Case: IT-95-14/2-A

IN THE APPEALS CHAMBER

Before:
Judge Theodor Meron, Presiding
Judge Fausto Pocar
Judge David Hunt
Judge Mehmet Gunëy
Judge Asoka de Zoysa Gunawardana

Registrar:
Mr Hans Holthuis

Decision of:
23 May 2003

PROSECUTOR
v
Dario KORDIC & Mario CERKEZ

__________________________________

DECISION ON MOTION BY DARIO KORDIC FOR ACCESS TO UNREDACTED PORTIONS OF OCTOBER 2002 INTERVIEWS WITH WITNESS "AT"

__________________________________

Counsel for the Prosecution:

Mr Norman Farrell

Counsel for the Appellant Dario Kordic

Mr Mitko Naumovski
Mr Turner T Smith, Jr

Counsel for the Appellant Mario Cerkez

Mr Bozidar Kovacic
Mr Goran Mikulicic

 

  1. The appellant Dario Kordic ("Kordic") has sought an order directing the Office of the Prosecutor (the "Prosecution") to disclose, in unredacted form, the transcript of an interview conducted over four days with Witness "AT", after judgment had been given by the Trial Chamber. Witness "AT" had been called by the prosecution as a witness at the trial.1 Kordic claims that the lack of corroboration of this witness’s evidence at the trial, and the contradictions within that evidence, are crucial issues raised in his appeal, and that a full disclosure of the contents of this interview would constitute exculpatory material within the meaning of Rule 68 of the Rules of Procedure and Evidence (" Rules").2

    2. BACKGROUND

  2. On 28 February 2003, the Prosecution disclosed to Kordic a redacted version of the transcript of the post trial interview conducted with Witness "AT" (the " first disclosure").3

  3. By letter of 3 March 2003, Counsel for Kordic requested the Prosecution to provide the full, unredacted, version of the witness interviews and an explanation for the redactions and the late disclosure.4

  4. By letter of 7 March 2003, the Prosecution responded to Kordic that it would review the redacted material further in the light of his request and consider whether an unredacted version could be disclosed. The Prosecution also responded that, since October 2002, it has been undertaking a review of all material in its possession pursuant to Rule 68.5

  5. On 7 March 2003, Kordic filed his Motion under seal.

  6. On 20 March 2003, the Prosecution filed its confidential "Prosecution’s Response to the Appellant Dario Kordic’s Motion for Access to Unredacted Portions of Interviews with Witness ‘AT’" (the "Response").

  7. On the same day, the Prosecution provided Kordic with a further version of the interviews of October 2002 with some redactions removed (the "second disclosure ").

  8. On 21 March 2003, the Prosecution filed confidentially and ex parte its "Prosecution’s Ex-Parte Filing Regarding Motion by Kordic for Disclosure of Unredacted Interviews with Witness ‘AT’" and its Annexes (respectively, the "Prosecution’s Filing" and the "Annexes"). One such Annex was an unredacted version of the interviews with Witness "AT". The Prosecution stated its reasons for the redactions which had been made, and it invited the Appeals Chamber to consider whether further redactions should be removed.

  9. On 25 March 2003, Kordic filed confidentially his "Dario Kordic’s Reply in Support of his Motion for Access to Unredacted Portions of the Most Recent Prosecution Interviews of Witness ‘AT’" (the "Reply"), in which Kordic further requests disclosure of (1) all recent psychiatric evaluations of Witness "AT", and (2) any materials relating to the four days of interviews given to the prosecution’s investigators by Witness "AT" from 12-15 October 2002 or prior interviews given to the Prosecution , its attorneys or investigators by Witness "AT".6

  10. On 31 March 2003, the Pre-Appeal Judge issued an "Order to Prosecution to Refile its Ex Parte Filing in Response to Motion by Kordic for Disclosure in Relation to Witness ‘AT’", in which it ordered the Prosecution (1) to re-file inter partes a redacted version of the Prosecution Ex Parte Filing, other than the annexes, within five days of the date of that order; and (2) to provide the Appeals Chamber with a copy of the final version of the interviews disclosed to the Applicant , as described in paragraphs 8, 16 and 20 of the Prosecution’s Response, together with (upon an ex parte basis) an unredacted version of that document which indicated the passages which have remained redacted.

