Case No.
IT-03-68-T
IN TRIAL CHAMBER II
Before:
Judge Carmel Agius, Presiding
Judge Hans Henrik Brydensholt
Judge Albin Eser
Registrar:
Mr. Hans Holthuis
Decision of:
13 December 2005
PROSECUTOR
v.
NASER ORIC
______________________________________________
DECISION ON ONGOING COMPLAINTS ABOUT PROSECUTORIAL
NON-COMPLIANCE WITH RULE 68 OF THE RULES
______________________________________________
The Office of the Prosecutor:
Mr. Jan Wubben
Ms. Patricia Sellers Viseur
Mr. Gramsci di Fazio
Ms. JoAnne Richardson
Counsel for the Accused:
Ms. Vasvija Vidovic
Mr. John Jones
BACKGROUND AND SUBMISSIONS
- Trial Chamber II (“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 (“Tribunal”) is seized
of various submissions by counsel for Naser Oric (“Defence” and “Accused”,
respectively) and the Office of the Prosecutor (“Prosecution”)
containing ongoing complaints about alleged non-compliance
by the Prosecution with its disclosure obligations
pursuant to Rule 68 of the Tribunal’s Rules of Procedure
and Evidence (“Rules”).
- Complaints concerning alleged non-compliance
with Rule 68 of the Rules have been a recurrent
feature in this case.1
As explained in more detail below, the Trial Chamber’s
prior dealing with a violation of Rule 68 of the Rules
gave rise to numerous filings by both parties, as well
as to new complaints by the Defence of Rule 68 violations.
The Trial Chamber finds it appropriate to address
these matters in a single consolidated Decision.
The Trial Chamber’s Previous Decision
- On 27 October 2005, the Trial Chamber issued
a “Decision on Urgent Defence
Motion Regarding Prosecutorial non-Compliance With
Rule 68” (“Trial Chamber’s Decision”) in which it
found that the Prosecution had violated its obligations
under Rule 68 of the Rules by not having disclosed
to the Defence material which may suggest the innocence
or mitigate the guilt of the Accused or affect the
credibility of Prosecution evidence (“Rule 68 Material”)
relating to a certain named Serb volunteer, as well
as other Rule 68 Material related to Serbian ethnic
cleansing in the locations covered by the indictment
against the Accused (“Indictment”).2
- As a consequence of that finding, the Trial
Chamber ordered the Prosecution to conduct a thorough
and complete search for Rule 68 Material relevant
to the Defence and to provide the Trial Chamber
with a declaration stating what searches have been
made, where they have been made and the results
of such searches and to immediately disclose to
the Defence any further Rule 68 Material in its
possession, which had not previously been disclosed.3
- In order to address any prejudice to the Accused
resulting from the non-disclosure of that material,
the Trial Chamber also invited the Defence to indicate
the names of any Prosecution witnesses it wished
to call for further cross-examination in light of
the newly disclosed material, as well as the names
of any additional witnesses who may give evidence
on these matters.4
The Prosecution Declaration
- On 11 November 2005, the Prosecution filed
a partly confidential “Declaration
Stating Searches, Location of Searches, and Results
of Searches as Ordered by the Trial Chamber on the
27th of October 2005” (“Prosecution Declaration”).
Pursuant to the Trial Chamber’s orders, the Prosecution
states that it has completed searching the material
in its possession as regards witnesses, victims,
perpetrating organisations, locations, and other
areas in which the Defence had indicated a special
interest, with respect to Rule 68 Material.5
No additional Rule 68 Material was discovered and disclosed
to the Defence. The Prosecution however acknowledges
that it is under a continuing obligation to disclose
Rule 68 Material to the Defence.6
Defence Responses
Response to the Trial Chamber’s Decision
- In response to the Trial Chamber’s Decision, which
contained an invitation to indicate the names of
any witnesses it wished to produce as a remedy for
the Rule 68 violation acknowledged by the Trial
Chamber, the Defence on 17 November 2005 filed a “Defence
Response to Decision on Urgent Defence Motion Regarding
Prosecutoral non-Compliance with Rule 68” (“Response
to the Trial Chamber’s Decision”). The Defence
submits that, at the present stage of the proceedings,
re-calling Prosecution witnesses would not only
disrupt the orderly presentation of Defence evidence,
it would even amount to a de facto re-trial
because it considered that all Prosecution
witnesses would have to be re-called. According
to the Defence, Rule 68 violations by the Prosecution
are ongoing, and therefore, witnesses would need
to be re-called on a rolling basis, which would
be unacceptable in view of the imperative to secure
an expeditious trial.7
- As a new example of a Rule 68 violation, the
Defence attaches a document concerning responsibility
for the detention of Serb detainees, which has not
previously been disclosed to it by the Prosecution
and the contents of which appear to be exculpatory
(“First Incident”).8 The
Defence, however, does not suggest what concrete
measures the Trial Chamber should take in order
to remedy any possible prejudice to the Accused.
