IT-09-92-PT D38754 - D38748 26 April 2012 THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA

38754 SF

Case No: IT-09-92-PT

BEFORE THE PRE-TRIAL CHAMBER

Before:

Judge Alphons Orie, Presiding Judge Bakone Justice Moloto Judge Christoph Flgge Mr. John Hocking 26 April 2012

Registrar: DATE:

THE PROSECUTOR V. RATKO MLADI

Public

RESPONSE TO PROSECUTION REQUEST FOR EXTENSION OF RULE 68(I) DISCLOSURE DEADLINE

The Office of the Prosecutor: Mr. Dermot Groome Mr. Peter McCloskey Counsel for the Accused: Mr. Branko Lukic Mr. Miodrag Stojanovic

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THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA

IT-09-92-PT THE PROSECUTOR v. RATKO MLADIC Public

RESPONSE TO PROSECUTION REQUEST FOR EXTENSION OF RULE 68(I) DISCLOSURE DEADLINE

The Accused, RATKO MLADIC, by and through his counsel of record, hereby files the instant Response Brief, and states as follows:

I.

INTRODUCTION AND PROCEDURAL BACKGROUND

1. On 13 April 2012 the Prosecution filed their Prosecution Request for Extension of Rule 68(I) Disclosure Deadline (hereafter Prosecution Motion) seeking a further extension of the deadline to disclose Rule 68(i) materials, to 8 June 2012. It should be noted in this regard that the Prosecution deadline has been extended previously, and already negatively impacts on the ability of the Defence to prepare for the May 2012 trial start date, and the Prosecution Motion itself seeks to extend that deadline until approximately 3 weeks after the start of the trial. 2. By way of a brief background, it should be recalled that this is not the first time that the Prosecution has sought an extension of the Rule 68(i) deadline for disclosure of exculpatory material relevant to the Prosecution witnesses named on their Rule 65ter list. 3. On 11 April 2012, just three days before the Prosecution Motion, by way of an informal email correspondence the staff of the Chamber advised the parties that:

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The Chamber has decided to grant the relief sought by the Prosecution in its Request for Reconsideration of Trial Chambers 6 March 2012 Decision on Deadline for Rule 68 (i) Disclosure Relating to Witness List, filed on 23 March 2012. As such, the deadline for disclosure of any Rule 68 (i) material for the witnesses the Prosecution intends to call before the summer break is set to 27 April 2012 and to 29 June 2012 for all its remaining witnesses. The Chamber further denies, without prejudice, the Defence request for correlative extension of the start of the trial, made in its Response filed on 4 April 2012. This decision, including reasons, will be put on the record on a later stage. 4. It should be recalled that on 23 March 2012 the Prosecution had filed a

Request for Re-consideration of the Chambers Decision on their First Motion for extension of the Rule 68(i) deadline, after said decision denied the prosecution request for a rolling deadline, but did extend the deadline, from 12 March 2012 to 2 April 2012. 5. Specifically the 6 March 2012 Chamber Decision was in the form of an email The Chamber has decided to extend the deadline for Rule 68(i) disclosure relating to the Prosecution's witness list from 12 March 2012 to 2 April 2012. It has further decided to deny the procedure for disclosure proposed by the Prosecution in its 29 February 2012 motion. The Chamber has also decided to deny, without prejudice, the Defence request for postponement of the start of trial (contained in the Defence response, para. 20(b)). 6. The Original Motion of the Prosecution had sought a Rolling Deadline for

correspondence, setting forth:

the disclosure of Rule 68(i) materials. 7. It should be noted in this regard that the Defence has consistently raised

serious concerns about the delays in Rule 68(i) disclosure and the negative impact this has on the ability of the Defence to be prepared for trial, and the effective cross-examination of prosecution witnesses who are the subject of the Rule 68(i) disclosure. The Defence takes the opportunity to once again raise those concerns, which are all the more pertinent now that
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the Prosecution has announced that it cannot even provide 30 day prior notice of Rule 68(i) materials for the witnesses it intends to call in May 2012.1 8. At the Rule 65ter meeting held on 19 April 2012, the Defence already set out

its basic concerns relative to the Prosecution Motion, but was directed by the Chamber to formally file the instant Response to place the same on the record.2 II. 9. SUBMISSION AND ARGUMENT While the Defence is sympathetic towards the problems encountered by the

