BEFORE THE TRIAL CHAMBER
Judge Liu Daqun, Presiding
Judge Almiro Rodrigues
Judge Fouad Riad
Mr. Hans Holthuis
31 August 2001
MLADEN NALETILIC aka "TUTA"
VINKO MARTINOVIC aka STELA"
DECISION ON THE ACCUSED NALETILICS MOTION TO CONTINUE TRIAL DATE
The Office of the Prosecutor:
Mr. Kenneth Scott
Counsel for the Accused:
Mr. Kresimir Krsnik, for Mladen Naletilic
Mr. Branko Seric, for Vinko Martinovic
1. On 8 August 2001, Mladen Naletilic filed his "Motion of Defendant Mladen Naletilic Pursuant to Rule 73 (A) of the Rules of Procedure and Evidence and Article 21 (4)(B) to Continue the Trial Date" (hereafter "the Motion"). The Prosecution filed its response to the Motion, on 16 August 2001, entitled "Prosecutors Response to Motion of Defendant Mladen Naletilic Pursuant to Rule 73(A) and Article 21(4)(B) to Continue Trial Date" (hereafter "the Response"). A declaration was filed by Vinko Martinovic on 24 August 2001, entitled "Declaration with Respect to the Motion of Defendant Mladen Naletilic Pursuant to Rule 73(A) of the Rules of Procedure and Evidence and Article 21(4)(B) to Continue Trial Date" (hereafter "the Declaration"). On 27 August 2001, Naletilic filed his "Response to the Prosecutors Objection to Continual Trial Date on the Motion of the Accused".
Arguments of the Parties to Continue Trial Date
2. The Motion, as supported by the Declaration, argues that the Defence has not had adequate time and facilities for preparation and that as a result will not be in a position to proceed to trial on 10 September 2001. The Motion asserts that there has been insufficient time to adequately investigate the number of witness statements that have been served upon the Defence in this case. It complains of inequality of time for preparation as the Prosecution have had five years to gather evidence for trial while the Defence only one. A complaint is also made about inequality in human and financial resources. The Prosecution is said to have had 34 investigators working on the case in contrast to the Defence team comprised of counsel, a legal assistant and four investigators. It is also complained that the Defence do not have the resources to spend the required time reviewing documents in the archives of the Republic of Croatia, Croatian State Television, Ministry of Foreign Affairs, and the Federation of Bosnia-Herzegovina. Moreover, it is complained that investigations are slowed because the Defence do not have direct access to documentation but only through the Republic of Croatias Office of Co-operation with the Tribunal. It is claimed that in order to safeguard the defendants rights pursuant to Article 21(4)(b) it is necessary to delay the start of the trial for six months and commence in March 2002.
3. The Motion raises a separate but related issue in that the Prosecution failed to serve the Defence with its list of witnesses to be called or its list of evidence. The effect of this failure is claimed to be that the Defence has not been able to make the necessary preparations in the time available before 10 September 2001. The Prosecution served a list of the first 10 witnesses it will call at trial on both defendants on 13 August 2001. The Declaration argues that this leaves inadequate time for the defendants to prepare cross-examination of these witnesses and that at least two months notice should have been given. It is asserted in the Declaration that the Prosecution may have been seeking to withhold the list of witnesses from the Defence so as to force them into preparing cross-examination of all Prosecution witnesses, thereby not allowing the Defence to concentrate on those witnesses that the Prosecution intends to call first.
4. The Prosecution opposes the Motion to delay the trial and rejects Defence arguments that there has been insufficient time for the preparation of their defence. They assert that the Defence have been in possession of the Prosecutors Pre-Trial Brief and all other Rule 65 ter filings since 11 October 2000. They assert that the present case is no more complex than other cases held before the Tribunal. The Prosecution also refutes Defence claims that they have had inadequate facilities for the preparation of their defence and argues that the requirements of Article 21(4)(d) of the Statute have been met. The Prosecution accepts that during various periods since 1995, 34 different investigators may have worked on the case, however, it is suggested that at no one time have 34 investigators been working on the case together. For a substantial period only 2 investigators have been assigned to the case full time. Kayishema and Ruzindana Trial Judgement1 and Tadic Appeals Judgement2 are cited by the Prosecution in support of their position.
5. Regarding the Defence claim that the Prosecution failed to serve a list containing the order that they would call their first witnesses, the Prosecution refers to the Status Conference of 20 July 2001 when the matter was considered. The Prosecution claims that consistent with representations made at the Status Conference, they prepared a letter dated 8 August 2001 informing the Defence of the names and order of its first ten witnesses. However, due to technical difficulties in faxing the letter to the Defence it was not delivered until 13 August 2001.