Rather, the Defence leaves it to the Trial Chamber
to “understand what the
necessary consequences are of this finding.”9
Response to the Prosecution Declaration
- Also on 17 November 2005, the Defence filed
a “Defence Response to Prosecution
Declaration Stating Searches, Location of Searches,
and Results of Searches as Ordered by the Trial
Chamber on the 27th of October 2005” (“Response to
the Prosecution Declaration”). Therein, the Defence
reiterates previous complaints that the Prosecution
has not provided it with Rule 68 Material in relation
to various subject-matters, including material concerning
the Bosnian Serb strategy of ‘ethnic cleansing’
and different Bosnian Serb paramilitary formations,
despite having requested the Prosecution to do so.10 Again,
the Defence does not propose a remedy other than that
the Trial Chamber issue “appropriate
directions to the Prosecution to ensure immediate compliance
with its disclosure obligations.”11
Prosecution Submissions
Reply to the Response to the Trial Chamber’s Decision
- On 28 November 2005, the Prosecution filed
a “Prosecution Response to the Defence
Motion Providing its Response to Decision on Urgent
Defence Motion Regarding Prosecutorial non-Compliance
with Rule 68, and Fresh Violation of Rule 68” (“Reply
to the Response to the Trial Chamber’s Decision”),12
and on 2 December 2005, it filed a corrigendum thereto.13
In respect of the new allegations of a Rule 68 violation,
the Prosecution concedes that the document concerning
Serb prisoners was not disclosed to the Defence due
to an oversight.14 The
Prosecution however contends that minimal prejudice
to the Accused has been caused because the Defence
had knowledge of the events referred to in that document
by virtue of other evidence adduced previously during
the proceedings.15
The Prosecution further submits that, since the Defence
has not availed itself of the possibility to re-call
Prosecution witnesses or to call new witnesses, there
is no basis for the imposition of other procedural
remedies.16
- The Prosecution further submits that the calling
of additional witnesses would in fact be a viable
option for the Defence. It rejects the Defence objection
to the additional consumption of time, as the fairness
of a trial should take precedence over its expediency.
Therefore, it is suggested, the Trial Chamber should
order the Defence to re-call Prosecution witnesses
or to call new witnesses, if this is found to constitute
an appropriate remedy.17
Reply to the Response to the Prosecution Declaration
- On 24 November 2005, the Prosecution filed
a “Prosecution Motion for Leave
to Reply to the Defence Response to the Prosecution
Declaration Stating Searches, and Results of Searches
as Ordered by the Trial Chamber on the 27th of October
2005” (“Reply to the Response to the Prosecution
Declaration”), consisting of a
request for leave to reply to the Response to the Prosecution
Declaration,18
as well as substantive submissions in reply.
