Case No. IT-01-48-T

IN TRIAL CHAMBER I, SECTION A

Before:
Judge Liu Daqun, Presiding
Judge Amin El Mahdi
Judge György Szénási

Registrar:
Mr. Hans Holthuis

Decision of:
9 May 2005

The Office of the Prosecutor:

Mr. Philip Weiner
Ms. Sureta Chana
Mr. David Re
Mr. Manoj Sachdeva

Counsel for the Accused:

Mr. Peter Morrissey
Mr. Guénaël Mettraux

I. INTRODUCTION
1. TRIAL CHAMBER I, SECTION A (“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 (“Tribunal”) is seised of the “Motion for Prosecution Access to Defence Documents used in Cross-examination of Prosecution Witnesses”, filed by the Office of the Prosecutor (“Prosecution”) on 8 April 2005 (“Motion”). The Defence filed its “Response to Prosecution Motion Regarding Defence Cross-Examination Documents”, on 15 April 2005 (“Response”). In addition, both parties had the opportunity to present oral arguments related to this issue on a number of occasions, such as during the Pre -Trial Conference of 24 January 2004 and during the trial hearings of 2 and 11 March 2005. The Trial Chamber’s decision takes into due consideration all relevant arguments raised by the parties.

2. In its Motion the Prosecution requests that the Trial Chamber orders the Defence to provide the Prosecution either:

   (a) “with a list of documents that it intends to use in cross-examination in a timely manner before the cross-examination commences so that the Prosecution may on its own print out the material before cross-examination commences,”¹ or

   (b) “with paper copies of the documents used in cross-examination at the close of the Prosecution’s examination in chief”.²

   The Prosecution submits, inter alia, that the practice in the present trial according to which the documents that the Defence intends to use during cross-examination are electronically released to the Prosecution at the time the documents are actually shown to the witness in court has created “an unfortunate procedural unfairness to the Prosecution”,³ since Prosecution counsel are forced to read “on a computer screen a document which they may be sighting for the first time, while the witness is being cross-examined on its contents”,⁴ this being particularly prejudicial when the documents released are longer than one single page.⁵ The Prosecution also submits that the electronic retrieval of documents in cross-examination “hinders the ability of Prosecution counsel to represent the Prosecutor in court and to assist the Trial Chamber in its determination of the admissibility of documentary evidence ”.⁶ The Prosecution concludes by stating that as a result of the practice used in the present trial “the Prosecution has no real access to Defence documents”,⁷ and Article 20 (1) of the Statute of the Tribunal (“Statute”) is violated because “?ag fair trial requires an equality of arms in cross-examination on documents”.⁸

3. The Defence in its Response argues that the Prosecution submissions are without merit and that the Motion must be denied in full. In its oral submissions the Defence submitted that it is not practice before the Tribunal that the Defence provides the Prosecution in advance with the documents that it wishes to use during cross-examination, and that the Defence does not intend to do this unless there is an order in this respect from the Trial Chamber.⁹ The Defence stated that providing such a list to “the Court and the court deputy ” before the cross-examination is a necessity because of the electronic court system (“E-court system”) employed in the present trial.¹⁰ However, since such a list could include documents that the Defence might ultimately decide not to use while cross-examining a particular witness, the list should remain confidential and should not be given to the Prosecution.¹¹

4. Both parties acknowledge that when reviewing lengthy documents, the “system is slow”, ¹² and that alternative solutions for such cases might be envisaged, such as the availability of the document in the hardcopy form.
   II. DISCUSSION

5. The Trial Chamber finds that the Motion, in the light of the oral arguments presented by both parties, raises two different issues: first, whether the Defence is under an obligation to provide in advance the Prosecution with the documents or a list of documents that it intends to use during cross-examination of a Prosecution witness; and secondly, whether the E-court system and its new practices cause prejudice to the parties’ access to documents used in court.

