IN THE TRIAL CHAMBER

Before:
Judge Richard May, Presiding
Judge Mohamed Bennouna
Judge Patrick Robinson

Registrar:
Mrs. Dorothee de Sampayo Garrido-Nijgh

Decision of:
15 November 1999

PROSECUTOR

v.

MIROSLAV KVOCKA
MILOJICA KOS
MLADO RADIC
ZORAN ZIGIC

___________________________________________________________

DECISION TO PROCEED BY WAY OF DEPOSITION PURSUANT TO RULE 71

____________________________________________________________

The Office of the Prosecutor:

Mr. Grant Niemann
Mr. Michael Keegan
Mr. Kapila Waidyaratne

Counsel for the Accused:

Mr. Krstan Simic, for Miroslav Kvocka
Mr. Zarko Nikolic, for Milojica Kos
Mr. Toma Fila, for Mladjo Radic
Mr. Simo Tosic, for Zoran Zigic

 

THIS TRIAL CHAMBER of the International Criminal 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"),

BEING SEISED of a "Motion for Deposition Evidence" filed by the Office of the Prosecutor ("Prosecution") on 9 April 1999, the various responses of the Defence thereto, and a "Request for Witness Protection Guarantee" filed by the Defence for Miroslav Kvocka on 11 June 1999,

HAVING HEARD the parties at a pre-trial conference on 3 June 1999, at which the parties were ordered to (i) meet to clarify the outstanding issues as to the taking of deposition evidence; and (ii) file a list of witnesses for both the Prosecution and the Defence, for whom it was agreed that deposition evidence could be taken, together with the current whereabouts of those witnesses, such orders being reflected in the Scheduling Order of this Trial Chamber dated 8 June 1999 ("Scheduling Order"),

NOTING the meeting held between the parties on 4 June 1999 pursuant to those Orders,

NOTING FURTHER the "Defence Response to Prosecutor’s List of Witnesses", filed by the Defence for Mladjo Radic on 10 June 1999; the "Supplement Motion for Deposition Evidence, May 6, 1999", filed by the Defence for Miroslav Kvocka on 11 June 1999; the "Motion for Evidence Disclose", filed by the Defence for Milojica Kos on 25 June 1999; the "Suggestion of the Defence of the Accused Milojica Kos for the Examination of the Witnesses in Accordance with the Rule 71 of the Rules of Procedure and Evidence", filed by the Defence for Milojica Kos on 28 June 1999; the "Notice of Agreed Witnesses for Deposition Evidence", filed by the Prosecution on 1 July 1999; the "Confidential Defence List of Defence Witnesses for Way of Deposition", filed by the Defence for Zoran Zigic on 30 August 1999; the "Notice of Agreed Witnesses to Give Deposition Evidence for the Accused Zoran Zigic", filed by the Prosecution on 5 November 1999; and the "Corrigendum to the Notice of Agreed Witnesses For Deposition Evidence", filed by the Prosecution on 11 November 1999,

HAVING HEARD the parties further on this issue at a hearing held on 27 September 1999,

NOTING that the time for the Prosecution to respond to the "Request for Witness Protection Guarantee" filed by the Defence for Miroslav Kvocka on 11 June 1999, has elapsed, and no response has been filed,

CONSIDERING that agreement has been reached between the parties as to the witnesses whose evidence may be taken by way of deposition,

CONSIDERING that exceptional circumstances exist to warrant the use of deposition evidence under Rule 71 of the Rules of Procedure and Evidence of the International Tribunal ("Rules"), namely, the length of the pre-trial detention of the accused and the complexity of the cases currently assigned to this Trial Chamber which precludes it from setting a date for the commencement of this trial,

CONSIDERING FURTHER that the strict interpretation of Rule 71 advanced by the Appeals Chamber in Prosecutor v. Kupreskic1, is not applicable here, since all four accused have consented to the use of Rule 71 in these circumstances,

PURSUANT TO Rule 71 of the Rules,

HEREBY ORDERS as follows:

  1. The evidence of the witnesses listed in the Confidential Annex to this Decision will be taken by way of deposition pursuant to Rule 71;
  2. Ms. Yvonne Featherstone, Senior Legal Officer, is appointed as Presiding Officer in respect of the depositions, under the terms of Rule 71(A);
  3. The Presiding Officer shall call the parties in this case to a conference to consider matters relating to the taking of the depositions, including dates, venue, travel and accommodation;
  4. The Presiding Officer is empowered, in consultation with the Registry, to make all practical arrangements in respect of the depositions, except that deposition evidence shall be taken in closed session and the accused shall not be present;
  5. The Presiding Officer shall present the Trial Chamber with a written report on the status of the deposition proceedings every other month and further, shall report immediately any difficulties in the implementation of this Decision to the Trial Chamber; and
  6. Any applications for protective measures, including safe conduct, in respect of individual witnesses whose evidence will be taken by way of deposition, must be filed with the Trial Chamber by 15 December 1999.

 

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

______________________
Richard May
Presiding

Dated this fifteenth day of November 1999
At The Hague
The Netherlands

[Seal of the Tribunal]


1. Decision on Appeal by Dragan Papic Against Ruling to Proceed by Deposition, Prosecutor v. Kupreskic et al., Case No. IT-95-16-AR73.3, A. Ch., 15 July 1999.