  11. By letter of 3 April 2003, the Senior Legal Officer informed Counsel that, although the Reply inappropriately (without leave) included the two new above-mentioned requests, the Appeals Chamber would in the circumstances consider the relief sought , and the Prosecution was invited to respond to the application by filing a further response on or before 10 April 2003. In the event that the Prosecution accepted that invitation, Kordic was ordered to file any reply to that response on or before 14 April 2003. Kordic was nevertheless ordered to restrict his reply to matters raised in the prosecution’s further response.

  12. On 7 April 2003, the Prosecution filed its "Redacted Confidential Inter Partes Version of Prosecution’s Ex Parte Filing Regarding Motion by Kordic for Disclosure of Unredacted Interviews with Witness ‘AT’" filed on 21 March 2003 ." It also filed confidentially on the same day its "Prosecution’s Filing in Compliance with Appeals Chamber’s Order of 31 March 2003" and its Inter Partes Annex A and Ex Parte Annex B.

  13. On 7 April 2003, Kordic filed confidentially his "Appellant and Respondent Dario Kordic’s Notice to Appeals Chamber of his Decision not to Seek the Admission of ‘Additional Evidence’ under Rule 115 at this Time", whereby Kordic reserved his right to make an application under Rule 115 promptly after, inter alia, the disclosure to him of previously redacted portions of the October 2002 interviews of Witness "AT".

  14. On 9 April 2003, the Prosecution disclosed to Kordic redacted copies of the notes taken by its investigators Mr Costello and Mr Zia over two days prior to the formal taped interviews of Witness "AT" on 12-15 October 2002 ("investigators’ notes "), as well as unredacted handwritten notes taken by one of the investigators in connection with the interview.

  15. On 10 April 2003, the Prosecution filed confidentially and Ex Parte its "Prosecution Response to New Issues Raised in the Appellant Kordic’s Reply Regarding Access to unredacted Portions of Recent Interview of Witness ‘AT’" and its inter partes7 and ex parte Annexes. One of the Ex parte Annexes (D1) consisted of transcripts from testimony in the Blaskic trial, provided to Witness "AT" by Blaskic. Ex parte Annex D2 was a handwritten B/C/S version of an excerpt of the transcripts in question , plus a draft English translation of the excerpt. The Prosecution invited the Appeals Chamber to consider whether these Annexes should be disclosed or not in the light of the reasons given by the Prosecution for the first category of redactions it made as part of the first disclosure.8

  16. On 11 April 2003, the Prosecution filed confidentially its "Inter Partes Redacted Version of Prosecution Response to New Issues Raised in the Appellant Kordic’s Reply Regarding Access to Unredacted Portions of Recent Interview of Witness ‘AT’, filed on 10 April 2003" and its Inter Partes Annexes. Annex A was a letter from the Senior Appeals Counsel of 9 April 2003 disclosing the above-mentioned investigators’ notes to Counsel for Kordic. Annex B was an order appointing Witness "AT" to the military position which he had held.

  17. On 14 April 2003, Kordic filed confidentially his "Dario Kordic’s Response to the Prosecution’s Redacted Ex Parte Filing Dated 7 April 2003", in which he submits that Ex Parte proceedings are generally inappropriate in the adversarial system, and that the Prosecution had failed to advance any specific or articulated reasons for the redactions it made.9

  18. On 15 April 2003, Kordic filed confidentially his "Dario Kordic’s Reply to Prosecution’s Partially ‘Inter Partes Redacted Version of Prosecution Response to New Issues Raised in the Appellant Kordic’s Reply Regarding Access to Unredacted Portions of Recent Interview of Witness ‘AT’, filed on 10 April 2003’" as well as his "Dario Kordic’s Response to Prosecution’s Partially Ex Parte ‘Filing in Compliance with Appeals Chamber’s Order of 31 March 2003’".

