Case No. IT-01-48-T

Before:
Judge Liu Daqun, Presiding
Judge Amin El Mahdi
Judge György Szénási

Registrar:
Mr. Hans Holthuis

Decision of:
12 May 2005

The Office of the Prosecutor:

Mr. Philip Weiner
Ms. Sureta Chana
Mr. David Re
Mr. Manoj Sachdeva

Counsel for the Accused:

Mr. Peter Morrissey
Mr. Guénaël Mettraux

TRIAL CHAMBER I, SECTION A, (“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 oral request of the Defence, made during the trial hearing of 6 April 2005 (“Defence Oral Request”), in which the Defence submitted that: ( i) the deposition of Vehbija Karic (“Witness”) taken on 8 July 2003 pursuant to Rule 71 of the Rules of Procedure and Evidence (“Rules”) ought to be played in Court ; (ii) the Defence should be given a limited right to cross-examine the Witness on matters upon which he has not been cross-examined during the deposition; and (iii) the Prosecution should only be allowed to put questions to the Witness in redirect, provided the questions are limited to clarifications, arising out of cross-examination;¹

AND BEING SEISED of the Prosecution’s oral request during the trial hearing of 6 April 2005 (“Prosecution Oral Request”), in which the Prosecution requests that if the deposition is accepted into evidence and the Defence is allowed to further cross-examine the Witness, the Prosecution be allowed to conduct a further limited examination-in-chief;²

ALSO BEING SEISED of the Defence “Supplementary Submissions Regarding Deposition Evidence of One Witness”, filed on 13 April 2005 (“Defence Supplementary Submissions ”), in which the Defence submits that: (i) the transcript of the Witness’s deposition should be admitted;³ (ii) the Defence should be allowed to cross-examine the Witness on a limited number of issues;⁴ (iii) the Prosecution should not be allowed to conduct any further examination-in -chief of the Witness;⁵ and (iv) the exhibits tendered during the deposition should not be admitted into evidence;⁶

NOTING that both parties request that, in light of the Witness’s current state of health, any further testimony, if allowed, be conducted by way of video -conference link;⁷

NOTING the “Decision on Prosecution’s Motion to Take Deposition for Use at Trial” issued by Trial Chamber III on 11 June 2003, whereby the Trial Chamber ordered that a deposition of the Witness be taken by means of video-conference link, noting that “the Witness, who is terminally ill, resides in Sarajevo, Bosnia and Herzegovina and can not be wholly expected to be able to come to testify at the Tribunal now or in the future”;

NOTING that on 3 July 2003 the then-Defence Counsel of the Accused, Mr. Ahmet Hodzic (“the then-Defence Counsel”), requested that the deposition be postponed, because, among other reasons, he “did not manage to inform ShimCself completely with all necessary facts and their aspects so that SheC could provide a right and correct defence to the client as a Lead Counsel”;⁸

NOTING that Trial Chamber III denied this request, noting that the decision to take a deposition by way of video-conference link was “due to the medical condition of the Witness” and considering that “no convincing reason SwasC provided in the Motion to justify postponing the taking of the deposition of the Witness”;⁹

NOTING that the then-Defence Counsel had requested to be withdrawn as Defence counsel one day before the deposition was taken;¹⁰

NOTING that the deposition of the Witness was taken by way of video-conference link on 8 July 2003;

NOTING that the then-Defence Counsel in his request to postpone the taking of the deposition,¹¹ in his motion to withdraw his appointment as Defence counsel,¹² and initially also during the taking of the deposition stated that he was not prepared to cross-examine the Witness;¹³

NOTING that after the examination-in-chief of the Witness, following a suggestion of the Presiding Officer to reconsider his position, the then-Defence Counsel stated , after an adjournment of one day, that “having followed the examination of this witness carefully over the past two days […] and also having familiarised [himself] with the interview of the Witness and other documents […]” he was prepared to cross -examine the Witness;¹⁴

NOTING that this case was transferred from Trial Chamber III to Trial Chamber I on 17 January 2005;¹⁵

NOTING that during the trial hearing of 31 January 2005, the Prosecution stated that it intended to call the Witness as a live witness and that the evidence given by him had not been “subject to cross-examination by the Defence […] as the previous Defence Counsel elected not to cross-examine Mr. Karic”;¹⁶

