According to the Defence, it was entitled to the witness’s previous evidence and “to the protection which flows from the disclosure rules, which is a reasonable time to consider that evidence, investigate it, and prepare for cross-examination.”
The Prosecution informed the Defence of the witness’s refusal to cooperate with the Prosecution and for that reason there was no prior ICTY statement.
The Prosecution also argued that there is no requirement that, before a witness can be called as a court witness, that person is compelled to write a statement.
The Trial Chamber accepted the Prosecution arguments and noted that an "uncooperative" witness may give testimony without providing the Prosecution with a prior statement.
The Chamber recalled that the obligation to disclose witness statements extends to all prior statements in the custody or under the control of the Prosecution. However, Rule 66 does not require the Prosecution to produce a statement.
The Chamber emphasized that the Prosecution is neither able nor obliged to disclose documents that are not in its possession, or to which it does not have access.
The Chamber also found that the fact that a witness does not have a prior statement does not render a trial unfair or automatically put a party at an unjust disadvantage.
A witness may provide evidence which was unforeseen to both parties during his viva voce examination, independent of any previous statements, and that it is for the Chamber to determine, on a case by case basis, whether this new information could affect the fairness of the trial proceedings.
Stanišić and Simatović, Reasons for Decision on Postponement of Cross-Examination of the Testimony of Witness Milovanović, Case No. IT-03-69-T, T. Ch., 22 July 2010.