IN THE TRIAL CHAMBER
Judge Adolphus G. Karibi-Whyte, Presiding
Judge Elizabeth Odio Benito
Judge Saad Saood Jan
Mrs. Dorothee de Sampayo Garrido-Nijgh
8 September 1997
ZDRAVKO MUCIC also known as "PAVO"
ESAD LANDZO also known as "ZENGA"
DECISION ON MOTION TO SPECIFY THE DOCUMENTS
DISCLOSED BY THE PROSECUTOR THAT DELALICS
DEFENCE INTENDS TO USE AS EVIDENCE
The Office of the Prosecutor
Mr. Grant Niemann
Ms. Teresa McHenry
Mr. Giuliano Turone
Counsel for the Accused
Ms. Edina Residovic, Mr. Ekrem Galijatovic, Mr. Eugene OSullivan, for Zejnil
Mr. Zeljko Olujic, Mr. Michael Greaves, for Zdravko Mucic
Mr. Salih Karabdic, Mr. Thomas Moran, for Hazim Delic
Mr. John Ackerman, Ms. Cynthia McMurrey, for Esad Landzo
On 13 May 1997, the Office of the Prosecutor ("the Prosecution") filed a "Motion to Specify the Documents Disclosed by the Prosecutor that Delalics Defence Intends to Use as Evidence" (Official Record at Registry Page ("RP") D3641-D3646) ("the Motion") for consideration by 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"). Both the Prosecution and the Defence for the accused Zejnil Delalic presented their oral arguments on 29 May 1997 and the Trial Chamber reserved its decision for a later date.
HAVING CONSIDERED the Motion and the oral submissions of the parties, the Trial Chamber hereby issues its decision.
A. Applicable Provisions
1. The following provisions of the Rules of Procedure and Evidence of the International Tribunal ("Rules") are relevant to the determination of the present issue:
Disclosure by the Prosecutor
. . .
(B) The Prosecutor shall on request, subject to Sub-rule (C), permit the defence to inspect any books, documents, photographs and tangible objects in his custody or control, which are material to the preparation of the defence, or are intended for use by the Prosecutor as evidence at trial or were obtained from or belonged to the accused.
. . .
. . .
(C) If the defence makes a request pursuant to Sub-rule 66(B), the Prosecutor shall be entitled to inspect any books, documents, photographs and tangible objects, which are within the custody or control of the defence and which it intends to use as evidence at trial.
. . .
2. In its Motion, the Prosecution notes that, pursuant to Sub-rule 66(B) of the Rules, the Defence for the accused Zejnil Delalic made a request to the Prosecution to "inspect any books, documents, photographs and tangible objects in his custody or control, which are material to the preparation of the defence, or are intended for use by the Prosecutor as evidence at trial or were obtained from or belonged to the accused". The Prosecution submits that this request has triggered the reciprocal disclosure obligation of the Defence to allow the Prosecution equal access to those books, documents, photographs and tangible objects, which the Defence has in its custody and control and which it intends to use at trial, in accordance with Sub-rule 67(C).
3. The Prosecution contends that the Defence is under an obligation to specify those documents which it intends to tender as evidence during trial. According to the Prosecution, Sub-rule 67(C) would be devoid of all practical meaning if the Defence were allowed to flood the Prosecution with a large number of documents which it may use, without indicating those which it is actually intending to use at trial. The Prosecution asserts that, because it has provided the Defence with a very specific list of evidence it intends to use at trial, the Defence is under an equal obligation to do the same. While this specification by the Defence might not be perfect at the present time, this does not detract from its obligation to be specific to the greatest extent possible.
4. In the view of the Prosecution, it is in the interests of justice and necessary for the purposes of the conduct of the trial for the Defence to specify and disclose to the Prosecution as soon as possible all the documents that it intends to use as evidence. The Prosecution, therefore, submits that the Defence should, within fourteen days, provide it with a specified notification of the material that, at the present time, it intends to use as evidence at trial.
5. During its oral argument, the Defence for Zejnil Delalic observed that the Rules require no further disclosure from the Defence than that explicitly provided for in Rule 67 and that it had fully complied with its obligations thereunder. The Prosecution is in possession of many documents and objects seized from the accused, copies of which the Defence also received. The Defence holds that it is not in a position to determine at this stage precisely which of these it will use in the presentation of its case. The Defence noted that, in a recent ruling, this Trial Chamber determined that it was under no obligation to disclose the names of its witnesses to the Prosecution. The Defence therefore asserted that, similarly, there is no obligation on the Defence under the Rules to supply a list of the documents which it intends to use at trial.
6. The Prosecution asserts that Sub-rule 67(C) obliges the Defence to indicate which documents it intends to use at trial, so that the Prosecution can prepare itself and inspect properly those documents. Sub-rule 67(C), however, deals with the reciprocal obligation on the Defence to allow the Prosecution to inspect any books, documents, photographs and tangible objects, which it intends to use at trial. In other words, the Sub-rule provides that, if the Defence is going to use a certain document at trial and it has previously asked for similar disclosure from the Prosecution under Sub-rule 66(B), it is obliged to allow the Prosecution to inspect those documents beforehand. In this case, the Defence received all of the documents under discussion in this Motion from the Prosecution itself. The Prosecution has had a chance to inspect those documents beforehand, since the original documents are still in its possession. This Motion is, in other words, not intended to obtain the disclosure of particular documents, but, on the contrary, to gain an insight into the Defences strategy at trial.
7. The rationale of Sub-rule 67 is not, however, to oblige the Defence to expose to the Prosecution exactly which documents it will use at trial. As previously set out in the Decision on the Application filed by the Defence for the Accused Zejnil Delalic and Esad Landzo on 14 February 1997 and 18 February 1997 respectively (The Prosecutor v. Delalic et al. (IT-96-21-T), Trial Chamber II, 21 February 1997, (RP D2776-D2784) par. 10), the Defence is not required to give a list of witnesses to the Prosecution. Neither is it obliged to give a list of those documents which it intends to use at trial. There is no reciprocal obligation placed on the Defence due to the fact that the Prosecution has provided the Defence with such a list of documents.
For the foregoing reasons,
THE TRIAL CHAMBER,
FINDS that the Defence is not obliged to provide the Prosecution with a list of documents it intends to use at trial under Sub-rule 67 (C) of the Rules,
and, therefore, REJECTS the Motion by the Prosecution.
Done in both English and French, the English text being authoritative.
Adolphus G. Karibi-Whyte
Dated this eighth day of September 1997,
At The Hague,
[Seal of the Tribunal]