Order on the Motion for Leave to Call Witness V as a Witness, the Motion for Protective Measures for Witness V, the Motion for Leave to Re-call Witness J and the Motion to Allow Witness J to Testify from Remote Witness Room

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

Order of: 26 November 1997

PROSECUTOR

v.

ZEJNIL DELALIC
ZDRAVKO MUCIC also known as "PAVO"
HAZIM DELIC
ESAD LANDZO also known as "ZENGA"

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ORDER ON THE MOTION FOR LEAVE TO CALL WITNESS V AS A WITNESS, THE MOTION FOR PROTECTIVE MEASURES FOR WITNESS V, THE MOTION FOR LEAVE TO RE-CALL WITNESS J AND THE MOTION TO ALLOW WITNESS J TO TESTIFY FROM REMOTE WITNESS ROOM

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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 O’Sullivan, for Zejnil Delalic

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

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");

BEING SEISED of a motion seeking leave to call witness V as a witness, (Official Record at Registry Page ("RP") D5308 - D5310); a motion seeking measures for protective measures for witness V, (RP D5304 - D5307); a motion seeking to allow Witness J to testify from a remote witness room, (RP D4137 - D4139); all filed on 31 October 1997 by the Office of the Prosecutor ("Prosecution"); and a motion seeking to recall Witness J, brought by the Prosecution at a hearing before the Trial Chamber on 3 November 1997 by the Prosecution ("Motions");

CONSIDERING the oral arguments of the Prosecution and the Defence for each of the four accused persons ("Defence") while speaking to the Motions at a hearing held on 3 November 1997;

CONSIDERING that at that hearing, the Prosecution orally submitted that the sole reason for bringing the Motions was to lead evidence of statements allegedly made by the accused Mr. Lanzdo and Mr. Mucic on 14 October 1997, in the courtroom, as evidence of consciousness of guilt of these accused;

NOTING that the Trial Chamber issued a scheduling order on 25 January 1997 (RP D2674 - D2675), that provided that the Prosecution was given until 7 March 1997 to file a witness list;

CONSIDERING Rule 54 of the Rules of Procedure and Evidence ("Rules"), which empowers the Trial Chamber, at the request of either party, to issue such orders as may be necessary for the preparation or conduct of the trial;

CONSIDERING FURTHER Article 20 of the Statute of the International Tribunal ("Statute") which mandates the Trial Chamber to ensure that the trial is fair and expeditious and that the proceedings are conducted in accordance with the Rules;

CONSIDERING that Sub-rule 89(B) of the Rules provides that "... a Chamber shall apply rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law...";

CONSIDERING that Sub-rule 89(C) of the Rules, provides that a "Chamber may admit any relevant evidence which it deems to have probative value.";

CONSIDERING FURTHER that the principle of consciousness of guilt is not a legal principle upon which the Motions may be based in the circumstances;

FOR THE FORGOING REASONS, PURSUANT TO RULES 54 and 89, and ARTICLE 20;

HEREBY DENIES THE MOTIONS.

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

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Adolphus Godwin Karibi-Whyte

Presiding Judge

Dated this twenty-sixth day of November 1997

At The Hague,

The Netherlands.

[Seal of the Tribunal]