NOTING that the Prosecution further stated that “if the Prosecution were to lead Sevidence from the WitnessC that it would be in the form of tendering the deposition evidence”;¹⁷

NOTING that during the trial hearing of 30 March 2005, the Defence submitted that the deposition should be played before the Trial Chamber¹⁸ and that, as “anything but a proper cross-examination was conducted”,¹⁹ the Defence should be allowed to further cross-examine the witness via video-conference link;²⁰

NOTING that the Defence in the Defence Supplementary Submissions argues that the deposition should be admitted into evidence because the Defence “has proceeded upon the basis that it would be admitted and the Prosecution has indicated that it would not oppose its admission;”²¹

NOTING that the Defence in the Defence Oral Request submitted that it intends to question the Witness on “whether he delivered any threats in the presence of his son or otherwise to persons in the village [of Grabovica]”²² as alleged in the Indictment and that the Defence is not seeking to “open up matters on which he’s already given evidence”;²³

NOTING that the Defence in the Defence Supplementary Submissions, while it accepts that some cross-examination of the Witness did occur, and that it would be “oppressive” to revisit this,²⁴ it seeks to ask the Witness a number of questions on limited topics, on which it has not had the full opportunity to cross-examine the Witness, as the then-Defence Counsel at the time was not ready for cross-examination and had requested to be withdrawn as counsel;²⁵

NOTING that the Prosecution in the Prosecution Oral Request conceded that , at the time of taking the deposition, it should have asked the Witness whether or not he “made a threat or threatening gesture or said the words which some witnesses have said he said, and whether or not Mr. Halilovic was present”²⁶ and submitted that “it would be preferable to be asked in an open-ended manner for the witness to be given a chance to respond in his own words rather than in a cross -examining manner in which the cross-examiner would be entitled to put words in his mouth”;²⁷

NOTING that the Defence in the Defence Supplementary Submissions opposes the Prosecution’s request to be allowed to conduct further examination-in-chief, because, inter alia: (i) “the Prosecution was not denied a full and complete opportunity to put its case to the Witness”;²⁸ (ii) because “it would prejudice the Defence insofar as it put lines of questioning to Prosecution witnesses who have already testified based on the evidence given by [the Witness]”;²⁹ and (iii) because “it would create a bad precedent, where each party would be admitted to re-open its case in relation to particular witnesses when it realises that it has failed to put particular aspects of its case to that witness;”³⁰

NOTING that the Defence in the Defence Supplementary Submissions argues that the documents used during the deposition should not be admitted, because (i) it is not the practice to admit written statements made outside the Tribunal and the reliability of the statements is challenged;³¹ (ii) the Prosecution never sought to include these exhibits on its Rule 65 ter exhibit list;³² (iii) the sole purpose of tendering these exhibits was to attempt to impeach the witness and the Prosecution is not allowed to impeach a witness which it chose to call without leave of the Tribunal in advance, and at the very least, the Prosecution was bound to indicate what was the relevant part of the exhibit with which it wished to confront the witness;³³ (iv) the Prosecution chose to tender indiscriminately entire documents³⁴; and (v) the authenticity and translation of the exhibits is challenged;³⁵

NOTING that on 15 April 2005, the Prosecution submitted that any arguments concerning the exhibits tendered through the Witness should be done at the time when the Trial Chamber makes its decision on [the requests of the Defence and the Prosecution];³⁶

NOTING that the Trial Chamber has not heard the arguments of the Prosecution regarding the admission of the exhibits at this stage, wherefore the Trial Chamber will not decide on this issue in the present Decision;

NOTING that the Prosecution on 6 April 2005 stated that it had contacted the Witness, who had indicated that his health would permit him to provide testimony via video-conference link, subject to medical supervision and breaks;³⁷

NOTING the letter of Dr. Abdulah Nakas, dated 28 April 2005, in which the doctor informs the Trial Chamber that the Witness is “in a situation of significant loss of weight and is very exhausted [and] is incapable of a trip to The Hague for the purposes of testifying, as that would cause a heavy physical and psychological stress […] and would have a negative effect on his health condition”;

NOTING that Rule 71 (“Depositions”) of the Rules of Procedure and Evidence (“Rules”) is an exception to the general principle expressed in Rule 90 (A) of the Rules, that a witness should testify directly before the Trial Chamber;

