Case No.: IT-95-14-A

IN THE APPEALS CHAMBER

Before:
Judge Fausto Pocar, Presiding Judge

Judge Florence Mumba
Judge Mehmet Güney
Judge Wolfgang Schomburg
Judge Inés Mónica Weinberg de Roca

Registrar:
Mr. Hans Holthuis

Decision of:
8 December 2003

PROSECUTOR

v.

TIHOMIR BLASKIC

_______________________________________________________________

DECISION ON SUBJECT MATTER OF TESTIMONY OF WITNESSES ON APPEAL AND PROSECUTION’S REQUEST FOR RE-CONSIDERATION OF SCHEDULING ORDER FOR EVIDENTIARY HEARING

_________________________________________________________________

Counsel for the Prosecutor:

Mr. Norman Farrell

Counsel for the Appellant:

Mr. Anto Nobilo
Mr. Russell Hayman
Mr. Andrew Paley

 

THE APPEALS 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 (“International Tribunal”),

NOTING the “Notice Re Anticipated Subject Matter of Testimony of Witnesses on Appeal” (“Notice”) filed confidentially on 1 December 2003, whereby pursuant to the Appeals Chamber’s Scheduling Order of 18 November 2003, the Appellant sets out the anticipated issues on which the witnesses ordered to appear before the Chamber will testify;

BEING SEISED OF the “Prosecution’s Response to Appellant’s Notice Re Anticipated Subject Matter of Testimony of Witnesses on Appeal” (“Prosecution’s Response to Appellant’s Notice”) filed confidentially on 4 December 2003, whereby the Prosecution submits inter alia, that: (a) the Appellant is adducing entirely new topics of evidence, (b) the testing phase of the Rule 115 proceedings should be limited to testing the credibility of the evidence that the Appeals Chamber has already admitted, (c) “it was inherent in the terms of [the Scheduling Order issued on 31 October 2003] that the scope of the examination of the witnesses would be limited to the topics corresponding to the propositions the Appellant sought to adduce from the evidence during the admission stage of the Rule 115 process”1, and (d) “the Appellant should be restricted to adducing from the witnesses called during the evidentiary hearing… evidence on the topics that correspond with the propositions that he seeks to adduce from the transcripts or statements admitted by the Appeals Chamber… or to the propositions the Prosecution has put forward in rebuttal”;2

NOTING that the Prosecution concludes that if the Appellant had wanted to adduce evidence from the witnesses on the full range of topics listed in his Notice , he should have taken statements from the witnesses covering all of those matters and filed a Rule 115 Motion in respect of those statements, and then the Prosecution would have had an opportunity to present arguments on the admissibility of this evidence and, if admitted, to file rebuttal evidence, prior to the testing phase of the proceedings3;

NOTING the “Appellant’s Reply to Prosecution’s Response to Notice Re Anticipated Subject Matter of Testimony of Witnesses on Appeal” (“Appellant’s Reply”) filed confidentially on 5 December 2003, whereby the Appellant submits the following: (a) the transcripts of witness testimony from the Kordic case were proffered to demonstrate a prima facie case under Rule 115, and were not intended to limit the topics to be addressed and admitted on appeal, (b) the subject matter of the testimony in this appeal should be the witnesses’ personal knowledge and not the testimony elicited by the Prosecution in the Kordic case, (c) the Appellant has never had the opportunity to explore the full extent of the exculpatory information possessed by these witnesses, (d) after contacting these witnesses and reviewing the summaries recently produced by the Prosecution, the Appellant has learned that they possess more exculpatory information than revealed in the Kordic case, and (e) if the scope of examination of the witnesses were to be limited to topics raised at the stage when the evidence was proffered pursuant to Rule 115, the Appeals Chamber would not have ordered the Appellant to provide a Notice of anticipated subject matter;4

