Equality of Arms – Defining Human Rights in the Jurisprudence of the International Criminal Tribunal for the former Yugoslavia

Leiden Journal of International Law

Volumn 16, Issue 2, 2003, Pages 269-320

  McIntyre, Gabrielle ^a  

^a Department of Justice ^*  (United States)

Author keywords

disclosure; equality of arms; evidence; fair trial; human rights

Indexed keywords

EID: 65149091185     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156503001158     Document Type: Article

References (168)

1. In the Kraska Judgement of 19 April 1993, A 254-B.
2. Prosecutor v. Zejnil Delalić and Others, Case No. IT-96-21-T, 20 Feb. 2001, para. 637.
3. Paragraph 106 of the Secretary-General's Report (S/25704 of 3May 1993) states that ‘it is axiomatic that the International Tribunal must fully respect internationally recognized standards regarding the rights of the accused at all stages of the proceedings. In the view of the Secretary-General, such internationally recognized standards are, in particular, contained in Article 14 of the International Covenant on Civil and Political Rights’.
4. As was recognized by the Trial Chamber in Prosecutor v. Tadić, Case No. IT-94-1, Decision on Prosecutor's Motion Requesting Protective Measures for Victims andWitnesses, 10 Aug. 1995, para. 25, ‘The drafters of the Report recognizing that ensuring that the proceedings before the International Tribunal were conducted in accordance with international standards of fair trial and due process was important not only to ensure respect for the individual rights of the accused, but also to ensure the legitimacy of the proceedings and to set a standard for proceedings before other ad hoc tribunals or a permanent international criminal court of the future’.
5. Themost recent comprehensive decision examining the issue of provisional release is the dissenting opinion of JudgeHunt in Prosecutor v. Nikola Šainović and Daragljub Ojdanić, Case No. IT-99-37-PT, Dissenting Opinion of Judge David Hunt on Provisional Release, 30 Oct. 2002.
6. Hentrich Judgement of 22 Sept. 1994, A 296-A, 22.
7. Delcourt v. Belgium, Judgement of 17 Jan. 1970, A.11, para.34.
8. Bricmont, Report of 15 Oct. 1987, A.158, p. 4; Jespers, (1982) 27 DandR 61.
9. Borgers v. Belgium, A214-A (1991) 15 EHRR 92, ‘In conclusion, having regard to the requirements of the rights of the Defence and of the principle of equality of arms and to the role of appearances in determining whether they have been compliedwith, theCourt finds a violation of Article 6 para. 1. [the concept of a fair trial]. has undergone a considerable evolution in the Court's case law, notably on respect of the importance attached to appearances and to. the increased sensitivity of the public to the fair administration of justice’ (at para. 24).
10. Prosecutor v. Tadić, Case No. IT-94-1-A, Judgement ('Tadić Appeal Judgement'), 15 July 1999, paras. 48-52.
11. The spirit of that principle is to ensure the fairness of the proceedings, and this includes ensuring the appearance of fairness of the proceedings. See Borgers v. Belgium, A 214-B (1991).
12. Tadić Appeal Judgement, para. 29.
13. Tadić Appeal Judgement., para. 30.
14. Tadić Appeal Judgement., para. 31.
15. The Appellant contended that ‘the inequality of arms persisted despite the assistance of the Trial Chamber and the exercise of due diligence by trial counsel, as the latterwere unable to identify and trace relevant and material Defence witnesses, and potential witnesses that had been identified refused to testify out of fear’ (Tadić Appeal Judgement., para. 32).
16. The Appellant contended that ‘the inequality of arms persisted despite the assistance of the Trial Chamber and the exercise of due diligence by trial counsel, as the latterwere unable to identify and trace relevant and material Defence witnesses, and potential witnesses that had been identified refused to testify out of fear’., para. 33.
17. The Appellant contended that ‘the inequality of arms persisted despite the assistance of the Trial Chamber and the exercise of due diligence by trial counsel, as the latterwere unable to identify and trace relevant and material Defence witnesses, and potential witnesses that had been identified refused to testify out of fear’., para. 37.
18. The Appellant contended that ‘the inequality of arms persisted despite the assistance of the Trial Chamber and the exercise of due diligence by trial counsel, as the latterwere unable to identify and trace relevant and material Defence witnesses, and potential witnesses that had been identified refused to testify out of fear’., para. 38.
19. The Appellant contended that ‘the inequality of arms persisted despite the assistance of the Trial Chamber and the exercise of due diligence by trial counsel, as the latterwere unable to identify and trace relevant and material Defence witnesses, and potential witnesses that had been identified refused to testify out of fear’., para. 42. The defence argued that its failure to seek a stay of the proceedings at trial should not prevent it from raising thematter of denial of a fair trial on appeal. It argued that the trial counselmay not have been aware of the full impact of the obstruction of the authorities and that it had, in its opening, stated that the ‘prevailing conditions might frustrate the fairness of the trial’. It suggested that trial counsel's decision not to seek an adjournment of the proceedings may have been related to the wish not to prolong the pre-trial detention of the accused (at para. 36).
20. The Appellant contended that ‘the inequality of arms persisted despite the assistance of the Trial Chamber and the exercise of due diligence by trial counsel, as the latterwere unable to identify and trace relevant and material Defence witnesses, and potential witnesses that had been identified refused to testify out of fear’., para. 44.
21. The Appellant contended that ‘the inequality of arms persisted despite the assistance of the Trial Chamber and the exercise of due diligence by trial counsel, as the latterwere unable to identify and trace relevant and material Defence witnesses, and potential witnesses that had been identified refused to testify out of fear’., para. 47.
22. The Appellant contended that ‘the inequality of arms persisted despite the assistance of the Trial Chamber and the exercise of due diligence by trial counsel, as the latterwere unable to identify and trace relevant and material Defence witnesses, and potential witnesses that had been identified refused to testify out of fear’., para. 48.
23. The Appellant contended that ‘the inequality of arms persisted despite the assistance of the Trial Chamber and the exercise of due diligence by trial counsel, as the latterwere unable to identify and trace relevant and material Defence witnesses, and potential witnesses that had been identified refused to testify out of fear’., para. 50.
24. The Appellant contended that ‘the inequality of arms persisted despite the assistance of the Trial Chamber and the exercise of due diligence by trial counsel, as the latterwere unable to identify and trace relevant and material Defence witnesses, and potential witnesses that had been identified refused to testify out of fear’., para. 51.