NOTING that Rule 71 (A) gives a broad discretion to the Trial Chamber to order a deposition to be taken for use at trial “[w]here it is in the interests of justice to do so”; and that Rule 71 (C) provides that the party at whose request the deposition is to be taken shall give reasonable notice to the other party, who shall have the right to attend the taking of the deposition and cross-examine the person whose deposition is being taken;

NOTING that Trial Chamber III granted the Prosecution’s application to hear the evidence of the Witness by way of deposition because the Witness was seriously ill and it was feared that he would not be able to present his evidence during the trial;³⁸

CONSIDERING that both parties agree that the deposition should be admitted into evidence;

CONSIDERING that, even though the then-Defence Counsel had requested to be withdrawn as Defence counsel shortly before the deposition was taken, and initially stated not to be prepared to cross-examine the Witness, he still decided to cross -examine the Witness after having followed the examination-in-chief of the Witness and having familiarised himself with documentary evidence;

NOTING that the Indictment against Sefer Halilovic (“Indictment”) at paragraph 10 alleges that the Witness, in the presence of Sefer Halilovic “in word and gesture indicated that the troops should try those Bosnian Croat civilians summarily and throw them in the Neretva river if they did not cooperate”;³⁹

NOTING that during the deposition, the Witness was not asked by the Prosecution or the then-Defence Counsel whether or not the alleged situation, as presented in the Indictment, actually occurred;

CONSIDERING that in particular the Prosecution, but also the then-Defence counsel, had ample notice of the allegations in paragraph 10 of the Indictment and that there is no apparent reason why either of the parties could not have put questions to the Witness concerning this allegation;

CONSIDERING that, in general, the Trial Chamber is reluctant to grant the recalling of a witness who has provided testimony by way of deposition for the reason that a party has failed to ask questions, which may prove important to its case;

CONSIDERING HOWEVER that the Witness is the individual mentioned in the allegation of paragraph 10 of the Indictment and as such could have specific or unique knowledge as to that particular allegation in the Indictment and his evidence in this respect may prove to be pivotal evidence in this case;

CONSIDERING that the Trial Chamber at any stage of the trial can recall a witness, who has already given evidence, to put such questions to the witness as are required in the interest of justice;

CONSIDERING that Trial Chamber III clearly granted the application for the taking of deposition evidence of the Witness in order to preserve the evidence of a potentially important witness;

CONSIDERING FURTHER that the Witness, despite his current health condition , is at present available to give evidence before the Trial Chamber, which could benefit from hearing oral testimony on such a critical allegation against the Accused ;

CONSIDERING that it is in the interests of justice that the testimony of the Witness be received via video-conference link, as his health does not permit him to appear before this Tribunal;

CONSIDERING FURTHER that the health of the Witness does not permit a lengthy examination;

FOR THE FOREGOING REASONS,

PURSUANT TO Rules 54, 71, 71 bis and 90 of the Rules;

HEREBY GRANTS the Prosecution and Defence Requests IN PART;

ADMITS into evidence the deposition of the Witness taken on 8 July 2003;

ORDERS that:

1. Further testimony of the Witness be received via video-conference link on 2 June 2005, for the purposes of questioning by the Judges, limited to the allegations in paragraph 10 of the Indictment;
2. The time of each Party to ask questions arising out of the Judges’ questions will be limited to 45 minutes;
3. The location(s) of the video-conference link be determined after consultation among all the Parties, the Registry and the Trial Chamber, taking into consideration, in particular, the health condition of the Witness and the possibility to hear him in or around Sarajevo;

REQUESTS the Registrar to inform the Witness that pursuant to Rule 90(E) (“Testimony of Witnesses”) of the Rules he has the right to object to making a statement which may tend to incriminate himself, but that the Trial Chamber may, however, compel him to answer the question and that testimony so compelled shall not be used as evidence in a subsequent prosecution against him for any offence other than false testimony; and requests the Registrar to inform the Witness that he may, if he so requests, have a lawyer present during his testimony;

REQUESTS the Registrar to assign an exhibit number to the deposition of the Witness.

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

______________
Judge Liu Daqun
Presiding

Dated this twelfth day of May 2005,
At The Hague,
The Netherlands.

[Seal of the Tribunal]