Case No. IT-03-66-T

IN TRIAL CHAMBER II

Before:
Judge Kevin Parker, Presiding
Judge Krister Thelin
Judge Christine Van Den Wyngaert

Registrar:
Mr. Hans Holthuis

Decision of:
16 February 2005

PROSECUTOR

v.

Fatmir LIMAJ
Haradin BALA
Isak MUSLIU

_________________________________________

DECISION ON PROSECUTIONíS MOTION PURSUANT TO RULE 67(A)(i)(a)

_________________________________________

The Office of the Prosecutor:

Mr. Alex Whiting
Mr. Julian Nicholls
Mr. Colin Black

Counsel for the Accused:

Mr. Michael Mansfield, QC, and Mr. Karim A. Khan for Fatmir Limaj
Mr. Gregor Guy-Smith and Mr. Richard Harvey for Haradin Bala
Mr. Michael Topolski, QC, and Mr. Steven Powles for Isak Musliu

 

TRIAL CHAMBER II ("the 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 ("the Tribunal");

NOTING the "Prosecutionís Motion Pursuant to Rule 67(A)(i)(a)" filed on 1 February 2005 and requesting that the Chamber order all the Accused in the present case to notify the Prosecution of any intent to offer a defence of alibi, along with the names and addresses of witnesses and any other evidence upon which the Accused intend to rely to establish such alibi with 7 days of the order and or period determined by the Chamber ("Motion");

NOTING "Haradin Balaís Response to Prosecutionís Motion Pursuant to Rule 67(A)(i)(a)" filed on 14 February 2005, and the "Response to Prosecutionís Motion Pursuant to Rule 67(A)(i)(a)", filed by the Defence of Isak Musliu on the same day ("Responses");

NOTING the "Prosecutionís Reply to Defence Response to Prosecutionís Motion Pursuant to Rule 67(A)(i)(a)", filed on 15 February 2005 ("Reply");

NOTING that in the Responses, both Defence indicate that they accept that there is a duty under Rule 67(A) to disclose to the Prosecution details of the Accusedís alibi and that they are prepared to do so in a timely manner so as to enable the Prosecution to conduct the necessary investigations and adduce such evidence as required; that they further request that the parties be permitted to liaise with each other on this matter instead of setting a formal time-limit;

NOTING that the Defence of Isak Musliu acknowledges that it is in the interests of the Defence that any evidence that the Prosecution may seek to rely upon in relation to the defence of alibi be presented during the Prosecutionís case in chief rather than in rebuttal;

NOTING however, that the Defence of Haradin Bala submits that the language of Rule 67(A)(i) of the Rules of Procedure and Evidence ("Rules") "clearly anticipates a rebuttal case predicated on defence disclosure" pursuant to the said Rule;

NOTING that Rule 67(A) of the Rules provides that: (i) the defence shall notify the Prosecutor of its intent to offer the defence of alibi, in which case the notification shall specify the place or places at which the accused claims to have been present at the time of the alleged crime and the names and addresses of witnesses and any other evidence upon which the accused intends to rely to establish the alibi; and (ii) the Prosecutor shall notify the defence of the names of the witnesses that the Prosecutor intends to call in rebuttal of any defence plea of which the Prosecutor has received notice in accordance with paragraph (i) above;

CONSIDERING that, in the view of the Chamber, contrary to the submission of the Defence for Haradin Bala, the reference to the presentation by the Prosecution of evidence in rebuttal of any defence plea is not intended to mean that such evidence may automatically be called in rebuttal;1

CONSIDERING in this respect that the Chamber accepts the Prosecutionís submission that the reference to rebuttal in Rule 67(A)(ii) is in fact a reference "to the act of rebutting the alibi defence" rather than to the stage of the proceedings in which to do so; that the requirement of an alibi notice is additional to the general requirement under Rule 65ter(G) of the Rules, which obliges the Defence to provide the Prosecution, at the close of the Prosecutionís case, with a list of the witnesses to be called and a summary of the facts on which each of them are to testify;

NOTING that Rule 67(A) in its previous version required the Defence to notify the Prosecution of its intent to rely on an alibi defence ď[a]s early as reasonably practicable and in any event prior to the commencement of the trialĒ;2

CONSIDERING that it is the view of the Chamber, having consulted the record of submissions leading to this amendment, that the Rule was amended with a view to expressly allow the pre-trial judge to set a time-limit for the notification of any alibi defence;

NOTING that the Prosecutionís case in chief is well under way and that the Prosecution has indicated in its Reply that its case in chief is expected to be completed by sometime in early April 2005;

CONSIDERING that it is appropriate that the Prosecution be given the opportunity and the adequate time to investigate and dispute any alibi defences offered by the Accused in the present case;

FOR THE FOREGOING REASONS,

PURSUANT TO Rules 54 and 67(A) of the Rules,

ORDERS the Defence for each Accused to notify the Prosecution, by 28 February 2005, of any defence of alibi it intends to offer, in which case the notification shall specify the place or places at which that Accused claims to have been present at the time of the alleged crime and the names and addresses of witnesses and any other evidence upon which that Accused intends to rely to establish the alibi.

 

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

______________________
Judge Kevin Parker
Presiding

Dated this sixteenth day of February 2005
At The Hague
The Netherlands

[Seal of the Tribunal]


1. The Chamber notes in this respect that according to the jurisprudence, rebuttal evidence "must relate to a significant issue arising directly out of defence evidence which could not reasonably have been anticipated." See Prosecutor v. Delalic et al., Case No. IT-96-21-A, Appeals Judgement, at para. 273.
2. The Chamber notes that the Rule was amended to its current version during the twenty-ninth Plenary Session held in December 2003.