The Prosecutor v. Sefer Halilovic - Case No. IT-01-48-AR73

“Reasons for Decisions Dismissing Interlocutory Appeal Concerning Jurisdiction over the Territory of Kosovo”

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

Procedural Background

· On 29 December 2003, the Defence for Sefer Halilovic requested that the Trial Chamber issue subpoenas to three individuals on the Prosecution’s list of witnesses who had refused its requests to be interviewed.¹

· On 16 February 2004, the Trial Chamber rejected the Motion. It noted that all three witnesses would be subject, at trial, to cross-examination by the Defence and that the Defence “had not specified what aspects must be covered during the [sought] interviews of each of the three witnesses that could not be adequately covered during cross-examination.”²

· On 24 February 2004, the Defence submitted additional information in respect of its Motion and requested that the Trial Chamber reconsider its Decision. Alternatively, it requested certification to appeal the 16 February 2004 Decision (“Impugned Decision”) pursuant to Rule 73 (B) of the Rules of Procedure and Evidence.³

· On 2 April 2004, the Trial Chamber acknowledged that the Defence “submit[ted] further details pertaining to each of the three witnesses” but nevertheless concluded that it would not issue subpoenas to witnesses “who are all expected to testify viva voce and be subject to cross-examination during trial”. It therefore adhered to its previous Decision but certified the appeal.⁴

· On 13 April 2004, the Defence filed its appeal whereby it requested the Appeals Chamber to reverse the Impugned Decision and to either issue the requested subpoenas or to direct the Trial Chamber to do so.⁵ The Prosecution responded on 23 April 2004. It argued that the Impugned Decision was correct and therefore should be confirmed.⁶

Decision

The Appeals Chamber granted the Appeal in part and reversed the Impugned Decision. It directed the Trial Chamber to reconsider the Defence Motion in light of the principles set out in the present Decision and to issue subpoenas should its renewed examination disclose a need for the Defence to interview the witnesses. Judge Shahabuddeen appended a declaration and Judge Weinberg de Roca appended a dissenting opinion.

Reasoning

The Appeals Chamber identified the issue on appeal as to whether or not a Trial Chamber may reject a motion for a subpoena “merely because the proposed witnesses will in any event be called by the other party and so will be available for cross -examination by the moving party”.⁷

Subpoenas: applicable law

Rule 54 of the Rules permits a Judge or Trial Chamber to make such orders or to issue such subpoenas as may be “necessary for the purposes of an investigation or for the preparation or conduct of trial”⁸. 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 conduct of the trial.”⁹

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 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”.¹⁰

The assessment of the chance that the 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”.¹¹

Recourse to such a procedure should not amount to a “fishing expedition” whereby the applicant would be unaware of whether the particular person has any relevant information. The applicant shall not seek to interview that person merely in order to discover whether he/she has any such information.¹² The discretion rests with the Trial Chamber to decide whether or not to have recourse to such stringent procedure, which should not be abused: “Subpoenas should not be issued lightly, for they involve the use of coercive powers and may lead to the imposition of a criminal sanction”.¹³

With regard to the issuance of subpoenas to war correspondents, the Appeals Chamber had already set a two-pronged test: “First, the petitioning party must demonstrate that the evidence sought is of direct and important value in determining a core issue in the case. Second, it must demonstrate that the evidence sought cannot reasonably be obtained elsewhere.”¹⁴

In the present case, the Appeals Chamber held:

“In deciding whether the applicant has met the evidentiary threshold, the Trial Chamber may properly consider both whether the information the applicant seeks to elicit through the use of subpoena is necessary for the preparation of his case and whether this information is obtainable through other means. The background principle informing both considerations is whether, as Rule 54 requires, the issuance of subpoena is necessary ‘for the preparation or conduct of the trial’. The Trial Chamber’s considerations, then, must focus not only on the usefulness of the information to the applicant but [also] on its overall necessity in ensuring that the trial is informed and fair”.¹⁵

Use of subpoenas

The Appeals Chamber held that as a “mechanism of judicial compulsion, backed up by the threat and the power of criminal sanctions for non-compliance, the subpoena is a weapon which must be used sparingly¹⁶ […] and where it would serve the overall interests of the criminal process, not where it would merely facilitate a party’s task in litigation”.¹⁷

Subpoenas to interview a witness of the opposing party

The Appeals Chamber held that “[w]hile a preparation for cross-examination is undeniably a part of the overall preparation for trial, it is not, in and of itself, a sufficient basis for an issuance of subpoena.”¹⁸ In its consideration, Trial Chambers should “guard against the subpoena becoming a mechanism used routinely as part of trial tactics” and resort to this instrument when it is “necessary to elicit information of importance to the case and to ensure that the defendant has sufficient means to collect information necessary for the preparation of an effective defence”.¹⁹

