Case No. IT-03-66-T


Judge Kevin Parker, Presiding
Judge Krister Thelin
Judge Christine Van Den Wyngaert

Mr. Hans Holthuis

Decision of:
7 June 2005



Fatmir LIMAJ
Haradin BALA




The Office of the Prosecutor:

Mr. Alex Whiting
Mr. Julian Nicholls
Mr. Milbert Shin
Mr. Colin Black

Counsel for the Accused:

Mr. Michael Mansfield, QC, and Mr. Karim A. Khan for Fatmir Limaj
Mr. Gregor Guy-Smith and Mr. Richard Harvey for Haradin Bala
Mr. Michael Topolski, QC, and Mr. Steven Powles for Isak Musliu



  1. This Trial Chamber (“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 seized of a “Joint Defence Motion on Prosecution Late and Incomplete Disclosure With Non -Confidential Annex A and Confidential Annex B” (“Motion”) filed on 24 May 2005 by Defence Counsel for the Accused Fatmir Limaj, Haradin Bala and Isak Musliu (“ Defence”), requesting that the Chamber (a) find that the Prosecution has violated their disclosure obligations pursuant to Rules 66 and 68 of the Rules of Procedure and Evidence of the Tribunal (“Rules”), (b) order the immediate disclosure of any remaining exculpatory material that has not been yet revealed, and (c) provide an appropriate remedy under Rule 68bis.1

  2. On 1 June 2005 the Prosecution filed a “Partly Confidential Prosecution’s Response to Joint Defence Motion on Prosecution Late and Incomplete Disclosure, With Confidential Annex” (“Response”). In its Response, the Prosecution submits that, contrary to the contention of the Defence, there is no pattern of late disclosure in the instant case.2


  3. The Defence submits that a pattern of late disclosure is revealed by virtue of more than seventy late disclosures since the start of the Prosecution’s case.3 Further, the concern is expressed that there may be other materials that have not been yet disclosed.4 It submits that some late disclosures contain exculpatory material essential for an adequate cross -examination of Prosecution witnesses who had given evidence before the disclosure. By virtue of these matters it is submitted that there is need for a comprehensive change of the disclosure method currently practised by the Prosecution.5 It further requests that the Chamber appoint an independent counsel to analyse the Prosecution materials in order to ensure that the Prosecution has fully complied with its disclosure obligations under the Rules.6

  4. The Prosecution responds that it has fulfilled its disclosure obligations through a system of ongoing reviews of material received from different sources, resulting in a policy of full and prompt disclosure to the Accused in full respect of the rights of the Accused and the fairness and efficiency of the proceedings.7 The Prosecution submits that many of the more than seventy disclosures on which the Defence rely are not Rule 68 disclosures (i.e. they contain no exculpatory information) but are disclosures pursuant to Rule 66(B). The Prosecution adds that at the times the various relevant disclosures were made, the Defence chose not to request extra time to prepare for cross-examination, nor to seek to recall any witness.8 The Prosecution further submits that since the Accused were arrested in early 2003, it has disclosed 82 batches of material, both in CD and hardcopy form, containing 2682 documents and other items, involving approximately to 20.000 pages, as well as audio and video recordings and other non-documentary material.9 It further submits that it is not presently aware of any further material in its possession subject to disclosure under the Rules.10

    III. LAW

  5. General disclosure obligations of the Prosecution are set out in Rules 66 and 68 of the Rules. Under Rule 66(A)(i) the Prosecution has an obligation to disclose, within thirty days of the initial appearance of the accused, copies of the supporting material which accompanied the indictment when confirmation was sought, as well as all prior statements obtained by the Prosecutor from the accused. Rule 66(A)( ii) provides that within a time-limit prescribed by the Trial Chamber or the pre -trial Judge appointed pursuant to Rule 65ter, copies of the statements of all witnesses whom the Prosecutor intends to call to testify at trial, copies of all written statements taken in accordance with Rule 92bis and copies of the statements of additional prosecution witnesses shall be made available to the defence when a decision is made to call those witnesses. Rule 68 governs the disclosure of exculpatory material by the Prosecution to the Defence. Rule 68(i) reads as follows : “[T]he Prosecutor shall, as soon as practicable, disclose to the Defence any material which in the actual knowledge of the Prosecutor may suggest the innocence or mitigate the guilt of the accused or affect the credibility of the Prosecution evidence.”

