Case No. IT-04-74-PT

THE PRE-TRIAL JUDGE

Registrar:
Mr Hans Holthuis

Decision of:
30 November 2005

THE PROSECUTOR

v/

JADRANKO PRLIC
BRUNO STOJIC
SLOBODAN PRALJAK
MILIVOJ PETKOVIC
VALENTIN CORIC
BERISLAV PUSIC

____________________________________________

ORDER ON GUIDELINES FOR DRAWING UP THE LIST OF WITNESSES AND EXHIBITS

____________________________________________

The Office of the Prosecutor

Mr Kenneth Scott

Defence Counsel

Mr Michael Karnavas and Ms Suzana Tomanovic for Jadranko Prlic
Mr Tomislav Kuzmanovic for Bruno Stojic
Ms Vesna Alaburic for Milivoj Petkovic
Mr Tomislav Jonjic for Valentin coric
Mr Fahrudin Ibrisimovic for Berislav Pusic

The Accused

Mr Slobodan Praljak

I, Jean-Claude Antonetti, Judge at 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 ("the Tribunal");

NOTING the scheduling order of 21 November 2005 in which, pursuant to Rule 65 ter (E)(ii) and (iii) of the Rules, the Prosecution is ordered to provide the list of witnesses and exhibits at the same time as its pre-trial brief;

NOTING Rule 65 ter (B) of the Rules which permits the pre-trial Judge to take any measure necessary to prepare the case for a fair and expeditious trial;

CONSIDERING that, as this case has six accused, one of whom is conducting his own defence, the pre-trial Judge may take the appropriate measures to prepare the case for a fair and expeditious trial;

CONSIDERING therefore that during the last Pre-Trial Conference held on 8 November 2005 the question of the admissibility of the exhibits was raised,

CONSIDERING that the Rules, which are based on a combination of rules of procedure and evidence drawn from both common law and civil law, address the question of the admissibility of evidence in Section 3;

CONSIDERING that Rule 89(A) of that same section states that the Trial Chamber shall not be bound by national rules of evidence;

CONSIDERING that, in the Aleksovski case-1-, the Appeals Chamber clearly determined the scope of that rule by indicating that the purpose of the Rules is to ensure a fair and expeditious trial and that the Trial Chambers must have sufficient flexibility to reach that objective;

CONSIDERING that Rule 89(C) permits any evidence deemed to have probative value and that the practice at this Tribunal is to admit the evidence first and to evaluate its content subsequently during deliberations;

CONSIDERING that the very fact that the evidence is evaluated by professional judges and not by a jury made up of non-professionals, as is the case in the common law systems, gives support to particular treatment guaranteeing equitable evaluation of that evidence, as affirmed by the Trial Chamber in the "Čelebici" case-2-;

CONSIDERING therefore, and in view of the specificity of this case, that the list of witnesses and exhibits which the Prosecution is required to provide must allow the pre-trial Judge, and at a later date the Judges of the Chamber and the Defence, to have both an overview and specific details about all the evidence to be presented during the trial;

CONSIDERING that it is thus necessary for the Judges of the Chamber and the parties to have a witness and exhibit summary table divided into three parts so that a complete horizontal reading is possible, the first part indicating the counts and the two others the accused’s criminal responsibility under Articles 7(1) and/or 7(3) of the Statute of the Tribunal and a witness sheet for each testimony;

CONSIDERING that the summary table must be filed electronically in Microsoft EXCEL format in order to allow practical and complete use of all the information relevant for drawing up the list of witnesses and exhibits and that when preparing the summary table guidelines must be followed;

CONSIDERING however that the Prosecution’s pending confidential application of 30 June 2005 regarding the admission de evidence in accordance with Rule 92 bis (D) of the Rules requires that, in view of the Defence observations, a separate list of all evidence admitted under Rule 92 bis of the Rules be filed before such time as a decision of the Chamber has been rendered;

CONSIDERING therefore that, along with its pre-trial brief, the Prosecution must also file a list of witnesses and exhibits in the form of an electronic summary table in Microsoft EXCEL format following the model provided in the annexe and in view of the guidelines set out below, a witness sheet containing a detailed summary of each declaration and the list of evidence taken under Rule 92 bis of the Rules,

CONSIDERING that the Prosecution must know exactly which guidelines are to be followed when preparing the said summary table;

CONSIDERING that the summary table will have three parts;

CONSIDERING that the first part of the summary table will relate to the counts and will be divided into 9 columns:

• column 1 will precisely indicate the count,
• column 2 will indicate the place where the crime was committed,
• column 3 will indicate the date the crime was committed,
• column 4 will indicate the name of the victim or victims,
• column 5 will indicate the alleged perpetrator of the crime,
• column 6 will indicate the numbers of the relevant paragraphs of the indictment,
• column 7 will quote the sentence of the indictment which is most relevant,
• column 8 will relate to the witnesses and will be subdivided into 4 sub-columns each of which will have the following heading:

• 1st sub-column "no." will number the order in which the witnesses are expected to appear,
• 2nd sub-column will indicate the "family name, first name or pseudonym" of each witness,
• 3rd sub-column will indicate the "estimated length" of each testimony during the examination-in-chief,
• 4th sub-column "reference to the pre-trial brief" must indicate the relevant paragraphs of the pre-trial brief,

• column 9 will relate to the exhibits and will be subdivided into 6 sub-columns:

• 1st sub-column "exhibit number": each document must be assigned a reference number and listed chronologically,
• 2nd sub-column "document title": the most precise title possible in respect of the document’s content must be provided. Example: the document will be referred to as: "military order, report, war journal extract, press release or article, extract of a newspaper or book, video, recording of a telephone tap, judgment, investigation, correspondence, photo, etc."

