Case No. IT-01-48-T


Judge Liu Daqun, Presiding
Judge Florence Ndepele Mwachande Mumba
Judge Amin El Mahdi

Mr. Hans Holthuis

Decision of:
21 July 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

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”);

BEING SEISED of the “Prosecution Motion to Call Rebuttal Evidence”, filed publicly on 14 July 2005 with a confidential annex (“Motion”), by which the Prosecution requests the admission into evidence of the statement of a witness (“Witness”) pursuant to Rules 85(A)(iii) and 92bis(B) of the Rules of Procedure and Evidence (“ Rules”), and to which the Defence responded by its “Response to Prosecution Motion to Call Rebuttal Evidence”, filed partly confidentially on 18 July 2005 (“Response”);

NOTING the “Prosecution’s Application for Leave to Reply to ‘Response to Prosecution Motion to Call Rebuttal Evidence’”, filed publicly with a confidential annex on 20 July 2005;

NOTING the Prosecution submission that it was “not on notice until the afternoon of 7 July 2005 [when Defence Witness J testified] that a Defence witness could provide evidence of reports being compiled by members of the command of the Prozor Independent Battalion in relation to the Uzdol killings;”1

NOTING the Prosecution submission that the witness statement rebuts evidence by Defence Witness J as “pure rebuttal evidence [ …which] rebuts a specific piece of defence evidence that the Prosecution could not have anticipated in its own case would have been adduced in the Defence case”;2

NOTING that the Defence in the Response opposes the admission into evidence of the witness statement on several grounds, including that “the matter sought to be rebutted by the prosecution does not arise directly and specifically out of the Defence evidence (…and( should have been part of the prosecution case”;3 that the Prosecution did not confront Defence Witness J with the statement “despite having it in its possession”;4 and that the statement “does not in fact rebut the evidence of Witness J”;5

NOTING the standard established by the Appeals Chamber for the admission of rebuttal evidence pursuant to Rule 85(A)(iii) of the Rules, which requires that the evidence “must relate to a significant issue arising directly out of defence evidence which could not reasonably have been anticipated”;6

CONSIDERING that the Prosecution is under a duty to “adduce all evidence critical to the proving of the guilt of the accused by the close of its case”7 and that the Prosecution “cannot call additional evidence merely because its case has been met by certain evidence to contradict it”;8

NOTING that the Indictment alleges that the Accused “did not take steps to carry out a proper investigation to identify the perpetrators of the killings in ?…g Uzdol and as a commander of the Operation to punish them accordingly”;9

NOTING further that the Prosecution in the Motion stated that its case against the Accused in relation to the killings in Uzdol on 14 September 1993 is “that the Accused, Sefer Halilovic, failed to punish the perpetrators of the murders. A necessary initial step in the punishment process is to initiate an investigation. The Prosecution case is that the Accused, as the commander of the units responsible for the murders , failed to take even the most basic step on ordering an investigation into the murders upon receiving the necessary inquiry notice of the deaths”;10

NOTING that the Defence Pre-trial Brief in clear terms put the Prosecution on notice that one of the most important issues for the Defence case is the contention that the Accused informed his superiors of the killings in Uzdol and requested that investigative action be taken within the Army of Bosnia and Herzegovina;11

NOTING that the Defence on several occasions in cross-examination during the Prosecution’s case-in-chief brought up the issue of investigative action as a result of the Uzdol killings;12

NOTING that the witness statement partly concerns the issue of whether investigations into the killings in Uzdol were carried out;

NOTING that the witness statement is dated 17 August 2001 and consequently has been in the Prosecution’s possession for several years;

CONSIDERING that the Prosecution should have led the evidence in the witness statement during its case-in-chief as this concerns a matter which is important to the Prosecution case and which did not arise out of the Defence case, and that a failure to do so cannot be compensated for by submitting the evidence as rebuttal evidence;

CONSIDERING THEREFORE that the witness statement does not meet the standard for admission of evidence in rebuttal;

CONSIDERING FURTHER that the witness statement would not have been capable of rebutting the testimony of Witness J even if the standard for admission of evidence in rebuttal been met;


PURSUANT TO Rules 54, 85(A)(iii), and 92bis(B) of the Rules,


GRANTS leave to the Prosecution to reply, and

DISMISSES the requests contained in paragraph 22(b)-(c) of the Reply.

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

Judge Liu Daqun

Dated this twenty-first day of July 2005,
At The Hague,
The Netherlands

[Seal of the Tribunal]

1 - Motion, para. 9.
2 - Motion, para 10.
3 - Response, para. 5(iv).
4 - Response, para. 5(ii).
5 - Response, para. 5(vi).
6 - Prosecutor v Zejnil Delalic, Zdravko Mucic also known as “Pavo”, Hazim Delic, Esad Landzo also known as “Zenga” (Celebici”), Case No. IT-96-21-A, Appeal Judgement, 20 Feb 2001, para. 273.
7 - Prosecutor v Vidoje Blagojevic and Dragan Jokic, Case No. IT-02-60-T, Decision on Prosecution’s Motion to Admit Evidence in Rebuttal and Incorporated Motion to Admit Evidence under Rule 92 bis in Its Case on Rebuttal and to Re-open Its Case for a Limited Purpose, 13 Sept 2004, para. 6.
8 - Celebici Appeal Judgement, para. 275.
9 - Indictment, para. 34.
10 - Motion, para. 2.
11 - Defence Pre-trial Brief Filed in Accordance with Rule 65terF(i)(ii)(iii), 22 March 2003. paras 90 and 138.
12 - Transcript, 8 Feb 2005, T. 29ff; 24 Feb 2005, T. 16ff; 3 Mar 2005, T. 61ff; 31 Mar 2005, T. 54ff; see also exhibits D149, D228, and D234 which were admitted during the Prosecution’s case-in-chief.