The Prosecutor v. Sefer Halilovic - Case No. IT-01-48-PT

“Decision on Defence Objection to Prosecution Continued Disclosure”

7 May 2004
Trial Chamber III (Judges Robinson [Presiding], Kwon and Swart)

Procedural Background

· On 12 March 2004, the Defence for Sefer Halilovic filed the “Defence Objection to Prosecution Continued Disclosure” whereby it complained about the continued disclosure of material by the Prosecution, pursuant to Rule 66(A)(ii)¹ and Rule 68² of the Rules of Procedure and Evidence (“Rules”), after the date set by the pre-trial Judge for completion of such disclosure. It sought an order from the Chamber that the Prosecution: 1. sign an undertaking or otherwise confirm that it has now disclosed all Rule 66(A )(ii) and Rule 68 material presently in its possession; and 2. stop any further investigation of the Prosecution’s case.

· The Prosecution filed its response on 23 March 2004, the Defence filed its reply on 30 March 2004, and the Prosecution filed a further reply on 6 April 2004.

Decision

The Trial Chamber expressed its willingness “to balance the need for expeditious preparation of the case pursuant to Rule 65 ter of the Rules, which requires that the Prosecution disclose all material subject to Rule 66 (A)(ii) and Rule 68 of the Rules within the time-frame set by the pre-trial Judge,³ with the overriding interests of justice, which require that full and complete disclosure of all relevant material be made to the defence at whatever stage of the proceedings, provided that the defence has adequate time and resources to examine such material and prepare its case”.⁴

The Trial Chamber granted the Motion in part and inter alia ordered the following :

1. the Prosecution shall provide the Trial Chamber with copies of all material disclosed to the Defence after 15 December 2003, setting out:

(a) for each item disclosed pursuant to Rule 66 (A)(ii), the circumstances in which the additional material was obtained, the reason why the material was not disclosed within the time-frame set by the pre-trial Judge, and identifying any new material or allegations not already raised in other statements of the same witness already disclosed; and
(b) for each item disclosed pursuant to Rule 68, identifying whether the material forms part of a collection of material made available to all Defence teams in electronic form and, if not, explaining why the material was not available for disclosure within the time-frame set by the pre-trial Judge;

2. unless otherwise agreed between the Prosecution and the Defence, any further disclosure shall only be made with the leave of the pre-trial Judge and the Prosecution shall, prior to such disclosure, provide him with the information set out in operative paragraph (1) above; and

3. the Prosecution shall provide the Defence with an index of material available for inspection pursuant to Rule 66 (B).

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1. Rule 66(A)(ii) (Disclosure by the Prosecutor) reads:
“(A) Subject to the provisions of Rules 53 and 69, the Prosecutor shall make available to the defence in a language which the accused understands
[…]
(ii) within the time-limit prescribed by the Trial Chamber or by the pre-trial Judge appointed pursuant to Rule 65 ter, copies of the statements of all witnesses whom the Prosecutor intends to call to testify at trial, and copies of all written statements taken in accordance with Rule 92 bis; copies of the statements of additional prosecution witnesses shall be made available to the defence when a decision is made to call those witnesses.”
2. Rule 68 (Disclosure of Exculpatory and Other Relevant Material) reads:
“(A) The Prosecutor shall, as soon as practicable, disclose to the Defence any material which in the actual knowledge of the Prosecutor may suggest the innocence or mitigate the guilt of the accused or affect the credibility of Prosecution evidence.
(B) Without prejudice to paragraph (A), the Prosecutor shall make available to the defence, in electronic form, collections of relevant material held by the Prosecutor, together with appropriate computer software with which the defence can search such collections electronically.
(C) The Prosecutor shall take reasonable steps, if confidential information is provided to the Prosecutor by a person or entity under Rule 70 (B) and contains material referred to in paragraph (A) above, to obtain the consent of the provider to disclosure of that material, or the fact of its existence, to the accused.
(D) The Prosecutor shall apply to the Chamber sitting in camera to be relieved from an obligation under the Rules to disclose information in the possession of the Prosecutor, if its disclosure may prejudice further or ongoing investigations, or for any other reason may be contrary to the public interest or affect the security interests of any State, and when making such application, the Prosecutor shall provide the Trial Chamber (but only the Trial Chamber) with the information that is sought to be kept confidential.
(E) Notwithstanding the completion of the trial and any subsequent appeal, the Prosecutor shall disclose to the other party any material referred to in paragraph (A) above.”
3. The Prosecution had been ordered to finish its Rule 68 disclosure by 15 December 2003.
4. In the Blaskic case, the Appeals Chamber held on 26 September 2000 that the Prosecution has a continuing obligation to disclose exculpatory evidence at the post-trial stage (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, Judicial Supplement No. 19).