Case No.: IT-01-48-PT


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

Mr. Hans Holthuis

Order of:
3 December 2004







Office of the Prosecutor:

Mr. Philip Weiner
Ms. Sureta Chana

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 the "Response Concerning Prosecution Amended Pre-Trial Brief", filed by the Defence on 27 October 2004 ("Response"), in which the Defence:

  1. sought leave to respond to the "Prosecution Motion to Amend its Pre-Trial Brief";1

  2. requested that the Chamber order the Prosecution to footnote its brief in a comprehensible way;2

  3. argued that the "proposed amendments" should be policed strictly by the Chamber,3 and specifically requested that the Chamber strike several sections of the Prosecutionís Pre-Trial Brief;4

  4. noted that it "would have tried to address the reformulated case of the Prosecution in its own [final pre-trial] brief" but that "the Defence is unfortunately not in a position to undertake the resubmission of its pre-trial brief even if such a possibility was open under the Rules";5

  5. argued that the Prosecution failed to conform its brief to evidence genuinely at its disposal;6 and

  6. requested that the Prosecution be ordered to provide updated witness and exhibit lists, and updated summaries of the facts about which each witness will testify,7

NOTING the "Prosecutionís Reply to Defence Response Concerning Prosecution Amended Pre-Trial Brief", filed by the Prosecution on 3 November 2004, seeking leave to reply to the Response, requesting that the Chamber deny the Defenceís requests, and stating that the Prosecution will "in due course" be seeking leave from the Trial Chamber to add to its exhibit and witness lists,

RECALLING that on 29 September 2004, the Pre-Trial Judge in these proceedings ordered the Prosecution and Defence, pursuant to Rule 65 ter(E)(i) of the Rules of Procedure and Evidence of the International Tribunal ("the Rules"), to file their final pre-trial briefs in this matter no later than 13 October 2004 and 1 November 2004, respectively, or to indicate by those dates that the pre-trial briefs, as previously filed, shall stand as their final pre-trial briefs,8

RECALLING FURTHER that on 21 October 2004, this Trial Chamber issued an order in which the Chamber:

  1. noted that the Prosecutionís amended pre-trial brief was filed on 13 October 2004 in compliance with the Trial Chamberís order;

  2. concluded that the Prosecution was therefore not required to seek leave to file its amended pre-trial brief by the date ordered by the Trial Chamber;

  3. found that the amended pre-trial brief filed by the Prosecution was otherwise in compliance with its obligations under the Rules; and

  4. ordered the Defence to file its response to the Prosecutorís amended pre-trial brief, or to indicate that its previously-filed pre-trial brief would stand as its final pre-trial brief, no later than 1 November 2004,9

NOTING that the Chamber had thus explicitly reaffirmed that Rule 65 ter provided the Defence with the opportunity to file a final pre-trial brief,

NOTING that on 27 October 2004, the Defence notified the Chamber that its initial pre-trial brief, filed on 22 March 2003, shall stand as its final pre-trial brief,

CONSIDERING that the Chamber is not seised of a Prosecution motion to amend its pre-trial brief, and that there is therefore no pending motion to which the Defence may respond,

CONSIDERING that although the Defence filing could be considered as an initiating motion in its own right raising objections to the Prosecutionís brief, the appropriate means for the Defence to respond to the Prosecutionís pre-trial brief would have been to file a final pre-trial brief of its own pursuant to Rule 65 ter,

NOTING that the appropriate forum for litigating disputes between the parties about the sufficiency of evidence to support the Prosecutionís allegations is at trial, not during the pre-trial stage of the proceedings,

PURSUANT TO Rule 54 of the Rules,

HEREBY DENIES the Defence leave to submit the Response; and DENIES the Prosecution leave to reply to the Response.


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

Patrick Robinson

Dated this third day of December 2004
At The Hague
The Netherlands

[Seal of the Tribunal]

1. Response, para. 6.
2. Id., paras. 8, 44Ė45.
3. Id., para. 10.
4. See generally id., paras. 16Ė37, 43.
5. Id., para. 15.
6. Id., paras. 38Ė40.
7. Id., para. 41Ė42, 46.
8. Prosecutor v. Sefer Halilovic, Case No. IT-01-48-PT, "Scheduling Order for Filing of Final Pre-Trial Briefs," 29 Sept. 2004 ("Scheduling Order"); see also Halilovic, "Order on Defence Motion for Extension of Time," 11 October 2004, referring to the filing deadlines established in the Scheduling Order.
9. Halilovic, "Order on Defence Motion re Prosecution Failure to Seek Leave from the Trial Chamber," 21 October 2004.