Case No. IT-02-54-T
Before:
Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy
Registrar:
Mr. Hans Holthuis
Decision:
17 May 2005
PROSECUTOR
v.
SLOBODAN MILOSEVIC
______________________________________________
DECISION PROPRIO MOTU RECONSIDERING ADMISSION OF EXHIBITS 837 AND 838 REGARDING EVIDENCE OF DEFENCE WITNESS BARRY LITUCHY
______________________________________________
Office of the Prosecutor:
Ms. Carla Del Ponte
Mr. Geoffrey Nice
The Accused:
Mr. Slobodan Milosevic
Court Assigned Counsel:
Mr. Steven Kay, QC
Ms. Gillian Higgins
Amicus Curiae:
Prof. Timothy McCormack
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 (“International Tribunal”), is seised of a “Prosecution Motion for Reconsideration of the Trial Chamber’s Refusal to Admit Certain Prosecution Exhibits During the Defence Case”, filed 15 March 2005 (“Motion”), and hereby renders its decision thereon, as well as issuing a decision proprio motu concerning exhibits 837 and 838.
The Trial Chamber would like to indicate that there is a principle which is fundamental and which must be respected by the Prosecution, and that is that the Prosecution must present all its evidence in the course of its case. This is a rule that is present in the jurisprudence of the Tribunal. See, for example, paragraph 14 of the decision rendered on the 31st of October, 2000 by the Trial Chamber in the Kunarac case, and paragraph 5 of the decision dated the 10th of September, 2004, rendered by the Trial Chamber in the Strugar case.
As a result of this principle, the Prosecution can only present in the course of its cross-examination of a witness new documents that have not been admitted – it may present new documents only if it wants to reinforce evidence that it has presented already or if it wants to introduce new elements that concern the criminal responsibility of the accused.
* * * The Prosecution may present and request that certain documents be tendered into evidence, if these documents have not already been admitted into evidence, in the course of cross-examination, but the conditions will be much more restricted and will be governed by the principles that have already been referred to.
In the opinion of the Trial Chamber, the Prosecution may present, in the course of its cross-examination, any documents that have not already been admitted in order to test the credibility of a witness or to refresh such a witness’s memory. In each of these two cases, the Prosecution may present a document that has not already been admitted and which it had in its possession before or after the presentation of its case.19
GRANTS the request of Assigned Counsel to exceed the page limitation;
GRANTS the Prosecution leave to file the Reply;
DENIES the Motion with respect to documents 156, 172, 215, 216, 219, 221, 222, 245, 246, 247, and 248;
GRANTS the Motion with respect to document 163, GRANTS its admission into evidence, and INSRUCTS the Registry to include it in the record;
DISMISSES the Motion with respect to document 212; and
DECIDES proprio motu to reconsider its decision to admit exhibits 837 and 838, DENIES their admission into evidence, and INSTRUCTS the Registry to remove them from the record.
Done in both English and French, the English text being authoritative.
____________
Judge Robinson
Presiding
Dated this seventeenth day of May 2005
At The Hague
The Netherlands
[Seal of the Tribunal]
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