Case No. IT-01-48-T

IN TRIAL CHAMBER I, Section A

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

Registrar:
Mr. Hans Holthuis

Decision of:
11 March 2005

PROSECUTOR

v.

SEFER HALILOVIC

_____________________________________

DECISION ON URGENT MOTION FOR IMMEDIATE DISCLOSURE

_____________________________________

The Office of the Prosecutor:

Mr. Philip Weiner
Ms. Sureta Chana

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 Defence “Urgent Motion for Immediate Disclosure”, filed on 16 December 2004 with two annexes (“Motion”), which contained, inter alia,1 a request that the Trial Chamber orders the Office of the Prosecutor (“Prosecution”) to disclose material related to Rasim Delic,2 (“Motion for Disclosure related to Rasim Delic”), and a request for disclosure of material related to Prosecution witnesses regarded as “suspects” by the Prosecution (“Motion for Disclosure related to Prosecution witnesses in general”),

NOTING that in the Motion for Disclosure related to Rasim Delic, the Defence requests that the Prosecution be ordered to immediately disclose: (1) all material pertaining to charges intended to be brought against the witness or any other material suggesting his involvement or responsibility in the commission of serious crimes, (2) the draft indictment against Rasim Delic or a description of the factual basis and charges relevant to this investigation, and (3) the date at which the Prosecution intends to decide whether to indict or not to indict Rasim Delic,

NOTING that in the Motion for Disclosure related to Prosecution witnesses in general, the Defence requests that the Prosecution: (1) provides the Defence with, and identifies, all material which tends to suggest that a proposed Prosecution witness might be responsible for serious violations of international humanitarian law or material that otherwise forms the basis of its belief that the witness should be regarded as suspect, and (2) identifies those witnesses whom, the Prosecution knows, are being investigated for serious criminal offences by other authorities or entities, or at least, to provide the Defence with all material which is relevant to this matter (indictments, requests from local authorities based on the Rules of the Road agreement, etc.),

NOTING that in the Motion the Defence submits that “[i]nformation to the effect that a witness has committed criminal offences, particularly serious offences would, without question, be relevant to his or her credit as a witness, whether or not the crimes in relation to which he is suspected are related to those relevant to the case in which he would appear as a witness,”3 and therefore fall within the scope of Rule 68 of the Rules of Procedure and Evidence (“Rules”); and that in any case “even if that material were not to be regarded as Rule 68 material, it should still be disclosed pursuant to Rule 66 and the reciprocal disclosure agreement that exists between the parties in this case”,4

NOTING that in support of both Motions the Defence makes reference to the “Decision on Defence Motion for Identification of Suspects and Other Categories among its Proposed Witnesses”, issued on 14 November 2003, whereby Trial Chamber III, which was seised of the case at that time, stated that the scope of all information requested by the Defence [among other things, “all information collected by the prosecution suggesting that any of its proposed witnesses may have committed or may have taken part in the commission (in whatever capacity) of any criminal offence (including offences pursuant to domestic laws)”]5 falls within the disclosure obligations of the Prosecution but that the degree of specificity required by the Defence such as the production of a list of witnesses in relation to the status of “suspect” is not an obligation on the part of the Prosecution,

NOTING that, in relation to the Motion for Disclosure related to Rasim Delic, the Prosecution stated in the “Prosecution’s Response to 'Urgent Motion for Immediate Disclosure'”, filed on 22 December 2004 (“Prosecution’s Response”), that it has disclosed all known material within Rule 68 and Rule 66 (A) (ii) of the Rules relevant to Rasim Delic,

NOTING that the Defence reiterated, in its “Reply re Urgent Motion for Disclosure ”, filed on 27 December 2004, in which it was seeking leave to file a reply to the Prosecution’s Response, and during the Pre-Trial Conference of 27 January 2005, that the material related to Rasim Delic should be disclosed,6

NOTING that this case was transferred from Trial Chamber III to Trial Chamber I on 17 January 2005,7

CONSIDERING that by “Decision on Prosecution’s Motion to Vary its Rule 65 ter Witness List”, issued by the Trial Chamber on 7 February 2005, Rasim Delic has been withdrawn from the Prosecution witness list and is therefore no longer a witness in the present case,

CONSIDERING that on 24 February 2005, the Indictment with the detailed charges against Rasim Delic became public, that Rasim Delic was transferred to the Detention Unit in The Hague and that his initial appearance was held on 3 March 2005,

CONSIDERING that during a closed session hearing held on 3 March 2005 (“closed session hearing”), the Prosecution submitted again that it had disclosed to the Defence any Rule 68 material resulting from the investigations of Rasim Delic, which had “any implication on the incidents that Mr. Halilovic [is] charged with”,8

