Decision on the Prosecution Motion to Admit Evidence via Video-conference Link

Case No. IT-01-42-T

IN TRIAL CHAMBER II

Before:
Judge Kevin Parker, Presiding
Judge Krister Thelin
Judge Christine Van Den Wyngaert Registrar:
Mr. Hans Holthuis

Decision of:
20 January 2004

PROSECUTOR

PAVLE STRUGAR

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DECISION ON THE PROSECUTION MOTION TO ADMIT EVIDENCE VIA VIDEO-CONFERENCE LINK

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The Office of the Prosecutor:

Ms. Susan Somers
Mr. Philip Weiner

Counsel for the Accused:

Mr. Goran Rodic
Mr. Vladimir Petrovic

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 ("Tribunal"),

NOTING the Prosecution’s motion filed on 19 December 2003 seeking to admit the evidence of twelve witnesses by way of video-conference link pursuant to Rule 71 bis of the Rules of Procedure and Evidence ("Rules"),

NOTING the Defence response filed confidentially on 12 January 2004 asking that the Prosecution’s motion be denied in its entirety,

NOTING the arguments of the Prosecution that:

the medical condition of Nojko Marinovic and Vlaho Benkovic does not permit these individuals to travel to The Hague to testify;
Fabian Lucic has been ill for some time and is housebound;
Ivo Bjelokosic, Ivo Grbic, Veronika Novakovic, Hidajeta Klepo and Ivan Mustac would rather not travel to The Hague due to their poor health and/or their age;
Mato Skocko, Nikola Jovic and Gordana Vetma have notified the Prosecution that it would cause personal difficulties or hardship for them to travel to The Hague;¹

NOTING the arguments of the Defence that:

testimony received by way of video-conference link "is an exception to the general rule", and the Prosecution must show good cause as to why such an exception should be granted for a given witness;
the Prosecution does not provide any evidence to support its submission that the proposed witnesses are unable or unwilling to travel to The Hague to give evidence viva voce;
Nojko Marinovic, the commander of the Croat armed forces in Dubrovnik in 1991, is a key Prosecution witness who will provide details about the position of the Croatian heavy artillery, its tactics and areas of activity and in order to preserve the Accused’s right to a public trial, this witness should testify viva voce;
the remaining witnesses will also provide information critical to the Prosecution’s case and should testify viva voce;

NOTING that two of the witnesses proposed in the Prosecution’s Motion, namely Ivo Grbic and Ivan Mustac, who it was submitted would rather not travel to The Hague due to poor health or age, are currently scheduled to testify viva voce in this case during the week of 19 – 23 January 2004,

NOTING further that of the twelve individuals who are the subject of the Prosecution’s motion, ten are included in the Prosecution’s motion to admit written statements in lieu of oral testimony pursuant to Rule 92 bis of the Rules,

NOTING Rule 71 bis of the Rules pursuant to which "a Trial Chamber may, in the interests of justice, order that testimony be received via video-conference link",

NOTING the decision dated 25 June 1996 in the Tadic case² setting out guidelines for the giving of evidence by video-conference link,

CONSIDERING that the Prosecution has not supported its submissions on the proposed witnesses’ inability or reluctance to travel to The Hague to testify, or even detailed reasons why each of them can not come,

CONSIDERING that where the Prosecution has indicated that a proposed witness is unable to travel to The Hague for specific reasons as set forth in the motion, the Trial Chamber finds it to be in the interests of justice to hear these witnesses via video-conference link,

CONSIDERING, however, that where the reasons underlying a proposed witness’s inability or unwillingness to travel to The Hague have not been elucidated in any detail by the Prosecution, the Chamber is not in a position to determine whether it would be in the interests of justice to hear these witnesses via video-conference link,

CONSIDERING, in relation to the submissions of the Defence, that the public character of a trial is not per se affected where evidence is received via video-conference link rather than viva voce, and that the Defence has the same rights of cross examination whether a witness is testifying via video-conference link or viva voce,

FOR THE FOREGOING REASONS AND PURSUANT TO RULE 71 BIS OF THE RULES,

HEREBY GRANTS the Prosecution’s motion in part and permits the evidence of Nojko Marinovic, Vlaho Benkovic and Fabian Lucic to be received via video-conference link in accordance with the guidelines for conducting video-conference link testimony, as set out in the aforementioned Tadic decision.

All remaining requests are DENIED.

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

Dated this twentieth day of January 2004
At The Hague
The Netherlands

____________
Judge Kevin Parker
Presiding

[Seal of the Tribunal]

1. The Chamber observes that while Franka Babic is additionally listed as one of the proposed witnesses for a video-conference link, the Prosecution provides no additional information as to the reasons why this witness is unable to travel to The Hague.
2. Prosecutor v. Dusko Tadic, Case No. IT-94-1-T, Decision on the Defence Motions to Summon and Protect Defence Witnesses, and on the Giving of Evidence by Video-Link, 25 June 1996.