IN THE TRIAL CHAMBER

Before: Judge Antonio Cassese, Presiding

Judge Richard May

Judge Florence Ndepele Mwachande Mumba

Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh

Decision of: 11 January 1999

 

PROSECUTOR

v.

Zoran KUPRESKIC, Mirjan KUPRESKIC, Vlatko KUPRESKIC,
Drago JOSIPOVIC, Dragan PAPIC, Vladimir SANTIC, also known as "VLADO"

___________________________________________________________

DECISION

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The Office of the Prosecutor:

Mr. Franck Terrier
Mr. Albert Moskowitz

Counsel for the Accused:

Mr. Ranko Radovic, for Zoran Kupreskic
Ms. Jadranka Glumac, for Mirjan Kupreskic
Mr. Borislav Krajina, for Vlatko Kupreskic
Mr. Luko Susak, for Drago Josipovic
Mr. Petar Puliselic, for Dragan Papic
Mr. Petar Pavkovic, for Vladimir Santic

 

TRIAL CHAMBER II 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 ("International Tribunal");

NOTING the Trial Chamber’s Oral Decision of 11 January 1999, in which it ruled on the following matters to the effect as set out below;

CONSIDERING the submission made by the Prosecution at the hearing of 11 January 1999 that the witness statements received from the Defence, pursuant to Rule 73 ter of the Rules of Procedure and Evidence ("the Rules") and the Trial Chamber’s orders made pursuant to the Pre-Defence Conference on 14 October 1998, were excessively summary in nature and failed to convey the substance of the witness’s evidence to be given, thus infringing the principle of equality of arms;

CONSIDERING the Prosecution’s Request, in light of this deficiency, that it be given the opportunity to interview at least some of the Defence witnesses before they testify, in order to ascertain what the witnesses’ evidence would be, in order to enable them adequately to prepare for cross-examination;

CONSDERING that this Request has been opposed by Mr. Pavkovic on behalf of all Defence counsel;

CONSIDERING that the extremely succinct and summary nature of many Defence witness statements does violate the principle of equality of arms, since the Prosecution communicated much more detailed prosecution witness statements to the Defence and to the Trial Chamber before the presentation of its case, thereby enabling the Defence to prepare for cross-examination of prosecution witnesses;

NOTING that in the hearing of 11 January 1999, counsel for Zoran Kupreskic and Mirjan Kupreskic indicated that these two accused will testify as witnesses in their own defence, but that no indications have been received from the other counsel as to whether their clients will testify, but that such indications shall be communicated pursuant to Rule 73 ter and the Defence’s obligation to communicate to the Trial Chamber and the Prosecution its list of witnesses before the commencement of the Defence case;

CONSIDERING that counsel for Vlado Santic suggested in the hearing of 11 January 1999 that Vlado Santic’s defence would consist of the defence of alibi, but that he has failed to provide the required notice under Rule 67(A)(ii)(a) of the Rules; and accordingly that while Vlado Santic himself may testify to the effect that he has an alibi, pursuant to Rule 67(B) of the Rules, if counsel does not file an appropriate alibi notice under Rule 67(A)(ii)(a) of the Rules, the evidence of other witnesses as to alibi is liable to be excluded by the Trial Chamber;

FOR THE ABOVE REASONS

ORDERS:

(i) that the Prosecution shall provide, by 12 January 1999, a list of those Defence witnesses in respect of which it feels it has received inadequately detailed statements; the Defence then shall, within two weeks from the date of receipt of this list, provide the Trial Chamber and Prosecution with more detailed statements from those witnesses, failing which the Prosecution shall be given the opportunity to interview the witnesses from whom more detailed statements have not been received;

(ii) that the Defence shall decide, and announce, as soon as possible, and not later than 19 January 1999, whether the accused, aside from Zoran Kupreskic and Mirjan Kupreskic, shall testify in their own defence;

(iii) that by the end of each week, the Defence shall provide to the Prosecution and Trial Chamber the list of witnesses to be called in the following week, as well as a list of reserve witnesses. Where new witnesses are to be called, ten days shall elapse between notification that the witness will testify and the witness’s appearance in court to testify, in order to give the Prosecution time to prepare for the new witness;

(iv) that the Defence shall decide, and announce, as soon as possible which witnesses, which it has listed, it will not call to testify;

(v) that while Vlado Santic himself may testify to the effect that he has an alibi, pursuant to Rule 67(B) of the Rules, if counsel does not file an appropriate alibi notice under Rule 67(A)(ii)(a) of the Rules, the evidence of other witnesses as to alibi is liable to be excluded by the Trial Chamber;

(vi) that an exception to the requirements set out above shall be made for the Defence witness Vlado Divkovic, who shall be allowed to testify this week without further formality;

 

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

_________________

Antonio Cassese

Presiding Judge

Dated this eleventh day of January 1999

At The Hague

The Netherlands

[Seal of the Tribunal]