34.     The Appeals Chamber recalls that “[s]ubpoenas should not be issued lightly, for they involve the use of coercive powers and may lead to the imposition of criminal sanction”.[1] Thus, the prerequisites for subpoena issuance, embodied in the evidentiary threshold, safeguard against the potentially oppressive deployment of subpoenas generally. However, the proposed use of subpoenas against accused persons and appellants raises the additional consideration of possible self-incrimination relative to their status as individuals with ongoing proceedings before the Tribunal. The question therefore is whether an accused or appellant compelled by subpoena to testify in another case before the Tribunal is in effect exposed, in relation to his own case, to the possibility of compelled self-incrimination in the form of either: (i) inadvertent self-incrimination, whereby the accused or appellant unwittingly makes self-incriminating statements; or (ii) deliberate self-incrimination whereby a Chamber may compel self-incriminating statements from the accused or appellant pursuant to Rule 90(E) of the Rules.

[…]

36.     The Appeals Chamber notes that the chapeau to Article 21(4) of the Statute relates the rights listed thereunder to “the determination of any charge” against an accused. Thus, whereas Article 21(4)(g) of the Statute operates to prohibit the compulsion of an accused’s testimony in his own proceedings, it does not, sensu stricto, preclude the possibility of an accused being compelled to testify in other proceedings, which do not involve the determination of charges against him. Thus, Article 21(4)(g) of the Statute does not as such operate to prohibit the compulsion of Tolimir’s testimony in the Karadžić case.[2]

[…]

50.     […] international law and the laws of various national jurisdictions indicate the permissibility of distinguishing between an accused’s own case and the cases of other accused persons for the purposes of compelling an accused’s testimony. The Appeals Chamber emphasises that an accused or appellant may be compelled to testify in other cases before the Tribunal due to the fact that any self-incriminating information elicited in those proceedings cannot be directly or derivatively used against him in his own case. By contrast, an accused or appellant is not compellable in his own case, whether at the request of his co-accused or the Prosecution, as this may violate his right under Article 21(4)(g) of the Statute. […]

533. A review of the procedural history and the Trial Chamber’s conduct following the issuance of the Subpoena Decision indicates that the Trial Chamber did not require Gatsinzi to comply with its subpoena. There is nothing in Rule 54 of the Rules that makes it mandatory for the Trial Chamber to issue a subpoena. However, the Appeals Chamber considers that because it is a binding order, the decision to issue a subpoena triggers a responsibility on the Trial Chamber to ensure compliance therewith. As such, once the Trial Chamber decided that Gatsinzi’s testimony was necessary and of sufficient importance for the conduct of the trial to use coercive measures to assist Bagosora in obtaining it, it became incumbent upon the Trial Chamber to take every measure within its capacity to enforce its order in the event of non-compliance.[1]

534. In the Appeals Chamber’s view, Gatsinzi’s request for a video-link constituted a rejection of the explicit instruction of the Subpoena Decision that he personally appear before the Trial Chamber.[2] Contrary to the Trial Chamber’s position that “the conditions stipulated by the witness led to his non-appearance”,[3] the Appeals Chamber considers that it was the Trial Chamber’s failure to react to Gatsinzi’s conditions that led to his non-appearance. If the Trial Chamber reconsidered its Subpoena Decision, it should have done so explicitly, and with reasons.[4] It did not. Rather, the Trial Chamber repeatedly claimed that the subpoena remained in force, but took no steps to enforce it despite Bagosora’s repeated requests, which created confusion for Bagosora as to how to proceed.

535. In addition, the Trial Chamber’s indication in its 2 May 2007 Decision that Bagosora had the opportunity to make an application for a video-link but chose not to do so,[5] erroneously presumes that this was the only option open to Bagosora to secure Gatsinzi’s testimony. Bagosora chose to seek enforcement of the subpoena as it stood, initiation of contempt proceedings in case of continued non-compliance, and a stay of proceedings until the matter was resolved.[6] Instead, the Trial Chamber continuously failed to definitively answer Bagosora’s requests in any form, and then found against him at a late stage in the proceedings because he did not pursue a different course of action.

536. The Appeals Chamber finds nothing to justify the Trial Chamber’s failure to instruct the Registrar to inform Gatsinzi that his conditions were not acceptable. If the Trial Chamber was not ready to enforce the subpoena, it should have clarified its refusal to Bagosora earlier, called Gatsinzi as a Chamber witness, or proprio motu ordered the testimony to be heard by video-link despite Bagosora’s disagreement with such modalities. Bagosora’s rejection of the conditions imposed by Gatsinzi could not reasonably have been interpreted by the Trial Chamber as a waiver of his desire to have Gatsinzi testify altogether. Bagosora has never faltered in asserting the material importance of Gatsinzi’s testimony to his defence, and the Trial Chamber explicitly acknowledged this to be so.[7]

