3 September 1998
Trial Chamber I (Judges Jorda [Presiding], Riad and Shahabuddeen)

The Arguments of the Parties

By Motion filed under seal on 10 August 1998, the Defence alleged that the Prosecution had failed to provide "(...) evidence in respect of certain legal elements on which the offences indicated in Articles 2 ["Grave breaches of the Geneva Conventions of 1949"], 3 ["Violations of the laws or customs of war"], 5 ["Crimes against humanity"] and 7 ["Individual criminal responsibility"] of the Statute of the Tribunal are based, such articles being mentioned in the indictment". In particular, the Defence was of the opinion that "(...) the Prosecution has confused the elements which constitute offences covered by Article 7(1) [responsibility as an individual] of the Statute with those covered by Article 7(3) [responsibility as a superior]."

"(...) [I]n the interests of justice (...) as well as (...) of a fair and expeditious trial", the Defence requested "(...) the dismissal of fifteen of the twenty counts in the indictment", i.e. "of all the charges relating to the existence of an international armed conflict, [of] those concerning the direct responsibility of the accused, and [of] the allegations in respect of the use of human shields and interference with humanitarian assistance". It further sought considerable limitation of the scope of the five remaining counts.

In its Response to the Motion, dated 27 August 1998, the Prosecution argued that the Defence had "(...) essentially submitted a legal brief (...) [which] is inappropriate in a motion to dismiss certain counts since such a motion should deal only with evidence relating to the acts ascribed to the accused". The Prosecution also asserted that it had "(...) presented sufficient evidence in respect of the acts", and that "(...) the Defence arguments on [the count relating to interference with humanitarian assistance] should not have appeared in the Motion because they represent an objection to the evidence presented (...) which should have been raised at the time the element was presented and not in a motion requesting the dismissal of some of the counts".

Legal Findings

Defining the standard to be applied for ruling on the admissibility of the Motion, the Trial Chamber determined that it "(...) must satisfy the level required either by the only text covering the Motion presented to [the Trial Chamber], that is, Rule 98 bis ["Motion for Judgement of Acquittal"], or by the decisions rendered specifically to respond to this type of motion; (...) it follows therefrom that the required standard is that the evidence presented by the Prosecution be insufficient to justify from this time forth a conviction for all or part of the counts concerned".

"(...) [U]nder those conditions", the Chamber continued, "(...) the Trial Chamber could grant the request of the accused and order the dismissal of some of the counts of the indictment solely on the basis of Rule 54 ["General Rule"], only if it deemed that the Prosecution had so clearly failed to satisfy its obligation as the prosecuting party, that, commencing with this stage of the proceedings, it is no longer even necessary to review the Defence evidence regarding the counts covered in the Motion".

"Considering that such a standard severely narrows the scope of Rule 54" and "(...) limit[ing] the review of the Motion: (...) in fact[,] to the mere hypothesis that the Prosecutor omitted to provide the proof for one of its counts; (...) in law[,] to the mere hypothesis that the Prosecution failed to show a serious prima facie case in support of its claims", the Trial Chamber concluded that "(...) no count or part of such count may be dismissed from the trial at this stage" and unanimously rejected the Motion.

"Decision on the Defence Motion for Sanctions for
the Prosecutor’s Continuing Violation of Rule 68"

28 September 1998
Trial Chamber I (Judges Jorda (Presiding), Riad and Shahabuddeen)

The Motion

In its Motion dated 10 July 1998, the Defence alleged that the Prosecution had continuously failed to meet its obligation pursuant to Rule 68 to disclose exculpatory evidence. As compensation, the Defence requested that the Prosecutor’s Motion regarding the disclosure of Defence evidence be dismissed.

The Decision

Noting that "(...) the Prosecutor made several proposals to relieve the possible prejudice suffered by the Defence (...)", the Trial Chamber considered that "(...) the Defence, while repeating its allegations, was not responsive to the proposals of the Prosecutor or to those of the Trial Chamber (...)". Deeming "(...) that the possible violation by one party of its disclosure obligations in no way relieves the other party of its own disclosure obligations", and that "(...) in general, (...) the possible violations of Rule 68 are governed less by a system of "sanctions" than by the Judges’ definite evaluation of the evidence presented by either of the parties, and the possibility which the opposing party will have to contest it", the Trial Chamber rejected the Defence Motion.

"Order for a Witness to Appear"

5 November 1998
Trial Chamber I (Judges Jorda (Presiding), Riad and Shahabuddeen)

Background

The issue of disclosure of evidentiary material by the Republic of Croatia to the Prosecution in the Blaskic case has been ongoing since January 1997. At stake are both the Tribunal’s power to issue binding orders pursuant to Article 29 of the Statute and Rule 54 and Croatia’s national security interests which Croatia contends would preclude compliance with such an order. In its Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997 of 29 October 1997 in the Blaskic case (hereinafter "the Subpoena Judgement"), the Appeals Chamber determined a number of requirements applicable to such orders of the Tribunal.

On 30 January 1998, Trial Chamber I issued a confidential ex parte Order to Croatia to provide to the Prosecution specified documents believed to be of evidentiary value. Croatia sought review of this Order pursuant to Rule 108 bis, arguing, inter alia, that the Order was inconsistent with the Subpoena Judgement of the Appeals Chamber. On 26 February 1998, the review was granted and the Appeals Chamber suspended the execution of the Order. The matter was referred back to the Trial Chamber so that it could hear arguments regarding the Order presented by Croatia and the parties to the trial.

After having heard those arguments, the Trial Chamber received a further ex parte sealed Request from the Prosecutor that it order Croatia to disclose to the Prosecutor a limited number of specific documents. The Trial Chamber considered the criteria specified in the Subpoena Judgement of the Appeals Chamber: the specificity of the documents, the relevance of the documents to the trial, the relative ease of execution of the order, and the requirement that sufficient time be given to the State so that it may comply. Having found that the Prosecutor’s request complied with the criteria, on 21 July 1998, the Trial Chamber pursuant to Article 29 of the Statute and Rule 54 issued the Order for the production of documents.

The Order

Claiming it was unable to produce certain categories of evidence for reasons of national security, Croatia proposed that a duly authorised government official appear to explain its concerns.

Accordingly, on 5 November 1998, Trial Chamber I ordered, pursuant to Article 29 of the Statute and Rule 54, that a representative of the State be heard as a witness. The Trial Chamber did not order the appearance of the witness. During this hearing the national security concerns which would preclude Croatia from providing the requested materials had to be presented. In this regard, the Trial Chamber considered that it expected Croatia not to impose any limitations on the authority of the witness to speak freely. Apart from the witness, a qualified representative of Croatia was also allowed to be present and to make a statement under the supervision of the Trial Chamber. It was decided that the hearing would be ex parte and, if so requested by either the witness or the State representative, closed to the public.