STAKIC - IT-97-24-PT

• "PROVISIONAL ORDER ON THE STANDARDS GOVERNING THE ADMISSION OF EVIDENCE AND IDENTIFICATION" 25 FEBRUARY 2002
• "ORDER FOR FILING OF MOTIONS AND RELATED MATTERS" 7 MARCH 2002

"Provisional Order on the Standards Governing the Admission of Evidence and Identification"

25 February 2002
Judge Schomburg, Pre-Trial Judge

The Order

The pre-trial Judge first referred to the Order of Trial Chamber II dated 15 February 2002 in the case The Prosecutor v. Radoslav Brdjanin and Momir Talic1. Judge Schomburg adopted the guidelines set forth in the Order as provisional rules and invited the parties to submit their comments on the provisional rules provided in the Annex to the Order2. The pre-trial Judge found that the probative value of a courtroom identification was "rather limited." Judge Schomburg stated that he intended to order that "[i]n case a victim or a witness shall be called upon to determine whether a person […] can be identified, before the examination, a formal line-up must be conducted, at the request of a party or ex officio." For the purposes of a line-up, the Trial Chamber shall appoint a Presiding Officer.

The Annex

The pre-trial Judge indicated that ten guidelines would govern the admissibility of evidence in this case. Judge Schomburg stated inter alia that the practice would be "in favour of admissibility as the rule" (guideline no. 1). He emphasised that Trial Chamber II had "an inherent and duty to ensure that evidence, which qualifies for admission under the Rules" would be admitted and also underscored that "[i]t should always be kept in mind that the parties may be called upon by the Trial Chamber to provide a minimum of proof that would be sufficient to constitute a prima facie indicia of reliability if the document so warrants" (guideline no. 10). Judge Schomburg adopted the guidelines set forth in the Order as provisional rules and invited the parties to submit their comments on the provisional rules provided in the Annex to the Order3.

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1. The Prosecutor v. Radoslav Brdjanin and Momir Talic ("Krajina"), Case No. IT-99-36-T, Trial Chamber II, Order on the Standards Governing the Admission of Evidence, 15 February 2002 (hereinafter the "Brdjanin and Talic Order", summarised in this issue of the Judicial Supplement).
2. See The Prosecutor v. Milomir Stakic (“Prijedor”), Case No. IT-97-24-T, Trial Chamber II, Order on the Standards Governing the Admission of Evidence, 16 April 2002, in which the Trial Chamber confirmed the Provisional Order.
3. Regarding the application of this finding to the Prosecution only, see the Brdjanin and Talic Order.

"Order for Filing of Motions and Related Matters"

7 March 2002
Judge Schomburg, Pre-Trial Judge

The Reasoning

Judge Schomburg stated that he wished "to regulate the filing of and responses to motions", considered that "expediency forms part of the concept of fair trial" and took "into account the accused's right 'to defend himself in person', pursuant to Article 21(4)(d) of the Statute"1.

The Order

Pursuant to Rule 54 of the Rules of Procedure and Evidence2, the pre-trial Judge ordered that:

(1) no written Motion shall be filed on a confidential basis unless the pre-trial Judge or another Judge of the Trial Chamber grants leave to do so. Applications for leave must be presented with the grounds stated and may be filed ex parte. The Trial Chamber drew up a list of filings excluded from the requirement that leave be sought before such applications may be filed on a confidential basis, i.e.:

(i) all ex parte applications3 whatever their nature;
(ii) all applications which relate to on-going investigations, pending Indictments and sealed Indictments;
(iii) all inter partes applications for witness protection of specific persons; and
(iv) all responses to confidential Motions and all applications relating to decisions of the Trial Chamber on confidential Motions or hearings4.

(2) there shall "be no oral argument on the motion unless specifically requested by counsel for either party and approved by the Trial Chamber, taking into account the requirement of a fair and expeditious trial"5.

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1. "In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality […] to defend himself in person […]".
Regarding the right of the accused to defend himself in person, see The Prosecutor v. Slobodan Milosevic ("Kosovo"), Case No. IT-99-37-PT, Trial Chamber III, Order inviting Designation of Amicus Curiæ, 30 August 2001 (summarised in Judicial Supplement No. 26).
2. "At the request of either party or proprio motu, a Judge or a Trial Chamber may issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial."
3. Regarding the definition of an ex parte application, see The Prosecutor v. Radoslav Brdjanin and Momir Talic ("Krajina"), Case No. IT-99-36-PT, Trial Chamber II, Decision on Second Motion by Prosecution for Protective Measures, 27 October 2000 (summarised in Judicial Supplement No. 19), footnote 8.
4. See The Prosecutor v. Radoslav Brdjanin and Momir Talic ("Krajina"), Case No. IT-99-36-PT, Trial Chamber II, Decision on Motion by Prosecution for Protective Measures, 3 July 2000 (summarised in Judicial Supplement No. 18), paras. 63 and 64.
See also The Prosecutor v. Vidoje Blagojevic et al. ("Srebrenica-Zvornik Brigade"), Case No. IT-02-53-PT, Trial Chamber II, Order for Filing Motions, 26 February 2002.
5. Article 21(2) of the Statute provides inter alia that "[i]n the determination of charges against him, the accused shall be entitled to a fair and public hearing".
Regarding the right of parties to be heard on their Motions, see The Prosecutor v. Goran Jelisic ("Brcko"), Case No. IT-95-10-A, Appeals Chamber, Judgement, 5 July 2001 (summarised in Judicial Supplement No. 26).