537. The Appeals Chamber is mindful of the Trial Chamber’s discretion under Rule 85 of the Rules to limit the presentation of evidence “in the interests of justice”. In this case, however, because the lapses in time between the 2 May 2007 and 23 May 2007 Decisions in relation to the 10 October 2006 Motion[[8]] were attributable to the Trial Chamber, the Appeals Chamber considers that the Trial Chamber abused its discretion when it considered the “late stage” and “the conclusion of evidentiary proceedings” as its sole basis for finding it “in the interests of justice to conclude this trial and to proceed with closing arguments” without hearing Gatsinzi’s testimony.[9]

Furthermore, the Appeals Chamber found that the Trial Chamber’s failure to enforce the subpoena against Gatsinzi amounted to a violation of Bagosora’s right to a fair trial, but that any prejudice he suffered as a result of such violation was remedied by the fact that Gatsinzi was ultimately heard on appeal. Though Gatsinzi’s testimony would preferably have been heard at trial, the Appeals Chamber determined that this would have done little in fact to assist Bagosora’s defence. Such determination was reached after considering all the evidence on the record, which showed that crucial elements to which Gatsinzi was expected to testify had already been introduced into evidence by other means, thereby affording Bagosora the opportunity to address them at trial. More importantly, however, the Appeals Chamber noted that during his live testimony on appeal, Gatsinzi did not testify in Bagosora’s favour, and that his testimony suffered a number of deficiencies in terms of credibility and reliability. See paras. 543-546.

43. The Appellant submits that the Appeals Chamber should order the Prosecution to submit a signed, sworn affidavit to certify that it is aware of its continuing obligations under sub-Rule 66 (A) (ii) and Rule 68 and has produced to the Appellant all material requested […].

45. This type of order is one that should only be made by a Chamber in very rare instances.  The Prosecution is expected to fulfil its duties in good faith.  This has been acknowledged in the document known as the Standards of Professional Conduct for Prosecution Counsel, issued by the Chief Prosecutor on 14 September 1999.  Only where the Defence can satisfy a Chamber that the Prosecution has failed to discharge its obligations should an order of the type sought be contemplated. 

26. […] [I]t is self-evident that the International Tribunal, in order to bring to trial persons living under the jurisdiction of sovereign States, not being endowed with enforcement agents of its own, must rely upon the cooperation of States. The International Tribunal must turn to States if it is effectively to investigate crimes, collect evidence, summon witnesses and have indictees arrested and surrendered to the International Tribunal. The drafters of the Statute realistically took account of this in imposing upon all States the obligation to lend cooperation and judicial assistance to the International Tribunal. This obligation is laid down in Article 29[1] and restated in paragraph 4 of Security Council resolution 827 (1993)[2]. Its binding force derives from the provisions of Chapter VII and Article 25 of the United Nations Charter and from the Security Council resolution adopted pursuant to those provisions. The exceptional legal basis of Article 29 accounts for the novel and indeed unique power granted to the International Tribunal to issue orders to sovereign States (under customary international law, States, as a matter of principle, cannot be “ordered” either by other States or by international bodies). Furthermore, the obligation set out - in the clearest of terms - in Article 29 is an obligation which is incumbent on every Member State of the United Nations vis-à-vis all other Member States. The Security Council, the body entrusted with primary responsibility for the maintenance of international peace and security, has solemnly enjoined all Member States to comply with orders and requests of the International Tribunal. The nature and content of this obligation, as well as the source from which it originates, make it clear that Article 29 does not create bilateral relations. Article 29 imposes an obligation on Member States towards all other Members or, in other words, an “obligation erga omnes partes”[3]. By the same token, Article 29 posits a community interest in its observance. In other words, every Member State of the United Nations has a legal interest in the fulfilment of the obligation laid down in Article 29[4] (on the manner in which this legal interest can be exercised, see below, paragraph 36).

As for States which are not Members of the United Nations, in accordance with the general principle embodied in Article 35 of the Vienna Convention on the Law of Treaties[5], they may undertake to comply with the obligation laid down in Article 29 by expressly accepting the obligation in writing. […]

See also paras 27-29.

25. The Appeals Chamber holds the view that the term “subpoena” (in the sense of injunction accompanied by threat of penalty) cannot be applied or addressed to States. This finding rests on two grounds.

First of all, the International Tribunal does not possess any power to take enforcement measures against States. Had the drafters of the Statute intended to vest the International Tribunal with such a power, they would have expressly provided for it. In the case of an international judicial body, this is not a power that can be regarded as inherent in its functions[1]. Under current international law States can only be the subject of countermeasures taken by other States or of sanctions visited upon them by the organized international community, i.e., the United Nations or other intergovernmental organizations.

Secondly, both the Trial Chamber^[] and the Prosecutor^[] have stressed that, with regard to States, the ‘penalty’ attached to a subpoena would not be penal in nature. Under present international law it is clear that States, by definition, cannot be the subject of criminal sanctions akin to those provided for in national criminal systems.

With regard to States, the Appeals Chamber therefore holds that the term “subpoena” is not applicable and that only binding “orders” or “requests” can be addressed to them.

