Judge Almiro Rodrigues, Presiding
Judge Fouad Riad
Judge Patricia Wald

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 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 "Tribunal"):

BEING SEISED of the Prosecutor’s "Amended Motion for Approval of Rule 94 ter Procedure (Formal Statements)" filed on 11 October 2000 (hereafter "the Motion");

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

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

NOTING that Rule 94 ter of the Rules of Procedure and Evidence (hereafter "the Rules"), provides, in relevant part, that:

"to prove a fact in dispute, a party may propose to call a witness and to submit in corroboration of his or her testimony on that fact affidavits or formal statements signed by other witnesses in accordance with the law and procedure of the State in which such affidavits or statements are signed.";

NOTING that although the laws of the Federation of Bosnia and Herzegovina (hereafter "BiH") do not specifically provide a procedure for the creation of an affidavit or formal statement, Article 230 of the Law on Criminal Proceedings of BiH does allow witnesses to take an oath before an investigating judge during the pre-trial stage of a case in certain circumstances;1

NOTING that in its first motion seeking approval for Rule 94 ter statements, (hereafter "First Motion"), the Prosecutor emphasised that the situation in the area of Mostar (where the witnesses live) is extremely uncertain; and proposed that, in order to safeguard the confidentiality of witness information, an investigator from the OTP be assigned to take Rule 94 ter statements, in lieu of an investigating judge from BiH;2

NOTING that by a decision dated 22 June 2000, the Trial Chamber rejected the Prosecutor’s First Motion (hereafter "Decision dated 22 June 2000"), on the grounds that the alternative Rule 94 ter procedure proposed by the Prosecutor was unacceptable;3 and found:

"that the parties have not exhausted all potential means of obtaining statements in accordance with the terms of Rule 94 ter, such as working with the BiH authorities to come up with an alternate procedure to limit the number of persons who might have access to confidential information, or having witnesses give their statements not in Mostar but in some other neighboring region of BiH where they might feel more secure";4

RECOGNISING that the Prosecutor, as suggested by the Trial Chamber, has continued consultations with the government authorities of BiH to devise a procedure that more closely complies with the requirements of Rule 94 ter, and also provides adequate protection for witnesses;

NOTING that, pursuant to the proposal in the Motion, the Rule 94 ter procedure will take place before a BiH investigating judge, but that witnesses will be transported to Sarajevo by the ICTY Victims and Witnesses Section instead of being called by through domestic channels; and that the procedure may take place in the ICTY Sarajevo field office if the identity of the witness and the confidentiality of their statements cannot be guaranteed in Sarajevo court facilities;

NOTING that the accused Naletilic objects to the motion on the grounds that the proposed procedure is not strictly in accordance with Rule 94 ter; that the Trial chamber does not have the competence to amend the contents of the Rule; and furthermore, objects in principle to the use of Rule 94 ter statements under any circumstances;5

NOTING that the accused Martinovic does not object to the specific procedure proposed by the Prosecutor, but objects to the use of Rule 94 ter statements under any circumstances, on the grounds that all witnesses should be called to testify in the presence of the accused, and before a fully constituted Trial Chamber;6

CONSIDERING, however, that the procedure proposed by the Prosecutor does provide for the statements to be taken before a BiH investigating judge, and that it thereby meets the fundamental concerns expressed by the Trial Chamber in its Decision Dated 22 June 2000;

RECOGNISING further, that the Rules are to be interpreted "in the light of (the) object and purpose" of the Statute and Rules;7

NOTING that the purpose of Rule 94 ter is "to contribute to the expedition of cases before the International Tribunal, by providing a mechanism whereby affidavit evidence could be brought before a Trial Chamber in certain circumstances, avoiding the need to call every witness relied upon in relation to a fact in dispute especially when the testimony is cumulative" but that the "desire for expedition is however, constrained by the need to protect the rights of an accused.";8

EMPHASISING that, pursuant to Articles 20 and 22 of the Statute, and Rule 75, the Tribunal has a duty to take into account the protection on victims and witnesses in the course of the proceedings;

FINDING that the proposal made by the Prosecutor in the Motion represents an acceptable compromise between the technical requirements of Rule 94 ter, and the need to ensure the safety and security of witnesses, and does not infringe the rights of the accused;


GRANTS the Prosecutor’s Motion

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

Done this 10th day of November 2000,
At The Hague,
The Netherlands.

Almiro Rodrigues
Presiding Judge, Trial Chamber I

 (Seal of the Tribunal)

1. Prosecutor v Naletilic and Martinovic, Case No. IT-98-34-PT, "Decision on Prosecution Motion for Approval of Rule 94 ter Procedure (Formal Statements)", 22 June 2000, (hereafter "Decision Dated 22 June 2000"), p 2, In Prosecutor v Kordic and Cerkez, Case No. IT-95-14/2-T, statements of witnesses who had been summoned by State authorities to appear before a local BiH investigating judge were admitted pursuant to Rule 94 ter. See Transcript 15,109-15,115, and 16,485-16,492.
2. Prosecutor v Martinovic "Motion for Approval of Rule 94 ter Procedure (Formal Statements)", dated 14 March 2000, paras 4-11.
3. Decision Dated 22 June 2000, supra note 1.
4. Ibid, p 3.
5. Naletilic Reply, p 9.
6. Martinovic Reply, at 8-9.

7. Prosecutor v Kordic and Cerkez, Case No. IT-95-14/2-AR73.6, "Decision on Appeal Regarding the Admission into Evidence of Seven Affidavits and One Formal Statement", 18 September 2000, para 22.
8. Ibid, para 25.