    19. THE MOTION

  19. Kordic submits that there is no excuse for what he calls the belated and heavily redacted disclosure of the transcripts of the four days interviews of Witness "AT " conducted by the Prosecution in October 2002. He submits that the Prosecution should be ordered to provide him expeditiously with complete and unredacted versions of the material in question.

    20. A. Material which may affect the credibility of Prosecution’s evidence

  20. Kordic argues firstly that the lack of corroboration of the evidence of Witness "AT" at trial,10 and the contradictions within that evidence,11 are crucial issues raised in his appeal and that fairness dictates a full disclosure of the contents of this interview, which would clearly constitute "exculpatory" material within the meaning of Rule 68 in that it "may affect the credibility of Prosecution evidence".12

  21. The Prosecution responds that the Motion is premature,13 that it is unwarranted and should be dismissed.14 The Prosecution submits that it has met its obligations under Rule 68 in regard to the recent interviews with Witness "AT", as it has provided the portions of the interviews which clearly contain exculpatory information to Kordic, while redacting the remaining portions.15 The Prosecution says that Kordic has not demonstrated any legal basis for demanding unredacted versions of the interviews in question, and that, absent a showing in this instance of an abuse of its discretion to review for Rule 68 purposes, Kordic’s Motion should be dismissed.16 The Prosecution submits that, if the Appeals Chamber is of the view that any of the redacted portions should be disclosed, it may require time to seek further protective measures, if necessary .17

  22. Kordic replies that, given the key position of the testimony of Witness "AT " in the "planning, instigating and ordering" convictions against him, all material relating to this witness is potentially exculpatory as it goes to the witness credibility , which is a matter which he has raised on appeal.18 Kordic stresses in particular that the Rule 68 obligation to disclose as soon as practicable material "that may affect the credibility of Prosecution evidence" is interpreted broadly by the jurisprudence of the Tribunal.19 He further submits that any versions of events given by Witness "AT" to the Prosecution’s investigators which bear materially in any way upon the versions told by this witness in interviews, and at the Kordic trial, may affect the credibility of his evidence .

  23. Kordic argues that the following example of material disclosed by the Prosecution by its second disclosure on 20 March 2003 confirms his claim that the transcripts of the October 2002 interviews of Witness "AT" are exculpatory:20

    24. WZ: Just one, one question. How many people appeared confirming your alibi in the same case?

    AT: Two.

    JC: Did all those witnesses give false testimony?

    AT: Well, I admitted to my false alibi.

    JC: Did you or your defence counsel personally recruit these witnesses, or did you receive assistance from some other source in recruiting them? If answering the question interferes with your notion of client-lawyer privilege, state that.

    AT: I will answer this question in this way. One of the witnesses who testified , who confirmed my alibi was recruited on my own initiative, or at my proposal.

    Kordic recalls that one of the issues raised in his appellate Brief is whether Witness "AT" had lied to the Appeals Chamber when submitting a brief on appeal challenging the judgement of the Trial Chamber having rejected his defence of alibi,21 and he stresses that Witness "AT" admitted at trial that the two witnesses who testified to his "defence" of alibi had committed perjury. He contends that the Trial Chamber appears to have considered that it was free to accept Witness "AT" as a reliable witness because the "lying alibi defence" had been constructed by unscrupulous lawyers rather than by their truth-telling client.22 Kordic argues that the admission by Witness "AT" that he was a party to the falsehood told to the Appeals Chamber, and that the fraud he attempted to perpetrate was his own idea, are clearly exculpatory.23 If this material represents, as Kordic contends, what the Prosecution chose to redact from these transcripts in its first disclosure, then similarly exculpatory material may also have been redacted and is still not disclosed.

  24. The issue raised by the Motion is whether the Prosecution met its obligations under Rule 68 of the Rules, which provides:

    The prosecutor shall, as soon as practicable, disclose to the defence the existence of material known to the Prosecutor which in any way tends to suggest the innocence or mitigate the guilt of the accused or may affect the credibility of prosecution evidence.

