IN TRIAL CHAMBER I
Judge Alphons Orie, Presiding
Judge Amin El Mahdi
Judge Rafael Nieto-Navia
Mr. Hans Holthuis
2 April 2003
DECISION ON REBUTTAL EVIDENCE
The Office of the Prosecutor:
Mr. Mark Ierace
Ms. Mara Pilipovic
Mr. Stéphane Piletta-Zanin
- Following the close of the Defence case, the Prosecution informed the Trial
Chamber I, Section B (“the Trial Chamber”) of the International Tribunal for
the Prosecution of Persons Responsible for Serious Violations of International
Humanitarian Law Committed in the Territory of the Former Yugoslavia since
1991 (“the Tribunal”) of its intention to tender eight Rule 92 bis statements
and up to three viva voce witnesses in rebuttal.1
- On 14 March 2003, the Prosecution filed its “Submissions Pursuant to Rule
92 bis with respect to Rebuttal Evidence” (“the Prosecution’s Submissions”),
whereby it sought admission of eight Rule 92 bis statements. That same
day, the Prosecution transmitted to the Trial Chamber the statement of two
witnesses it sought to call as viva voce witnesses. On 18 March 2003,
the Prosecution filed “the Prosecution’s Explanation of the Relevance of its
Rebuttal Evidence” (“the Prosecution’s Explanation”). On 20 March 2003, the
Defence filed its “Response on Prosecution Motion Pursuant with the Rule 92
bis in Relation to Rebuttal ” (“the Defence Response”).
- The Trial Chamber, after hearing the parties, rendered its oral decision
on 21 March 2003 while indicating that a written decision, further detailing
the grounds for the Trial Chamber’s decision, would soon follow.
THE TRIAL CHAMBER, HAVING CONSIDERED the written and oral submissions
of the parties,
HEREBY ISSUES ITS WRITTEN DECISION.
A. Applicable Law
- The Tribunal’s case law on admission of evidence in rebuttal is well established.
In The Prosecutor v. Delalic & al., the Appeals Chamber ruled that
“rebuttal evidence must relate to a significant issue arising directly out
of defence evidence which could not reasonably have been anticipated”.2
The Appeals Chamber asserted that “where it is reasonably foreseeable by the
Prosecution that some gap in the proof of guilt needs to be filled by the
evidence called by it”, it is inappropriate to admit it in rebuttal, as the
Prosecution “cannot call additional evidence merely because its case has been
met by certain evidence to contradict it”.3 This
test precludes from being admitted in rebuttal evidence of low probative value,4
evidence merely reinforcing the Prosecution case-in-chief, or evidence relating
to a fundamental part of the Prosecution’s case-in-chief and only presented
at this stage of the trial.
- Rebuttal evidence should be distinguished from fresh evidence. Fresh evidence
is evidence which was not available to the Prosecution at the time it presented
its case-in-chief. According to the Delalic & al. Appeal Judgement,
fresh evidence is admissible if two conditions are met:
1) the Prosecution must show that the evidence would not have
been found with the exercise of reasonable diligence before the close
of its case-in-chief;
2) the Trial Chamber has discretion in deciding whether to admit fresh
evidence, taking due consideration of the probative value of the evidence
and the fairness to the accused of admitting it late in the proceedings.5
- Regarding admission of Rule 92 bis statements, Rule 92 bis specifies
that the statement should not pertain to the acts and conduct of the accused.
This requirement has been interpreted by the Appeals Chamber as excluding
only those statements dealing with the “acts and conduct of the accused as
charged in the indictment which establish his responsibility for the acts
and conduct of those others”, as opposed to the statements dealing with the
“acts and conduct of those others who commit the crimes for which the indictment
alleges that the accused is individually responsible”.6
The Appeals Chamber also specified that “conduct” includes the accused’s state
- The issue as to whether the Rule 92 bis statements submitted are
relevant evidence which the Trial Chamber deems to have probative value, within
the meaning of Rule 89(C), as well as the issue of the statements’ cumulative
nature with other evidence, should be considered in light of the specific
assessment to be made in the context of rebuttal evidence. As set out above,
to be admitted, rebuttal evidence should be of significant probative value
and evidence not of a cumulative nature.
