Case No. IT-01-47-T


Judge Jean-Claude Antonetti

Judge Vonimbolana Rasoazanany
Judge Bert Swart

Mr Hans Holthuis

Decision of:
4 February 2005







The Office of the Prosecutor:

Mr Daryl Mundis
Ms Tecla Henry-Benjamin
Mr Stefan Waespi
Mr Matthias Neuner

Defence Counsel:

Ms Edina Residovic and Mr Stéphane Bourgon for Enver Hadzihasanovic
Mr Fahrudin Ibrisimovic and Mr Rodney Dixon for Amir Kubura

TRIAL CHAMBER II (“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”);

SEISED of the confidential and ex parte Motion on Behalf of Enver Hadzihasanovic Seeking Clarification of the Trial Chamber's Objective in its Questions Addressed to Witnesses, filed by counsel for Enver Hadzihasanovic (“Counsel for Mr Hadzihasanovic“) on 7 January 2005 (“Motion”), in which Counsel for Mr Hadzihasanovic requests the Chamber, “with the aim of obtaining guidance from the Chamber regarding the future selection and presentation of evidence for the Accused, the Defence wishes to obtain clarification with respect to the rationale and objective of the Chamber in putting questions to witnesses”;1

NOTING that the Chamber requested Counsel for Mr Hadzihasanovic to submit written submissions and ask the Chamber to specify the field and scope within which questions can be posed,2 that, in its Motion, Counsel for Mr Hadzihasanovic recognises the Chamber’s prerogative, pursuant to Rule 85(B) of the Rules of Procedure and Evidence (“Rules”), to put any questions to witnesses at any stage,3 that it states that it does not understand “how certain questions put to witnesses by the Chamber […] favour a fair determination of the issues in litigation in this case consonant with the spirit of the Statute and the general principles of law”,4 and maintains that “the Chamber’s methodology with regard to questions put to witnesses departs, at least in appearance, from the practice of other Trial Chambers in trials before the International Tribunal”,5

NOTING that Counsel for Mr Hadzihasanovic states more specifically in paragraph 10 of the Motion:

“[that it] fails to see how the following categories of questions put to witnesses by the Chamber meet the interests of justice:

a. Questions put to expert witnesses which were neither the object of nor included in the report submitted by the expert and which were not raised by the Parties during their examination in chief and cross examination;

b. Questions that go beyond the scope of the testimony of witnesses on the basis that they possess the necessary qualifications to provide answers, even though they neither observed nor heard related evidence;

c. Questions which challenge the credibility of witnesses despite the presence of related contradictory evidence on the record and even though the Parties did not deem appropriate to do so;

d. Questions which place doubt on the credibility of witnesses using previous testimony of other witnesses on the record, documents admitted or other evidence, the reliability of which was shown to be doubtful or even null;

e. Questions related to documents in evidence that were not referred to by the Parties with the apparent purpose of raising their probative value which was at best minimal, despite the fact that the Party which submitted the document did not deem necessary to do so;

f. Questions which openly display the Chamber’s theory or opinion on issues in dispute with the apparent purpose of obtaining a confirmation from witnesses;

g. Questions put to witnesses with the apparent purpose of depriving answers provided to the Parties of their weight or relevance; and

h. Questions put to witnesses with the apparent purpose of confirming or obtaining evidence against ?Enver Hadzihasanovicg without exploring the related exculpatory avenue.”6

NOTING that Counsel for Mr Hadzihasanovic explains that the Motion was filed as confidential and ex parte in the interests of justice as it referred to issues raised and discussed in closed session and because it did not impact on the role and duties of the Office of the Prosecutor7 (“Prosecution”); that Counsel for Mr Hadzihasanovic stated nonetheless that it would have no objection to the Motion being addressed inter partes and publicly ;8

NOTING that the Chamber lifted the confidential and ex parte status of the Motion on 11 January 2005 and requested counsel for Amir Kubura (“Counsel for Mr Kubura”) and the Prosecution to present their submissions concerning the Motion within ten days;9

