Case No. IT-01-48-T

IN TRIAL CHAMBER I, SECTION A

Before:
Judge Liu Daqun, Presiding
Judge Amin El Mahdi
Judge György Szénási

Registrar:
Mr. Hans Holthuis

Decision of:
24 February 2005

PROSECUTOR

v.

SEFER HALILOVIC

___________________________________

DECISION ON ADMISSION INTO EVIDENCE OF DOCUMENTS TENDERED DURING WITNESS SALKO GUSIC’S TESTIMONY IN COURT

___________________________________

The Office of the Prosecutor:

Ms. Sureta Chana
Mr. Philip Weiner
Mr. David Re

Counsel for the Accused:

Mr. Peter Morrissey
Mr. Guénaël Mettraux

TRIAL CHAMBER I, SECTION A, (“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 (“Tribunal”),

NOTING the oral order of the Trial Chamber of 8 February 2005, in which the Trial Chamber directed both parties to file motions concerning the admission of the documents that each party tendered for admission into evidence during the testimony of witness Salko Gusic (“witness”);1

NOTING the “Prosecution Motion for Exhibits to Be Tendered through Salko Gusic,” filed on 9 February 2005 (“Prosecution Motion”), in which the Prosecution requests that the Trial Chamber admits the documents marked for identification (“ MFI”) 102 through MFI 129 into evidence (“documents tendered by the Prosecution”)2 and in which the Prosecution states that “it has no objection to the exhibits tendered by the Defence through witness Salko Gusic (“documents tendered by the Defence”);”3

NOTING the “Defence Objection to Admission of Evidence,” filed on 10 February 2005 (“Defence Objection”), in which the Defence objects to the admission into evidence of the following documents: MFI 103; MFI 111; MFI 112; MFI 113; MFI 114; MFI 115 ; MFI 116; MFI 117; MFI 118; MFI 119; MFI 121; MFI 122; MFI 123; MFI 127; MFI 128 ; and MFI 129 (“contested documents”);

NOTING that the Defence submits that the witness was “unable to ascertain the authenticity”4 of the documents , because, “other than during the proofing session(s) or interviews with the Prosecution , Sthe witnessC had either never seen, had had no reasons to have seen and/or had no personal knowledge of Sthe documentsC;”5 nor was the witness “in a position to give any evidence which would endow those documents with the minimum reliability threshold required under the Rules;”6

NOTING that the Defence further submits the authenticity of the documents to be “doubtful” and that these documents should be put to a witness “who is capable of giving actual evidence about their content and authenticity;”7

NOTING FURTHERMORE that during the trial hearing of 7 February 2005 the translation of the word “rukovodjenje” in the “order of 30 August 1993,” as used by the Prosecution (“document MFI 108”), was disputed by the Defence;8

NOTING that during the trial hearing of 7 February 2005 the Trial Chamber ordered that CLSS provide the Trial Chamber with the most accurate translation of the document “order of 30 August 1993;”9

NOTING that during the trial hearing of 8 February 2005 each party indicated that they would tender their own translation of the document;10 and that on 8 February 2005 the Prosecution tendered document MFI 108 to be admitted into evidence11 and the Defence tendered document MFI 146 to be admitted into evidence;12

NOTING that the Defence request in the Defence Objection that the decision on admission into evidence of document “order of 30 August 1993 be suspended until that time when “the matter of its translation ?…g has been resolved;”13

NOTING that the Trial Chamber received a verification by CLSS of the translation of the document “order of 30 August 1993”, filed on 14 February 2005 (“CLSS verification ”), which specifically addresses the translation of the word “rukovodjenje,” and in which CLSS assessed “the latest translation, revised in May 2004 and marked ‘revised translation’ as the definitive version” (“revised translation”);14

NOTING that the “order of 30 August 1993” with the revised translation has been tendered by the Defence as document MFI 146;

NOTING that on 18 February 2005 the Prosecution requested that the revised translation be admitted into evidence with the CLSS verification “as an exhibit attached to that document”;15

NOTING that on 18 February 2005 the Defence stated that it did not seek “ the exclusion of the document as ?…g properly translated by CLSS”16 and that it agreed with the admission of the revised translation with the CLSS verification as an annex;17

NOTING FURTHER that in the Defence Objection the Defence requests the decision on admission into evidence of document MFI 119 be suspended until that time when the Trial Chamber has decided upon the application of the Prosecution to amend its Rule 65 ter exhibit list,18 and further submits that the Prosecution has “failed to establish the authenticity of the document, nor has it established any sufficient basis which would permit the Trial Chamber to make a finding upon the reliability of that document;”19