25. The Appellant contended that ‘the inequality of arms persisted despite the assistance of the Trial Chamber and the exercise of due diligence by trial counsel, as the latterwere unable to identify and trace relevant and material Defence witnesses, and potential witnesses that had been identified refused to testify out of fear’., paras. 53-56. If that assistance proves to be of no consequence a Chamber may ‘upon the request of a party or proprio motu’ order an adjournment, or a stay of the proceedings (para. 52).
26. The Appellant contended that ‘the inequality of arms persisted despite the assistance of the Trial Chamber and the exercise of due diligence by trial counsel, as the latterwere unable to identify and trace relevant and material Defence witnesses, and potential witnesses that had been identified refused to testify out of fear’., para. 54.
27. See Prosecutor v. Blaškić, Case No. IT-95-14-T, Decision on the Objection of the Republic of Croatia to the Issuance of Subpoena Duces Tecum, 18 July 1997; Decision on the Prosecutor's Request for the Issuance of a Binding Order to Bosnia andHerzegovina for the Production of Documents, 17 Dec. 1997; Prosecutor v. Kordić and čerkez, Case No. IT-95-14/2-T, Decision on Prosecutor's Submissions Concerning ‘Zagreb Exhibits’ and Presidential Transcripts, 1 Dec. 2000; Decision on Ex Parte Application for the Issuance of an Order to the European Community Monitoring Mission, 3 May 2000; Decision on Prosecutor's Submission Concerning ‘Zagreb Exhibits’ and Presidential Transcripts, 1Dec. 2000; Decision on the Request of the Republic of Croatia for Review of a Binding Order, 9 Sept. 1999.
28. Prosecutor v.Blaškić, CaseNo. IT-95-14-T,DecisionontheObjectionof theRepublic ofCroatia to the Issuance of Subpoena Duces Tecum, 18 July 1997, para. 3. The Appeals Chamber stated: ‘if it could not use themethod of compulsion, the Trial Chamber would be unable to ensure that the trial proceed expeditiously. Furthermore, Article 21, paragraph 4(e) provides that the accused shall be entitled “to examine or have examined the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him”. If third parties cannot be compelled to produce documents in their possession the Trial Chamber would be unable to guarantee the rights of the accused’.
29. Prosecutor v. Blaškić, Case No. IT-95-14-T, Decision on the Objection of the Republic of Croatia to the Issuance of Subpoena Duces Tecum, 18 July 1997, para. 32.
30. Prosecutor v. Blaškić., para. 105.
31. Prosecutor v. Blaškić, Case No. IT-94-14-T, Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 Oct. 1997, para. 32.
32. In a Decision issued in the case of Kordić and čerkez, the Appeals Chamber dealt with a request for review by the Republic of Croatia of the Trial Chamber decision to issue an order to produce materials to the prosecution pursuant to an ex parte applicationmade by the prosecution. One of the complaints made by the Republic of Croatiawas that the order did not satisfy the four requirements of theAppeals Chamber decision above. It claimed that prior to the issuing of the order it had a right to be heard, and in particular it had a right to be heard on the issue of the relevance of the documents to the proceedings. TheAppeals Chamber rejected this argument, and with respect to a right to be heard on the issue of the relevance of the material sought it stated: ‘Nothing in the second criterion provides for notification of, or hearings, on grounds of relevance, or on the general grounds on which a request is based, in advance of a binding order. It is for the Trial Chamber and not the Requesting State to assess the relevance and admissibility of the documents requested’. Prosecutor v. Kordić and čerkez, Case No. IT-95-14/2-T, Decision on the Request of the Republic of Croatia for Review of a Binding Order, 9 Sept. 1999, para. 19.
33. Prosecutor v. Delalić and Others, Case No. IT-96-21, Separate Opinion of Judge David Hunt onMotion by Esad Landzo to Preserve and Provide Evidence, 22 April 1999, para. 4; Prosecutor v. Blaškić, Case No IT-95-14-T, Decision on Prosecutor's Request for Authorisation to Delay Disclosure of Rule 70 Information, 6May 1998, para. 12.
34. Prosecutor v. Blaškić, Case No. IT-95-14-T, Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 Oct. 1997, para. 31.
35. In the case of Naletilić and Martinović, the trial chamber refused a request made by the defence to issue a subpoena duces tecum to the Deputy Minister of Defence of Bosnia and Herzegovina. One of the grounds for the refusal was that the defence had not shown that it had followed the advice given to it by the Minister of Defence in his response to a letter sent by the defence to him that it should address its request to the Deputy Minister. The other reason was that the letter was dated 15 July 2002 and the Request for assistance was not filed by the Defence until 25 September 2002, after the completion of the presentation of the defence case. See also Prosecutor v. Brd-anin and Talić, Case No. IT-99-36-T, Public Version of the Confidential Decision on the Alleged Illegality of Rule 70 of 6 May 2002, 23May 2002. Prosecutor v. Naletilić andMartinović, Case No. IT-98-34-T, Decision on Accused Naletilić ‘s Request for Issuance of Subpoena Duces Tecum Per Rule 54, 25 Oct. 2002, p. 2.
36. In a later decision issued in the same case the trial chamber refused a request filed by the defence that it be permitted to inspect material in the possession of the prosecution which it had secured from the ‘Government of Croatia’. The prosecutor objected to the motion, one of the grounds being ‘that it is amatter forDefence Counsel to seek access to archives and collections of documents of theRepublic of Croatia and the Federation of Bosnia andHerzegovina directly, and to seek the Trial Chamber's assistance in case such access is not granted’. The trial chamber upheld the view of the prosecution, stating: ‘on a number of occasions the Chamber has been informed orally by. counsel for the accused. of his difficulties in obtaining a response from the Bosnia and Herzegovina authorities to letters he has sent seeking access to the AbiH archives. on each such occasion, the Trial Chamber has invited. [defence counsel] to seek theChamber's assistance by amotion in writing setting out the facts on which the Defence relies and seeking the Chamber's assistance. No such motion has ever been received by this Trial Chamber’. The trial chamber stated that it could not see how an examination of unusedmaterial in the hands of the prosecutionwould be of relevance to the defence at this late stage and if the defence wished to show otherwise it would have to identify with some precision the documents it alleged the prosecution had possession of and how, at this late stage of the proceedings, it was fair and reasonable ‘for the Defence to disregard the Rules of Procedure and Evidence outlined by Rule 66(B) and its corresponding Rule 67(C) involving reciprocal disclosure’. Prosecutor v. Naletilić andMartinović, Case No. IT-98-34-T, Decision on Joint Motions for Order Allowing Defence Counsel to Inspect Documents in the Possession of the Prosecution, 16 Sept. 2002.
