IN THE TRIAL CHAMBER
Judge Adolphus G. Karibi-Whyte, Presiding
Judge Elizabeth Odio Benito
Judge Saad Saood Jan
Mrs. Dorothee de Sampayo Garrido-Nijgh
22 June 1998
ZDRAVKO MUCIC also known as "PAVO"
ESAD LANDZO also known as "ZENGA"
DECISION ON THE ALTERNATIVE REQUEST FOR RENEWED CONSIDERATION OF DELALICS MOTION FOR AN ADJOURNMENT UNTIL 22 JUNE OR REQUEST FOR ISSUE OF SUBPOENAS TO INDIVIDUALS AND REQUESTS FOR ASSISTANCE TO THE GOVERNMENT OF BOSNIA AND HERZEGOVINA
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 Delalic
Mr. Zeljko Olujic, Mr. Tomislav Kuzmanovic, for Zdravko Mucic
Mr. Salih Karabdic, Mr. Thomas Moran, for Hazim Delic
Ms. Cynthia McMurrey, Ms. Nancy Boler, for Esad Landzo
I. INTRODUCTION AND PROCEDURAL BACKGROUND
1. On 8 June 1998 the defence for the first accused, Zejnil Delalic, ("Defence") presented for determination by 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 ("International Tribunal") an "Alternative Request for Renewed Consideration of Delalics Motion For an Adjournment until 22 June 1992 or Request for Issue of Subpoenas to Individuals and Requests for Assistance to the Government of Bosnia and Herzegovina" ("Motion") (Official Record at Registry Page ("RP") D6557 - D6551). The background to the Motion is the following.
2. On 24 April 1998 the Trial Chamber issued a Scheduling Order (RP D6101 - D6102) in which it ordered that the Trial Chamber should sit in the present matter (i) from 19 May to 12 June 1998, and (ii) from 22 June to 7 August 1998.
3. In a second Scheduling Order of the same day (RP D6097 - D6099) the Trial Chamber further directed the defence for all four accused to file with the Registry by 15 May 1998, for service on the Trial Chamber and the other defendants, a complete list of names of the witnesses which it intends to call, together with a summary of their evidence. The Order further noted the continuing force of the Trial Chambers "Decision on the Prosecutions Motion for an Order Requiring Advance Disclosure of Witnesses by the Defence", filed on 4 February 1998 (RP D5469 - D5487) and its Scheduling Order of 3 April 1998 (RP D6037 - D6039), by virtue of which the defence for all four accused are under an ongoing obligation to file with the Registry for service on the Trial Chamber, the Office of the Prosecutor ("Prosecution") and Counsel for the co-accused a list of names of the witnesses they intend to call at trial at least seven working days prior to the testimony of each witness.
4. On 15 May 1998 the Defence submitted to the Trial Chamber a complete witness list encompassing 44 witnesses (RP D6115 - D6120). A modified list containing 29 names was filed on 25 May 1998 (RP D6201 - D6208). Pursuant to its further obligation to give notice of witnesses no less then seven working days prior to their appearance, the Defence also filed weekly witness lists on 11, 18 and 25 May 1998 (respectively RP D6106, D6153 and D6190). Each such list contained the name of five witnesses which the Defence intended to call during the following week.
5. On Tuesday 26 May 1998, the Defence was unable to call any witnesses during the afternoon session, for which reason the proceedings were obliged to be prematurely adjourned. The Defence declared that it had deemed five witnesses per week to be sufficient, based on the way in which the examination of witnesses so far had progressed, and that it had in fact made preparation for only one more witness to be called for the remainder of the week. The following day, Wednesday 27 May 1998, the Trial Chamber granted the Defence leave to arrange for additional witnesses to be called, notwithstanding that the required advance notice for such witnesses had not been given. A witness list indicating the names of three such witnesses to be called from Thursday 28 May 1998 was filed later the same day (RP D6362). On this occasion the Trial Chamber orally directed the Defence to ensure that, in the future, it had in readiness and available to give evidence ten witnesses per week.
