"Decision on Prosecution Motion for Clarification in Respect of Applcation of Rules 65 ter, 66(B) and 67(C) "

1 August 2001
Trial Chamber III (Judges May [Presiding], Robinson and Fassi Fihri)

Procedural Background

• On 25 June 2001, the Office of the Prosecutor filed a Motion in which it sought clarification of its obligations in respect of the application of Rules 65 ter, 66(B) and 67(C) of the Rules of Procedure and Evidence. The Prosecution had identified 800 "core" documents on which it intended to rely at trial and of which nearly 400 had already been disclosed to the Defence. The Motion concerned the remainder of the documents.

Submissions of the Parties

• The Prosecution argued that the reciprocal disclosure provisions of Rules 66(B)1 and 67(C)2 are substantive and have primacy over Rule 65 ter (E)(iii)3 which is purely procedural. It relied on a ruling of Trial Chamber I in The Prosecutor v. Radislav Krstic4 that to force it to disclose the exhibits in its list where the reciprocal disclosure provisions had not been triggered would create an imbalance in the equality of arms and that there was therefore no obligation on the Prosecution to do so.

• Defence Counsel submitted that true equality of arms requires disclosure of the exhibits since the Prosecution has access to material to which the Defence does not.

The Decision

The Trial Chamber ordered the Prosecution to serve on the Defence the balance of the core documents together with all documents listed pursuant to Rule 65 ter(E)(iii).

The Reasoning

Trial Chamber III first noted that the above-mentioned ruling of Trial Chamber I was an exception and that the usual practice of the Prosecution, as followed in the cases The Prosecutor v. Slavko Dokmanovic5, Milan Kovacevic6, Zoran Kupreskic et al.7, Dragoljub Kunarac et al.8, Milorad Krnojelac9, Dario Kordic & Mario Cerkez10, Dusko Sikirica et al.11 and Milan Simic et al.12, had been to engage in open pre-trial disclosure without relying on the reciprocal disclosure provisions. Trial Chamber III considered "that this practice should be followed rather than that favoured by Trial Chamber I."

The Trial Chamber held that "[t]he Prosecution, by not disclosing the documents prior to trial", placed the Defence in a position in which it would not be able to prepare properly. It emphasised that this was "likely to lead to a violation of the principle of equality of arms."

Accordingly, the Trial Chamber interpreted "the requirement in Rule 65 ter (E)(iii) for the Prosecution to file a list of exhibits to mean that the exhibits themselves should be filed and disclosed."

The Trial Chamber did not accept the Prosecution's above-mentioned characterisation of the Rules nor that Rule 65 ter has precedence over Rules 66 and 68. It considered that "[t]o do so would mean that the only way that an accused could obtain disclosure of the Prosecution case would be by incurring a disclosure obligation" and that "[t]his would be to allow a narrow interpretation of the Rules to override elementary notions of a fair trial". The Trial Chamber pointed out that "whilst considering how conflicts in the Rules are to be resolved" it must take into account the requirement under the Statute "that the proceedings be fair and expeditious and that there be equality between the parties in the preparation for and conduct of trial."13 The Trial Chamber underscored the danger of a "literal interpretation of the Rules that read narrowly the rights and obligations of the parties, particularly where such interpretations compromise these requirements of fairness and expedition."

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1. "The Prosecutor shall, on request, permit the defence to inspect any books, documents, photographs and tangible objects in the Prosecutor’s 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."
2. "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 the trial."
3. Rule 65 ter, as amended at the 24th Plenary Session held from 11 to 13 July 2001 (IT/193), provides that:
"Once existing preliminary motions filed within the time-limit provided by Rule 72 are disposed of, the pre-trial Judge shall order the Prosecutor, within a time-limit set by the pre-trial Judge and before the Pre-Trial Conference required by Rule 73 bis, to file […] the list of exhibits the Prosecutor intends to offer stating where possible whether the defence has any objection as to authenticity."
4. The Prosecutor v. Radislav Krstic ("Srebrenica"), Case No. IT-98-33-PT, Trial Chamber I, Status Conference, 6 March 2000, Transcript, pages 398 to 400.
5. The Prosecutor v. Mile Mrksic et al. ("Vukovar Hospital"), Case No. IT-95-13a-T, Trial Chamber II.
6. The Prosecutor v. Milan Kovacevic et al., Case No. IT-97-24-T, Trial Chamber II.
7. The Prosecutor v. Zoran Kupreskic et al. ("Lasva River Valley"), Case No. IT-95-16-T, Trial Chamber II.
8. The Prosecutor v. Dragoljub Kunarac et al. ("Foca"), Case No. IT-96-23-T, Trial Chamber II.
9. The Prosecutor v. Milorad Krnojelac ("Foca – KP Dom Camp"), Case No. IT-97-25-T, Trial Chamber II.
10. The Prosecutor v. Dario Kordic & Mario Cerkez ("Lasva River Valley"), Case No. IT-95-14/2-T, Trial Chamber III.
11. The Prosecutor v. Dusko Sikirica et al. ("Keraterm Camp"), Case No. IT-95-8-T, Trial Chamber III.
12. The Prosecutor v. Milan Simic et al. ("Bosanski Samac"), Case No. IT-95-9-T, Trial Chamber III.
13. Article 21 of the Statute provides that:

"1. All persons shall be equal before the International Tribunal.
2. In the determination of charges against him, the accused shall be entitled to a fair and public hearing, subject to article 22 of the Statute.
3. The accused shall be presumed innocent until proved guilty according to the provisions of the present Statute.
4. In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality:

(a) to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;
(b) to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;
(c) to be tried without undue delay;
(d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;
(e) to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(f) to have the free assistance of an interpreter if he cannot understand or speak the language used in the International Tribunal;
(g) not to be compelled to testify against himself or to confess guilt."