The Prosecutor v. Mile Mrksic - Case No. IT-95-13/1-PT

“Decision on Defence Motion Requesting the Determination of Rules for Communicating with Potential Witnesses of the Opposing Party”

7 May 2003
Trial Chamber II (Judges Schomburg [Presiding], Mumba and Agius)

Procedural Background

· On 31 March 2003, Mile Mrksic’s Defence filed the “Defence Motion Requesting Determination of Rules of Communication with Potential Witnesses of the Opposite Party” and Confidential Annex thereto (“Motion”). The Defence required that the pre-trial Judge “establish an unambiguous and precise method of communication between each of the opposing parties to these proceedings and the respective potential witnesses of the opposite side”.¹

· On 11 April 2003, the Prosecution filed the “Prosecution’s Opposition to Defence Motion Requesting the Determination of Rules of Communication with Potential Witnesses of the Opposite Party” and Confidential Annex thereto (“Response”).

· On 14 April 2003, the Defence requested leave to file a reply² which was granted by the Trial Chamber on 15 April.³

· On 22 April 2003, the Defence filed its reply to the Prosecution’s Response.⁴

The Decision

The Trial Chamber dismissed the Defence Motion.⁵

The Reasoning

The Trial Chamber recalled that a witness may be called to testify in one case and by the Prosecution in another⁶ and emphasised that “the fact that a potential witness has given a statement to a party to proceedings does not preclude the other party from seeking to interview him or her at this stage of pre-trial proceedings”.

It considered that “if a potential witness refuses to grant an interview to the Defence, or refuses to respond to a Prosecution summons, that party’s relief lies with the Trial Chamber’s power pursuant to Rule 54⁷”.

The Trial Chamber did not find necessary to establish the requested guidelines and dismissed the Defence Motion. Should this be necessary, it held that at the appropriate stage it will see to it that the appropriate guidelines are in place.

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1. Motion, paras. 7 and 15.
2. Defence Motion Seeking Leave to Reply to “Prosecution’s Opposition to Defence Motion Requesting the Determination of Rules of Communication with Potential Witnesses of the Opposite Party”, 14 April 2003.
3. Decision on Defence Request for Leave to File a Reply, 15 April 2003 (“Decision to Grant Leave”), 15 April 2003.
4. Defence Reply to “Prosecution’s Opposition to Defence Motion Requesting the Determination of Rules of Communication with Potential Witnesses of the Opposite Party” (“Reply”), 22 April 2003.
5. On 29 May 2003, Trial Chamber II granted the Prosecution leave to appeal the present Decision pursuant to Rule 73(B) of the Rules. The appeal is pending before the Appeals Chamber.
6. Stakic, IT-97-24, trial transcript, 20 February 2003, page 12475.
7. Rule 54 (General Rule) At the request of either party or proprio motu, a Judge or a Trial 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.