IN TRIAL CHAMBER II
Judge Florence Ndepele Mwachande Mumba, Presiding
Judge David Hunt
Judge Fausto Pocar
Mrs. Dorothee de Sampayo Garrido-Nijgh
28 September 2000
DECISION ON REBUTTAL CASE
Office of the Prosecutor:
Mr. Dirk Ryneveld
Ms. Peggy Kuo
Ms. Hildegard Uertz-Retzlaff
Mr. Daryl Mundis
Counsel for the Accused:
Mr. Slavisa Prodanovic and Ms. Mara Pilipovic for the accused
Mr. Momir Kolesar and Mr. Vladimir Rajic for the accused Radomir Kovac
Mr. Goran Jovanovic and Ms. Jelena Lopicic for the accused Zoran Vukovic
1. The Trial Chamber is seised of the "Prosecutors Preliminary Submission Concerning Rebuttal Case", filed on 20 September 2000 ("Submission"); the "Defence Responese (sic) to the Prosecutors Preliminary Submission Concerning Rebuttal Case", filed on 25 September 2000 ("Response") by Radomir Kovac ("Defence"); and the "Prosecutors Response to the Defence Response to the Prosecutors Preliminary Submission Concerning Rebuttal Case", filed on 27 September 2000 ("Reply").
2. The Prosecutor has failed to apply for leave to file a reply to the Defences Response as required by the "Order for Filing of Motions" of 9 March 1998. However, in light of the advanced stage of the proceedings and the particular matter in issue, the Trial Chamber considers it to be in the interests of justice to treat the Reply itself as the required application for leave to file a reply and to grant the application.
3. In her Submission, the Prosecutor gives notice of her intention to call witnesses FWS-87 and FWS-191 ("prosecution witnesses") in rebuttal pursuant to Rule 85(A)(iii) of the Rules of Procedure and Evidence ("Rules") - of the evidence given by the Defence witnesses DH, DI, DK, DL, DM, DN, DO and DV ("Defence witnesses"). The Prosecutor intends to put questions to these witnesses "regarding the specific actions and statements attributed to them by the Defence witnesses, to which the witnesses were not given an opportunity to respond during cross-examination in the Prosecutions case-in-chief".1
4. The Defence complains that recalling the said prosecution witnesses is neither possible nor "equal" under Rule 85(A)(iii) without a detailed explanation on which specific events the Prosecutor is calling them and an explanation for the Prosecutors assertion that these witnesses did not have an opportunity to respond during cross-examination in the prosecutions case-in-chief.2 The Defence is of the view that the Defence witnesses did not testify about events which would be relevant for recalling the prosecution witnesses, so "nothing in the testimony of witness FWS-191 can disprove the SDefence witnessesC who already testified."3 It is further said that, since the Defence witnesses testified in chief and were cross-examined, there are no issues that need to be discussed and questions to be put to the prosecution witnesses4 - the Trial Chamber should decide what weight to attach to the evidence led.5 The Defence then states that, should the Prosecutor be allowed to recall the two witnesses, the Defence presently notifies the Trial Chamber of its intention to recall the Defence witnesses and additional witnesses in rejoinder if necessary, pursuant to Rule 85(A)(iv).6 The Defence requests an oral hearing to discuss the matter.7
5. The Prosecutors Reply contains a "sampling of the matters" to which the Defence witnesses testified which the prosecution witnesses were not given an opportunity to address in their testimony during the Prosecutors case-in-chief,8 relating in general to the existence or non existence of a relationship between FWS-87 and the accused Radomir Kovac.9
6. The relevant provisions of the Rules are Rule 89(C), Rule 85 ("Presentation of Evidence") and Rule 90 ("Testimony of Witnesses"). Rule 89(C) provides that "A Chamber may admit any relevant evidence which it deems to have probative value." Rule 85 in relevant part provides:
(A) Each party is entitled to call witnesses and present evidence. Unless otherwise directed by the Trial Chamber in the interests of justice, evidence at the trial shall be presented in the following sequence: (i) evidence for the prosecution; (ii) evidence for the defence; (iii) prosecution evidence in rebuttal; (iv) defence evidence in rejoinder; (v) evidence ordered by the Trial Chamber pursuant to Rule 98; and (vi) any relevant information that may assist the Trial Chamber in determining an appropriate sentence if the accused is found guilty on one or more of the charges in the indictment. (B) Examination-in-chief, cross-examination and re-examination shall be allowed in each case. It shall be for the party calling a witness to examine such witness in chief, but a Judge may at any stage put any question to the witness. [ ].
Rule 90 in relevant part provides as follows:
[ ] (G) The Trial Chamber shall exercise control over the mode and order of interrogating witnesses and presenting evidence so as to (i) make the interrogation and presentation effective for the ascertainment of the truth; and (ii) avoid needless consumption of time. (H) (i) Cross-examination shall be limited to the subject-matter of the evidence-in-chief and matters affecting the credibility of the witness and, where the witness is able to give evidence relevant to the case for the cross-examining party, to the subject-matter of that case. (ii) In the cross-examination of a witness who is able to give evidence relevant to the case for the cross-examining party, counsel shall put to that witness the nature of the case of the party for whom that counsel appears which is in contradiction of the evidence given by the witness. (iii) The Trial Chamber may, in the exercise of its discretion, permit enquiry into additional matters.10
7. The Trial Chamber considers that the Defence Response is misconceived.
8. The Prosecution Reply answers the first objection raised in the Response, that of the Prosecutor having failed to provide a detailed explanation on which specific events the prosecution witnesses are to be recalled. In light of the discussion that took place in private session on 12 September 200011 and the "sampling of matters" in the Reply, it is clear that the rebuttal witnesses would testify on the alleged relationship between witness FWS-87 and the accused Radomir Kovac in relation to the enslavement charge.
9. As to the second objection raised in the Response, that of the Prosecutor having to explain her position that the prosecution witnesses did not have an opportunity to respond during cross-examination in the prosecutions case-in-chief, the discussion during the private session provides the answer. Neither witness FWS-87 nor FWS-191 had been given the opportunity during cross-examination by the Defence, in accordance with the purpose of Rule 90(H)(ii), to respond to the Defence case that, because of the alleged existence of a relationship between FWS-87 and Radomir Kovac, the accused did not enslave FWS-87.
10. In accordance with Rule 85, the Defence may call witnesses in rejoinder.
11. For the foregoing reasons, the Trial Chamber sees no need for an oral hearing, and hereby (a) grants leave to the Prosecutor to file the Reply, and (b) rejects the Defences complaint.
Done in English and French, the English text being authoritative.
Judge Florence Ndepele Mwachande Mumba
Dated this the twenty-eighth day of September 2000,
At The Hague,
[Seal of the Tribunal]