THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA

IT-09-92-PT 40097 D40097 - D40088 14 May 2012 MB THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA IN THE PRE-TRIAL CHAMBER Case No. IT-09-92-PT Before: Registrar: Judge Alphons Orie, Presiding Judge Bakone Justice Moloto Judge Christoph Flügge Mr. John Hocking Date Filed: 14 May 2012 THE PROSECUTOR v. RATKO MLADIĆ PUBLIC URGENT DEFENCE MOTION TO ADJOURN AND CONTINUE TRIAL OR IN THE ALTERNATIVE BAR THE PROSECUTION FROM PRESENTING ANY WITNESSES OR EXHIBITS THAT WERE UNTIMELY DISCLOSED The Office of the Prosecutor: Mr. Dermot Groome Mr. Peter McCloskey Counsel for the Accused: Mr. Branko Lukić Mr. Miodrag Stojanović

40096 THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA PROSECUTOR v. RATKO MLADIĆ Public URGENT DEFENCE MOTION TO ADJOURN AND CONTINUE TRIAL OR IN THE ALTERNATIVE BAR THE PROSECUTION FROM PRESENTING ANY WITNESSES OR EXHIBITS THAT WERE UNTIMELY DISCLOSED The Accused, RATKO MLADIĆ, by and through his counsel of record, hereby files the instant Urgent Motion and states as follows: I. INTRODUCTION 1. The trial is scheduled to commence on 16 May 2012 with the Prosecution s Opening Statements. The Defence has repeatedly complained of lack of full and timely disclosures from the Prosecution as to Rule 66(a)(ii) and Rule 65ter, complaints that have been previously summarily dismissed by the Chamber. Now the Prosecution has conceded and verified each and every major complaint of untimely or non-disclosure made by the Defence and has confirmed that the greater part of mandatory disclosure materials were not given to the Defence until within 2 weeks of the start of trial. 2. This filing is made urgently due to the impending trial start date and the injustice and undue prejudice that would result to our client, Mr. Mladic, arising out of the late disclosure of materials if forced to proceed to trial. Respectfully such a situation 1 is unprecedented in the history of the Tribunal and threatens to be a significant blight to the integrity of these proceedings. Urgent action by the Chamber is required to avoid a very potential mis-carriage of justice. 1 Lateness of Disclosure and forced start of trial after confirmation of the same IT 09 92 pt 14 May 2012 1

40095 3. Mr. Mladic is entitled to a fair trial and due process under both the Statute and Rules of the Tribunal. Mr. Mladic is only asking for his rights to be protected by this Chamber as they have been protected for other Accused who came before him. Per the Statute of the Tribunal all Accused are supposed to be equal before the Tribunal. 2 There is no reason why Mr. Mladic s rights should be infringed upon and that he should be treated with lesser rights than those Accused that came before him merely because he is one of the last before the Dock. 4. Due to the inaction of the Chamber to timely respond to the verified complaints of the Defence made previously (and since last year) the Defence has lost half a year of meaningful and informed preparations for trial. Thus the instant motion seeks an adjournment and continuance of the trial for a period of 6 months to correct the dire situation that has resulted out of the Prosecution s lapses in Disclosure to return the Defence to the state it is supposed to be in regards to trial preparedness prior to the commencement of trial. II. SUBMISSION AND ARGUMENTS A. Continuation of the Trial is Justified Since the Prosecution has Verified that it has not Fulfilled Disclosure Obligations Under Rule 65ter in a Timely Manner. 5. Diligently, and on multiple occasions the Defence has sought relief from the Chamber due to the fact that it has not had access to a significant portion of the Rule 65ter exhibits that the Prosecution intends to utilize at trial to prove their case. These complaints date back to February 2012, when the entirety of Rule 65ter exhibits was supposed to have been identified to the Defence, whereas the bulk of the Rule 65ter exhibits were supposed to have been disclosed to and available to the Defense since the first Disclosures in Fall of 2011. 6. The Defence has multiple occasions presented its information and research results that approximately 50% of the Rule 65ter materials were NOT in the possession of the Defence and could NOT be located. Similarly the Defence has multiple times raised the concern that 2 Article 21(1) IT 09 92 pt 14 May 2012 2

