Case No. IT-95-13/1-PT
IN TRIAL CHAMBER II
Before:
Judge Kevin Parker, Pre-Trial Judge
Registrar:
Mr. Hans Holthuis
Decision:
22 September 2005
PROSECUTOR
v.
MILE MRKSIC
MIROSLAV RADIC
VESELIN SLJIVANCANIN
_____________________________________________
DECISION ON JOINT DEFENCE MOTION FOR POSTPONEMENT
OF TRIAL
_____________________________________________
The Office of the Prosecutor:
Mr. Marks Moore
Counsel for the Accused:
Mr. Miroslav Vasic for Mile Mrksic
Mr. Borivoje Borovic
and Ms. Mira Tapuskovic for Miroslav Radic
Mr.
Novak Lukic and Mr. Momcilo Bulatovic for Veselin
Sljivancanin
I. BACKGROUND
- This decision is in respect of the “Joint Defence
Motion for Additional Time for Preparation of the
Defence” (“Motion”) filed on 13 September 2005 before
me, Kevin Parker, the designated Pre-Trial Judge
in this matter by virtue of “Order
Assigning a Pre-Trial Judge” issued on 8 September
2005 by the then Pre-Trial Judge Carmel Agius. By
this Motion the Defence seeks additional time for preparation
of the Defence and a four to six week postponement
of the commencement of the trial. The Prosecution
responded to the Motion on 19 September 2005 (“Response”)
adopting a neutral position with respect to the relief
sought but disputing some of the arguments put forward
by the Defence in support of the Motion.
- By a “Decision on Joint Defence Motion for Extension
of Time” issued by Judge
Carmel Agius on 31 August 2005 the trial is listed
to commence on 3 October 2005
when opening statements of counsel are to be heard,
with evidence to commence on 11 October 2005.
II. SUBMISSIONS
- In support of their motion for postponement
of trial the Defence submit that in the past two
months the Prosecution has increased significantly
the number and amended the list of witnesses it
intends to call at the trial and that three weeks
before the scheduled commencement of the trial approximately
15,000 pages and 100 hours of audio and video material
have been disclosed to the Defence.1
More specifically, it is submitted that the witness
list provided by the Prosecution pursuant to Rule 65ter of
the Rules of Procedure and Evidence (“Rules”) on
19 July 2005 contained 32 new witnesses in addition
to the previously submitted witness list and that
on 29 August 2005 this list was amended further by
the withdrawal of 18 witnesses and the addition of
a further 23 new witnesses.2
It is submitted that part of the Rule 66(A)(ii) material
with respect to the witness list of 19 July 2005 was
disclosed to the Defence in English on 29 July 2005
and in the language of the Accused on 25 August 2005.3
It is submitted that only two binders of exculpatory
material under Rule 68 have been provided to the Defence
on 19 July 2005.
4
Finally, it is submitted that the reports of two expert
witnesses have not been disclosed to the Defence,
and that, generally, as of the date of filing of this
Motion, the Defence have not received any information
with respect to eight witnesses.5
- The Prosecution responds that it is in a position
to commence the trial as scheduled on 3 October 2005.6 It
accepts that a large amount of documentary material
has been served on the Defence after the Referral
Bench granted the motion to withdraw the Rule 11bis referral
motion on 30 June 2005 but disputes some of the
factual basis advanced by the Defence in support
of the Motion. More specifically, the Prosecution
submits that on 29 July 2005 it had disclosed all
additional witness statements with the exception
of the statements of three witnesses who were either
rejected or whose statements were unavailable and
that the B/C/S version of this material was disclosed
to the Defence on 19 August 2005. In its submission,
all Defence teams have displayed sufficient knowledge
of English to understand and analyse the material
disclosed on 29 July 2005.7 Further,
it submits that it has disclosed Rule 68 material
to the Defence on three occasions in March, May
and June 2005 and that it will continue to comply
with its Rule 68 disclosure obligation.8 With
respect to the Defence submission that no information
has been provided to them with respect to seven
witnesses listed under a pseudonym in the witness
list of 29 August 2005
the Prosecution responds that it has provided summaries
of the evidence to be given by all witnesses on
the list, including the seven sensitive witnesses.
It is contended that this should have given adequate
notice of the nature of their evidence.9
It also submits that the witness list of 29 August
2005 does not entail significant differences from
the witness list of 19 July 2005.10
Finally, with respect to the expert witnesses it intends
to call the Prosecution submits that four expert reports
had been disclosed to the Defence in English and B/C/S
earlier in the pre-trial stage, while the reports of
Andrew Pringle and Reynaud Theunens have been disclosed
to the Defence in English on 10 and 14 September 2005,
respectively.11 It
accepts that these reports have not yet been provided
to the Defence in B/C/S. The Prosecution pledges that
it is continuing with the completion of its disclosure
obligations under Rules 66 and 68 of the Rules which
will result in additional materials being provided
to the Defence in the near future, the vast majority
of which, in the Prosecution submission, by the first
week of October 2005.12
III. DISCUSSION
- Article 21 of the Statute guarantees the rights
of accused before this Tribunal, including to have
adequate time and facilities for the preparation
of their defence and their right to examine or have
examined witnesses against them.13
In a matter such as this the issue is whether the time
given to an accused is “objectively
adequate to permit the accused to set forth his case
in a manner consistent with his rights.”14 The issue of whether
delayed disclosure is prejudicial to the rights of
the accused is dependent,
inter alia, on the materiality of what is disclosed
late to the question of the accused’s criminal responsibility.15
- In the present case, it is accepted that a
very significant amount of new material has been
disclosed to the Defence in the last two months.