    25. This obligation is not confined to the trial proceedings, and it continues in relation to proceedings before the Appeals Chamber.24 The initial decision as to whether material has to be disclosed under Rule 68 has to be made by the Prosecutor. Without demonstration that the Prosecution abused its judgement, the Appeals Chamber is not inclined to intervene in the exercise of this discretion by the Prosecution.25 The material to be disclosed is not restricted to material which is in a form which would be admissible in evidence. It includes all information which in any way tends to suggest the innocence or mitigate the guilt of Kordic or may affect the credibility of prosecution evidence, as well as material which may put Kordic on notice that such material exists.26

  25. Although Kordic submits that the lack of corroboration of the evidence of Witness "AT" at the trial, and the contradictions within his evidence, are crucial issues raised in his appeal, the Appeals Chamber notes that, given the legal basis upon which the Motion is made, the issue at stake is not whether the redacted portions of the transcripts of the interview of Witness "AT" are merely material to the preparation of the Defence on appeal, but rather whether it (or part of it) constitutes material which falls within Rule 68 of the Rules in the way outlined in the previous paragraph of this Decision.

  26. The Appeals Chamber accordingly does not accept the contention by Kordic that , given the key position of the testimony of Witness "AT" in the "planning, instigating and ordering" convictions against him, all material relating to this witness falls within Rule 68. The Appeals Chamber does, however, accept the contention by Kordic that the second disclosure made on 20 March 2003, after the filing of his Motion , contains material which falls within Rule 68. The Appeals Chamber notes that the "lack of credibility of Witness ‘AT’" is one argument raised by Kordic on appeal , based inter alia upon the fact that Witness "AT" had lied and run a false alibi defence during his own trial.27 The Appeals Chamber notes further that the Prosecution responded in its Reply to Appellant Kordic’s Brief that the argument in question would be somewhat inaccurate and an overstatement of the case, in that the lies to which it refers were made by the Defence of "AT" in his own trial and not by Witness "AT" himself.28 In this context, the Appeals Chamber considers that material by which Witness "AT " admits that one of the witnesses who testified and confirmed his alibi was recruited on his own initiative, or at his suggestion, falls within Rule 68, and therefore should have been be disclosed as soon as practicable. The Appeals Chamber notes that the material in question was not disclosed to Kordic until the second disclosure on 20 March 2003.

  27. In order to ascertain whether the redacted transcripts still contain material falling within Rule 68, the Appeals Chambers has reviewed the "Confidential Ex Parte Annex B". The Appeals Chamber notes that file pages 7277-7259 and file pages 7227-7199 of the "Confidential Ex Parte Annex B" contain material which specifies the overall context in which Witness "AT" obtained his false alibi, the particular role he played in that respect, as well as a possible link between the assistance which he received in providing a false alibi in his own case and the fact that he was asked to testify at trial to a certain version of events in the Kordic and Cerkez case and refused to do so, as mentioned at paragraph 627 of the Trial Chamber’s judgement. The Appeals Chamber finds that such material falls within the Prosecution’s Rule 68 obligation of disclosure, and that it has not yet been disclosed.

  28. The Appeals Chamber turns next the Prosecution’s submission that, if the Appeals Chamber is of the view that the above-mentioned material is to be disclosed, it may wish to order that the Prosecution also disclose Annex B to the Prosecution’s Filing. The Prosecution contends that the Annex in question, which corresponds to the transcripts of another witness’s interview, essentially confirms the testimony of Witness "AT" relating to the issue at stake.29 The Appeals Chamber is satisfied that this material should also be disclosed.

    29. B. Material necessary to an understanding of the material already disclosed

  29. Kordic secondly argues that the redacted material is "occasionally" central to an understanding of the additional version of events given by Witness "AT" in October 2002, a version which conflicts with the version he related to the investigators in 2000, as well as with the one he gave at trial.30 He illustrates this argument by giving five examples which, he asserts, demonstrate that, due to the redactions of the material disclosed, he cannot ascertain either the context of the statements made by Witness "AT" or what the witness may have said on subjects which are clearly material to the issues Kordic raised on appeal .