NOTING that on 20 January 2005 Counsel for Mr Kubura filed the Defence Response on Behalf of Amir Kubura to Motion on Behalf of Enver Hadzihasanovic Seeking Clarification - in Light of the Right of the Accused to a Fair Trial - of the Trial Chamber's Objective in its Questions Addressed to Witnesses (“Clarifications of Counsel for Mr Kubura”), in which Counsel for Mr Kubura stated that it had no submissions to present since the Motion was filed by Counsel for Mr Hadzihasanovic during the Defence case;10

NOTING that the Prosecution filed the Prosecution Submissions concerning Defence Motion Seeking Clarification (“Response”) on 20 January 2005, in which it stated that although the Motion is a matter between Counsel for Mr Hadzihasanovic and the Chamber, there is no legal basis for the Motion;11

NOTING that, in support of its submission, the Prosecution stated, inter alia, that: 1) it does not consider any of the questions put by the Chamber to be inappropriate;12 2) the Motion is, in effect, asking the Chamber to justify its actions with respect to the questions put by the Trial Chamber to witnesses who have appeared before it,13 3) pursuant to Article 23 of the Statute, the Judges of the Chamber are required to provide a reasoned opinion in writing at the conclusion of the trial and Rule 85(B) of the Rules is one of the tools available for the judges to get the evidence necessary to comply with this duty,14 4) the Judges of the Chamber are required to consider all the available evidence,15 and 5) there are no restrictions in the Statute or the Rules governing the type of questions that the Judges may put to witnesses;16

CONSIDERING that Rule 85(B) of the Rules provides that a Judge of a Trial Chamber may at any stage put any question to a witness; that as such the case-law of the Tribunal recalls that a “Judge ?of the Tribunalg, as an impartial arbiter, may put questions to a witness, during examination-in-chief, cross-examination or re-examination, to clarify issues which remain unclear after an answer by the witness”;17

CONSIDERING moreover that the Chamber has since the commencement of trial explained to each witness why the Judges might ask questions to clarify answers provided in response to questions and in the interests of justice;

CONSIDERING that it appears that the Chamber is fully entitled to put questions to witnesses in order to fulfil its duty in the truth-finding process;18 that, consequently, the Chamber is authorised to question witnesses on the points raised in paragraphs 10(a)-(d) of the Motion;

CONSIDERING that it should be noted that the questions put to the Defence witnesses were also put to the Prosecution witnesses in similar form and substance ; that it follows that the Judges carried out their duties as independent arbitrators ;

CONSIDERING that, in support of its argument in paragraph 10, Counsel for Mr Hadzihansanovic refer “inter alia19 to the page numbers of the hearing transcript in their Motion, without further explanation ; that under such circumstances, no response should be provided at this stage to the subjective allegations of Counsel for Mr Hadzihansanovic;

CONSIDERING that such conduct is not appropriate in the case of the claims alleged and does not allow the Judges to assess the relevance of the argument;

CONSIDERING however, in view of points e), f) g) and h) of paragraph 10 of the Motion, and in order to avoid any misinterpretation in the intended purpose of the questions, that the Chamber’s truth-finding duty should be reiterated, including through the questions it asks;

CONSIDERING that according to the case-law of the Tribunal, “a Judge should […] be subjectively free from bias, [and …] there should be nothing in the surrounding circumstances which objectively gives rise to an appearance of bias”;20 that impartiality must be assessed with regard to the perception of a hypothetical fair-minded observer with sufficient knowledge of the actual circumstances to make a reasonable judgement;21 that this hypothetical fair-minded observer is in a position different to that of the parties ;

CONSIDERING that the Chamber states that the procedure followed before the Tribunal is a sui generis procedure combining elements from the adversarial and inquisitorial systems; that the Chamber is bound only by the provisions in the Rules, which take precedence over all other practices;22

