Case: IT-00-39-T

Before: Judge Alphons Orie, presiding

Judge Joaquín Martín Canivell

Judge Claude Hanoteau

Registrar: Mr Hans Holthuis

Decision of: 14 July 2006

Office of the Prosecutor

Mr Mark Harmon

Mr Alan Tieger

Counsel for the Defence

Mr Nicholas Stewart, QC

Mr David Josse

Admission of Material Sought by the Chamber

On 23 February 2006 the Chamber requested that the Prosecution compile examples of formal statements signed by persons of Muslim or Croat ethnicity, transferring their property to the authorities of the Bosnian-Serb Republic prior to departing from that territory.( 1 ) On 9 May 2006 the Prosecution filed the results of its search for these examples in “Prosecution Submissions in Respect of Documents Sought by the Trial Chamber”.

The Prosecution’s submission includes a description of the efforts made by its investigators to obtain the documents from municipal authorities of the Bosnian-Serb Republic in the ARK region. The investigators came away largely empty-handed. Nonetheless , the Prosecution was able to retrieve some relevant documentation from other sources . These documents are annexed to the Prosecution’s submission.

In response to the Prosecution’s submission, the Defence filed a motion to have the submission struck from the record, or alternatively for a ruling that the submission will not be used to the detriment of the Accused, and that the documents annexed to it will not be admitted into evidence.( 2 ) The basis of this request is said to be that the Chamber has effectively denied the Defence an opportunity to examine or cross-examine any witnesses in relation to the documents in question.( 3 ) The Defence also objects to the manner in which the Prosecution presents the material , in essence providing inadmissible and prejudicial details of its investigation .( 4 )

On 26 May 2006, the Prosecution filed a response to the Defence motion, arguing that the Defence has long been on notice of this issue,( 5 ) and that the Prosecution reported the details of its attempts to assemble the requested material in a transparent manner.( 6 )

The reasoning put forth by the Defence in its motion is not a basis for non-admission of the documents. The Chamber is entitled to seek additional evidence pursuant to Rule 98, and is not limited to calling such evidence early in the case in order to enable parties to examine witnesses on it.( 7 ) In fact, Chamber evidence will tend to come in towards the end of the case, when the Chamber can more clearly see what further material it needs in order to decide the case.( 8 )

Moreover, as the Prosecution has pointed out, the general issue addressed by the particular documents has always been a live issue in this case. There is no question that the Defence has been aware of the corresponding allegations throughout the course of the proceedings. Nevertheless, it is relevant to the final weight to be given to this evidence, that it was received late in the case, and that it was tendered without comment from any witness.

With regard to the account provided by the Prosecution of the work of its investigators , the information provided will be considered only in relation to the source of the documents which were finally presented and admitted. The Chamber will disregard any further statements.

For these reasons, the documents contained in the Prosecution’s submission are hereby admitted into evidence as Chamber exhibits as listed below. The Registrar is requested to assign a single Chamber exhibit number to the material, with tabs arranged in the manner outlined below, and to inform the parties of the final numbering of each document.

Banja Luka – The document submitted, a decision of the Banja Luka Municipality Assembly dated 7 October 1992, does not fit the criteria of the requested material, namely examples of individual contracts or statements transferring property, and is therefore not admitted.

Bosanska Krupa – The document submitted, a decision of the Bosanska Krupa Municipality Assembly dated 10 July 1992, is already in evidence as exhibit P747.I.

Bosanski Novi – The certificate issued to Omer Rakovic is admitted into evidence , and will be tab 1 for the original, and tab 1.1 for the English translation. ( The B/C/S and the English versions are to be distinguished in the same manner in all cases below.) The blank statement obtained from the Bosanski Novi Secretariat for Social Affairs, the report of the Secretariat for Public Affairs, and the two lists of persons who left their real estate or returned their apartments are not admitted into evidence, as they do not fit the criteria of the requested material .

Bosanski Petrovac – All of the documents submitted from this municipality are already in evidence, as exhibits P748.I (decision of the Petrovac Municipal Assembly dated 20 October 1992), P90.LL (undated statement by the Petrovac Municipal Assembly Commission for Moving Out), P90.QQ (undated lists of persons who sold real estate and person who left the municipality), and P90.NN (examples of certificates and records of persons conceding property).

Kotor Varos–The statements of Mehmed Muminovic, Stipe Kovacic, Irena Kljajic, Sabiha Bajric, and Ale Bajric are all hereby admitted, as tabs 2 through 6, respectively . The statement of Safet Smajlovic is already admitted into evidence as exhibit P340.

Prnjavor – The document submitted, a decision of the Crisis Staff of Prnjavor Municipality dated 23 June 1992, is already admitted into evidence as exhibit P529, tab 430.

Sanski Most – The document submitted, a decision of the Crisis Staff of Sanski Most Municipality dated 2 July 1992, is already admitted into evidence as exhibit P529 , tab 350.

Kljuc – The municipal record on Jasminka Osmanovic is hereby admitted into evidence , as tab 7. The records of the Kljuc Municipality Commission for Gathering Data for movement of population concerning another ten persons from Kljuc municipality are also hereby admitted into evidence, as tabs 8 through 17, in the sequence listed in the index to the Prosecution’s submission. The other documents submitted are already admitted into evidence: the decision of the War Presidency of Kljuc dated 30 July 1992, as exhibit P529, tab 349; the statement of Sabiha Egrlic as exhibit P242; and the statement of Camil Kubura as exhibit P529, tab 351 (the Prosecution’s submission shows a different number for this exhibit, however this is the correct exhibit number).

