The Prosecutor v. Radislav Krstic - IT-98-33-A

“Decision on Application for Subpoenas”

1 July 2003
Appeals Chamber (Judges Meron [Presiding], Pocar, Shahabuddeen, Hunt and Güney)

Procedural Background

Pursuant to Rule 54² of the Rules of Procedure and Evidence (“Rules”) the Appellant Radislav Krstic applied on 1 and 3 April 2003 for subpoenas to be issued to two prospective witnesses requiring each of them to attend at a location (to be nominated) in Bosnia and Herzegovina.³ The purpose of such attendance was to interview them in anticipation of the admission of additional evidence pursuant to Rule 115 of the Rules in support of Krstic’s appeal against conviction.

The Decision

The Appeals Chamber (Judge Shahabuddeen dissenting) ordered that subpoenas be issued requiring the two prospective witnesses identified in the Motion to attend at a specific time and location in Bosnia and Herzegovina to be nominated by the Krstic Defence after consultation with the Prosecution (and, if need be, with the Victims and Witnesses Section) in order to be interviewed by the Krstic Defence.⁴

The Reasoning

Admission of additional evidence on appeal

Counsel for an accused is under an obligation to exercise due diligence in relation to obtaining evidence in support of the Defence case.⁵ If additional evidence which could have been discovered through the exercise of due diligence before or during the trial is discovered after conviction, the accused will be successful in having that additional evidence admitted on the hearing of an appeal against conviction only if he discharges the burden of demonstrating that its exclusion at that stage would lead to a miscarriage of justice.⁶

In order to have that additional evidence admitted in such an appeal by demonstrating the exercise of due diligence by his Counsel before and during the trial, an accused must show that the Defence made use of all mechanisms of protection and compulsion available under the Tribunal's Statute and Rules in order to bring evidence before the Trial Chamber. The Rules most immediately relevant are Rule 54 (ordering witnesses to attend to give evidence), Rule 71 (taking evidence by way of depositions where the witness is unable to give evidence to the Trial Chamber directly) and Rule 75 (providing protective measures for witnesses).⁷

Subpoenas to prospective witnesses under Rule 54

Where the Defence is unaware of the precise nature of the evidence a prospective witness can give and is unable to obtain the cooperation of that prospective witness, Rule 54 permits a Judge or Trial Chamber to make such orders or to issue such subpoenas as may be necessary for the preparation or conduct of the trial. This power makes it possible for a subpoena to be issued requiring a prospective witness to attend at a nominated place and time in order to be interviewed where that attendance is necessary for the preparation or conduct of the trial. An order or subpoena would become “necessary” for the purposes of Rule 54 where a legitimate forensic purpose for holding such an interview has been shown. An applicant for such an order or subpoena before or during the trial would have to demonstrate a reasonable basis for his belief that there is a good chance that the prospective witness will be able to give information which will materially assist him in his case in relation to clearly identified issues relevant to the forthcoming trial.⁸

Assessment of the chance that a prospective witness will be able to give information which will materially assist the Defence in its case

The assessment of the chance that a prospective witness will be able to give information which will materially assist the Defence in its case will depend largely upon the position held by the prospective witness in relation to the events in question, any relationship he may have (or have had) with the accused which is relevant to the charges, the opportunity which he may reasonably be thought to have had to observe those events (or to learn of those events) and any statements made by him to the Prosecution or to others in relation to those events. The test would have to be applied in a reasonably liberal way. However, as with applications for access to confidential material, the Defence will not be permitted to undertake a fishing expedition - where it is unaware whether the particular person has any relevant information and it seeks to interview that person merely in order to discover whether he has any information which may assist the Defence.⁹

Subpoenas to uncooperative witnesses

Where a prospective witness has previously been uncooperative with the Defence, such a course would obviously be adopted only if the Judge or Trial Chamber considered that it was reasonably likely that there would be cooperation if such an order were made. That is not a determination which the Defence may safely make for itself. If it were decided by the Judge or Trial Chamber that such a course is unlikely to produce the cooperation sought or if such an order is made without success, an alternative course could be to make an order or to issue a subpoena pursuant to Rule 54 requiring the prospective witness to appear before the Tribunal, at which point the Judge who issued the order can explain to him the importance of his cooperation to assist in producing a just result in the trial, and how he will be afforded protection by the Tribunal if it is required. If this produces the cooperation sought, the Defence can interview him before he is released by the Tribunal, but in private.¹⁰

Subpoenas to prospective witnesses to be interviewed in anticipation of tendering evidence on appeal pursuant to Rule 115

Where, as in the present case, an appellant seeks the issuance of a subpoena to a prospective witness to be interviewed in anticipation of tendering that person’s evidence on appeal pursuant to Rule 115, the legitimate forensic purpose to be established must be slightly adapted. An appellant must establish that there is a reasonable basis for his belief that there is a good chance that the prospective witness will be able to give information which will materially assist him in relation to clearly identified issues arising in his appeal against conviction, that the Defence has been unable to obtain the cooperation of the witness and that it is at least reasonably likely that an order would produce the degree of cooperation needed for the Defence to interview the witness.¹¹

Subpoenas to State officials and the extent of functional immunity

In the present case, the two prospective witnesses were officers in the Army at the relevant time and it appears that whatever relevant information they may have would have been gained by them in their capacity as State officials and be related to their official functions, rather than as individuals acting in their private capacity. The Prosecution submitted that, in those circumstances, the Chamber “ may be limited” in its power to issue a subpoena.¹² This submission was based upon statements made by the Appeals Chamber in the Blaskic Subpoena Decision.¹³

The Appeals Chamber held that the Blaskic Subpoena Decision was concerned with the production of documents, not with the giving of evidence by a State official regarding what he saw or heard at a time when he was a State official and in the course of exercising his official functions.¹⁴ Nothing that was said by the Appeals Chamber in the Blaskic Subpoena Decision should be interpreted as giving such immunity to officials of the nature whose testimony is sought in the present case. No authority for such a proposition has been produced by the Prosecution and none has been found. Such immunity does not exist. No issue arises for determination in this case as regards whether there are different categories of State officials to whom any such immunity may apply, and it is unnecessary to determine such an issue here.¹⁵

Dissenting opinion of Judge Shahabuddeen

Judge Shahabuddeen disagreed with the finding of the majority of the Appeals Chamber that it is competent to subpoena a State official to testify about what he has seen or heard in his official capacity. He reviewed the scope of the Blaskic Subpoena Decision and could not find any cogent reason to argue that this decision was confined to the production of State documents. Judge Shahabuddeen also disagreed with the majority finding that the Appeals Chamber has the competence to subpoena potential witnesses to attend a Defence interview. In his view, the Appeals Chamber has the power to facilitate the attendance of such witness but cannot compel such attendance.

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1. See infra note 13 and text accompanying note.
2. Rule 54 (General Rule) reads as follows: “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”.
3. (Confidential) Defence Motion for the Issuance of Subpoena for Witness, 1 April 2003. (Confidential) Addendum to Defence Motion for the Issuance of Subpoena for Witness, 3 April 2003. These two motions are collectively referred to as the “Motion”.
4. Decision, para. 29.
5. Ibid, para. 5.
6. Ibid, para. 16.
7. Ibid, paras. 5-6.
8. Ibid, para. 10.
9. Ibid, para. 11.
10. Ibid, para. 12.
11. Ibid, para. 17.
12. Ibid, para. 19.
13. Blaskic, IT-95-14-AR108bis, Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997 (“Blaskic Subpoena Decision”), 29 October 1997.
14. Decision, paras. 23-24.
15. Ibid, paras. 26-27.