Case No. IT-01-48-T

IN TRIAL CHAMBER I

Before:
Judge Liu Daqun, Presiding
Judge Amin El Mahdi
Judge György Szénási

Registrar:
Mr. Hans Holthuis

Decision of:
14 February 2005

PROSECUTOR

SEFER HALILOVIC

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DECISION ON PROSECUTION’S APPLICATION FOR LEAVE TO VARY ITS EXHIBIT LIST FILED PURSUANT TO RULE 65 TER (E) (iii)

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The Office of the Prosecutor:

Ms. Sureta Chana
Mr. Philip Weiner
Mr. David Re

Counsel for the Accused:

Mr. Peter Morrissey
Mr. Guénaël Mettraux

TRIAL CHAMBER I, SECTION A, ("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 ("Tribunal"),

BEING SEISED of the "Prosecution’s Application for Leave to Vary its Exhibit List Filed Pursuant to Rule 65 ter (E) (iii)" ("Application"), filed on 14 January 2005, in which the Prosecution requests leave to vary its exhibit list, filed on 8 September 2003 ("Prosecution exhibit list"), by deleting seventeen exhibits and adding thirty-four exhibits ("new exhibits");

NOTING the Defence "Response to Prosecution Motion to Add and Withdraw Exhibits" ("Response"), filed on 24 January 2005, in which the Defence submits that it does not object to the deletion of seventeen exhibits from the Prosecution exhibit list, but requests that the Trial Chamber deny the Application insofar as it concerns the addition of new exhibits;

NOTING the "Prosecution’s Report to Trial Chamber Concerning the Request for the Addition of Exhibits and Other Issues" ("Prosecution Report"), filed partly confidential on 31 January 2005, and the Defence "Response to Prosecution Report Concerning Motion to Add and to Withdraw Exhibits" ("Defence Response to Prosecution Report"), filed with a confidential Annex on 8 February 2005;

NOTING that the Trial Chamber heard the Parties on the Application during the Pre-Trial Conference on 27 January 2005¹ and the trial hearing on 10 February 2005,² during which the Prosecution stated that the reason for the filing of its Application at this stage of the proceedings was the withdrawal of a number of witnesses from its witness list, and the fact that it had received the new exhibits in late 2004;

NOTING that the Prosecution submits in the Prosecution Report that thirteen of the new exhibits emanated from a collection of 10,000 documents from the ABiH Security Archive, which the Prosecution received in April-June 2004, and made available to the Defence on the Electronic Disclosure Suite in October 2004;³

NOTING that in the Defence Response to Prosecution Report, the Defence submitted that the Prosecution did not provide the Defence with an index of the material, but instead provided the Defence with a list of ERN numbers "without any reference to the content of the document to which these numbers might refer."⁴

CONSIDERING that pursuant to Rule 65 ter (E) (iii) of the Rules of Procedure and Evidence ("Rules") the Prosecution has to file its exhibit list no later than six weeks before the Pre-Trial Conference;

CONSIDERING that pursuant to Articles 20 (1) and 21 (4) (b) of the Statute the accused is entitled to a fair and expeditious trial and to have adequate time and facilities for the preparation of his defence;

CONSIDERING that a variation of the Prosecution exhibit list at this stage of the proceedings could infringe upon those rights of the accused;

CONSIDERING therefore that the Prosecution is required to show good cause for its Application;

RECALLING that the Prosecution submits in the Prosecution Report that thirteen of the new exhibits emanated from the collection of 10,000 from the ABiH Security Archive, which the Prosecution received in April-June 2004;

NOTING that the Prosecution would have had sufficient time to file a request for variation of the exhibit list to include the exhibits found in the collection of the ABiH Security Archive prior to the six-week period before the Pre-Trial Conference;

CONSIDERING, however, that a variation in the Prosecution witness list may require a subsequent variation in the Prosecution exhibit list;

NOTING that on 7 February 2005 the Trial Chamber granted the Prosecution’s motion for variation of its witness list, filed on 16 December 2004;⁵

CONSIDERING that it is in the interests of justice and in full respect of the rights of the accused that the Defence has adequate time to prepare properly for trial, which includes the examination of the exhibits the Prosecution intends to use during trial;

CONSIDERING that sixteen of the new exhibits have been disclosed to the Defence, in accordance with the Rules, prior to the six-week period before the Pre-Trial Conference;

CONSIDERING that thirteen of the new exhibits have been provided to the Defence as part of a collection of approximately 10,000 documents in October 2004, but without a description of the content of these documents, which would have enabled the Defence to identify relevant exhibits; and that five of the new exhibits were not disclosed to the Defence before 27 January 2005; wherefore the Defence may need additional time to examine these eighteen documents;

CONSIDERING FURTHER that the Defence has not been provided with an English translation of the new exhibits;

PURSUANT TO Rules 54 and 65 ter (E) (iii) of the Rules

HEREBY GRANTS the Motion and

ORDERS the Prosecution:

1) to file a revised exhibit list by 16 February 2005;

2) to provide the Defence with an English translation of the new exhibits as soon as these translations are available to the Prosecution;

3) to introduce the new exhibits at a later stage in the proceedings in order to provide the Defence with adequate time to examine them;

INFORMS the Defence that if necessary it can seek leave for additional time to examine the new exhibits.

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

________________________
Judge Liu, Daqun
Presiding Judge

Dated this fourteenth day of February 2005,
At The Hague,
The Netherlands.