  30. The Appeals Chamber has examined the five examples given by Kordic to support this argument,31 in the light of Inter Partes Annex B to the "Prosecution’s Filing in Compliance with Appeals Chamber’s Order of 31 March 2003". The Appeals Chamber is satisfied that the second disclosure to Kordic of portions of the transcripts already made by the Prosecution following the filing of the Motion renders moot this part of his submission, but it is satisfied that this material should have been disclosed as soon as practicable , and that it should not have been redacted in the first disclosure.

    31. THE REQUEST FOR DISCLOSURE OF PSYCHIATRIC EVALUATIONS

  31. Kordic submits that the following excerpts of Exhibit C,32 which was disclosed in the second disclosure, as well as examples of statements Witness "AT" made throughout the last three years,33 strongly suggest that the latter is suffering from serious memory problems, and from health problems which potentially could be psychiatric in nature. Kordic quotes the following excerpt of Exhibit C:

    I ["AT"] would like to take my pill now, if you don’t mind. […]

    It is very painful for me ["AT"] to go back and revisit these events, and I have lapses of memory of this period. […]

    There is a blank in my memory in this, I can’t remember. […]

    It was very difficult and painful to go back and revisit these events, this /unintelligible / is painful that I could /unintelligible/ think without crying.

    32. Kordic also refers to the following statement by Mr Zia, later in the interview that :

    Mr "AT" is not feeling very well /unintelligible/ he wants to take a short break .

    And, immediately after the break, the clarification by Mr Zia that:

    […] Witness "AT" was not feeling well emotionally, and we stopped the interview.

    followed by the concession by Witness "AT", after the break, that:

    […] I cannot really say with certainty about this, because my memory is really uncertain /unintelligible/.

    Kordic requests further disclosure of all recent psychiatric evaluations of Witness "AT".34 The Prosecution opposes this request as being based on unsupported inference, and it notes that the witness mentioned at trial that he was suffering from a kidney problem which may be the reason why he needed to take a pill during the interview. It says further that it is not in possession of any psychiatric evaluations of Witness "AT".35 Kordic replies (without indicating any basis for his claim) that, even if the Prosecution does not have copies of such evaluations, the Tribunal certainly has access to these materials and that they should be disclosed to him.36

  32. The Appeals Chamber is not satisfied that Kordic has demonstrated that the Prosecution has in its possession the material which he seeks to have disclosed. There is therefore no basis for ordering such disclosure.

    33. THE REQUEST FOR DISCLOSURE OF RELATED MATERIALS

  33. Kordic stresses that the second disclosure was made only "two weeks" after the filing of his Motion. Kordic claims that it appears that Witness "AT" had been interviewed by the Prosecution, its attorneys or investigators on occasions other than May and October 2000, at trial and 12-15 October 2002. He accordingly requests unredacted copies of any material related to these other interviews.37 The Prosecution stresses that it received no written request for any of these materials prior to this assertion made by Kordic in his filing.

  34. The Appeals Chamber considers first the request by Kordic for the investigators’ notes. The purpose of these notes was to recite back to the witness their content in order to obtain his acknowledgment that the notes were accurate. Kordic submits that, in view of the fact that most of the Prosecution’s submissions in connection with the obligation to disclose these notes are made ex parte, he is not in a position to make any intelligent arguments as to whether the non-disclosed portions contain exculpatory material or not.38 The Prosecution responds that, on 9 April 2003, it disclosed to Kordic redacted copies of the typed investigators notes as well as handwritten investigators notes made during the interview of Witness "AT" by one investigator. It claims that the typed notes are slightly redacted to correspond to that information redacted in the original interview transcripts disclosed to Kordic.39 Having reviewed Ex Parte Annexes F2 and F3, the Appeals Chamber is satisfied that the Prosecution did not abuse its discretion in determining that the redacted portions of the investigators notes do not contain material falling within Rule 68.