- The Prosecution denies all allegations made
by the Defence in the Response to the Prosecution
Declaration with respect to shortcomings in its obligations
under Rule 68 of the Rules, and maintains that it
has comprehensively provided the Defence with material
in its possession covering the areas indicated by
the Defence, with further disclosure ongoing.19 The
Prosecution requests that the Trial Chamber refrain
from issuing any orders beyond those previously
given in the Trial Chamber’s Decision.20
Further submission
Defence Rejoinder to Prosecution Declaration
- On 2 December 2005, the Defence filed a “Rejoinder
to Prosecution Reply Regarding Prosecution Declaration
of 11 November 2005 Stating Searches and Results
of Searches
” (“Rejoinder Regarding Prosecution Declaration”),
in which the Defence characterises the Reply to the
Response to the Prosecution Declaration as “non-responsive” to
its concerns.21 The Defence
further requests that the Prosecution (i) produce
itemised spreadsheets of each document the disclosure
of which has been reviewed, (ii) provide sworn declarations
regarding the fate of certain documents the Defence
presumes to be Rule 68 Material, which were seized
from and subsequently sent back to Banja Luka, and
finally, (iii) respond to several of its enquiries.22
Further Rule 68 Violation
- On 25 November 2005, the Defence filed a “Further
Communication Regarding non -Compliance With Rule
68” (“Further Rule 68 Submission”), claiming that
the Prosecution had not disclosed yet another document,
the contents of which appears to be exculpatory
in relation to responsibility for wanton destruction
in Ratkovici (“Second Incident
”).23 Had
it been aware of this material earlier, the Defence
states that it might have contacted the provider of
this exculpatory information.24
- On 2 December 2005, the Prosecution filed a “Prosecution
Response to the Defence Motion Concerning Further
Communication Regarding non-Compliance With Rule
68” (“Response to Further Rule 68 Submission”). The
Prosecution concedes that the undisclosed material
of the Second Incident falls within the ambit of
Rule 68 of the Rules, but claims that no prejudice
to the Accused results from that omission, because
the information is self-contradictory and also because
other witnesses called by the Defence have given
evidence even more favourable to the Defence’s
case on the issue of responsibility for wanton destruction
in Ratkovici than the information contained in the
undisclosed document.25
Furthermore, the Prosecution submits that the Defence
is bound by Rule 67(C) of the Rules to immediately
disclose that evidence or material.26
- On 9 December 2005, the Defence filed a “Reply
to Prosecution Response to the Defence Motion Concerning
Further Communication Regarding non-Compliance With
Rule 68” (“Reply to Further Rule 68 Submission”),
in which it requests that the Trial Chamber make
a finding of a Rule 68 violation.27
With regard to Rule 67(C) of the Rules, the Defence
contends that it has no duty to “police the activities
of the Prosecution” and submits that it will raise
Rule 68 complaints when it is appropriate to do so
in the interests of the Accused.28
- Also in the Reply to Further Rule 68 Submission,
the Defence alleges yet another Rule 68 violation
with respect to a different paragraph of the same
document which had not been disclosed to the Defence
in the Second Incident (“Additional Matter
”).29 The
Prosecution responds that even if this new incident
is to be found Rule 68 Material, there has been minimal
prejudice to the Accused since one of its witnesses
has given identical evidence.30 In
reply, the Defence maintains that a Rule 68 violation
should be found.31
DISCUSSION
Has the Prosecution failed to comply
with its obligations under Rule 68 of the Rules?
- Rule 68(i) of the Rules provides:
[T]he Prosecutor shall, as soon as practicable, disclose
to the Defence any material which in the actual
knowledge of the Prosecutor may suggest the innocence
or mitigate the guilt of the accused or affect the
credibility of Prosecution evidence[.]
- The jurisprudence of the Tribunal is clear
that, in pursuit of justice, the disclosure of Rule
68 Material to the Defence is of paramount importance
to ensure the fairness of proceedings before this
Tribunal.32
The determination of what material might fall within
the limits of Rule 68 of the Rules is a fact-based
judgement made by and under the responsibility of the
Prosecution.33 It is this
Trial Chamber’s firm
opinion that in view of the imperative to provide a
fair trial to an accused, considerations of fairness
must be the overriding factor in making that determination.34
- This being said, the Trial Chamber is well
aware of the enormous amount of documents contained
in the archives of the Prosecution and the practical
implications this has for the requirement of disclosure
of Rule 68 Material.
- In the present case, the Prosecution does not
contest that the documents underlying the First
Incident and the Second Incident constitute Rule
68 Material and thus should have been disclosed
to the Defence.35
With respect to the Additional Matter raised in the
Defence Reply to Further Rule 68 Submission, the Trial
Chamber notes that the allegation concerns non-disclosure
of a paragraph within the same document as in the
Second Incident. However, bearing in mind that, in
pursuit of justice, fairness must be the decisive factor
guiding the actions of the Prosecution, the Trial
Chamber finds that the document in question should
indeed have been disclosed to the Defence earlier.
- With the exception of the mentioned two incidents,
the Trial Chamber is unable to make a finding that
the Prosecution is in violation of its obligations
with regard to disclosure of other Rule 68 Material.
In the absence of prima facie evidence
pointing to the contrary, and considering the Prosecution
Declaration, which was ordered as a remedy to a
previously established Rule 68 violation, the Trial
Chamber will assume that the Prosecution acts in
good faith and complies with its duties under Rule
68 with respect to other areas where the Defence
claims that material is not properly disclosed.36
What prejudice, if any, has been caused
to the Accused?
