Case No.: IT-95-14-A


Judge Fausto Pocar, Presiding
Judge Florence Mumba
Judge Mehmet Güney
Judge Wolfgang Schomburg
Judge Inés Mónica Weinberg de Roca

Mr. Hans Holthuis

Decision of:
12 May 2004







Counsel for the Prosecutor:

Mr. Norman Farrell

Counsel for the Appellant:

Mr. Anto Nobilo
Mr. Russell Hayman


THE APPEALS CHAMBER of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991 ("International Tribunal"),

BEING SEISED of the "Prosecutionís Request for Leave to Respond to Rule 68 Allegations made during oral submissions by Appellant" filed confidentially on 25 March 2004 ("Prosecutionís Request"), wherein the Prosecution seeks leave to file material in rebuttal of the Appellantís allegation that the Prosecution failed to produce exculpatory material in violation of the duty prescribed in Rule 68 of the Rules of Procedure and Evidence of the International Tribunal ("Rule 68"), and in violation of the Appellantís rights under Article 21(4) (b) and (c) of the Statute of the International Tribunal;

NOTING the "Appellantís Objection to Prosecutionís Request for Leave to Respond to Rule 68 Allegations made during oral submissions by Appellant" filed on 29 March 2004, wherein the Appellant objects to the Prosecutionís Request, claiming it is an attempt to supplement the Prosecutionís briefing on appeal and re-argue the merits of matters already argued before the Appeals Chamber, and that it is also in violation of the Practice Direction on the Length of Briefs and Motions (IT/184/Rev. 1) dated 5 March 2002;

NOTING that the Prosecution claims that if there is the possibility that the Appellantís argument could be interpreted by the Appeals Chamber as an allegation that Counsel for the Prosecution deliberately withheld evidence known to be exculpatory during the Blaskic trial, then the Prosecution must be given the opportunity to respond1;

NOTING the "Appellantís Brief on Appeal", filed confidentially on 14 January 2002, and the Revised Redacted Version, filed on 4 July 2002 ("Appellantís brief ") wherein the Appellant argues that by failing to comply with its disclosure obligations pursuant to Rule 68, the Prosecution materially prejudiced the Appellantís ability to present his defence and thereby deprived him of a fair trial;2

CONSIDERING that the Prosecutionís Request refers to the hearing on appeal held on 16 December 2003, when it indicated that if the Appellant asserted that any non-disclosure of exculpatory material was intentional, the Prosecution would seek leave to file material to rebut the allegation;3

CONSIDERING that the submissions in the Appellantís brief already suggested that the Prosecutionís alleged breach of its duties pursuant to Rule 68 was not unintentional;4

NOTING the Prosecutionís Respondentís Brief filed confidentially on 1 May 2002, and the Public Redacted Version of the Prosecutionís Respondentís Brief, filed on 14 June 2002 ("Respondentís brief") wherein the Prosecution submits that the Appellant failed to indicate how and why he claims to have been prejudiced by the Prosecutionís conduct in relation to disclosure;5

CONSIDERING therefore, that the Prosecution has had a chance to respond to the Appellantís allegations and it did so;

CONSIDERING that the parties have had ample opportunity to argue the matter in their briefs, and in fact they did;

HEREBY DISMISSES the Prosecutionís Request.

Done in both English and French, the English text being authoritative.

Done this twelfth day of May 2004
At The Hague,
The Netherlands.

Fausto Pocar
Presiding Judge

[Seal of the Tribunal]

1. Prosecutionís Request, para.4.
2. Appellantís brief, Revised Redacted Version pp 120-123.
3. Appeal Transcript, pp 729-730 (closed session).
4. "The Prosecutorís motive in withholding the production of Rule 68 material is clear: the Prosecutor sought the freedom to present alternative and mutually exclusive versions of the "facts" to the tribunal in different trials." Appellantís brief, Revised Redacted Version, p 121.
5. Respondentís brief, Public Redacted Version, paras 4.82 to 4.102.