Case No.: IT-95-13/1-T

IN TRIAL CHAMBER II

Before:
Judge Kevin Parker, Presiding
Judge Christine Van Den Wyngaert
Judge Krister Thelin

Registrar:
Mr. Hans Holthuis

Decision of:
28 April 2006

PROSECUTOR

v.

Mile MRKSIC
Miroslav RADIC
Veselin SLJIVANCANIN

__________________________________________________

DECISION ON PROSECUTION MOTION TO AMEND ITS RULE 65 TER WITNESS LIST

__________________________________________________

The Office of the Prosecutor:

Mr Marks Moore
Ms Marie Tuma
Mr William Smith
Mr Alexis Demirdjian
Ms Meritxell Regue

Counsel for the Accused:

Mr Miroslav Vasic and Mr Vladimir Domazet for Mile Mrksic
Mr Borivoje Borovic and Ms Mira Tapuskovic for Miroslav Radic
Mr Novak Lukic and Mr Momcilo Bulatovic for Veselin Sljivancanin

  1. 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 ("Chamber") is seized of a motion from the Office of the Prosecutor ("Prosecution" or "OTP") dated 4 April 2006, seeking to add two witnesses and remove two others from its witness list ("Motion").1 A summary of the anticipated evidence of the proposed two witnesses is attached in Annex to the Motion, and further statements and related material are in the process of being translated into BCS for the purposes of disclosure to the Defence.2 On 11 April 2006, the Defence jointly objected to the Motion ("Response").3 The next day, the Prosecution filed a corrigendum4 and on 18 April 2006, it requested leave to file a reply to the Response (respectively "Corrigendum" and "Reply").5 In light of the arguments raised in the Response, the Chamber considers it appropriate to grant such leave and accepts the Reply.
  2. Under Rule 73 bis (E) of the Rules of Procedure and Evidence ("Rules"), the Chamber may grant any such motion "if satisfied that this is in the interests of justice." In its assessment, the Chamber will consider the relevance and probative value of the proposed evidence and whether the interests of the Defence and the fairness of the proceedings are adequately protected.
  3. Ante Aric

  4. Based on the limited material provided by the Prosecution in support of its Motion, it is anticipated that the proposed evidence of Ante Aric will relate to the growing tensions in Vukovar, his alleged mistreatment by the Accused Sljivancanin himself at the Vukovar hospital and his subsequent mistreatment at Ovcara, Negoslavci and other detention centers. In its general effect, this evidence is not unique. It is the Prosecutionís submission that it differs in that the proposed witness is said to have been personally mistreated by the Accused Sljivancanin at the hospital.6 The Accused Sljivancanin, however, has not been charged with having physically committed any crimes, including at the Vukovar hospital.7 Similarly, there is no express allegation of mistreatment at the Vukovar hospital or Negoslavci in the Indictment. In its other respects, the proposed evidence is repetitive of much other evidence which has been led in this trial. The evidence of this witness is, therefore, only indirectly relevant to the issues material to the case in so far as it deals with the conduct of the Accused Sljivancanin at the hospital, and, otherwise, it has only a limited probative value. It is the view of the Chamber, further, that the nature of the proposed evidence is such that despite its limited probative value, it could be seen to be prejudicial to all Accused, in particular the Accused Sljivancanin.
  5. The Defence has raised some further concerns in relation to the time of the Prosecutionís application. In the Defenceís submission, the Prosecution has been aware of the proposed evidence of Ante Aric well before it filed its Motion and well before the incident allegedly involving the Accused Sljivancanin was raised during the cross-examination of another Prosecution witness, Dr Njavro. Indeed, the Defence submits that Dr Njavro related these events in a statement he gave to the OTP investigators in 1995. The Defence points out that Ante Aric himself gave a statement dealing with these matters to the OTP in 2000.8 In its Reply, the Prosecution has not disputed these propositions, although it is apparent from its submissions that the statement of Ante Aric only came to the attention of those conducting this prosecution in December 2005.9 In the view of the Chamber, the Prosecution ought to have included the proposed witness on its list at the earliest reasonable opportunity. In particular, when, in December 2005, already two months into the presentation of its case, prosecuting counsel became aware of the statement given by the proposed witness, no indication was then given of any intention to call him to testify. The trial progressed for four additional months before the Prosecution submitted this application to the Chamber.
  6. In these circumstances, the Chamber is not persuaded that the addition of Ante Aric to the Prosecutionís witness list would on balance be in the interest of justice and would serve the orderly conduct of the trial.
  7. Florence Hartmann