- Once the Trial Chamber has found a Rule 92 bis statement admissible
under both Rule 89 and Rule 92 bis, it has discretion in appreciating
whether cross-examination would be required to ensure the fairness of the
trial. However, the Tribunal’s case-law has consistently ruled that cross-examination
should be granted if the statement touches upon a “critical element of the
Prosecution’s case, or, put another way, to a live and important issue between
the parties, as opposed to peripheral or marginally relevant issue”.7
This Trial Chamber has previously found that any Rule 92 bis statement
containing information that would be relevant to the determination of the
source of fire should not be admitted without the witness being called for
B. Law applied to the Material Submitted in the Application for
Admission in Rebuttal
- The Chamber will first consider the evidence which the Prosecution sought
to tender through viva voce witnesses and will then analyse the admissibility
in rebuttal of the Rule 92 bis Statements submitted.
1. Evidence submitted through viva voce witnesses
(a) Roelof From
- The Prosecution sought to call Roelof From as a witness. Roelof From, a
military analyst at the Office of the Prosecution, was supposed to “explain
the technology and methodology involved in the production of the Prosecution
maps of the area of the scheduled sniping and shelling incidents, which have
been tendered into evidence, and further maps and graphs which have been disclosed
to the Defence and not as yet tendered.”9 The
Prosecution sought to tender through this witness five three-dimensional maps,
each dealing with a scheduled sniping incident, which it claims would directly
rebut Defence allegations that there was no line of sight from the alleged
source of fire to the alleged position of the victim.10
The Prosecution also sought to tender three-dimensional maps in respect of
all the other scheduled sniping and scheduled incidents, “as an aid to the
Trial Chamber in the interests of permitting accurate measurements of relevant
distances.”11 It however recognised in court
that these maps did not constitute rebuttal evidence and withdrew its request,
“unless the Trial Chamber took the view that it was material which the Trial
Chamber wished to have directly.”12 The Prosecution
presented these maps before the Trial Chamber on 28 November 2002 and debate
on their admissibility also took place on 3 and 10 December 2002.
- The Defence objected in principle to the admission of computerised maps,
which, in addition, it considered incapable of providing any reliable information
with respect to the line of sight, as the maps do not contain any data on
the height of the buildings, density of trees, or density of bushes.13
- The Trial Chamber finds that the existence of a line of sight between the
alleged source of fire and the alleged position of the victim is an important
issue in the part of the Prosecution case dealing with sniping and that the
contradictions it met during the Defence case does not justify to present
the additional evidence. This part of Roeland From’s evidence is therefore
inadmissible as rebuttal evidence. As for the other maps submitted by the
Prosecution to assist the Trial Chamber, they constitute fresh evidence. The
Trial Chamber first notes that, while the Prosecution indicated that its Office
purchased the software in November 2002, it could not indicate from when the
software was available on the market.14 The Prosecution
thereby failed to demonstrate that it could not have obtained the software
with the exercise of reasonable diligence before the close of the case- in-chief.
The Trial Chamber also finds that it would be contrary to the right of the
accused to a fair trial to admit such maps at this stage of the trial.
(b) Hajrudin Suman
- The Prosecution provided the Trial Chamber with the statement of Hajrudin
Suman, who intercepted a conversation which he claims took place between Colonel
Vukasinovic and General Mladic on 29 May 1992. No submission was presented
by the parties on the question of admission of his testimony in rebuttal.
The Prosecution did not present any evidence in respect of the telephone intercept
while presenting its case. The Prosecution confronted the Defence’s military
expert witness, Radovan Radinovic, during cross examination, with the intercept
on 11 march 2003. The Chamber allowed the Prosecution to put questions to
the witness to find out whether the expert witness fully explored the material
available to him, but did not allow any questions on the issue of whether
the telephone conversation had ever taken place, since there were no reasons
to believe that the expert witness would have any knowledge about it. Radovan
Radinovic testified that, in order to prepare his report, he read the transcripts
of Prosecution interviews, including that of Milenko Indjic, but that he did
not recall that, during the interview of Indjic, an audio-tape of an intercept
in which Mladic is heard ordering shelling of certain part of Sarajevo, was
- The Trial Chamber finds that the intercept does not relate to an issue
directly arising out of defence evidence. Further, the intercept could be
seen to go to the core of the case since it could constitute evidence of a
plan to shell residential parts of Sarajevo for the purpose of terrorising
the civilian population. Hajrudin Suman therefore cannot be called as a witness
2. Rule 92 bis statements
- The Trial Chamber will first analyse whether the statements submitted constitute
proper rebuttal evidence. If so, it will then consider whether the statements
are admissible as Rule 92 bis statements.