  35. Secondly, as far as material originating from documents given to the Prosecution by Witness "AT" during the four day interview in October 2002 is concerned, the Appeals Chamber notes that the Prosecution has disclosed to Kordic as Annex B40 the order appointing Witness "AT" to the military position which he held. Kordic claims that this document is highly exculpatory both as to the chain of command issues and as to the credibility of Witness "AT". It should therefore have been disclosed by the Prosecution "as soon as practicable".41 The Prosecution states that the document in question does not fall within the parameters of Rule 68. It has no objection to providing Kordic with this document, because it supports the credibility of Witness "AT", in that the existence of the document had been questioned by the Defence at trial. As far as non-disclosed documents are concerned, the Prosecution indicates that they relate to redacted portions of the interviews with Witness "AT".42 Although the Prosecution stresses that it has no specific objection to the disclosure of the documents in question,43 it has indicated ex parte the reasons why it has not disclosed the documents in question.44 Having reviewed these reasons, the Appeals Chamber finds that Ex Parte Annexes D1 and D2 fall within Rule 68, as they are particularly relevant to the issue of credibility of Witness "AT", and that they should therefore have been disclosed together with the material described at paragraph 26 above, to which it is directly linked.

  36. Thirdly, the Appeals Chamber considers the request by Kordic related to the notes of a meeting at which Witness "AT" was interviewed by the Prosecution Senior Trial Attorney in the Blaskic case, Mr Harmon. Kordic submits that, without knowing what the subject matter covered by Mr Harmon’s notes is, he is not in a position to make detailed submission.45 The Prosecution contends that the related document Ex Parte Annex E does not contain Rule 68 material. This was an internal memorandum within the OTP regarding the meeting, which the Prosecution claims is protected by Rule 70(A).46 Having reviewed Ex Parte Annex E, the Appeals Chamber is satisfied that the Prosecution’s judgement that it does not contain Rule 68 material has not been an abuse of its discretion.

    37. DISPOSITION

  37. The Appeals Chamber partially GRANTS Kordic’s Motion, in that it finds that :

    38. (I) File pages 7277-7259 and file pages 7227-7199 of the Prosecution’s "Confidential Ex Parte Annex B" and Annex B to "Prosecution’s Ex-Parte Filing Regarding Motion by Kordic for Disclosure of Unredacted Interviews with Witness ‘AT’" contain additional material falling within its Rule 68 obligation of disclosure, and

    (II) Prosecution’s Ex Parte Annex D1 and D2 also fall within Rule 68.

    and ORDERS the Prosecution to inform the Appeals Chamber within 10 days following the filing of the present Decision as to whether it seeks further protective measure prior to disclosing the material in question to Kordic and, if so, the nature of the protective measures it seeks.

    The Appeals Chamber will make an order for further disclosure by the Prosecution , as well as a scheduling order for Kordic to file any Rule 115 Motion, when the Prosecution has complied with this order.

 

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

________________________________
Judge Theodor Meron
Presiding

Dated this 23rd day of May 2003
At The Hague,
The Netherlands.

[Seal of the Tribunal]

1 - Appellant Dario Kordic’s Motion for Access to Unredacted Portions of the Most Recent Prosecution Interviews of Witness "AT", conducted over a Four-Day Period in October 2002, and First Disclosed in Heavily-Redacted Form to Kordic on 28 February 2003, 7 Mar 2003 ("Motion").


2 - Motion, par 9. Associated with this Motion are complaints by Kordic that the Prosecution has failed to comply with its obligations of disclosure pursuant to Rule 68: Notice of Prosecution’s Non-Compliance with its Obligations under Rule 68 and Application for Permission to Submit Additional Arguments on the Effect of the Prosecution’s Rule 68 Violations, Pursuant to the Pre-Appeal Judge’s 11 May 2001 and 2 July 2001 Decisions, 7 Mar 2003; Supplemental Notice of Rule 68 Violation by the Prosecution, 13 Mar 2003. All three of these documents are stated to have been filed "Under Seal", but it seems from his subsequent filings that Kordic intended them to be filed on a confidential basis only.


3 - Letter from the Senior Appeal to the Defence Counsel for Kordic of 28 February 2003 according to which the Prosecution "does not necessarily consider all of the material contained in this disclosure, as a result of its Rule 68 reviews to be, in the final analysis, exculpatory. As in previous recent disclosures, some material has been selected because it is relevant to an argument being advanced by you on appeal, regardless of whether the Prosecution considers that argument to have any impact on the verdict in this case (‘Exhibit 1’ attached to the Motion)."