CONSIDERING that it is sometimes difficult for the parties to deduce the purpose sought by the Chamber when questioning witnesses; that this purpose can only be the search for the truth, as for example when the Chamber is faced with contradictions between witness statements, between a witness statement and a document in the case file, or in order to assess the content of a document;

CONSIDERING that, in the course of its search, the Chamber allows the parties to question the witnesses further after the Judges have put their questions;

CONSIDERING thus that, since the commencement of trial, the Chamber has always asked the parties to question the witnesses after the Chamber has put its questions and to present their evidence to the Chamber;23 including through documents which were not considered during the examination-in- chief or cross-examination, in order to allow counsel for the Accused to be the last to argue its case; this approach, in accordance with the principle of inter partes hearings allows Counsel for Mr Hadzihasanovic to present its case through its questions;

CONSIDERING that this capacity of the parties to question the witnesses at the end of their testimony allows the parties to introduce elements which might correct or supplement the responses provided by the witnesses to the questions put by the Judges of the Chamber; that the general argument presented in paragraph 10 is thus completely unfounded;

CONSIDERING moreover that when questioning the witnesses, after the Judges have put their questions, the Chamber also allows the parties to intervene and provide any additional factual information which might clarify matters for the Chamber in its line of questioning;24

CONSIDERING that, as recalled by the Chamber throughout the trial, the probative value to be attributed to evidence can be determined only at the end of the trial, in the light of all the evidence tendered;25


STATES that it has, wherever possible, provided Counsel for Mr Hadzihasanovic with all the appropriate clarification on the purpose sought by the questions put by the Chamber to the witnesses called by the Prosecution and Counsel for Mr Hadzihasanovic.

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

Jean-Claude Antonetti

Done this fourth day of February 2005
At The Hague
The Netherlands

[Seal of the Tribunal]

1 - Motion, para. 13.
2 - Motion, para. 3.
3 - Motion, para. 8.
4 - Motion, para. 9.
5 - Motion, para. 11.
6 - Motion, para. 10.
7 - Motion, para. 1.
8 - Motion, para. 2.
9 - T. 13929 – 13930.
10 - Clarifications of Counsel for Mr Kubura, para. 2.
11 - Response, para. 16.
12 - Response, para. 9.
13 - Response, para. 6.
14 - Response, para. 7.
15 - Response, para. 8.
16 - Response, para. 8.
17 - The Prosecutor v. Delalic et al., IT-96-21-T, Decision on the Motion on Presentation of Evidence by the Accused, Esad Landzo, 1 May 1997, para. 26.
18 - This point is acknowledged by Counsel for Mr Hadzihasanovic. See Motion, para. 8.
19 - Motion, para. 10, footnote no. 3.
20 - The Prosecutor v. Anto Furundzija, IT-95-17/1-A, Appeals Judgement, 21 July 2000, para. 189.
21 - See The Prosecutor v. Radoslav Brdjanin and Momir Talic, IT-99-36-T, Decision on Application by Momir Talic for the Disqualification and Withdrawal of a Judge, 18 May 2000, para. 15 and The Prosecutor v. Momcilo Krajisnic, IT-00-39-T, Decision on the Defence Application for Withdrawal of a Judge from the Trial, 22 January 2003, para. 14. See also The Prosecutor v. Georges Anderson Nderubumwe Rutaganda, ICTR-96-3-A, Appeals Judgement, 26 May 2003, paras. 36-125 and The Prosecutor v. Ignace Bagilishema, ICTR-95-1A-A, Grounds for the Appeals Judgement, 3 July 2002, para. 100.
22 - It should be noted that the Rules allocate a specific role to the Judge during the trial, that in this regard it is appropriate to recall Rule 98 which states that a Chamber may order either party to produce additional evidence and may proprio motu summon witnesses and order their attendance.
23 - See, for example, T. 1190 and 13763-13836.
24 - See, for example, T. 14403.
25 - See, for example, Final Decision on Judicial Notice of Adjudicated Facts, 20 April 2004.