BEING SEISED of “Prosecution’s Request for Re-Consideration of Present Scheduling Order for Evidentiary Hearing and Request for Related Orders” (“Prosecution’s Request for Re-Consideration”) filed on 4 December 2003, whereby the Prosecution submits inter alia, the following: (a) a more balanced allocation of time for the questioning of witnesses at the evidentiary hearing, “or a relatively greater period of time for questions by the Prosecution would satisfy the purpose of the evidentiary hearing,”5 since the time given to the Prosecution will not permit a full, fair and useful examination, (b) at no point did the Appellant seek to have the witnesses testify when proffering the transcripts of the witnesses’ testimony in the Kordic case, (c) the scope of the subject matter of the anticipated testimony has been expanded to include evidence which has not been admitted, and (d) Rule 89 (F) can be applied by asking the witnesses whether they would give the same answers they gave in their testimony if asked the same questions by the Appeals Chamber,6 and (e) requests that “an order be issued that during a witness’ testimony, no communication or contact be permitted by either party or by any other individual in relation to his testimony;”7

NOTING the “Appellant’s Response to Prosecution’s Request for Re-Consideration of Present Scheduling Order for Evidentiary Hearing and Request for Related Orders” (“Appellant’s Response to Prosecution’s Request for Re-Consideration”) filed on 5 December 2003, whereby the Appellant submits that: (a) he did not intend to offer the transcripts in place of live testimony and that the former were submitted “as prima facie evidence that these witnesses’ testimony is admissible on appeal under Rule 115”,8 (b) the testimony given by the witnesses was limited to answering questions on issues related to the Kordic case, (c) the Prosecution recently provided the Appellant with copies of witness proofing summaries for the witnesses called to testify in this appeal , and such summaries according to the Appellant, reveal that the witnesses possess “significantly more exculpatory evidence regarding the Appellant than was elicited during their testimony in Kordic,”9 (d) if witnesses are only asked to confirm their prior testimony in the Kordic trial, the Prosecution would cross-examine on the very testimony it itself elicited and therefore would control both direct and cross examination of the witnesses’ testimony in this appeal, (e) the Prosecution’s request to be granted additional time for cross-examination is without basis, (f) with respect to the Prosecution’s request that neither party be permitted to contact the witnesses in relation to their testimony, the Appellant points out that during his trial both parties were allowed to meet with the witnesses during breaks throughout the witnesses’ testimony and that the Prosecution provides no basis for adopting a contrary rule on appeal;10

CONSIDERING that with respect to the Prosecution’s request for a more balanced allocation of time for the questioning of witnesses at the evidentiary hearing, in accordance with the Scheduling Order of 2 December 2003, the time for questioning will be adjusted where appropriate;

CONSIDERING that, in relation to the witnesses who have been called to testify at the hearing commencing on 8 December 2003, the Appeals Chamber has considered all the relevant transcripts proffered by the Appellant and these transcripts have been admitted as filed by the Appellant;

CONSIDERING that the purpose of hearing the witnesses listed in the 31 October 2003 Order, is to test the evidence proffered by the Appellant in his Rule 115 motions and admitted by the Appeals Chamber;

CONSIDERING that the Appellant submits that exculpatory evidence not contained in the witnesses’ testimonies has been disclosed by the Prosecution only on 28 November 2003;

CONSIDERING FURTHER that it is in the interests of justice that such allegedly exculpatory evidence be tested in court through the examination of the witnesses ;

FOR THE FOREGOING REASONS,

DISMISSES the Prosecution’s Request for Re-Consideration; DECIDES that the scope of the examination in chief of the witnesses may encompass any factual circumstance contained in the admitted evidence, as well as the allegedly exculpatory evidence contained in the witness summaries disclosed by the Prosecution on 28 November 2003; and ORDERS that the Prosecution is not allowed to contact the witnesses at any time during their testimony, and that the Appellant may contact them during the examination in chief, during re-examination and after cross-examination.

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

_________
Fausto Pocar
Presiding Judge

Dated this eighth day of December 2003,
At The Hague,
The Netherlands.

[Seal of the Tribunal]


1 - Prosecution’s Response to Appellant’s Notice, para. 3.
2 - Id., at para. 39.
3 - Id., at para. 38.
4 - Appellant’s Reply, paras. 1 to 4.
5 - Prosecution’s Request for Re-Consideration, para. 3.
6 - Id., at paras. 5 to 11.
7 - Id., at para. 23.
8 - Appellant’s Response to Prosecution’s Request for Re-Consideration, para. 2.
9 - Id., at para. 3.
10 - Id., at para. 6.