Case No.: IT-95-14-A


Judge Fausto Pocar, Presiding
Judge David Hunt
Judge Mehmet Güney
Judge Asoka de Zoysa Gunawardana
Judge Theodor Meron

Mr. Hans Holthuis

Order of:
31 October 2002



ORDER ON PROSECUTIONíS REQUEST FOR LEAVE TO FILE SUPPLEMENTAL RESPONSE ______________________________________________________________

The Office of the Prosecutor:

Mr. Norman Farrell

Counsel for the Appellant:

Mr. Anto Nobilo
Mr. Russell Hayman
Mr. Andrew M. Paley


THE APPEALS CHAMBER of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991 ("International Tribunal"),

BEING SEISED OF the "Prosecutionís Request for Leave to File Supplemental Response and Supplemental Response to Appellantís Third Motion to Admit Additional Evidence on Appeal", filed confidentially by the Prosecution on 9 October 2002 ("Request"), whereby the Prosecution requests leave to file an additional response to the Appellantís third motion to admit additional evidence on appeal ("Third Motion"), in light of the Appeals Chamberís decision of 30 September 2002 in an interlocutory appeal ("Appeal Decision");1

NOTING that, according to the Prosecution, the statements of Witness One and Witness Three, attached to the Third Motion, are inadmissible following the reasoning of the Appeal Decision, because:

1) their evidence can be seen as trespassing on the function of a Chamber;

2) the opposing party is offered no opportunity to cross-examine the persons whose evidence is summarised; and

3) the (summarised) evidence in the statements contains no indicia of reliability that could overcome the previous defects;

NOTING the Appellantís Response to the Request, filed confidentially on 21 October 2002, where the Appellant argues that:

1) the Request is an inappropriate attempt to open another round of briefing on the Third Motion;

2) the Appeal Decision is irrelevant to the admissibility of the statements of Witness One and Witness Three under Rule 115 of the Rules of Procedure and Evidence of the International Tribunal, because:

a) the statement of Witness One does not usurp the Appeals Chamberís function in assessing evidence, as it comes from a primary, first-hand witness;

b) the Prosecutor will have an opportunity to cross-examine Witness One, "most of" whose evidence relates to first-hand experience;

c) Witness Oneís evidence is reliable because the witness has reported on first-hand experience associated with the investigations he conducted independently and long before the International Tribunal existed; and

3) Witness Threeís evidence does not amount to "summarising evidence" but also consists of first-hand observations which are corroborated by the additional evidence contained in the first two motions filed by the Appellant pursuant to Rule 115;

CONSIDERING that the "summarising evidence" which was the subject of the Appeal Decision is distinct from the statements of Witnesses One and Three, in that the latter are not a summary or outline of existing witness statements prepared for these proceedings but consist of first-hand observations made either at the time of the events that are the subject of these proceedings or during investigations conducted shortly after such events and among the participants of the events;

NOTING also that the Prosecution has conceded that Witness Threeís statement does not amount to the type of evidence in question in the Appeal Decision;

CONSIDERING that the Appeals Chamber is not persuaded that the admission of the statements of Witnesses One and Three will violate the principles laid down in the Appeal Decision;

HEREBY DENIES the Request.


Done in both English and French, the English text being authoritative.

Fausto Pocar
Presiding Judge

Done this 31st day of October 2002,
At The Hague,
The Netherlands.

[Seal of the Tribunal]

1 - Prosecutor v. Slobodan Milosevic, Case No. IT-02-54-AR73.2, Decision on Admissibility of Prosecution Investigator's Evidence, 30 September 2002.