CONSIDERING that the Trial Chamber issued its “Decision on Prosecution’s Application For Leave to Vary its Exhibit List Filed Pursuant to Rule 65 ter (E)(iii)” on 14 February 2005, in which the Trial Chamber granted the Prosecution’s Application for leave to vary its exhibit list, i.e.inter alia to add document MFI 119 to its exhibit list;

CONSIDERING that Rule 89 of the Rules of Procedure and Evidence (“Rules”) provides the general provisions for admission of evidence in cases before this Tribunal ;

CONSIDERING Rule 89(C) of the Rules, which provides that “a Chamber may admit any relevant evidence which it deems to have probative value,” and Rule 89(D) of the Rules, which provides that “a Chamber may exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial;”

CONSIDERING the “Guidelines on the Standards Governing the Admission of Evidence ”, adopted by the Trial Chamber on 16 February 2005 (“Guidelines”);

CONSIDERING that the controversy concerning the translation of the “order of 30 August 1993” has been resolved and that the parties did not object to the admission into evidence of the revised translation with the CLSS verification attached to it, the Trial Chamber finds that the previous correspondence of the Defence with CLSS regarding the translation of the “order of 30 August 1993, tendered for admission into evidence as document MFI 145, does not satisfy the conditions of admissibility provided for in Rule 89 of the Rules;

CONSIDERING that the remainder of the documents tendered for admission into evidence by both parties, satisfy the conditions of admissibility provided for in Rule 89 of the Rules;

CONSIDERING the basic distinction that exists between the admissibility of documentary evidence and the weight that documentary evidence is given under the principle of free evaluation of evidence;

CONSIDERING that the Guidelines provide, that when objections are raised on grounds of reliability and authenticity, the Trial Chamber will follow the practice of this Tribunal, namely to admit documents and then decide what weight to give them within the context of the trial record as a whole;

FOR THE FOREGOING REASONS,

HEREBY DECIDES

TO ADMIT INTO EVIDENCE:

1) documents MFI 102; MFI 103; MFI 104; MFI 105; MFI 106; MFI 107 and documents MFI 109; MFI 110; MFI 111; MFI 112; MFI 113; MFI 114; MFI 115; MFI 116; MFI 117; MFI 118; MFI 119; MFI 120; MFI 121; MFI 122; MFI 123; MFI 124; MFI 125; MFI 126; MFI 127; MFI 128; and MFI 129, tendered by the Prosecution;

2) documents MFI 132; MFI 133; MFI 134; MFI 135; MFI 136; MFI 137; MFI 138; MFI 139; MFI 140; MFI 141; MFI 142; MFI 143; MFI 144; and documents MFI 147; MFI 148 ; MFI 149; MFI 150; MFI 151; MFI 152; MFI 153; MFI 154; MFI 155; MFI 156; MFI 157 ; MFI 158; MFI 159; and MFI 160, tendered by the Defence;

3) document MFI 146, tendered by the Defence, with the CLSS verification, filed on 14 February 2005, attached to it;

TO NOT ADMIT INTO EVIDENCE

Documents MFI 108 and MFI 145;

REQUESTS the Registrar to assign exhibit numbers to the documents that are admitted into evidence;

 

Done in French and English, the English version being authoritative.

____________________
Judge Liu Daqun
Presiding

Dated this twenty-fourth day of February 2005,
At The Hague,
The Netherlands.

[Seal of the Tribunal]


1 - Trial Hearing, 8 February 2005, T. 110
2 - Prosecution Motion, para. 3.
3 - Prosecution Motion, para. 2.
4 - Defence Objection, para. 4
5 - Ibid.
6 - Ibid.
7 - Defence Objection, para 6.
8 - Trial Hearing, 7 February 2005, T. 84-88.
9 - Trial Hearing, 7 February 2005, T. 88.
10 - Trial Hearing, 8 February 2005, T. 1, 3.
11 - Trial Hearing 8 February 2005, T. 110, Prosecution Motion Annex 1.
12 - Trial Hearing, 8 February T. 4, 110.
13 - Defence Objection, para. 8.
14 - Internal Memorandum, re verification of translation of document, written by Philip Hepburn, head of the English Translation Unit of this Tribunal, dated 11 February 2005, filed on 14 February 2005.
15 - Trial Hearing 18 February 2005, T. 8.
16 - Trial Hearing 18 February 2005, T. 11.
17 - Trial Hearing 18 February 2005, T. 12.
18 - Defence Objection, para. 9.
19 - Defence Objection, para. 9.