Case No. IT-03-66-T
IN TRIAL CHAMBER II
Before:
Judge Kevin Parker, Presiding
Judge Krister Thelin
Judge Christine Van Den Wyngaert
Registrar:
Mr. Hans Holthuis
Decision of:
7 June 2005
PROSECUTOR
v.
Fatmir LIMAJ
Haradin BALA
Isak MUSLIU
__________________________________________
DECISION ON JOINT DEFENCE MOTION ON PROSECUTION’S
LATE AND INCOMPLETE DISCLOSURE
__________________________________________
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
I. PROCEDURAL BACKGROUND
- 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
- 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
II. ARGUMENTS OF THE PARTIES
- 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
- 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
- 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.”
- 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.
IV. DISCUSSION
- 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
- 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.
- 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.
- 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.
- 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
- 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.
- 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.
- 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
- 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
- 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.
- 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.
- 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
- 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.
- 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.
- 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
- 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.
- 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.
- 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.
- 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
- 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.
- 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.
- 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
- 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.
V. CONCLUSIONS
- 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.
- 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.
- 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
Presiding
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.