2010-10-04, The Hague, The Netherlands. Judge Christoph Flügge granted the OTP’s motion for leave to amend the Rule 65ter Witness List to include Professor Berko Zecevic, as a viva voce witness. Prof. Zecevic’s evidence pertains to the construction and use of modified air bombs by the VRS in Bosnia and Herzegovina in 1994–1995. More specifically, it pertains to the Accused’s suggestion allegedly made to the Command of the VRS Main Staff to destroy the population of Zepa by means of chemical weapons or aerosol grenades and bombs.
Statement of Law
In determining whether the motion is “in the interests of justice” the Chamber must ensure that there will be no prejudice to the Accused as a result of the late addition of witnesses. Factors to be taken into account in this regard are
- the prima facie relevance of the proposed evidence and probative value in accordance with Rule 89(C);
- whether the moving party has acted diligently in identifying the proposed witness(es) and thereby demonstrated good cause for the request;
- the stage of the proceedings at which the request is made;
- whether the addition would result in undue delay.
The Chamber must
- be mindful of the Prosecution’s duty to present the available evidence in its endeavour to prove its case and
- must ensure that the right of the accused to have adequate time and facilities to prepare his defence is fully respected.
The Chamber granted the motion on the ground that
- the evidence was directly relevant to the Accused’s intent;
- the proposed evidence did not warrant a substantial reconsideration of the Defence strategy;
- new testimony would not cause undue delay in the proceedings in view of the nature of his evidence and the trial stage.
The motion was granted even though the Chamber found that the proposed evidence would require a review of extensive additional materials, and despite the OTP not addressing the question of delay in their submissions. The Chamber found that provided the Accused is given adequate time for preparation, the Accused would not be prejudiced by the addition of a new witness to the 65 ter Witness List.