- Having found the Prosecution to be in breach
of its obligations under Rule 68 of the Rules, as
established above, the Trial Chamber will now examine
what material prejudice, if any, the Accused has
suffered as a result of these violations.37
First Incident
- The Defence states that it was deprived of
using the document in question during cross-examination
of Prosecution witnesses.38
The Prosecution, however, is of the opinion that minimal
prejudice results out of the First Incident for the
Accused, as the Defence had knowledge of the events
described in the undisclosed document through other
Defence evidence.39
- The Trial Chamber notes that in the First Incident,
the Prosecution failed to disclose to the Defence
information touching upon the issue of authority
over Serb prisoners, which in turn is of immediate
relevance to the charges of murder and cruel treatment
(counts 1 and 2) in the Indictment. At this juncture,
the Trial Chamber will not entertain any speculation
regarding the probative value of the undisclosed
document, had it been available to the Defence earlier.
Suffice it to say that the information given in
the undisclosed document is referred to in exactly
the same terms in Defence exhibit D245,40
which has been available to the Defence as of February
2005.41
- As a general rule, if Rule 68 Material is known
and reasonably accessible to the defence, material
prejudice cannot be shown.42
The Trial Chamber notes that, on the one hand, when
compared to exhibit D245, the undisclosed document
in the First Incident provides no additional information
as such: both documents note that the Srebrenica Chief
of Police asked a certain Avdic what to do with Serb
prisoners captured at Karno. Yet on the other hand,
it is true that, had the original document, as opposed
to merely a derivative, been available to the Defence
during the Prosecution case of the proceedings, it
could have been used by the Defence during cross-examination.
Therefore, the Trial Chamber finds that the Accused
has suffered prejudice, albeit not to any significant
extent, by the non-disclosure of the document related
to the First Incident.
Second Incident
- The Defence claims that it was deprived of
contacting the provider of the exculpatory information
regarding responsibility for wanton destruction in
Ratkovici, or to make use of this material otherwise.43
The Prosecution essentially contends that no prejudice
has been caused to the Accused in the Second Incident
because of the more favourable nature of evidence given
by other Defence witnesses.44
- As regards the Second Incident, the Trial Chamber
notes that the information contained in the undisclosed
document concerns, inter alia, the question
of responsibility for destruction caused in Ratkovici,45
and is thus of relevance to the charges of wanton destruction
(counts 3 and 5) in the Indictment. However, bearing
in mind the testimony given so far by both Prosecution
and Defence witnesses regarding wanton destruction
in the village of Ratkovici and its hamlets, the Trial
Chamber agrees with the Prosecution that the undisclosed
document contains information of a generally similar
nature. As a result, the Accused was not prejudiced
as a result of the non-disclosure of this document.
Additional Matter
- As noted by the Trial Chamber before, the alleged
Rule 68 violation raised by the Defence in the Additional
Matter pertains to the same undisclosed document
underlying the Second Incident.46
Notwithstanding the Trial Chamber’s prior finding that
this document as a whole constitutes Rule 68 material
and should have, therefore, been made available to
the Defence earlier, the Trial Chamber notes that
the Defence has raised this complaint only in the
Reply to Further Rule 68 Submission.
- It is true, of course, that the Defence is
under no obligation to make any objection or to
monitor the conduct of the Prosecution. At the same
time, the Trial Chamber notes that the Defence did
not raise the Additional Matter when it filed its
Further Rule 68 Submission, which dealt with the
failure to disclose precisely the same document.
Provided that an alleged non-compliance with the
Rules is proved and that it has caused material
prejudice to the objecting party, Rule 5(B) of the
Rules grants a Trial Chamber the discretion whether
or not to grant relief where an objection is not
made at the earliest opportunity.47
Furthermore, there being no indication of a material
prejudice to the Accused considering that the same
information was already available to him, the Trial
Chamber would not in any event see the need to grant
any relief to the Defence.
What measures should be imposed to remedy
the prejudice and to prevent further violations
of Rule 68 of the Rules?
- The Trial Chamber recalls its earlier observation
that in the practice of this Tribunal, violations
of Rule 68 of the Rules is governed less by a system
of sanctions than by the Judges’ definitive evaluation
of the evidence presented by either of the parties,
and the possibility which the opposing party will
have had to contest it.48
- With the exception of the request that the
Prosecution be ordered to perform certain activities,49 the
Defence has only invited the Trial Chamber to draw
the appropriate conclusions from these new instances
of Rule 68 violations. In this context, the Trial
Chamber notes the reasons provided by the Defence
for not calling or re-calling further witnesses.50
- The considerable number of submissions giving
rise to the present Decision demonstrates that the
disclosure practice adopted by the Prosecution during
the proceedings has not been satisfactory. The Trial
Chamber notes with concern that Rule 68 violations
and allegations of such breaches have been a recurrent
theme in this case.
