Case No.: IT-04-74-PT
IN TRIAL CHAMBER II
Judge Jean-Claude Antonetti, Presiding
Judge Árpád Prandler
Judge Stefan Trechsel
Mr. Hans Holthuis
26 April 2006
DECISION ADOPTING GUIDELINES ON CONDUCT OF TRIAL PROCEEDINGS
Office of the Prosecutor:
Mr. Kenneth Scott
Mr. Daryl Mundis
Counsel for Accused:
Mr. Michael Karnavas and Ms. Suzana Tomanovic for Jadranko Prlic
Ms. Senka Nozica and Mr. Peter Murphy for Bruno Stojic
Mr. Bozidar Kovacic and Ms. Nika Pinter for Slobodan Praljak
Ms. Vesna Alaburic for Milivoj Petkovic
Mr. Tomislav Jonjic for Valentin Coric
Mr. Fahrudin Ibrisimovic and Mr. Roger Sahota for Berislav Pusic
1. THIS 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") will commence trial hearings in the case Prosecutor v. Jadranko Prlic, Bruno Stojic, Slobodan Praljak, Milivoj Petkovic, Valentin Coric, and Berislav Pusic on 26 April 2006. It is the responsibility of the Chamber to ensure that the trial is conducted in a fair and expeditious manner, in accordance with the Statute and the Rules of Procedure and Evidence of the Tribunal, with full respect for the rights of the Accused and due regard to the protection of victims and witnesses. Furthermore, Rule 73 bis of the Rules of Procedure and Evidence ("Rules") empowers the Chamber, at its pre-trial conference, to (a) determine the number of witnesses to be called by the Office of the Prosecutor ("Prosecution’), (b) determine the time available to the Prosecution for its presentation of evidence, and (c) fix a number of crime sites or incidents comprised in one or more of the charges in respect of which evidence may be presented by the Prosecution. The Chamber also takes note of the Draft Guidelines for the Admissibility of Evidence and to Ensure Efficient Conduct of Proceedings, issued by the pre-trial Judge on 1 March 2006, and the comments thereon provided by the parties.1
2. With these considerations in mind, and taking the view that it would be unreasonable for this trial to continue for longer than three years, it is appropriate for the Chamber to set out the manner in which it expects the trial proceedings to be conducted. These guidelines remain subject to future variation by the Chamber as the trial progresses, and further guidelines will be issued relating to the presentation of evidence for the Defence following the completion of the Prosecution case-in-chief.
3. The estimated length of the Prosecution case has been the subject of discussion at various status conferences held during the pre-trial phase. Following the filing of the Prosecution’s pre-trial brief and lists of witnesses and exhibits pursuant to Rule 65 ter of the Rules, the pre-trial Judge indicated that the proposed number of witnesses and estimations of time required for their examination were unacceptably high, and the Prosecution was invited to reconsider its lists. Subsequently, at a status conference held on 12 April 2006, the Prosecution indicated that it may be able to cut down its case, without specifying how many or which witnesses it proposed to drop. The Prosecution also proposed a plan to assist in ensuring that the trial as a whole could be completed in a reasonable time, which the Chamber has given careful consideration.
4. While some of the proposals put forward by the Prosecution have merit, the Chamber is unable to accept the plan in its entirety as being consistent with its duty under Article 20(1) of the Statute. Indeed, there are aspects of the plan that would be impossible for the Chamber to apply.2 This Trial Chamber, therefore, will exercise its powers under Rule 73 bis of the Rules, not by making a determination of the number of witnesses that the Prosecution may call, or limiting the presentation of Prosecution evidence to specific geographic locations and incidents described in the Indictment, pursuant to Rule 73 bis (C)(ii), but rather by setting the maximum time available to the Prosecution for the presentation of its evidence. It should be noted that, in advance of the commencement of the Defence case, the Chamber may also choose to limit the time available to the Defence, pursuant to Rule 73 ter (E).
