Minimising hardship to witnesses

Notion(s) Filing Case
Decision on Joinder - 25.10.2006 GOTOVINA et al.
(IT-01-45-AR73.1, IT-03-73-AR73.1, IT-03-73-AR73.2)

The Appeals Chamber noted the Trial Chamber’s consideration of the Prosecution’s position that “most [of its] witnesses for the two cases are identical and likely need to be called for both trials”.[1] Consequently, the Appeals Chamber found that there will be lesser hardship for some witnesses if only one trial is held and that this should weigh in favour of joinder.[2]  Moreover, if some witnesses are specific for charges alleged with regard to just one of the appellants, it is unlikely that they will suffer hardship by being cross-examined by each Appellant for a total of three times.  In any event, as previously noted by the Appeals Chamber, under Rule 90(F) of the Rules, the Trial Chamber can mitigate any potential burden to a witness caused by consecutive cross-examination because it “has discretion to regulate the examination of witnesses so as to avoid repetitive questioning during cross-examination” subject to the obligation to respect the rights of the accused.[3]

[1] Impugned Decision, para. 77.

[2] Decision, para. 47.

[3] Ibid, para. 48, referring to Prosecutor v. Zdravko Tolimir, Radivoje Miletić & Milan Gvero, Case No. IT-04-80-AR73.1, Decision on Radivoje Miletić’s Interlocutory Appeal Against the Trial Chamber’s Decision on Joinder of Accused, 27 January 2006, para. 29. Rule 90 (F) provides that “[t]he Trial Chamber shall exercise control over the mode and order of interrogating witnesses and presenting evidence so as to (i) make the interrogation and presentation effective for the ascertainment of the truth; and (ii) avoid needless consumption of time.”

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ICTR Rule Rule 48 ICTY Rule Rule 48