Case No.: IT-01-48-PT


Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy

Mr. Hans Holthuis

Decision of:
30 September 2004







The Office of the Prosecutor

Mr. Vladimir Tochilovsky
Ms. Maria Tuma

Counsel for the Accused

Mr. Peter Morrissey
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 "Defence Renewed Motion to Stop Investigation and for other Relief" filed on 6 July 2004 ("Defenceís Renewed Motion") by the Defence, seeking orders pursuant to Rule 54 of the Rules of Procedure and Evidence ("Rules") that the Office of the Prosecutor ("Prosecution") (i) cease all investigation; (ii) stop re-interviewing witnesses unless exceptional circumstances exist and leave is granted; (iii) explain the nature and extent of the ongoing investigation and the reasons thereof; (iv) identify material collected by the Prosecution since 12 March 2004 which has not been disclosed and seek leave to disclose it; (v) substantiate the reasons for the delay in disclosing item 5 (annexed to the Prosecutionís Application of 7 May 2004); (vi) be refused permission to add any new witnesses or exhibits to its list of proposed witnesses for trial; (vii) to be particularly vigilant in assessing the exculpatory character of the Rule 68 material in its possession; and (viii) direct the Registry to have due regard to the need of the Defence for adequate resources,

BEING FURTHER SEISED of the partly confidential "Prosecutionís Application for Leave to Disclose Rule 66(A)(ii) Material Pursuant to Trial Chamberís Decision of 7 May 2004" filed on 26 July 2004 ("Prosecutionís Motion") seeking leave of the Trial Chamber to disclose to Counsel for Sefer Halilovic material which falls under Rule 66 (A)(ii) of the Rules,

NOTING the Prosecutionís Response to the Defenceís Renewed Motion to Stop Investigation filed on 19 July 2004 ("Prosecutionís Response") requesting the Trial Chamber to reject the Defenceís Renewed Motion on the grounds that (i) the issues raised are res judicata; (ii) disclosure has been in accordance with the rulings of the Trial Chamber; (iii) there is nothing in the Rules nor the Statute of the International Tribunal that prevents the Prosecution from continuing its investigations after an indictment is confirmed; and (iv) the case against the Accused has not changed,

NOTING the confidential Defence Response to Prosecutionís Motion for Leave to Disclose Rule 66 (A) Material filed on 9 August 2004 ("Defenceís Response") stating, inter alia, that the "Defence does not object to the present Motion as indeed the Prosecution has a duty pursuant to Rule 66(A)(ii) to disclose to the Defence the material in question and that it is in the interests of justice that such material should indeed be disclosed,"1

NOTING that the Prosecution was ordered to complete all disclosure by 15 December 2003,2

NOTING that Prosecutionís Motion was submitted pursuant to the Trial Chamberís decision of 7 May 2004 ("Decision"),3 which ordered that, unless otherwise agreed between the parties, any further disclosure of material falling under Rule 66(A)(ii) of the Rules shall only be made with leave of the pre-trial Judge and that the Prosecution shall provide the pre-trial Judge with information regarding the material,4

NOTING that, in the Prosecutionís Motion, leave is sought to disclose the material as set out in the confidential annex thereto ("Material") because the Defence has not agreed to its disclosure without leave5 and because the Material was received after the 15 December 2003 deadline,6

CONSIDERING the rights of the Accused including the right to adequate time and facilities for the preparation of his defence as set forth in Article 21 of the Statute,

CONSIDERING the Prosecutionís obligations on disclosure under the Rules and in particular Rule 68, which imposes a continuing obligation on the Prosecution to disclose all known exculpatory material, that these obligations should be discharged with due diligence, and that any request for leave to disclose material will be considered on its merits,

CONSIDERING that, on this occasion, the Defence does not object to the Prosecutionís Motion to disclose the Material,

CONSIDERING that the Prosecution is required at all times to complete its disclosure obligations with due diligence and that continued disclosure of material on a piecemeal basis over an extended period of time is an inefficient use of the resources available to both parties and not in the interests of the good administration of justice, and may, if such practice continues without justification, adversely affect the rights of the Accused pursuant to Article 21 of the Statute to be informed of the case against him and to have adequate time and facilities for the preparation of his defence.

PURSUANT TO Rules 54 and 66 of the Rules,

HEREBY DENIES the Defenceís Renewed Motion, GRANTS the Prosecutionís Motion and ORDERS the Prosecution to disclose the Material to the Defence forthwith.

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

Patrick Robinson

Dated this thirtieth day of September 2004
At The Hague
The Netherlands

[Seal of the Tribunal]

1. Defenceís Response, para. 4.
2. Prosecutor v. Halilovic, Pre-Trial Conference, 15 July 2003, T. 142.
3. Prosecutor v. Halilovic, Case No. IT-01-48-PT, "Decision on Defence Objection to Prosecution Continued Disclosure," 7 May 2004.
4. The Trial Chamber ordered:
(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 (b) 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.
5. Prosecutionís Motion, para. 2
6. Prosecutionís Motion, para. 3.