5. The Chamber further notes the discussion that was held at the 12 April status conference, concerning the time available to the Defence for cross-examination of Prosecution witnesses. It is always a difficult task in advance of the examination of a witness to determine the appropriate amount of time for his or her cross-examination. Much depends on what the witness says in the court-room and how it affects the Accused. In a case such as this, involving multiple Accused, it is particularly difficult to ascertain the time required for cross-examination when each of the Accused might have overlapping or different interests in each individual witness. The Chamber therefore will not, at the present time, set a specific time limit on the Defence for the cross-examination of Prosecution witnesses. However, as a guideline, the Chamber bases its calculations of time on the use of equal time by the combined Defence for the six Accused for their cross-examination to the time taken by the Prosecution in its examination-in-chief. The Defence are advised to divide this time among themselves, depending on the nature of the witness and content of his or her testimony. The Defence are also reminded of their obligations under Rule 90(H) of the Rules, and must avoid repetitive or irrelevant questioning at all times. The Chamber notes that Rule 90(F) requires a Chamber to exercise control over the interrogation of a witness so as to avoid the needless consumption of time.
6. A system for monitoring the use of time shall be established by the Registry, which will be responsible for recording time used: (a) by the Prosecution for its examination-in-chief; (b) by each of the Defence for cross-examination; (c) by the Prosecution for re-examination; (d) by the Judges for putting questions to witnesses; and (e) for all other matters, including procedural matters. Regular reports on the use of time shall by compiled by the Registry in conjunction with the Chamber, which shall be provided periodically to the parties. The Chamber shall continually monitor the use of time, and may make further orders, as it considers necessary, concerning time used by the Prosecution or the Defence.
7. Having considered the sitting schedule discussed at the 12 April 2006 status conference, the Chamber notes that trial proceedings will be conducted for 20 hours each week. Based on a maximum of 46 weeks in a year, a maximum total of 920 hours of court-room time is therefore available per year.3 In light of the Trial Chamber’s general position that the trial should not exceed three years in its entirety, it is reasonable to require the Prosecution to complete its presentation of evidence within one year. Therefore, factoring in the time required for cross-examination, Judges’ questions, and procedural matters, the Prosecution is allocated a maximum of 400 hours to present its evidence (examination-in-chief and re-examination). This time does not include time available for any Prosecution evidence in rebuttal, which will be the subject of a further order at the relevant time. Nor does it include time used by the Judges to put questions to witnesses, or procedural matters, which shall be recorded separately, as outlined above.
8. The size and nature of the present case is such that a significant amount of documentary and other evidence will be tendered by the parties. However, it would not facilitate the completion of the trial within a reasonable amount of time to set limits on the amount of time available for in-court testimony and then to flood the Chamber with documentary evidence, which must be carefully analysed and assessed in order for a proper determination of the case. The Prosecution and the Defence must therefore be selective in their tendering of documents and other exhibits, and the Chamber will be rigorous in its application of Rule 89(C) and the requirements of relevance and probative value.
9. Pursuant to Article 20(1) of the Statute, and Rules 54, 73 ter, 89, 90 and 92 bis of the Rules, the Trial Chamber therefore ADOPTS the following guidelines to govern the presentation of evidence and conduct of the proceedings and hereby ORDERS all parties to the proceedings to comply with them throughout the duration of the case, subject to any further orders by the Trial Chamber.
I. Use of Time by the Prosecution
- The Prosecution shall have a maximum total of 400 hours for the presentation of its evidence, including both examination-in-chief and re-examination. At the present stage, no limit shall be placed on the time available to the combined Defence for its cross-examination of Prosecution witnesses. However, the Defence teams are requested to divide the cross-examination among them, to make most efficient use of time and to avoid repetition, and the Chamber will make future orders regarding the time available for cross-examination by the Defence.
- The Registry shall record the time used: (a) by the Prosecution for its examination-in-chief; (b) by each of the Defence for cross-examination; (c) by the Prosecution for re-examination; (d) by the Judges for putting questions to witnesses; and (e) for all other matters. Regular reports on the use of time shall by compiled by the Registry in conjunction with the Chamber, which shall be provided periodically to the parties.
II. Questioning of witnesses
- Article 21 (e) of the Statute reiterates the right of the accused to examine, or have examined, the witnesses against him. In the present case, the Accused are represented by counsel. Witnesses shall primarily be questioned by counsel for the Accused. In exceptional circumstances and after authorisation of the Chamber, an Accused may directly address a witness and put questions to him or her.
