Case No. IT-01-48-PT

Before:
Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Bert Swart

Registrar:
Mr. Hans Holthuis Decision of:
7 May 2004

PROSECUTOR

__________________________________

The Office of the Prosecutor:

Mr. Ekkehard Withopf
Mr. Vladimir Tochilovsky
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 a "Defence Objection to Prosecution Continued Disclosure" filed by counsel for the accused, Sefer Halilovic, on 12 March 2004, the response of the Office of the Prosecutor ("Prosecution") filed on 23 March 2004 and corrigendum filed on 24 March 2004, the "Defence Reply re Objection to Prosecution Continued Disclosure" filed on 30 March 2004 and the "Prosecution’s Further Reply to Defence Reply re Objection to Prosecution Continued Disclosure" filed on 6 April 2004, for which two latter filings leave of the Trial Chamber is sought,

NOTING that the defence complains of the continued disclosure of material by the Prosecution pursuant to Rule 66 (A)(ii) and Rule 68 of the Rules of Procedure and Evidence of the International Tribunal ("Rules") after the date set by the pre-trial Judge for completion of such disclosure and seeks orders to the Prosecution: (1) to sign an undertaking or otherwise confirm that it has now disclosed all Rule 66 (A)(ii) and Rule 68 material which is presently in its possession; and (2) to stop any further investigation of the Prosecution case,

CONSIDERING all the arguments of the parties as set forth in the filings,

CONSIDERING that the Prosecution confirmed to the Trial Chamber on 15 December 2003 that disclosure pursuant to Rule 66 (A)(ii) and Rule 68 was complete¹,

CONSIDERING that the Trial Chamber seeks 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, 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,

PURSUANT to Rules 65 ter, 66, 67 (C) and 68 bis of the Rules,

HEREBY GRANTS THE MOTION in part and ORDERS as follows:

1. the Defence and Prosecution filings of 30 March 2004 and 6 April 2004 are accepted;

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

   1. 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

   2. 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;

3. 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 (2) above; and

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

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

_______________
Judge Patrick Robinson
Presiding

Dated this seventh day of May 2004
At The Hague
The Netherlands

[Seal of the Tribunal]