Case No. IT-98-30/1-T

IN THE TRIAL CHAMBER

Before
Judge Almiro Rodrigues, Presiding
Judge Fouad Riad
Judge Patricia Wald

Registrar:
Mr. Hans Holthuis

Decision of:
19 July 2001

THE PROSECUTOR

v.

MIROSLAV KVOCKA
MILOJICA KOS
MLADO RADIC
ZORAN ZIGIC
DRAGOLJUB PRCAC

____________________________________________________

DECISION ON ZORAN ZIGICíS MOTION FOR RESCINDING CONFIDENTIALITY OF SCHEDULES ATTACHED TO THE INDICTMENT DECISION ON EXHIBITS

____________________________________________________

The Office of the Prosecutor:

Ms. Susan Somers
Mrs. Kapila Waidyaratne
Mr. Daniel Saxon

Defence Counsel:

Mr. Krstan Simic for Miroslav Kvocka
Mr. ZZarko Nikolic for Milojica Kos
Mr. Toma Fila for Mladjo Radic
Mr. Slobodan Stojanovic for Zoran Zigic
Mr. Jovan Simic for Dragoljub Prcac

 

TRIAL CHAMBER I ("the 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"),

NOTING the "Order on Exhibits" issued by the Chamber on 18 June 2001 ("the Order on Exhibits") and the documents noted therein;

NOTING that the Order on Exhibits directed the parties to undertake various measures in relation to outstanding exhibits before the Chamber and to indicate to the Chamber their acceptance of or opposition to the admission of outstanding exhibits by 25 June 2001;

NOTING the "Prosecutionís Memorandum Regarding Outstanding Defence Exhibits", filed on 25 June 2001; the "Prosecutionís Submission of Supplementary Materials for Outstanding Prosecution Exhibits", filed on 29 June 2001; the "Defenceís Response to the Prosecution Memorandum Concerning Adoption of the Exhibits", filed by the defence for the accused Kvocka on 3 July 2001, the "Request for Admittance into Evidence", filed by the defence for the accused Zigic on 11 July 2001, and the "Prosecutionís Motion for Order of Admission of Psychiatric and Psychological Evaluations of the Accused Prcac", filed on 16 July 2001;

NOTING that a number of the orders contained in the Order on Exhibits have not been complied with;

CONSIDERING that, as the close of pleadings approaches, it is nonetheless necessary to take a decision on the outstanding exhibits in the absence of the assistance which full compliance with the Order on Exhibits would have afforded the Chamber;

CONSIDERING that the probative value of exhibit 3/179, extract from a newspaper article about the Omarska camp, is low as it contains unsupported allegations about the camp and that the inflammatory nature of those allegations is so prejudicial to the Defence that this outweighs any probative value it may have, so that it should be excluded in the interests of a fair trial pursuant to Rule 89 (D) of the Rules of Procedure and Evidence of the Tribunal ("the Rules");

NOTING that exhibit 3/181, record of conviction of Zoran Kvocka, has been tendered with the necessary translations and that no objections to its admission have been received from the Defence;

NOTING that declarations indicating the origins of exhibits 3/204 and 3/208 have been filed by the Prosecution;

NOTING that the Defence of the accused Kos requested sight of the original of exhibit 3/210, solemn declaration signed by Milojica Kos; that the Prosecution stated that the original was available and that the Order on Exhibits directed the parties to meet by 25 June 2001 so that, inter alia, the Defence might have sight of any original documents in the possession of the Prosecution;

NOTING that the Order on Exhibits directed the parties to notify the Chamber of any outstanding objections to the admission of exhibits by 25 June 2001, that the Defence of the accused Kos has not notified the Chamber that it was not given sight of the original document, and assuming therefore that the Defence has had sight of the original document as ordered by the Chamber;

CONSIDERING that exhibit 3/210 shows sufficient indicia of authenticity to be admitted by the Chamber;

NOTING that the declarations in support of exhibit 3/267, records of arrest of the accused Zigic, have been filed and allocated exhibit numbers 3/267c and 3/267d;

NOTING the Prosecutionís admission that exhibit 3/275, "Instructions on the Code of Conduct and Inter-Personal Relations of the Ministry of the Interior", was never a valid document, and their submission that it nonetheless resembles in essence the "Mandatory Instructions on the Code of Conduct and Internal Inter-Personal Relations of the Organs of the Interior" which were the regulations in force in Bosnia and Herzegovina during the period of the indictment;

