Unprecedented Legal Procedures / Measures

Notion(s) Filing Case
Decision on Subpoenaing Tolimir - 13.11.2013 KARADŽIĆ Radovan

47.     The Appeals Chamber also notes Tolimir’s assertion that the fact that no accused in an ongoing case before the Tribunal has ever been subpoenaed to testify in another case before the Tribunal, and the fact that neither the Prosecution nor any of the defence teams in any of the cases in the Tribunal’s history has ever made such a request, is indicative of a binding Tribunal policy against the measure.[1] The unprecedented nature of a proposed measure does not per se equate to a policy of binding abstention from that measure. The decision whether to call a witness to testify is contingent upon a range of considerations, which may or may not result in a witness being called. This is equally applicable to the measure of summoning an accused or convicted person to testify in another case before the Tribunal. As the Prosecution submits, Tolimir’s argument “ignores the factors such as reliability, credibility and necessity, which inform the decision to call an accused or convicted person to testify in the trial of another accused”.[2]

[1] Appeal, paras 21-23; Reply to the Prosecution Submissions on the Appeal, paras 7-10.

[2] Prosecution Submissions on the Appeal [Prosecution’s Submissions on Tolimir’s Appeal, 20 June 2013], para. 4.

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