40094 these exhibits are not even available via E-Court, as they should have been since February 2012. 6. In addition to the complaints of the Defence, the Prosecution has confirmed on multiple occasions to the Pre-Trial Judge (Judge Orie) that a significant portion of Rule 65ter exhibits had not been previously disclosed to the Defence, but would only be disclosed upon the upload of the same into E-Court. Specifically on 20 February 2012 after Defence counsel again raised the complaint that materials on the Rule 65ter list were not available in the disclosures, Judge Orie asked Prosecution Counsel to respond and the Prosecution responded by confirming that not everything would be disclosed to the Defence until the upload of the same to E-Court. MR. LUKIC: If I may. And when we try to check the list and find the documents listed in this chart, we started from the beginning and we couldn't locate them. I don't know if they are now on Friday disclosure. I couldn't check that. But we start from the beginning and we couldn't locate the documents. I have the numbers, so we'll try to solve it this afternoon as well. JUDGE ORIE: Mr. Bos. MR. BOS: So from the entire collection of about 30.000 exhibits, the majority of those documents are included in the various disclosures that we've made to Mr. Lukic, but not all 30.000. There is a group of evidence that we added to the exhibit list that may not have been disclosed, and all material eventually will go on e-court and, yeah, will be made available to Mr. Lukic. But -- so there is a group of evidence, and a lot of that concerns, you know, evidence relating to the proof of death that has been added as Prosecution exhibits and that have not yet been disclosed to Mr. Lukic before. JUDGE ORIE: But is now disclosed? MR. BOS: Those documents will be put on the e-court, but that's something that still needs to be done. The whole collection of exhibits still needs to be uploaded on e-court and that's something that's -- that we're in the process of doing, but that's a big task. 3 7. Due to technical problems with the upload into E-court that have been reported by the Prosecution on the record, the upload of most of the Rule 65ter documents was completed on 24-26 April 2012, but it is the Defence understanding that still not ALL of the Rule 65ter have been uploaded and available in E-Court (ie. the Prosecution reports at least 1/3 of the 3 20 February 2012 Rule 65ter Meeting, Tr. 223 224 [emphasis added] IT 09 92 pt 14 May 2012 3

40093 material is yet to be uploaded as of 11 May 2012). 4 Thus, the Defence has been unduly deprived of access to the key documents that the Prosecution intends to present in their case against Mr. Mladic for many months, as a direct and proximate result of the inability of the Prosecution to meet the disclosure requirements of Rule 65ter. This delay is not the fault of nor attributable to the Defence, as it at all times diligently notified of the problem and tried to provide as much information as possible to explain to the Pre-trial judge and the Prosecution the problems it was encountering. 8. Just recently, acting on the Defence continued insistence of problems with the prior disclosure, the Prosecution has confirmed yet again that, in addition to those items already known not to have been disclosed previous to the E-Court upload 5, a significant part of the remaining Rule 65ter materials were in fact never disclosed to the Defense prior to the upload to E-Court on 24-26 April 2012. Specifically on 11 May 2012, Prosecution Counsel has advised the Defence and informed Chambers that: We verified the highlighted items on your list and did some further random checks on the EDS for all our disclosed Rule 65 ter documents. We discovered that about one third of disclosure batch 4-c (Karadzic Rule 65 ter collection) was never uploaded on the EDS and disclosed to you even though these documents were recorded in the spreadsheets as disclosed material. [ ] We can confirm that the undisclosed materials from Batch 4-c have all been uploaded in e-court. In other words, any missing document from Batch 4-c is still accessible to you in e-court. We further learnt from ITSS that in the course of next week all uploaded 65ter exhibits in e-court will also be available to you in searchable format. 6 9. For the record, the Chamber will recall, no doubt, that the batch at issue, Batch 4-c, was one of the first batches, such that the Defence was supposed to get the same in October 2011. It has thus now become readily apparent and undeniable that a significant portion of material on the Prosecution s Rule 65ter list has never been previously disclosed to or available to the Defence when it was supposed to (ie. October 2011 to be disclosed and to be identified as Rule 65ter in February 2011). The Defence has only now for the first time got a 4 In preparing for the first witnesses scheduled the Defence has already come across items listed for witnesses that are not to be found in E Court; per the 11 May 2012 report of the Prosecution, only 19,008 of a total of 28,745 exhibits have been uploaded and released into E Court. 5 And discussed at the 20 February 2012 Rule 65ter meeting 6 Email from Prosecution to Chambers and Defense dated 11 May 2012 [emphasis added] IT 09 92 pt 14 May 2012 4

