The Prosecutor v. Radoslav Brdjanin- Case No. IT-99-36-T

Decision on Rule 68¹

30 October 2002
Trial Chamber II (Judges Agius [Presiding], Janu and Taya)

Procedural Background

· On 17 October 2002, Defence Counsel for Brdjanin filed a “Motion for Relief from Rule 68 Violations by the Prosecutor and for Sanctions to be Imposed Pursuant to Rule 68 bis and Motion for Adjournment while Matters Affecting Justice and a Fair Trial Can Be Resolved” (hereinafter the “Motion”).

The Decision

The Trial Chamber instructed the Prosecution inter alia to disclose the original versions, redacted as necessary, of any exculpatory material previously disclosed in a summarised form and of any exculpatory material contained in the Confidential Interviews and the Stakic Interviews.

The Reasoning

Rule 68 disclosure²

The context of Rule 68

The rationale behind Rule 68, discussed in the Blaskic case in the Decision on the Production of Discovery Material, is that the disclosure to the Defence of evidence which might exculpate the accused is the sole responsibility of the Prosecution.³ If the Defence believes that the Prosecution has not complied with Rule 68, the Defence must first prove that the requested information is in the possession of the Prosecution and must second “present a prima facie case which would make probable the exculpatory nature of the materials sought.”⁴ If the Trial Chamber finds that the Prosecution has failed to comply with Rule 68, the Trial Chamber will examine whether or not the Defence has been prejudiced and will decide whether or not to apply Rule 68 bis, i.e. whether or not to impose sanctions.

Admissibility of exculpatory evidence in a summarised form

The Trial Chamber recalled the Blaskic Decision on the Appellant’s Motions for the Production of Material, Suspension or Extension of the Briefing Schedule , and Additional Filings of 26 September 2000⁵ whereby the Appeals Chamber stated that the provision to the Defence of exculpatory evidence in the possession of the Prosecution is connected to the principle of a fair trial.

In the view of the Trial Chamber the principle of a fair trial has two implications with regard to the meaning of Rule 68. First it requires that disclosure of evidence be made in sufficient time. Second, within the context of a fair trial, “the obligation to disclose exculpatory material implies the disclosure of the exculpatory material in its original form, and not in the form of a summary”. The Trial Chamber emphasised that “only the sections that contain the exculpatory material should be provided to the Defence, not the whole document”.⁶

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1. The full title of the Decision is: “Decision on ‘Motion for Relief from Rule 68 Violations by the Prosecutor and for the Prosecutor and for Sanctions to Be Imposed Pursuant to Rule 68 bis and Motion for Adjournment while Matters Affecting Justice and a Fair Trial Can Be Resolved”.
2. Rule 68 (Disclosure of Exculpatory Material) The Prosecutor shall, as soon as practicable, disclose to the defence the existence of material known to the Prosecutor which in any way tends to suggest the innocence or mitigate the guilt of the accused or may affect the credibility of prosecution evidence.
3. Blaskic, IT-95-14-PT, Decision on the Production of Discovery Materials, 27 January 1997, para. 47.
4. Ibid., para. 50.
5. Blaskic, 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. 41, Judicial Supplement No. 19.
6. Para. 26.