  6. Should the parties not have fulfilled the time-frames for disclosure set out in the Rules, Rule 67(C) allows either party immediately to disclose to the other party additional evidence or material which should have been disclosed earlier under the Rules. Further, Rule 68bis of the Rules provides that a pre-trial Judge or a Trial Chamber may, proprio motu, or at the request of a party, impose sanctions on a party that fails to fulfil its disclosure obligations pursuant to the Rules.


  7. In support of its allegation that there has been a pattern of failure by the Prosecution to comply with its disclosure obligations, the Defence relies on and develops in particular five documents or categories of documents which, in its submission, have not been disclosed when they ought to have been, or have been disclosed later that they ought to have been. The Chamber will examine these.

    A. Statement of Hashim Thaçi

  8. The first document particularly relied on by the Defence is a statement of Hashim Thaçi taken by the OTP on 5 May 2004. The Chamber observes that what is referred to as a statement is in fact notes made by an investigator during an interview with Hashim Thaçi who has signed the notes. The notes relate in particular to the general organisation of the KLA, and the role of Fatmir Limaj at various times, some being relevant to this trial. Moreover, it contains information about several other matters on which the Chamber has heard evidence in the course of the trial. There is no dispute between the parties that these notes do contain relevant and exculpatory material, which ought to have been disclosed under Rule 68.

  9. The Defence submits that it requested the statement of Hashim Thaçi from the Prosecution on 29 May 2004, and that the Prosecution, in spite of its initial undertaking to do so, did not disclose the notes until April 2005, which was after the close of the Prosecution case. In the Defence’s submission, the information contained in the notes contradicts the accounts of a number of Prosecution witnesses and, had it been available to the Defence at the time these witnesses were cross-examined, these matters could have been explored.

  10. The Prosecution acknowledges that the notes of Hashim Thaçi’s interview ought to have been, but were not, disclosed at an earlier time. It submits, however, that the late disclosure was due to an unintentional administrative oversight, and does not require the Chamber’s intervention as it did not cause any prejudice to the Defence. In support of this submission, the Prosecution argues that the existence of the notes was known to the Defence in May 2004, and that the notes were disclosed to the Defence in April 2005 immediately after the Defence reminded the Prosecution that they had not been provided. The disclosure was made before the Defence travelled to Kosovo to meet with its potential witnesses before commencing the Defence case. The Prosecution further points out that Hashim Thaçi indicated, as stated in the investigator’s notes, that he had previously given the same information to the Defence of Fatmir Limaj. This is not disputed.

  11. In light of the circumstances described by the parties, it appears to be the case that both sides overlooked the May 2004 request of the Defence until the Defence reminded the Prosecution in April 2005. Disclosure was then given. The Chamber has no difficulty accepting the relevance of the notes and that the notes might have been used by the Defence during cross-examination of Prosecution witnesses. It is a matter of conjecture whether, in particular, the Defence of Fatmir Limaj would have been in a materially different position for cross-examination given that it had apparently already been provided with the information in the notes by Hashim Thaçi. Nevertheless, the Defence does not seek any specific remedy for the failure to give timely disclosure of the notes; in particular, it did not at the time, nor does it now, seek the recall of any witnesses or ask that the document be admitted into evidence. While there was a failure to give timely disclosure, the circumstances do not support the Defence contention of some systemic failure by the Prosecution or suggest any serious lack of professional attention to disclosure.

    B. Agim Murtezi Materials

  12. The Defence submits that a category of material, namely those relevant to the indictment, arrest, release and withdrawal of Indictment against Agim Murtezi, formerly a fourth co-accused in the present case, ought to have been disclosed under Rule 68. In the Defence’s submission, the material should have been considered as exculpatory within the meaning of Rule 68 as it might shed light on the Prosecution’s investigative methods and techniques of identification of the three present Accused, an issue in this case. In particular, on the Defence’s submission, a number of witnesses in this case who claim to have identified the Accused also “positively identified ” Agim Murtezi. The Defence therefore requests that the Chamber revisits its previous oral ruling on the matter and orders the immediate disclosure of all documents pertaining to the wrongful identification and arrest etc of Agim Murtezi.

