Case No.: IT-01-48-PT
IN THE TRIAL CHAMBER

Before:
Judge Richard May, Presiding
Judge Patrick Robinson
Judge O-Gon Kwon

Registrar:
Mr. Hans Holthuis

Decision of:
16 December 2003

PROSECUTOR

v.

SEFER HALILOVIC

_________________________________________________

DECISION ON DEFENCE MOTION FOR PARTICULARS

_________________________________________________

The Office of the Prosecutor

Mr. Ekkehard Withopf
Mr. Vladimir Tochilovsky
Ms. Maria Tuma

Counsel for the Accused

Mr. Stefan Kirsch
Mr. Guénaël Mettraux

 

THIS TRIAL 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 “Motion for Particulars” filed partly confidentially by the Defence of Sefer Halilovic (“Accused”) on 17 November 2003 (“Motion”), requesting an order pursuant to Rule 54 of the Rules of Procedure and Evidence of the International Tribunal (“Rules”) and Article 21(4)(a) of the Statute of the International Tribunal (“Statute”) whereby the Office of the Prosecutor (“Prosecution”) would provide certain particulars sought by the Defence, which are contained in a letter dated 31 October 2003 to the Prosecution (“Letter”),1

NOTING that the Defence describes the particulars sought as essentially falling into five categories (i) general context; (ii) elements of the crime charged; (iii ) alleged role and position of the Accused; (iv) alleged perpetrators; and (v) victims ,2

NOTING the “Prosecution’s Response To Defence Motion For Particulars” filed by the Prosecution on 1 December 2003 (“Response”) and the Corrigendum to the Response filed by the Prosecution on 2 December 2003, together requesting the Motion to be denied in its entirety based upon procedural and substantive arguments,3

NOTING the procedural arguments of the Prosecution that Rule 54 of the Rules can not be invoked because Rule 72 of the Rules is the lex specialis governing defects in the form of indictment, which includes filling in gaps that may exist in the indictment, and that even if deemed that Rule 54 of the Rules may be invoked to seek particulars, the method expounded in the jurisprudence of the International Tribunal has not been followed by the Defence,4

NOTING the substantive argument of the Prosecution that the particulars requested by the Defence are either contained in the indictment, pre-trial brief and discovery materials, or are evidence, which are matters to be determined at trial,5

NOTING the “Reply RE Motion for Particulars” filed by the Defence on 4 December 2003 (“Reply”), responding to the procedural and substantive arguments raised in the Response of the Prosecution and reiterating the request of the Defence in its Motion, while stating its satisfaction with aspects of the Response in respect to some of the requested particulars,6

NOTING that the Reply requests leave to file the Reply pursuant to Rule 126 bis of the Rules and to exceed the page limit allowed for the Reply,7

NOTING that the deadline to file a preliminary motion was 5 December 2001 and that this Trial Chamber previously issued decisions denying the request from the Defence to grant relief from its failure to timely bring a preliminary motion alleging defects in the form of indictment,8

CONSIDERING that there are other avenues for seeking additional particulars, besides through a motion pursuant to Rule 72(A)(ii) of the Rules alleging defects in the form of indictment, and that the Trial Chambers of the International Tribunal have endorsed the use of a motion for particulars, where the indictment is not so vague as to be defective on its face, but an accused needs more information to prepare for trial,9

NOTING that prior to submitting a motion for particulars, the Defence must initially make a specific and direct request for the information to the Prosecution , and the Prosecution must fail to provide sufficient information,10

NOTING the Letter and the subsequent response from the Prosecution to the Defence that it would not respond to the Letter,11

CONSIDERING that discovery materials play a role in fulfilling the rights of the Accused to be informed of the nature and cause of the charge against him as prescribed under Article 21(4)(a) of the Statute, although such materials can not be used to cure a defective indictment,12

CONSIDERING that when a motion for particulars is reviewed, the materials already in the possession of the Defence, including discovery materials, will be considered by the Trial Chamber in order to determine whether the requested particulars are necessary for the Accused to prepare his defence and to avoid prejudicial surprise,13

CONSIDERING that the particulars requested are (i) contained in the indictment, pre-trial brief of the Prosecution, or discovery materials; or (ii) evidentiary matters for trial, and thus, the rights of the Accused to be informed promptly and in detail the nature and cause of the charge against him, recognised under Article  21 (4)(a) of the Statute, have not been affected,

CONSIDERING FURTHER that the pre-trial brief of the Defence was filed on 25 March 2003,14

PURSUANT TO Rule 54 of the Rules,

HEREBY ACCEPTS the Reply as duly filed and DISMISSES the Motion.

 

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

_____________
O-Gon Kwon
Pre-Trial Judge

Dated this sixteenth day of December 2003
At The Hague
The Netherlands

[Seal of the Tribunal]

1 - Motion, para. 14. The Letter is attached as a confidential annex to the Motion.
2 - Ibid, para. 16.
3 - Although the Prosecution’s main argument is that the Motion is procedurally flawed, “for the record” the Prosecution responds substantively to the particulars requested by the Defence. See Response, paras 8-19.
4 - Response, paras 8 and 18-22.
5 - Ibid, para. 5.
6 - Reply, para.17
7 - Ibid, para. 19. See Practice Directions On the Length of Briefs and Motions, 5 Mar. 2002, para. 5.
8 - “Decision on Defence Motion Pursuant to Rule 65 ter (K) Requesting the Pre-Trial Judge to Grant Relief from Waiver and to Grant Relief Pursuant to Rule 72,” Prosecutor v. Sefer Halilovic, Case No. IT-01-48-PT, 1 April 2003; “Decision on Defence Complaint on the Trial Chamber Decision,” Prosecutor v. Sefer Halilovic, Case No. IT-01-48-PT, 11 July 2003.
9 - “Decision on Defendant Vinko Martinovic’s Objection to the Indictment,” Prosecutor v. Mladen Naletilic and Vinko Martinovic, Case No. IT-98-34-PT, 15 February 2000 (“Naletilic Decision”), para. 17, citing “Decision on Motion by the Accused Zejnil Delalic Based on Defects in the Form of the Indictment,” Prosecutor v. Zejnil Delalic et al, Case No. IT-96-21-T, 2 Oct. 1996, “Decision on the Accused Mucic’s Motion for Particulars,” Prosecutor v. Zejnil Delalic et al. Case No. IT-96-21-T, 26 June 1996 and “Decision on Defence Motion on Form of Indictment,” Prosecutor v. Dusko Tadic, Case No. IT-94-1-T, 14 Nov. 1995.
10 - Ibid.
11 - See supra note 4, para. 7 and note 7, para.3.
12 - See supra note 9, para. 16.
13 - Ibid, para. 17.
14 - Pursuant to the Rules, the pre-trial brief of the Defence sets out the nature of the Accused’s defence in general terms, the matters with which and why the Accused takes issues in the pre-trial brief of the Prosecution.