IN THE TRIAL CHAMBER
Before: Judge Adolphus G. Karibi-Whyte, Presiding
Judge Elizabeth Odio Benito
Judge Saad Saood Jan
Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh
Decision of: 4 September 1997
ZDRAVKO MUCIC also known as "PAVO"
ESAD LANDZO also known as "ZENGA"
DECISION ON CONFIDENTIAL MOTION TO SEEK
LEAVE TO CALL ADDITIONAL WITNESSES
The Office of the Prosecutor
Mr. Eric Ostberg
Ms. Teresa McHenry
Mr. Giuliano Turone
Counsel for the Accused
Ms. Edina Residovic, Mr. Ekrem Galijatovic, Mr. Eugene OSullivan, for Zejnil Delalic
Mr. Zeljko Olujic, Mr. Michael Greaves, for Zdravko Mucic
Mr. Salih Karabdic, Mr. Thomas Moran, for Hazim Delic
Mr. John Ackerman, Ms. Cynthia McMurrey, for Esad Landzo
I. INTRODUCTION AND PROCEDURAL BACKGROUND
On 4 July 1997 a "Motion to Seek Leave to Call Additional Witnesses" (Official Record at Registry Page Number ("RP") D3968-D3986) (the "Motion") was filed by the Office of the Prosecutor ("the Prosecution") for consideration by 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"). The Defence for the accused Zejnil Delalic filed its "Response to the Motion" on 17 July 1997 (RP D4023-D4026) (the "Response") and the Prosecution subsequently filed a "Reply Regarding Motion to Seek Leave to Call Additional Witnesses" on 5 August 1997 (RP D4125-D4128) (the "Reply").
Oral argument was heard on the Motion on 18 July 1997, and the Trial Chamber issued an Order on the Motion by the Prosecution for Leave to Call Additional Witnesses, on 1 August 1997 (RP D4121-D4123) (the "Order"), which granted the Prosecution the right to call "as many of the witnesses identified by numbers 8 through to 14 as may be necessary to verify the procedure and chain of custody for the seized material that the Prosecution seeks to introduce as evidence." Further, the Order deferred the ruling on whether to grant leave to call additional witnesses 1 through to 7 until a later date.
On 7 August 1997, the Trial Chamber orally rendered its decision on the Motion, insofar as it relates to witnesses 1 through to 7, during an open session of the trial proceedings, and reserved its written decision for a later date.
THE TRIAL CHAMBER, HAVING CONSIDERED the written submissions and oral arguments of the Prosecution and the Defence for the accused Zejnil Delalic, as well as the oral arguments of the Defence for the other three accused persons,
HEREBY ISSUES ITS WRITTEN DECISION.
1. In the Motion, the Prosecution seeks leave to call fourteen additional witnesses. Having dealt with those witnesses numbered 8 to 14 in the Order, the present Decision will discuss only those numbered 1 to 7.
2. The Prosecution argues that its request to call the witnesses numbered 1 to 7, coming four months after the date set by the Trial Chamber for the disclosure of the names and particulars of witnesses to the Defence (see Scheduling Order of 25 January 1997, RP D2674-D2675), is a result of circumstances which it could not anticipate. These are, first, the necessity to authenticate certain documents requires the testimony of witnesses 1 to 5, and secondly, witnesses 6 and 7 could not previously be traced or had not agreed to testify.
3. The Defence for the accused Zejnil Delalic ("the Defence") objects on the basis that the attempt to bring additional witnesses at this stage is unfair to the defence. In addition, the Defence contends that the Prosecution has not fully complied with its disclosure obligations concerning the statements of witnesses 6 and 7. It further submits that it will have to recall many of the Prosecution witnesses who have already testified for the Prosecution in this case in order to cross-examine them on the character of witnesses 6 or 7.
4. Rules 66 and 67 of the Rules of Procedure and Evidence (the "Rules") are the relevant provisions on the disclosure obligations of the Prosecution. A literal reading of Sub-rule 67(A) indicates that the Prosecution must reveal, as early as reasonably practicable and prior to the commencement of trial, in this case 10 March 1997, the names of the witnesses that it intends, at that time, to call. In the present situation the Prosecutions submission is simply that, whilst this was not prior to the commencement of the trial, it did reveal their names as soon as it formed the intention to call these additional witnesses in proof of the guilt of the accused persons, as required by Sub-rule 67(A)(i).
