Judge Florence Ndepele Mwachande Mumba

TRIAL CHAMBER II 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");

CONSIDERING that at the hearing of 15 January 1999, certain Counsel requested to be allowed to conduct "re-examination" of Defence witnesses whom they had not called, following cross-examination of the witness by the said Counsel and by the Prosecution;

CONSIDERING that this request was denied by this Trial Chamber in its Oral Ruling of 15 January 1999, the relevant transcript extract of which is herewith attached (Annex 1);

NOTING Rule 82(A), which reads "In joint trials, each accused shall be accorded the same rights as if such accused were being tried separately".

NOTING Rule 85(B), which reads, "Examination-in-chief, cross-examination and re-examination shall be allowed in each case. It shall be for the party calling a witness to examine such witness in chief, but a Judge may at any stage put any question to the witness";

NOTING Rule 73(C)(ii), whereby the Trial Chamber may indicate in its oral ruling that a written decision will follow;

NOTING this Trial Chamber’s Decision On Defence Motion To Summon Witnesses of 6 October 1998 in which the Trial Chamber ordered "that the order of presentation of evidence, pursuant to Rule 85(B), as regards these four witnesses, shall be examination-in-chief by Defence Counsel for Vlatko Kupreskic, cross-examination, if any, by other Defence Counsel, cross-examination by the Prosecution and re-examination by Defence Counsel for Vlatko Kupreskic";

CONSIDERING that this has been the approach adopted and consistently applied by this Trial Chamber, namely examination-in-chief by the accused calling the witness, cross-examination, if any, by other accused, cross-examination by the Prosecution and, finally, re-examination, if any, by the accused calling the witness;

CONSIDERING that it is incumbent upon the Tribunal to ensure a fair and expeditious trial and to conduct orderly proceedings, and that these interests are best served by the aforementioned order of presentation of evidence;

CONSIDERING that this is also the approach taken in most national systems in which the institutions of examination-in-chief, cross-examination and re-examination (or re-direct examination) are known (see, for example, the South African Commentary on the Criminal Procedure Act S1998C, §166 ("Re-examination is the right which may be exercised, when cross-examination is complete, by the party who called the witness"); Archbold §8-247; Peter Murphy, A Practical Approach to Evidence (3^rd edition), p. 460: "Very little need be said about re-examination. It is the process whereby a party calling a witness may seek to explain or clarify any points that arose in cross-examination and appear to be unfavourable to his case. Re-examination is, therefore, possible only where there has been cross-examination and is limited to matters raised in cross-examination: it is not an opportunity to adduce further evidence in chief");

CONSIDERING that the same approach has been taken by Trial Chamber II-quater in the Delalic et al. case in its Decision on the Motion on Presentation of Evidence by the Accused Esad Landzo rendered by the Chamber on 1 May 1997, in which it held that Rule 85(B) only contemplated examination-in-chief, cross-examination and re-examination, although the Trial Chamber affirmed that re-cross-examination, though not allowed generally, may be allowed where new material is introduced during re-examination. In such circumstances, the party is entitled to further cross-examine the witness on such new material since in that case "further cross-examination is to re-examination what cross-examination is to examination-in-chief". Similarly, where questions put to a witness by the Trial Chamber after cross-examination and re-examination raise entirely new matters, the opponent is entitled to further examine the witness on such new matters.

CONSIDERING that this appears to be a sound approach to the matter;

CONSIDERING the possible prejudice to an accused, however, which might result from the Prosecution introducing documents in the cross-examination of a witness which the accused had not hitherto had the opportunity to review and to cross-examine the witness upon,

CONFIRMS, therefore, that, as stated in the Trial Chamber’s Oral Ruling of 15 January 1999, the Prosecutor must bona fide disclose to all accused at the earliest available opportunity and, at the latest, prior to cross-examination, any new material it wishes to submit to a defence witness in cross-examination, in order to give the accused due notice;

AFFIRMS its Oral Ruling of 15 January 1999, that the order of presentation shall be: examination-in-chief by the accused calling the witness, cross-examination by other accused, cross-examination by the Prosecution, and re-examination by the accused calling the witness. The Trial Chamber retains the discretion whether or not to permit re-cross-examination where new material has been raised;

AFFIRMS, moreover, that nothing in this Decision shall be taken to prevent more than one accused from calling a defence witness to testify, provided that is clearly indicated which witness is being called by whom, but that in such a case the rules relating to examination-in-chief will apply, entailing among other things that no leading questions may be asked.

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

_________________

Antonio Cassese

Presiding Judge

Dated this twenty-first day of January 1999

At The Hague

The Netherlands

[Seal of the Tribunal]

JUDGE CASSESE: We rule that

13:20:23 only counsel who examined the witness in chief is

13:20:27 allowed to re-examine the witness, so the counsel who

13:20:35 cross-examined the witness are not allowed to

13:20:36 re-examine him.

13:20:40 Counsel Susak?

13:20:44 MR. SUSAK: Yes, Mr. President. That is just

13:20:49 what I wanted to say because I participated in the

13:20:53 examination-in-chief of this witness.

13:20:57 JUDGE CASSESE: No, no, no. We regard your

13:20:58 participation in the examination as

13:21:04 cross-examination. This witness was called by Counsel

13:21:10 Slokovic-Glumac, so she was entitled to examine him in

13:21:11 chief, and he was cross-examined by other Defence

13:21:16 counsel, then cross-examined by the Prosecution, and so

13:21:19 we feel that only Defence counsel, as I said, who

13:21:25 examined him in chief is entitled to re-examination.

