IN THE TRIAL CHAMBER
Before: Judge Adolphus G. Karibi-Whyte, Presiding
Judge Elizabeth Odio Benito
Judge Saad Saood Jan
Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh
Decision of: 25 September 1997
ZDRAVKO MUCIC also known as "PAVO"
ESAD LANDZO also known as "ZENGA"
DISPOSITION OF ZEJNIL DELALICS REQUEST FOR CLARIFICATION OF THE TRIAL CHAMBERS ORDER OF 1 AUGUST 1997
The Office of the Prosecutor:
Mr. Grant Niemann
Ms. Teresa McHenry
Mr. Giuliano Turone
Counsel for the Accused:
Ms. Edina Residovic, Mr. Ekrem Galijatovic, Mr. Eugene OSullivan, for Zejnil
Mr. Zeljko Olujic, Mr. Michael Greaves for Zdravko Mucic
Mr. Salih Karabdic, Mr. Thomas Moran, for Hazim Delic
Mr. John Ackerman, Ms. Cynthia McMurrey, for Esad Landzo
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 issued an Order on 1 August 1997 granting a request by the Office of the Prosecutor ("Prosecution") to call seven additional witnesses identified by the numbers 8 through to 14 (Official Record at Registry Page ("RP") D4121 - D4123).
2. On 29 August 1997, the defence for the accused, Zejnil Delalic ("Defence") filed a "Request for Clarification of the Order of the Trial Chamber of 1 August 1997 Regarding the Motion by the Prosecution for Leave to Call Additional Witnesses" ("Motion"), (RP D5046 - D5048). The Motion requests clarification of paragraph 1 of the Order which is reproduced below.
THIS TRIAL CHAMBER
. . .
1. GRANTS the Prosecution leave to call as many of the witnesses identified by the numbers 8 through to 14 as may be necessary to verify the procedure and the chain of custody for the seized material that the Prosecution seeks to introduce as evidence.
3. Specifically, the Defence seeks clarification on two matters. The Defence seeks to know first, whether paragraph 1 of the Order permits the Prosecution to continue to call witnesses "over and above the witnesses identified as 8 through to 14 in an attempt to "verify" procedures and chain of custody" and, secondly, whether once the Prosecution calls witnesses 8 through to 14 the procedure and custody issues in question are verified.
4. Addressing the Trial Chamber on the Motion on 1 September 1997, Defence Counsel, Mr. Eugene OSullivan withdrew the first part of the request for clarification because it had been resolved with the Prosecution. However, orally amplifying the second aspect, Mr. OSullivan expressed the hope of the Defence that the use of the word "verification" did not imply any presumption on the issue of the procedure and chain of custody which was still outstanding and to be proved by the Prosecution beyond a reasonable doubt.
5. As Judge Karibi-Whyte stated in response on behalf of the Trial Chamber, verification does not necessarily mean a concluded admission of whatever has been tendered. The Prosecution has to prove every element of its case. The import of paragraph 1 of the Order is simply that the Prosecution is permitted to call as many of witnesses 8 through to 14 as it believes will sway the Trial Chamber to believe its own version of the procedure and chain of custody issues in question. Whether, in fact, these witnesses will be able to do so is a matter for the Trial Chamber to determine. The final word as to verification rests with the Trial Chamber and any fears of the Defence that paragraph 1 of the Order may be read to mean that the Trial Chamber will abdicate its duty of adjudicating this aspect of the proceedings to the Prosecution, a party thereto, are absolutely unfounded.
Done in both English and French, the English text being authoritative.
Adolphus Godwin Karibi-Whyte
Dated this twenty-fifth day of September 1997
At The Hague,
[Seal of the Tribunal]