Case No. IT-00-39-T


Judge Alphons Orie, Presiding
Judge Amin El Mahdi
Judge Joaquín Martín Canivell

Mr Hans Holthuis

Order of:
19 July 2004







Office of the Prosecutor:

Mr Mark Harmon
Mr Alan Tieger

Counsel for the Defence:

Mr Nicholas Stewart, QC
Ms Chrissa Loukas


TRIAL CHAMBER I 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;

RECALLING the Chamberís decision of 28 February 2003 setting the permissible maximum number of Prosecution viva voce and Rule 92 bis witnesses at 101 and 168, respectively;1

RECALLING that the purpose of Rule 92 bis of the Tribunalís Rules is to expedite the presentation of evidence, within the constraints of the requirements of a fair trial;2

FINDING that the use of Rule 92 bis to admit evidence going to proof, in particular, of the "crime-base" allegations in the indictment consumes a significant amount of time out of court, both for the parties and for the Chamber;

RECALLING that the admission of evidence is always subject to "the interests of justice" (which includes keeping the case at a manageable size)3 and that the Chamber retains a "discretion under Rule 92bis whether to admit the evidence of a witness in written form which does not relate to the acts and conduct of the accused charged in the indictment;"4

RECALLING that the Chamber is entitled to exercise this discretion to limit the admission of Rule 92 bis evidence on various grounds; for example, on the grounds that the proposed evidence has little or no probative value in the context of the case, or is unnecessarily repetitive, or unnecessarily prolongs the proceedings;5

FINDING that the projected admission in the present case of a total of 168 Rule 92 bis Prosecution witnesses would, considering the time-consuming aspects of the ruleís administration, including the proper attention given by the parties and the Chamber to the evidence, have the effect of unnecessarily prolonging the proceedings;

CONSIDERING that the Chamber, proceeding cautiously, has gradually come to the conclusion that the 33 Rule 92 bis witnesses admitted thus far (five of them with cross-examination6) supply evidence which, when viewed in the context of the whole of the evidence Ė including viva voce testimony Ė presented thus far to the Chamber, is often of limited probative value, or unnecessarily repetitive;

RECALLING the Chamberís powers of control over the presentation of evidence as implied by Rules 54 and 73 bis of the Tribunalís Rules;

NOTING that the Prosecutionís list of witnesses dated 4 December 2003 indicates that 61 witnesses are scheduled to testify viva voce on the alleged crimes in the municipalities (not counting the so-called Expert, International, or General/Miscellaneous Witnesses, some of whom might also be expected to present crime-base evidence);

CONSIDERING that a similar number of Rule 92 bis witnesses (that is, 61 in total) would be appropriate in this context;

CONSIDERING the timing of the present notice given to the Prosecution of the change in the Chamberís position on the overall number of Rule 92 bis witnesses it is willing to admit;


(1) The admissible number of additional Rule 92 bis Prosecution witnesses (not counting the number of such witnesses admitted as at the date of this order or the prospective witnesses shown in the non-municipality categories of the December 2003 list) is hereby reset at 61;7

(2) The Prosecution should inform the Chamber whether it wishes to reconsider any aspect of the Rule 92 bis motions currently pending before the Chamber.


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

Judge Alphons Orie
Presiding Judge

Dated this 19th day of July 2004
At The Hague
The Netherlands

[Seal of the Tribunal]
1. Decision on Prosecution Motions for Judicial Notice of Adjudicated Facts and for Admission of Written Statements of Witnesses Pursuant to Rule 92 bis, para. 26.
2. "The length of the trials, the amount of evidence, and the complexity of the proceedings in this jurisdiction, ha[ve] made it necessary for Trial Chambers to consider expeditious methods for the presentation of evidence, whilst at all times ensuring that the trial is fair Ė both to the accused and Prosecution. The proper application of Rule 92 bis is one such method by which this may be achieved": Prosecutor v. Milosevic, Decision on Prosecution Motion for the Admission of Transcripts in Lieu of Viva Voce Testimony Pursuant to 92 bis (D) Ė Foca Transcripts, 30 June 2003, para. 25.
3. See Rule 89(F) of the Tribunalís Rules and Prosecutor v. Galic, Decision on Interlocutory Appeal Concerning Rule 92 bis (C), 7 June 2002, para. 12.
4. Prosecutor v. Milosevic, Decision on Prosecutionís Request to Have Written Statements Admitted Under Rule 92 bis, 21 March 2002, para. 5.
5. "The Trial Chamber notes that while Rule 92 bis permits for the admission of cumulative evidence on matters other than the acts and conduct of the accused through written statements, this Rule should not be interpreted by any of the parties to these proceedings as an invitation to tender unnecessarily cumulative or repetitive evidence. ... The admission of unnecessarily cumulative or repetitive evidence may affect the expeditious nature of the proceedings, and therefore will not be admitted": Prosecutor v. Blagojevic and Jokic, First Decision on Prosecutionís Motion for Admission of Witness Statements and Prior Testimony Pursuant to Rule 92 bis, 12 June 2003, para. 20, emphasis in original.
6. Another 92 bis witness, Jovica Radojko, who was admitted on the condition that he be cross-examined, was withdrawn by the Prosecution.
7. For a total of 94 Rule 92 bis Prosecution witnesses.