- In light of the importance of concentrating the evidence on the most important points in dispute between the parties, and avoiding delays, the parties are advised to put clear and concise questions to the witnesses. When presenting a witness with something that he or she has previously stated during his testimony, or in a written statement, the parties should avoid paraphrasing the witness and should rather quote directly from the transcript or prior statement, giving relevant page numbers. A prior witness statement may be used to refresh the memory of a witness, whether or not such statement has been admitted into evidence.
- The Chamber may accept hearsay and circumstantial evidence, which shall be assessed during its deliberations and given appropriate weight in the context of the trial record as a whole.
- Rule 90(H)(i) of the Rules requires that the cross-examination of a witness be limited to the subject-matter of his or her evidence-in-chief, and matters affecting the credibility of the witness. The Rule also states that where a witness is able to give evidence that is relevant to the case for the cross-examining party, he or she may also be questioned on the subject-matter of that case. The Chamber may require the cross-examining party to explain the relevance of a particular question put to a witness to the subject-matter of that party’s case. The Trial Chamber will not permit lines of cross-examination that fall outside the above parameters, and may disallow improper or unfair questions, as well as those that are repetitive or irrelevant. The party cross-examining a witness may confront that witness with the testimony of another witness, in order to challenge his or her credibility.
- Re-examination of a witness shall be limited to matters raised in cross-examination, and questions put during re-examination should be formulated in a clear and succinct manner.
II. Admission of evidence
- Proposed documentary and other evidence may be submitted in advance of or during the trial and marked for identification.4 Such proposed evidence is not admitted until the Chamber makes a ruling on admissibility, either orally or in writing, at which point it will be given an official exhibit number.
- The opposing party or parties may object to the admission of a particular item of proposed evidence tendered by a party on grounds of relevance or probative value (including authenticity). If a party challenges the authenticity of a piece of proposed evidence, it must specify its reasons for doing so. Upon hearing the objections of the party challenging a piece of proposed evidence, the Chamber shall rule on its admissibility. The weight to be ascribed to that piece of evidence shall be determined by the Chamber during its deliberations, in the context of the trial record as a whole.
- As a general rule, the party tendering a piece of evidence shall to do so through a witness who is either the author of that evidence, or who can speak to its origins and content. However, there will be no blanket prohibition on the admission of evidence simply on the grounds that the purported author of that evidence has not been called to testify.
- When an expert witness produces a report, that report may be admitted into evidence, subject to the requirements of relevance and probative value. As a general rule, the Trial Chamber will only admit the report and further material that is put to the expert during his oral testimony. The sources used by an expert witness in compiling his or her report will not be admitted wholesale. Expert reports should, however, be fully referenced in order to facilitate the Chamber’s determination of their probative value and, ultimately, the weight to be ascribed to them.
- The Trial Chamber shall ensure the application of Rule 95, so that involuntary statements, obtained from witnesses by oppressive means, shall not be admitted as evidence. A party challenging the voluntary nature of a statement bears the responsibility of demonstrating that it was not made voluntarily.
- A witness whose statement is offered under Rule 89(F) must always be available for cross-examination.
- Should the Prosecution or the Defence wish to provide the Chamber with a dossier relating to a particular geographic location in the Indictment where crimes are alleged to have been committed, it may do so. A list of proposed items to be included in a dossier may be submitted at any time during the trial. However, these proposed items will be subject to the normal procedure for admission of evidence. Therefore, in order to ensure that a dossier only contains items admitted as evidence, it should not include proposed witness evidence or exhibits until after that evidence has been tendered and admitted by the Chamber. As a consequence, the content of a dossier will evolve during the proceedings.
- provided that the dossier is given, either electronically or in hard copy, to the Chamber and opposing party or parties thirty days in advance of its initial discussion in court. The opposing party will then have ten days to object to the admission into evidence of any of the items contained within the dossier, on the basis of relevance or probative value (including authenticity), giving specific reasons for its objections. The Chamber will rule on the admissibility of the documents in the dossier at the appropriate time, either individually or collectively, and the party providing the dossier must specify under which provision of the Rules it offers each of the items in the dossier. Should the dossier contain statements/transcripts offered under Rule 92 bis, the Chamber may require that the relevant witness be brought for cross-examination by the opposing party or parties. The provision of a dossier does not relieve the parties from the task of tendering a piece of evidence through a witness who is either the author of that evidence, or who can speak to its origins and content.