40092 chance to view the material since its upload into E-Court the last week of April, two weeks before the start of trial. 10. This is an unprecedented disclosure failure whose scope is without parallel in the history of the Tribunal. Not only were materials not provided to the Defence prior to their identification on the Prosecution Rule 65ter Exhibit list, they were not provided to the defence at the time of the exhibit list, and further were not even provided to the Defense fully prior to trial (as 1/3 of the same still is not in E-court). At the very best, a significant number (about 50%) were only given to the Defence less than 3 weeks before the commencement of trial. 11. For the foregoing reasons, the Defence and Mr. Mladic are entitled to have adequate time to review the same and prepare for trial. The Trial Chamber is supposed to protect and enforce the rights of an Accused to fairness of proceedings, both before and during trial, and ensure that justice is done. Accordingly, either the Chamber should adjourn and continue the trial for a period of 6 months to account for the time the Defence has been deprived of access to these critical documents, or in the alternative the Chamber should bar the Prosecution from utilizing any Exhibit that was not in the possession of the Defence prior to the upload into E-court. B. Continuation of the Trial is Justified Since the Prosecution has Verified that it has not Fulfilled Disclosure Obligations Under Rule 66(A)(ii) in a Timely Manner. 12. Diligently, and on multiple occasions the Defence has sought relief from the Chamber due to the fact that it has not had access to a significant portion of the Rule 66(A)(ii) materials that the Prosecution has in relation to the named and proposed Prosecution Witnesses. These complaints date back to February 2012, when the entire bulk of Rule 66(A)(ii) material was supposed to be identified to the Defence as to Prosecution witnesses. 7 13. The Defence has multiple occasions presented its information and research results that approximately 2/3 of the Rule 66(A)(ii) materials were NOT in the possession of the Defence and could NOT be located. 7 Note: the material was supposed to be disclosed and available to be reviewed by the Defence in November 2011 IT 09 92 pt 14 May 2012 5

40091 14. Recently, the Prosecution has informed the parties and the Chamber that in investigating the Defence complaints it has confirmed a flaw in the disclosure of materials to the Mladic Defence in disclosure batch 5 (November 2011) that resulted in a significant amount of Rule 66(A)(ii) material from that batch (2/3). Specifically, on 25 April 2012 the Prosecution stated Yesterday, the Prosecution discovered the root of the problem in relation to the missing Rule 66(A)(ii) materials. On 11 November 2011, the Prosecution disclosed a very large collection of evidence from the Karadzic case which included the almost entire Rule 66 Karadzic collection containing 33,789 items (disclosure batch 5). This collection covered a substantial part of the Mladic Rule 66(A)(ii) disclosure. Due to an error in the upload of this material on the EDS almost two third of disclosure batch 5 was not disclosed to the Defence in the Mladic case on either the EDS or on hard disk. As soon as this problem came to light, the Prosecution located this evidence and uploaded it on a hard disk. This hard disk is now prepared and will be handed over to the Defence today. The upload of this material on the EDS will be done as soon as possible but will take about a week. 8 15. Thus it is now readily apparent and undeniable that a significant portion of material on under Rule 66(A)(ii) has never been previously disclosed to or available to the Defence when it was supposed to (ie. Noember 2011 to be disclosed and to be identified as Rule 66(A)(ii) in February 2011). The Defence has only now for the first time got a chance to view the material since the Prosecution disclosed the same 26 April 2012 and 27 April 2012, 2 weeks before the start of trial. 16. The magnitude and scope of the materials that comprise both the 65ter and 66(A)(ii) is so huge that it is humanly impossible for the Defence to adequately review the same prior to the commencement of trial. The Defence has been deprived of 5 months review for material that is on the Rule 66(A)(ii) list. The Defence has only now for the first time got a chance to view the material since its upload into E-Court the last week of April, two weeks before the start of trial. 8 Prosecution Email to Chambers and Defence dated 25 April 2012. IT 09 92 pt 14 May 2012 6