   1. Whether the Defence is under an obligation to provide in advance the Prosecution with documents it intends to use in cross-examination

6. The Trial Chamber, during the Pre-Trial Conference of 24 January 2005, requested, inter alia, that “?tgo facilitate the proceedings, the party calling the witness or presenting evidence through the witness shall provide a list of witnesses and documents to the court deputy one or two days before ?the witness is called to give evidenceg”,¹³ and also stated that “there is not a strict requirement for the party cross-examining the witness to present ?a list of documents to be usedg beforehand”.¹⁴ The Trial Chamber finally stated that it will rely on the parties’ “bona fide attitude”¹⁵ in this respect.¹⁶

7. The Trial Chamber notes that there is no provision in the Rules of Procedure and Evidence (“Rules”) or any established practice before the Tribunal which imposes an obligation upon the Defence to provide the Prosecution in advance with the documents or a list of documents that it intends to use during cross-examination of a witness. The first question before the Trial Chamber is therefore whether such an obligation would follow from the principle of “equality of arms” as enshrined in the Statute of the Tribunal.

8. Pursuant to Articles 20 and 21 of the Statute the trial must be fair and expeditious and must be governed by the established international law principle of "equality of arms". According to the jurisprudence of the Tribunal the principle of “equality of arms” should be interpreted in favour of both parties and not only in favour of the accused, meaning that the Prosecution and the Defence must be equal before the Trial Chamber.¹⁷ This application of the concept of a fair trial in favour of both parties relies on the fact that the Prosecution acts on behalf and in the interests of the international community, including the interests of the victims of the offences charged.¹⁸

9. However, pursuant to Article 21 (3) of the Statute, according to which the accused shall be presumed innocent until proved guilty, the burden of proof lies with the Prosecution, which must establish beyond reasonable doubt the guilt of the accused. While the Prosecution has a duty to prove its case, the accused has not to prove his defence. Until the end of the Prosecution case, therefore, the Prosecution needs to establish its case independently, without requiring the Defence to reveal anything. More in particular, the Trial Chamber notes that, under the Rules, the Defence has certainly a duty to disclose information and documents to the Prosecution but such disclosure is limited to: (1) providing in its pre-trial brief “in general terms, the nature of the accused’s defence”, as stated in Rule 65 ter (f) (i); (2) notifying the Prosecution of its intent to offer the defence of alibi or any special defence, including the defence of diminished or lack of mental responsibility, as required by Rule 67 (A) (i);¹⁹ and (3) filing after the close of the Prosecution’s case and before the commencement of the defence case, a list of witnesses that it intends to call and a list of exhibits that it intends to offer in its case, as provided for in Rule 65 ter (g). The Trial Chamber therefore observes that until the end of the Prosecution’s case, the Defence is not under any obligation to provide the Prosecution with any information that could reveal the strategy of its case – except for, as mentioned above, “ in general terms, the nature of the accused’s defence”,²⁰ and any special defence listed in Rule 67 (A) (i). It follows that during the Prosecution case the Defence is not obliged to provide in advance (not even at the beginning of cross-examination) the Prosecution with the documents or a list of documents which it intends to use during cross-examination of a witness, since the Defence might ultimately, even while conducting cross-examination, decide not to use all the documents originally planned to put to that particular witness. The Defence is therefore entitled to provide the Prosecution only with those documents actually used in court during cross-examination, at the time the documents are shown to the witness.

10. The Trial Chamber, however, notes that it is in the interests of justice that the parties are able to assist the Chamber in its determination of the admissibility of the evidence. In this respect, the Trial Chamber notes that the documents that the Defence may use during cross-examination are either documents originally disclosed to the Defence by the Prosecution pursuant to Rules 65 (E) (iii), 66 and 68 of the Rules, and therefore already within the possession of the Prosecution, or documents obtained from or belonging to the accused, which are not within the possession of the Prosecution. The Trial Chamber finds that in cases where a document that is not in the possession of the Prosecution is shown to the witness by the Defence in cross-examination, the Prosecution, if need be, may request to view the document before it is used in court, in order to test the document and therefore to assist the Trial Chamber in its determination of the admissibility of the document. In such cases, the Trial Chamber finds that it is in the interests of justice, if good cause shown, to grant the Prosecution the time necessary to view the document in its entirety.