(a) Statements of Fatima Sisic and Vehija Makic
- The statements of Fatima Sisic and Vehija Makic were tendered to rebut
the claim made during the Defence case and the evidence adduced to support
the claim that the mosques were not targeted during the period covered in
the indictment, which would prove, in the Defence’s opinion, that there was
- The Prosecution recognised that “damages and targeting of mosques are not
mentioned in the indictment”, which clearly illustrate that the evidence is
of a “peripheral nature.”16
- The Trial Chamber notes that that it is not part of the Prosecution case
that the campaign included targeting of mosques. Further, evidence was presented
during the Defence case referring to damage presumably inflicted on at least
one mosque.17 The Trial Chamber finds that it
is not a significant enough issue to be admissible in rebuttal.
(b) Statement of Dr. Zecevic
- Dr. Zecevic is an expert in ballistics whom the Prosecution called during
its case-in-chief. The Prosecution claims that Dr. Zecevic’s statement relates
to two new matters raised by Dr. Vilicic, the Defence ballistics expert witness,
for the first time during his testimony.18 These
matters are: a) the results of calculations for depth of penetration using
the Berezanski formula and b) the characteristics of craters as a function
of fuse activation speed.19 The Defence objected
to the admission of the statement on the ground that it did not meet the requirements
of Rule 92 bis.20
- The Trial Chamber finds that evidence relating to the issues of (a) the
penetration of parts of a shell into the landing surface and its relation
to the speed of impact as well as (b) the effects of various fuses used, have
been dealt with during the Prosecution case, in particular during Dr. Zecevic’s
testimony. The Defence expert witness responded to these elements, using,
among other things, tables and the Berezansky formula. Having reviewed the
material presented by the Prosecution in rebuttal, the Trial Chamber finds
that the evidence that the Prosecution here seeks to tender merely reinforces
the Prosecution case and is not significant enough to be admissible in rebuttal.
(c) Statements of Mile Babic and Linda Patrick
- The Prosecution submitted the statements of Mile Babic and Linda Patrick
to rebut evidence, presented during the Defence case, that a building of the
school of theology had lost its top floor during the armed conflict. The Defence
contested that such was its claim and the parties noted in court their agreement
on the fact that this building of the school of theology had three floors
above the ground floor. As a result, the Prosecution withdrew its request
with respect to both statements.21
(d) Statements of Izet Berkovac and Adnan Bijedic
- Adnan Bijedic, the commander of the ABiH 1st Corps Armoured Battalion,
describes the locations of ABiH military facilities in the vicinity of Kosevo
hospital in his statement. The Prosecution seeks by this statement to rebut
evidence presented by the Defence on the positions of ABiH armament in the
vicinity of Kosevo hospital, which had not been put to any relevant Prosecution
- Izet Berkovac, the commander of the ABiH 105th Motorised Brigade, describes
in his statement the location of mortar batteries within his area of responsibility.
The Prosecution seeks by this statement to rebut evidence presented by the
Defence on the locations and firing of mortars from the close proximity to
the Markale market.23
- The Trial Chamber finds that the issue of the location of potential military
targets and firing positions of the ABiH is important enough to the case that
it should have been anticipated by the Prosecution. Moreover, the Trial Chamber
does not leave unnoticed that evidence has been adduced in this respect during
the Prosecution’s case-in-chief.24 As a result,
both statements would corroborate evidence adduced during the case-in-chief
and hence would merely reinforce the Prosecution case. As such, both statements
are inadmissible in rebuttal.
(e) Statement of Jonathan Tait-Harris
- The statement of Jonathan Tait-Harris, an investigator at the Office of
the Prosecution, deals with four different topics.
- First, it relates to the results of the investigator’s interview with the
Defence investigator on the issue of the source of the SRK documents tendered
during the Defence case. This part of the statement intends to contest the
authenticity of SRK documents tendered and the Prosecution claims that it
is relevant to the issue of the weight to be attached to them.25
The Defence objected to the admission of this part of the statement on the
ground that the documents had been authenticated by various Defence witnesses,
including a military expert.26
- The Trial Chamber points out that it is incumbent on any party to authenticate
the documents it tenders, upon complaint of the other party. The Trial Chamber
notes that the Prosecution has consistently, and from the very beginning,
challenged the authenticity of the SRK documents tendered by the Defence,
on the ground that the Defence did not explain where exactly it had found
them. The Trial Chamber is therefore sufficiently informed on the question
of authentication and the issue of the origin of these documents, to properly
appreciate the weight to be eventually given to each SRK document admitted.
This part of the statement is not proper rebuttal evidence and is in any event
not of such significance that it should be admitted in rebuttal.