4 - ‘Exhibit 3’ attached to the Motion.


5 - Ibid.


6 - Reply, pars 18-24.


7 - These are the same as Annexes A and B to "Inter Partes Redacted Version of Prosecution Response to New Issues Raised in the Appellant Kordic’s Reply Regarding Access to Unredacted Portions of Recent Interview of Witness "AT", filed on 10 April 2003".


8 - Prosecution’s Filing, part B.


9 - "Dario Kordic’s Response to the Prosecution’s Redacted Ex Parte Filing Dated 7 April 2003", pars 4-6 and 15-17.


10 - Kordic stresses that this uncorroborated testimony was the sole basis for the Trial Chamber to conclude that he participated in a meeting of political and military leaders at the Military Headquarters of then Colonel Blaskic at the Hotel Vitez during the afternoon of 15 April 1993 at which the orders for the attack against the village of Ahmici were agreed upon, and therefore the basis for his conviction on the "ordering", "planning" and "instigating" charges brought against him in relation the events that occurred in Ahmici on 16 April 1993 (Motion, par 5).


11 - Kordic notes that Witness "AT" had already been interviewed by the Prosecution during four days between May and August 2000. He refers to the arguments he developed in his Appellant’s Brief, filed on 9 August 2001, relating to the "mutating stories" told by Witness "AT" during these four days of interviews and the differences between the version of events resulting from these interviews and the one he gave at trial (Motion, par 7). Kordic adds that the most recently disclosed extracts from the interviews given by Witness "AT" in October 2002 reveal a wealth of contradictions between the stories he now tells, as opposed to stories he told at trial and prior to trial, and he illustrates it with two examples ("Dario Kordic’s Reply to Prosecution’s Partially Inter Partes Redacted Version of Prosecution response to New Issues Raised in the Appellant Kordic’s Reply Regarding Access to unredacted Portions of Recent Interview of Witness "AT", filed on 10 April 2003", par 9).


12 - Motion, pars 5 and 9.


13 - The Prosecution stresses that after the first disclosure it responded to Kordic’s request for unredacted versions indicating that it would consider this request. It also argues that, having reviewed the redacted portions, it had provided the second disclosure of the interview "will less redactions", and that it had agreed to provide Kordic with yet further excerpts from the interview. It contends that Kordic did not wait for the Prosecution’s response to his request, but filed its Motion the next business day after the Prosecution letter of 7 March 2003 (Response, pars 8, 16,17, 20).


14 - Ibid, par 22.


15 - Ibid, pars 11-12.


16 - Ibid, par 10.


17 - "Redacted confidential Inter Partes version of Prosecution’s Ex Parte Filing regarding Motion by Kordic for disclosure of unredacted interviews with Witness "AT" filed on 21 March 2003, pars 3 and 22.


18 - Reply, par 2.


19 - Ibid, par 7. Kordic refers to Prosecutor v Krnoljenac, IT-97-25-PT, "Decision on Motion by the Prosecution to Modify Order for Compliance with Rule 68, 1 Nov 1999, par 11(1), emphasising that the term "evidence" in former Rule 68 means "any material which may put the accused on notice that material exists which may assist him in his defence, and is not limited to material which is itself admissible in evidence", as well as Prosecutor v. Brdjanin, IT-99-36-PT, Decision on Motion by Momir Talic for Disclosure of Evidence, 27 June 2000, par 8, emphasising that the word "evidence" must be interpreted very widely and includes all information which in any way […] may affect the credibility of the Prosecution’s evidence".


20 - Ibid, pars 8, 10-12, 14-16.


21 - Who, being charged in another case, had called two Witnesses to testify in support of his defence of alibi (Id, par 10, see also Brief of Kordic, Vol II pp 25-31).


