Case No.: IT-95-9-T

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 (the "International Tribunal "),

BEING SEISED of a "Prosecutor’s motion to add further exhibits to the confidential Prosecution exhibit list filed on the 9^th of April 2001" (the "Motion"), filed by the Office of the Prosecutor (the "Prosecution") on 6 September 2001, in which the Prosecution requests to be allowed to add transcripts from three telephone interviews with the defendant Miroslav Tadic, and one telephone conversation with the defendant Simo Zaric which occurred during the third telephone interview with Miroslav Tadic (the "transcripts"), all conducted in April or May 1996, to its exhibit list, and to have the Trial Chamber admit the transcripts of the interviews into evidence,

HAVING HEARD oral arguments in response to the Motion from the counsel for Miroslav Tadic on 10 September 2001, whereby it was argued that the transcripts should not be admitted into evidence as the accused were not presented with the Indictment prior to the first telephone interview, that the Indictment was only read in part for the accused, and that any consent given by the accused to participate in the interview was not informed consent, thereby violating the rights of the accused provided for under Article 21(4)(a) of the Statute of the International Tribunal (the "Statute"),

HAVING HEARD FURTHER from the Prosecution in reply orally on 10 September 2001 that all telephone conversations with the two accused were voluntary, that the accused were advised that they did not need to answer any questions, and that the accused were informed that any material from the recorded telephone conversations could be used against them,

NOTING that the initial Indictment was confirmed on 21 July 1995, and that the first telephone interview with accused Miroslav Tadic was conducted on 26 April 1996, at which time the Indictment had not been served on him, and sections from the Indictment were read to the accused during that telephone interview outlining the charges against him,

NOTING that at the time of the second telephone interview with Miroslav Tadic on 29 April 2001 only the first six pages of the Indictment were delivered to the accused by fax, that the Prosecution was aware of the fact that the accused had an incomplete copy of the Indictment and that the Prosecution proceeded to interview the accused about facts in the Indictment,

NOTING that there is no confirmation that the accused Miroslav Tadic or Simo Zaric received a complete Indictment at the time of the third telephone conversation on 22 May 1996,

NOTING that the Prosecution disclosed the transcripts of the telephone interviews to the Defendants on 12 March 1998,

CONSIDERING that Article 21 of the Statute provides the accused with the right to be informed promptly, and in a language that he understands, of the nature and cause of the charge against him, to have adequate time and facilities for the preparation of his defence, and to communicate with counsel of his own choosing,

CONSIDERING that Rule 53 bis of the Rules of Procedure and Evidence of the International Tribunal ("the Rules") provides that service of the indictment shall be effected personally on the accused and personal service of an indictment on the accused is effected by giving the accused a copy of the certified indictment,

CONSIDERING that pursuant to Rule 89(D) of the Rules, a Trial Chamber may exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial, and that Rule 95 provides that no evidence shall be admissible if its admission is antithetical to, and would seriously damage, the integrity of the proceedings,

CONSIDERING further that the Trial Chamber is not satisfied that effective service of the Indictment was made prior to any of the telephone interviews, and finds that the accused did not fully appreciate the seriousness of the Indictment at the material time nor understand fully the nature of the Indictment and the proceedings,

PURSUANT TO Article 21 of the Statute, and Rules 53 bis and 89(D) of the Rules,

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

_____________________________
Judge Florence Ndepele Mwachande Mumba
Presiding Judge

Dated this eleventh day of September 2001
At The Hague
The Netherlands