37. See ECHR Art. 6(3)(b); ICCPR Art. 14.
38. In the Plavšic case the accused Plavšic brought amotion seeking the dismissal of the indictment against her, or other relief, on the basis that the Tribunal was unable to provide herwith ‘theminimal resources required to enable her to defend herself’. She argued that as compared with the Office of the Prosecutor she had inadequate resources, which gave rise to an inequality of arms. The trial chamber dismissed the motion, on the basis that itwas premature, but stated that it would ‘keep thematter of resources under review to ensure that the Defence will be in a proper position to proceed to trial’. Prosecutor v. Krajišnik and Plavšic, Decision on Motion from Biljana Plavšic to Dismiss or for Alternative Relief, Case No. IT-00-39 and 40-PT, 23 May 2001. Prosecutor v. Brd-anin and Talić, Decision on SecondMotion by Brd-anin to Dismiss the Indictment, Case No. IT-99-36-PT, 16May 2001, para. 5.
39. Prosecutor v. Kayishema, Case No. ICTR-95-1, Judgement, 1 June 2001, paras. 63-74.
40. See Case No. OT-02-55-Misc 4, Reconsideration of Order of 9May 2002.
41. In the case of Brd-anin and Talić, the accused Brd-anin argued that the indictment against him should be dismissed because the Tribunal had failed to provide him with the necessary resources to enable him to prepare his defence. In dismissing themotion on the basis that the Registry had supplied further resources, the trial chamber stated that it was not indifferent to the difficulties faced by the accused in preparing a defence to a case of such complexity. It also emphasized that the trial chamber must ensure, in accordance with the provisions of its Statute that the trial of any defendant would be a fair one. It then stated that if it is demonstrated that the resources necessary to ensure a fair trial are not available, a trial chamber cannot permit a miscarriage of justice to occur. There would be no miscarriage of justice if an accused person were shown to be freely willing to go to trial without the provision of such resources. Even where a trial would amount to a miscarriage of justice, it would only be in exceptional circumstances that the dismissal of the indictment would be appropriate. However, if the trial chamber were satisfied that the absence of such resources would result in a miscarriage of justice, it had the inherent power and the obligation to stay the proceedings until the necessary resources were provided, to prevent abuse of process. The consequences of such a stay upon the continued detention of the accused would depend upon the circumstances of the particular case. CaseNo. IT-02-54, Tues. 26 Feb. 2002. More recently SlobodanMilošević protested in open court that he was denied access to all resources towards the preparation of his defence. He claimed that all he had at his disposal was a telephone and even that had failed to work the previous afternoon. Trial Chamber III, after hearing submissions from the amici curiae on what resources should be provided to the accused, ordered the Registry to file a Report on what resources had been made available to the accused and any restrictions that had been applied to those facilities. Prosecutor v. Slobodan Milošević, Order to Registry to Provide Report Concerning Practical Facilities Available to Accused, Case No. IT-02-54, 6March 2002.
42. the case of Brd-anin and Talić, the accused Brd-anin argued that the indictment against him should be dismissed because the Tribunal had failed to provide him with the necessary resources to enable him to prepare his defence., paras. 3-4.
43. Prosecutor v. Aleksovski, Case No. IT-95-14/1-T, Decision on Prosecutor's Appeal on Admissibility of Evidence, 16 Feb. 1999, para. 18.
44. One particular order that appears to be more advantageous to the defence than to the prosecution is the safe conduct order. The Tribunal will issue these orders to witnesses who fear that they themselves may be subject to a sealed indictment and could risk apprehension if they give evidence at the Tribunal. These orders have been issued on behalf of the accused in a number of cases.
45. See Case OT-02-55-Misc 4.
46. Prosecutor v. Brd-anin and Talić, Case No. IT-99-36-AR73.9, Decision on Interlocutory Appeal, 11 Dec. 2002.
47. See Prosecutor v. Dosen and Kolundzija, CaseNo. IT-95-8-PT, Decision on DefenceMotion to Compel Discovery, 11May 2000.
48. Rule 92bis provides for the admission into evidence of witness statements in lieu of oral testimony. The opposing party can object to a witness statement being admitted in thisway and can ask that thewitness be called for cross-examination. The ultimate decision will be for the trial chamber.
49. See Prosecutor v. Brd-anin and Talić, CaseNo. IT-99-36-PT,Decision on ProsecutionApplication forOralHearing of Rule 66(C)Motion, 1 June 2001.
50. Prosecutor v. Blaškić, Case No. IT-95-14-T, Decision on Prosecutor's Request for Authorisation to Delay Disclosure of Rule 70 Information, 6May 1998, para. 8. See also Prosecutor v. Simić and Others, Case No. IT-95-9-T, Separate Opinion of Judge David Hunt on Motion by Todorović for Order Requesting Assistance of the International Committee of the Red Cross, 7 June 2000, at paras. 5-6. The countervailing public interest was that ‘all relevant evidence has to be available to the courts who are to try persons charged with serious violations of humanitarian law, so that a just result might be obtained in such trials in accordance with law-a resultwhich is just not only to the persons charged but also to the international community on whose behalf the prosecution acts, including the victims of the offences charged. in every case. the court would have to weigh the competing interests-the importance of the evidence in the particular trial and the risk that the fact that the evidence has been given by an official or employee of the ICRC would be disclosed-to determine on which side the balance lies in that case. The correct test. is whether the evidence to be given by the witness in breach of the obligations of confidentiality owed by the ICRC is so essential to the case of the relevant party as to outweigh the risk of serious consequences of the breach of confidence in the particular case. Those consequences were identified as the serious risk that the ICRC will in future be denied full access to prisoners of war and civilians protected by the Fourth Geneva Convention if its impartiality, neutrality and its obligations of confidentiality were to be impaired once it became known that evidence had been given by its current or former officials and employees of what was seen or heard by them during such access’.
51. Prosecutor v. Blaškić, Decision on theAppellant'sMotions for Production ofMaterial, Suspension or Extension of the Briefing Schedule and Additional Filings, Case No. IT-95-14-A, 26 Sept. 2000.
52. See Prosecutor v. Blaškić, Case No. IT-95-14-T, Decision on Prosecutor's Request for Authorisation to Delay Disclosure of Rule 70 Information, 6May 1998.