6. As a result of the absence of available Defence witnesses the court sessions in the afternoon of 27 May and the morning of 28 May 1998 could not be fully utilised. The hearing of Defence witnesses resumed at 2:30 p.m. on Thursday 28 May 1998. On Friday 29 May 1998 the Trial Chamber was again obliged to adjourn proceedings prematurely as the Defence did not have any further witnesses available to give testimony on that day.
7. On 2 June 1998 the Defence filed what it described as its "definitive" list of witnesses ("List of Witnesses") (RP D6388 - D6395). The list was divided into two parts. Witnesses 1 - 7 were to be called to testify before the Trial Chamber between 2 and 5 June 1998. Witnesses 8 - 14 would not be available before the week of 22 - 26 June 1998. According to the list no witnesses were intended to be called by the Defence between 8 and 12 June 1998.
8. In an oral ruling of 2 June 1998 the Trial Chamber declared that its scheduled sitting would continue until the available Defence witnesses were exhausted. It stated that Counsel for the first accused should call all of its witnesses contained in the List of Witnesses in the course of the continued sitting of the Trial Chamber, or close its case if it was unable to call any further witnesses after the testimony of the witness listed as number 7 on that list.
9. On 3 June 1998 the Defence gave notice of appeal against the oral decision of the Trial Chamber of 2 June 1998 (Application by the Defendant Delalic for Leave to Appeal the Oral Decision of the Trial Chamber of 2 June 1998 Regarding the Presentation of Evidence by Delalic in His Defence Pursuant to Rule 73) ("Notice of Appeal") (Case No. IT-96-21-AR 73.4, RP A1 - A10).
10. On 4 June 1998 the Trial Chamber again declared its intention to make full use of its scheduled sitting during the week of 8 - 12 June 1998. As a contingency arrangement for the event that the Defence for the first accused, in contravention of the Trial Chambers oral ruling of 2 June, should not be in a position to have its remaining witnesses examined during this period, the Trial Chamber called upon the defence for Zdravko Mucic to make arrangements to have its witnesses available from Monday 8 June 1998. The Trial Chamber noted that should this arrangement prove effective, there was a possibility that the Defence for the first accused would be in position to call its remaining witnesses during the subsequent time period originally scheduled for the hearing of witnesses on behalf of the accused Zdravko Mucic.
11. On the same day, 4 June 1998, the Prosecution filed a motion seeking disclosure of the names of the witnesses intended to be called by the Defence to testify during the week of 8 - 12 June 1998 (Prosecution Request for an Order to Disclose the Names of Witnesses for the Accused Zejnil Delalic, RP D6527 - D6529). In its response on 5 June 1998, the Defence stated that there was no obligation upon it to give such notice until after the determination of its appeal against the Trial Chambers oral ruling of 2 June 1998 (Response by the Defendant Delalic to the Prosecution Request for an Order to Disclose the Names of Witnesses for the Accused Zejnil Delalic, RP D6531 - D 6533).
12. The Defence concluded the hearing of evidence in respect of witnesses 1 - 7 in the List of Witnesses on 8 June 1998. The Defence explained the same day that it was not able to call those witnesses indicated as witnesses 8 - 14 in the List of Witnesses during the week of 8 - 12 June 1998, and sought, through the Motion, inter alia an adjournment to 22 June 1998 to enable it to call further witnesses and eventually to close its case.
13. The Trial Chamber heard oral argument from the Defence on the Motion on 8 June 1998. The same day the Trial Chamber delivered an oral ruling denying the Motion. It reserved its written decision to a later date.
THE TRIAL CHAMBER, HAVING CONSIDERED the written submissions and oral arguments of the Defence,
HEREBY ISSUES ITS WRITTEN DECISION.
A. Applicable Provisions
14. It is appropriate to set out the main provisions of the Statute of the International Tribunal ("Statute") and the Rules of Procedure and Evidence ("Rules") relied upon for the determination of the issues before the Trial Chamber.
