Case No.: IT-00-39 & 40-PT

IN THE TRIAL CHAMBER

Before:
Judge Richard May, Presiding
Judge Patrick Robinson
Judge O-Gon Kwon

Registrar:
Mr. Hans Holthuis

Order of:
28 October 2002

PROSECUTOR
v.
MOMCILO KRAJISNIK
&
BILJANA PLAVSIC

_______________________________________________

DECISION ON ACCUSED MOMCILO KRAJISNIKíS MOTIONS TO PRECLUDE USE OF RULE 63 STATEMENTS OF THE CO-ACCUSED BILJANA PLAVSIC AND TO COMPEL THE PROSECUTION TO ELECT WHETHER TO APPLY TO CALL HER AS A WITNESS

_______________________________________________

The Office of the Prosecutor:

Mr. Mark Harmon
Mr. Alan Tieger

Counsel for the Accused:

Mr. Deyan Brashich and Mr. Nikola Kostich, for Momcilo Krajisnik
Mr. Robert J. Pavich, Mr. Eugene OíSullivan and Mr. Peter Murphy, for Biljana Plavsic

 

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 ("the International Tribunal"),

BEING SEISED of the following Motions and filings:

  1. "The Krajisnik Defence Corrected Motion for an Order Precluding Use of Plavsic Rule 63 Statements" filed by the Krajisnik Defence ("Defence") on 22 August 2002 ("Rule 63 Motion"), seeking orders to preclude the Prosecution from using statements made by Biljana Plavsic pursuant to Rule 63; setting terms for the use of such statements in cross-examination by the Defence if Biljana Plavsic elects to testify, and setting terms for the use of such statements in rebuttal;
  2. "Prosecutionís Response to Krajisnikís Motion for an Order Precluding Use of Plavsic Rule 63 Statements" filed by the Prosecution on 2 September 2002 ("Rule 63 Response"), in which the Prosecution submits that the Rule 63 Motion is speculative, because the Prosecution has not listed or sought to list Biljana Plavsic as a witness, nor has it sought to introduce any such Rule 63 documentary or other evidence, and the Rule 63 Motion should be dismissed;
  3. "Motion for Order Directing the Prosecution to Forthwith Elect as to a Witness and if so Make Available on a Confidential Basis Any Written Plea Agreement Made With the Witness", filed by the Defence on 3 September 2002 ("Election Motion"), filed subsequent to Biljana Plavsicís change of plea, in which the Defence seeks an order directing the Prosecution to state whether it intends to call Biljana Plavsic as a witness and, if so, to make available to it any plea agreement, memorandum of understanding, promises or warranties relating to her plea pursuant to Rule 62 bis;
  4. "The Krajisnik Defence Notice of Withdrawal of Request for a Copy of Plea Agreement", filed by the Defence on 4 October 2002 ("Withdrawal Motion"), in which the Defence withdraws that part of its Election Motion seeking access to the plea agreement but stands by the rest of that Motion; and
  5. "Prosecutionís Response to Krajisnikís Motion for an Order Directing the Prosecution to Forthwith Elect as to a Witness and if so Make Available on a Confidential Basis Any Written Plea Agreement Made With the Witness", filed by the Prosecution on 8 October 2002 ("Election Response"), in which the Prosecution opposes the Motion as having no factual or legal basis for the reason that it has not formed an intent to call Biljana Plavsic as a witness or introduce new evidence, and is only required to seek to have the witness added to the witness list or to introduce new documentary evidence if it does form that intent,

CONSIDERING that until the Prosecution has formed an intent to call a witness or introduce new evidence, it is not obliged to notify the parties or apply to have that witness added to its witness list or that evidence added to its exhibit list, but should do so as soon as it does form such an intent,

CONSIDERING that the Defence Motions lack any legal basis under the Rules of Procedure and Evidence of the International Tribunal ("Rules"),

PURSUANT TO Rules 54 and 73 of the Rules

HEREBY ORDERS AS FOLLOWS:

  1. The Rule 63 Motion and the Election Motion are DENIED;
  2. The Prosecution shall, in the event that it forms the intention to call Biljana Plavsic or introduce any evidence not currently disclosed, apply to do so and notify the parties as soon as is practicable.

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

_____________________________
Richard May
Presiding

Dated this twenty-eighth day of October 2002
At The Hague
The Netherlands

[Seal of the Tribunal]