40090 10. This is an unprecedented disclosure failure whose scope is without parallel in the history of the Tribunal. Not only were materials not provided to the Defence prior to the identification of Prosecution Witnesses and Rule 66(A)(ii) for the same, they were not provided to the defence at the time of the Witness list, and further were not even provided to the Defense fully until just before the start of trial. At the very best, a significant number (about 2/3) were only given to the Defence less than 3 weeks before the commencement of trial. 11. For the foregoing reasons, the Defence and Mr. Mladic are entitled to have adequate time to review the same and prepare for trial. The Trial Chamber is supposed to protect and enforce the rights of an Accused to fairness of proceedings, both before and during trial, and ensure that justice is done. Accordingly, either the Chamber should adjourn and continue the trial for a period of 6 months to account for the time the Defence has been deprived of access to these critical documents, or in the alternative the Chamber should bar the Prosecution from calling any witness to testify at trial who was affected by the lapse in Rule 66(A)(ii) disclosure. C. Continuance of the Trial is justified because Remaining outstanding matters cripple the ability of the parties to prepare for trial in May 2012. 12. The Prosecution has on several occasions sought and often received continuances of the Rule 68(i) disclosure deadlines due the unprecedented magnitude of the material in this case, and the fact that its staff are working at maximum capacity and cannot maintain the time deadlines set by the Chamber. 13. The Defence also has its staff working at maximum capacity, and it has a smaller staff than the Proscution. Dealing with the processing and review of the above-referenced latedisclosed materials is a significant and important part of the Defence workload. However we also have a significant number of filings that are scheduled and must be completed in order for trial to proceed. With the early trial date scheduled by the Chamber it has been impossible to complete both of the above AND to prepare for trial in a full and meaningful manner. By way of example, Rule 92ter and Rule 92bis filings are required for the bulk of the Prosecution witnesses. Very few of these filings, or Rule 94bis filings were completed IT 09 92 pt 14 May 2012 7

40089 during the Pre-trial period. Many have now been filed by the Prosecution and are pending, and many more are anticipated with the start of trial. This makes an impossible workload to respond to filings and prepare for trial. For instance the number of Defence filings required in the next few weeks are as follows: a) 15 May = 3 filings; b) 16 May = Opening Statements c) 17 May = Opening Statements d) 18 May = 2 filings e) 21 May = 1 filing f) 22 May = 2 filings g) 23 May = 1 filing h) 24 May = 2 filings i) 25 May = 1 filing j) 28 May = 7 filings 14. For all of the foregoing reasons, the adjournment and continuance of the trial is prudent and necessary to permit both parties to complete pre-trial preparations in the manner envisioned by the Rules, prior to trial. IT 09 92 pt 14 May 2012 8

40088 III. CONCLUSION WHEREFORE, for the foregoing arguments, the Defence respectfully requests an adjournment and continuance of trial for 6 months, or in the alternative, that the Chamber BAR the Prosecution from utilizing at trial any exhibit or witness that was the subject of late Disclosure. Word Count: 2917 RESPECTFULLY SUBMITTED BY: Branko Lukić Lead Counsel for Ratko Mladić Miodrag Stojanović Co-Counsel for Ratko Mladić Dated this 14 th of May 2012 The Hague, Netherlands IT 09 92 pt 14 May 2012 9