Commencement and conduct of trial proceedings
1. The Trial Chambers shall ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with the rules of procedure and evidence, with full respect for the rights of the accused and due regard for the protection of victims and witnesses.
[. . .]
Rights of the accused
[. . .]
4. In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality:
[. . .]
(e) to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
[. . .]
Cooperation and judicial assistance
1. States shall cooperate with the International Tribunal in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law.
[. . .]
At the request of either party or proprio motu, a Judge or a Trial Chamber may issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial.
Presentation of Evidence
(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:
[. . .]
Request for Review
Where a new fact has been discovered which was not known to the moving party at the time of the proceedings before a Trial Chamber or the Appeals Chamber, and could not have been discovered through the exercise of due diligence, the defence or, within one year after the final judgement has been pronounced, the Prosecutor, may make a motion to that Chamber for review of the judgement.
If a majority of Judges of the Chamber that pronounced the judgement agree that the new fact, if proved, could have been a decisive factor in reaching a decision, the Chamber shall review the judgement, and pronounce a further judgement after hearing the parties.
Return of Case to Trial Chamber
If the judgement to be reviewed is under appeal at the time the motion for review is filed, the Appeals Chamber may return the case to the Trial Chamber for disposition of the motion.
15. In the Motion, the Defence is seeking:
(a) renewed consideration of a motion for adjournment until 22 June 1998; or alternatively
(b) issuance of subpoenas ad testificandum to individuals; and
(c) issuance of a request for assistance to the Government of Bosnia and Herzegovina.
16. With respect to (a) above, the Motion states as follows:
The Trial Chamber is aware that the last seven witnesses on the Witness List which Delalic submitted to the Trial Chamber on 2 June 1998 are unable to travel to The Hague to testify before 22 June 1998 because of previous professional and personal obligations. (Motion, page 1)
It is submitted that these witnesses are necessary for Mr. Delalic to present a full and complete defence, and that "they have all indicted that they are willing to travel to The Hague to testify" (ibid.). It is further declared that all attempts of Counsel since the Court adjourned on 5 June 1998 to bring the witnesses to The Hague to testify have been unsuccessful.
17. The Motion refers to the Notice of Appeal against the oral ruling of 2 June 1998 which ordered the first accused to call all the witnesses listed to testify no later than 12 June 1998 or to close the case of the first accused after the testimony of the last available witness. Reference is further made to the suggestion by the Trial Chamber on 4 June 1998 of the possibility of hearing the testimony of the last seven witnesses of the Defence during the week of 22 June 1998. Accordingly, the Motion seeks a reconsideration of the Defences request for an adjournment until 22 June 1998.
18. It is contended that the request for an adjournment is reasonable and necessary, and that refusing it and declaring the case of the first accused closed would amount to a violation of Articles 20 and 21 of the Statute and Rule 85 of the Rules. In this respect it is pointed out that the accused should be allowed to present a full and complete defence in full equality. More specifically, reference is made to Article 21(4)(e) of the Statute and the right of the accused to "obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him".
19. Reference is further made to what is claimed to be a similar situation which arose during the presentation of evidence by the Prosecution. It is thus pointed out that the Prosecution sought and received an adjournment in relation to the hearing of its final witness, Dr. James Gow, who gave evidence on 1 and 2 December 1997 and completed his testimony on 13 and 16 February 1998. It is noted that the Prosecution at the beginning of Dr. Gows testimony on 1 December 1997 indicated to the Trial Chamber the inability of Dr. Gow to continue to give evidence on 3 December 1997 because of a previous professional commitment in England. It is said that the evidence was accordingly interrupted, and that the Trial Chamber adjourned on 3 December, although it had originally been scheduled to sit between 1 - 5 December 1997.
20. In conclusion, it is submitted that the request for adjournment in the case is reasonable and would give full effect to the rights of Mr. Delalic to full equality in presenting a full and complete defence.