III. Filing of motions and responses
- Motions may be made by the parties, either orally or in writing, during the course of proceedings. When an oral motion is made, the opposing party or parties may be invited to respond orally at that time, or may be granted a time-limit within which to file a written response or make oral submissions. When a motion is made in writing, the opposing party or parties will have fourteen days within which to file any response.
- Replies to responses will not be accepted by the Chamber unless compelling circumstances arise. A party wishing to make such a reply must seek the leave of the Chamber to do so, specifying why the circumstances are sufficiently compelling for the Chamber to grant leave. Only once such leave is granted should the party file the substance of its reply. Should a party seek leave from the Chamber to file a reply, it should do so within seven days from the expiration of the fourteen day deadline for the filing of responses. The Chamber will not accept addenda or any other further submissions relating to motions or responses.
- Wherever possible, the Defence should file joint motions and responses. The deadline for any Accused to join a motion filed by a co-Accused shall be seven days from the filing of that motion. The Prosecution should file a single response, within fourteen days of the initial motion.
- The Chamber will issue oral or written decisions on all motions.
IV. Use of E-Court System
- The trial will be conducted using the electronic court management system, and the Provisional Practice Direction on the Application of an Electronic Court Management System shall govern the use of the system and the various responsibilities of the parties. The parties must also provide to the presiding Judge one hard copy of all documents produced in court at the same time as such documents are published on the e-court system. All other participants in the trial will be responsible for producing their own hard copies from the e-court system.
V. Witness and exhibit chart
- On an ongoing basis, the Prosecution should file charts linking exhibits to witnesses, as it provided on 18 April 2006. Such charts should be provided at least two weeks in advance of the date on which the first witness named in the chart is due to testify.
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- The Trial Chamber may alter any of the above practices and guidelines, either via written or oral order as the trial progresses, in order to ensure that the proceedings are conducted in a fair and expeditious manner.
Done in both English and French, the English text being authoritative.
Judge Jean-Claude Antonetti
Dated this twenty-sixth day of April 2006
At The Hague
[ Seal of the Tribunal]
Prosecution Submission concerning "Projet de lignes directrices destinees a regir l’admissibilite des elements de prevue," Order for Measures and Scheduling Order dated 23 February 2006, Prlic Response on Questioning by Accused and Prlic Request for Variance of Scheduling, 10 March 2006; Slobodan Praljak’s Submission concerning the Pre-Trial Judge’s 1 March 2006 “Draft Guidelines for the Admissibility of Evidence and to Ensure Efficient Conduct of the Proceedings," 14 March 2006; Joint Observations of the Defence for the Accuse Stojic and Petkovic regarding the Pre-trial Judge’s Draft Guidelines for the Admissibility of Evidence and to Ensure Efficient Conduct of the Proceedings, of 1 March 2006, 15 March 2006; Jadranko Prlic’s Submissions to the Trial Chamber’s Draft Guidelines for the Admissibility of Evidence and to Ensure Efficient Conduct of the Proceedings, 15 March 2006; Submission on behalf of Berislav Pusic regarding Draft Guidelines for the Admissibility of Evidence and to Ensure Efficient Conduct of the Proceedings, 15 March 2006; The Accused Valentin Coric’s Notice of Joinder to Jadranko Prlic’s Submissions to the Trial Chamber’s Draft Guidelines for the Admissibility of Evidence and to Ensure Efficient Conduct of the Proceedings, 16 March 2006 .
2. For example, the plan requests an assurance from the Trial Chamber on the position that will be taken by the Appeals Chamber on the sufficiency of evidence. See Transcript (12 April 2006), T.637.
3. On the basis of 6 weeks per year of court recess time.
4. This does not limit the obligations of the parties to provide all documents and other material intended to be offered as evidence at trial to the Registry for entering into the e-court system, as outlined in the Provisional Practice Direction on the Application of an Electronic Court Management System, IT/239 Rev. 1, 6 October 2005.