Case No. IT-01-48-T


Judge Liu Daqun, Presiding
Judge Florence Ndepele Mwachande Mumba
Judge Amin El Mahdi

Mr. Hans Holthuis

Decision of:
29 June 2005







The Office of the Prosecutor:

Mr. Philip Weiner
Ms. Sureta Chana
Mr. David Re
Mr. Manoj Sachdeva

Counsel for the Accused:

Mr. Peter Morrissey
Mr. Guénaël Mettraux


TRIAL CHAMBER I, SECTION A, ("Trial 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 the Defence "Motion for Exclusion of Exhibits", filed on 3 June 2005 ("Motion"), by which the Defence "seeks reconsideration"1 of the Trial Chamber’s “Decision on Admission Into Evidence of Documents Tendered during Witness Salko Gusic’s Testimony in Court”, filed on 24 February 2005 ("Decision on Admission"), and the exclusion from evidence of Prosecution exhibits P111, P112, P113, P114, P115, and P121 ("Exhibits");

NOTING the Prosecution "Response to Defence Motion for Exclusion of Exhibits", filed on 17 June 2005;

NOTING the "Defence Objection to Admission of Evidence", filed on 10 February 2005 ("Defence Objection"), by which the Defence objected to the admission into evidence of these Exhibits, among others, on the grounds that:

  1. "reliability of proposed exhibits is relevant, not only to their weight, but also to their admissibility. Where a party has failed to establish to a sufficient degree the reliability of documents which it seeks to tender, those documents may not be admitted in evidence",2

    "[t]he burden to establish the authenticity of documents which it seeks to tender is and remains with the prosecution",3

  2. "[t]he witness [ Salko Gusic] was unable to ascertain [the] authenticity [of the Exhibits…] , nor was he in a position to give any evidence which would endow those documents with the minimum reliability threshold required under the Rules",4

  3. "[b]y putting documents to witnesses which they have not seen at the relevant time and which they are not in a position to authenticate, the prosecution is in fact depriving the Defence of an opportunity to challenge the authenticity of those documents";5

NOTING that the Defence, by its "Motion for Certification", filed on 4 March 2005, sought certification from the Trial Chamber for interlocutory appeal of the Decision on Admission on the grounds listed above under 1) to 3),6 that this motion was denied by the Decision on Motion for Certification of 6 April 2005; and CONSIDERING that the Trial Chamber in that decision stated that the Defence "has had the opportunity to cross-examine the witness [Salko Gusic] and to challenge the reliability and/or authenticity of the exhibits", thus also addressing the argument under 4) above;7

CONSIDERING in this respect that it is settled practice in this Tribunal that "when objections are raised on grounds of authenticity or reliability, [a] Trial Chamber will […] admit documents and video recordings and then decide what weight to give them within the context of the trial record as a whole";8

CONSIDERING that the Defence in the current Motion is resubmitting the above arguments;9

CONSIDERING that the Defence has failed to show good cause, as required by the Guidelines on the Standards Governing the Admission of Evidence,10 why the Trial Chamber should reconsider the Decision on Admission;

CONSIDERING THEREFORE that this matter has been decided;


PURSUANT TO Rule 54 of the Rules of Procedure and Evidence,

DISMISSES the Motion.


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

Judge Liu Daqun

Dated this twenty-ninth day of June 2005
At The Hague
The Netherlands

[Seal of the Tribunal]

1. Motion, p. 3.
2. Defence Objection, para. 3.
3. Defence Objection, para. 6
4. Defence Objection, para. 4.
5. Defence Objection, para. 6.
6. Motion for Certification, paras 5-6.
7. Decision on Motion for Certification, 6 April 2005, p. 4.
8. Guidelines on the Standards Governing the Admission of Evidence, 16 February 2005 ("Guidelines"), para. 5 referring to Prosecutor v. Zejnil Delalic et. al, Case No. IT-96-21-T, Decision on the Motion of the Prosecution for the Admissibility of Evidence, 19 January 1998; Prosecutor v. Dario Kordic and Mario Cerkez, Decision on Appeal Regarding Statement of a Deceased Witness, Case No. IT-95-14/2-AR73.5, 21 July 2000; Prosecutor v. Tihomir Blaškic, Case No. IT-95-14-T, Decision on the Defence Motion for Reconsideration of the Ruling to Exclude from Evidence Authentic and Exculpatory Documentary Evidence, 30 January 1998.
9. Motion, paras 5(i)-(iv) and (vi), 7 and 10.
10. Guidelines, para. 3.