The Appeals Chamber found that “[w]here the information the Defence seeks before trial from the opposing party’s witness will, in any event, be presented at trial during that witness’s examination-in-chief, there is no need to resort to a subpoena ”.²⁰ As the information “will be present both to the court and to the Defence” and as the Defence “will be able to test this information for veracity, accuracy and reliability during cross-examination”, the Appeals Chamber held that “[i]n entertaining a request for a subpoena, a Trial Chamber is […] entitled to take into account the fact that a witness whom a party seeks to subpoena is scheduled to testify during the trial, and to refuse the request where its sole rationale is to prepare for a more effective cross-examination”.

Rationale

The Trial Chamber, in its 16 February 2004 Decision, found that the Defence “had not specified what aspects could be covered during the sought interviews of each of the witnesses that could not be adequately covered during cross-examination”²¹, and therefore rejected the Motion. In its 2 April 2004 Decision, the Trial Chamber, having acknowledged that the Defence had presented further details in support of its request, stated that it would not issue subpoenas to witnesses “who are all expected to testify viva voce and be subject to cross-examination during trial”.²²

The Appeals Chamber found that the Trial Chamber, in its 16 February 2004 Decision, did examine whether the Defence’s request for a subpoena “went beyond the scope of the issues on which the Prosecution witnesses were expected to testify”, but did not do so in its 2 April 2004 Decision and therefore was “in error”.²³ In the latter, as noted by the Appeals Chamber, the decision to deny the request for a subpoena was wrongly based on the “mere fact that the witness would be available for cross-examination”.²⁴

To conclude, the Appeals Chamber found that the Trial Chamber “erred in rejecting the Defence request for subpoenas […] solely on the basis of the fact that the Defence will have the opportunity to cross-examine [the proposed] witnesses” and that the Trial Chamber “should have examined whether the Defence has presented reasons for the need to interview these witnesses which went beyond the need to prepare a more effective-cross examination”.

To reach this conclusion, the Appeals Chamber addressed the following elements:

Right of the parties to interview witnesses

In paragraph 12, the Appeals Chamber held:

“Where a witness is listed by one party as expected to testify on its behalf with respect to certain issues, it does not necessarily follow that this witness will have no information of value to the opposing party on other issues related to the case. The opposing party may have a legitimate expectation of interviewing such witness in order to obtain this information and thereby better prepare a case for its client. To deprive this expecting party of such ability would hand an unfair advantage to the opposing party, which would be able to block its opponent’s ability to interview crucial witnesses simply by placing them on its witness list.”

Avoiding delays

In paragraph 13, it further held:

“[…] the party which placed the witness in question on its list of witnesses may then decide not to call the witness at all. While the other party, such as the Defence in this case, could subsequently petition the Trial Chamber for a subpoena to obtain information from the witness, that party would have lost valuable time in procuring this information and may therefore end up at an unfair disadvantage with respect to the preparation of its case.”

Scope of cross-examination and proper preparation of the case

In paragraph 14, the Appeals Chamber held:

“The Trial Chamber also seems to have overlooked the fact that during cross-examination, the party conducting cross-examination can elicit from the witness evidence exceeding the subject-matter of the evidence-in-chief and matters affecting the credibility of the witness, provided that ‘the witness is able to give evidence relevant to the case for the cross-examining party’²⁵. Given that during cross-examination the Defence can elicit from the Prosecution witness information which is relevant to its own case and goes beyond the scope of the Prosecution’s examination- in-chief, the Defence may have a legitimate need to interview this witness prior to trial in order to properly prepare its case.”

The Appeals Chamber remitted the matter to the Trial Chamber, as the proper forum for the factual determination of the case in light of the “principles” given in the present Decision.²⁶

Dissenting Opinion of Judge Weinberg de Roca

Judge Weinberg de Roca explained that, in her view, the majority of the Appeals Chamber misinterpreted the Trial Chamber’s reasoning when it held that the Trial Chamber had denied the Defence Motion solely because the witnesses would be available for cross-examination. In her view the Trial Chamber did stress the need to exercise “due caution” in applying a mechanism as coercive as a subpoena.²⁷ She would have rejected the Defence Motion.

