IN THE TRIAL CHAMBER
Before:
Judge Alphons Orie, Presiding
Judge Amin El Mahdi
Judge Joaquín Martín Canivell
Registrar:
Mr Hans Holthuis
Order of:
19 July 2004
PROSECUTOR
v.
MOMCILO KRAJISNIK
___________________________________
ORDER RELATING TO PROSECUTION’S APPLICATIONS TO ADMIT EVIDENCE PURSUANT TO RULE 92 BIS
Office of the Prosecutor:
Mr Mark Harmon
Mr Alan Tieger
Counsel for the Defence:
Mr Nicholas Stewart, QC
Ms Chrissa Loukas
TRIAL CHAMBER I 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;
RECALLING the Chamber’s decision of 28 February 2003 setting the permissible maximum number of Prosecution viva voce and Rule 92 bis witnesses at 101 and 168, respectively;1
RECALLING that the purpose of Rule 92 bis of the Tribunal’s Rules is to expedite the presentation of evidence, within the constraints of the requirements of a fair trial;2
FINDING that the use of Rule 92 bis to admit evidence going to proof, in particular, of the "crime-base" allegations in the indictment consumes a significant amount of time out of court, both for the parties and for the Chamber;
RECALLING that the admission of evidence is always subject to "the interests of justice" (which includes keeping the case at a manageable size)3 and that the Chamber retains a "discretion under Rule 92bis whether to admit the evidence of a witness in written form which does not relate to the acts and conduct of the accused charged in the indictment;"4
RECALLING that the Chamber is entitled to exercise this discretion to limit the admission of Rule 92 bis evidence on various grounds; for example, on the grounds that the proposed evidence has little or no probative value in the context of the case, or is unnecessarily repetitive, or unnecessarily prolongs the proceedings;5
FINDING that the projected admission in the present case of a total of 168 Rule 92 bis Prosecution witnesses would, considering the time-consuming aspects of the rule’s administration, including the proper attention given by the parties and the Chamber to the evidence, have the effect of unnecessarily prolonging the proceedings;
CONSIDERING that the Chamber, proceeding cautiously, has gradually come to the conclusion that the 33 Rule 92 bis witnesses admitted thus far (five of them with cross-examination6) supply evidence which, when viewed in the context of the whole of the evidence – including viva voce testimony – presented thus far to the Chamber, is often of limited probative value, or unnecessarily repetitive;
RECALLING the Chamber’s powers of control over the presentation of evidence as implied by Rules 54 and 73 bis of the Tribunal’s Rules;
NOTING that the Prosecution’s list of witnesses dated 4 December 2003 indicates that 61 witnesses are scheduled to testify viva voce on the alleged crimes in the municipalities (not counting the so-called Expert, International, or General/Miscellaneous Witnesses, some of whom might also be expected to present crime-base evidence);
CONSIDERING that a similar number of Rule 92 bis witnesses (that is, 61 in total) would be appropriate in this context;
CONSIDERING the timing of the present notice given to the Prosecution of the change in the Chamber’s position on the overall number of Rule 92 bis witnesses it is willing to admit;
ORDERS THAT:
(1) The admissible number of additional Rule 92 bis Prosecution witnesses (not counting the number of such witnesses admitted as at the date of this order or the prospective witnesses shown in the non-municipality categories of the December 2003 list) is hereby reset at 61;7
(2) The Prosecution should inform the Chamber whether it wishes to reconsider any aspect of the Rule 92 bis motions currently pending before the Chamber.
Done in English and French, the English version being authoritative.
_________________Dated this 19th day of July 2004
At The Hague
The Netherlands
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