53. See Prosecutor v. Brd-anin and Talić, Case No. IT-96-36-PT, Decision on Second Motion by Prosecution for Protective Measures, 27 Oct. 2000. The accused is entitled to access all the material that accompanied the application to confirm the indictment, and this includes the statements of witnesses the prosecution does not intend to call (paras. 27-32). However, see also Prosecutor v. Kordić and čerkez, Case No. IT-95-14/2, Order onMotion to Compel Compliance by the Prosecutor with Rules 66(A) and 68, 26 Feb. 1999, 3, in which itwas held that the phrase ‘supporting material’ in Rule 66(A)(i) means the material upon which the charges are based and does not include othermaterial thatmay be submitted to the confirming judge. Thiswas followed by the trial chamber in Prosecutor v. Dragoljub Odjanić and Nikola Sainović, Case No. IT-99-37-PT, Decision on Defence Motion to Require Full Compliance with Rule 66(A)(i) and for Unsealing of Ex Parte Materials, 18 Oct. 2002. In this decision, however, the trial chamber held that ‘the language of Rule 66(A)(i) clearly indicates that all supporting material which accompanied the indictment is to be disclosed and therefore, in the case of multiple accused charged with the same counts on the basis of the same alleged events in the one indictment. the prosecution is obligated to disclose all suchmaterial to each accused, subject to leave to apply to the Trial Chamber for permission not to disclose specific information which it believes should not be so disclosed’.
54. The obligation to disclose statements of the accused under Rule 66 has also been interpreted in a narrow sense. In a decision issued in Blaškić the accused complained that the prosecution had consistently and regularly violated her obligation to disclose prior statements of the accused pursuant to Sub-rule 66(A) of the Rules and it requested that the trial chamber impose sanctionsupon the Prosecutor and disallow its use of the improperly withheld material. It identified twoexhibits tendered by the prosecution at trialwhich consisted of orders that had been issued by the accused and which had not been previously disclosed to him. The trial chamber rejected the motion holding that the expression ‘prior statements obtained by the Prosecutor from the accused’ within the meaning of Sub-rule 66(A) ‘must be understood to refer to all statements made by the accused during questioning in any type of judicial proceedings which may be in the possession of the Prosecutor, but only such statements’. As such, it held that ‘orders issued freely by the accused himself in the course of his duties, cannot be considered to be prior statements pursuant to Sub-rule 66(A) of the Rules. It held that the exhibits constituted documents covered by Sub-rule 66(B) of the Rules and as the accused had waived use of that Rule by refusing to subject himself to the reciprocal disclosure regime of Rule 67, the prosecution was under no obligation to disclose the exhibits to the defence, subject to Rule 68. See also Prosecutor v. Krstić, Case No. IT-98-33-T, Decision on Defence Motion to Exclude Exhibits in Rebuttal and Motion for Continuance, 4 May 2001, paras. 1-2. Prosecutor v. Blaškić, Case No. IT-95-14-T, Decision on the Defence Motion for Sanctions for the Prosecutor's Failure to Comply with Sub-rule 66(A) of the Rules and the Decision of 27 January 1997 Compelling the Production of all Statements of the Accused, 15 July 1998.
55. See Prosecutor v. Brd-anin and Talić, Case No. IT-96-36-PT, Decision on Motion by Momir Talić for Disclosure of Evidence, 27 June 2000, at para. 6: ‘The Trial Chamber does not accept the submission implicit that the prosecution's obligations under Rule 66(A)(ii) are necessarily determined by either the need for protective measures or the propinquity of a trial date’.
56. Prosecutor v. Tadić, Case No. IT-94-1-T, Decision on Prosecutor's Motion Requesting Protective Measures for Victims andWitnesses, 10 Aug. 1995, paras. 26-28.
57. Decision on Prosecutor's Motion Requesting Protective Measures for Victims andWitnesses., para. 30.
58. See Prosecutor v. Brd-anin and Talić, Case No. IT-96-36-PT, Decision on Second Motion by Prosecution for Protective Measures, 27 Oct. 2000, for a general discussion of the regime of protective measures. In this case the pre-trial judge held that such applications should only be made on an ex parte basis where the fact of making the application, or the contents of the application, would lead to the identification of the witnesses sought to be protected.Theprosecution shouldmakeits applicationsona confidential basis stating the justification for withholding the identity of the witness in each particular case, without revealing the identity of the witness, to allow the defence the opportunity to respond.
59. Prosecutor v. Brd-anin and Talić, Case No. IT-96-36-PT, Decision onMotion for ProtectiveMeasures, 3 July 2000; Decision on SecondMotion by Prosecution for ProtectiveMeasures, 27 Oct. 2000. Prosecutor v.Milošević, Case No. IT-02-54-T, FirstDecision on ProsecutionMotion for ProtectiveMeasures for Sensitive SourceWitnesses, 3May 2002; Second Decision on ProsecutionMotion for ProtectiveMeasures for Sensitive SourceWitnesses, 18 June 2002.
60. The necessity of seeking the trial chamber's sanction for redactions made has led to delays in the disclosure of information by the Office of the Prosecutor; see Prosecutor v. Brd-anin and Talić, Case No. IT-99-36-PT, Decision onMotion byMomir Talić for Disclosure of Evidence, paras. 5-6.
61. In an early decision in Tadić, the trial chamber granted anonymity towitnesses for the prosecution.However, this approach hasnot been followed by other trial chambers and it was the subject of a compelling dissent: see Prosecutor v. Tadić, CaseNo. IT-99-36-PT,Decision on the Prosecutor'sMotion Requesting ProtectiveMeasures for Victims and Witnesses, 10 Aug. 1995; Separate Opinion of Judge Stephen on the Prosecutor's Motion Requesting ProtectiveMeasures for Victims andWitnesses, 10 Aug. 1995.
62. Prosecutor v. Brd-anin and Talić, Case No. IT-96-36-PT Decision onMotion for ProtectiveMeasures, 3 July 2000; Decision on SecondMotion by Prosecution for ProtectiveMeasures, 27 Oct. 2000. Prosecutor v.Milošević, Case No. IT-02-54-T, FirstDecision on ProsecutionMotion for ProtectiveMeasures for Sensitive SourceWitnesses, 3May 2002; Second Decision on ProsecutionMotion for ProtectiveMeasures for Sensitive SourceWitnesses, 18 June 2002.
63. Prosecutor v.Milošević, Case No. IT-02-54-T, First Decision on ProsecutionMotion for ProtectiveMeasures for Sensitive SourceWitnesses, 3May 2002, para. 12.
64. Prosecutor v. Tadić, CaseNo. IT-94-1-A,Appeal Judgement onAllegations ofContempt, 27 Feb. 2001; Simić et al., CaseNo. IT-95-9-T, Judgement in theMatter ofContemptAllegationsAgainst anAccused and hisCounsel, 30 June 2000; Prosecutor v. Aleksovski, Case No. IT-95-14/T, Judgement on Appeal by Anto Nobilo against Finding of Contempt, 30May 2001.
