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.

21. […] [I]t is consonant with the spirit of the Statute and the Rules to place a narrow interpretation on the term [“subpoena”] and construe it as referring only and exclusively to binding orders addressed by the International Tribunal, under threat of penalty, to individuals acting in their private capacity. The same holds true for the French term “assignation”, which must be taken exclusively to refer to orders directed to such individuals and involving a penalty for non-compliance.

38. The Appeals Chamber dismisses the possibility of the International Tribunal addressing subpoenas to State officials acting in their official capacity. Such officials are mere instruments of a State and their official action can only be attributed to the State. They cannot be the subject of sanctions or penalties for conduct that is not private but undertaken on behalf of a State. In other words, State officials cannot suffer the consequences of wrongful acts which are not attributable to them personally but to the State on whose behalf they act: they enjoy so-called “functional immunity”. […]

See also para. 41.

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.

143. The Appeals Chamber turns […] to Karadžić’s contentions concerning the decisions denying […] his request to subpoena the Eight Witnesses. These decisions relate to the general conduct of the trial, which are matters that fall within the discretion of the trial chamber.[1] In order to successfully challenge a discretionary decision, the appealing party must demonstrate that the trial chamber committed discernible error resulting in prejudice to that party.[2]

See also paras. 230, 276, 330.

[…]

148. […] [T]he Appeals Chamber observes that Rule 54 of the ICTY Rules provides, inter alia, that a trial chamber may issue subpoenas “as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial”. In interpreting this provision, the Appeals Chamber of the ICTY has stated:

The applicant seeking a subpoena must make a certain evidentiary showing of the need for the subpoena. In particular, he must demonstrate a reasonable basis for his belief that the prospective witness is likely to give information that will materially assist the applicant with respect to clearly identified issues in the forthcoming trial. To satisfy this requirement, the applicant may need to present information about such factors as the position held by the prospective witness in relation to the events in question, any relationship the witness may have had with the accused which is relevant to the charges, any opportunity the witness may have had to observe or to learn about those events, and any statements the witness made to the Prosecution or others in relation to them. The Trial Chamber is vested with discretion in determining whether the applicant succeeded in making the required showing, this discretion being necessary to ensure that the compulsive mechanism of the subpoena is not abused. As the Appeals Chamber [of the ICTY] has emphasized, “[s]ubpoenas should not be issued lightly, for they involve the use of coercive powers and may lead to the imposition of a criminal sanction.”

In deciding whether the applicant has met the evidentiary threshold, the Trial Chamber may properly consider both whether the information the applicant seeks to elicit through the use of subpoena is necessary for the preparation of his case and whether this information is obtainable through other means. The background principle informing both considerations is whether, as Rule 54 requires, the issuance of a subpoena is necessary “for the preparation or conduct of the trial.” The Trial Chamber’s considerations, then, must focus not only on the usefulness of the information to the applicant but on its overall necessity in ensuring that the trial is informed and fair.[3]

The Appeals Chamber adopts this interpretation.[4]

See also para. 277.