6. The relevant sections of Article 21 of the Statute are as follows:
In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality:
(b) to have adequate time and facilities for the preparation of his defence;
7. It is apparent that the Prosecution and Defence have not had identical amounts of time and resources with which to prepare their respective cases. It is clear from the Tribunals jurisprudence, however, that the real issue is not whether the parties have equal time and facilities but rather if either party, and in particular the accused, is put at a disadvantage when presenting their case. In Kayishema and Ruzindana Trial Judgement it was held that:
... the rights of the accused should not be interpreted to mean that the Defence is entitled to the same means and resources as the Prosecution. Any other position would be contrary to the status quo that exists within jurisdictions throughout the world and would clearly not reflect the intentions of the drafters of this Tribunals Statute.3
Similarly, in Tadic Appeal Judgement, after examination of a number of cases considered under the European Convention on Human Rights, the Appeals Chamber held:
... equality of arms obligates a judicial body to ensure that neither party is put at a disadvantage when presenting its case.4
8. In the present case it is noted that Martinovic first appeared at the Tribunal on 12 August 1999 and Naletilic on 24 March 2000. Both accused have accordingly had a considerable amount of time to commence and prepare their respective defence cases. At the Pre-Trial Conference in the present case on 7 December 2000, it was indicated to the parties that the trial could commence in March 2001. The parties should have thereafter been in a position to proceed to trial.
9. The Motion complains that the Defence have not had adequate time to examine the evidence held by the various authorities, such as the Republic of Croatia, Croatian State Television, the Ministry of Foreign Affairs and the Federation of Bosnia-Herzegovina. It is apparent to the Trial Chamber that both accused have had ample time and facilities with which to prepare for trial. Neither can claim to have been disadvantaged in the time or resources made available to them to the extent that they will not be able to fairly and adequately present their case. While complex, this is not an overly complicated case requiring more than the time and resources already provided to the parties for the purpose of preparing their respective cases. The request for a continuance must accordingly be rejected.
10. The separate complaint made by both defendants concerning tardiness by the Prosecution in supplying the list of the first 10 witnesses to be called is similarly lacking in merit. It is noted by the Trial Chamber that at the Status Conference on 20 July 2001 it was accepted by the Prosecution that they were in a position to then provide the first list of witnesses, with the caveat that the list may be subject to change. However, no such efforts were made to provide any list of prospective witnesses to the Defence until 10 August 2001. This delay is most regrettable. If the Prosecution were in a position, as they accepted they were, to provide the list to the Defence on 20 July 2001 they should have attempted to provide their, albeit provisional, list much sooner than 10 August 2001.
11. Notwithstanding the delay in providing the list, however, the Trial Chamber is of the view that the Defence are in no way prejudiced by this delay in disclosure. It is not asserted by the Defence that any of the witnesses contained in the list are new witnesses. The Defence has been in possession of the statements of those witnesses for some considerable time and has been aware of the likelihood that they will be called by the Prosecution to give evidence at trial. There should accordingly be no need for any further investigation of the contents of those statements by the Defence at this stage. The purpose of disclosing to the Defence the order in which Prosecution witnesses will be called in is to enable the Defence begin preparation of their cross examination. The time between the provision of the list and the start of the trial should be ample time for the Defence to plan their respective cross-examination of the witnesses listed. The Defence complaint regarding late disclosure of the list is also rejected.
12. The administration of justice can only be carried out effectively and fairly when parties to the proceedings undertake to fully co-operate with the Tribunal and efficiently carry out instructions given. On this occasion no serious adverse consequences followed the late compliance with the pre-trial judges direction at the Status Conference. Both the Prosecution and Defence, however, should now consider themselves on notice that any failure to carry out an order or direction of the Trial Chamber in an orderly and timely manner will be met with adverse consequences for that party. In certain domestic jurisdictions it is the norm for parties to employ dubious tactical trial strategies with a view to diverting the opposite party from the real issues in the case. Such a practice is not to be encouraged before this Trial Chamber. Rather than seeking to obtain an unfair tactical advantage over the opposing party, it is hoped that during the forthcoming trial all parties will work together to ensure the efficient and convivial progression of this case.
13. For the foregoing reasons the following orders are made:
Done in English and French, the English version being authoritative.
Dated this thirty-first day of August 2001,
At The Hague,
Judge Liu Daqun
[Seal of the Tribunal]
1. Prosecutor v Kayishema and Ruzindana,
Judgement, Case No. ICTR-95-1-T, 21 May 1999, para. 60.
2. Prosecutor v Dusko Tadic, Judgement, Case No. IT-94-1-A, 15 July 1999, para. 48.
3. Kayishema and Ruzindana Trial Judgement, para. 60.
4. Tadic Appeal Judgement para. 48.