  8. Upon review of the limited material provided by the Prosecution in support of its Motion, it is the Chamberís understanding that the evidence of Florence Hartmann is anticipated to relate to the time of and circumstances around the discovery of the mass-grave at Ovcara, as well as to the knowledge that the Accused Sljivancanin had of the events at Ovcara. The Chamber is not persuaded by the Defenceís submission that the discovery of the grave is a matter which falls outside the scope of the Indictment in this case.10 Indeed, the discovery of a mass-grave near Ovcara is certainly of relevance to the Prosecutionís case that a large number of individuals were murdered and buried near Ovcara, and more particularly, to support other evidence relating to the identification of victims listed in the Indictment. Accordingly, the Chamber is satisfied that the proposed evidence is relevant and of probative value.
  9. The Defence jointly stressed that the Prosecution ought to have been aware of the prior activities of Florence Hartmann as a journalist, given that she has been acting as the spokesperson for the OTP for several years now and published a book as early as 1999 referring to the mass grave at Ovcara.11 The Chamber is persuaded, however, by the Prosecutionís submission that there was an expectation on its part that the matter of the time of discovery of the grave at Ovcara would be resolved by agreement between the parties. By March 2006, however, it had become apparent that this was not likely to be the case.12 Further, the Chamber is of the opinion that no prejudice will arise as a result of the late addition of this witness to the Prosecutionís witness list. Her anticipated evidence does not present factual issues which cannot be investigated at this stage by the Defence and for the most part, these issues ought to have been covered by existing investigation. The granting of this aspect of the Motion would require appropriate time to be granted to the Defence and a period of 15 days appears reasonable.
  10. Finally, the Chamber is satisfied that allowing the evidence of Florence Hartmann will not unduly delay the proceedings. The Chamber takes this view even if no other adjustement were made to the Prosecution case. However, despite some initial confusion,13 the Prosecution now proposes to withdraw two witnesses from its list, namely witnesses P003 and P023. It is the Chamberís understanding that the Prosecution had already indicated its intention not to call witness P003 in January 2006.14 Despite this, the Prosecutionís decision not to call these two witnesses currently included on the witness list will more than compensate for the additional time needed to hear the evidence of Florence Hartmann.
  11. Based on the foregoing, the Chamber ALLOWS the Prosecution to amend its witness list so as to include Florence Hartmann and ORDERS that she shall be called not earlier than 15 days following disclosure of her related statements and material to the Defence in BCS. The Motion is otherwise denied.

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

Dated this twenty-eighth day of April 2006
At The Hague
The Netherlands

______________________
Judge Kevin Parker
Presiding

[Seal of the Tribunal]


1. Prosecution Motion to Amend Its Rule 65ter Witness List, 4 April 2006.
2. Annex A to the Motion; T 7239-7244.
3. Joint Defence Response to the Prosecution Motion to Amend its Rule 65ter Witness List, 11 April 2006.
4. Corrigendum to Prosecution Motion to Amend Its Rule 65ter Witness List, 12 April 2006.
5. Prosecution Reply to Joint Defence Response to Prosecution Motion to Amend its Rule 65ter Witness List, 18 April 2006.
6. Reply, para 7.
7. Paragraph 4 of the Indictment, in its relevant part, reads as follows: "By using the word "committed" in this indictment, the Prosecutor does not intend to suggest that any of the accused physically committed any or all of the crimes charged personally. "Committed" in this indictment is limited to each of the accusedís participation in a joint criminal enterprise." See also, paragraph 11 of the Indictment, detailing the Accused Sljivancaninís alleged participation in the joint criminal enterprise.
8. Response, paras 16-18.
9. Reply, para 6.
10. T 5961; 6309.
11. Response, paras 19-20.
12. T 5961-5965; 6309-6310.
13. The Prosecution initially proposed to withdraw witness P003 and Mira Koprcina from its list. The Defence noted however, that the Prosecution had already indicated its intention not to call Mira Koprcina much earlier in the trial, Response, paras 9-13; T 2708. The Prosecution accepted what it said was a simple error and proposed not to call witness P023 instead, Corrigendum, paras 3-4.
14. Confidential Memorandum dated 31 January 2006.