- In light of the above, the Trial Chamber will
respond to the Rule 68 violations established above
at its definitive evaluation of the evidence presented
by the Prosecution, and consider the possibility
of drawing the reasonable inferences in favour of
the Accused with respect to specific evidence which
has been the subject of a Rule 68 violation.
DISPOSITION
- For the reasons stated above, the Trial Chamber
ENJOINS the Prosecution to make all efforts
in the future to comply with all obligations imposed
on it pursuant to Rule 68(i) of the Rules and
RESERVES the right to draw the reasonable inferences
in favour of the Accused with respect to specific
evidence which has been the subject of a violation
of Rule 68 of the Rules.
Done in French and English, the English version being
authoritative.
Dated this thirteenth day of December 2005,
At The Hague
The Netherlands
_______________________
Carmel Agius
Presiding Judge
[Seal of the Tribunal]
1 -
This far, the Trial Chamber needed to rule on such
complaints on five occasions: Oral Decision on ‘Confidential Defence
Motion to Request an Order for Measures to Ensure
that the Prosecution Complies With Rule 68’, 28
September 2004; Decision on Urgent Defence Motion
Regarding Late Disclosure of Evidence and to Recall
a Witness, 30 November 2004; Decision on Motion Regarding
Authenticity of Documents and non-Compliance With
Rule 68, 17 March 2005; Decision on Defence Complaints
Raised Orally During the Proceedings, 29 September
2005; Decision on Urgent Defence Motion Regarding
Prosecutorial non-Compliance With Rule 68, 27 October
2005.
2 - Trial
Chamber’s Decision, p. 2, 4. The Prosecution conceded
orally that Rule 68 of the Rules had been violated,
T. 12589, 12771.
3 - Trial
Chamber’s Decision, p. 5.
4 - Ibid.,
p. 5.
5 - Prosecution
Declaration, paras 14-21, 23-35.
6 - Ibid.,
paras 38-39.
7 - Response
to the Trial Chamber’s Decision, paras 7, 11, 17, 18.
8 - Ibid.,
paras 19-36. The document in question bears ERN 03592911
and is an undated note by the Srebrenica SJB Commander
to a certain Avdic, asking what should be done with
nine Serb prisoners captured at Karno.
9 - Ibid.,
para. 38.
10 - Response
to the Prosecution Declaration, paras 2-33.
11 - Ibid.,
para. 37.
12 - The
Prosecution appears to take the view that the Defence ‘Response
to the Trial Chamber’s Decision’ is in fact a motion,
to which it is entitled to respond.
13 - Corrigendum
to the Prosecution Response to the Defence Motion Providing
its Response to Decision on Urgent Defence Motion Regarding
Prosecutorial non-Compliance with Rule 68, and Fresh
Violation of Rule 68, 2 December 2005.
14 - Reply
to the Response to the Trial Chamber’s Decision, paras
4-7.
15 - Reply
to the Response to the Trial Chamber’s Decision, paras
9, 11-18. The Prosecution refers specifically to exhibits
D245 and D866, as well as the testimony of Prosecution
witnesses Hakija Meholjic, Bezir Bogilovic and Mustafa
Sacirovic.
16 - Ibid.,
paras 10, 23-26.
17 - Reply
to the Response to the Trial Chamber’s Decision, paras
27-32, 36-37.
18 - Reply
to the Response to the Prosecution Declaration, para.
2.
19 - Ibid.,
paras 4-52.
20 - Ibid.,
para. 56.
21 - Rejoinder
Regarding Prosecution Declaration, paras 2, 5-11.
22 - Ibid.,
paras 11, 44, 51.
23 - Further
Rule 68 Submission, paras 2-8. The document in question
bears ERN 02147815-02147816 and contains interview
notes of a Prosecution investigator with an individual
who had stated that Muslim civilians burned the village
of Ratkovici.
24 - Ibid.,
para. 7.
25 - Response
to Further Rule 68 Submission, paras 3, 5, 9, 11-14.
The Prosecution refers to Defence witnesses Omer Ramic
and Hamid Tiro.
