Case No.: IT-01-48-PT


Judge O-Gon Kwon, Pre-Trial Judge

Mr. Hans Holthuis

Decision of:
14 January 2005







The Office of the Prosecutor

Mr. Philip Weiner
Ms. Sureta Chana

Counsel for the Accused

Mr. Peter Morrissey
Mr. Guénaël Mettraux


I, O-Gon Kwon, pre-trial Judge 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"),

HAVING BEEN APPOINTED as pre-trial Judge in this case by virtue of the Order of the Trial Chamber dated 10 December 2001,

BEING SEISED of a partly confidential "Prosecution’s Application for Leave to Disclose Rule 66(A)(ii) Material Pursuant to Trial Chamber’s Decision of 7 May 2004" filed on 12 January 2005 ("Motion") by the Office of the Prosecutor ("Prosecution"), seeking leave from the Trial Chamber to disclose materials pertaining to three witnesses for the Prosecution, which falls under Rule 66 (A)(ii) of the Rules of Procedure and Evidence of the International Tribunal ("Rules"), to the Defence of Sefer Halilović (“Accused”),

NOTING that, pursuant to Rule 65 ter of the Rules, the "pre-trial Judge shall ensure that the proceedings are not unduly delayed and shall take any measure necessary to prepare the case for a fair and expeditious trial,"(1) and the "pre-trial Judge shall be entrusted with all of the pre-trial functions set forth in Rule 66, Rule 67, Rule 73 bis and Rule 73 ter, and with all or part of the function set forth in Rule 73,"(2)

NOTING that Rule 66 (A)(ii) of the Rules provides:

(A) Subject to the provisions of Rules 53 and 69, the Prosecutor shall make available to the defence in a language which the accused understands

(i) …

(ii) within the time-limit prescribed by the Trial Chamber or by the pre-trial Judge appointed pursuant to Rule 65 ter, copies of the statements of all witnesses whom the Prosecutor intends to call to testify at trial, and copies of all written statements taken in accordance with Rule 92 bis; copies of the statements of additional prosecution witnesses shall be made available to the defence when a decision is made to call those witnesses.

NOTING that the Motion was submitted pursuant to the Trial Chamber’s decision of 7 May 2004,(3) which ordered that, unless otherwise agreed between the parties, any further disclosure of material falling under Rule 66(A)(ii) of the Rules shall only be made with leave of the pre-trial Judge, and that the Prosecution shall provide the pre-trial Judge with information regarding the materials,(4)

NOTING that the materials for which the Prosecution seeks leave to disclose to the Defence are statements of (i) Salko Gusić dated 15 November 2004; (ii) Selmo Cikotić dated 12 November 2004; and Marinko Drežnjak dated 28 September 1995 (“Rule 66(A)(ii) Materials”), and that the Prosecution provides that the Rule 66(A)(ii) Materials were either received late or inadvertently missed during the searches of documents received by the Prosecution,

CONSIDERING that the rights of the Accused include the right to have adequate time and facilities for the preparation of his defence, as set forth in Article 21 of the Statute of the International Tribunal ("Statute"), and that the trial in this matter is expected to commence on 24 January 2005,

CONSIDERING that the disclosure of the Rule 66(A)(ii) Materials is necessary for the preparation or conduct of trial pursuant to Rule 54 of the Rules,

PURSUANT TO Article 21 of the Statute and Rules 54, 65 ter, 66 (A)(ii) of the Rules,

HEREBY GRANT the Motion and ORDER the Prosecution to immediately disclose the Rule 66(A)(ii) Materials.


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

O-Gon Kwon
Pre-Trial Judge

Dated this fourteenth day of January 2005
At The Hague
The Netherlands

[Seal of the Tribunal]

1. See Rule 65 ter (B).
2. See Rule 65 ter (C).
3. Prosecutor v. Halilovic, Case No. IT-01-48-PT, "Decision on Defence Objection to Prosecution Continued Disclosure," 7 May 2004.
4. The Trial Chamber ordered:
unless otherwise agreed between the Prosecution and the defence, any further disclosure shall only be made with the leave of the pre-trial Judge and the Prosecution shall, prior to such disclosure, provide him with the information set out in operative paragraph (2) above.
Paragraph (2) of the order provided:
    1. for each item disclosed pursuant to Rule 66 (A)(ii), the circumstances in which the additional material was obtained, the reason why the material was not disclosed within the time-frame set by the pre-trial Judge, and identifying any new material or allegations not already raised in other statements of the same witness already disclosed; and
    2. for each item disclosed pursuant to Rule 68, identifying whether the material forms part of a collection of material made available to all defence teams in electronic form and, if not, explaining why the material was not available for disclosure within the time-frame set by the pre-trial Judge;