Judge David Hunt, Presiding
Judge Fouad Riad
Judge Rafael Nieto-Navia
Judge Mohamed Bennouna
Judge Fausto Pocar

Ms Dorothee de Sampayo Garrido-Nijgh

Order of:
9 May 2000



Zejnil DELALIC, Zdravko MUCIC (aka "PAVO"), Hazim DELIC
and Esad LANDZO (aka "ZENGA")




Office of the Prosecutor:

Mr Upawansa Yapa
Mr Christopher Staker
Mr Norman Farrell
Mr Roeland Bos

Counsel for the Defence:

Mr John Ackerman for Zejnil Delalic
Mr Tomislav Kuzmanovic and Mr Howard Morrison for Zdravko Mucic
Mr Salih Karabdic and Mr Tom Moran for Hazim Delic
Mr Peter Murphy for Esad Landzo


THE APPEALS 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 ("International Tribunal");

NOTING the "Defendant Esad Landzo’s Notice of Appeal", filed on 1 December 1998, and the "Brief of Appellant, Esad Landzo, on Appeal Against Conviction and Sentence", filed on 2 July 1998, wherein he sets out his grounds of appeal, which include, inter alia, that his right to a fair and expeditious trial pursuant to Articles 20 and 21 of the Statute of the International Tribunal "were violated when verdict and sentence were rendered by a Trial Chamber whose presiding Judge was permitted to sleep through much of the proceedings" ("Fourth Ground of Appeal");

BEING SEIZED of the "Motion for Permission to Allow Expert Witness to View Extracts Tapes and to Admit Expert Opinion as to Sleep Disorders (‘Landzo’s Fourth Ground of Appeal’)" filed on behalf of Esad Landzo (the "Appellant") on 27 April 2000 ("Motion");

NOTING the "Prosecution Response to Esad Landzo’s Motion for Permission to Allow Expert Witness to View Extracts Tapes and to Admit Expert Opinion as to Sleep Disorders, and Prosecution Motion for Clarification" filed by the Office of the Prosecutor ("Prosecution") on 3 May 2000 ("Prosecution Response");

NOTING the "Order on the Second Motion to Preserve and Provide Evidence" issued on 15 June 1999 ("Order of 15 June") in which the Appeals Chamber ordered, inter alia, that counsel or co-counsel for the Appellant be permitted to view videotapes of proceedings produced by Camera 3 in Courtroom I and Camera 3 in Courtroom III ("Trial Videotapes") during the trial of the Appellant, subject to a number of conditions, including that only counsel or co-counsel for the Appellant be permitted to view the Trial Videotapes relating to closed session proceedings, and that no audio or visual copies of the video-tapes shall be provided to counsel or co-counsel for the Appellant or any other person;

NOTING that Extracts Tapes have been compiled containing the portions of the Trial Videotapes upon which both parties rely in relation to the Fourth Ground of Appeal;1

NOTING that the Extracts Tapes are a compilation of the video-taped records of both public and closed sessions of the proceedings prepared for the use of the Appeals Chamber as a convenient way for it to view the material which is relevant to the Fourth Ground of Appeal;

NOTING that the Motion requests that Dr Merrill M. Mitler, described in the Motion as an authority on sleep disorders, be permitted to view, at the Tribunal premises and under the supervision of counsel, the open session portions of the Extracts Tapes in order to enable him to form a view as to whether he can render an expert opinion on "the state of alertness or awareness" of the Presiding Judge during the trial;

NOTING Rule 94 bis (read in conjunction with Rule 107) of the Rules of Procedure and Evidence ("Rules") which provides, inter alia, that "the full statement of an expert witness" must be disclosed to the opposing party as early as possible;

NOTING that the Motion states that, should Dr Mitler be able to render an expert opinion, it would be filed and disclosed to the Prosecution prior to a status conference scheduled for these proceedings on 12 May 2000;

NOTING the Scheduling Order issued by the Appeals Chamber on 6 April 2000, which ordered that the hearing of oral argument in this appeal ("Hearing") will commence at 10 a.m. on 5 June 2000;

NOTING that the Prosecution Response submits that the Appeals Chamber should exercise its discretion to dismiss the Motion on the bases:


(i) that the Motion is untimely, given the length of time that the allegation that the Presiding Judge slept through portions of the trial has been a "live issue" in the appeal;