21. In the alternative, the Motion requests the Trial Chamber to assist the first accused by issuing subpoenas ad testificandum, and a request to the Government of Bosnia and Herzegovina for assistance in seeking the appearance of witnesses, in order to enable witnesses to be brought to The Hague during the week of 8 - 12 June 1998.
22. With reference to the delay in applying for the issue of subpoenas ad testificandum and a request to the Government of Bosnia and Herzegovina, two reasons are given in the Motion:
(i) The refusal of the application for adjournment made on 2 June 1998, which the accused regarded as reasonable, has been appealed to the Appeals Chamber;
(ii) The witnesses involved are willing, in the absence of subpoenas, to come to give evidence.
It is further stated that motions for the issue of subpoenas and a requests to the Government of Bosnia and Herzegovina seeking assistance, have been prepared and are available to be filed immediately.
23. During oral argument, Mrs. Residovic, Counsel for Zejnil Delalic, adopted the arguments in the Motion. She recounted the relentless efforts made to ensure the presence of some witnesses for the Defence before the Trial Chamber but declared that these had been without success. In support of this effort Counsel tendered a facsimile message from Sarajevo, dated 8 June 1998, disclosing that witness Bajram Demic will not be available before 16 June and that Mr. Dino Kasalo cannot be absent from his work until 12 July.
24. Counsel pointed out that everything had been and was still being done to reduce the number of witnesses for the Defence in compliance with the guidelines of the Trial Chamber. The Trial Chamber observed that only two of the seven witnesses indicated as witnesses 8 - 14 in the List of Witnesses had been established as being unable to be called during the week of 8 - 12 June 1998, and asked how many of the witnesses were likely to be available to appear in that period. Mrs. Residovics reply was that from the information she had received, no witness was available to give testimony before 16 June 1998. Counsel explained that the Defence was in a condition of impotence against the willing witnesses, against whom the accused does not consider it in his interests to issue subpoenas ad testificandum.
25. Relying on the reasons outlined above, Counsel is asking for adjournment to 22 June 1998 for the continuation of the defence of the first accused. In the alternative, the Motion is seeking an order for the issue of subpoenas ad testificandum and for a request to the Government of Bosnia and Herzegovina for assistance in respect of its witnesses.
26. On 8 June 1998, Mr. Niemann for the Prosecution informed the Trial Chamber that he had no comments on the Motion.
27. In the Order of the Trial Chamber of 24 April 1998, the Defence was directed to provide the Trial Chamber and Counsel for the co-accused with a complete lists of witnesses, together with a summary of their evidence. The order further noted the continuing obligation of the Defence to provide the Trial Chamber, the Prosecution and Counsel for the co-accused with seven days notice of the date a witness is intended to give evidence. The Trial Chamber notes that this directive aims at determining the scope of the evidence and to avoid repetition of witnesses and testimony. It also aims at determining the duration of the case so as to make an intelligent estimate of the use of the Trial Chamber.
28. The Trial Chamber further notes in this context that there are four accused in the present case. The management of the trial requires that the second accused should start his defence after the close of the case of the first accused. This arrangement is well known to Counsel for the first accused.
29. It is against this background that the List of Witnesses filed by the Defence on 2 June 1998 must be seen. The List stated in its last three paragraphs as follows:
Witnesses 1 - 7 on this list are available to travel to The Hague to testify between 2 and 12 June 1998.
Witnesses 8 - 14 on this list are only available to travel to The Hague to testify during the week of 22 - 26 June 1998. These witnesses have indicated that they are unable to travel to The Hague before 22 June 1992 [sic] because of prior professional or personal obligations.
Accordingly, during the week of 22 - 26 June 1998, Delalic will conclude the presentation of his evidence pursuant to Rule 85(A)(ii).
