Case No. IT-95-13/1-PT

Before:
Judge Kevin Parker, Pre-Trial Judge

Registrar:
Mr. Hans Holthuis

Decision:
22 September 2005

The Office of the Prosecutor:

Mr. Marks Moore

Counsel for the Accused:

Mr. Miroslav Vasic for Mile Mrksic
Mr. Borivoje Borovic and Ms. Mira Tapuskovic for Miroslav Radic
Mr. Novak Lukic and Mr. Momcilo Bulatovic for Veselin Sljivancanin

I. BACKGROUND
1. This decision is in respect of the “Joint Defence Motion for Additional Time for Preparation of the Defence” (“Motion”) filed on 13 September 2005 before me, Kevin Parker, the designated Pre-Trial Judge in this matter by virtue of “Order Assigning a Pre-Trial Judge” issued on 8 September 2005 by the then Pre-Trial Judge Carmel Agius. By this Motion the Defence seeks additional time for preparation of the Defence and a four to six week postponement of the commencement of the trial. The Prosecution responded to the Motion on 19 September 2005 (“Response”) adopting a neutral position with respect to the relief sought but disputing some of the arguments put forward by the Defence in support of the Motion.

2. By a “Decision on Joint Defence Motion for Extension of Time” issued by Judge Carmel Agius on 31 August 2005 the trial is listed to commence on 3 October 2005 when opening statements of counsel are to be heard, with evidence to commence on 11 October 2005.
   II. SUBMISSIONS

3. In support of their motion for postponement of trial the Defence submit that in the past two months the Prosecution has increased significantly the number and amended the list of witnesses it intends to call at the trial and that three weeks before the scheduled commencement of the trial approximately 15,000 pages and 100 hours of audio and video material have been disclosed to the Defence.¹ More specifically, it is submitted that the witness list provided by the Prosecution pursuant to Rule 65ter of the Rules of Procedure and Evidence (“Rules”) on 19 July 2005 contained 32 new witnesses in addition to the previously submitted witness list and that on 29 August 2005 this list was amended further by the withdrawal of 18 witnesses and the addition of a further 23 new witnesses.² It is submitted that part of the Rule 66(A)(ii) material with respect to the witness list of 19 July 2005 was disclosed to the Defence in English on 29 July 2005 and in the language of the Accused on 25 August 2005.³ It is submitted that only two binders of exculpatory material under Rule 68 have been provided to the Defence on 19 July 2005. ⁴ Finally, it is submitted that the reports of two expert witnesses have not been disclosed to the Defence, and that, generally, as of the date of filing of this Motion, the Defence have not received any information with respect to eight witnesses.⁵

4. The Prosecution responds that it is in a position to commence the trial as scheduled on 3 October 2005.⁶ It accepts that a large amount of documentary material has been served on the Defence after the Referral Bench granted the motion to withdraw the Rule 11bis referral motion on 30 June 2005 but disputes some of the factual basis advanced by the Defence in support of the Motion. More specifically, the Prosecution submits that on 29 July 2005 it had disclosed all additional witness statements with the exception of the statements of three witnesses who were either rejected or whose statements were unavailable and that the B/C/S version of this material was disclosed to the Defence on 19 August 2005. In its submission, all Defence teams have displayed sufficient knowledge of English to understand and analyse the material disclosed on 29 July 2005.⁷ Further, it submits that it has disclosed Rule 68 material to the Defence on three occasions in March, May and June 2005 and that it will continue to comply with its Rule 68 disclosure obligation.⁸ With respect to the Defence submission that no information has been provided to them with respect to seven witnesses listed under a pseudonym in the witness list of 29 August 2005 the Prosecution responds that it has provided summaries of the evidence to be given by all witnesses on the list, including the seven sensitive witnesses. It is contended that this should have given adequate notice of the nature of their evidence.⁹ It also submits that the witness list of 29 August 2005 does not entail significant differences from the witness list of 19 July 2005.¹⁰ Finally, with respect to the expert witnesses it intends to call the Prosecution submits that four expert reports had been disclosed to the Defence in English and B/C/S earlier in the pre-trial stage, while the reports of Andrew Pringle and Reynaud Theunens have been disclosed to the Defence in English on 10 and 14 September 2005, respectively.¹¹ It accepts that these reports have not yet been provided to the Defence in B/C/S. The Prosecution pledges that it is continuing with the completion of its disclosure obligations under Rules 66 and 68 of the Rules which will result in additional materials being provided to the Defence in the near future, the vast majority of which, in the Prosecution submission, by the first week of October 2005.¹²
   III. DISCUSSION