11. Furthermore, the Trial Chamber notes that the Prosecution may, in any case, make its submissions as to the admissibility of the document introduced by the Defence in cross-examination at any time during cross-examination and re-examination of the witness. Moreover, if the Prosecution deems it necessary, it may request the Trial Chamber to make submissions regarding admissibility at a later stage.

12. As mentioned above, the Prosecution bears the burden of proof, throughout the whole proceedings. Moreover, the Prosecution must disclose its case against the accused from the very early stage of the proceedings and its disclosure obligation continues throughout the trial, under the above-mentioned Rules.²¹ The disclosure of material and information by the Prosecution is fundamental to the fairness of the proceedings before the Tribunal. The Defence must be put on notice of the case and the evidence on which the Prosecution intends to rely at trial and should therefore not be taken by surprise by the Prosecution introducing new documents during the examination or cross-examination of witnesses. The Trial Chamber therefore endorses the view that in order to avoid a possible prejudice to the accused, which might result from the Prosecution introducing documents in the cross-examination of a witness which the Defence had never had the opportunity to review, the Prosecutor must “bona fide disclose to […] the accused at the earliest available opportunity and, at the latest, prior to cross-examination, any new material it wishes to submit to a defence witness in cross-examination, in order to give the accused due notice”.²²

13. After having found that as a general principle the Defence is not required to provide in advance the Prosecution with the documents or a list of documents to be used in cross-examination, the Trial Chamber will now examine whether the use of the E-court system might limit this general principle.

    2. E-court system

14. The Trial Chamber recognises that the present trial, as a pilot project, is using an E-court system, which allows the electronic presentation and management of evidence and ensures that all evidence introduced at trial is available to both parties in electronic form from the moment the evidence is used in court. The Trial Chamber furthermore notes that both parties have agreed to work with this system and to cooperate during this pilot project.

15. The E-court system, as opposed to the Prosecution’s “Sanction” software, is designed to permit simultaneous display in-court of documents in several languages, and therefore it allows the Accused and the witness, as well as the parties to view the documents in a language they understand.

16. The Trial Chamber notes that up to this stage of the proceedings, the great majority of the documents that the Defence used during cross-examination were originally disclosed to the Defence by the Prosecution and therefore already within the possession of the Prosecution. The Trial Chamber also notes that documents which the Defence decides to use during cross-examination but which are not within the possession of the Prosecution are electronically disclosed in-court to the Prosecution at the time the documents are shown to the witness. Thus, the Prosecution is granted full access to their contents.

17. While recognising that counsel of both parties may have preferences as to the way the evidence is presented, the Trial Chamber fails to see a material difference between viewing a document for the first time on hardcopy or on a computer screen.

18. One of the main purposes of the E-court system is to improve the efficiency of the trial proceedings, inter alia by reducing the need to rely on hardcopy documents, without causing any prejudice to the rights of the parties. The Trial Chamber finds that the new court practices resulting from the use of the E-court system, insofar as the retrieval and perusal of electronic documents is concerned, do not negatively impact on the parties and do not disturb the equality between them. The Trial Chamber therefore finds that the Prosecution’s argument suggesting the existence of procedural inequality between the parties or unfairness caused by the E-court system is unfounded.

19. However, the Trial Chamber acknowledges that the E-court system is a new system, which the parties, as well as the Bench, need to get used to and make full use of. The Trial Chamber therefore stresses that any difficulties encountered must be brought to the attention of the section of the Tribunal charged with the operation of the E-court system, and urges the parties to do so.
    III. DISPOSITION

20. For the foregoing reasons, pursuant to Rule 54 of the Rules, this Trial Chamber DENIES the Motion and URGES the parties to continue to display a bona fide attitude with respect to the E-court system in order to facilitate the proceedings.

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

_______________
Judge Liu Daqun
Presiding Judge

Dated this ninth day of May 2005,
At The Hague,
The Netherlands.

[Seal of the Tribunal]