  13. The Prosecution submits that the Defence’s request has been resolved by the Chamber in its previous oral ruling. It further contends that the material concerning the erroneous photo-board identifications of Agim Murtezi, which were made by two individuals, the evidence of only one of whom was received in this case, has been disclosed to the Defence, and that it has therefore fulfilled its obligations under Rules 66 and 68 of the Rules.

  14. The Chamber would first emphasise that this matter is not being raised for the first time. The Chamber gave an oral ruling on 19 November 2004, a mere four days after the start of the trial, on the very same issue. The Defence then sought the disclosure under Rule 68 of an interview conducted by the OTP with Agim Murtezi, and other material related to Agim Murtezi’s arrest and further release. Already at that stage, the issue of identification was very much at the forefront of the Defence’s submission on this matter, and the Chamber’s consideration of it. In particular, the Chamber held that

    Issues of identification will be alive in this trial in respect of each of the three Accused. It is not apparent, however, that an error of identification affecting Murtezi will bear on the identification of any of the other accused or will otherwise be relevant to their cases. Of course there could be some connection, but nothing is before the Chamber to suggest that this is such a case. The circumstances do not indicate to the Chamber, as is submitted, that the whole investigative process is called into question by virtue of a mistaken identification.11

  15. The reliability of the identifications made of each of the three present Accused, when a variety of witnesses were shown photo-boards each of which included a photo of one of the three Accused, remains a material issue in this case. To the extent that the mistaken identification of a fourth person, by two individuals, when shown different photo-boards on other occasions, may be thought to have some relevance, the material bearing on these photo-board identifications has been disclosed. No other or wider relevance has been established. It has not been shown that the entirety of the material relating to the arrest and subsequent release of Agim Murtezi is relevant and should have been disclosed. The Chamber therefore finds no reasons to alter its previous ruling.

    C. Statements taken by the Serb authorities of Vojko Bakrac, L6 and L4

  16. A further submission by the Defence concerns statements given by three Prosecution witnesses, Vojko Bakrac, L6 and L4, to Serb authorities in 1998. The Defence submits that it specifically requested disclosure of any previous statements taken by the Serb authorities as early as 22 October 2003, and that the Prosecution then undertook to do so. The Defence further argues that Dragan Jasovic, a Prosecution witness contemplated well in advance of the trial, would have been an obvious person to ask for those statements at the time. Instead, the statements of the three abovementioned witnesses were not provided until after the witnesses completed their evidence.

  17. The Prosecution responds that its undertaking to disclose statements of witnesses by Serb authorities related only to statements in its possession and that it did not have a duty to seek out such statements with a view to disclosing them. With respect to the statements of the three specific witnesses mentioned in the Motion, it is submitted by the Prosecution that they were disclosed as soon as they were received.

  18. It is not apparent from anything before the Chamber that the Prosecution was aware of the relevant interviews of these three witnesses by Serb authorities in 1998, or of the statements given at that time, until the fact of each of the interviews and the statements emerged in the course of the evidence of these witnesses at trial. The Defence then sought disclosure of the statements. The Prosecution, encouraged by the Chamber, requested the statements from Serb authorities. They were provided and were disclosed as soon as they were received. This outline of the relevant events explains why these three particular statements were only provided to the Defence after the witnesses completed their evidence. The Prosecution was not obliged to make enquiries as to their existence, or to seek to obtain them before the trial. After the statements were provided to the Defence, the parties, by agreement, had the statements admitted into evidence as a remedy for their earlier unavailability.12 At that time the Defence apparently declined a proposal to recall the three witnesses.13 The Chamber would observe in this respect that the content of the statements is before the Chamber for the purposes of the trial and that no further specific remedy in respect of the actual evidence is therefore sought by the Defence, or appropriate. The circumstances do not support the Defence’s submission of systemic failure by the Prosecution with respect to disclosure and it is not apparent that there has been any serious professional neglect of the Prosecution’s disclosure obligations.

