The Trial Chamber heard the parties at the status conferences on 14 June and on 4 July 2000 respectively.

The Decision

Pursuant to Articles 20(1), 21(2) and 21(4)(e) of the Statute and Rules 54, 67 and 127 of the Rules, Trial Chamber I authorized the Defence of accused Zoran Zigic to pursue a defense of alibi for the facts referred to in paragraph 34(d) of the indictment and to call the witnesses listed in the Motion.

Pursuant to Rule 67(A)2, the Trial Chamber considered that the Defence is required to notify the Prosecutor of its intent to offer a defence of alibi "as early as reasonably practicable and in any event prior to the commencement of the trial".

Trial Chamber I noted that the trial started on 28 February 2000, that the Prosecution was provisionally notified of Zoran Zigic’s intent to use a defence of alibi on 13 June 2000 and that the final notification coincided with the official filing of the Motion on 26 June 2000.

The Judges considered that, contrary to the Defence contention, Rule 67(B)3 "does not authorise an accused to put forward witnesses in support of a defence of alibi when the Prosecution has not been notified within the time frame stipulated in Rule 67(A)"4. The Trial Chamber added that "this paragraph merely specifies that Rule 67(A) should not be read as limiting the right of the accused to testify in his own defense, which is guaranteed in Rule 85(C)"5.

The Judges considered, however, that Rule 127(A)6 "authorises the Chamber to enlarge any time prescribed under the Rules on showing of good cause by motion"7.

Trial Chamber I noted that the Defence argued that the defence of alibi would be used "to defend what it regards as the gravest offence charged against the accused" and that the Prosecution had stated that it would not suffer any prejudice if the Chamber allowed Zoran Zigic to present a defence of alibi, "that it would be able to respond to the defence without being granted any additional time" and that the trial would not be delayed by the granting of this motion.

(a) 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;
(b) any special defence, including that of diminished or lack of mental responsibility; in which case the notification shall specify the names and addresses of witnesses and any other evidence upon which the accused intends to rely to establish the special defence."

3. "Failure of the defence to provide notice under this Rule shall not limit the right of the accused to testify on the above defences."
4. On the alibi notice, see The Prosecutor v. Dusko Tadic, Case No. IT-94-1-T, Trial Chamber II, in which the Defence sent an alibi notice to the Prosecutor on 10 April 1996, and subsequently an amended notification ex Rule 67(A)(ii)(a) on 3 May 1996. See also paragraphs 478 to 528 of the Opinion and Judgement rendered on 7 May 1997.
See also The Prosecutor v. Delalic et al. ("Celebici"), Case No. IT-96-21, in which the accused Esad Landzo filed a Motion Requesting Subsequent Submission of a Notice to the Prosecutor Offering the Defence of Alibi on 14 January 1997. Trial Chamber II granted the request in its Order Disposing of Motions filed by the Defence rendered on 27 January 1997: "[...] the Motion [...] is granted, such Notice having already been served on the Prosecution" (para. 3).
5. "If the accused so desires, the accused may appear as a witness in his or her own defence."
6. "Save as provided by Sub-rule (B), a Trial Chamber may, on good cause being shown by motion,

(i) enlarge or reduce any time prescribed by or under these Rules;
(ii) recognize as validly done any act done after the expiration of a time so prescribed on such terms, if any, as is thought just and whether or not that time has already expired."