy annexes detailing all disclosure pursuant to Rule 66 (B) of the Rules; that the Prosecution’s duty under Rule 66 (B) is confined to making these documents ‘available for inspection’¹⁰ and “this filing and explanation went well beyond order 4 of the Trial Chamber’s decision”;¹¹ that the Prosecution has “undertaken to inform the Defence whenever new material is placed within the ‘Halilovic folder’ in the index in the EDS”;¹² and that the Report of Compliance “erroneously and in an apparent misreading of the S7 May 2004C Order, and the capabilities of the EDS”, stated, that an index of the documents contained in the EDS would be provided;¹³

NOTING that the Prosecution further submits that the EDS contains 34 collections of documents comprising around 4 million pages; that the documents placed in the EDS are separately ‘indexed’, but only by the name of the collection in which they are placed; and that “no index presently exists of individual documents within the 34 collections, but work is underway to provide an index of about half of the individual documents in these collections”, which will not be completed until September 2005 at the earliest;¹⁴

NOTING also the Prosecution submissions that “in line with a general OTP wide policy on disclosure, the majority of the disclosure will be effected via the EDS system”;¹⁵ that “as Rule 68 stipulates , any exculpatory material in the actual knowledge of the Prosecution will be disclosed on an ongoing basis either via the specific case EDS or in the case of videos, by CD-rom” and that in this regard “updated ISU (Information Support Unit) searches are regularly conducted and any identified relevant or exculpatory material will be provided to the Defence via the EDS”;¹⁶ that “similarly, any new material the prosecution receives that falls under Rule 66 (A) (i) and (ii) will be immediately disclosed to the Defence”;¹⁷ and that the Prosecution continues to search within documents collections not available to the Defence, namely those of witness statements and material obtained under Rule 70, for material relevant under Rule 66 (B) and Rule 68 and to disclose any relevant material;¹⁸

NOTING that during the status conference the Prosecution argued that at the moment it has “no way” of indexing the documents contained in the EDS “for anyone to find them, Sthe ProsecutionC or the Defence”;¹⁹ and the Defence admitted to “have some sympathy for the Prosecution difficulties ” and that at this stage the Defence “would only insist on the Halilovic folder being indexed”;²⁰

NOTING that during the hearing of 14 July the Prosecution submitted that the Halilovic folder consists of three subfolders of which one contains more than 7,000 documents which were disclosed to the Defence over the preceding years and placed into the folder on 8 July 2004;²¹

NOTING that Rule 66 (B) provides that the Prosecutor shall, on request, permit the Defence to inspect any books, documents, photographs and tangible objects in the Prosecutor’s custody or control, which are material to the preparation of the defence, or are intended for use by the Prosecutor as evidence at trial or were obtained from or belonged to the accused;

NOTING that Rule 68 (ii) provides that, subject to the provisions of Rule 70, without prejudice to paragraph (i),²² the Prosecutor shall make available to the Defence, in electronic form, collections of relevant material held by the Prosecutor, together with appropriate computer software with which the defence can search such collections electronically;

CONSIDERING that the Prosecution has reiterated its compliance with its disclosure obligations under Rules 66 and 68 of the Rules, and its continuous performance of searches to identify relevant or exculpatory material to be disclosed to the Defence ;

NOTING that an index can prove useful in identifying material relevant to the Defence case, in particular material placed into the Halilovic folder;

CONSIDERING that the 34 collections of documents in the EDS contain a multitude of information which is not necessarily relevant for this case; and that the Defence is only requesting at this stage that the Halilovic folder being indexed;

CONSIDERING that the Rules do not require an index of the documents disclosed or of relevant material made available to be provided to the Defence;

CONSIDERING however that the Prosecution in its Report of Compliance demonstrated its willingness for co-operation by stating that an index of the documents contained in the EDS would be provided to the Defence;

CONSIDERING that the provision of an index of thousands or even millions of documents is a major and time consuming project and that the Prosecution indicated that it is in the process of providing an index for around half of the documents in the 34 collections of which the EDS consists;

CONSIDERING that the Defence has access to the EDS, that the means for searching provided for in the EDS enable the Defence to search the collections contained therein in order to review relevant material; and that in particular the 7, 000 documents contained in the Halilovic folder have been disclosed to the Defence and made available on EDS since 8 July 2004;

CONSIDERING that until such time that the index of the collections is completed , both the Defence and the Prosecution have to use the available means of searching the collections within the EDS;

CONSIDERING that the Trial Chamber, based on the Prosecution submissions, is satisfied that the Prosecution is complying with its disclosure obligations and informs the Defence whenever new material is placed within the Halilovic folder;

FOR THE FOREGOING REASONS,

PURSUANT to Rule 54 of the Rules

HEREBY DENIES the Motion.

Done in English and French, the English version being authoritative.

______________
Judge Liu Daqun
Presiding

Dated this twenty-seventh day of July 2005
At The Hague,
The Netherlands

[Seal of the Tribunal]