65. Although this is not always the case, see Prosecutor v. Naletilić and Martinović, Case No. IT-98-34-AR73.4, Decision on Application by VinkoMartinović for Leave to Appeal the Decision of Trial Chamber I Dated 17 Sept. 2001.
66. Prosecutor v. Tadić, CaseNo. IT-94-1-A,Appeal Judgement onAllegations ofContempt, 27 Feb. 2001; Simić et al., CaseNo. IT-95-9-T, Judgement in theMatter ofContemptAllegationsAgainst anAccused and hisCounsel, 30 June 2000; Prosecutor v. Aleksovski, CaseNo. IT-95-14/T, Judgement on Appeal by AntoNobilo Against Finding of Contempt, 30May 2001.
67. See Prosecutor v. Blaškić, Case No. IT-95-14-PT, Decision on the Defence Motion for Protective Measures for DefenceWitnesses, 30 Sept. 1998.
68. Prosecutor v. Tadić, Case No. IT-94-1-PT, Decision on Prosecution Motion for Production of DefenceWitness Statements, 27 Nov. 1996.
69. Prosecutor v. Tadić, Case No. IT-94-1-PT, Separate Opinion of Judge Stephen on the Prosecutor's Motion for Production of Defence Witness Statements, 27 Nov. 1996; Separate Opinion of Judge Vohrah on the Prosecutor'sMotion for Production of DefenceWitness Statements, 27 Nov. 1996.
70. Prosecutor v. Tadić, Case No. IT-94-1-PT, Decision on Prosecution Motion for Production of DefenceWitness Statements, 27 Nov. 1996.
71. Prosecutor v. Delalić and Others, Case No. IT-96-21-T, Decision on the Prosecution's Motion for an Order Requiring Advance Disclosure of Witnesses by the Defence, 4 Feb. 1998, paras. 4-5; see also Prosecutor v. Blaškić, CaseNo. IT-95-14-T,Decision of Trial Chamber I on the Prosecutor'sMotion for Clarification ofOrder Requiring Advance Disclosure ofWitnesses and for Order Requiring Reciprocal Advance Disclosure by the Defence, 29 Jan. 1998.
72. Prosecutor v. Delalić and Others, Case No. IT-96-21-T, para. 6.
73. Prosecutor v. Delalić and Others., para. 9.
74. Prosecutor v. Delalić and Others., para. 17.
75. Prosecutor v. Delalić and Others., para. 43.
76. Prosecutor v. Delalić and Others., paras. 41, 46.
77. Prosecutor v. Delalić and Others., para. 49.
78. Prosecutor v. Aleksovski, Case No.IT-95-14/1, Decision on Prosecutor's Appeal on Admissibility of Evidence, 16 Feb. 1999.
79. Decision on Prosecutor's Appeal on Admissibility of Evidence., para. 28.
80. Prosecutor v. Brd-anin and Talić, Decision on Motion by Momir Talić for Disclosure of Evidence, Case No. IT-99-36-PT, 16 Feb. 1999, para. 18 ('Decision on Motion by Momir Talić for Disclosure of Evidence'); Decision onMotion byMomir Talić for Disclosure of Evidence, 27 June 2000.
81. Disclosure obligations are also imposed upon the Defence under Rule 65ter(G). ‘After the close of the Prosecutor's case and before the commencement of the Defence case, the pre-trial Judge shall order the Defence to file the following: (i) a list of all witnesses the Defence intends to call with: (a) the name or pseudonym of each witness; (b) a summary of the facts on which each witness will testify;. (ii) a list of exhibits the Defence intends to offer in its case, stating where possible whether the Prosecutor has any objections to authenticity. The Defence shall serve on the Prosecutor copies of the exhibits so listed’.
82. Bricmont, Report of 15 Oct. 1987, A.158, 4; Jespers, (1982) 27DandR 61.
83. Brd-anin and Talić, Case No. IT-99-36-PT, Status Conference, 18May 2001, transcript, 313, 328.
84. Status Conference., Decision on Prosecution Application for Oral Hearing of Rule 66(C)Motion, 1 June 2001.
85. Prosecutor v. Krajišnik and Plavšic, Decision on ProsecutionMotion for Clarification in Respect of Application of Rules 65ter, 66(B) and 67(C), Case No. IT-00-39 and 40-PT, 1 Aug. 2001 ('Decision on Prosecution Motion for Clarification In Respect of Application of Rules').
86. Prosecutor v. Krstić, Case No. IT-98-33-PT, Status Conference, 6March 2000, T 398-400.
87. Prosecutor v. Krajišnik and Plavšic, Decision on ProsecutionMotion for Clarification in Respect of Application of Rules, para. 5.
88. Prosecutor v. Krajišnik and Plavšic, 66(B) and 67(C), Case No. IT-00-39 and 40-PT, para. 9.
89. Prosecutor v. Krstić, Case No. IT-98-33-T, Decision on the Defence Motion for Disclosure of Items Relevant to Motion to Re-Open and Scheduling Order, 8May 2001, 2.
90. Prosecutor v. Kordić and čerkez, Decision on Second Motions to Extend Time for Filing Appellants’ Brief, Case No. IT-95-14/2-A, 2 July 2001. For example the pre-appeal judge in this Decision, with respect to the obligations placed upon the prosecution with respect to Rule 68, stated that ‘Rule 68 performs an important function. It forms part of the Prosecution's duty asministers of justice assisting in the administration of justice. to assist an accused in thisway. The Prosecution's obligation under Rule 68 is not a secondary one, to be complied with after everything else is done; it is as important as the obligation to prosecute.’
91. Prosecutor v. Kordić and čerkez, Decision on Second Motion to Extend Time for Filing Appellants’ Brief, Case No. IT-95-14/2-A, 2 July 2001, paras. 9-10. The prosecution conceded that it had been in possession of the archive sought during the trial but did not reveal this to the defence or the trial chamber.
92. Case No. IT-02-55 Misc. 4, Reconsideration of Order of 9May 2002.
93. Prosecutor v. Brd-anin and Talić, Decision on ‘Request forDismissal Filed ByMomir Talić on 29November 2001’, CaseNo. IT-99-36-PT, para. 20. In Brd-anin and Talić this led to complaints beingmade by the accused that they were having to go through volumes of documents, many of which had no bearing on the case at all. This complaintwas dismissed on the basis that Talić had requested access to all the documents seized fromBanja Luka and it was highly unlikely that there were many irrelevant documents among them.