30. It is important to observe that the List of Witnesses is not an application and does not contain a prayer for leave to call the witnesses in the manner indicated above. Besides, Counsel who is in charge of the case and leads the witnesses in their testimony, was aware of the fact that avoidance of duplication of witnesses and repetitive testimony has contributed immensely to speedy trial. For instance, during the preceding week the Trial Chamber was able to hear five Defence witnesses and hoped that it was quite possible to conclude the defence of the first accused by hearing the 14 witnesses within the nine working days of 2 - 12 June 1998.
31. It is important also to observe that Counsel, by arranging its witnesses as in paragraph 29 above, unilaterally, and without reference to the Trial Chamber, determined how the Trial Chamber should hear the witnesses and when they should be heard. This is a well known province of the Trial Chamber. Counsels reason for assuming this position is, as was stated in the List of Witnesses, that "the witnesses are unable to travel to The Hague before 22 June 1992 [sic]  because of prior professional or personal obligations".
32. In its oral ruling on 2 June 1998, the Trial Chamber rejected the suggestion made in the List of Witnesses since there was no application before it. Again, the reasons of prior professional or personal obligations given for the change of date, are not sufficiently explanatory or specific as to which of the witnesses that was so affected or whether this applied to all of them.
Decision on the Motion of 8 June 1998
33. The Trial Chamber has in its oral Decision of 8 June 1998, summarily rejected the application for adjournment until 22 June 1998 and also the request to issue subpoenas to (i) individuals under Rule 54, and (ii) to the Government of Bosnia and Herzegovina under Article 29(1) of the Statute. The Trial Chamber observes that, although by virtue of the Notice of Appeal it is functus officio in this matter, it will nevertheless here proceed to give its reasons for rejecting the applications. The Trial Chamber further notes that the more relevant procedure, if the necessary facts could be established, would lie by way of review under Rules 119, 120 and 122 of the Rules.
Request for Re-Consideration of the Oral Decision
of the Trial Chamber of 2 June 1998
34. The Defence is asking the Trial Chamber to reconsider its oral Decision of 2 June 1998, in which Counsel of the first accused was asked to call as many of the witnesses for the first accused as is disclosed in the List of Witnesses, or close the case for the first accused at the end of the testimony of Witness No. 7 on the List of Witnesses.
35. Counsel has already filed a Notice of Appeal against the decision we are now being asked to reconsider. Stricto sensu the Trial Chamber should not exercise jurisdiction in respect of any of its decisions which are before the Appeals Chamber. By virtue of Rule 108 of the Rules, a notice of appeal against an oral decision of the Trial Chamber lies within seven days of the decision. This notice was given within the prescribed period, and is in the opinion of the Trial Chamber valid. The Trial Chamber is accordingly functus officio in respect of that decision pending the determination of the appeal filed.
36. On the other hand, Rules 119, 120 and 122 of the Rules enable parties to a proceedings to request review of a decision. The text of those provisions has been set out above.
37. A reading of Rule 119 suggests from the punctuation that the conditions for the application for and granting of review is applicable both to the defence and to the Prosecution. But the Prosecution may make such an application by motion for review within one year after the final judgement. It seems from the operation of Article 21(4) that the Prosecution cannot enjoy that advantage over the Defence. To call in aid the provisions enabling review of judgement before the Trial Chamber the applicant must show the discovery of new facts, unknown to him at the time of the proceedings, and that these facts could not have been discovered through the exercise of due diligence. The majority of the Judges of the Trial Chamber who pronounced the judgement must agree that the new facts, if proved, could have been a decisive factor in reaching a decision for the application to succeed. If the application is successful, the Trial Chamber shall review the judgement and pronounce further judgement after hearing the parties (see Rule 120).
Where the judgement to be reviewed is under appeal at the time the motion for review is filed, the Appeals Chamber may return the case to the Trial Chamber for disposition of the motion (see Rule 122).
38. The application before us calling for reconsideration of the oral Decision of 2 June 1998 is in essence an application for a review. There is no evidence that the applicant has discovered new facts, which were unknown to the Defence at the time of the proceedings, and that such new facts could not have been discovered through the exercise of due diligence.
