IN TRIAL CHAMBER II
Judge Florence Ndepele Mwachande Mumba, Presiding
Judge David Hunt
Judge Fausto Pocar
Mrs. Dorothee de Sampayo Garrido-Nijgh
3 July 2000
DECISION ON PROSECUTIONS MOTION FOR EXCLUSION OF EVIDENCE
AND LIMITATION OF TESTIMONY
Office of the Prosecutor:
Mr. Dirk Ryneveld
Ms. Peggy Kuo
Ms. Hildegard Uertz-Retzlaff
Mr. Daryl Mundis
Counsel for the Accused:
Mr. Slavisa Prodanovic and Ms. Mara Pilipovic for the accused
Mr. Momir Kolesar and Mr. Vladimir Rajic for the accused Radomir Kovac
Mr. Goran Jovanovic and Ms. Jelena Lopicic for the accused Zoran Vukovic
1. This Trial Chamber is seised of the "Prosecutors Motion to Exclude
Certain Defence Evidence and Limit Testimony" ("Motion") filed on
15 June 2000. The "Defence of the Accused Mr. Dragoljub Kunarac,
Mr. Radomir Kovac and Mr. Zoran Vukovic Response to the Prosecutor Motion to
Exclude Certain Defence Evidence and Limit Testimony" ("Response") was
filed on 20 June.
B. THE RELIEF SOUGHT BY PROSECUTOR
B. THE RELIEF SOUGHT BY PROSECUTOR
2. The Prosecutor seeks an order from the Trial Chamber limiting the presentation of the defence case in relation to the report of a defence expert, Dr. Radinovic ("Expert") and 18 videotapes.1 In particular,
(a) The Prosecutor seeks the exclusion of those portions of the Experts report ("Report") which deal with matters beyond his expertise or which are irrelevant. The Prosecutor also requests the imposition of a corresponding limit on the Experts viva voce testimony. The Prosecutor specifically submits that the evidence tendered through Dr. Radinovic should be limited to matters covered in pages 4666-4657 ("Annex I Command Responsibility of Dragoljub Kunarac")2 of the Report, and that the defence be limited during the course of his direct examination to issues concerning command responsibility.3
(b) The Prosecutor also seeks the exclusion of the 18 videotapes, unless the defence can show that they are relevant to the case against the three accused.4
3. Rule 89(C) of the Rules of Procedure and Evidence ("Rules") provides that "A Chamber may admit any relevant evidence which it deems to have probative value". The Trial Chamber may thus rule that evidence is inadmissible where it is irrelevant to the charges against an accused or where it has no probative value. "Evidence", in this context, includes any written statements or reports adduced as evidence.
4. In general, an expert may express an opinion (within the confines of his or her expertise) upon facts which are established in the evidence (either by the experts own evidence or independently), if that opinion is relevant to the issues in the case. The Trial Chamber is not bound to accept that opinion. If the Trial Chamber does not accept that the facts upon which the opinion is based have been established, that opinion has no probative value and it is inadmissible for that reason.
(a) The Radinovic Report
5. The specific relief sought by the Prosecutor in relation to the Report is essentially the exclusion of the whole of the Report except for pages 4666-4657 ("Annex I Command Responsibility of Dragoljub Kunarac"), with the Experts oral testimony being limited accordingly. However, the Motion does not identify the Prosecutors complaints in relation to the remainder of the Report, which includes the 63 documentary exhibits forming an integral part of that Report. The Trial Chamber has considered the admissibility of only those portions which the Prosecutor has expressly dealt with. The Trial Chamber will not consider at this stage the blanket exclusion request in relation to the remainder of the Report.
6. The Trial Chamber deals first with those portions of the Report which it considers inadmissible on their face because of the irrelevance of the evidence to the specific charges against the three accused. At this stage, the Prosecutors complaints on the following portions of the Report are upheld:
(a) Pages 4825-4819 ("General Introductory Remarks")
The historical background of the conflict is not relevant to the charges against the three accused, as the innocence or guilt of the three accused does not turn on any historical reasons for the armed conflict. This portion is inadmissible on that basis and not, as the Prosecutor submits,5 because it is beyond the expertise of Dr. Radinovic.