NOTING the recent developments concerning the status of Rasim Delic, the submissions of the Prosecution that it has disclosed all relevant material to the Defence, and the position of the Defence that during the closed session hearing did not reiterate its request for disclosure of material,9

CONSIDERING that pursuant to Rules 73 and 75 (G) (ii) of the Rules the Defence has at any time the possibility to file an application for disclosure of material pertaining to Rasim Delic with the Trial Chamber seised of the case against Rasim Delic, if it deems it necessary,

NOTING that, in relation to the Motion for Disclosure related to Prosecution witnesses in general, the Prosecution, in the Prosecution’s Response, stated that it has no better information than what it has already provided to the Defence, that it has disclosed “all material that it can, relating to its own investigations”; and that it has disclosed all relevant “Rules of the Road” material relating to its witnesses,

NOTING that during the Pre-Trial Conference of 27 January 2005, the Defence reiterated its request that the Prosecution disclose “the material concerning the status as suspect of each and every Prosecution witness in this case”,10 and that during the closed session hearing the Defence clarified that its request aims at knowing if “any of the Prosecution witnesses [is] regarded as a suspect, […], or has been indicted, […]; and if so, on what material is [the witness] regarded as a suspect, […], or, […], has been indicted”,11

CONSIDERING that during the closed session hearing the Prosecution replied that, in view of the fact that all investigations had to be completed by the end of 2004, there are no persons on the Prosecution witness list who are regarded as suspects or are indicted by the Prosecution,12

NOTING that during the closed session hearing the Prosecution also reiterated its compliance with its disclosure obligation under Rule 68 and indicated that on -going searches are conducted on all witnesses and that new material is continually made available to the Defence on the Electronic Disclosure Suite; and that any material indicating that a particular witness has committed any crime is considered to be Rule 68 material by the Prosecution and will therefore be disclosed to the Defence,13

CONSIDERING that Rule 68 of the Rules provides for a continuing obligation of the Prosecution to disclose to the Defence, as soon as practicable, “any material which in the actual knowledge of the Prosecutor may suggest the innocence or mitigate the guilt of the accused or affect the credibility of Prosecution evidence”,

NOTING the “Decision to Vary the Decision on Defence Objection to Prosecution Continued Disclosure”, issued on 16 February 2005, by which the Trial Chamber decided that the Prosecution need not request leave of the Trial Chamber to discharge its obligation for disclosure pursuant to Rule 68 of the Rules;

CONSIDERING that the Trial Chamber, based on the submissions of the parties,14 is satisfied that the Prosecution is complying with its obligation to disclose exculpatory material to the Defence as soon as practicable in accordance to Rule 68,

CONSIDERING that the Defence can at any time challenge the Prosecution’s compliance with respect to its obligation to disclose exculpatory material under Rule 68, if it has reasons to believe that the Prosecution failed to perform its duty in this respect and if it presents a prima facie case which would make probable the exculpatory nature of the materials sought,

PURSUANT to Rules 54, and 73 of the Rules,

HEREBY DISMISSES the Disclosure Request related to Rasim Delic and the Disclosure Request related to Prosecution witnesses in general.

 

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

__________________
Judge Liu Daqun,
Presiding Judge

Dated this eleventh day of March 2005,
At The Hague,
The Netherlands.

[Seal of the Tribunal]


1 - The Motion contained seven different requests for disclosure pursuant to Rule 66 and/or Rule 68 of the Rules, all of which have been decided upon by the Trial Chamber, apart from the two requests that are the object of the present decision.
2 - In the Motion, Rasim Delic was referred to as “Witness X”.
3 - Motion, para. 6. This argument was reiterated in the following submission by the Defence in this matter.
4 - Motion, para. 10.
5 - Defence Motion for Identification of Suspects and Other Categories Among its Proposed Witnesses, 8 October 2003, para. 4.
6 - Pre-Trial Conference, 27 January 2005, T. 44-45.
7 - President’s “Order Reassigning a Case to a Trial Chamber”, 17 January 2005.
8 - Closed session hearing, 3 March 2005, T.13.
9 - Closed session hearing, 3 March 2005, T.11-16.
10 - Pre-Trial Conference, 27 January 2005, T. 45.
11 - Closed session hearing, 3 March 2005, T.19.
12 - Closed session hearing, 3 March 2005, T.19.
13 - Closed session hearing, 3 March 2005, T.17-18.
14 - See also the submission by the Defence during closed session hearing, T. 18-19.