Case No. IT-95-13/1-PT


Judge Wolfgang Schomburg, Presiding
Judge Florence Ndpele Mwachande Mumba
Judge Carmel Agius

Mr. Hans Holthuis

Decision of:
7 May 2003





The Office of the Prosecutor:

Mr. Jan Wubben
Mr. Mark J. McKeon

Counsel for the Accused:

Mr. Miroslav Vasic


TRIAL CHAMBER II ("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 Requesting the Determination of Rules of Communicating with Potential Witnesses of the Opposite Party" and Confidential Annex thereto ("Motion"), filed on 31†March†2003 by counsel for Mile Mrksic ("Defence");

NOTING that in the Motion the Defence requests that the Pre-Trial Judge " establish an unambiguous and precise method of communication between each of the opposing parties to these proceedings and the respective potential witnesses of the opposite side", requiring that:

1) if a potential witness decides to testify for one of the parties and to that effect gives a statement to that party, he or she may not be forced by the opposing party to give an interview to it,

2) the opposing party may only interview the said potential witness with his or her explicit and written consent and

3) should the said potential witness refuse in written form, the requesting party may not serve another request for interview on the said witness in any way whatsoever;1

NOTING the "Prosecutionís Opposition to Defence Motion Requesting the Determination of Rules of Communication with Potential Witnesses of the Opposite Party" and Confidential Annexes A, B, C and D thereto ("Response"), filed on 11†April†2003 by the Office of the Prosecutor ("Prosecution");

NOTING that in its Response the Prosecution submits that the Motion:

1) finds no support in the Statute of the Tribunal ("Statute"), the Rules of Procedure and Evidence ("Rules") or the Tribunalís jurisprudence and

2) would, if granted, impair the Prosecutionís ability to perform the duties assigned to it under the Statute and the Rules and would also impair the ability of Defence counsel to fully investigate the evidence against an accused;2

NOTING the request by the Defence to file a reply,3 and the decision granting the Defence leave to do so;4

NOTING the Defence Reply, filed on 22†April†2003,5 and the concern expressed therein at the serious difficulties the Defence could encounter in terms of meeting and interviewing potential witnesses if the Prosecution were to insist on interviewing them in the face of their refusal to do so and notwithstanding that they may have already given a statement to the Defence;6

RECALLING that, at this stage of pre-trial proceedings, there are only potential witnesses and further that these are not attached to either party;7

RECALLING further that, also because the Tribunal hears cases against accused from all ethnic groups in the former Yugoslavia allegedly having committed crimes falling under its jurisdiction, a witness may be called to testify by the Defence in one case and by the Prosecution in another;8

EMPHASISING that the fact that a potential witness has given a statement to a party to proceedings does not preclude the other party from seeking to interview him or her at this stage of pre-trial proceedings;

CONSIDERING the Prosecutionís responsibility under Article†16 of the Statute for the investigation and prosecution of persons responsible of serious violations of international humanitarian law and its power pursuant to Article†18 of the Statute to question suspects, victims and witnesses, and, pursuant to Rule†39, to summon and question suspects, victims and witnesses;

CONSIDERING that if a potential witness refuses to grant an interview to the Defence, or refuses to respond to a Prosecution summons, that partyís relief lies with the Trial Chamberís power pursuant to Rule†54;

FINDING that the Defence has failed to show how it would be disadvantaged, in view of the fact that its concern applies equally to the Prosecution;

CONSIDERING that prior decisions of the Tribunal placing restrictions upon the ability of a party to contact witnesses were rendered in the context of the witnessesí protection pursuant to Rule†75 and were for the most part limited to those witnesses whose identity had been disclosed by the opposing party through its witnessesí lists, and thus have no application to the present case at this stage of pre-trial proceedings;9

CONSIDERING further that at the appropriate stage and should this be necessary, the Trial Chamber will see to it that the appropriate guidelines are in place;

EMPHASISING that nothing in this Decision is intended to impinge on the Trial Chamberís power to order appropriate measures for the privacy and protection of victims and witnesses pursuant to Article†22 of the Statute and to Rule†75;


PURSUANT TO Rule†73 of the Rules;

HEREBY dismisses the Motion.


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

Dated this seventh day of May 2003,
At The Hague
The Netherlands

Wolfgang Schomburg
Presiding Judge

[Seal of the Tribunal]

1 - Motion, pars†7 and 15.
2 - Response, pars†1, 6, 9 and 17.
3 - Defence Motion Requesting Leave to Reply to the "Prosecutionís Opposition to Defence Motion Requesting the Determination of Rules of Communication with Potential Witnesses of the Opposite Party", 14†Apr†2003.
4 - Decision on Defence Request for Leave to File a Reply, 15†Apr†2003 ("Decision to Grant Leave").
5 - Defence Reply to "Prosecutionís Opposition to Defence Motion Requesting the Determination of Rules of Communication with Potential Witnesses of the Opposite Party", 22†Apr†2003 ("Reply"). The Reply was received within the time-limit set by the Pre-Trial Judge in the Decision to Grant Leave.
6 - Reply, pars 4 and†5.
7 - No list of proposed witnesses has been filed pursuant to Rule†65†ter, since the Trial Chamber remains seised of a preliminary motion pursuant to Rule†72. See also transcript of the Status Conference of 5†March†2003, page 47.
8 - See eg Prosecutor v Milorad Stakic, Case IT-97-24, trial transcript of 20†Feb†2003, page 12475.
9 - Prosecutor v Zejnil Delalic, Zdravko Mucic, Hazim Delic and Esad Landzo, Case†IT-96-21-T, Decision on the Defence Motion to Compel the Discovery of Identity and Location of Witnesses, 18†Mar†1997; Prosecutor v Milan Kovacevic, Case†IT-97-24-PT, Decision on Prosecution Motion to Protect Victims and Witnesses, 12†May†1998; Prosecutor v Darko Mrdja, Case†IT-02-59-PT, Order on Prosecutionís Motion for Protective Measures, 8†July†2002; Prosecutor v Vidoje Blagojevic, Dragan Obrenovic, Dragan Jokic and Momir Nikolic, Case†IT-02-60-T, Order for Protective Measures and Non-Disclosure to the Public, 18†Feb†2003. Furthermore, and according to the Prosecution, the witnesses whom it sought to interview, thus giving rise to the Defence Motion, were not first identified in any communication by the Defence, but were in fact independently identified by the Prosecution as potential witnesses. Response, footnotes†19 and 23.