BEFORE A JUDGE OF THE TRIBUNAL

Before: Judge Gabrielle Kirk McDonald

Registrar: Mrs. Dorothee de Sampayo, Registrar

Decision of: 20 February 1997

THE PROSECUTOR

v.

TIHOMIR BLASKIC

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ORDER OF A JUDGE SUSPENDING SUBPOENA DUCES TECUM

___________________________________________________________

To: The Republic of Croatia

To: Defence Minister Gojko Susak, Ministry of Defence, Republic of Croatia

I, Gabrielle Kirk McDonald, Judge of the International Criminal Tribunal for the former Yugoslavia.

CONSIDERING, Articles 18(2), 19(2) and 29(2)(c) of the Statute and Rules 39(ii) and (iv) and 54 of the Rules of Procedure and Evidence of the International Criminal Tribunal for the former Yugoslavia,

CONSIDERING the subpoena duces tecum addressed to the Republic of Croatia and the Croatian Defence Minister Gojko Susak, which I issued on 15 January 1997, and of which the English version was delivered to Embassy of Croatia on 16 January 1997 and the Croatian translation on 17 January 1997,

CONSIDERING the written response of the Government of the Republic of Croatia to this subpoena duces tecum dated 10 February 1997 in which it argues that a request for assistance under Article 29 of the Statute can only be directed to a state, but not to a specifically named high government official to appear on behalf of the state,

CONSIDERING that the Government of the Republic of Croatia in the same written response also challenges the legal authority of the Tribunal to direct a subpoena duces tecum to a sovereign state,

CONSIDERING that the Government of the Republic of Croatia did not comply with the subpoena duces tecum,

CONSIDERING my order of 14 February 1997 in which I again directed the Republic of Croatia and the Defence Minister Gojko Susak to comply with the subpoena duces tecum and in the event of another non-compliance that a representative of the Republic of Croatia and the Defence Minister Gojko Susak, or his representative, personally appear before me in a public hearing on 19 February 1997 to show cause of their non-compliance,

CONSIDERING the oral report of His Excellency Branko Sala, Ambassador for the Republic of Croatia, in the public hearing on 19 February 1997 in which the Government of the Republic of Croatia reiterates its willingness to co-operate with the Tribunal but refuses to comply with the subpoena duces tecum before a legal clarification on the authority of the Tribunal to issue a subpoena to a sovereign state is given by the Security Council,

CONSIDERING an earlier offer of the Republic of Croatia to the Prosecutor to discuss the transmission of the documents requested in the subpoena duces tecum under the condition that the subpoena addressed to the Republic of Croatia and the Croatian Defence Minister Gojko Susak be quashed, which was refused by the Prosecutor,

CONSIDERING the opinion of the Prosecutor, as stated in the hearing of 19 February 1997, that the Statute and the Rules of Procedure of the Tribunal do give authority to a Judge or Trial Chamber to issue a subpoena to a sovereign state and to a high government official of that state,

CONSIDERING the forthcoming trial of Tihomir Blaskic and the wish of the Prosecutor to receive the documents referred to in the subpoena duces tecum as soon as possible,

CONSIDERING the willingness of the Republic of Croatia to set up a meeting between the Prosecutor and the appropriate authorities in Zagreb before 28 February 1997 to discuss the transmission of documents requested in the subpoena duces tecum under the condition that the Prosecutor will submit a request for these documents in a letter addressed to the Government of the Republic of Croatia,

CONSIDERING the willingness of the Prosecutor to prepare such a letter notwithstanding her legal position that the subpoena duces tecum is valid,

FIND that a representative of the Republic of Croatia will advise me on 24 February 1997 of a date for a meeting between the Prosecutor and the appropriate authorities of the Republic of Croatia with the expectation that this meeting will take place before 28 February 1997,

SUSPEND the Subpoena Duces Tecum of 15 January 1997 as well as the Order to Ensure Compliance with the Subpoena Duces Tecum of 14 February 1997 pending a notification by the Prosecutor of a failure by the Republic of Croatia to co-operate with their request.

Judge Gabrielle Kirk McDonald
International Criminal Tribunal for the former Yugoslavia


Dated this 20th day of February 1997
At The Hague
The Netherlands


[Seal of the Tribunal]