Case No.: IT-01-48-PT


Judge Richard May, Presiding
Judge Patrick Robinson
Judge O-Gon Kwon

Mr. Hans Holthuis

Decision of:
14 November 2003







The Office of the Prosecutor

Mr. Ekkehard Withopf
Ms. Maria Tuma

Counsel for the Accused

Mr. Stefan Kirsch
Mr. Guénaël Mettraux


THIS TRIAL 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 "Defence Motion for Identification of Suspects and Other Categories Among Its Proposed Witnesses" filed by the Defence of Sefer Halilović ("Accused") on 8 October 2003 ("Motion"), requesting that the Office of the Prosecutor ("Prosecution") provide to the Defence (i) a list identifying the details of the proposed witnesses in relation to the status of "suspect"; (ii) all information collected by the Prosecution suggesting that any of its proposed witnesses may have committed or may have taken part in the commission of any criminal offence; and (iii) disclosure of any favourable arrangements made between the Prosecution and the proposed witnesses,1

NOTING the "Prosecution’s Response to Defence Motion for Identification of Suspects and Other Categories Among Its Proposed Witnesses" filed by the Prosecution on 21 October 2003 ("Response"), requesting the Trial Chamber to deny the Motion in its entirety,

NOTING the "Defence Reply Re Motion Identification of Suspects and Related Categories" filed partly confidentially by the Defence on 23 October 2003 ("Reply"), without first seeking leave of the Trial Chamber pursuant to Rule 126 bis of the Rules of Procedure and Evidence of the International Tribunal ("Rules"), stating that the Defence was satisfied with certain parts of the Response,2

NOTING the "Motion for Leave to Add-Defence Reply Re Motion Identification of Suspects and Related Categories" filed by the Defence on 5 November 2003 seeking leave to file a reply and requesting the Trial Chamber to regard the seek for leave as having been validly filed pursuant to Rule 127(A)(ii) of the Rules,3

NOTING that Rule 126 bis of the Rules requires a reply to a response to be filed within seven days of the filing of the response, with the leave of the Trial Chamber,

NOTING that Rule 127 of the Rules allows the Trial Chamber to recognise as validly done any act done after the expiration of a time so prescribed on such terms, if any, as is thought just and whether or not that time has already expired,

NOTING that disclosure under Rule 66(B) of the Rules has been initiated by the Defence, which would allow the Defence to request from the Prosecution permission to inspect any books, documents, photographs and tangible objects in the custody or control of the Prosecution, which are material to the preparation of the defence,

CONSIDERING that the obligations for the Prosecution under Rule 68 of the Rules include the disclosure to the Defence the existence of material known to the Prosecutor that "may affect the credibility of the prosecution evidence,"

CONSIDERING that it is within the sole discretion of the Prosecution whether to deem an individual a "suspect" and whether to enter into a favourable arrangement, if any, with an individual,

CONSIDERING that the scope of all information requested by the Defence under falls within the disclosure obligations of the Prosecution but that the degree of specificity required by the Defence such as the production of a list, witnesses in relation to the status of "suspect" is not an obligation on the part of the Prosecution,

CONSIDERING HOWEVER that the existence of favourable arrangements between the Prosecution and a proposed witness may indeed go to the credibility of Prosecution’s evidence,

PURSUANT TO Rules 54, 126bis and 127 of the Rules,

HEREBY GRANTS the Motion in part and ORDERS as follows:

  1. the Defence is hereby granted leave to file the Reply;
  2. the Prosecution shall provide to the Defence, within seven (7) days of this Decision, a list identifying those proposed witnesses who have entered into favourable arrangements, if any, that may go to the credibility of Prosecutions’ evidence; and

DISMISSES the Motion in all other respects.


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

O-Gon Kwon
Pre-Trial Judge

Dated this fourteenth day of November 2003
At The Hague
The Netherlands

[Seal of the Tribunal]

1. Motion paras 3-5.
2. The Defence was satisfied with the Response pertaining to its request under (ii) in paragraph 2 of this Decision.
3. An addendum attaching a case from the High Court of Australia (Pollitt v. The Queen) was filed on 31 October 2003. However, no other explanation was given by the Defence beyond a statement that the attached case was an addendum to its Motion or Reply and that the Defence considered it ‘relevant to the issue to be decided by the Trial Chamber.’ See "Addendum-Authorities," Prosecutor v. Sefer Halilović, Case No. IT-01-48-PT, 31 Oct. 2003.