39. The Trial Chamber has observed that the List of Witnesses is not an application and contains no prayer calling on the Trial Chamber to grant an adjournment. The circumstances of the witnesses which rendered them unable to appear as witnesses before 22 June 1998 are not new facts and remain unchanged until today. The reason for their unavailability is the inability of the witnesses to reschedule their commitments and the exercise by Counsel of discretion to call witnesses in accordance with their professional and personal commitments. The Order of the Trial Chamber is for the witnesses to testify not later than 12 June 1998.
40. The above facts were known to Counsel to the first accused when the List of Witnesses was filed. The Trial Chamber is not oblivious of the fact that, with due diligence, there was the possibility of witnesses testifying before 22 June. It was possible, through the co-operation of Counsel, to have utilised the period now wasted during the week 8 - 12 June for another accused. The period had been assigned to the defence for the first accused. Counsel should have exercised professional judgement in the utilisation of the period.
Violation of Articles 20(1) and 21(4) of the Statute of the
41. It is the contention of the Defence that the effect of the oral Decision of 2 June 1998 which directed the first accused to call all the witnesses named in the List of Witnesses no later than 12 June 1998, and if unable to do so to close its case, amounts to a violation of Articles 20(1) and 21(4)(e) of the Statute and Rule 85 of the Rules.
42. The Trial Chamber rejects this submission. The Trial Chamber is not oblivious of the provisions of Article 20(1) which enjoins it to ensure a fair and expeditious trial and to conduct the proceedings in accordance with the Rules with full respect for the rights of the accused. There is no doubt that the observance of the principles in Article 20(1) encompasses protection of the rights of the accused in Article 21, including the minimum guarantees entrenched in Article 21(4).
43. The minimum guarantee in issue in this case is the right "to examine or have examined the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him" (Article 21(4)(e)).
44. The Trial Chamber is aware of the right of the first accused to call his witnesses to testify on his behalf under Rule 85(A). The first accused has been enjoying all the rights vested in him by the Statute and the Rules, but the exercise of these rights in each case is not absolute. It is subject to the control of the Trial Chamber to ensure a fair and expeditious trial in the interests of justice. As the right to call witnesses and the nature of the testimony the witnesses may give is not absolute and can be controlled, so the time within which witnesses for the accused may give evidence is not at large. It is subject to the control of the Trial Chamber.
45. The Trial Chamber is of the opinion that where an accused person in a multiple accused trial is either unable or unwilling to call his witnesses to testify on his behalf on the particular dates directed by the Trial Chamber, and unreasonably and unilaterally chooses his own dates in such a manner as to prejudicially affect the course of the proceedings and cause delay in respect of the defence of other accused persons, the Trial Chamber is, in the interests of expeditious and fair trial, empowered to order the accused to close his case. Otherwise, an accused person in a multiple accused trial, or indeed even in a trial of a single accused, may by devious reasons relying on Article 21(4)(e) prolong the trial unnecessarily.
46. All the accused persons involved in a multiple accused trial are entitled to the same protection of the provisions of Articles 20(1) and 21(4)(e) of the Statute and Rule 85 of the Rules. The Trial Chamber, vested with the duty in accordance with Article 20(1) to ensure expeditious and fair trial, should not, in the face of such equal competing rights, allow the exercise of the right of one of the accused persons to operate to the prejudice of the others.
47. The Trial Chamber can ill afford to wait for the convenience of one of many accused persons who is not ready to prosecute his case, to subject the liberty of co-accused to the vagaries of the tardiness in the management of the defence of another accused.
48. We are of the opinion that the circumstances of the case justify calling on the first accused to close his defence. The provisions of Articles 20(1) and 21(4)(e) of the Statute have not been violated.