Prosecution that are preventing their ability to disclose Rule 68(i) material in a timely manner, it must be understood that the large quantity of materials that the Prosecution is reviewing undoubtedly means the Defence too will be called upon to review a large amount of material once disclosed. 10. While we will not try to assign fault for the untimely disclosure of Rule 68(i)

materials, it is undeniable that as a direct and proximate result of the untimely disclosure and failure to disclose, the amount of time that the Defence will have access to this said materials and the ability to analyze and review the same in advance of cross-examining the Prosecution witnesses has been drastically shortened. In dealing with remedies or sanctions that should be entered upon a breach of disclosure obligations by the Prosecution, the caselaw and the Rules do not require a showing of malice before sanctions may be imposed.3 11. If the Chamber continually extends the Prosecution deadline for Rule 68(i)

disclosure without adjustments to the trial start date, then the Defence finds itself in a difficult situation of having less and less time to review the same, causing an injustice to the Accused, forcing him to cross-examine witnesses without adequate time to analyze and review the material that the Prosecution believes to fall under Rule 68, as to those same witnesses. 12. Rule 68 places an obligation on the part of the Prosecution that is of

paramount importance to the fairness of the proceedings, and the due process rights of the
1 2

Prosecution Motion para. 10 19 April 2012 Rule 65ter Tr.349 3 Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 190

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Accused. The obligation to disclose under Rule 68 is as important as the obligation to prosecute.4 In pursuit of justice, the disclosure of Rule 68 material to the defence is of paramount importance to ensure the fairness of proceedings before the Tribunal.5 The disclosure of Rule 68 material is fundamental to the fairness of proceedings before the Tribunal, and considerations of fairness are the overriding factor in any determination of whether the governing Rule has been breached.6 13. In regards to material that may impeach its own witnesses, the Prosecution

also has a duty to provide material to the Defence, before, during, and after the witness testimony. Per the relevant caselaw, if the amount of material is extensive, the parties are entitled to request an adjournment in order to properly prepare themselves.7 Thus it is reasonable and proper to adjust the trial start date to account for the delays in disclosure that have resulted in the instant case. 14. Also under the caselaw, a Six-week suspension of trial was found warranted

by prosecutions late disclosure of 32,000 pages of Rule 68 material, as it is untenable to expect the defence to be able to review this material during an ongoing trial.8 Even if some solution is reached whereby the Prosecution is able to disclose the material for the first witnesses by 30 April 2012, this would still require the Defence to review and analyze the same DURING the trial, which would be untenable and is not a substitute for having had time to review the same prior to the commencement of trial. 15. Respectfully, the delays in Rule 68(i) disclosure sought by the Prosecution, We cannot be ready to cross-examine Prosecution

coupled with the insistence on the part of the Chamber that Trial start in May 2012, create a untenable position for the Defence. witnesses if we have not had a chance to look at material the Prosecution says is important to
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 183, 242; Prosecutor v Brdjanin, No. IT-99-36-A, Decision on Appellants Motion for Disclosure Pursuant to Rule 68 and Motion for an Order the Registrar to Disclose Certain Materials (7 December 2004); Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecutions Request for Reconsideration of Trial Chambers 11 November 2010 Decision (10 December 2010) at para. 10 5 Prosecutor v Oric, No. IT-03-68-T, Decision on Ongoing Complaints About Prosecutorial Non-Compliance With Rule 68 of the Rules (13 December 2005) at para. 20 6 Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 188 7 Prosecutor v Krstic, No. IT-98-33-A, Judgement (19 April 2004) at para. 206 8 Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accuseds Motion for Fourth Suspension of Proceedings (16 February 2011) at para. 11
4

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undermine their own evidence. While the record reflects that the Prosecution has hired an additional 16 staff to review the material and perform searches, and brought on 5 more trial counsel, we on the Defence still have the same limited number of people and limited resources to review the material once it is disclosed to us, and our people cannot work on our own, in that we have to first receive the material before we can do anything about it. We cannot create or discover the material because only the Prosecution has it. And until they give it to us we cannot analyze or properly prepare for the witnesses. 16. The delays in disclosure already have created problems that cannot be

resolved without a adjournment of the trial. Any further delays in the disclosure schedule will only compound and add to those problems and require and additional period of adjournment. In line with our other filings on this and other disclosure problems, we would respectfully request that this Chamber exercise its power to prevent a grave injustice against our client. If the Prosecution cannot be done with Rule 68(i) disclosure until June 2012, then please continue the trial 90 days thereafter to give us time to review the material and properly prepare for trial. If the Prosecution can meet the 30 April 2012 deadline for ALL Rule 68(i) disclosure, then please continue the trial 90 days thereafter to give us time to review the material and properly prepare for trial. We think this is only fair given the situation, and that the Defence is not at fault for the delays in disclosure and thus should not bear punishment for the same.

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III.

CONCLUSION

WHEREFORE, for the foregoing reasons the Defence Respectfully that the Chamber continue the commencement of trial by 90 days irrespective of its decision on the Prosecution Motion. Word Count: 1752 RESPECTFULLY SUBMITTED BY:

Branko Luki Lead Counsel for Ratko Mladi Dated this 26th of April 2012 Belgrade, Serbia

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