Judge Patrick Robinson, Presiding
Judge Richard May
Judge Mohamed Fassi Fihri

Mr. Hans Holthuis

Decision of:
31 August 2001







The Office of the Prosecutor:

Mr. Dirk Ryneveld
Ms. Julia Baly
Mr. Daryl Mundis

Counsel for the Accused:

Mr. Veselin Londrovic and Mr. Michael Greaves, for Dusko Sikirica
Mr. Vladimir Petrovic and Mr. Goran Rodic, for Damir Dosen
Mr. Ivan Lawrence and Mr. Jovan Ostojic, for Dragan Kolundzija


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 ("the International Tribunal"),

BEING SEISED of the "Defendant, Dragan Kolundzija’s Motion Pursuant to Rule 68 to Compel Disclosure of all Exculpatory Evidence in the Possession of the Office of the Prosecutor" filed by counsel for the accused, Dragan Kolundzija, on 26 July 2001 ("the Motion"), seeking disclosure pursuant to Rule 68 of the Rules of Procedure and Evidence of the International Tribunal ("the Rules") of certain material known or believed to be in the possession of the Office of the Prosecutor ("the Prosecution") which may tend to suggest the innocence or mitigate the guilt of the accuse or affect the credibility of the Prosecution evidence,

NOTING the response of the Prosecution filed on 31 July 2001 ("the Response"), in which the Prosecution opposes the Motion on the grounds:

(a) that the Motion does not identify a legitimate forensic purpose for access to these materials;

(b) if granted, it would circumvent the procedure for reciprocal disclosure set out in Rules 66 (B) and 67 (C) of the Rules;

(c) if granted, it would cause a disproportionate burden for the Prosecution and delay the proceedings; and

(d) if granted, it would vitiate the discretion provided to the Prosecution under Rule 68 to assess whether material is exculpatory,

NOTING the oral submissions of the parties made on 27 August 2001,

CONSIDERING that Rule 68 of the Rules places an obligation on the Prosecution to disclose to the Defence the existence of material known to the Prosecution which tends to suggest the innocence or mitigate the guilt of the accused or which may in any way affect the credibility of prosecution evidence,

CONSIDERING that the accused could have obtained access to items "material to the preparation of the defence" by invoking the reciprocal disclosure provisions of Rules 66 (B) and 67 (C),

CONSIDERING the assertion by the Prosecution that it has complied fully with its obligations under Rule 68,

CONSIDERING that in such circumstances the obligation lies with the Defence to establish to the satisfaction of the Trial Chamber that there are other materials within the scope of Rule 68 in the possession of the Prosecution1,

CONSIDERING that the Defence has failed so to satisfy the Trial Chamber,

PURSUANT TO Rules 54 and 68 of the Rules



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

Patrick Robinson

Dated this thirty-first day of August 2001
At The Hague
The Netherlands

[Seal of the Tribunal]

1. For the relevant standard to be applied see, e.g., Decision on the application of the accused Zejnil Delalic for disclosure of evidence, Prosecutor v. Delalic et al, Case No, IT-96-21-T, T. Ch. II, 26 Sept. 1996; Decision on the Defence Motion for sanctions for Prosecutor’s repeated violations of Rule 68 of the Rules of Procedure and Evidence, Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-PT, T. Ch. I, 29 Apr. 1998; Separate Opinion of Judge David Hunt on Motion by Esad Landzo to preserve and provide evidence, Prosecutor v. Delalic et al, Case No, IT-96-21-A, A. Ch., 22 Apr. 1999.