Refusal of the Request for Subpoenas and Refusal of Request
to the Government of Bosnia and Herzegovina for assistance
49. In the Motion the Defence is requesting the Trial Chamber to issue subpoenas under Rule 54 against some unnamed witnesses to appear before the Trial Chamber in the week of 8 - 12 June 1998. There is no list of the names of the witnesses, nor are any reasons given why the subpoenas should be issued. Counsel has informed the Trial Chamber that all the witnesses are willing to travel to The Hague to testify before the International Tribunal without the necessity of compelling subpoenas. Counsel has further informed the Trial Chamber of the social disapproval, among their witnesses, accompanying the giving of evidence by means of subpoenas. It cannot be seriously disputed that these two reasons are contradictory. It is interesting to observe that Counsel is seeking subpoenas on 8 June 1998 in respect of witnesses in Bosnia and Herzegovina to appear before the Trial Chamber in The Hague during the week of 8 - 12 June 1998.
50. There are supervening logistical obstacles which will render such an effort an impossible task to accomplish. The Trial Chamber does not, and should not, do anything in vain. Counsel who is in charge of the case is conversant with the circumstances of the witnesses. This application is made too late to be meaningful. The application ought to have been made when Counsel became aware of the obstacles in the way of the witnesses required to testify within the relevant time-frame. It seems to the Trial Chamber that the effort of compelling the witnesses by means of subpoena is not one intended to succeed. The effort of the first accused to bring the witnesses to testify within the period of 2 - 12 June 1998 could have been made when Counsel was ordered by the Trial Chamber to bring all the Defence witnesses within that period. Rather, Counsel erroneously regarded the reasons of the professional and personal obligations relied upon as reasonable explanations to choose her own date of adjournment. The application for the issue of subpoenas to bring the witnesses is a contradiction of the claim of Counsel that witnesses are willing to testify before the Trial Chamber without such subpoenas, and the claim that the issuance of subpoenas would be counter-productive.
51. There is also before the Trial Chamber an application for the issuance of a request under Article 29(1) of the Statute to the Government of Bosnia and Herzegovina for assistance, so that witnesses may be brought to testify during the week of 8 - 12 June 1998. Like the request for subpoenas to individuals, the Motion has not indicated the witnesses in respect of which the Government of Bosnia and Herzegovina is expected to give assistance. The Trial Chamber is of the opinion that it may be difficult in practice to accomplish the desired objective.
52. The Government of Bosnia and Herzegovina has officially indicated its willingness and readiness to co-operate with the International Tribunal in the service of process and has in some cases practically demonstrated its willingness to do so. The Motion has not shown any previous efforts made by Counsel to seek assistance from the Government of Bosnia and Herzegovina that has been refused, or that there has been inordinate delay in answering a request already made. The Trial Chamber does not consider it ripe in this circumstance to issue an order to a sovereign Government which is known to be willing to co-operate without such an order.
53. Counsel has based the right to an adjournment on the rights vested in the accused by Article 21(4)(e) of the Statute. The cumulative reading of Articles 20(1) and 21 of the Statute and Rule 85 of the Rules is relied upon. These provisions relate to fair and expeditious trial and the right of the accused to call witnesses. The Defence relies on the fact that, in what it considers to be a similar situation which confronted the Prosecution, an adjournment was granted when requested by the Prosecution. Accordingly, it is argued that on the basis of the equality of treatment, the first accused should be granted the adjournment sought.
For the elucidation of the comparison drawn it is necessary to state the circumstances under which the adjournment referred to was granted to the Prosecution.
54. The situation referred to is that concerning Dr. James Gow, an expert witness and the Prosecutions last witness. Dr. Gow gave evidence on 1 and 2 December 1997 and completed his testimony on 13 and 16 February 1998. On 1 December, the Prosecutor informed the Trial Chamber that Dr. Gow had a previous professional commitment in London on 3 December 1997 and was unlikely to continue his testimony after 2 December 1997. This was even though the Trial Chamber was scheduled to sit on 3 - 5 December 1997. Dr. Gow should have continued his testimony on 12 January 1998 but was unable to do so on account of a motor accident. He concluded his testimony on 13 and 16 February 1998.