(b) Pages 4818-4808 ("Disintegration of Yugoslavia") This portion of the report deals with the historical lead-up to the break up of the Socialist Federal Republic of Yugoslavia
Pages 4801-4782 ("Secession of Slovenia and Croatia and its Impact on the JNA")
Pages 4781-4751 ("Secession of Bosnia and Herzegovina and the Creation of the Republic of Srpska Army (VRS)")
Pages 4751-4736 ("Relations between JNA (Army of Yugoslavia) and the Republic of Srpska Army (VRS)")
Nothing on the face of these portions of the Report indicates that this material, with the possible exception of material which purports to go to the existence of an armed conflict, is relevant in any way to the issues arising from the charges against the three accused. Even assuming that parts of this material are relevant to the existence of an armed conflict in the time and place relevant to these proceedings, admission of evidence on that issue is unnecessary as the Prosecutor and the defence have agreed that, from April 1992 until at least February 1993, there was an armed conflict in the Foca area between mostly Serb ethnic forces on the one side and mostly ethnic Muslim forces on the other.6 The defence submits in their Response that, notwithstanding this agreement as to the existence of an armed conflict, it is also necessary to establish "the real and deep link between the acts of the accused and the arm(ed) conflict".7 The Prosecutor does not have to establish a "real and deep link" as the defence asserts. The Trial Chamber is of the view that, in relation to Article 3, what is required is that the offences were committed in the context of an armed conflict, whether that conflict is international or internal in character.8 In relation to Article 5, what is required is that the crimes were related to the attack on a civilian population (occurring during an armed conflict) and that the accused knew that his crimes were so related.9 In any event, there is nothing in any of these portions which has any relevance to the issue of whether the various acts of the accused were linked to either the armed conflict or the attack on the civilian population.
Given the absence in the indictments against the accused of any charges under Article 2 of the Statute, the international or internal character of the armed conflict is not in issue in these proceedings, and thus the relationships between the armed forces of the various entities at the time is also not in issue. The material relating to the relations between the Yugoslav Peoples Army and the Republika Srpska Army cannot therefore be said to be relevant to any of the issues raised by the charges against the accused.
(c) Pages 4725-4700 ("Preparations of Muslims for War and Pre-War Tensions")
The analysis of the events leading up to the armed conflict is not relevant to the charges against the three accused. As already noted, the existence of an armed conflict is an agreed fact between the parties. The preparations of the participants to the conflict, and any question of which (if either) of the parties initiated the conflict, have no relevance to those charges. This portion is inadmissible on that basis and not, as the Prosecutor submits,10 because it is beyond the expertise of Dr. Radinovic.
(d) Pages 4692-4689 (the sub-portion "Preparations of Muslims for Taking Over of Foca" under the heading "Combat Actions in Foca")
This very general material, alleging the arming and preparation of unidentified "Muslims" for a surprise attack on Foca, is not relevant, for the reasons described in paragraphs (b) and (c) above. The Prosecutor further objects that the material is inadmissible because Dr. Radinovic has no first-hand knowledge of most of the events described in the Report and therefore the Trial Chamber lacks the means to test the reliability of the incorporated hearsay information.11 The Trial Chamber repeats that the evidence of an expert has probative value only to the extent that it is based on facts which are themselves proved by admissible evidence, and where that evidence is accepted by the Trial Chamber. Whilst it would not be necessary for Dr. Radinovic to have first-hand knowledge of the facts relied upon in his Report, any fact of this nature stated in his Report, subject to it being established to be relevant in some way, would be accepted by the Trial Chamber only if it is established in some alternative way by admissible evidence.
7. Secondly, the Trial Chamber considers the remainder of the portions of the Report about which the Prosecutor has expressly complained. The Prosecutor has failed to convince the Trial Chamber that the following portions of the Report are on their face inadmissible as being irrelevant to the charges against the three accused:
(a) Pages 8734-4726 ("Upper Drina River Valley (Podrinje) as a Region of Bosnia and Herzegovina")
It may be true that geography and demographics are beyond the expertise of Dr. Radinovic. However, the geography and demographics of the Foca environs may be relevant to the trial in various ways (such evidence having been led by the Prosecutor herself), and to the extent that the Prosecutor agrees with the information provided in this portion or it is independently established, this portion is relevant, provided that any relevant opinion which the witness may express is shown to be within his expertise. The limits of that expertise will have to be determined when the witness gives evidence.
(b) Pages 4699-4692 and 4676-4672 (the sub-portions "Operative and Tactical Significance of the Upper Drina River Valley", "Territorial Defense of the Upper Drina River Valley Before the War" and "Attacks of Muslim Army on the Territory of Foca" under the heading "Combat Actions in Foca")
These sub-portions of the Report may relate in some way to the widespread or systematic attack against any civilian population requirement under Article 5 (crimes against humanity). As the indictments in this case include Article 5 counts, these sub-portions appear to be relevant, subject to the Trial Chambers determination of the weight to be attached to them.
(c) Pages 4681-4767 (the sub-portions "Military Organizing of Serbs in Foca" and "Organization of the Republic of Srpska Army in Foca" under the heading "Combat Actions in Foca")
Again, these sub-portions of the Report again may relate in some way to the widespread or systematic attack against any civilian population requirement under Article 5 (crimes against humanity). These sub-portions appear to be relevant, subject to the Trial Chambers determination of their weight. These sub-portions may also be relevant to the command structure of the unit or units to which the three accused are alleged to have belonged; this can only be determined after further argument.
