Case. No. IT-01-47-T

Ms Edina Residovic and Mr Stéphane Bourgon for Enver Hadzihasanovic
Mr Fahrudin Ibrisimovic and Mr Rodney Dixon for Amir Kubura

Trial Chamber II ("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 ("Tribunal"),

BEING SEISED of a confidential Prosecution Motion to Amend its List of Witnesses and Exhibits filed by the Office of the Prosecutor ("Prosecution") on 8 December 2003 ("Motion"), in which the Prosecution requests the Chamber to grant it leave to amend its list of witnesses and exhibits by adding eight witnesses, including one military expert witness whose report is attached, and one hundred and thirty exhibits, one hundred and ten of which are documents used by the expert in preparing his report,

NOTING that, amongst the list of additional documents put forward by the Prosecution, are the report of its military expert, General Klaus Reinhardt (number 108), and the transcripts of the testimony of Enver Hadzihasanovic and Amir Kubura in the case The Prosecutor v. Tihomir Blaskic, case no. IT-95-14-T (numbers 127 and 128),

NOTING that number 115 on the list of additional exhibits put forward by the Prosecution is the transcript of the testimony of a witness in the case The Prosecutor v. Radislav Krstic, case no. IT-98-33-T, who does not appear on the list of witnesses presented by the Prosecution on 10 October 2003,

NOTING that, in its Motion, the Prosecution also sets out its intention to submit an application requesting the Chamber to summon two witnesses, pursuant to Rule 98 of the Rules of Procedure and Evidence ("the Rules"),

NOTING the arguments presented in the Motion, including the Prosecution’s assertion that the addition of those witnesses would not prolong the trial,

NOTING the Confidential Joint Defence Response to the Motion filed on behalf of the two accused ("Defence") on 18 December 2003,

NOTING the arguments set out by the Defence in its Response that, inter alia, (1) with regard to the witnesses: the Defence has no objection, in principle, to the hearing of the seven new material witnesses proposed but states that some of the intended testimony overlaps; that it has not received "many" of the statements, prior statements and annexes to those witness statements referred to in the Prosecution’s list of witnesses of 10 October 2003; that it has not received the statements of five of the seven new witnesses proposed; (2) with regard to the exhibits: the Defence has no objection, in principle, to the admission of the one hundred and thirty exhibits proposed, except for the prior statements of the accused; the Defence does not have the one hundred and ten documents disclosed to the Prosecution’s military expert witness which it needs in order to file its observations pursuant to Rule 94 bis of the Rules; the Defence does not have a copy of all the remaining documents; (3) with regard to the expert report, the Defence requests that certain passages in the report be removed on the ground that the testimony of the accused in the Blaskic case is not admissible; (4) with regard to the witnesses summoned pursuant to Rule 98 of the Rules, the Defence met with the two witnesses who indicated that they did not wish to testify for the Prosecution and one of them at least will be called by the Defence; the Defence considers that, under these circumstances, recourse to Rule 98 is not appropriate at this stage in the proceedings,

NOTING the discussion of issues related to the disclosure of documents to the Defence at the hearing of 18 December 2003,

NOTING the confidential Prosecution Reply to the Joint Defence Response presented on 23 December 2003 in which the Prosecution informed the Chamber that the statements of the proposed new witnesses had been disclosed to the Defence on 19 December 2003; that on 19 and 22 December the Prosecution provided the Defence with a consolidated list of the documents disclosed to General Reinhardt and a courtesy copy of some of those documents; that almost all the statements of the witnesses referred to in its list of witnesses of 10 October had been disclosed to the Defence; that most of the documents which the Defence declared to be lacking in a list of 28 November 2003 have already been disclosed, as clarified by the Prosecution in a document transmitted to the Defence on 19 December 2003, and that translations of the few documents still outstanding will be disclosed once they are available,

NOTING the Confidential Joint Motion to Exclude Previous Testimonies of the Accused submitted by the Defence on 19 December 2003,

PURSUANT to paragraphs (D) and (E) of Rule 92 bis of the Rules setting out the procedure to be followed for admitting testimony given by a witness in proceedings before the Tribunal,

CONSIDERING that, pursuant to Rule 92 bis of the Rules, the issue of admitting testimony in another case should be raised in a separate motion,

CONSIDERING that the issue of admitting testimony given previously by the accused in other cases before the Tribunal has been raised in a separate request and should not therefore be addressed in this Motion,

CONSIDERING that the Chamber should give its opinion on the Prosecution expert witness after it has received the response of the Defence, pursuant to Rule 94 bis of the Rules,

CONSIDERING that, if necessary, the Chamber will address the issue of summoning witnesses pursuant to Rule 98 of the Rules after the Prosecution and Defence have presented their evidence,

CONSIDERING, however, that if the Prosecution considers the witnesses set out in its motion to be Prosecution witnesses, it should first request leave of the Chamber to add them to its list of witnesses instead of using the procedure provided for in Rule 98 of the Rules,

CONSIDERING that the addition of the seven witnesses and one hundred and twenty-six exhibits proposed by the Prosecution will not infringe the rights of the Defence, who will have the necessary time to prepare,¹

CONSIDERING that the issue of disclosing Prosecution documents to the Defence seems broadly to have been resolved through dialogue between the parties, as requested by the Chamber,

CONSIDERING that since no details allowing the proposed witnesses to be identified are discussed in this decision, it does not appear necessary for it to be confidential,

FOR THE FOREGOING REASONS, the Chamber allows in part the Prosecution Motion and grants it leave to add to its list of witnesses those witnesses set out in its Motion and add to its list of exhibits all the documents referred to in the Motion, with the exception of numbers 108, 127 and 128, which will be addressed in separate decisions, and 115.

Done in French and English, the French version being authoritative.

Done this twenty-third day of January 2004
At The Hague
The Netherlands

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Judge Jean-Claude Antonetti