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"),

BEING SEISED of the Defence "Notice of motion to compel compliance by the Prosecutor with Rules 66 (A) and 68", filed by the Defence for Dario Kordic on 2 July 1998 ("the Motion") and subsequently joined by the Defence for Mario Cerkez (together "Defence") on 8 July 1998, together with the Response to the Motion ("the Prosecution Response") filed by the Office of the Prosecutor ("Prosecution") on 27 July 1998,

HAVING HEARD the oral arguments of the parties on 16 February 1999,

NOTING that, as confirmed in oral argument, the Defence is now seeking production of four categories of material, namely: (a) copies of the supporting material which accompanied the indictment when confirmation was sought; (b) all prior statements of the accused; (c) statements of all witnesses whom the Prosecution intends to call at trial; and (d) exculpatory material,

NOTING that the Prosecution asserts that: (a) all supporting material has been provided but that the entitlement to "supporting material" does not include other documents submitted to the confirming Judge by way of a pleading or motion; (b) there are no prior statements of the accused to be disclosed as the Prosecution has not interviewed either of the accused in this case; (c) witness statements need only be disclosed once the Prosecution has determined that it will call a particular witness: this decision will be made at the time of submission of the Prosecution list of witnesses, to be submitted on 11 March 1999, at which time the relevant witness statements will be provided; and (d) all material that the Prosecution deems in its judgement to be exculpatory has been disclosed, noting meanwhile that this is an ongoing and continuing obligation,

NOTING that the indictment against the two co-accused was first confirmed on 9 November 1995 and the initial appearance of the accused took place on 8 October 1997, while the amended indictment was confirmed on 30 September 1998 and the further appearance was held on 14 October 1998,

NOTING that the date for commencement of the trial in this matter has been set for 12 April 1999,

CONSIDERING that Rule 66 (A) of the Rules of Procedure and Evidence of the International Tribunal¹ provides as follows:

(A) Subject to the provisions of Rules 53 and 69, the Prosecutor shall make available to the defence in a language which the accused understands

(i) within thirty days of the initial appearance of the accused, copies of the supporting material which accompanied the indictment when confirmation was sought as well as all prior statements obtained by the Prosecutor from the accused, and

(ii) within the time-limit prescribed by the Trial Chamber or by the pre-trial Judge appointed pursuant to Rule 65 ter, copies of the statements of all witnesses whom the Prosecutor intends to call to testify at trial; copies of the statements of additional prosecution witnesses shall be made available to the defence when a decision is made to call those witnesses.

CONSIDERING that "supporting material" means the material upon which the charges are based and does not include other material that may be submitted to the confirming Judge, such as a brief of argument or statement of facts,

CONSIDERING and approving of the Decisions of 27 January 1997 ("Discovery Decision") and 15 July 1998 issued by Trial Chamber I in the case of Prosecutor v. Tihomir Blaskic² on the issue of disclosure of the prior statements of the accused, stating that prior statements include "all the previous statements of the accused which appear in the Prosecutor’s file, whether collected by the Prosecution or originating from any other source"³, as further elaborated by the Trial Chamber in its Decision of 15 July 1998 to refer to "all statements made by the accused during questioning in any type of judicial proceeding which may be in the possession of the Prosecutor, but only such statements"⁴, save for any material not subject to disclosure pursuant to Rule 70 (A),

CONSIDERING that, pursuant to Rule 66 (A)(i), all material supporting the amended indictment, together with all prior statements of the accused as defined above, should therefore have been disclosed to the Defence no later than 13 November 1998, and that the material in respect of the original indictment should have been disclosed significantly prior to that date,

CONSIDERING that provisions for the disclosure of witness statements or for provision of a list of the names of witnesses can be found in Rule 66 (A)(ii), Rule 67 (A)(i) and Rule 73 bis (B)(iv),

CONSIDERING that, in the view of this Trial Chamber,

(i) the obligation to disclose witness statements to the Defence under Rule 66 (A)(ii) is independent of and does not rely upon finalisation of either

(a) the witness list referred to in Rule 67, which as noted in the Discovery Decision, requires the names of all Prosecution witnesses to be disclosed at the same time in a comprehensive document which "thus permits the Defence to have a clear and cohesive view of the Prosecution’s strategy and to make the appropriate preparations"⁵ or

(b) the witness list and other details to be provided pursuant to Rule 73 bis (B)(iv), which list is provided nearer to the time for trial for the information of both the Trial Chamber and the Defence;

(ii) the obligation to provide witness statements pursuant to Rule 66 (A)(ii) is intended to assist the Defence in its understanding of the case against the accused in accordance with his rights under Article 21 of the Statute of the International Tribunal and should thus be provided to the Defence as far in advance of the trial as is possible, even if this means that statements are disclosed sequentially and that statements are disclosed of witnesses who eventually are not called to testify in the matter,

CONSIDERING and approving of the finding in the Discovery Decision that, once the names of Prosecution witnesses have been disclosed, additions or supplements shall be limited to any possible new developments in the investigation and "must never result in the rights of the Defence being circumvented"⁶,

CONSIDERING that the Prosecution has indicated that, in addition to the statements already disclosed, a "significant" number of witness statements remain to be disclosed to the Defence, which statements will be disclosed by 11 March 1999, i.e., one month before the trial is due to commence and nearly eighteen months after the accused surrendered voluntarily to the International Tribunal,

CONSIDERING that Rule 73 bis permits the Trial Chamber to call upon the Prosecution to reduce the number of witnesses to be called if it considers that an excessive number of witnesses are being called to prove the same facts,

CONSIDERING that Rule 68 requires the Prosecution to disclose to the defence all exculpatory material known to the Prosecutor and that this duty is a continuing obligation, in view of the fact that the relevance of certain material in the possession of the Prosecutor may only become clear during trial,

CONSIDERING the rights of the accused as set forth in Article 21 of the Statute and, in particular, the right of the accused to have adequate time and facilities for the preparation of his defence,

PURSUANT TO Rules 66 and 68 of the Rules

HEREBY ORDERS as follows:

1. the Prosecution shall by Friday 5 March 1999 disclose any undisclosed supporting material to both the original indictment and the amended indictment and shall confirm to the Trial Chamber that full disclosure of such material has been made;
2. the Prosecution shall by Friday 5 March 1999 disclose any undisclosed prior statements of the accused in the possession of the Prosecution, made during questioning in any type of judicial proceeding and whether collected by the Prosecution or originating from any other source, save for any material not subject to disclosure pursuant to Rule 70 (A), and shall confirm to the Trial Chamber that full disclosure of such material has been made;
3. the Prosecution shall by Friday 5 March 1999 disclose to the Defence statements of all witnesses that the Prosecution intends to call at trial save for any material not subject to disclosure pursuant to Rule 70 (A) and shall confirm to the Trial Chamber that full disclosure of such material has been made.

The Trial Chamber notes that the Prosecution remains under a continuing duty to disclose exculpatory material to the Defence throughout these proceedings.

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

_______________________________

Richard May
Presiding

Dated this twenty-sixth day of February 1999
At The Hague
The Netherlands

[The seal of the Tribunal]