IN THE TRIAL CHAMBER
Judge Richard May, Presiding
Judge Patrick Robinson
Judge Mohamed Fassi Fihri
Mr. Hans Holthuis
1 August 2001
DECISION ON PROSECUTION MOTION FOR CLARIFICATION IN RESPECT OF APPLICATION OF RULES 65 TER, 66 (B) AND 67 (C)
Office of the Prosecutor:
Mr. Mark Harmon
Mr. Alan Tieger
Counsel for the Accused:
Mr. Deyan Brashich, for Momcilo Krajisnik
Mr. Robert. J. Pavich and Mr. Eugene OSullivan, for Biljana Plavsic
1. The Trial Chamber hereby gives its decision in relation to a motion filed by the Office of the Prosecutor ("Prosecution") seeking clarification in respect of the application of Rules 65 ter, 66 (B) and 67 (C) of the Rules of Procedure and Evidence ("Rules").1
2. The Prosecution has identified 800 "core" documents2 which, it is understood, are documents on which they intend to rely at trial. To date, nearly 400 of those documents have been disclosed to the Defence. The Prosecution now seeks to clarify their obligations with regard to the remainder.
3. The disclosure regime in so far as relevant to this Decision proceeds by the following steps:
(a) All supporting material accompanying the indictment must be disclosed within 30 days of the initial appearance (Rule 66 (A)(i));
(b) Copies of the statements of witnesses who the Prosecution intends to call at trial must be disclosed within a time limit set by the Pre-Trial Judge or Trial Chamber (Rule 66 (A)(ii));
(c) The Prosecution, on request, must permit the Defence to inspect material for preparation of the Defence or "intended for use by the Prosecutor as evidence at trial" (Rule 66 (B));
(d) However, such a request triggers an entitlement for reciprocal discovery by the Prosecution of material which the Defence intends to use as evidence at trial (Rule 66 (C)); and
(e) Not less than six weeks before the Pre-Trial Conference the Prosecution must file, inter alia, "the list of exhibits the Prosecutor intends to offer stating where possible whether the defence has any objection as to authenticity" (Rule 65 ter (E)(iii)).
II. ARGUMENTS OF THE PARTIES
4. The Prosecution is only prepared to disclose the remainder of the documents under the reciprocal disclosure provisions of Rules 66 (B) and 67 (C) and argues that these Rules are substantive Rules and have primacy over Rule 65 ter (E)(iii), which is purely procedural: therefore, the Defence are not entitled to disclosure of the exhibits under the latter Rule if they have not triggered the reciprocal disclosure provisions.3 The Prosecution argues that the reciprocal disclosure provisions increase the efficiency of proceedings, protect equality of arms and protect the integrity of documentary evidence.4 In support of its argument, the Prosecution relies on a ruling of Trial Chamber I that to force it to disclose the exhibits in its list in circumstances where the reciprocal disclosure provisions had not been triggered would be to create an imbalance in the equality of arms and, therefore, there was no obligation on the Prosecution to do so.5
5. Defence counsel for the accused Momcilo Krajisnik submits that a true equality of arms requires the disclosure of the exhibits since the Prosecution has access to material, such as government archives, to which the Defence does not have access.6 Defence counsel for Biljana Plavsic, having triggered the reciprocal disclosure provisions, has no direct interest in this matter.7
6. The Trial Chamber notes that the ruling of Trial Chamber I, referred to above, has not been followed in other cases. Indeed, the usual Prosecution practice has been to engage in open pre-trial disclosure without relying on the reciprocal disclosure provisions. This practice was followed in the cases in Trial Chamber II, in Dokmanovic, Kovacevic, Kupreskic, Kunurac and Krnojelac, and in Trial Chamber III, in Kordic, Sikirica and Simic. Indeed, in the instant case this practice was followed until a recent change in counsel who have conduct of this prosecution: this practice was to make open and early disclosure to the Defence of all relevant material as it was identified by the Prosecution and this led to the disclosure of the 400 documents, referred to above, among other material.8
7. The Trial Chamber considers that this practice should be followed rather than that favoured by Trial Chamber I. The only way in which the Defence can properly prepare for trial is by having notice in advance of the material on which the Prosecution intends to rely, including exhibits. The Prosecution, by not disclosing the documents prior to trial, places the Defence in a position in which it will not be able to prepare properly; and it is this fact that is likely to lead to a violation of the principle of equality of arms. In addition, the practice may lead to applications for adjournment during the trial to allow the Defence to deal with exhibits of which they had no prior notice, and given the number of documents concerned in this case, such applications might be frequent.
