The Prosecutor v. Mile Mrksic - Case No. IT-95-13/1-AR73

“Decision on Defence Interlocutory Appeal on Communication with Potential Witnesses of the Opposite Party”

30 July 2003
Appeals Chamber (Judges Meron [Presiding], Pocar, Shahabuddeen, Güney and Weinberg de Roca)

Procedural Background

· On 7 May 2003, Trial Chamber II dismissed a Defence motion seeking precise rules for communication between the parties and prospective witnesses of the opposing party (“Impugned Decision”).¹

· On 29 May 2003, the Trial Chamber granted the Defence certification to appeal the Impugned Decision pursuant to Rule 73(B) of the Rules.²

· On 4 June 2003, the Mrksic Defence filed the “Defence Brief on an Interlocutory Appeal on Trial Chamber’s Decision on Defence Motion Requesting the Determination of Rules for Communicating with Potential Witnesses of the Opposite Party” (“Appellant’s Brief”). The Prosecution responded on 16 June 2003 (“Respondent’s Brief”).³

The Decision

The Appeals Chamber dismissed the Appeal.

The Reasoning

The Impugned Decision

In the Impugned Decision, the Trial Chamber stated that at the pre-trial stage the potential witnesses are not attached to either party and that the fact that a potential witness may have given a statement to a party does not preclude the other party from seeking an interview. It held that if the witness refuses to grant an interview, either party may apply to the Chamber for appropriate relief pursuant to Rule 54 of the Rules of Procedure and Evidence of the International Tribunal (“Rules”).⁴

The power of the Prosecution to interview a potential Defence witness

The Appeals Chamber held that following Article 18(2) of the Statute which vests the Prosecution with “the power to question suspects, victims and witnesses” and to eventually “seek the assistance of the State authorities concerned” and following Rule 39 of the Rules which provides that in conducting an investigation the Prosecution may “summon and question suspects, victims and witnesses”, “it is clear that the Prosecution has the power to request interviews with potential defence witnesses and may seek assistance from State authorities to facilitate this contact”.⁵

It upheld the decision of the Trial Chamber not to establish the requested rules governing communication with the witnesses of the opposing party but emphasised that there are limitations to the freedom of the Prosecution to contact a potential Defence witness.

The limits to the power of the Prosecution to interview a potential Defence witness

The Appeals Chamber held that “[w]itnesses to a crime are the property of neither the Prosecution nor the Defence; both sides have an equal right to interview them ” and recalled that “[w]here, however, a person for any reason declines to be interviewed, the Prosecution does not have the power to compel the person to attend an interview or to respond to questions posed by the Prosecution”.⁶ It upheld the finding of the Trial Chamber in the Impugned Decision that if the Prosecution or the Defence wishes to compel an unwilling person to submit to a pre-trial interview, it must seek the assistance of the Chamber pursuant to Rule 54, as only subpoenas and other orders issued by the Tribunal have a legally binding effect that is enforceable by the application of criminal sanctions. It found that “[w]hen a person has declined to be interviewed, the Prosecution is entitled to take reasonable steps to persuade the person to reconsider his decision”, that “the mere fact that the person has agreed to testify for the Defence does not preclude the Prosecution from interviewing him provided of course that there is no interference with the course of justice”, and that [p]articular caution is needed where the Prosecution is seeking to interview a witness who has declined to be interviewed by the Prosecution, since in such a case the witness may feel coerced or intimidated”.⁷

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1. Mrksic, 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.
2. Mrksic, IT-95-13/1-PT, Decision Granting Certification to Appeal, 29 May 2003.
3. Mrksic, IT-95-13/1-AR 73, Prosecution’s Response to the ‘”Defence Brief on an Interlocutory Appeal on Trial Chamber’s Decision on Defence Motion Requesting the Determination of Rules for Communicating with Potential Witnesses of the Opposite Party”, 16 June 2003.
4. 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.
5. Para. 14.
6. Para. 15.
7. Para. 16.