She stressed that the Appeals Chamber had previously recognised “the importance of balancing a witness’s right to privacy against the duty to adjudicate thoroughly ”, and therefore had “exercised caution in applying the coercive power of subpoena, carrying as it does the threat of criminal sanctions”.²⁸ She recalled that the Appeals Chamber had also previously recognised that “particular caution is needed where the Prosecution is seeking to interview a witness who has declined to be interviewed”²⁹ and stated that compelling an unwilling witness to submit to a pre-trial interview without “a clear showing that such a measure is necessary to the fair adjudication of the case”, would be a “grave invasion of privacy indeed”.³⁰

Declaration of Judge Shahabuddeen

Judge Shahabuddeen addressed the question as to whether a Chamber may “step in” to compel a witness, who has refused to be interviewed by the Prosecution, to attend an interview and to answer questions by the parties.³¹ He noted that the “wide” powers given to the Trial Chambers, pursuant to Rule 54, to “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”, must be interpreted and applied “in accordance with the principle known to nations in the international community”.³² He expressed his doubts that those principles allow for the issuance of a subpoena to a potential witness to be interviewed by a party to a criminal matter, all the more so for witnesses who have refused to be interviewed. To illustrate, he envisages the situation of a person subject to the criminal sanctions of a subpoena for refusing an “out-of-court” meeting with a party, even though it could be that the person is never called as a witness in court.

He proposed that there should be a balance between the public interest of the right to one’s privacy and the public interest in securing information needed for a criminal trial, which balance would be struck by “defining a line beyond which the privacy of a person can be encroached upon only where there is a countervailing and established legal duty, such as the duty of a person to testify before a process conducted by a judicial officer”.³³

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1. Halilovic, IT-01-48-PT, Motion for Subpoenas (“Motion”), filed confidentially on 29 December 2004.
2. Halilovic, IT-01-48-PT, Decision on Defence Motion for Subpoenas, 16 February 2004.
3. Halilovic, IT-01-48-PT, “Motion for Reconsideration and, in the Alternative, Motion for Certification”, filed confidentially on 24 February 2004.
4. Halilovic, IT-01-48-PT, “Decision on Motion for Reconsideration, or Alternatively, Certification, 2 April 2004.
5. Halilovic, Defence Appeal Concerning Issuance of Subpoenas, filed partly confidentially on 13 April 2004.
6. Halilovic, IT-01-48-PT, Prosecution Response to Defence Appeal Concerning Issuance of Subpoenas, 23 April 2004.
7. Para. 1.
8. Rule 54 (General Rule) reads: “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.”
9. Krstic, IT-98-33-A, Decision on Application for Subpoenas (“Krstic Subpoena Decision”), 1 July 2003, para. 10 (emphasis added), Judicial Supplement No. 43.
10. Krstic Subpoena Decision, para. 10 (emphasis added).
11. Ibid., para. 11.
12. Ibid.
13. Brdjanin and Talic, IT-99-36-AR73.9, Decision on Interlocutory Appeal (“Brdjanin Decision”), 11 December 2002, para. 31, Judicial Supplement No. 38.
14. Ibid., para. 50.
15. Para. 7, footnote 14 omitted. In footnote 15, the Appeals Chamber, referring to para. 46 of the Brdjanin Decision, further held: “in deciding whether a subpoena should issue, a Trial Chamber must take into account not only the interests of the litigants but the overarching interests of justice and other public considerations”.
16. See supra footnote 13 and text accompanying note.
17. Para. 10.
18. Para. 10.
19. Ibid.
20. Ibid.
21. See supra under “Procedural Background”.
22. Ibid.
23. Para. 11.
24. Ibid.
25. Footnote 22 of the original Decision. The Appeals Chamber referred to the wording of Rule 90(H)(i) of the Rules of Procedure and Evidence, which reads as follows: “Cross-examination shall be limited to the subject-matter of the evidence-in-chief and matters affecting the credibility of the witness and, where the witness is able to give evidence relevant to the case for the cross-examining party, to the subject-matter of that case.”
26. Para. 15.
27. Dissenting Opinion of Judge Weinberg de Roca (“Dissenting Opinion”), para. 2.
28. Ibid., para. 4. Judge Weinberg de Roca referred inter alia to Mrksic, IT-95-13/1-AR73, Decision on Defence Interlocutory Appeal on Communication with Potential Witnesses of the Opposing Party (“Mrksic Decision”), 30 July 2003.
29. Mrksic Decision, para. 16.
30. Dissenting Opinion, para. 4.
31. In the Mrksic Decision, para. 15, the Appeals Chamber found that where “a person for any reasons declined 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”.
32. Ibid., para. 3.
33. Ibid. para. 4.