Case No.: IT-98-34-T


Judge Liu Daqun, Presiding
Judge Maureen Harding Clark
Judge Fatoumata Diarra

Mr. Hans Holthuis

Decision of:
16 September 2002





The Office of the Prosecutor:

Mr. Kenneth Scott

Counsel for the Accused:

Mr. Kresimir Krsnik, for Mladen Naletilic
Mr. Branko Seric, for Vinko Martinovic


TRIAL CHAMBER I, SECTION A ("the 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 ("the Tribunal") has received two Motions described as the "Joint Motion For Order Allowing Defence Counsel to Inspect Certain Documents"; and the "Joint Motion For Order Allowing Defence Counsel to Inspect Documents From The ‘Government of Croatia’, both of which were filed on 28 August 2002 ("the Motions").

These Motions request "the right to inspect any books, documents, photographs and/or tangible objects in the Prosecutor’s custody or control, the source of which is the ‘Government of Croatia’ Sand the archive of the ABiHC, to determine if any are relevant to the defence of the Accused".

The "Prosecution’s Response to Two Motions For Orders Allowing Defence Counsel to Inspect Documents From The ‘Government of Croatia’ And Certain other Documents", filed on 27 August 2002 ("the Response") argues:

  1. "that it is a matter for Defence Counsel to seek access to archives and collections of documents of the Republic of Croatia and the Federation of Bosnia and Herzegovina directly, and to seek the Trial Chamber’s assistance in case such access is not granted";
  2. that "both accused explicitly stated that they were not invoking reciprocal disclosure under Rule 66 (B)";
  3. that a request pursuant to Rule 66 (B) "can not be made at the end of the trial, after the Defence has presented its case-in-chief without undertaking any of the reciprocal disclosure that would be required under Rule 67 (C)";
  4. that the wording of Rule 66 (B) "’(…) or are intended for use by the Prosecutor as evidence at trial (…)’ clearly indicates that discovery under Rule 66 (B) is envisaged to occur at the pre-trial stage, … [which] is supported by the fact that it is found in Section 3 of the Rules, which apply to ‘Preliminary Proceedings’"; and
  5. that the Prosecution complied and will comply with its obligations under Rule 66 (A) and 68 of the Rules.

The Chamber reminds the Parties of its "Decision on The Defence Motion For Disclosure of Any Defence Witness Statements in Possession of The Office of The Prosecutor", filed on 18 April 2002.

The Chamber agrees with the Prosecution that a request for reciprocal disclosure can not be made at the end of the trial.

The Chamber has already decided on 18 April 2002 that the Prosecution is under NO obligation, apart from its continuing obligations under Rule 68, to disclose to the Defence the statement of witnesses who the Prosecution has neither called nor intends to call to testify.

On a number of occasions the Chamber has been informed orally by Mr. Krsnik, counsel for the accused Mladen Naletilic, of his difficulties in obtaining a response from the Bosnia and Herzegovina state authorities to letters he has sent seeking access to AbiH archives. On each such occasion, the Trial Chamber has invited Mr. Krsnik to seek the Chambers assistance by a motion in writing setting out the facts on which the Defence relies and seeking the Chamber’s assistance. No such motion has ever been received by this Trial Chamber.

This Trial Chamber cannot, in the absence of further compelling legal reason, see how examination of unused material which is in the hands of the Prosecution can be material to the Defence at this late stage of the trial.

The Defence may wish to state with more precision, what documents they wish to inspect and which they know to be in possession of the Prosecution and to state what particular circumstances make it just, fair and reasonable at this stage of the trial for the Defence to disregard the Rules of Procedure and Evidence outlined by Rules 66 (B) and its corresponding Rule 67 (C) involving reciprocal disclosure.

The Chamber further reminds the parties that in any event Rule 66 (B) of the Rules of Procedure and Evidence requires a prima facie showing of materiality to the preparation of the Defence of the evidence requested, which is lacking in the Motions; The Chamber therefore, in the absence of specific identification of the material of such evidence, deems it inappropriate to intervene.

The Prosecution remains under a continuing obligation under Rule 68 to disclose material "which in any way tends to suggest the innocence or mitigate the guilt of the accused or may affect the credibility of prosecution evidence"; but that the initial decision as to whether evidence is exculpatory is within the discretion of the Prosecution; and that in the absence of any proof that the prosecution abused its judgement, the Chamber will not intervene;

FOR THE FOREGOING REASONS the Chamber DENIES the Motions, subject to the right of the accused to present further arguments as outlined above.


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

Dated this sixteenth of September 2002,
At The Hague,
The Netherlands

Judge Liu Daqun
Presiding Judge

[Seal of the Tribunal]