The trial is scheduled to commence within two weeks.
The Rule 65ter witness list submitted by the
Prosecution on 19 July 2005 included 32 new witnesses
in addition to the 52 witnesses previously on the
Prosecution’s witness list. Their statements were
first disclosed to the Defence in English on 29 July
2005. While the parties disagree as to the exact
date, it is undisputed that the written statements
of these new witnesses were not disclosed to the
Defence in B/C/S until approximately one month later,
i.e. on 19 or 25 August 2005. Rule 66(A) of the
Rules requires the Prosecution to make these statements
available to the Defence in a language which the
Accused understand as the Accused must be able
to understand the Prosecution case and to instruct
counsel. The argument of the Prosecution that the
Defence teams have sufficient knowledge of English
to be able to analyze the statements disclosed
on 29 July cannot be supported, as this ignores
the need for the Accused to be able to instruct
counsel adequately.
- Further, it is confirmed by the Prosecution’s
Response that the reports of two material expert
witnesses Andrew Pringle and Reynaud Theunens were
not disclosed to the Defence even in English until
approximately three weeks before the scheduled commencement
of the trial. The report of Andrew Pringle appears
to be dealing with issues of command concerning
the present case and the report of Reynaud Theunens
, an intelligence and military analyst at the Office
of the Prosecutor, with issues related to the SFRY
Armed Forces OG South. Both reports may be highly
relevant to the question of the Accused’ individual
criminal responsibility. One of these reports is
extremely lengthy and includes hundreds of exhibits.
These significant expert reports have not yet been
disclosed in the language of the Accused.
- In view of the above, and taking into account,
in particular, the high number of witnesses added
to the Prosecution Rule 65ter witness list
less than three months before the scheduled commencement
of the trial and the significant amount of related
material disclosed to the Defence in the past month
and the as yet incomplete disclosure of two significant
expert reports, it is apparent that the Defence reasonably
requires some additional time to adequately prepare
its case and, in particular, to prepare for cross-examination.
On the material presently before me it is not obvious,
however, that a further delay of four-six weeks,
as sought by the Defence, is really justified. I
am presently persuaded that the commencement of the
presentation of evidence should be delayed for two
weeks from the date presently fixed, and the date
scheduled for the commencement of the trial and the
opening statements of counsel should be delayed
by a week.
- It is also noted that the Prosecution has indicated
that the Rule 66 and Rule 68 disclosure is still
continuing. This will need to be duly considered
by the Defence together with a large amount of material
that has been disclosed to the Defence in the last
month. It is not possible to anticipate what will
be further disclosed to the Defence before the commencement
of the trial and whether that late disclosure will
present any particular difficulties. The possibility
that some particular and further procedural order
may prove necessary to ensure fairness to the Defence
cannot be discarded at this stage.
IV. CONCLUSION
FOR THE FOREGOING REASONS and PURSUANT TO Rules
54, 65ter and
73bis of the Rules
HEREBY GRANT THE MOTION IN PART and ORDER that:
The orders made by the Pre-Trial Judge of 31 August
2005 are varied so that:
(i) A Pre-Trial Conference shall be held on Monday,
10 October 2005.
(ii) The Prosecution, and, if desired, the Defence,
shall make their opening statements on Monday, 10 October 2005
and Tuesday, 11 October 2005.
(iii) The Prosecution shall commence the presentation
of its evidence on Tuesday, 25 October 2005.
Done in English and French, the English version being
authoritative.
______________________
Judge Kevin Parker
Pre-Trial Judge
Dated this twenty-second day of September 2005
At The Hague
The Netherlands
[Seal of the Tribunal]
1 - Motion, paras 17, 18, 20.
2 - Motion,
paras 8, 10.
3 - Motion,
para 9.
4 - Motion,
para 9.
5 - Motion,
paras 10, 15, 20.
6 - Response,
para 11.
7 - Response,
para 6.
8 - Response,
para 6.
9 - Response,
para 7.
10 - Response,
para 7.
11 - Response,
para 8, footnotes 6-12.
12 - Response,
para 11.
13 - Article
21, para 4(b) and (e).
14 - Prosecutor
v. Naser Oric, Case No. IT-03-68-AR73.2, Interlocutory
Decision on Length of Defence Case, 20 July 2005,
para 8.
15 - Prosecutor
v. Zoran Kupreskic et al, Case No IT-95-16-A, Judgement,
23 October 2001, para 120.
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