Susica Camp, Prosecutor v. D. Nikolic, Warrant of Arrest, IT-94-2 (ICTY TC, Nov. 04, 1994)

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Lasva Valley, Prosecutor v. Kupreskic et al., Decision on Limitation of Scope of Cross-Examination of Charac Ter Witnesses, IT-95-16 (ICTY TC, Feb. 26, 1999)
IN THE TRIAL CHAMBER

Before: Judge Antonio Cassese, Presiding

Judge Richard May

Judge Florence Ndepele Mwachande Mumba

Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh

Decision of: 26 February 1999

PROSECUTOR

v.

Zoran KUPRESKIC, Mirjan KUPRESKIC, Vlatko KUPRESKIC,
Drago JOSIPOVIC, Dragan PAPIC, Vladimir SANTIC, also known as "VLADO"

___________________________________________________________

DECISION ON LIMITATION OF SCOPE OF
CROSS-EXAMINATION OF CHARACTER WITNESSES

___________________________________________________________

The Office of the Prosecutor:

Mr. Franck Terrier
Mr. Michael Blaxill

Counsel for the Accused:

Mr. Ranko Radovic, for Zoran Kupreskic
Ms. Jadranka Slokovic-Glumac, for Mirjan Kupreskic
Mr. Borislav Krajina, Mr. Zelimir Par, for Vlatko Kupreskic
Mr. Luko Susak, Ms. Goranka Herljevic, for Drago Josipovic
Mr. Petar Puliselic, Ms. Nika Pinter, for Dragan Papic
Mr. Petar Pavkovic, for Vladimir Santic

TRIAL CHAMBER II 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");

BEING SEIZED of a Defence Motion In Limine Re Character/Sentencing Witness (sic) ("Motion") filed by all defence counsel on 16 February 1999 in which defence counsel affirm their intention to call character witnesses to testify both as to the accused’s character and thus propensity to act in conformity therewith, to prove that the accused "would not act as the Prosecution claims", and requests the Trial Chamber to enter an order limiting the cross-examination of such witnesses to "what was asked on direct examination, in keeping with the limited and narrow scope of the character testimony";

BEING SEIZED of the Prosecutor’s Response to the Defence Motion to Limit Cross-examination of Character Witnesses to the Scope of Direct Examination filed on 23 February 1999, in which the Prosecutor submits that the Motion be dismissed on the basis that its purport conflicts with Article 20 of the Statute of the International Tribunal, Rules 89 and 90 of the Rules of Procedure and Evidence of the International Tribunal ("Rules") and the established practice of the International Tribunal relating to the nature of cross-examination;

NOTING that pursuant to Article 21(4)(e) of the Statute each accused is entitled to call such witnesses as he deems appropriate and that the Trial Chamber has so far only called upon the accused to reduce the number of witnesses, pursuant to Rule 73 ter of the Rules of Procedure and Evidence ("Rules"),

NOTING FURTHER the Decision on Evidence of the Good Character of the Accused and the Defence of Tu Quoque of 17 February 1999, in which the Trial Chamber has indicated that

[…] although it will permit each defence counsel to call at least one exemplary character witness, Rule 94 ter should however be applied to admit affidavits of other witnesses to corroborate such character evidence, subject to the absence of objection by the Prosecution to any such affidavit evidence

and requested the accused to thus make use of Rule 94 ter ("Affidavit Evidence") to avoid repetitious testimony, but that the matter of which witnesses to call is ultimately for the accused to decide;

CONSIDERING that the position as to cross-examination of a witness is fully informed by Rule 90(H) of the Rules which reads:

Cross-examination shall be limited to the subject-matter of the direct examination and matters affecting the credibility of the witness. The Trial Chamber may, in the exercise of its discretion, permit enquiry into additional matters as if on direct examination.

CONSIDERING, accordingly, that the Motion calls for a departure from the express terms of Rule 90(H) of the Rules;

CONSIDERING FURTHER the import of Rules 90(G) and 89(C) as it relates to the said discretion of the Trial Chamber to regulate the manner of cross-examination;

CONSIDERING, accordingly, that while in principle cross-examination will be limited to the subject-matter of the direct examination and matters affecting the credibility of the witness, the Trial Chamber retains the discretion to grant leave to the cross-examining party to enquire into additional matters as if on direct examination;

FOR THE ABOVE REASONS,

REJECTS the Motion.

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

_________________________

Antonio Cassese

Presiding Judge

Dated this twenty-sixth day of February 1999,

At The Hague,

The Netherlands.

[Seal of the Tribunal]

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