(d) Pages 4688-4681 and 4672-4667 (the sub-portions "Commencement of Actions in Foca", "Actions in the Surroundings of Foca" and "Departure of Muslims from Foca" under the heading "Combat Actions in Foca")
These sub-portions of the Report may be relevant to the widespread or systematic attack against any civilian population requirement under Article 5 (crimes against humanity). The Prosecutors complaints that Dr. Radinovic has no first-hand knowledge of most of the events described in these sub-portions and therefore the Trial Chamber lacks the means to test the reliability of the incorporated hearsay information12 are rejected. As has been held in paragraph 6(d) above, an expert need not necessarily have first-hand knowledge of events described by him or her in a report. It is open to the Prosecutor to rebut evidence adduced by an expert and admitted by the Chamber.
8. In its Response, the defence appears to contend that, since the general background sections of the indictments refer to the general conditions that prevailed in the Foca municipality and the former Yugoslavia in general, it is justified in similarly referring to those conditions in the Report.13 That contention is not one of universal application. It is certainly open to the defence to lead evidence which disputes that which has been led by the Prosecutor, but only so far as the evidence is relevant to issues which the Trial Chamber has to determine. The Trial Chamber does not have to determine the historical reasons for the armed conflict, or who was responsible for initiating the conflict, or (in the present proceedings) whether the Bosnian Muslims committed or intended to commit any war crimes. Insofar as the factual basis for the opinions expressed by the Expert, or the opinions themselves, are relevant only to those issues, they are irrelevant, and inadmissible for that reason.
(b) The videotapes
9. The Prosecutor has objected in the Motion to the admission of 18 videotapes, which are said to depict primarily pre-war political rallies and speeches by members of the SDA and SDS, and which she claims that "the Defence proposes to introduce in their case-in-chief". The basis of the objection is that the tapes are irrelevant.14
10. The defence, in its Response, notes that it has not tendered the videotapes in evidence and that it "most likely will not tender [them] into evidence, but might use [them] during the opening statement, which cannot be limited."15 At this point in the proceedings, therefore, there is no need for the Trial Chamber to express any view as to the admissibility of these videotapes, which in any event it is not in a position to do on the basis only of the "partial synopses" of their content contained in the Motion.16 However, the Trial Chamber does emphasise that there is no justification for the defence submission that the material in the opening statement cannot be limited. The opening statements which the parties are permitted by Rule 94 to make are intended only to assist the Trial Chamber in understanding the evidence which is to be placed before it. Such assistance can only be provided if the material in the opening statement is limited to the issues raised by the charges against the accused and any issues which the accused may legitimately raise in their defence. Should the defence seek to introduce in their opening statement material which has no relevance to those issues, the Trial Chamber will exercise its powers to exclude it at that time.
(c) Evidence related to the tu quoque defence
11. It appears that the Prosecutor, as part of the specific relief sought in relation to the Report, generally seeks the exclusion of evidence supporting the legally impermissible defence of tu quoque.17 The Prosecutor does not contend that the defence does or intends to raise this defence, nor does the defence refer to this defence in its Response. The Trial Chamber considers that it is therefore premature to make any findings on this submission at this stage. Should an attempt be made by the defence to elicit evidence which relates to such a defence, the Trial Chamber will have to consider whether the evidence also raises any issues apart from that defence which are relevant to the charges against the accused.
12. Pursuant to Rule 89(C) of the Rules, the Motion is granted in part in the following terms: The portions of the Report referred to in paragraph 6 are inadmissible. The experts viva voce testimony will be limited accordingly. The remaining relief sought by the Prosecutor is refused at this stage.
Done in both English and French, the English version being authoritative.
Dated this third day of July 2000,
At The Hague,
[Seal of the Tribunal]
1. Motion, para. 11.
2. All the Radinovic Report page references are to the Registry page numbers.
3. Motion, para. 11(a).
4. Motion, para. 11(b).
5. Motion, para. 6(a).
6. Prosecution Submission Regarding Admissions and Contested Matters, 1 Feb 2000; Prosecution Submission Regarding Admissions and Contested Matters Regarding the Accused Zoran Vukovic, 8 Mar 2000; see paras 1 and 2 of "Admissions by the Parties and Other Matters not in Dispute".
7. Response, p 3.
8. Prosecutor v Tadic, IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 Oct. 1995, paras. 70 and 94; Prosecutor v Furundzija, IT-95-17/1-T, Judgement, 10 Dec 1998, para. 132.
9. Prosecutor vTadic, IT-94-1-A, Judgement, 15 July 1999, paras. 251 and 271.
10. Motion, para. 6(c).
11. Motion, para. 7.
12. Motion, para. 7.
13. Response, p. 2.
14. Motion, para. 9.
15. Response, pp. 3-4.
16. Motion, para. 10.
17. Motion, paras. 2 and 8(a)(1).