Case No. IT-95-13/1-PT

IN TRIAL CHAMBER II

Before:
Judge Wolfgang Schomburg, Presiding
Judge Florence Ndpele Mwachande Mumba
Judge Carmel Agius

Registrar:
Mr. Hans Holthuis

Decision of:
29 May 2003

PROSECUTOR
v.
MILE MRKSIC

_________________________

DECISION GRANTING CERTIFICATION TO APPEAL

_________________________

The Office of the Prosecutor:

Mr. Jan Wubben
Mr. Mark J. McKeon

Counsel for the Accused:

Mr. Miroslav Vasic

 

TRIAL CHAMBER II (“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 (“Tribunal”):

BEING SEISED OF the “Defence Request for Certification for Filing an Interlocutory Appeal on Trial Chamber’s Decision on Defence Motion Requesting the Determination of Rules for Communicating with Potential Witnesses of the Opposite Party” (“Request ”), filed on 14 May 2003 by counsel for Mile Mrkšic (“Defence”);

NOTING that the Defence seeks certification pursuant to Rule 73(B) of the Rules of Procedure and Evidence (“Rules”) to appeal the “Decision on Defence Motion Requesting the Determination of Rules for Communicating with Potential Witnesses of the Opposing Party” (“Impugned Decision”), rendered on 7 May 2003, wherein the Trial Chamber refused a Defence request to determine the rules for communicating with so-called “potential witnesses of the opposing party”;

NOTING that the Defence submits that the standard for granting certification is satisfied because the Impugned Decision impedes the determination of an important issue, one which “could greatly influence the ability of the Defence to prepare a quality case, which in turn might influence the equitable and expeditious nature of the proceedings”; 1

NOTING the following Defence submissions:

There is no obligation on so-called “Defence witnesses”, namely those who have already agreed to give a statement to the Defence and to testify for the Defence at trial , to speak to the Prosecution; 2

When “Defence witnesses” decline to be interviewed by the Prosecution, and the Prosecution re-approaches them via the Serbian and Montenegrin state authorities, this intimidates the witnesses, who no longer wish to co-operate with the Defence any more, and in turn also makes it harder for the Defence to secure new witnesses; further, the Defence cannot employ these same oppressive tactics and approach “Prosecution witnesses ” via the relevant state authorities; 3

The Defence is then left in a situation whereby they must request orders from the Trial Chamber to force witnesses to co-operate with them, which causes undue delay . 4

NOTING further the Defence submission that this issue requires an immediate resolution in order to enable the Defence to capably mount their case, since it is at the present stage that the Defence collects the greater part of the evidence and, for this reason, it is at this stage that the protection of “Defence witnesses ” against undue pressure from the Prosecution must be secured; 5

NOTING the “Prosecution’s Opposition to Defence Motion Requesting the Certification for Filing an Interlocutory Appeal on the Trial Chamber’s Decision on Defence Motion Requesting the Determination of Rules of Communication with Potential Witnesses of the Opposite Party” (“Response”), filed on 21 May 2003 by the Office of the Prosecutor (“Prosecution”);

NOTING that the Prosecution submits that the Defence has failed to demonstrate how the Impugned Decision involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial and, further, that the Defence has failed to demonstrate how an immediate resolution of this issue by the Appeals Chamber may materially advance the proceedings; 6

NOTING further the Prosecution’s submission that it has been prejudiced as a result of its undertaking not to further contact the witnesses concerned pending the resolution of this issue, and that any additional delay awaiting adjudication by the Appeals Chamber would compound such prejudice and greatly delay the Prosecution’s preparation for trial; 7

FINDING that the issue involved would significantly affect the fair and expeditious conduct of the proceedings, insofar as the ability of the Defence to communicate with potential witnesses and mount their case may be impaired by the absence of the guidelines requested;

CONSIDERING the Defence submission that this issue should be resolved as early as practicable, particularly in view of the absence of agreement between the parties;

RECALLING that a witness may be called to testify by the Defence in one case and by the Prosecution in another, 8 and that the following questions have repeatedly arisen in the course of proceedings before Trial Chambers: i) whether witnesses become attached to a party to proceedings , ii) if so, at what stage they become attached, and iii) what are the ramifications of such attachment in terms of contacting witnesses of the opposing party;

FINDING therefore that an immediate resolution by the Appeals Chamber may materially advance the proceedings, and not only in this case;

CONSIDERING that no date has yet been set for trial, and therefore that any marginal delay that the Prosecution may experience in preparing its case pending the determination of this issue is outweighed by the Defence concerns regarding their ability to mount their case;

FINDING therefore that the standard for granting certification pursuant to Rule 73(B) is satisfied;

FOR THE FOREGOING REASONS,

PURSUANT TO Rule 73(B) of the Rules;

HEREBY grants the Request

 

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

Dated this twenty-ninth day of May 2003,
At The Hague
The Netherlands

_______________
Wolfgang Schomburg
Presiding Judge

[Seal of the Tribunal]


1 - Request, par 4.
2 - Request, pars 9 and 15.
3 - Request, pars 13 and 19.
4 - Request, par 11.
5 - Request, pars 15, 18 and 19.
6 - Response, page 3.
7 - Response, footnote 7.
8 - See eg Prosecutor v Milorad Stakic, Case IT-97-24, trial transcript of 20 Feb 2003, page 12475.