The Prosecutor v. Enver Hadzihasanovic & Amir Kubura - Case No. IT-01-47-AR73.2

“Decision on Interlocutory Appeal Relating to the Refreshment of the Memory of a Witness”

2 April 2004
Appeals Chamber (Judges Meron [Presiding], Pocar, Shahabuddeen, Güney and Weinberg de Roca)

Procedural Background

· On 4 December 2003, Trial Chamber II orally ruled that it was not possible to produce a previous statement of a witness taken by a Prosecution’s investigator to refresh his memory during examination-in-chief (“Oral Decision”).¹

· On 10 December 2003, the Prosecution filed a motion for reconsideration of the Oral Decision.² The Defence replied on 17 December 2003.³

· On 19 December 2003, Trial Chamber II rendered its “Decision on the Refreshment of a Witness’s Memory and on a Motion for Certification to Appeal” (“Impugned Decision ”) whereby it upheld its Oral Decision and certified the Interlocutory Appeal.

· On 29 December 2003, the Prosecution filed its appeal from the Impugned Decision.⁴ The Defence replied on 5 January 2004.⁵

Decision

The Appeals Chamber allowed the Interlocutory Appeal and reversed the Impugned Decision.

Reasoning

The Appeals Chamber referred to its previous finding in the Simic et al. case whereby it admitted that a prior statement may be used to refresh a witness’s memory during cross-examination:

“The fact that a statement was made pursuant to Rule 92bis does not prevent the use of the unadmitted portions of the statement for the purpose of refreshing the memory of a witness under cross-examination.”⁶

It held that the same conclusion should apply to the question of refreshing a witness’s memory during examination-in chief.

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1. Transcripts, 4 December 2003, p. 531-532.
2. Hadzihasanovic & Kubura, IT-01-47-T, Prosecutor’s Motion for Reconsideration of Decision of 4 December 2003 Regarding Refreshing Recollection or Alternatively Certification Under Rule 73(B), 10 December 2003.
3. Joint Defence Response to Prosecutor’s Motion of 10 December 2003.Regarding Refreshing Recollection or Alternatively Certification Under Rule 73 (B), 17 December 2003.
4. Hadzihasanovic & Kubura, IT-01-47-AR73.2, Prosecutor’s Appeal from the Trial Chamber’s Decision Relating to the Refreshment of the Memory of Witness and Relating to the Request for Certification Dated 19 December 2003, 29 December 2003.
5. Hadzihasanovic & Kubura, IT-01-47-AR73.2, Joint Defence Response to Prosecutor’s Appeal from the Trial Chamber’s Decision Relating to the Refreshment of the Memory of a Witness and Relating to the Request for Certification Dated 19 December 2003, 5 January 2003.
6. Simic et al., IT-95-9-AR73.6 & IT-95-9-AR73.7, Decision on Prosecution Interlocutory Appeals on the Use of Statements not Admitted into Evidence Pursuant to Rule 92bis as a Basis to Challenge Credibility and to Refresh Memory, 23 May 2003, para. 18, Judicial Supplement No. 41.