Admission of Other Exhibits

The following items were tendered by the Prosecution during the cross-examination of the Accused: order no. 124 from the Central Homeland Administration of the Serbian Chetnik Movement, dated 13 May 1993 (P1226);( 9 ) a facsimile from UNPROFOR, dated 30 May 1992 (P1229);( 10 ) and confidential order no. 11/2-879 from the East Bosnia Corps Command, dated 2 July 1991 (P1244).( 11 )

On 26 June 2006 the Defence objected to admission of these items into evidence due to the limited questions put to the Accused regarding each document.( 12 ) The Defence additionally cited the fact that the Accused denied any prior knowledge of P1229.( 13 )

Under Rule 89(C), a Chamber may admit any relevant evidence deemed to have probative value. The Chamber is satisfied that these items satisfy this threshold, and therefore admits P1226, P1229 and P1244 into evidence.

On 4 April 2006, during the cross-examination of witness Nenad Kecmanovic, the Prosecution tendered item P1148, a notebook belonging to Radovan Karadžic with handwritten notes detailing various meetings with European officials. The Prosecution questioned the witness regarding notes written on pages 7, 8 and 9 of the notebook.( 14 ) The Prosecution wishes to tender the full 45 pages of the notebook into evidence .( 15 ) On 26 June, the Defence objected to admission of the notebook in its totality due to the limited portions of the document which were the subject of examination.( 16 ) The Prosecution submitted that the notebook is a detailed stenographic account of the Cutileiro negotiations, on which the Defence has placed great emphasis.( 17 )

As stated above, the Chamber may admit into evidence any material found relevant and of probative value. In the case of bulky documents, only the portions which are strictly relevant to the case should be tendered into evidence. In this instance , the relevant pages of the document are pages 7 through 10, which contain notes taken during a single meeting occurring on 27 February 1992. Indeed, these were the only pages raised in court, whereas the substantial remaining portions of the document were not put to Witness Kecmanovic. Moreover, the document was not revisited by either party where the Chamber could have expected, namely during the testimony of Mr Krajinik. Therefore, the Chamber admits pages 7 through 10 of P1148.

Letter from Radovan Karadzic

On 29 May 2006, during his testimony and in his capacity as a witness, Mr Krajisnik sought to tender into evidence, using Rule 92 bis of the Rules of Evidence and Procedure , a letter purportedly written by Radovan Karadžic, dated 21 August 2001, and addressed to a member of Mr Krajinik’s Defence team.( 18 ) In the letter, Mr Karadzic provides his account of Mr Krajinik’s role in, including the functions he held during, the events referred to in the indictment. The Chamber deferred a decision on the request in order to give the Defence counsel an opportunity to make submissions at a later time.( 19 )

On 20 June 2006, having received the English translation of the letter on 15 June 2006, the Defence counsel indicated that they would not adopt the letter but would also not object to its admission into evidence.( 20 )

On 21 June 2006, the Prosecution opposed the admission of the letter, reasoning that it was not a 92 bis statement and that there was no procedural rule that would permit its admission into evidence.( 21 )

Further submissions from both parties were heard on 26 June 2006. Defence counsel advised the Chamber that their position had not changed and that they were still neither arguing for, nor against, the admission of the letter. The Defence counsel did suggest, however, that there was possibly no justification for its admission .( 22 ) The Prosecution submitted that the letter is not admissible under Rule 92 bis because (1) it goes to the conduct of Mr Krajinik; (2) it does not comply with the formalities required by paragraph (B) of Rule 92 bis; and (3) assuming that the letter is excepted from the formalities by virtue of paragraph (C) of Rule 92 bis, its reliability is seriously questionable , given that its source is a high profile fugitive from international justice.( 23 ) Even though not arguing for admission, the Defence counsel responded by saying that the indicia of reliability mentioned in paragraph (C) of Rule 92 bis relate to the fact that the Chamber must be satisfied that the statement indeed came from the person in question and that the assessment regarding reliability of the content of that statement comes later on.( 24 )

Mr Karadžic’s letter goes directly to the acts and conduct of Mr Krajinik. This is the single most important factor for not admitting a written statement in lieu of oral testimony pursuant to Rule 92 bis.( 25 ) The letter was prepared for the purposes of the present legal proceedings and, given Mr Karadzic’s unavailability, is now meant to be used in lieu of his oral evidence . As such, the letter is not admissible under Rule 92 bis.

Furthermore, the letter cannot be admitted under Rule 89(F) since Mr Karadzic is not available to attest orally to the accuracy of his claims.( 26 ) Finally, the Chamber is mindful of the Appeals Chamber’s finding in Prosecutor v. Galic,( 27 ) where it was held that Rule 92 bis is a lex specialis which takes the admissibility of written statements of prospective witnesses and transcripts of evidence out of the scope of the lex generalis of Rule 89(C).( 28 ) Accordingly , the letter is also not admissible under Rule 89(C).

Therefore, Mr Krajinik’s request with respect to the admission of Mr Karadzic’s letter is denied.

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

___________________

Judge Alphons Orie

Presiding Judge

Dated this 14th day of July 2006

At The Hague

The Netherlands