58. The Appeals Chamber holds the view that, normally, the International Tribunal should turn to the relevant national authorities to seek remedies or sanctions for non-compliance by an individual with a subpoena or order issued by a Judge or a Trial Chamber. Legal remedies or sanctions put in place by the national authorities themselves are more likely to work effectively and expeditiously. However, allowance should be made for cases where resort to national remedies or sanctions would not prove workable. This holds true for those cases where, from the outset, the International Tribunal decides to enter into direct contact with individuals, at the request of either the Prosecutor or the defence, on the assumption that the authorities of the State or Entity would either prevent the International Tribunal from fulfilling its mission (see above, paragraph 55) or be unable to compel a State official to comply with an order issued under Article 29 (see above, the case mentioned in paragraph 51). […]

59. The remedies available to the International Tribunal range from a general power to hold individuals in contempt of the International Tribunal (utilising the inherent contempt power […]) to the specific contempt power provided for in Rule 77. […] [I]n absentia proceedings may be exceptionally warranted in cases involving contempt of the International Tribunal, where the person charged fails to appear in court, thus obstructing the administration of justice. These cases fall within the ancillary or incidental jurisdiction of the International Tribunal.

If such in absentia proceedings were to be instituted, all the fundamental rights pertaining to a fair trial would need to be safeguarded. Among other things, although the individual’s absence would have to be regarded, under certain conditions, as a waiver of his “right to be tried in his presence”, he should be offered the choice of counsel. The Appeals Chamber holds the view that, in addition, other guarantees provided for in the context of the European Convention on Human Rights should also be respected[1].

31. [...] Under Rule 54 of the Rules, a Trial Chamber may, at the request of either party or on its own initiative, issue a subpoena when it finds that doing so is “necessary for the purposes of an investigation or for the preparation or conduct of the trial.”  The discretion of the Trial Chambers, however, is not unfettered.  They must take into account a number of other considerations before issuing a subpoena.  Subpoenas should not be issued lightly, for they involve the use of coercive powers and may lead to the imposition of a criminal sanction.

32. In determining whether to issue a subpoena, a Trial Chamber has first of all to take into account the admissibility and potential value of the evidence sought to be obtained. Under Rule 89(C) of the Rules, a Trial Chamber “may admit any relevant evidence which it deems to have probative value,” and under Rule 89(D) may “exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial.”  Secondly, the Trial Chamber may need to consider other factors such as testimonial privileges.  For instance, Rule 97 of the Rules states that “all communications between lawyer and client shall be regarded as privileged, and consequently not subject to disclosure at trial, unless: (i) the client consents to such disclosure; or (ii) the client has voluntarily disclosed the content of the communication to a third party, and that third party then gives evidence of that disclosure.”  Similarly, in the Simić case, the Trial Chamber made it clear that the ICRC has a right under customary international law to non-disclosure of information so that its workers cannot be compelled to testify before the International Tribunal.[1]

[...]

46. The Appeals Chamber considers that in order to decide whether to compel a war correspondent to testify before the International Tribunal, a Trial Chamber must conduct a balancing exercise between the differing interests involved in the case. On the one hand, there is the interest of justice in having all relevant evidence put before the Trial Chambers for a proper assessment of the culpability of the individual on trial. On the other hand, there is the public interest in the work of war correspondents, which requires that the newsgathering function be performed without unnecessary constraints so that the international community can receive adequate information on issues of public concern.

[...]

50. [...] [T]he Appeals Chamber holds that in order for a Trial Chamber to issue a subpoena to a war correspondent a two-pronged test must be satisfied.  First, the petitioning party must demonstrate that the evidence sought is of direct and important value in determining a core issue in the case.  Second, it must demonstrate that the evidence sought cannot reasonably be obtained elsewhere.

10.     Rule 54 permits a judge or a Trial Chamber to make such orders or to issue such subpoenas as may be “necessary […] for the preparation or conduct of the trial”.  Such a power clearly includes the possibility of a subpoena being issued requiring a prospective witness to attend at a nominated place and time in order to be interviewed by the defence where that attendance is necessary for the preparation or conduct of the trial.  By analogy with applications for access to confidential material produced in other cases (where a legitimate forensic purpose for that access must be shown), an order or a subpoena pursuant to Rule 54 would become “necessary” for the purposes of that Rule where a legitimate forensic purpose for having the interview has been shown.  An applicant for such an order or subpoena before or during the trial would have to demonstrate a reasonable basis for his belief that there is a good chance that the prospective witness will be able to give information which will materially assist him in his case, in relation to clearly identified issues relevant to the forthcoming trial.[1]

See also paragraphs 12-13.

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CONSIDERING that, pursuant to Article 28 of the Statute, States shall comply without undue delay with orders issued by the Mechanism;

[…]

CONSIDERING that, in accordance with Rules 8(A) and 131 of the Rules of Procedure and Evidence of the Mechanism (“Rules”), non-compliance with any order relating to a proceeding before the Appeals Chamber may be reported to the United Nations Security Council;[1]

[…]

FIND that the Government of the Republic of Turkey has failed to comply with its obligations under Article 28 of the Statute to cooperate with the Mechanism in relation to the proceedings in this case and to comply without undue delay with a judicial order issued by the Mechanism; and

DETERMINE that, pursuant to Rules 8(A) and 131 of the Rules, this matter shall be reported to the United Nations Security Council.