94. Prosecutor v. Krajišnik and Plavšic, Case No. IT-00-39 and 40-PT, 19 July 2000, Decision on Motion from Momcilo Krajišnik to Compel Disclosure of Exculpatory Evidence Pursuant to Rule 68 ('Decision onMotion fromMomcilo Krajišnik to Compel Disclosure'), 2.
95. Decision on Motion from Momcilo Krajišnik to Compel Disclosure of Exculpatory Evidence Pursuant to Rule 68., 3.
96. Status Conference, 6 Sept. 2001.
97. Brd-anin and Talić, Decision on ‘Request for Dismissal Filed by Momir Talić on 29 November 2001’, Case No. IT-99-36-PT, para. 21.
98. See, for example, Prosecutor v. Brd-anin and Talić, Decision on ‘Motion for Relief from Rule 68 Violations by the Prosecutor and for Sanctions to be Imposed Pursuant to Rule 68bis and Motion for Adjournment while Matters Affecting Justice and a Fair Trial can be Resolved’, Case No. IT-99-36-T, 30 Oct. 2002.
99. Prosecutor v. Kordić and čerkez, Case No. IT-95-14/2-A, Decision on Motions to Extend Time for Filing of Appellant's Briefs, 11May 2001, para. 9.
100. Prosecutor v. Blaškić, CaseNo. IT-95-14-T,Decision on theDefenceMotion for Reconsideration of the Ruling to Exclude from EvidenceAuthentic and Exculpatory Documentary Evidence, 30 Jan. 1998, at 6. In this case the defencemadecomplaint thatmuchof theRule 66(A) andRule 68 material disclosed to it contained redactions making it difficult for the defence to know the source of the document and to evaluate its contents. The trial chamber stated, at 6, that ‘In view of the responsibility of the Trial Chamber to ensure that the rights of the accused are respected as stipulated inArticles 20 and 21 of the Statute,while, at the same time, it ensures that the proceedings are conducted fairly and inter alia that the parties are on a equal footing, the Trial Chamber considers it legitimate for theDefence to be concerned about receiving information about the source-author (initialMotion) so that itwill be in a position to analyse the documents provided with full knowledge of the facts.Nonetheless, the Trial Chamber considers that requiring the Prosecution to identify all the documents disclosed to the Defencewould constitute a disproportionate burden whichmight cause considerable delays in the proceedings without, however, appearing to be justified by the necessary respect for the rights of the Defence’. The trial chamber then drew a distinction between material provided pursuant to Rule 66(A) and that provided pursuant to Rule 68, and held that in respect of the Rule 66(A) materials the reference to the word ‘statements’ could not be interpreted to include material ‘outside a particular document concerning its authenticity’.
101. Prosecutor v. Brd-anin and Talić, Case No. IT-99-36-T, Decision on ‘Motion for Relief fromRule 68 Violations by the Prosecutor and for Sanctions to be Imposed Pursuant to Rule 68bis and Motion for Adjournment while Matters Affecting Justice and a Fair Trial can be Resolved’, 30 Oct. 2002, para. 26.
102. Decision on ‘Motion for Relief fromRule 68 Violations by the Prosecutor and for Sanctions to be Imposed Pursuant to Rule 68bis and Motion for Adjournment while Matters Affecting Justice and a Fair Trial can be Resolved’., para. 30.
103. In Prosecutor v. Blaškić, Case No. IT-95-14-T, Decision on the Motion to Compel the Production of Discovery Materials, 27 Jan. 1997, the trial chamber held that the prosecution has the sole responsibility for disclosing evidence under the rule under its own responsibility and subject to the supervision of the trial chamber. In the case of an established failure to comply, the trial chamber would have to draw the consequences at trial (para. 50); it further stated that ‘If the Prosecution fulfils its above indicated obligations but the Defence considers that evidence other than that disclosed might prove exculpatory for the accused and was in the possession of theOffice of the Prosecutor, it must submit to the Trial Chamber all prima facie proofs tending to make it likely that the evidence is exculpatory and was in the Prosecutor's possession. Should it not present this prima facie proof to the Trial Chamber, the Defence will not be granted authorisation to have the evidence disclosed’; Prosecutor v. Brd-anin and Talić, Decision on ‘Motion for Relief fromRule 68 Violations by the Prosecutor and for Sanctions to be Imposed Pursuant to Rule 68bis andMotion forAdjournment while Matters Affecting Justice and a Fair Trial can be Resolved’, Case No. IT-99-36-T, 30 Oct. 2002.
104. Prosecutor v. Dusko Sikirica and Others, Case No. IT-95-8-T, Decision on Kolundzija Defence Request to Compel Disclosure of Exculpatory Evidence, 31 Aug. 2001, at 2.
105. Prosecutor v. Krstić, Case No. IT-98-33-A, Scheduling Order, 1March 2002.
106. Prosecutorv.Krnojelac,CaseNo. IT-97-25-T, DecisiononMotionbyProsecution toModifyOrder forCompliance with Rule 68, 1 Nov. 1999.
107. Prosecutorv.Krnojelac., paras. 7, 11.
108. In some cases, in the light of allegations made by the accused that Rule 68 material in the possession of the prosecutor was not being disclosed to it, and in circumstances where the prosecutor failed to assert expressly that this was not so, the trial chamber has ordered that the prosecutor comply and sought assurances from the prosecutor that it will do so. Prosecutor v. Kordić and čerkez, Decision on Motions to Extend for Filing Appellant's Briefs, Case No. IT-95-14/2-A, 11 May 2001, para. 15; Prosecutor v. Krnojelac, Case No. IT-97-25-T, Decision onMotion by Prosecution toModify Order for Compliance with Rule 68, 1 Nov. 1999.
109. Prosecutor v. Brd-anin and Talić, Decision on ‘Motion for Relief from Rule 68 Violations by the Prosecutor and for Sanctions to be Imposed Pursuant to Rule 68bis and Motion for Adjournment while Matters Affecting Justice and a Fair Trial can be Resolved’, Case No. IT-99-36-T, 30 Oct. 2002, para. 23. The earlier decision relied upon is Prosecutor v. Blaškić, Case No. IT-95-14-T, Decision on the DefenceMotion for Sanctions for the Prosecutor's Continuing Violation of Rule 68, 28 Sept. 1998.
110. Prosecutor v. Kordić and čerkez, Case No. IT-95-14/2-A, Decision on Motions to Extend Time for Filing Appellant's Briefs, 11May 2001, para. 9.