- The second part of the statement relates to the medical examination conducted
on Witness G on 7 March 2003. A medical certificate dated 7 March 2003 and
a photograph of Witness G’s back are also attached to the statement. The Prosecution
explained that this part of the statement intends to rebut evidence of the
Defence forensic medical expert, who challenged the consistency of the Prosecution
medical evidence.27 The Trial Chamber finds that
it cannot admit in rebuttal a medical documentation made a posteriori in
order to correct a document initially adduced by the Prosecution during its
case-in-chief. However, the Trial Chamber notes that neither party initially
noticed the discrepancy between the medical report adduced and the description
made by the witness of his injury. The Trial Chamber finds that it is in the
interest of justice to accept this part of the statement to the limited extent
that it comments on the taking of, and tenders, the photograph of witness
G’s back, where the traces of his injury presumably appear.
- The Trial Chamber left it up to the Prosecution to chose whether it wanted
to tender Mr. Tait-Harris’ evidence as a Rule 92 bis statement or as
a viva voce witness.28 Should the Prosecution
chose to tender the evidence as a Rule 92 bis statement, the Trial
Chamber granted cross-examination for no longer than 15 minutes to the Defence,
on the ground that the photograph may be relevant to establish how the incident
- The third part of the statement describes the terrain in the area surrounding
the school of theology, as the witness saw it on 13 December 2002. The Prosecution
indicated that it would rebut Defence evidence according to which this terrain
provided no cover.29 It however recognised in
court that the Defence case was not unequivocal in this respect and that it
would not insist on having this part of the statement admitted.30
The Trial Chamber understands this position to amount to a withdrawal of the
request. This part of the statement should in any event not be admitted in
rebuttal as it would merely constitute evidence that reinforces evidence already
adduced by the Prosecution during its case-in-chief.
- Fourth, a series of photographs of the school of theology were attached
to the statement. Noting the parties’ agreement on the fact that the building
concerned of the school of theology had three floors above the ground floor,
the Prosecution withdrew its request with respect to this specific part of
FOR THE FOREGOING REASONS
PURSUANT TO Articles 20 and 21 of the Statute, and Rules 85,
89 and 92 bis of the Rules of Procedure and Evidence,
THE TRIAL CHAMBER
ALLOWS the Prosecution to present as rebuttal evidence witness
Tait-Harris’ Rule 92 bis statement or viva voce testimony, to
the limited extent that it commented upon the taking of the photograph of witness
DENIES the Submission in respect of all other material presented.
Done in English and French, the English text being authoritative.
Alphons Orie, Presiding Judge
Dated this Second Day of April 2003
At The Hague
[Seal of the Tribunal]
1 - Transcript of 7 March 2003.
2 - The Prosecutor v. Delalic & al., Case No. IT-96-21-A,
Judgement, 20 February 2001 (“The Delalic & al. Appeal Judgement”), para.
3 - The Delalic & al. Appeal Judgement. para. 275.
4 - See the oral decision in The Prosecution v. Dario Kordic
& Mario Cerkez, IT-94-14/2, T. 26647: “only highly probative evidence on a
significant issue in response to Defence evidence and not merely reinforcing the
Prosecution case in chief will be permitted”.
5 - The Delalic & al. Appeal Judgement, para. 283.
6 - The Prosecutor v. Stanislav Galic, Decision on the
Interlocutory Appeal Concerning Rule 92 bis (C), 7 June 2002, para. 9 (“The
Appeals Chamber Decision”).
7 - The Prosecution v. Slobodan Milosevic, IT-02-54-T,
21 March 2002, para. 24.
8 - The Prosecution v. Stanislav Galic, Decision on the
Prosecution’s Request for Admission of Rule 92bis Statements”, 26 July
2002 (“The Galic Rule 92bis Decision”), paras. 26-27.
9 - Prosecution’s Explanation, para. 2.
10 - Status conference of 21 March 2003, T. 21551-21552.
11 - Prosecution’s Explanation, para. 6.
12 - Status conference of 21 March 2003, T. 21553.
13 - Defence Response, para. 57.
14 - T. 21553.
15 - T. 21145.
16 - Prosecution’s Submissions, para. 10.
17 - See for instance Ex. P3750 A and comments of Witness DP34,
T. 17947, 17970, or Witness Knezevic, T. 18976-77.
18 - T. 21556.
19 - Prosecution’s Explanations, para. 8.
20 - Defence Response, paras. 41-44.
21 - T. 21526-21527.
22 - Prosecution’s Explanation, para. 14.
23 - Prosecution’s Explanation, para. 13.
24 - See, among other things, the testimony of witnesses Karavelic
25 - Prosecution’s Explanation, para. 9.
26 - Defence Response, para. 50.
27 - Prosecution’s Explanation, para. 10.
28 - T. 21610.
29 - Prosecution’s Explanation, para. 11.
30 - T.21550.
31 - T. 21526.