Case No.IT-01-48-PT

IN THE TRIAL CHAMBER

Before:
Judge Richard May, Presiding
Judge Patrick Lipton Robinson
Judge O-Gon Kwon

Registrar:
Mr. Hans Holthuis

Decision of:
1 April 2003

 

PROSECUTOR
v.
SEFER HALILOVIC

________________________________________________

DECISION ON DEFENCE MOTION PURSUANT TO RULE 65 TER (K) REQUESTING THE PRE-TRIAL JUDGE TO GRANT RELIEF FROM WAIVER AND TO GRANT RELIEF PURSUANT TO RULE 72

________________________________________________

The Office of the Prosecutor:

Mr. Ekkehard Withopf

Counsel for the Accused:

Mr. Ahmet Hodzic

 

THIS 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 ("International Tribunal"),

BEING SEISED of the "Defence Motion Pursuant To Rule 65 ter (K) Requesting The Pre-Trial Judge To Grant Relief From Waiver And To Grant Relief Pursuant To Rule 72” filed on 13 March 2003 (“Motion”) by Ahmet Hodzic (“Defence Counsel”) on behalf of Sefer Halilovic (“Accused”), requesting the pre-trial Judge to grant relief from failure to timely bring a preliminary motion alleging defects in the form of indictment, to review the merits of the preliminary motion, to order an amendment of the indictment, and to extend the filing deadline for the Defence pre-trial brief until such amendment of the indictment,

NOTING the "Prosecution’s Response To Defence Motion Pursuant To Rule 65 ter (K) Requesting The Pre-Trial Judge To Grant Relief From Waiver And To Grant Relief Pursuant To Rule 72" filed on 19 March 2003 ("Response") by the Office of the Prosecutor ("Prosecution"), requesting the Trial Chamber to dismiss the Motion,

NOTING the "Defence Reply To The Prosecutor’s Response Of 19 March 2003 Pursuant To Rule 65 ter (K) And Rule 72" filed on 20 March 2003 by the Defence, repeating the general substantive contents of its original Motion to aver its justification,

NOTING that the Defence seeks relief on matters, which are within the Trial Chamber’s discretion, including relief from failure to timely bring a preliminary motion, review of the merits of such motion and issue the appropriate decision, pursuant to Rules 72(A) and 127 of the Rules of Procedure and Evidence ("Rules"),1

NOTING that the time limit for the filing of the preliminary motions for the Accused expired more than a year ago on 28 November 2001,2 with no such motions filed, pursuant to Rule 72(A) of the Rules,

NOTING FURTHER that prior to a decision filed on 20 February 2003 by the Registrar, assigning the Defence Counsel to the Accused, three other defence counsel represented the Accused, each during separate periods,3

CONSIDERING that after the withdrawal of Mr. Balijagic, neither the Accused nor the two other defence counsel who represented the Accused previously raised the issues at hand, and that present Defence Counsel attended the Status Conference held on 10 February 2003,4

CONSIDERING that change of counsel is not a reason for making the order sought and the Defence has not made any other showing of good cause, warranting the Trial Chamber to grant relief from failure to timely bring the preliminary motion, to review the merits of the preliminary motion, to order an amendment to the indictment and to extend the filing deadline for the Defence pre-trial brief, pursuant to Rules 72(A) and 127 of the Rules,

CONSIDERING FURTHER that the Defence filed its pre-trial brief on 25 March 2003 pursuant to Rule 65 ter (F) of the Rules,

PURSUANT TO Rules 72(A) and 127 of the Rules

HEREBY DISMISSES the Motion.

 

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

___________________
Richard May
Presiding

Dated this first day of April 2003
At The Hague
The Netherlands

[Seal of the Tribunal]

1 - Rule 65 ter (C) of the Rules specifies that the pre-trial functions entrusted to the pre-trial Judge as being set forth in Rule 66, Rule 73 bis, Rule 73 ter and with all or part of the functions set forth in Rule 73 of the Rules. Further Rule 65 ter (K) of the Rules allows the pre-trial Judge to grant relief to a party from waiver of making pre-trial motions at the time set by the pre-trial Judge, while the filing time of a preliminary motion is not a matter for the pre-trial Judge to determine (emphasis added).
2 - Prosecution completed its Rule 66(A)(i) disclosure on 29 Oct. 2001.
3 - The previous defence counsels were as follows:
 Mr. Faruk Balijagic (“Mr. Balijagic”) : 27 September 2001 - 19 June 2002.
 Mr. Richard Soyer: 19 June 2002 - 25 September 2002.
 Mr. Bakir Caglar: 25 September 2002 - 20 February 2003.
4 - At the Status Conference, the Defence Counsel was not only aware of the possibility of being assigned as the new defence counsel to the Accused, but also in agreement that a one-month time frame to file the defence pre-trial brief would be sufficient. Status Conference Transcript, IT-01-48-PT, 10 Feb. 2002, pps 76 and 97.    

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