Before: Judge Almiro Rodrigues, Presiding
Judge Fouad Riad
Judge Patricia Wald

Registrar: Mrs. de Sampayo Garrido-Nijgh, Registrar

Decision of: 10 November 2000










The Office of the Prosecutor:
Mr. Kenneth Scott

Counsel for the Accused:
Mr. Kresimir Krsnik, for Mladen NALETILIC
Mr. Branko Seric, for Vinko MARTINOVIC

TRIAL CHAMBER I (hereafter "the 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 (hereafter "The Tribunal"):

BEING SEISED of the "Prosecutor’s Motion to Take Depositions for Use at Trial (Rule 71)" dated 11 October 2000 (hereafter "the Motion"), pursuant to which the Prosecutor is seeking authorisation to take depositions for 23 named witnesses in Sarajevo, pursuant to Rule 71;

NOTING the "Declaration for the Defence for the Accused Vinko Martinović to the Pre-Trial Documents Submitted by the Prosecutor”, dated 23 October 2000, (hereafter “Martinović Reply”) addressing the objections that Martinović has in respect of the Motion;

NOTING ALSO the "Statement of the Defence of Mladen Naletilić to the Prosecutor’s Statement in Respect of Pre-Trial Filings of 11 October 2000”, dated 24 October 2000, (hereafter “Naletilić Reply”) addressing the objections that Naletilić has to the Motion;

NOTING that Rule 71 of the Rules of Procedure and Evidence (hereafter "the Rules") provides, in relevant part:

  1. Where it is in the interests of justice to do so, a Trial Chamber may order, proprio motu or at the request of a party, that a deposition be taken for use at trial, whether or not the person whose deposition is sought is able physically to appear before the Tribunal to give evidence. The Trial Chamber shall appoint a Presiding Officer for that purpose.

  1. If the motion is granted, the party at whose request the deposition is to be taken shall give reasonable notice to the other party, who shall have the right to attend the taking of the deposition and cross-examine the person whose deposition is being taken.
  2. Deposition evidence may be taken either at or away from the seat of the Tribunal, and it may also be given by means of a video-conference;

NOTING that Rule 71 is an exception to the general principle expressed in Rule 90 (A) that a witness should testify directly before the Trial Chamber;

NOTING that Article 21(4) of the Statute of the Tribunal provides, in relevant part, that:

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 equity:

  1. to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing…
  2. to examine, or have examined, the witnesses against him…

NOTING the Prosecutor proposes that the depositions take place in Sarajevo in closed session, on the grounds that Sarajevo is the most economical option, and that, while counsel for the accused would be present, the accused would not;

NOTING that the Prosecutor states that the objective of proposing witnesses for deposition is to expedite the present proceedings, which would also be of benefit for other accused awaiting trial; and that the Prosecutor does not claim any restriction on the ability of the witnesses to travel to The Hague;

NOTING further that the Prosecutor considers the witnesses for whom depositions are proposed to be less "significant and important" than witnesses who will testify directly before the Trial Chamber, and proposes that the depositions should be taken prior to the commencement of the trial;

NOTING that both accused Naletilić and Martinović object to the Motion on the grounds that the rights of the accused to a fair trial can never be usurped by the objective of expediting the proceedings, and that the interests of justice in this case require that all witnesses be heard directly by the fully constituted Trial Chamber; that in addition, the accused Martinović argues that he has a right to be present during the examination of all witnesses called by the Prosecutor, and that the presence of his counsel is insufficient, as the accused Martinović will not know who the majority of witnesses are until he sees them; that the accused Martinović further argues that depositions taken away from the seat of the Tribunal in the preparatory stages of the proceedings are less reliable as the evidence is given in an informal environment, and the witnesses may be subjected to pressure by local authorities; that the accused Martinović also objects to the Prosecutor’s classification of the witnesses as subsidiary, and states that a significant number of them are very important for the defence; and that finally, the accused Martinović points out that, when deposition evidence is used, the Judges are denied an opportunity to assess the demeanour of the witness and to ask the witness questions;

NOTING that Rule 71 contains no requirement that a witness be unable to travel to the Tribunal;

NOTING that deposition evidence taken at a location away from the seat of the Tribunal is specifically envisaged in Rule 71;

CONSIDERING that on 7 December 1999, Rule 71 was amended in order to make deposition evidence more widely available as a tool for expediting proceedings, so long as there is no reason why that would be contrary to justice in the particular case; and to this end, the requirement of "exceptional circumstances" was removed;

NOTING that Rule 71(A) gives a broad discretion to the Chamber to permit evidence by way of deposition "(w)here it is in the interests of justice to do so";

EMPHASISING the great interest the Tribunal has in adopting measures that will expedite the proceedings before it;