22 - Kordic stresses that when his counsel suggested that Witness "AT" had lied to the Trial Chamber, the presiding judge admonished him "to be careful about this", because the lie about the alibi had appeared in a brief prepared by the lawyers for Witness "AT", rather than in testimony from Witness "AT" himself. He also stresses that, during the closing arguments, when counsel for Kordic observed that Witness "AT" had asked the Appeals Chamber "to overlook the lies he told…" (Transcripts 28416-17), the Presiding Judge interrupted him and stated "not that he told" (Kordic’s Reply par 12, referring to the Prosecution’s Consolidated Respondent’s Brief and the fact that it buttress the credibility of Witness "AT".


23 - The Reply, par 11, referring to its Exhibit B.


24 - Prosecution v. Blaskic, IT-95-14-A, Decision on the Appellant’s Motions for the Production of Material, Suspension or Extension of the Briefing Schedule, and Additional Filings, 26 Sept 2000, ("Blaskic Decision"), par 32.


25 - Ibid, par. 39.


26 - Prosecutor v. Krstic, IT-98-33-A, Decision on Prosecution’s Motion to Be Relieved of Obligation to Disclose Sensitive Information Pursuant to Rule 66(C), 27 Mar 2003, p 4.


27 - Appellant Kordic’s Brief, Vol II, pp 22-24.


28 - Prosecution’s Reply, par 3.145.


29 - Prosecution’s Filing, par 16.


30 - Motion, par 10.


31 - Motion, par 10.


32 - Excerpt of transcripts of Witness "AT" interview on 12 October 2002, annexed as "Exhibit C" to the Reply.


33 - "Dario Kordic’s Reply to Prosecution’s Partially "Inter Partes Redacted Version of Prosecution response to New Issues Raised in the Appellant Kordic’s Reply Regarding Access to unredacted Portions of Recent Interview of Witness "AT", filed on 10 April 2003", par 7


34 - Ibid, par 24.


35 - ‘‘Inter Partes Redacted Version of Prosecution’s Response to New Issues Raised in the Appellant Kordic’s Reply Regarding Access to Unredacted Portions of Recent Interview of Witness "AT"", pars 8-10.


36 - "Dario Kordic’s Response to the Prosecution’s Redacted Ex Parte Filing Dated 7 April 2003", par 5.


37 - Ibid, pars 19-24


38 - "Dario Kordic’s Reply to Prosecution’s Partially "Inter Partes Redacted Version of Prosecution response to New Issues Raised in the Appellant Kordic’s Reply Regarding Access to unredacted Portions of Recent Interview of Witness "AT", filed on 10 April 2003", par 16.


39 - Ibid, pars 6 and 29.


40 - Inter Partes Annex B to "Inter Partes Redacted Version of Prosecution response to New Issues Raised in the Appellant Kordic’s Reply Regarding Access to unredacted Portions of Recent Interview of Witness "AT", filed on 10 April 2003" filed on 11 April 2003.


41 - "Dario Kordic’s Reply to Prosecution’s Partially "Inter Partes Redacted Version of Prosecution response to New Issues Raised in the Appellant Kordic’s Reply Regarding Access to unredacted Portions of Recent Interview of Witness "AT", filed on 10 April 2003", par 12.


42 - Ibid, p. 4 part (2).


43 - "Inter Partes Redacted Version of Prosecution response to New Issues Raised in the Appellant Kordic’s Reply Regarding Access to unredacted Portions of Recent Interview of Witness "AT", filed on 10 April 2003", par 21.


44 - Ex Parte "Prosecution response to New Issues Raised in the Appellant Kordic’s Reply Regarding Access to unredacted Portions of Recent Interview of Witness "AT"," filed on 10 April 2003, pars 17-21.


45 - Kordic’s Reply to Prosecution’s Partially "Inter Partes Redacted Version of Prosecution response to New Issues Raised in the Appellant Kordic’s Reply Regarding Access to unredacted Portions of Recent Interview of Witness "AT", filed on 10 April 2003", par 13.


46 - "Inter Partes Redacted Version of Prosecution response to New Issues Raised in the Appellant Kordic’s Reply Regarding Access to unredacted Portions of Recent Interview of Witness "AT", filed on 10 April 2003" filed on 11 April 2003, par 25.