13:21:31 This is our ruling.

13:21:35 MR. SUSAK: Yes, Mr. President. But may I

13:21:43 just say that during the examination-in-chief, I did

13:21:47 not have access to all the documents that this witness

13:21:52 was examined about today in the cross-examination. But

13:22:02 if that is your ruling, of course, I will abide by it.

13:22:08 JUDGE CASSESE: Yes, Counsel Par?

13:22:15 MR. PAR: Your Honour, with your permission,

13:22:18 may I put a question linked to this question of

13:22:24 re-examination? Of course, we will respect the ruling

13:22:28 of the Court, but we feel that this could lead to

13:22:34 certain problems; namely, today we saw that the

13:22:40 Prosecutor, in the course of his cross-examination,

13:22:43 presented some documents for the first time, and

13:22:47 mentioned a particular accused by name. By such a

13:22:53 ruling, we are unable to refer back to that document or

13:23:02 that exhibit, and the Prosecutor, on the other hand,

13:23:04 will be given the chance to present certain evidence

13:23:10 which we will not be able to comment on. We feel that

13:23:17 the principle of equality of arms is thereby impaired.

13:23:20 Secondly, we have some common witnesses with

13:23:25 other Defence counsel, and in the interest of the

13:23:30 efficiency of the proceedings, we have agreed that each

13:23:32 one of us should not call witnesses as his own witness

13:23:36 but that, within the framework of the

13:23:40 examination-in-chief of one witness, one Defence

13:23:43 counsel examine him, and then another Defence counsel

13:23:50 cross-examine him. As a result of this ruling, we

13:23:53 would be prevented from re-examining.

13:23:59 Therefore, it is my opinion that strict

13:24:02 observation of this rule would put us in an unequal

13:24:06 position. So I am asking Your Honours whether it would

13:24:09 be possible for the future, in cases when the

13:24:14 Prosecutor, in the cross-examination, mentions any one

13:24:18 of the accused, that in those situations, the Defence

13:24:20 counsel of that accused be permitted to re-examine.

13:28:43 Thank you.

13:28:43 JUDGE CASSESE: No, the motion is not

13:28:44 granted. We stick to our ruling concerning

13:28:48 re-examination. However, we request the Prosecutor,

13:28:53 whenever he decides to disclose new documents, to use

13:28:58 new documents in court, to disclose them in advance, as

13:29:01 soon as you know the list of witnesses for the

13:29:06 following week, if you have any document that you

13:29:09 intend to use in court, you should disclose them to the

13:29:14 Defence counsel, so roughly a week, I mean, a few days

13:29:15 before the relevant witness is called, so that all

13:29:19 Defence counsel are in a position to prepare, and in

13:29:21 particular, the Defence counsel who is going to examine

13:29:24 the witness in chief.

13:29:30 All right. So for the time being, we are

13:29:36 through with -- yes, Mr. Terrier?

13:29:41 MR. TERRIER: Of course, we also will abide

13:29:42 by your ruling, only there is the question of delay. I

13:29:51 cannot accept that this be treated very strictly

13:29:56 because on the eve or a day before, a day or two

13:30:02 before, we may discover a document that we intend to

13:30:04 use. So what I would suggest is that we be obliged to

13:30:11 disclose before the testimony of the witness but not

13:30:14 necessarily so many days before, and even during the

13:30:22 examination-in-chief, it may appear that certain

13:30:24 documents are necessary for the cross-examination. If

13:30:30 we are required to respect a very strict period in

13:30:33 advance, it will be very difficult for us. But I would

13:30:37 suggest that we do disclose in any case before

13:30:42 referring to those documents in court, that we disclose

13:30:48 those documents to all the attorneys.

13:30:51 JUDGE CASSESE: Yes, of course. Let us say

13:30:54 as early as possible. If possible, a week in advance,

13:30:56 but in any event, before the examination-in-chief, and

13:31:00 in such a way to allow the Defence to review and study

13:31:07 the document well and prepare for the defence. So good

13:31:11 faith is required. Therefore, as soon as possible, as

13:31:14 early as possible.

13:31:16 If you have a document at the last minute --

13:31:19 because after the examination-in-chief you suddenly

13:31:23 come across a document or one that you may have

13:31:25 forgotten -- then we will have to give a period of time

13:31:28 to the Defence. Then you will tell us that you have a

13:31:31 document that you intend to produce, and in that case,

13:31:35 we can postpone the testimony of the witness or find

13:31:41 another practical solution to allow the Defence to

13:31:44 prepare well on the basis of that document.

13:31:52 Are we agreed? Counsel Susak?

13:31:55 MR. SUSAK: Mr. President, of course I will

13:31:58 fully observe your ruling, but in this particular case,

13:32:01 I really do think it is an exception, and in my

13:32:05 opinion, for justice to be served and in the interest

13:32:08 of fairness, I, in this case, should be allowed to

13:32:14 re-examine this witness in view of the documents that

13:32:17 were presented.

13:32:22 JUDGE CASSESE: No, I'm sorry. We have

13:32:24 already made a ruling. I don't see why you in

13:32:27 particular should then re-examine him and not the other

13:32:32 Defence counsel. Then all of them would be entitled,

13:32:36 the ones who were prepared to cross-examine him after

13:32:42 the examination-in-chief.

13:32:43 The ruling stands, and for the future, we

13:32:46 will see to it that the Prosecutor complies with the

13:32:50 other ruling concerning his duty to produce documents

13:33:01 in advance.