24
of evidence via video-conference link from Banja Luka in the Republika Srpska, and
granting confidentiality and safe conduct to several Defence witnesses are set forth in the
Judgement of the Trial Chamber. 91 Indeed, the Decision on Admissibility of Additional
Evidence, by which the Defence was precluded from presenting additional evidence, was
based on the fact that the Defence had failed to establish that it would have been in the
interests of justice to admit such evidence. This indicates that the fact that it could not
present such evidence did not detract from the fairness of the trial.
54.
A further example of a measure of the Trial Chamber which was designed to assist
in the preparation and presentation of the Defence case is that the Trial Chamber��s Presiding
Judge brought to the attention of the President of the International Tribunal certain
difficulties concerning the possible attendance of three witnesses who had been summoned
by the Defence. 92 She requested the President of the International Tribunal to send a letter to
the Acting President of the Republika Srpska, Mrs. B. Plavsic, to urge her to assist the
Defence in securing the presence and cooperation of these Defence witnesses.
Consequently, on 19 September 1996, the President of the Tribunal sent a letter to
Mrs. Plavsic. In this letter, he made reference to obstacles encountered by the Defence in
securing the cooperation of these witnesses. In view, inter alia, of the accused’s right to a
fair trial, Mrs. Plavsic was therefore enjoined to “take whatever action is necessary
immediately to resolve this matter so that the Defence may go forward with its case.” 93
55.
The Appeals Chamber can conceive of situations where a fair trial is not possible
because witnesses central to the defence case do not appear due to the obstructionist efforts
of a State. In such circumstances, the defence, after exhausting all the other measures
mentioned above, has the option of submitting a motion for a stay of proceedings. The
Defence opined during the oral hearing that the reason why such action was not taken in the
present case may have been due to trial counsel’s concern regarding the long period of
detention on remand. The Appeals Chamber notes that the Rules envision some relief in
such a situation, in the form of provisional release, which, pursuant to Sub-rule 65(B), may
be granted “in exceptional circumstances”.
It is not hard to imagine that a stay of
proceedings occasioned by the frustration of a fair trial under prevailing trial conditions
91
Judgement, paras. 29-35.
T. 59, 60 (20 April 1999).
93
Letter from President Cassese to Mrs. B. Plavsic of 19 September 1996, referred to by Judge Shahabuddeen
during the hearing on 20 April 1999 (ibid.).
92
Case No.: -94-1-A
15 July 1999