The Prosecutor v. Radoslav Brdjanin and Momir Talic - Case No. IT-99-36-PT

"Decision on Prosecution Response to 'Defendant Brdjanin's
Pre-trial Brief'"

14 January 2002
Judge Agius, Pre-trial Judge

Procedural Background

· On 16 November 2001, Radoslav Brdjanin filed a three-page pre-trial brief.

· On 21 November 2001, the Prosecution responded. It complained that the brief violated the requirements of Rule 65 ter of the Rules of Procedure and Evidence and also sought an order that the accused files another brief complying with the Rule.

The Decision

The Trial Chamber ordered that Radoslav Brdjanin file a statement setting out his views on the legal issues in the case and specify, in particular, the aspects of the legal analysis in the Prosecution's pre-trial brief with which he takes issue and the reasons why he does.

The Reasoning

Rule 65 ter(F) of the Rules

Judge Agius reiterated that the Prosecution "is required to file a more detailed pre-trial brief addressing factual and legal issues and to provide information about its witnesses and the evidence" which will be given by those witnesses as well as the exhibits the Prosecution intends to use at trial pursuant to Rule 65 ter(E) of the Rules1.

The pre-trial Judge observed that "the defence pre-trial brief is primarily intended to be a response to the prosecution's pre-trial brief and should set some general boundaries for the trial prior to its commencement." Judge Agius also commented that it was "a tool for identifying areas of possible agreement between the parties so that the trial may be conducted as efficiently as possible." He added that "[t]he defendant is required to file a more detailed document at the close of the prosecution case and prior to the commencement of the defence case, which gives the prosecution and the Trial Chamber more information about the defence case and the evidence the defendant intends to adduce."

Alleged deficiencies in Radoslav Brdjanin's pre-trial brief

Judge Agius stated that the Trial Chamber could not agree that Radoslav Brdjanin had "failed to set out the general terms of his defence" and that, on the contrary, the accused had "set out the general terms of his defence very clearly and succinctly." The pre-trial Judge similarly stated that the Trial Chamber was not persuaded by the Prosecution's arguments that the accused had failed to identify the matters in the Prosecution's pre-trial brief with which he took issue or that he had "failed to adequately address factual issues in general." Judge Agius considered (1) that Radoslav Brdjanin had clearly stated that he had made no admissions of any kind, (2) that the accused had raised seven specific matters regarding the Prosecution's pre-trial brief and (3) that he had provided a short explanation as to why he was challenging the Prosecution's version of events. The pre-trial Judge concluded that the level of detail provided by the accused was "sufficient for the purposes of Rule 65 ter(F)"2 and specified that if the Prosecution requires additional clarification of any particular matter, it was "at liberty to raise it with the defence and, if necessary, the Trial Chamber." Judge Agius further interpreted the Rules as deferring the requirement for Radoslav Brdjanin "to provide more detailed information about the evidence forming part of his defence case until after the close of the prosecution's case".

The pre-trial Judge underscored that "Rule 65 ter(F) does not compel a defendant to include any information about his or her intended exhibits in the pre-trial brief" and that "the issue of reciprocal disclosure must be kept separate from issues" concerning the accused's pre-trial brief.

However, Judge Agius noted that Radoslav Brdjanin had "made no effort to assist the prosecution or the Trial Chamber to understand, even in the most general terms, what disputes exist between the parties" regarding legal issues. The Judge acknowledged that if the accused was permitted simply to say that he disagreed with the Prosecution's analysis of the law and that he would provide further details within a time-frame agreeable to him, "it would effectively nullify the requirement in Rule 65 ter(F) that a defendant address legal issues in his or her pre-trial brief." Judge Agius found that it was obvious that Radoslav Brdjanin had "made no effort whatsoever to identify or explain those aspects of the prosecution's analysis of the law" with which he took issue. As a result, the Judge considered that the accused had "not complied with the terms of Rule 65 ter(F)."

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1. Rule 65 ter(E) of the Rules, as amended at the 25th Plenary Session held on 12 and 13 December 2001 (IT/199 of 21 December 2001, published in Judicial Supplement No. 29), provides that:
"Once any existing preliminary motions filed within the time-limit provided by Rule 72 are disposed of, the pre-trial Judge shall order the Prosecutor, upon the report of the Senior Legal Officer, and within a time-limit set by the pre-trial Judge and not less than six weeks before the Pre-Trial Conference required by Rule 73 bis, to file the following:

(i) the final version of the Prosecutor's pre-trial brief including, for each count, a summary of the evidence which the Prosecutor intends to bring regarding the commission of the alleged crime and the form of responsibility incurred by the accused; this brief shall include any admissions by the parties and a statement of matters which are not in dispute; as well as a statement of contested matters of fact and law;
(ii) the list of witnesses the Prosecutor intends to call with:

(a) the name or pseudonym of each witness;
(b) a summary of the facts on which each witness will testify;
(c) the points in the indictment as to which each witness will testify, including specific references to counts and relevant paragraphs in the indictment;
(d) the total number of witnesses and the number of witnesses who will testify against each accused and on each count;
(e) an indication of whether the witness will testify in person or pursuant to Rule 92 bis by way of written statement or use of a transcript of testimony from other proceedings before the Tribunal; and
(f) the estimated length of time required for each witness and the total time estimated for presentation of the Prosecutor's case.

(iii) the list of exhibits the Prosecutor intends to offer stating where possible whether the defence has any objection as to authenticity. The Prosecutor shall serve on the defence copies of the exhibits so listed."

See The Prosecutor v. Momcilo Krajisnik & Biljana Plavsic ("Bosnia & Herzegovina"), Case No. IT-00-39 & 40-PT, Trial Chamber III, Decision on Prosecution Motion for Clarification in Respect of Application of Rules 65 ter, 66(B) and 67(C), 1 August 2001 (summarised in Judicial Supplement No. 26).
2. "After the submission by the Prosecutor of the items mentioned in paragraph (E), the pre-trial Judge shall order the defence, within a time-limit set by the pre-trial Judge, and not later than three weeks before the Pre-Trial Conference, to file a pre-trial brief addressing the factual and legal issues, and including a written statement setting out:

(i) in general terms, the nature of the accused's defence;
(ii) the matters with which the accused takes issue in the Prosecutor's pre-trial brief; and
(iii) in the case of each such matter, the reason why the accused takes issue with it.

(G) After the close of the Prosecutor's case and before the commencement of the defence case, the pre-trial Judge shall order the defence to file the following:

(i) a list of witnesses the defence intends to call with:

(a) the name or pseudonym of each witness;
(b) a summary of the facts on which each witness will testify;
(c) the points in the indictment as to which each witness will testify;
(d) the total number of witnesses and the number of witnesses who will testify for each accused and on each count;
(e) an indication of whether the witness will testify in person or pursuant to Rule 92 bis by way of written statement or use of a transcript of testimony from other proceedings before the Tribunal; and
(f) the estimated length of time required for each witness and the total time estimated for presentation of the defence case; and

(ii) a list of exhibits the defence intends to offer in its case, stating where possible whether the Prosecutor has any objection as to authenticity. The defence shall serve on the Prosecutor copies of the exhibits so listed."