Case No. IT-01-47-T

IN TRIAL CHAMBER II

Before:
Judge Jean-Claude Antonetti
Judge Vonimbolana Rasoazanany
Judge Albertus Swart

Registrar:
Mr Hans Holthuis

Decision of:
11 March 2004

THE PROSECUTOR

v.

ENVER HADZIHASANOVIC
AMIR KUBURA

_____________________________________________________

DECISION ON PROSECUTION MOTION FOR RECEIVING TESTIMONY BY VIDEO-CONFERENCE LINK

_____________________________________________________

The Office of the Prosecutor:

Mr Ekkehard Withopf
Mr Daryl Mundis
Mr Chester Stamp
Ms Tecla Henry-Benjamin

Defence Counsel:

Ms Edina Residovic and Mr Stéphane Bourgon for Enver Hadzihasanovic
Mr Fahrudin Ibrisimovic and Mr Rodney Dixon for Amir Kubura

 

TRIAL CHAMBER II ("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 Prosecutionís Motion Pursuant to Rule 71 bis of the Rules for Video-Link Testimony ("Motion"), filed confidentially on 2 March 2004 by the Office of the Prosecutor ("Prosecution"), in which the Prosecution requests that the testimony of eleven witnesses be received via video-conference link in keeping with Rule 71 bis of the Rules of Procedure and Evidence ("Rules"),

NOTING the arguments set out by the Prosecution in its Motion according to which:

NOTING the Prosecutionís oral submissions of 5 March 20041 that witnesses (i) to (xi) are unable to travel to The Hague to testify due to their age or state of health,

NOTING the Defenceís oral submissions of 5 March 20042 according to which:

NOTING that the reports and medical certificates relating to witnesses (i), (ii), (iii), (v), (vi), (vii), (x) and (xi) are attached to the Motion,

NOTING its oral Decision of 5 March 2004 concerning the Motion ("Oral Decision of 5 March 2004"),

NOTING the Decision on Prosecution Application Pursuant to Rule 92 bis(A) of the Rules, filed on 4 February 2004 ("Decision of 4 February"), in which the Chamber admitted the written statements and related exhibits of 21 witnesses,

PURSUANT TO Rule 71 bis of the Rules, which states that "the Trial Chamber may, in the interests of justice, order that testimony be received via video-conference link,3

CONSIDERING that the witnesses referred to in the Motion all appear on the Prosecutionís confidential list of witnesses,4

CONSIDERING that, in its Decision of 4 February 2004, the Chamber decided that the statement of witness (v) was admitted without that witness being called for cross-examination by the Defence,

CONSIDERING that in its Decision of 4 February 2004 the Chamber ruled that the statements of witnesses (i) and (x) were admitted provided that those witnesses were called for cross-examination by the Defence,

CONSIDERING that the Prosecution has not yet provided medical certificates in support of the stated inability of witnesses (iv) and (ix) to travel to The Hague to testify,

CONSIDERING that the Prosecution has not supported its assertions that witness (viii) is unable to travel to The Hague to testify,

CONSIDERING that the first name of witness (x) is not the same in the Motion as in the medical certificate provided by the Prosecution in support of its assertions that the witness is unable to travel to The Hague to testify,5

CONSIDERING that the Prosecution set out the reasons for which it is physically impossible for witnesses (i), (ii), (v), (vi) and (xi) to travel to The Hague to testify,

CONSIDERING that it is in the interests of justice for witnesses (i), (ii), (vi) and (xi) to testify by video-conference link,

CONSIDERING that the testimony of witnesses by video-conference link has as much probative value as testimony presented in the courtroom and does not infringe the rights of the accused to confront the witnesses directly,

FOR THE FOREGOING REASONS,

PURSUANT to Rule 71 bis of the Rules,

CONFIRMS its Oral Decision of 5 March 2004 granting the Motion in part,

ORDERS that the testimony of witnesses (i), (ii), (vi) and (xi) be received by video-conference link;

REJECTS the Motion with regard to witnesses (iii), (v), (vii) and (viii);

SUSPENDS ruling with regard to witnesses (iv), (ix) and (x) and awaits the filing of relevant medical certificates for those witnesses;

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

Done this eleventh day of March 2004
At The Hague
The Netherlands

_____________
Presiding Judge of the Trial Chamber
Jean-Claude Antonetti

[Seal of the Tribunal]


1. T. 4150-4152
2. T. 4145-4149
3. See the Decision on the Defence Motions to Summon and Protect Defence Witnesses, and on the Giving of Evidence by Video-Link, rendered on 25 June 1996 in The Prosecutor v. Dusko Tadic, case no. IT-94-T, which sets out the principles governing video-link testimony.
4. Prosecutionís confidential list of witnesses, presented on 10 October 2003; witness (i) of the Motion appears at number 21 on the List, witness (ii) at number 50, witness (iii) at number 61, witness (iv) at number 64, witness (v) at number 65, witness (vi) at number 73, witness (vii) at number 79, witness (viii) at number 80, witness (ix) at number 108, witness (x) at number 125 and witness (xi) at number 127.
5. The dates of birth are identical. The first name stated on the medical certificate corresponds to the first name of witness no. 125 on the Prosecutionís list of witnesses.