Case No.: IT-98-33-T


    Judge Almiro Rodrigues, Presiding

    Judge Fouad Riad

    Judge Patricia Wald

    Mr. Hans Holthuis

    Decision of:
    8 May 2001







    The Office of the Prosecutor:

    Mr. Mark Harmon

    Defence Counsel:

    Mr. Nenad Petrusic

    TRIAL CHAMBER I (hereinafter the “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 (hereinafter the “Tribunal”),

    BEING SEIZED of the Prosecution’s Motion of 24 April 2001 to Re-open the Prosecutor’s Case for the Purpose of Introducing Fresh Evidence (hereinafter, the “Prosecution’s Motion”),

    NOTING the Trial Chamber’s Scheduling Order filed on 27 April 2001 (hereinafter , the “Scheduling Order”),

    BEING SEIZED of the Defence Motion of 1 May 2001 for “Disclosure of Items Relevant to Motion to Reopen” (hereinafter, the “Motion 2”),

    NOTING the Prosecution Supplemental Filing in Support of Prosecutor’s Motion to Re-open, dated 1 May, and the Prosecution’s Response to Motion 2, dated 3 May 2001,

    NOTING the Defence “Opposition to Motion to Reopen Prosecutor’s case” dated 4 May (the “Opposition”),

    PURSUANT to Articles 20 and 21 of the Statute of the Tribunal and Rules 39 , 54, and 75 of the Rules of Procedure and Evidence of the Tribunal,

    CONSIDERING that in its Motion to Re-open, the Prosecution alleges that it just entered possession into a document (hereinafter, the “Information Note”) that was provided to one of its investigators just recently1 and that would assist the Trial Chamber in determining when General Krstic became Commander of the Drina Corps;

    CONSIDERING that, in its Motion 2, the Defence seeks an order to obtain disclosure by the Prosecution of six categories of documents (hereinafter referred to as Documents in categories A to E)2, which the Defence claims it needs in order to verify whether the Prosecution exercised “due diligence ” as well as to explore “the genuineness of the letter”; that the Defence states clearly that its Motion 2 is in response to with the Prosecution’s Motion, which the Defence opposes; that the Defence asserts it is entitled to obtain disclosure of the documents pursuant to the provisions of Rules 66 (A) and (B), and 68;

    CONSIDERING, that the Prosecution indicates that, with respect to:

    - category A: it will “permit the Defence to inspect” some documents, and it has no other documents requested in this category;

    - categories B, C and D: it has no document;

    - categories E and F: the documents “fall under the ambit of Rule 70 (A) as being internal documents prepared pursuant to investigation” and “do not contain exculpatory material within the meaning of Rule 68”;

    CONSIDERING that the documents in categories E and F indeed fall within the “reports, memoranda, or other internal documents prepared by” the Prosecution , “its assistants or representatives in connection with the investigation or preparation of the case” and, as such, “are not subject to disclosure or notification under” Rules 66 and 67, as envisaged by Rule 70 (A)3; that the Defence cannot therefore , even assuming it is still possible to file such a request at this late stage of the proceedings, invoke the provisions of Rule 66 (B);

    CONSIDERING, further, that, while the Prosecution is under the continued obligation to provide the Defence with exculpatory material, the Defence did not offer, in this instance, any prima facie evidence that the Prosecution did not fulfil its obligations in this respect;

    CONSIDERING that the Defence does not offer any element, at this stage, that would tend to indicate that the Prosecution did not exercise due diligence in trying to obtain and secure the Information Letter;

    CONSIDERING indeed that, in its Opposition, the Defence suggests that the Prosecutor was not reasonably diligent and relies on a specific question4 asked by the Prosecutor to the Defence military expert, General Radinovic, to raise the issue of whether the Prosecution had received the Information Letter prior to the close of the evidence in this case as well as on some interviews, the text of which are attached to the Opposition;

    CONSIDERING nevertheless that it is obvious from the case file that the Prosecutor had ample reasons to ask the said question of General Radinovic; that the interviews by themselves do not support the interpretation the Defence gives of them;5

    CONSIDERING moreover that the trial has now come to an end; that the Trial Chamber must ensure the respect of the principles of equality of arms and of the right of the accused to a fair and expeditious trial;

    CONSIDERING therefore that both parties should be granted an opportunity to present their arguments on the issue of the re-opening of the case; that it is in the interests of justice, however, that the parties simultaneously prepare their pleadings on the admission of the Information Letter; that the Trial Chamber is informed, in particular, that the Prosecution already invited the Defence to inspect the original Information Letter in its possession; that, in granting sufficient but reasonable time for the parties to finalise their views in the matter, the Trial Chamber will both ensure fairness and expeditiousness of the trial;

    CONSIDERING, in this respect, that it is fair for the Trial Chamber to assist the Defence in obtaining the assistance of the authorities referred to in Appendix A to its Opposition (hereinafter, the “Authorities”);

    CONSIDERING that the circumstances warrant that exceptions be made, if and where appropriate, to time-limits as set forth in the Rules;


    DENIES the Defence Motion for Disclosure of Items Relevant to Motion to Reopen but NOTES that the Prosecution agrees to have the Defence inspect some of the documents referred to in this Motion;

    DECIDES to request the assistance of the Authorities by issuing a letter to them;

    STATES that, should the parties decide to use an expert report, such report shall not be filed later than 28 May 2001; that if one party does not accept an expert report, it shall so notify the other party as soon as practicable; that the expert(s) chosen by each party shall be available to appear before the court, if need be, on the dates set below;

    RESCINDS the Trial Chamber’s Scheduling Order and DECIDES that the Schedule in this case shall be as follows:

    - 5 - 6 June 2001: both parties shall be ready to present all of their arguments in the matter, whether through pleadings, witness or expert testimonies, documentary evidence or else;

    - 13 June 2001: final decision of the Trial Chamber in respect of the Prosecution’s Motion and the Information Letter;

    - 21 June 2001: final briefs;

    - 26 - 29 June 2001: closing arguments (no rebuttal);

    - 29 June, at the latest: Presiding Judge will declare the hearing closed.

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

    Done this eighth day of May 2001

    At The Hague
    The Netherlands


    Almiro Rodrigues

    Presiding Judge

    [Seal of the Tribunal]

    1 - See Confidential Annex A to the Prosecution’s Motion.
    2 - These categories correspond, respectively, to categories A 1) to A) 4, as well as B 1) and B2), in Motion 2.
    3 - Our emphasis.
    4 - On the date when the Commander of the Drina Corps, prior to General Krstic, relinquished his command. Opposition, at para. 14-15.
    5 - One interview, dated 15 September 2000, merely refers, in relevant part, to a document the provider of the Information Letter would have had in his hands on that date and read to the journalist. Another interview appears in the 29 April 2001 issue of a newspaper while the statement of the investigator in Attachment A to the Prosecution’s Motion is dated 23 April 2001 and refers to contacts with the provider of the Information Letter no earlier than during the month of April 2001.