111. Prosecutor v. Milošević, Case No. IT-02-54-AR108bis and AR73.3, Public Version of the Confidential Decision on the Interpretation and Application of Rule 70, 23 Oct. 2002, para. 19.
112. Prosecutor v. Milošević., para. 20.
113. Prosecutor v. Milošević., para. 23.
114. Further, where a witness agrees to disclosure and gives evidence under the cover of Rule 70, an accused in other proceedings who claims that information bears a legitimate forensic purpose to his case will have no access to that information without the authorization of the witness to the prosecution to disclose that evidence to that accused., para. 25
115. Further, where a witness agrees to disclosure and gives evidence under the cover of Rule 70, an accused in other proceedings who claims that information bears a legitimate forensic purpose to his case will have no access to that information without the authorization of the witness to the prosecution to disclose that evidence to that accused., para. 26.
116. Further, where a witness agrees to disclosure and gives evidence under the cover of Rule 70, an accused in other proceedings who claims that information bears a legitimate forensic purpose to his case will have no access to that information without the authorization of the witness to the prosecution to disclose that evidence to that accused., para. 29.
117. Further, where a witness agrees to disclosure and gives evidence under the cover of Rule 70, an accused in other proceedings who claims that information bears a legitimate forensic purpose to his case will have no access to that information without the authorization of the witness to the prosecution to disclose that evidence to that accused., para. 31.
118. Prosecutor v. Blaškić, Decision of Trial Chamber I on the Prosecutor's Motion for Video Disposition and ProtectiveMeasures, Case No. IT-95-14-T, 11 Nov. 1997, paras. 26-30.
119. Decision of Trial Chamber I on the Prosecutor's Motion for Video Disposition and ProtectiveMeasures., para. 36.
120. Decision of Trial Chamber I on the Prosecutor's Motion for Video Disposition and ProtectiveMeasures., para. 37.
121. Decision of Trial Chamber I on the Prosecutor's Motion for Video Disposition and ProtectiveMeasures., para. 14.
122. Prosecutor v. Brd-anin and Talić, Public Version of the ConfidentialDecision on the Alleged Illegality of Rule 70 of 6May 2002, 23May 2002, para. 20; Decision on ‘Motion for Relief from Rule 68Violations by the Prosecutor and for Sanctions to be Imposed Pursuant to Rule 68bis andMotion forAdjournment whileMattersAffecting Justice and a Fair Trial can be Resolved’, Case No. IT-99-36-T, 30 Oct. 2002, para. 29.
123. Prosecutor v. Blaškić, Decision of Trial Chamber I on the Prosecutor's Motion for Video Disposition and ProtectiveMeasures, Case No. IT-95-14-T, 11 Nov. 1997, para. 10.
124. Prosecutor v. Brd-anin andTalić, CaseNo. IT-99-36-PT, PublicVersionof theConfidentialDecisionontheAlleged Illegality of Rule 70 of 6May 2002, 23May 2002, para. 6.
125. Prosecutor v. Brd-anin andTalić., para. 8.
126. Prosecutor v. Brd-anin andTalić., para. 20.
127. Prosecutor v. Brd-anin andTalić. para. 22.
128. Prosecutor v. Brd-anin andTalić., para. 23.
129. Prosecutor v. Brd-anin andTalić., para. 26.
130. Prosecutor v. Milutinović, Šainović and Odjanić, Case No. IT-99-37-PT, Motion to Require Disclosure of Rule 68 Material Obtained Pursuant to Rule 70, 30 Oct. 2002.
131. Prosecutor v. Milutinović., Prosecution's Response toGeneralOdjanić ‘sMotion to RequireDisclosure of Rule 68MaterialObtained Pursuant to Rule 70, 13 Nov. 2002.
132. Prosecutor v. Milutinović., Defence Reply Brief, 20 Nov. 2002.
133. Prosecutor v.Krstić, CaseNo. IT-98-33-T,DecisiononProsecutor'sRequest toDiscloseClosedSessionTestimony and Under Seal Exhibits from Case No. IT-98-33-T, 1 Oct. 2001; Prosecutor v. Blaškić, Case No. IT-95-14-T; Prosecutor v. Blaškić, Case No. IT-95-14-A, Order in Relation to the Application by Thomir Blaškić for Access to Non-Public Transcripts and Exhibits, 11 Oct. 2001; Prosecutor v. Kordić and čerkez, Case No. IT-95-14/2-A, Decision on Prosecution's Request for Reconsideration, 31 Oct. 2002; Prosecutor v. Ljubicic, Case No. IT-00-41-PT, Decision on ‘Enver Hadzihasanovic, Mehmed Alagic and Amir Kubura's Joint Motion for Access to Confidential SupportingMaterial Transcripts and Exhibits’, 28 June 2002.
134. Prosecutor v. Blaškić, Case No. IT-95-14-A, Decision to Stay Matter of Access to Non-Public Materials, 24 Jan. 2002; Decision on Prosecutor's Request for Authorisation to Delay Disclosure of Rule 70 Information, 6May 1998.
135. Prosecutor v. Milutinović, Šainović and Odjanić, Case No. IT-99-37-1, Decision on Application by Dragoljub Ojdanić for Disclosure of Ex Parte Submissions, 8 Nov. 2002, para. 24.
136. Decision on Application by Dragoljub Ojdanić for Disclosure of Ex Parte Submissions, para. 19.
137. Prosecutor v. Milošević, Case No. IT-02-54-AR108bis and AR73.3, Public Version of the Confidential Decision on the Interpretation and Application of Rule 70, 23 Oct. 2002.
138. Prosecutor v. Aleksovski, Case No. IT-95-14/1-A, Judgement.
139. Prosecutor v. Blaškić, CaseNo. IT-95-14-T,Decision on Prosecutor's Request for Authorisation toDelayDisclosure of Rule 70 Information, 6May 1998, para. 2.
140. Prosecutor v. Blaškić., para. 3.
141. Prosecutor v. Blaškić., para. 14.
142. Prosecutor v. Milošević, Case No. IT-02-54-T, Decision on Prosecution Motion for Trial-Related Protective Measures forWitnesses (Bosnia), 30 July 2002, paras. 4-5.
143. Prosecutor v. Brd-anin and Talić, Case No. IT-99-36-PT, Decision on Motion by Momir Talić for Access to Confidential Documents, 31 July 2000.
144. Prosecutor v. Brd-anin and Talić, Case No. IT-99-36-PT, Second Decision on Motions by Radoslav Brd-anin and Momir Talić for Access to Confidential Documents, 15 Nov. 2000, paras 10-11; see also Prosecutor v. Ljubicic, Case No. IT-00-41-PT, Decision on ‘Enver Hadzihasanovic, Mehmed Alagic and Amir Kubura's Joint Motion for Access to Confidential SupportingMaterial Transcripts and Exhibits’, 28 June 2002.
