IN THE TRIAL CHAMBER
Judge Claude Jorda, Presiding
Judge Fouad Riad
Judge Mohamed Shahabuddeen
Mr. Jean-Jacques Heintz, Deputy-Registrar
29 January 1998
DECISION OF TRIAL CHAMBER I ON THE PROSECUTOR'S
CLARIFICATION OF ORDER REQUIRING ADVANCE DISCLOSURE OF WITNESSES AND FOR
ORDER REQUIRING RECIPROCAL ADVANCE DISCLOSURE BY THE DEFENCE
The Office of the Prosecutor:
Mr. Mark Harmon
Mr. Andrew Cayley
Mr. Gregory Kehoe
Mr. Anto Nobilo
Mr. Russell Hayman
I. Procedural Background
1. In a Motion dated 17 November 1997 (hereinafter "the Motion"), the Prosecutor requests that the Trial Chamber specify the conditions under which advance disclosure of the list of the witnesses called to testify, as ordered by the Decision of this Trial Chamber on 25 August 1997 (hereinafter "the Decision") must be carried out. In fact, a discrepancy in respect of the time period is to be found between the French and English versions of the Decision. In addition, the Prosecutor requests that a reciprocal disclosure obligation be required of the Defence pursuant to Rule 54 of the Rules of Procedure and Evidence (hereinafter "the Rules") so as to allow the Prosecutor time for the proper preparation of her cross-examination of the Defence witnesses.
2. On 21 November 1997, the Defence responded by stating that the Trial Chamber needed to rule on the first point and that, in respect of the second point, both the Statute of the Tribunal and the Rules lead to the conclusion that all reciprocal obligation in respect of this matter should be set aside. In particular, Rule 67 of the Rules requires that only the Prosecution must inform the Defence of the names of the Prosecution witnesses which the Prosecution intends to call. The Defence considers, moreover, that the Decision of the Trial Chamber constitutes a sanction for the failure of the Prosecution to respect its disclosure obligation and is therefore not applicable to the Defence. Lastly, the Defence emphasises that the Prosecutors argument concerning her preparation for cross-examination is premature at this stage of the proceedings.
3. In its Reply of 16 January 1998, the Prosecution first rejects the Defence argument according to which the advance disclosure obligation of Prosecution witnesses constitutes a sanction. Second, the Prosecution asserts that the only relevant provision for the case at hand is Rule 54 of the Rules which authorises the Trial Chamber to issue any order which it deems necessary for the conduct of the trial.
1) Regarding the interpretation of the Decision of 25 August 1997
4. The Trial Chamber agrees that a discrepancy exists between the French and English versions of the texts but points out that, as expressly stated in the relevant paragraph, the French version is authoritative, that it is therefore not ambiguous, and that it is clear that the list of the witnesses which the Prosecution intends to present must by submitted, at the latest, two working days before the appearance of the witnesses concerned. It would therefore be an error to consider that such a list should be submitted before the end of a week for every day of the following week.
2) Regarding the Defence obligation of reciprocal advance disclosure
5. The Trial Chamber notes that Rule 67 of the Rules which is applicable in the case at hand requires that only the Prosecutor disclose "the names of the witnesses that (s)he intends to call". Out of concern for proper administration of justice, the fact that the Trial Chamber specified this obligation to the Prosecutor does not in and of itself constitute a sanction. Furthermore, at this stage, it imposes no obligation on the Defence, as the Trial Chamber already indicated when it denied the Prosecutors previous request on this point.
6. FOR THE FOREGOING REASONS
Trial Chamber I
Ruling inter partes and unanimously,
STATES that no reasons exist for it to issue a ruling on the Prosecutors motion for clarification.
DENIES the additional motions of the Prosecution.
Done in French and English, the French version being authoritative.
Done this twenty-ninth day of January 1998
At The Hague
Judge Claude Jorda
Presiding Judge, Trial Chamber I
(SEAL OF THE TRIBUNAL)