Case No.: IT-95-14-A

IN THE APPEALS CHAMBER

Before:
Judge Fausto Pocar, Presiding
Judge Florence Mumba
Judge Mehmet Güney
Judge Wolfgang Schomburg
Judge Inés Mónica Weinberg de Roca

Registrar:
Mr. Hans Holthuis

Decision of:
12 May 2004

PROSECUTOR

v.

TIHOMIR BLASKIC

________________________________

ORDER ON PROSECUTION’S REQUEST FOR LEAVE TO RESPOND TO RULE 68 ALLEGATIONS MADE DURING ORAL SUBMISSIONS BY THE APPELLANT

________________________________

Counsel for the Prosecutor:

Mr. Norman Farrell

Counsel for the Appellant:

Mr. Anto Nobilo
Mr. Russell Hayman

 

THE APPEALS 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 ("International Tribunal"),

BEING SEISED of the "Prosecution’s Request for Leave to Respond to Rule 68 Allegations made during oral submissions by Appellant" filed confidentially on 25 March 2004 ("Prosecution’s Request"), wherein the Prosecution seeks leave to file material in rebuttal of the Appellant’s allegation that the Prosecution failed to produce exculpatory material in violation of the duty prescribed in Rule 68 of the Rules of Procedure and Evidence of the International Tribunal ("Rule 68"), and in violation of the Appellant’s rights under Article 21(4) (b) and (c) of the Statute of the International Tribunal;

NOTING the "Appellant’s Objection to Prosecution’s Request for Leave to Respond to Rule 68 Allegations made during oral submissions by Appellant" filed on 29 March 2004, wherein the Appellant objects to the Prosecution’s Request, claiming it is an attempt to supplement the Prosecution’s briefing on appeal and re-argue the merits of matters already argued before the Appeals Chamber, and that it is also in violation of the Practice Direction on the Length of Briefs and Motions (IT/184/Rev. 1) dated 5 March 2002;

NOTING that the Prosecution claims that if there is the possibility that the Appellant’s argument could be interpreted by the Appeals Chamber as an allegation that Counsel for the Prosecution deliberately withheld evidence known to be exculpatory during the Blaskic trial, then the Prosecution must be given the opportunity to respond1;

NOTING the "Appellant’s Brief on Appeal", filed confidentially on 14 January 2002, and the Revised Redacted Version, filed on 4 July 2002 ("Appellant’s brief ") wherein the Appellant argues that by failing to comply with its disclosure obligations pursuant to Rule 68, the Prosecution materially prejudiced the Appellant’s ability to present his defence and thereby deprived him of a fair trial;2

CONSIDERING that the Prosecution’s Request refers to the hearing on appeal held on 16 December 2003, when it indicated that if the Appellant asserted that any non-disclosure of exculpatory material was intentional, the Prosecution would seek leave to file material to rebut the allegation;3

CONSIDERING that the submissions in the Appellant’s brief already suggested that the Prosecution’s alleged breach of its duties pursuant to Rule 68 was not unintentional;4

NOTING the Prosecution’s Respondent’s Brief filed confidentially on 1 May 2002, and the Public Redacted Version of the Prosecution’s Respondent’s Brief, filed on 14 June 2002 ("Respondent’s brief") wherein the Prosecution submits that the Appellant failed to indicate how and why he claims to have been prejudiced by the Prosecution’s conduct in relation to disclosure;5

CONSIDERING therefore, that the Prosecution has had a chance to respond to the Appellant’s allegations and it did so;

CONSIDERING that the parties have had ample opportunity to argue the matter in their briefs, and in fact they did;

HEREBY DISMISSES the Prosecution’s Request.

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

Done this twelfth day of May 2004
At The Hague,
The Netherlands.

___________________
Fausto Pocar
Presiding Judge

[Seal of the Tribunal]


1. Prosecution’s Request, para.4.
2. Appellant’s brief, Revised Redacted Version pp 120-123.
3. Appeal Transcript, pp 729-730 (closed session).
4. "The Prosecutor’s motive in withholding the production of Rule 68 material is clear: the Prosecutor sought the freedom to present alternative and mutually exclusive versions of the "facts" to the tribunal in different trials." Appellant’s brief, Revised Redacted Version, p 121.
5. Respondent’s brief, Public Redacted Version, paras 4.82 to 4.102.