    D. CCIU Supplementary Folder

  19. The Defence contends that the Prosecution failed to disclose parts of a CCIU Supplementary Folder. While these parts are not specifically identified in the Motion, and the nature of their contents are not detailed, they are said to have a direct bearing on the evidence of a number of Prosecution witnesses, in particular Anargyros Kereakes. These documents are alleged to contain information concerning internal “battles” at the CCIU/UNMIK which it is contended affected the investigation, potential irregularities, including information regarding lost photo-boards, and observations that many of the allegations against Fatmir Limaj were politically motivated.

  20. The Prosecution submits that the CCIU file had been carefully reviewed and all material within Rules 66 and 68 disclosed. In particular, information regarding lost photo-boards were disclosed to the Defence, albeit in other forms, as were possible political motivations of Prosecution witnesses. As for material regarding Prosecution witness Anargyros Kereakes, the Prosecution submits that even though that material had no direct relevance to the present case, the Defence had this information and indeed made use of it in the course of its cross-examination of the witness. The remaining material was, on the Prosecution’s submission, “internal work product” not relevant to the case.

  21. The Chamber notes that neither side has placed the material before the Chamber, even though, it appears, all of it is available on the Electronic Disclosure System where the Defence did discover it. It is not disclosed when it was so discovered. The submissions reveal that an assessment was made by the Prosecution of the contents of this folder and what was considered relevant or exculpatory was disclosed. On the material before the Chamber it is not possible to evaluate the correctness of the Prosecution’s assessment and it is not open to the Chamber to conclude that there has been any error, neglect or failure in this respect by the Prosecution. It is not specifically suggested in the Motion that the material was discovered by the Defence too late for it to make use of it, nor does the Defence seek any specific remedy with respect to these particular documents. In the circumstances, it is not shown that there has been any disclosure failure in respect of the CCIU Supplementary Folder. This example offers no support for the general contentions of the Defence of systemic disclosure failure by the Prosecution.

    E. Dragan Jasovic Material

  22. A further category of documents concerns material related to the testimony of Dragan Jasovic, a Prosecution witness in the present case, who was, at times relevant to the Indictment, a Serb police officer stationed in Kosovo. The Defence submits that while the witness was being proofed in The Hague by the Prosecution immediately before giving evidence in this case, OTP investigators in the Milosevic case were interviewing witnesses, in Kosovo, who claimed to have been victims of Dragan Jasovic’s abusive and violent interrogation practices. It is submitted that statements obtained in the course of these interviews for the Milosevic case were not disclosed to the Defence until such disclosure was requested after the Defence heard of the existence of the statements through an informal channel. The material, on the Defence’s submission, falls under Rule 68 on the basis that it undermines the credibility of a Prosecution witness.

  23. The Prosecution responds that despite some communication between members of the Prosecution teams in this case and in the Milosevic case, the contents of the statements obtained by the investigators in the Milosevic case were not seen by the Prosecution in this case until the day they were disclosed to the Defence, i.e. disclosure was made as soon as they were received, and in time to be used during the cross-examination of Dragan Jasovic. The Prosecution further specifies that the disclosure process is continuing as new material is still being collected by the Prosecution team in the Milosevic case. The Prosecution proposes, in the circumstances, that any prejudice may be cured by recalling the witness for further cross-examination.

  24. The Chamber recalls that Dragan Jasovic testified in the present case between  5 and 7 April 2005. The Prosecution indicated that the statements of several witnesses reporting abusive interrogation practices by Dragan Jasovic were signed on 3 April 2005 in Kosovo, brought to the Tribunal on 5 April 2005, and disclosed the next day to the Defence in the present case. By this time, Dragan Jasovic had not yet completed his testimony and, in fact, the content of these statements was the basis of extensive cross-examination of the witness. The Chamber observes that the Defence did not then ask for additional time or for a delay of its cross-examination of the witness. Similarly, in the present Motion, the Defence does not seek the recall of this witness for further cross-examination or any other particular remedy. In the present case, these statements were disclosed as soon as they came into the hands of the Prosecution. At least with hindsight, it can be said it would have been prudent to delay calling the witness until the outcome of the investigations in the Milosevic case were known. As well as allowing the Defence more time to evaluate the statements, this would have given the Prosecution an opportunity to assess the desirability of calling the witness and advancing him as a witness of truth in light of the outcome of the investigations which coincidentally happened to be undertaken in Kosovo for the purposes of another case. That not having occurred, however, the Defence was provided with the statements at the first opportunity. Had the lateness of notice been considered a real problem, a deferment of cross -examination could have been sought. It is apparent that this was thought unnecessary by the Defence. This can be readily understood as it was apparent that the Defence had prepared to cross-examine on the basis that statements obtained by the witness were of little or no value because of the violent methods of interrogation he used. The statements obtained by the investigators in the Milosevic case merely provided more fuel for that fire. Even after time for reflection, it is not proposed that there is reason to recall this witness. These circumstances do not support the general proposition advanced by the Defence of some systemic failure with respect to disclosure. Nor do they suggest any serious lack of professional attention to disclosure.