26 - Ibid.,
para. 1. Rule 67(C) of the Rules provides as follows: “If
either party discovers additional evidence or material
which should have been disclosed earlier pursuant to
the Rules, that party shall immediately disclose that
evidence or material to the other party and the Trial
Chamber.”
27 - Reply
to Further Rule 68 Submission, paras 8-9.
28 - Ibid.,
para. 2.
29 - Ibid.,
paras 4-7. In the interview notes of the Prosecution
investigator (cf. fn. 24 supra), there is a paragraph
where the interviewee states that “prisoners would
first be delivered to the Domavia Hotel” where Hakija
Meholjic had his headquarters. The Defence contends
that this is exculpatory material based on other evidence
that Hakija Meholjic was not under the command of the
Accused (para. 6).
30 - Transcript
of 9 December 2005 (T.), page 14772, referring to the
testimony of Prosecution witness Hakija Meholjic.
31 - T.
page 14773. The Defence further contends that this
material would go to undermine the credibility of Hakija
Meholjic and should thus have been available before
his cross-examination.
32 - Prosecutor
v. Radoslav Brdjanin, Case No. IT-99-36-T, Decision
on Motion for Relief from Rule 68 Violations by the
Prosecutor and for Sanctions to be Imposed Pursuant
to Rule 68bis and Motion for Adjournment while
Matters Affecting Justice and a Fair Trial can be Resolved,
30 October 2002 (“Brdjanin Decision”), paras
22-25; Prosecutor v. Tihomir Blaskic, Case No.
IT-95-14-T, Decision on the Production of Discovery
Materials, 27 January 1997 (“Blaskic Decision”),
paras 47-50; Prosecutor v. Dario Kordic and Mario Cerkez,
Case No. IT-95-14/2-A, Decision on Motions to Extend
for Filing Appelants’ Briefs, 11 May 2001, para. 14.
33 - Brdjanin Decision,
para. 30.
34 - Prosecutor
v. Radislav Krstic, Case No. IT-98-33-A, Judgement,
19 April 2004 (“Krstic Appeal Judgement”), para.
180.
35 - Reply
to the Response to the Trial Chamber’s Decision, paras
4-7; Response to Further Rule 68 Submission, para.
3.
36 - Blaskic Decision,
para. 50.
37 - Prosecutor
v. Tihomir Blaskic, Case No. IT-95-14-A, Judgement,
29 July 2004 (“Blaskic Appeal Judgment”), para.
268; Krstic Appeal Judgment, para. 153.
38 - Response
to the Trial Chamber’s Decision, para. 36.
39 - Reply
to the Response to the Trial Chamber’s Decision, paras
9, 11-18.
40 - Ibid.,
p. 2.
41 - Reply
to the Response to the Trial Chamber’s Decision, para.
11.
42 - Prosecutor
v. Tihomir Blaskic, Case No. IT-95-14-A, Decision
on the Appellant’s Motions for the Production of Material,
Suspension or Extension of the Briefing Schedule, and
Additional Filings, 26 September 2000, para. 38.
43 - Further
Rule 68 Submission, para. 7.
44 - Response
to Further Rule 68 Submission, paras 3, 5, 9, 11-14.
45 - Ratkovici
is one of the villages mentioned in the Indictment
(para. 30).
46 - Reply
to Further Rule 68 Submission, paras 4-7.
47 - Rule
5(B) of the Rules reads: “Where such an objection is
raised otherwise than at the earliest opportunity,
the Trial Chamber may in its discretion grant relief
if it finds that the alleged non-compliance is proved
and that it has caused material prejudice to the objection
party.” (emphasis added) The Trial Chamber understands
that it is this Rule, as opposed to Rule 67(C) of the
Rules, which governs the issue.
48 - Trial
Chamber’s Decision, p. 3, citing to Prosecutor v.
Tihomir Blaskic, Case No. IT-95-14-T, Decision
on the Defence Motion for Sanctions for the Prosecutor’s
Continuing Violation of Rule 68, 28 September 1998,
p. 3; Prosecutor
v. Radoslav Brdjanin, Case No. IT-99-36-T, Decision
on Motion for Relief from Rule 68 Violations by the
Prosecutor and for Sanctions to be Imposed Pursuant
to Rule 68bis and Motion for Adjournment while Matters
Affecting Justice and a Fair Trial can be Resolved,
30 October 2002, para. 23.
49 - Rejoinder
to Prosecution Declaration, para. 51.
50 - See Response to
the Trial Chamber’s Decision, paras 7,
11, 17, 18.