55. In the instant case Counsel for the first accused, who already knew about the circumstances of seven of his witnesses, did not disclose such circumstances to the Trial Chamber. Counsel unilaterally determined the date on which the accused would present his witnesses without reference to the Trial Chamber and wants it to remain so. In other words, Counsel, conversant with the schedule of the Court and the fact that the first accused was expected to call all his witnesses by 12 June 1998, decided to leave these witnesses for 22 June 1998 because of their professional commitments and personal obligations.
56. The two situations are circumstances of adjournment. In the case of Dr. Gow, the discretion was exercised by the Trial Chamber. In the instant case it is Counsel for the accused who is dictating the adjourned date in defiance of the Order of the Trial Chamber. The only parallel in the two cases is that all involved are witnesses for the Prosecution and Defence. The seven witnesses who are to be called, and which the Defence has been unable to bring before the Trial Chamber, are Defence witnesses. Otherwise there is no parallel. The differences are clear. Dr. Gow was available to give evidence and was before the Trial Chamber when the application was made to excuse him from further appearance. The application was granted. The adjournment for the absence of the seven Defence witnesses was made unilaterally by Counsel. There was no application to that effect by Counsel until the Motion of 8 June 1998. None of the Defence witnesses is before the Trial Chamber. The adjournment is sought post facto.
57. An adjournment of a hearing is granted by the Trial Chamber after considering the circumstances of the case as a whole. In determining whether an adjournment should be granted on the application of a party to the case, the Trial Chamber should consider the stage of the proceedings, the nature of the evidence, the time the application is made, the situation of the witnesses on behalf of which adjournment is sought, the reasons why the witness is unable to appear before the Trial Chamber on the date fixed and finally whether, in the circumstances, it is reasonable to grant the application. Where an applicant for an adjournment is in disobedience of an Order of the Trial Chamber, he is not entitled to the exercise of the discretion of the Court. Resort to the exercise of a discretion which is an equitable remedy, can only be had in respect of an applicant who has been diligent.
58. The Trial Chamber has pointed out that Counsel is conversant with the case of the first accused, knows their circumstances and ought to have so managed the situation of the witnesses as to avoid conflict with the professional obligations and personal commitments of the seven witnesses. More than twenty witnesses have already testified on behalf of the first accused. It is not improbable that the seven witnesses now outstanding could have given evidence in place of some of these witnesses.
59. In the exercise of the powers under Article 20(1) to ensure that the trial is fair and expeditious, the Trial Chamber must take into account the interests of all the accused. In a multiple accused prosecution, where the interests of more than one accused are involved, the Trial Chamber has a duty to protect all the other accused from the possible consequences of the acts of any one of them.
60. Accordingly, where as in the instant case, one of the accused persons conducts his defence in such a manner as to cause unreasonable delay to the prejudice of the other accused persons, the Trial Chamber has a duty to the other accused persons to call upon such accused person to close his case. In the instant case the first accused opened his case on 30 March 1998. He is still not sure when the last witness will be called. Some of his witnesses are likely to be available on 12 July 1998. The Trial Chamber was entitled, in the interests of expeditious and fair trial, and in the interests of justice to all accused persons, to make the Order of 2 June 1998.
61. For the reasons given above the Trial Chamber finds no basis, either for reconsidering the oral Decision of 2 June 1998, or for granting the issue of subpoena under Rule 54, or issuing a request to the Government of Bosnia and Herzegovina for assistance under Article 29(1) of the Statute.
For the foregoing reasons, THE TRIAL CHAMBER,
PURSUANT TO RULE 54,
HEREBY DENIES the Motion.
Done in both English and French, the English version being authoritative.
Adolphus G. Karibi-Whyte
Dated this twenty-second day of June 1998
At The Hague,
[Seal of the Tribunal]