(ii) that granting the Motion would inevitably cause delay to the hearing of this appeal, as it is questionable that Dr Mitler could produce an expert opinion within the time frame envisaged in the Motion, and that, even if the opinion could be produced within that time frame, fairness would require that the Prosecution be given the opportunity to obtain its own expert advice in order to determine whether it accepts Dr Mitler’s opinion, wishes to cross-examine him and whether it wishes to obtain its own expert evidence in response, a process which would itself take some time and could not realistically be completed prior to the scheduled commencement of the Hearing; and

(iii) that the proposed expert testimony of Dr Mitler is of uncertain value as it would apparently relate to the state of alertness or awareness of the Presiding Judge, whereas the Fourth Ground of Appeal asserts that the Presiding Judge "was permitted to sleep though much of the proceedings", and that, in any event, Dr Mitler would not have access to relevant medical records of the Presiding Judge;

NOTING that the Fourth Ground of Appeal was raised in the Appellant’s Notice of Appeal filed on 1 December 1998, and that an order granting access to the videotaped records of the trial was issued on 15 June 1999;

CONSIDERING that, having regard to the fact that the substantive and evidentiary issues raised by the Fourth Ground of Appeal, including any issue as to the potential value and availability of an expert medical opinion, should have been evident for many months before the Motion was filed, the Motion is untimely;

CONSIDERING HOWEVER that the fact that the Motion was untimely is not of itself a sufficient reason to dismiss a motion seeking to facilitate the production of evidence if that evidence would be relevant and probative and its admission would not cause prejudice to the other parties to the appeal;

CONSIDERING that, should Dr Mitler be able to render an expert opinion which constituted a "full statement" in compliance with Rule 94 bis ("Expert’s Statement"), the Prosecution is entitled to determine whether it wishes to accept the Expert Statement or to cross-examine Dr Mitler, and also to obtain its own expert advice and, if desired, its own Expert’s Statement;

CONSIDERING that, even assuming that Dr Mitler could provide an Expert’s Statement before the Status Conference on 12 May, to allow the Prosecution a reasonable amount of time to respond in the manner outlined would necessarily require the postponement of the scheduled Hearing and thereby cause further delay in the determination of this appeal;

CONSIDERING that to give the Prosecution any shorter period of time in which to respond, for the purpose of retaining the scheduled date for the commencement of the Hearing, would cause prejudice to the Prosecution in the exercise of its prosecutorial role, performed on behalf of the international community;

NOTING the already prolonged pre-appeal period in the present proceedings, which were initiated by notices of appeal filed on 1 December 1998;

NOTING Article 20.1 of the Statute of the Tribunal which requires, inter alia, Trial Chambers to ensure the fair and expeditious trial of all accused before the Tribunal;

CONSIDERING that the right to fair and expeditious trial proceedings necessarily extends to appellate proceedings and that the rights of other appellants would be impaired if the hearing of the present appeal were to be delayed any longer;

AND CONSIDERING that any further delay in the hearing of the appeal in order to permit the Prosecution adequate time to respond would be contrary to the interests of justice;

CONSIDERING FURTHER that the Appellant, who could in the exercise of due diligence have sought orders of the Appeals Chamber to facilitate the making of an Expert’s Statement at an earlier time in these proceedings, cannot now complain of unfairness;2

NOTING that Dr Mitler, a medical expert on sleep disorders, would not have access to any medical records of the Presiding Judge, and did not have an opportunity to conduct a medical examination of the Presiding Judge at the time relevant to the Fourth Ground of Appeal;

CONSIDERING that the weight which could be afforded to any Expert’s Statement produced by Dr Mitler on the basis of a viewing of the Extracts Tapes, in the absence of further medical information of the nature referred to above, is not such as to justify the prejudice to the prosecution and to the other appellants which would be caused by delaying the hearing of the appeal,

HEREBY dismisses the Motion.


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

David Hunt
Presiding Judge

Done this 9th May 2000
At The Hague,
The Netherlands.

[Seal of the Tribunal]

1. See "Order on Esad Landzo’s Motion to (1) Vary In Part Order on Motion to Preserve and Provide Evidence, (2) To be Permitted to Prepare and Present Further Evidence, and (3) That the Appeals Chamber Take Judicial Notice of Certain Facts, and on his Second Motion For Expedited Consideration Of The Above Motion", 4 October 1999, at p 3; "Decision on Request by Esad Landzo for Information Regarding Extracts Tape", 20 April 2000, at pps 4 and 6.
2. See Prosecutor v Tadic, Case No IT-94-1-A, App. Ch., Decision on Appellant’s Motion for the Extension of the Time-Limit and Admission of Additional Evidence, 15 Oct 1998, para 44.