Case No.: IT-98-34-T

BEFORE TRIAL CHAMBER I SECTION A

Before:
Judge Liu Daqun, Presiding
Judge Maureen Harding Clark
Judge Fatoumata Diarra

Registrar:
Mr. Hans Holthuis

Decision of:
25 October 2002

PROSECUTOR
v.
MLADEN NALETILIC aka "TUTA"
and
VINKO MARTINOVIC aka "STELA"

___________________________________________________________

DECISION ON ACCUSED NALETILICíS REQUEST FOR ISSUANCE OF SUBPOENA DUCES TECUM PER RULE 54

___________________________________________________________

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, SECTION A ("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 ("the Tribunal");

BEING SEISED OF the "Accused Naletilicís Request For Issuance of Subpoena Duce Tecum Per Rule 54", filed on 25 September 2002 ("the Request"), whereby the Defence requests that the Chamber issue a Subpoena Duce Tecum to the Deputy Minister of Defence of Bosnia and Herzegovina for copies of the documents "contained in the ABiH Archive relating to the conflict of the ABiH and the HVO in the municipalities of Jablanica, Konjic and Mostar" and of other specified documents;

NOTING that the Request alleges that it is necessary for the Accused to obtain this material for the purpose of the investigation, preparation, or conduct of the ongoing trial as it will "substantiate the evidence that the ABiH attacked the HVO on 9 May 1993 in Mostar, and that the Accused Naletilic was not the Commander of any units";

NOTING that Rule 54 of the Rules of Procedure and Evidence ("the Rules") provides that the 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";

NOTING that in the Request the Defence states that it "has requested this documentation but has been told, by letter dated 15 July that it will not be allowed access to this documentation";

NOTING the Chamberís "Decision on Joint Motions For Order Allowing Defence Counsel to Inspect Documents in The Possession of The Prosecution", issued on 16 September 2002, whereby the Chamber denied the Joint Motions, subject to the right of the accused to present further arguments "how examination of unused material which is in the hands of the Prosecution can be material to the Defence at this late stage of the trial";

NOTING that no such further argument was advanced;

CONSIDERING that the Defence has not shown that it followed the advice, given by the Minister of Defence of Bosnia and Herzegovina by letter of 15 July 2002 ("the letter"), to address its request to the Deputy Minister of Defence, with the help of the international factors in BiH, as "the Bosniak component of the Army of the federation of BH keeps all the original documentation and files from the time in question in its archives and they are therefore not available to [him]";

CONSIDERING further that although the letter was dated mid of July 2002 the Request was filed not until 25 September 2002 when the Defence had already completed the presentation of its case;

CONSIDERING that the requirement to be met for the admission of fresh evidence is "that the evidence could not have been found with the exercise of reasonable diligence before the close of the case" of the party making the application;1

CONSIDERING that the Chamber is therefore of the opinion that at this late stage, the Request does not serve any purpose;

FOR THE FOREGOING REASONS,

PURSUANT to Rule 54 of the Rules,

DENIES the Request.

 

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

Dated this twenty-fifth day of October 2002,
At The Hague,
The Netherlands

______________
Judge Liu Daqun
Presiding Judge

[Seal of the Tribunal]


1 - Prosecutor v. Delalic et al., Case No. IT-96-21-A, Appeal Judgement, 20 February 2001, para. 283.