IN TRIAL CHAMBER II

Before: Judge David Hunt, Pre-Trial Judge

Registrar: Dorothee de Sampayo Garrido-Nijgh

Decision of: 1 November 1999

PROSECUTOR

v

Milorad KRNOJELAC

______________________________________________________________

DECISION ON MOTION BY PROSECUTION TO MODIFY
ORDER FOR COMPLIANCE WITH RULE 68

______________________________________________________________

The Office of the Prosecutor:

Mr Dirk Ryneveld
Ms Peggy Kuo
Ms Hildegard Uertz-Retzlaff

Counsel for the Accused:

Mr Mihajlo Bakrac
Mr Miroslav Vasic

 

1. At the Status Conference held on 14 September last, I informed the prosecution that, because there had been a number of problems in trials recently with its compliance with the obligations imposed by Rule 68 of the Rules of Procedure and Evidence, I proposed to ensure compliance in this particular trial by requiring someone such as the case manager to take responsibility for saying that there had been a complete search for the material to which Rule 68 applies. I said at the time that it would be like an affidavit of discovery as it is known in common law systems.

2. I then proposed that the following orders be made:

1. The prosecution is to comply, on or before 15 November 1999, with its obligation pursuant to Rule 68 of the Rule and Procedure and Evidence to disclose to the defence the existence of evidence known to it:

(a) which in any way tends to suggest the innocence of, or to mitigate the guilt of, the accused, or

(b) which may affect the credibility of the prosecution evidence.

The expression "evidence" is intended to include any material which may put the accused on notice that material exists which may assist him in his defence, and it is not limited to material which is itself admissible in evidence.

2. On or before that date, the prosecution is to file an affidavit of its case manager for this case, sworn in accordance with the law and procedure of the State which such affidavit is signed, in which he or she testifies:

(a) that a full search has been conducted throughout the materials in the possession of the prosecution or otherwise within its knowledge for the existence of such evidence; and

(b) that he or she is aware of the continuing nature of the obligation pursuant to Rule 68.

3. The response by the prosecution at the Status Conference was two fold. First, it was suggested that the team analyst, as the person most intimately involved in assembling the material and who is employed on a professional level, would be the person more appropriately required to sign the affidavit than the case manager. Secondly, clarification was sought in relation to the swearing of the affidavit.

4. I accepted the change in the identity of the officer to swear the affidavit, and pointed out that the wording relating to the swearing was taken from Rule 94ter. The orders were then made.

5. Following the Status Conference, the prosecution filed a Motion seeking a modification of the requirement that an affidavit be sworn. A number of submissions have been made.

6. One submission is that Rule 94ter is inapplicable. It was, however, never suggested that it is. It was only the wording relating to the manner in which an affidavit is to be sworn which was adopted. It has been adopted in other cases as well, as a convenient form in which evidence may be provided.1

7. A second submission was that the Trial Chamber should be prepared to accept as sufficient the assurance of counsel charged with the responsibility of conducting the trial. Such assurances have unfortunately proved to be insufficient in the trials where problems relating to compliance with Rule 68 have arisen before. Such problems would appear to arise mainly because there are so many people involved in the prosecution team that there is no one person upon whom the responsibility rests and who can genuinely give such an assurance from personal knowledge after taking the steps necessary to ensure its accuracy.

8. A third submission was that it was inappropriate that a junior member of the team such as a case manager or an analyst should swear such an affidavit. For the reason already stated, it is precisely such a person who would be expected to have the personal knowledge in order to do so. The suggestion that it be the analyst, who was said to be the one person with the most intimate knowledge of the material in the possession of the prosecution or otherwise within its knowledge, was made by the prosecution itself.

9. A fourth submission was that, if the intention in requiring an affidavit was that greater reliance may be placed on the assertion of compliance because of the penal consequences provided under the relevant State law for false swearing, the immunity of the prosecution staff against legal process in respect of words spoken or written and all acts performed by them in their official capacity would negate such an objective.2 With all due respect, the objective was made clear at the time. It was to impose some type of additional onus on the prosecution to ensure compliance with the rule, so that one person would take responsibility for giving such an assurance. Having to swear an affidavit is an effective way of focussing the mind of the deponent upon his or her responsibilities. The affidavit was to be filed in the Tribunal, and was to be a practical way of avoiding that person having to give oral evidence in the interlocutory proceedings under solemn declaration in accordance with Rule 90.3

10. A fifth submission was that there is no provision in The Netherlands for swearing affidavits for use in legal proceedings. This has now become apparent. There must nevertheless be some additional onus placed upon the prosecution to ensure compliance with the rule, as the experience in other cases has shown is necessary. It is suggested by the prosecution that it merely provide –

[…] a signed Report detailing the specific steps taken and the efforts made by the prosecution to comply with its ongoing obligations under Rule 68.

Insofar as this proposal was intended to be no more than an assurance by counsel that Rule 68 has been complied with, I would not accept it. The "signed Report" must be compiled by a person within the prosecution team who can, from personal knowledge, give the assurances which must presently be given by way of affidavit. It is a matter for the prosecution to nominate the appropriate person to do so, but the person who signs the report will have to identify his or her knowledge of that material which enables him or her to give those assurances. The second order made on 14 September will be varied accordingly. In the light of the statement by counsel at the Status Conference that the analyst on the team is the one with the most intimate knowledge of the material in the possession of the prosecution or otherwise within its knowledge, if the person who signs the report is other than the analyst, I would expect this identification to be made in some detail.

11. The orders are now in the following terms:

1. The prosecution is to comply, on or before 15 November 1999, with its obligation pursuant to Rule 68 of the Rule and Procedure and Evidence to disclose to the defence the existence of evidence known to it:

(a) which in any way tends to suggest the innocence of, or to mitigate the guilt of, the accused, or

(b) which may affect the credibility of the prosecution evidence.

The expression "evidence" is intended to include any material which may put the accused on notice that material exists which may assist him in his defence, and it is not limited to material which is itself admissible in evidence.

2. On or before that date, the prosecution is to file a signed report by a member of its team for this case in which he or she certifies:

(a) that a full search has been conducted throughout the materials in the possession of the prosecution or otherwise within its knowledge for the existence of such evidence; and

(b) that he or she is aware of the continuing nature of the obligation pursuant to Rule 68.

The member of the team who signs the report is to identify in the report his or her knowledge of that material which enables him or her to so certify.

 

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

Dated this 1st day of November 1999,
At The Hague,
The Netherlands.

________________________
Judge David Hunt
Pre-Trial Judge

[Seal of the Tribunal]


1. See for example, Prosecutor v Delalic, IT-96-21-A, Decision on Motion by Esad Landžo to Preserve and Provide Evidence, 22 April 1999, at p 4.
2. Such an immunity is provided to the prosecution staff by Article V, Section 18, of the 1946 Convention on the Privileges and Immunities of the United Nations, made applicable to them by Article  30.3 of the Tribunal’s Statute, but it is subject to waiver by the Secretary General of the United Nations.
3. I note that Rule 91 ("False Testimony under Solemn Declaration") is not applicable in relation to affidavit evidence given in accordance with Rule 94ter, but sanctions relating to false testimony by the deponent played no part in making the order.