8. Accordingly, the Trial Chamber interprets the requirement in Rule 65 ter (E)(iii) for the Prosecution to file a list of exhibits to mean that the exhibits themselves should be filed and disclosed. (It may also be noted that were this not so, there would be little point in the Rule referring to Defence objections to authenticity since it is difficult to see how the Defence can be in a position to indicate any objections if it has not had the opportunity of viewing the exhibits.)9
9. The Trial Chamber does not accept the Prosecutions characterisation of Rules 65 ter, 66 and 68, referred to above and does not accept that the latter has precedence. To do so would mean that the only way that an accused could obtain disclosure of the Prosecution case would be by incurring a disclosure obligation. This would be to allow a narrow interpretation of the Rules to override elementary notions of a fair trial, i.e. that the accused, without incurring the obligation of disclosure, should know the case he or she has to meet and should be given adequate opportunity to prepare a Defence. Furthermore, the Chamber, whilst considering how conflicts in the Rules are to be resolved, must take into consideration the requirement under the Statute of the International Tribunal that the proceedings be fair and expeditious and that there be equality between the parties in the preparation for and conduct of trial. There is also a danger in literal interpretation of the Rules that read narrowly the rights and obligations of the parties, particularly where such interpretations compromise these requirements of fairness and expedition. The reciprocal disclosure provisions remain of utility with respect to a broader range of material than the exhibits upon which the Prosecution intends to rely, and to conduct a general trawl through the Prosecution files.
10. Therefore, the Prosecution must disclose all the exhibits on which it intends to rely, at least, by the time that it files its pre-trial brief.
11. For these reasons, and pursuant to Rule 65 ter of the Rules, the Trial Chamber orders the Prosecution to serve on the Defence the balance of the core documents together with all documents listed pursuant to Rule 65 ter (E)(iii) at the time of filing its pre-trial brief.
Done in English and French, the English text being authoritative.
Dated this first day of August 2001
At The Hague
[Seal of the Tribunal]
Motion for Clarification in Respect of Application of Rules 65 ter, 66 (B) and 67
(C)", filed by the Prosecution on 25 June 2001 (hereafter "the Motion").
Note that oral submissions were made by the parties with respect to the Motion on 10 July
2. Status Conference, 23 May 2001, Transcript page 25.
3. The Motion, paras. 4, 21-23; Motions Hearing, 10 July 2001, Transcript page 48.
4. Prosecutor v. Krstic, Case No. IT-98-33-PT, Status Conference, 6 March 2000, Transcript pages 398-400.
6. "Accused Krajisniks Opposition to Motion for Clarification" filed by the Defence for Krajisnik on 6 July 2001 (hereafter "the Response"), paras. 5-8. Defence counsel for Krajisnik also submitted that the Motion was an attempt to review an order already made by the Pre-Trial Judge that the documents should be disclosed (Response, paras. 3-5). In fact, no such order was made, the Pre-Trial Judge having merely indicated to the Prosecution that the sooner the remaining documents were disclosed the better (Status Conference, 23 May 2001, Transcript page 46).
7. Motions Hearing, 10 July 2001, Transcript page 56.
8. Status Conference, 25 January 2001, Transcript page 74.
9. The Prosecution has also expressed concern that pre-trial disclosure, in circumstances where reciprocal disclosure has not been triggered, might risk destruction, alteration or creation of evidence in order to assist the Defence. It is noted, however, that this has never been raised before by the Prosecution under its previous disclosure regime and, at any rate, without specific information supporting such an allegation in this case, the argument carries no weight.