The Prosecution to Rest Its Case: What to Expect

As the Prosecution nears the end of its case against Slobodan Milosevic for 66 counts of war crimes, crimes against humanity and genocide, it may be helpful to look at what procedurally lies ahead. The following summary is based on the ICTY Rules of Procedure and Evidence, which in some cases are subject to variance at the Court's discretion.

On February 17, 2004, fifteen trial days from today, the Prosecution will reach the end of the time the Trial Chamber has allotted it for the presentation of its case in chief. It will be just slightly over two years since the trial began on February 12, 2002, only 286 (partial) days of which were spent in trial. During that time, over 300 witnesses will have testified and hundreds of thousands of pages of documentation been submitted in what were originally two separate cases, one for crimes associated with the war in Kosovo and the other for crimes in the wars in Croatia and Bosnia-Herzegovina.

ICTY rules do not anticipate any summary or closing statement at this point in the trial. The Trial Chamber will adjourn for at least three months before Milosevic will be called upon to present his defense. While the Trial Chamber set the adjournment at three months, the Amici Curiae have asked the Appeals Chamber to overturn this decision and grant a longer time. The Appeals Chamber has not yet reached a decision.

At the end of the Prosecution's case in chief, the Defense or the Amici may ask the Court to acquit the Accused on charges which have not been supported by sufficient evidence to sustain a finding of guilt beyond a reasonable doubt. The Court can also do so at its own initiative.

About six weeks into the adjournment, the Trial Chamber will hold a Pre-Defense Conference where the Court will set the number of witnesses Milosevic will be allowed to call and the time he will be given to present his defense case. Either may be altered during trial with the Court's permission. The Trial Chamber has stated that Milosevic will be allowed the same amount of time to defend the case as the Prosecution took in presenting it. That does not equal 286 days, since the time Milosevic took for cross examination is not debited against the Prosecution. Indeed, the Prosecutor has claimed that Milosevic and the Amici used at least two-thirds of those 286 days in cross examination. The Trial Chamber has declared that it will grant the Prosecution the same amount of time they allowed Milosevic for cross examination. Given the excessive time taken by the Accused for cross examination, it can be anticipated that the Prosecution will take considerably less time for its cross examination. While this might shorten the Defense case, the reduced trial schedule of three partial days per week is expected to continue, barring unforeseen circumstances. As a result, time saved may not be as great as could otherwise be anticipated.

When Court resumes in three months, Milosevic is allowed to make an opening statement. While he made statements prior to the beginning of the Prosecution's case (first on Kosovo, then again on Croatia and Bosnia-Herzegovina), the Court appears to have considered these comments by an Accused, which the Rules permit. The Rules also provide Defence Counsel the right to make an opening statement at the beginning of its case. Milosevic has a dual role in the trial, as Accused and Counsel for himself.

Following the presentation of the Defense case, the Prosecutor has the right to present rebuttal evidence. In other words, the Prosecutor can present evidence on new matters raised by Milosevic in his case (such as self defense issues) and not addressed by the Prosecution already in its case in chief. The Defense then gets another opportunity to present evidence to answer the Prosecutor's response. Finally, the Court can summon witnesses itself or ask either party to present additional evidence.

After all the evidence has been presented, both Prosecution and Defense have the right to give closing arguments and to file a final trial brief, reviewing the charges and the evidence that they argue proves or fails to prove them. The Prosecutor has the right to give an additional statement to rebut anything new the Defense raised in its final argument. Sentencing issues are to be addressed in briefs and closing arguments. After hearing closing arguments, the Trial Chamber will declare the trial closed and the judges will adjourn to deliberate on the evidence and arguments. For far less complex cases, trial chambers have taken six or more months to reach a verdict. When they do, the Chamber will schedule a hearing where it reads a summary of its verdict, and, if there has been a conviction, pronounces sentence.

Either or both parties may then file an appeal over parts of the judgment and, if applicable, sentence with which they disagree. Another long procedure follows, during which both sides file briefs and reply to each other's briefs and present oral argument to a panel of the Appeals Chamber, which then adjourns to deliberate on the matters raised in the appeal(s). Again, the complexity of the law and evidence requires substantial time for deliberation, which may be a matter of months or years before a final judgment is rendered. Even then, if new evidence is found that might have affected the verdict, the parties can apply to the Tribunal for consideration of it, which could include a hearing or a retrial. Except, by that time in the Milosevic chronology, the Tribunal will have ceased to exist. Provision must be made for necessary proceedings following the end of the Tribunal's mandate, but its form is yet unknown.