FINDING that the witnesses proposed by the Prosecutor are suitable witnesses to give evidence by way of deposition; and that many of the witnesses were prisoners in camps mentioned in the indictment and their testimony covers matters such as general living conditions and the occurrence of forced labour in the camps, knowledge of deaths and injuries caused by performing dangerous labour, witnessing acts such as beatings, hearing gun shots and/or screams, and being the victim of, or witness to, property damage;

NOTING that in the exercise of its discretion pursuant to Rule 71, the Trial Chamber has been guided by the fact that the witnesses proposed for deposition will not present eyewitness evidence directly implicating the accused in the crimes charged, or alternatively, their evidence will be of a repetitive nature in the sense that many witnesses will give evidence of similar facts;

FINDING that the subsidiary nature of the witnesses identified by the Prosecutor for deposition mitigates any disadvantage to the Trial Chamber of being unable to directly observe the demeanour of the witness or to ask questions;

EMPHASISING however that, as with other forms of indirect evidence, deposition evidence may be accorded less weight than evidence given directly in the courtroom;

FINDING that, in specifying that depositions may be taken away from the seat of the Tribunal, Rule 71 contemplates the possibility that the accused may be absent, given that most accused are detained in The Hague;

FINDING however, that it not been established that Sarajevo is the most financially viable location for the depositions to be taken, and that further consideration of this matter is required;

FINDING that, in accordance with Rule 78, the depositions should take place in open session unless the Prosecutor establishes that closed sessions pursuant to Rule 79 are warranted;

FINDING that Rule 71 does not preclude depositions being taken prior to the commencement of the trial;


ORDERS that, pursuant to Rule 71, depositions of the persons identified in Confidential Annex A to the Motion may be taken for use at trial;

ORDERS that the depositions may be taken prior to the commencement of the trial;

APPOINTS Mr. Olivier Fourmy as Presiding Officer;

ORDERS the date and time of the depositions to be decided by the Presiding Officer after consultation with the parties;

ORDERS that the question of location for the deposition procedure, whether the sessions be held in open or closed session, and the presence of the accused, be the subject of further discussions between the parties, the Presiding Officer, and representatives of the Registry; and that in the event that agreement cannot be reached, the matter shall be referred back to the Pre-Trial Judge;

DIRECTS that the Prosecutor provide to the Trial Chamber an estimate of the time required for the examination of the deposed witnesses, and the grounds upon which the Prosecutor argues that the depositions should be taken in closed session;

DIRECTS counsels for the accused to provide the Trial Chamber with an estimate of the time required for cross-examination of the deposed witnesses.

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

Done this 10th day of November 2000,

At The Hague,

The Netherlands.

Almiro Rodrigues
Presiding Judge

[Seal of the Tribunal]

1. Naletilic Reply, at 7-8.
2. Martinovic Reply at 5-8.
3. Ibid, at 6.
4. Ibid at 6.
5. Ibid at 7.
6. The amendment was adopted during the Twenty-first Plenary Session, held from 15-17 November 1999.
7. See Prosecutor v Delalic and Others, Case No. IT-96-21-T, “Decision on the Motion to Allow Witnesses K, L and M to Give Their Testimony by Means of Video-Link Conference”, dated 28 May 1997, at 9; and see also Prosecutor v Tadic, Case No. IT-94-1-T, “Decision on the Defence Motions to Summon and Protect Defence Witnesses, and on the Giving of Evidence by Video-Link”, dated 25 June 1996.
8 . The Trial Chamber notes that depositions were ordered in the absence of the accused in Prosecutor v Kvocka, and Others, Case No. IT-98-30-PT, “Decision to Proceed by Way of Deposition Pursuant to Rule 71”, dated 15 November 1999. However, the Trial Chamber is also mindful of objections raised in the Martinovic Reply about the need for the accused to see the witnesses in order to identify them. If The Hague is subsequently assessed to be the most economical option for the deposition procedure (see infra note 10), arrangements could be made for the accused to be present, which would resolve the issue. If, on the other hand, Sarajevo is determined to be the most economical location, Martinovic should have an opportunity to raise, with greater specificity, his need to be present to identify witnesses.
9. It is not clear that, for 23 witnesses, Sarajevo would be the least expensive location. Many factors must be taken into account such as the cost of transporting necessary security personnel, interpreters, technicians,
prosecution team, defence team, Victims and Witnesses Support personnel, and the Presiding Officer; the estimated time required for the depositions to be taken; whether an video or audio link is required; whether the depositions would take place in the centre of Sarajevo or some other location; the arrangements made for the production of the transcript; and the implications for the number of court sessions that could be conducted per day in The Hague in the absence of the above mentioned personnel.