5. In a letter dated 5 December 1996, the Prosecution notified the Defence for all four accused persons that, barring agreement between them as to the authentication of certain documents, it would call additional witnesses for authentication purposes. On 13 May 1997, the Prosecution revealed the names of these possible witnesses, namely witnesses numbered 1 to 5 in the Motion. Prior to the commencement of the trial, the Prosecution had no intention of calling these witnesses and thus had no obligation under Sub-Rule 67(A). The Trial Chamber is satisfied that the Prosecution informed the Defence as soon as it formed the intention to call these additional witnesses 1 to 5, and acted bona fides at all times.
6. With regard to the witnesses numbered 6 and 7, the Prosecution notified the Defence for all four accused persons, on 13 May 1997, that it may call them. The Prosecution subsequently disclosed the transcripts of its interviews with these witnesses, on 10 July 1997. It is the contention of the Defence that this was contrary to Rule 66 of the Rules, which requires disclosure of Prosecution witness statements "as soon as practicable". The Trial Chamber is satisfied with the reply of the Prosecution that it has fully complied with its obligations by disclosing these statements to the Defence as soon as it had formed the intention to call these witnesses, interviewed them, and created a full transcript of their statements. The Prosecution has also stated in its Reply that one of these witnesses will not be called until at least September, giving the Defence adequate time to prepare for his testimony.
7. The Trial Chamber is enjoined to utilise all its powers to facilitate the truth finding process in the impartial adjudication of the matter between the parties. It is thus important to adopt a flexible approach when considering the management of witnesses. Where the testimony of a witness is important to the Prosecution or the Defence, the Trial Chamber will ensure that such witness is heard, subject, naturally, to the limits prescribed in the Statute of the International Tribunal ("the Statute") and Rules. In the present case, these two particular witnesses, 6 and 7, are deemed material to the Prosecution and it would be contrary to the interests of justice to exclude their testimony. The rights of the accused enunciated in Article 21 of the Statute are in no sense affected by the adoption of such a flexible approach. The terms of Sub-rule 66(A) have been satisfied by the Prosecutions disclosure of the witness statements as soon as it was possible and practicable. Full consideration will, naturally, be given to arguments put forward by Counsel for all four accused persons in future in support of any application for measures required to safeguard fairness to the accused.
8. The Motion refers to one final matter which calls for some comment. The Prosecution has raised the issue of proof of internationality of armed conflict and the protected status of the detainees in the Celebici camp. It has drawn attention to aspects of the Opinion and Judgment in the case of Prosecutor v. Dusko Tadic, (IT-94-1-T) of 7 May 1997, (RP D17338-D17687) which deal with the applicability of Article 2 of the Statute and informs the Trial Chamber that, in light of this, it may call additional witnesses.
9. It is axiomatic that the jurisdictional prerequisites for the crimes which form the subject-matter of the jurisdiction of the International Tribunal are to be satisfied by the Prosecution in the presentation of its case. This proposition needs no explanation and since the beginning of the trial, it has been incumbent upon the Prosecution to lead sufficient evidence in order to discharge its burden. The Trial Chamber and the Defence must, of necessity, operate on the presumption that the original witness list contains the names of all witnesses who the Prosecution regards as necessary for the proof of each aspect of its case.
10. Normally, and at this stage of the trial, the Prosecution is not expected to call witnesses additional to those on its original witness list. As stated above, there may arise exceptional circumstances where, subsequent to the filing of the witness list, further important witnesses become necessary, known or available to the Prosecution, and the Trial Chamber will consider these circumstances when brought to its attention. However, the Prosecution ought not to surprise the Defence with additional witnesses whose testimony was forseeably required prior to the commencement of trial and who were accessible to the Prosecution. As has been indicated, the matter before us is not such a case. It is also to be noted that, should the Prosecution indeed seek to call any more additional witnesses, leave must be sought from the Trial Chamber in good time, and the matter will be given due consideration after hearing the reasons why these witnesses are now deemed necessary and were not so deemed previously.
For the foregoing reasons, THE TRIAL CHAMBER, being seized of a Motion filed by the Prosecution,
PURSUANT TO RULE 54,
HEREBY GRANTS the Motion to call additional witnesses numbered 1 through to 7.
Done in English and French, the English text being authoritative.
Adolphus Godwin Karibi-Whyte
Dated this fourth day of September 1997
At The Hague
[Seal of the Tribunal]