• 3rd sub-column "name of author": the name of the author of the document must be given and if that person may not be identified, the letter "X" will be used;
• 4th sub-column "document date": the date of the document must be given and, if the date has not been determined, a question mark (?) will be used;
• 5th sub-column "document origin": the document origin must be known, i.e., archive document, witness’ personal document, etc.
• 6th sub-column "reference to the pre-trial brief": the document quoted will refer to the relevant paragraphs of the pre-trial brief;

CONSIDERING that the second part of the table will relate to the criminal responsibility of the accused pursuant to Article 7(1) of the Statute and will be divided into 10 columns:

• column 1 will give "the name of each accused"

• column 2: plan,
• column 3: instigate,
• column 4: order,
• column 5: aid and/or abet,
• column 6: commit as part of a joint criminal enterprise (JCE),
• column 7 will indicate the relevant paragraph numbers of the indictment,
• column 8 will accurately quote the relevant sentence of the indictment,
• column 9 will relate to the witnesses and will be subdivided into 4 sub-columns:

• 1st sub-column "no." will indicate in numbers the order in which the witnesses are expected to appear,
• 2nd sub-column will indicate the "family name, first name or pseudonym" of each witness,
• 3rd sub-column will indicate the "estimated length" of each testimony during the examination-in-chief,
• 4th sub-column "reference to the pre-trial brief" must indicate the relevant paragraphs of the pre-trial brief,
• column 10 will relate to the exhibits and will be subdivided into 6 sub-columns:

• 1st sub-column "exhibit number": each document must be assigned a reference number and listed chronologically;
• 2nd sub-column "document title": the most precise title possible in respect of the document’s content must be provided. Example: the document will be referred to as: "military order, report, war journal extract, press release or article, extract of a newspaper or book, video, recording of a telephone tap, judgment, investigation, correspondence, photo, etc.";
• 3rd sub-column "name of author": the name of the author of the document must be given and if that person may not be identified, the letter "X" will be used;
• 4th sub-column "document date": the date of the document must be given and, if the date has not been determined, a question mark (?) will be used;
• 5th sub-column "document origin": the document origin must be known, i.e., archive document, witness’ personal document, etc.;
• 6th sub-column "reference to the pre-trial brief": the document quoted will refer to the relevant paragraphs of the pre-trial brief;

CONSIDERING that the third part will relate to the criminal responsibility of the accused pursuant to Article 7(3) of the Statute and will be divided into 4 columns:

• column 1 will indicate the name of each accused,
• column 2 will indicate the relevant paragraph numbers of the indictment,
• column 3 will accurately quote the relevant sentence of the indictment,
• column 4 will relate to the witnesses and will be subdivided into 4 sub-columns:

• 1st sub-column "no." will indicate the order in which the witnesses are expected to appear,
• 2nd sub-column will indicate the "family name, first name or pseudonym" of each witness,
• 3rd sub-column will indicate the "estimated length" of each testimony during the examination-in-chief,
• 4th sub-column "reference to the pre-trial brief" must indicate the relevant paragraphs of the pre-trial brief,

• column 7 will relate to the exhibits and will be subdivided into 6 sub-columns:

• 1st sub-column "exhibit number": each document must be assigned a reference number and listed chronologically,
• 2nd sub-column "document title": the most precise title possible in respect of the document’s content must be provided. Example: the document will be referred to as: "military order, report, war journal extract, press release or article, extract of a newspaper or book, video, recording of a telephone tap, judgment, investigation, correspondence, photo, etc."
• 3rd sub-column "name of author": the name of the author of the document must be given and if that person may not be identified, the letter "X" will be used;
• 4th sub-column "document date": the date of the document must be given and, if the date has not been determined, a question mark (?) will be used;
• 5th sub-column "document origin": the document origin must be known, i.e., archive document, witness’ personal document, etc.
• 6th sub-column "reference to the pre-trial brief": the document quoted will refer to the relevant paragraphs of the pre-trial brief;

FOR THE FOREGOING REASONS,

ORDER the following:

The Prosecution must file at the same time as its pre-trial brief::

1. a list of witnesses and exhibits using the electronic table provided in the annexe and following the guidelines set out in this order,

2. a witness sheet and a detailed summary of each testimony,
3. a list of the evidence taken under Article 92 bis of the Rules, clearly indicating the fact to which the evidence relates and including a detailed summary of each declaration;

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

___________________
Jean-Claude Antonetti
Pre-Trial Judge

Done this thirtieth day of November 2005
At The Hague, The Netherlands

[Seal of the Tribunal]