Case no. IT-95-9-T

IN TRIAL CHAMBER II

Before:
Judge Florence Ndepele Mwachande Mumba, Presiding
Judge Sharon A. Williams
Judge Per-Johan Viktor Lindholm

Registrar:
Mr. Hans Holthuis

Decision of:
2 May 2003

PROSECUTOR
v.
BLAGOJE SIMIC
MIROSLAV TADIC
SIMO ZARIC

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DECISION ON PROSECUTORíS MOTION FOR REDETERMINATION OF DECISION OF 15 APRIL 2003 PREVENTING WITNESSES FROM REFRESHING MEMORY FROM A STATEMENT DECLARED PURSUANT TO RULE 92 bis (B) OF THE RULES OF PROCEDURE AND EVIDENCE, OR ALTERNATIVELY CERTIFICATION UNDER RULE 73 (B) AND A VARIATION OF TIME FOR FILING OF RULE 73(B) MOTION PURSUANT TO RULE 127

____________________________________

The Office of the Prosecutor:

Mr. Gramsci Di Fazio
Mr. Philip Weiner
Mr. David Re

Counsel for the Accused:

Mr. Igor Pantelic and Mr. Srdjan Vukovic for Blagoje Simic
Mr. Novak Lukic and Mr. Dragan Krgovic for Miroslav Tadic
Mr. Borislav Pisarevic and Mr. Aleksandar Lazarevic for Simo Zaric

 

TRIAL CHAMBER II 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 ("Tribunal"),

NOTING the oral decision of the Trial Chamber on 15 April 2003 ("Oral Decision") which denied the oral motion of the Office of the Prosecutor ("Prosecution") on the same day seeking leave to refresh the memory of witness Mr. Vaso Antic during cross-examination, by showing him a paragraph struck out of his statement taken on 10 December 2002, pursuant to Rule 92 bis of the Rules of Procedure and Evidence ("Rules"),

NOTING the "Prosecutorís Motion for Trial Chamberís Redetermination of Decision of 15 April 2003 Preventing Witnesses from Refreshing Memory from a Statement Declared Pursuant to Rule 92 bis (B) of the Rules of Procedure and Evidence, or Alternatively Certification Under Rule 73(B) and a Variation of Time for Filing of Rule 73(B) Motion Pursuant to Rule 127" ("Motion B"), filed on 25 April 2003,

NOTING the "Prosecutorís Motion for Trial Chamberís Redetermination of its Decision of 2 April 2003 Relating to Cross-Examination of Defence Rule 92 bis Witnesses or Alternatively Certification Under Rule 73 (B) of the Rules of Procedure and Evidence" ("Motion A"), filed on 3 April 2003, and the Trial Chamberís "Decision on Prosecutorís Motion for Trial Chamberís Redetermination of its Decision of 2 April 2003 Relating to Cross-Examination of Defence Rule 92 bis Witnesses or Alternatively Certification Under Rule 73 (B) of the Rules of Procedure and Evidence" ("Decision on Motion A"), delivered on 28 April 2003,

CONSIDERING that Motion A and Motion B both request the Trial Chamber to permit the Prosecution, during cross-examination, to refer a witness to paragraphs that have been struck out of a statement taken pursuant to Rule 92 bis of the Rules, where Motion A requests reference to the struck out paragraph for the purpose of testing credibility of a witness, and Motion B requests reference to the struck out paragraph for the purpose of refreshing the memory of the witness,

CONSIDERING that the reasoning and finding of the Trial Chamber in the Decision on Motion A, which prevents the Prosecution from referring a witness to a portion that has been struck out by the Trial Chamber of a statement prepared pursuant to Rule 92 bis of the Rules, applies to Motion B mutatis mutandis,

NOTING Rule 73 (C) of the Rules which requires requests for certification to be filed within seven days of the filing of the impugned decision,

NOTING Rule 127 (A)(ii) of the Rules where a Trial Chamber may, on good cause being shown by a motion, recognize as validly done an act done after the expiration of the prescribed time for filing a motion,

NOTING the Prosecutionís lack of access to the Tribunal building and computer network for a period of five days over the Easter break due to technical failure,

FINDS good cause being shown by the Prosecution, and accepts the late filing of Motion B,

UPHOLDS its Oral Decision, and grants certification pursuant to Rule 73(B) of the Rules for an interlocutory appeal against this Oral Decision.

 

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

____________________________
Florence Ndepele Mwachande Mumba
Presiding

Dated this second day of May 2003,
At The Hague
The Netherlands

[Seal of the Tribunal]