Case: IT-98-33-A

Judge David Hunt, Pre-Appeal Judge

Mr Hans Holthuis

Decision of:
29 May 2002

Radislav KRSTIC




Counsel for the Prosecutor:

Mr Norman Farrell

Counsel for the Defence:

Mr Nenad Petrusic
Mr Norman Sepenuk

1. On 10 April 2003, the appellant Radislav Krstic (“Krstic”) filed his submissions in relation to alleged violations of Rule 68 by the prosecution during his trial .1 On 8 May, the prosecution filed its response to the Rule 68 Submissions filed by Krstic.2 On 22 May, Krstic filed his reply.3 Although all three documents have been filed on a confidential basis, there is no reason why this decision should not be filed publicly. The parties will later be required to demonstrate why the filings in relation to this issue should not also be made public.

2. In its Response, the prosecution stated (i) its understanding that the allegation being made by Krstic in his Rule 68 Submissions was not one of a deliberate failure by the prosecution to disclose exculpatory material as required by Rule 68, and (ii) that, upon the basis of that understanding, it would not make factual or legal submissions in relation to such an issue at that stage.4 However, the prosecution also requested that, should this understanding be wrong , Krstic should make it clear in his reply that an allegation of deliberate failure was being made. The prosecution stated that, if such an allegation were made clear, it would seek leave to file a further response.5

3. In his Reply, Krstic clarified that, with respect to “particularly” two specified documents which were not disclosed, his allegation is indeed one of deliberate withholding of Rule 68 material by the prosecution.6 The prosecution now seeks leave to file a supplementary response; it also seeks an extension of time until 30 June 2003 in which to file that response.7

4. The Rule 68 Submissions filed by Krstic certainly did not make his position clear in relation to this very serious issue, and the prosecution was justified in requiring the position to be clarified before dealing with that issue. However, the clarification now provided appears to leave open an allegation that documents other than the two specified were deliberately withheld, but it gives no detail. An appellant is required to make such a serious allegation with specific detail, and cannot leave such an allegation in general terms up in the air. Having now been given two opportunities to state his case upon this issue, Krstic will be limited to the two documents which he has specifically identified. The prosecution is entitled to ignore the allegation in relation to all the other documents, and it should limit its further response to dealing with those two specified documents.

5. Counsel for Krstic has very fairly indicated orally to Chambers that he does not oppose the Appeals Chamber granting the prosecution leave to file a further response and an extension of time until 30 June in which to do so. I am satisfied that the prosecution should be granted leave to file a supplementary response to that allegation. The prosecution has provided a clearly stated and reasonable explanation for the time which it seeks in order to do so,8 and I am satisfied that good cause is shown for the extension sought.

6. Accordingly, I grant leave to the prosecution to file a further response to the reply filed by Krstic on 22 May, and I extend the time in which it may do so until 30 June. Krstic may file a reply to that further response on or before 14 July.


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

Dated this 29th day of May 2003,
At The Hague,
The Netherlands.

Judge David Hunt
Pre-Appeal Judge

[Seal of the Tribunal]

1 - Confidential Defence Appeal Brief Concerning Rule 68 Violations, 10 April 2003 (“Rule 68 Submissions”). These are, in effect, part of his Appellant’s Brief.
2 - Confidential Prosecution Response to Defence Appeal Briefs Concerning Rule 68 Violations, 8 May 2003 (“Response”).
3 - Confidential Reply to Prosecution Response to Defence Appeal Brief Concerning Rule 68 Violations, 22 May 2003 (“Reply”).
4 - Response, par 1.20.
5 - Response, par 1.21.
6 - Reply, par 1.
7 - Confidential Prosecution Request for Leave to File a Further Response to “Defence Appeal Brief Concerning Rule 68 Violations, 23 May 2003 (“Motion”).
8 - Motion, par 14.