145. Prosecutor v. Brd-anin and Talić, Case No. IT-99-36-PT, Decision on Motion by Momir Talić for Access to Confidential Documents, 31 July 2000.
146. Decision on Motion by Momir Talić for Access to Confidential Documents, 31., paras. 2-3.
147. Decision on Motion by Momir Talić for Access to Confidential Documents, 31., para. 5; see also Decision onMotion by Radoslav Brd-anin forAccess to Confidential Documents, 22Aug. 2000.
148. Prosecutor v. Brd-anin and Talić, Case No. IT-99-36-PT, Decision on Motion by Momir Talić for Access to Confidential Documents, 31 July 2000, para. 6.
149. Decision on Motion by Momir Talić for Access to Confidential Documents., para. 9.
150. Prosecutor v. Blaškić, Case No. IT-95-14-A, Decision on the Request for Testimony Given in the Blaškić Case to be Disclosed in the Kordić and čerkez Case, 19 April 2000, 2.
151. Prosecutor v. Blaškić, Case No. IT-95-14-A, Decision on Appellants Dario Kordić and Mario čerkez's Supplemental Request for Assistance in Gaining Access to Non-Public Post Trial Submissions, Appellate Briefs, and Hearing Transcripts in Prosecutor v. Blaškić, 16 Oct. 2002.
152. Prosecutor v. Blaškić., para. 7.
153. Prosecutor v. Blaškić., para. 8.
154. Prosecutor v. Blaškić., paras. 9-10.
155. Prosecutor v. Blaškić., para. 12.
156. Prosecutor v. Blaškić, Confidential Decision onMotion for ProtectiveMeasures for NewWitnesses on Appeal, 27May 2002.
157. Rule 115 provides: ‘(A) A party may apply by motion to present before the Appeals Chamber additional evidence whichwas not available at trial. (B) The Appeals Chamber shall authorise the presentation of such evidence if it considers that the interest of justice so requires’.
158. See Prosecutor v. Kupreškić, Case No. IT-95-16-A, Decision on theMotions of Drago Josipovic, Zoran Kupreškić and Vlatko Kupreškić to Admit Additional Evidence Pursuant to Rule 115 and for JudicialNotice to be Taken Pursuant to Rule 94(B), 8May 2001, para. 3,where theAppeals Chamber stated the following: ‘Before turning to the substance of the motions, the Appeals Chamber feels compelled to communicate a strong word of caution to the parties involved in this appeal. At the last status conference held on 10 April 2001, it was brought to the attention of the parties that this appeal is advancing towards its concluding phase and that the AppealsChamberfirmly intends torecommencethe briefing schedule in the verynear future, so that briefing can be completed and oral argument heard in time for a judgement to be rendered within the next several months. During the course of this appeal, the Appeals Chamber has been inundated with motions for the admission of additional evidence pursuant to Rule 115 of the Rules of Procedure and Evidence ('the Rules'). While the right to a full appeal process is of the utmost importance, this right must be carefully balanced against the equally important requirement that an appeal be dealt with expeditiously; it is patently contrary to the interests of justice for the appeal process to become overly-long and protracted or to deteriorate into a second trial inwhich the old trial strategies and omissions can be revisited. This appeal has now reached a stage where it must move forward; the Appeals Chamber has decided (or will decide in the immediate future) 20 separatemotions for the admission of additional evidence, and will have conducted two hearings on these motions. To avoid further delay, the Appeals Chamber emphasises to the parties at this point that only the gravest of circumstances will justify further motions to admit additional evidence; unless such motions make out a strong case that the “interests of justice” require admission, the Appeals Chamber will deal with them in a summary fashion’.
159. Prosecutor v. Tadić, Decision on Appellant's Motion for the Extension of the Time-Limit and Admission of Additional Evidence, Case No. IT-94-1-A, 15 Oct. 1998 ('Tadić Rule 115 Decision'), para. 47.
160. Tadić, Rule 115 Decision, paras. 48, 50.
161. Kupreškić Appeal Judgement, para. 58. In a pre-appeal decision of the Appeals Chamber it was stated that where due diligence wasnot shown, in ‘rare and extraordinary’ circumstances theAppealsChambermaystill allow that evidence to be admitted in the interests of justice; see Prosecutor v. Kupreškić and others, Redacted Decisions of the Appeals Chamber of 26 Feb. 2001 and 11 April 2001, 30May 2002, para. 7.
162. Kupreškić Appeal Judgement, para. 75; see Prosecutor v. Kupreškić and others, RedactedDecisions of the Appeals Chamber of 26 Feb. 2001 and 11 April 2001, 30May 2002, paras. 5-9, where the test is stated as ‘would’ rather than ‘could’.
163. Kupreškić Appeal Judgement, para. 69.
164. ‘[N]ew material will be considered alongside the material already in the trial record to see if the Trial Chamber's judgement is sustainable by the newly enlarged record on appeal and the usual deference will be given to the Trial Chamber's findings of fact insofar as they are based on the material before the court at the time. The job of the Appeals Chamber is thus to decide in a simulation of sorts: given the finding of the trial court made on the evidence before it (and assuming that it passes muster for if it does not the case must be reversed or sent back in any case, regardless of the new evidence), would the Trial Chamber have probably come to a different conclusion if this new evidence had been before it?’. Prosecutor v. Kupreškić and others, Redacted Decisions of the Appeals Chamber of 26 Feb. 2001 and 11 April 2001, 30May 2002, para. 8.
165. Kupreškić Appeal Judgement, para. 76.
166. Prosecutor v. Blaškić, Case No. IT-95-14-A, Scheduling Order, 31 Oct. 2002.
167. ‘The Appeals Chamber can conceive of situations where a fair trial is not possible because witnesses central to the defence case do not appear due to the obstructionist efforts of a State. In such circumstances, the Defence, after exhausting all the other measures mentioned above, has the option of submitting a motion for a stay of proceedings’. Tadić Appeal Judgement, para. 55.
168. Prosecutor v. Blaškić, Case No. IT-94-15-T, Decision, 27 Jan. 1997, para. 51. The accused filed a motion for disclosure of exculpatorymaterial alleged to be in the possession of the prosecution. His counsel suggested that the trial chamber appoint an independent arbitrator to go through thefiles of the prosecution to identify thematerials which could be exculpatory. The trial chamber held that it was unnecessary.