  25. These events do disclose a matter of concern, but it is one quite different in character from that for which the Defence contends. In this trial, the Prosecution called and sought to rely on the evidence of Dragan Jasovic and the results of investigations he conducted at times relevant to the Indictment, whereas, contemporaneously, another Prosecution team in another case before the Tribunal was investigating and conducting its case with a view to establishing the contrary. That inconsistency of position on the part of the Prosecution is a matter of concern. It is perhaps understandable that the individuals working on the Prosecution team of a particular case may, without awareness of the issue, pursue a particular line of investigation and case presentation which conflicts with that of another Prosecution team. What has occurred in the present case, however, appears to involve at least some awareness of conflicting positions taken on the part of the Prosecution about one person whose investigations were relevant in two trials being conducted at the same time. The consequence, of course, may well be a weakening of the Prosecution’s position in each trial. It is not for this Chamber to comment further on this at the present time. This Trial Chamber will have to evaluate the evidence of this witness and its relevance to the issue in this trial in due course.

    F. Schedule Identifying Material Subject to Late Disclosure

  26. Attached to the Defence Motion is a schedule listing the documents said to have been the subject of late disclosure (i.e. Confidential Annex B). The schedule indicates the date of disclosure of the documents to the Defence and the start dates of the examination in chief and cross-examination of the relevant witness. Amongst the documents listed in the schedule are the 5 documents or categories of documents specifically discussed above. The remainder of the documents listed in the schedule are not the subject of any specific submission by the Defence. The Chamber notes that the documents vary considerably as to their apparent nature. Some are supplementary notices, “supplementary information sheets”, of evidence to be given by a witness or of variations to the contents of earlier statements of the witness. These were disclosed to the Defence after the arrival of a witness in The Hague, when he or she was proofed, but before the witness gave evidence, although in some cases written notice was given after evidence-in-chief commenced but before cross-examination of the witness. The final and detailed proofing of a witness by counsel, who is by then fully prepared for trial, will very often lead to the clarification and variation of an earlier statement of a witness or to additional issues being dealt with for the first time during proofing. While it would be preferable if this could be achieved at an earlier time, there are practical considerations that often lead to this occurring when the witness arrives in The Hague shortly before giving evidence. Should a supplementary information sheet present a particular difficulty for the Defence, this can often be met by the deferral of the evidence of the witness, or of cross-examination, to allow time to the Defence to deal with the difficulty. In this case it appears that some of the supplementary sheets listed in the schedule were not even delivered to the Defence before the commencement of the witness’s evidence, due to the failure of the Prosecution to deal promptly with the production of a supplementary information sheet and to serve it. This clearly increases the risk that the evidence or cross-examination of the witness will need to be delayed. There can also be cases where a matter disclosed for the first time in a supplementary information sheet is of very considerable significance such that some more drastic disruption to the trial may be required in the interests of justice. That is not a feature of this present case.

  27. The remaining documents listed in the schedule are widely varied in nature. In the absence of any detailed indication of their content and their relevance to the defence case it is not possible for the Chamber to draw any conclusion about the effect of the late disclosure of each document, or of the documents in combination. The Prosecution, in a schedule, has listed the documents identified by the Defence in its Motion, the date of disclosure of each of the documents and the number of days between the disclosure and the (subsequent) evidence of the relevant witness. It has not, however, indicated why its disclosure was late; in respect of a number of documents no reason is apparent.