5. Article 21 of the Statute guarantees the rights of accused before this Tribunal, including to have adequate time and facilities for the preparation of their defence and their right to examine or have examined witnesses against them.¹³ In a matter such as this the issue is whether the time given to an accused is “objectively adequate to permit the accused to set forth his case in a manner consistent with his rights.”¹⁴ The issue of whether delayed disclosure is prejudicial to the rights of the accused is dependent, inter alia, on the materiality of what is disclosed late to the question of the accused’s criminal responsibility.¹⁵

6. In the present case, it is accepted that a very significant amount of new material has been disclosed to the Defence in the last two months. The trial is scheduled to commence within two weeks. The Rule 65ter witness list submitted by the Prosecution on 19 July 2005 included 32 new witnesses in addition to the 52 witnesses previously on the Prosecution’s witness list. Their statements were first disclosed to the Defence in English on 29 July 2005. While the parties disagree as to the exact date, it is undisputed that the written statements of these new witnesses were not disclosed to the Defence in B/C/S until approximately one month later, i.e. on 19 or 25 August 2005. Rule 66(A) of the Rules requires the Prosecution to make these statements available to the Defence in a language which the Accused understand as the Accused must be able to understand the Prosecution case and to instruct counsel. The argument of the Prosecution that the Defence teams have sufficient knowledge of English to be able to analyze the statements disclosed on 29 July cannot be supported, as this ignores the need for the Accused to be able to instruct counsel adequately.

7. Further, it is confirmed by the Prosecution’s Response that the reports of two material expert witnesses Andrew Pringle and Reynaud Theunens were not disclosed to the Defence even in English until approximately three weeks before the scheduled commencement of the trial. The report of Andrew Pringle appears to be dealing with issues of command concerning the present case and the report of Reynaud Theunens , an intelligence and military analyst at the Office of the Prosecutor, with issues related to the SFRY Armed Forces OG South. Both reports may be highly relevant to the question of the Accused’ individual criminal responsibility. One of these reports is extremely lengthy and includes hundreds of exhibits. These significant expert reports have not yet been disclosed in the language of the Accused.

8. In view of the above, and taking into account, in particular, the high number of witnesses added to the Prosecution Rule 65ter witness list less than three months before the scheduled commencement of the trial and the significant amount of related material disclosed to the Defence in the past month and the as yet incomplete disclosure of two significant expert reports, it is apparent that the Defence reasonably requires some additional time to adequately prepare its case and, in particular, to prepare for cross-examination. On the material presently before me it is not obvious, however, that a further delay of four-six weeks, as sought by the Defence, is really justified. I am presently persuaded that the commencement of the presentation of evidence should be delayed for two weeks from the date presently fixed, and the date scheduled for the commencement of the trial and the opening statements of counsel should be delayed by a week.

9. It is also noted that the Prosecution has indicated that the Rule 66 and Rule 68 disclosure is still continuing. This will need to be duly considered by the Defence together with a large amount of material that has been disclosed to the Defence in the last month. It is not possible to anticipate what will be further disclosed to the Defence before the commencement of the trial and whether that late disclosure will present any particular difficulties. The possibility that some particular and further procedural order may prove necessary to ensure fairness to the Defence cannot be discarded at this stage.
   IV. CONCLUSION

   FOR THE FOREGOING REASONS and PURSUANT TO Rules 54, 65ter and 73bis of the Rules

   HEREBY GRANT THE MOTION IN PART and ORDER that:

   The orders made by the Pre-Trial Judge of 31 August 2005 are varied so that:

   (i) A Pre-Trial Conference shall be held on Monday, 10 October 2005.

   (ii) The Prosecution, and, if desired, the Defence, shall make their opening statements on Monday, 10 October 2005 and Tuesday, 11 October 2005.

   (iii) The Prosecution shall commence the presentation of its evidence on Tuesday, 25 October 2005.

______________________
Judge Kevin Parker
Pre-Trial Judge

Dated this twenty-second day of September 2005
At The Hague
The Netherlands

[Seal of the Tribunal]