Case No.: IT-00-39-T


Judge Alphons Orie, Presiding
Judge Amin El Mahdi
Judge Joaquín Martín Canivell

Mr Hans Holthuis

Decision of:
16 February 2004







Office of the Prosecutor

Mr Mark Harmon
Mr Alan Tieger

Defence Counsel

Mr Nicholas Stewart
Ms Chrissa Loukas

  1. On 10 February 2004 this Trial Chamber ("the 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 ("the Tribunal") was seized of a "Defence Motion to Exclude the Evidence of Miroslav Deronjic or in the Alternative to Preclude his Testimony Prior to Being Sentenced" ("the Motion"). The Prosecution, responding on the same day, requested that the Motion be denied. On 11 February the Defence informed the Chamber that it was withdrawing that part of the Motion which called for the complete exclusion of Deronjic’s testimony. The parties then made brief oral submissions on the matter. The Chamber announced its decision to deny the Motion on 12 February, and Deronjic began giving testimony on the same day.

  2. On 30 September 2003, Miroslav Deronjic pleaded guilty before Trial Chamber II of the Tribunal. His indictment does not mention the accused in the present case, Momčilo Krajišnik. Conversely, Krajisnik’s indictment makes no reference to Deronjic. Deronjic is to be sentenced by Trial Chamber II in due course. He has, since his guilty plea, testified as a Prosecution witness in four Tribunal cases, not counting the present one, an indication that the practice of the Tribunal is to allow a convicted person awaiting sentence to testify. The Motion does not take issue with the practice in relation to Deronjic prior to this case. It refers instead to a passage from the Kordic and Cerkez judgement of this Tribunal, whose result does not support the Defence’s position, and to remarks of a Tribunal judge, made in the course of a guilty-plea hearing, noting that a Trial Chamber may treat the testimony of a convicted person awaiting sentence with suspicion. This also does not compel the conclusion that Deronjic’s testimony should be postponed. The Motion thereafter cites a scholarly commentary which claims that the evidence of a co-perpetrator or an accomplice is generally admissible before the Tribunal without corroboration, but must be treated with caution unless supported by other evidence. This does not advance the Defence’s argument, even if Deronjic and Krajisnik could be said to be co-perpetrators or accomplices, which on the face of their indictments – and barring a very extended sense of the terms – they can not.

  3. The Motion also looks for support in the case-law of two national jurisdictions dealing with the use of accomplice evidence in jury trials. The Tribunal is of course not bound by the rules and practices of national jurisdictions, although they are accorded persuasive value in certain circumstances.

  4. Pipe, the first English case cited by the Defence, is distinguishable on several grounds. The prosecution had called S to testify against the appellant. In S’s account he had helped the appellant hack open and then dump a safe which the latter had stolen from a house. By this stage a charge had been brought against S and criminal proceedings were due to begin. There had been no guilty plea. Lord Chief Justice Parker said that "for years now it has been the recognised practice that an accomplice who has been charged, either jointly charged in the indictment with his co-accused or in the indictment though not under a joint charge, or indeed has been charged though not brought to the state of an indictment being brought against him, shall not be called by the prosecution, except in limited circumstances." None of the three above-mentioned situations corresponds to the situation in the present case. The Lord Chief Justice went on to say that in practice an accomplice may be called where the prosecution has omitted him from the indictment, or where a plea of guilty has been entered. Both conditions are true in the present case.

  5. The Defence also referred the Chamber to the later English case of Turner. In Turner Lord Justice Lawton, delivering the main opinion of the Court of Appeal, confirmed the long-standing position that "at common law an accomplice who gave evidence for the Crown in the expectation of getting a pardon for doing so was a competent witness." He noted that the nineteenth-century rule of practice that judges should warn juries of the dangers of convicting on the uncorroborated evidence of accomplices had become a rule of law by the twentieth century. He then addressed, and dismissed, a claim made by one of the appellants that Pipe had brought about a change in the rule of law as to the competency of accomplices: "[Pipe] is confined to a case in which an accomplice, who has been charged, but not tried, is required to give evidence of his own offence in order to secure the conviction of another accused. Pipe on its facts was clearly a right decision. The same result could have been achieved by adjudging that the trial judge should have exercised his discretion to exclude [S’s] evidence on the ground that there was an obvious and powerful inducement for him to ingratiate himself with the prosecution and the Court and that the existence of this inducement made it desirable in the interests of justice to exclude it."

  6. Both Pipe and Turner, and, finally, Booth – an Australian authority cited by the Defence – are cases where accomplice evidence was critical. The cases stood or fell on the admissibility, and credibility, of the accomplice’s evidence (Booth involved two accomplices). As observed by Justice Lee in Booth, in such cases, "The trial judge is expected to bring home to the jury that it is dangerous to convict on the uncorroborated evidence of such a witness; and this direction has the consequence that the witness is, in a real sense, held up as a witness whose testimony is suspect." It is in this context, in which an accomplice’s uncorroborated testimony potentially founds a conviction, that the following comment of Justice Lee, quoted by the Defence, must be understood: "In this State, the practice is, when the Crown intends to call an accomplice, for the judge to sentence the accomplice, if he is charged, and to do that before he is called; and I would say that that practice is one which should be followed in all cases, unless there are the most cogent reasons for not so doing."

  7. In summary, the Motion has established only that in jury trials in which everything hangs on an accomplice’s uncorroborated evidence the jury must be warned about the inducement to lie; and that, where the inducement is very powerful, it is within a judge’s discretion to preclude the witness from testifying. The Chamber has no reason to doubt these propositions, yet does not see how they assist the Defence, considering that the fact-finders in the present trial are professional judges, that Deronjic is one among a very large number of Prosecution witnesses, that there is much room for his testimony to be corroborated or contradicted, that the scrutiny of his testimony is such that the inducement to tell the truth would be at least as powerful as the inducement not to, and that any sentencing benefit he might expect from ingratiating himself with the Prosecution through dishonest or inaccurate evidence is countervailed by the threat of a longer sentence should such scheming come to light in questioning.

  8. The Chamber also notes the supporting jurisprudence of the European Commission and Court of Human Rights, as cited by the Prosecution.

  9. While the Defence claims (without justification, in the Chamber’s view) that Deronjic “has an obvious and powerful inducement to lie”, the Chamber is also aware of the Defence’s lesser submission, that any existing amount of inducement could be removed, quite simply, by postponing Deronjic’s testimony until such time as he has been sentenced. While it is possible to do so, the Prosecution does not seem to mind the extra degree of suspicion and scrutiny which will be brought to bear on its witness.

  10. The Chamber’s position therefore is that there is no legal impediment to hearing Deronjic in the present circumstances. The Chamber expects the witness to testify truthfully, in accordance with his solemn declaration. The Chamber recognizes that a person in Deronjic’s position might be tempted to improve his chances before the sentencing panel by giving untruthful evidence to this Chamber that significantly assists the Prosecution’s case. But he cannot be unaware of the dangers of this course. The Chamber will in any event exercise particular caution in scrutinizing, weighing up, and finding corroboration for the evidence that Deronjic places before it. And it will closely control the examination of the witness.




DENIES the Motion.


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

Alphons Orie
Presiding Judge

Dated this 16th day of February 2004
At The Hague
The Netherlands

[Seal of the Tribunal]


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