  28. Whatever may have been the reason for the late disclosure of each of these remaining documents, or the effect, if any, of the lateness on the Defence, it may generally be observed that no particular difficulty was advanced at the time of the disclosure and no suggestion has been made, then or now, that the delayed disclosure of a particular document required an adjournment, re-call of a witness, or other particular remedy, to enable the Defence to deal with the late disclosure. Neither by the number or nature of the late disclosed documents, is it apparent that there has been some systematic failure affecting the Prosecution’s disclosure, or that there has been a serious lack of professional attention to disclosure. The number of these remaining documents the subject of late disclosure is to be appreciated, of course, in light of the fact that, in this trial, some 2682 documents and other items have been disclosed since the arrest of the Accused in early 2003.

    G. Oral Motion

  29. On 1 June 2005, which was also the day on which the Prosecution filed its written response to this Motion, in the course of the trial proceedings, the Defence orally moved a further motion seeking relief by virtue of the late disclosure of a further document by the Prosecution.14 By this oral motion the Defence in effect proposed inter alia that there should be a fundamental review of the Electronic Disclosure System (“EDS”), submitting it was seriously deficient for its purpose, and a complete and independent review of the documents in the possession of the Prosecution to ensure that there were no further undiscovered documents that should have been disclosed to the defence for the purposes of this trial. The Chamber, in its oral decision given that day, ordered the Prosecution forthwith to expedite the limited searching of the EDS which it was undertaking in respect of the witnesses which the Defence proposed to call in the trial.15 Otherwise, for the reasons it gave in its oral decision, the Chamber did not grant the motion.16 It is mentioned again to note that, in the view of the Chamber, the circumstances that gave rise to the further motion, even considered together with the matters relied on by the Defence in support of this Motion, do not provide justification for granting the relief sought in this Motion, or the wider relief sought by that oral motion of 1 June 2005.


  30. It will be apparent from what has been said in these reasons that the Chamber does not take the view that the Prosecution has been without fault in some respects in its fulfilment of its discovery obligations. Many of the matters relied on by the Defence, however, do not involve fault on the part of the Prosecution. In so far as the Chamber has been able, on the material before it, to evaluate the consequences of late discovery, it has not been shown that there has been an impediment to the conduct of the Defence of all or any of the Accused, such that the Defence has not been able to present its case adequately by virtue of the late disclosure to the Defence of some documents.

  31. In so far as some late disclosures that have occurred are attributable in some way to a measure of failure on the part of the Prosecution, it has not been shown that there has been any substantial or systematic failure by the Prosecution in respect of disclosure, nor that there has been a serious lack of professional attention to disclosure. The Chamber is well aware that late disclosure may well have an adverse effect on the conduct of the Defence, and, in any event, is undesirable for the efficient and orderly conduct of a trial. Nevertheless, late disclosure having occurred, whether involving some fault on the part of the Prosecution or not, a primary issue is whether some steps are necessary or desirable to ensure that the late disclosure is able to be adequately dealt with by the Defence to ensure a fair trial. In this case such steps have been taken where they have been sought and where they appear justified. It has not been shown that any further remedy is necessary to ensure a fair trial. The Prosecution remains aware of the need to ensure that exculpatory material be disclosed and is, even at this late stage, conducting an ongoing review of this material to this end.

  32. For the reasons given, the Chamber is not persuaded that there is reason to appoint an independent counsel to undertake a review of the disclosure in the present case or to order any of the other remedies sought, or any further remedy. The Motion is dismissed.


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

Judge Kevin Parker

Dated this seventh day of June 2005
At The Hague
The Netherlands

[Seal of the Tribunal]

1 - Motion, para. 9.
2 - Response, para. 1.
3 - Confidential Annex B attached to the Motion.
4 - Motion, para. 1.
5 - Motion, para. 34.
6 - Motion, 39.
7 - Response, para. 12.
8 - Response, para. 3.
9 - Response, para. 4.
10 - Response, para. 4.
11 - T 536-538.
12 - T 5185-5186.
13 - Ibid.
14 - T 6787-6794.
15 - T 6811-6818.
16 - Ibid.