NOTING FURTHER the Prosecutionís request to admit the "Mandatory Instructions on the Code of Conduct and Internal Inter-Personal Relations of the Organs of the Interior" as an exhibit in place of exhibit 3/275 and the opposition of the defence of the accused Kvocka to the same as its evaluation necessitates the report of an expert witness whose testimony has not been admitted by the Chamber;

NOTING that exhibit 3/275 was used in cross examination of defence expert witness Lakcevic, with regard to the obligation upon a police officer in Bosnia and Herzegovina to refrain from the implementation of an order which would be a criminal offence, or to report to superior authorities orders received believed to be contrary to law, and that Mr. Lakcevic replied, with the caveat that this applied to peacetime operations, that "something similar exists in all democratic police forces1", and confirmed that "there does, at least on paper, exist an option for a police officer, of any rank, who believes an order to be illegal or criminal, not to carry it out"2;

CONSIDERING that exhibit 3/275 is of no probative value as it stands, and that, in light of the testimony of Mr. Lakcevic who confirms the existence of the relevant provision in the law of Bosnia and Herzegovina, it is unnecessary to admit the "Mandatory Instructions on the Code of Conduct and Internal Inter-Personal Relations of the Organs of the Interior";

NOTING the Memorandum concerning "Outstanding Exhibits in the Kvocka et al Case IT-98-30/1-T" from the Registry to Trial Chamber I dated 19 July 2001 annexed to the present Decision ("the Memorandum from the Registry") in which a number of corrections to Prosecution exhibits already admitted are detailed;

NOTING that the Prosecution opposes the admission into evidence of exhibits D4/6, an article from the Los Angeles Times, and D4/7, certificate confirming that the accused Zigic is not a member of the SDS, because they were tendered during the opening statement of the accused Zigic;

CONSIDERING that the Prosecution tendered a large number of documents into evidence before its opening statement, and which were admitted into evidence by the "Order Granting request for admission of documentary evidence" issued by Trial Chamber III of the Tribunal on 17 March 1999; that this shows that it is not the practice in this case to insist on exhibits being tendered during the examination of witnesses, and that both parties should benefit from equal treatment before the court;

CONSIDERING FURTHER that exhibits D4/6 and D4/7 may be of relevance to the proceedings;

NOTING that the Prosecution objects to the admission of exhibits D1/54, certificate indicating that neither the accused Kvocka nor his wife owned an automobile from 1992 Ė 1994, on the grounds of authenticity and relevance;

NOTING that the Prosecution objects to the admission of exhibit D1/56, certificate confirming that the accused Kvocka possesses no property in the municipality of Prijedor, and exhibit D1/57, document from the Ministry of Internal Affairs regarding Witness AW having a residence in Prijedor until February 1989, on the grounds of authenticity;

NOTING that the Prosecution objects to the admission of exhibit D1/58, a letter regarding the employment of Witness AW, on the grounds of authenticity and because it appears to have been prepared for the purposes of litigation;

CONSIDERING that exhibits D1/54, D1/56, D1/57 and D1/58 have sufficient indicia of authenticity for admission into evidence; that they are relevant to the testimony of Witness AW, presented by the Prosecution; and that the fact that a document has been prepared for the purposes of litigation merely shows that Defence counsel have been discharging their obligation to seek and provide the Tribunal with any evidence contributing to the defence of the accused, which forms part of the right of the accused to defend himself "in person or through legal assistance of his own choosing" as envisaged in article 21(4)(d) of the Statue of the Tribunal, and does not per se cast doubt on the authenticity of the documents so prepared;

CONSIDERING that, as AW is a protected witness, Exhibits D1/57 and D1/58 should be kept confidential;

NOTING that no English translation of D1/55 has been tendered;

NOTING the request of the accused Zigic for admission of his arrest warrant issued on 15 April 1998 in case IT-95-4-I by Judge Rodrigues pursuant to Rule 59 bis of the Rules ("the Zigic arrest warrant");

CONSIDERING that the Zigic arrest warrant may be relevant for issues of sentencing;

NOTING that the psychiatric evaluations of the accused Prcac by P. Herfst and A.L.Elsman ordered by the Chamber on 18 May 2000 ("the Prcac psychiatric reports") have not yet been admitted into evidence;

CONSIDERING that the Prcac psychiatric reports should be admitted as they were ordered by the Chamber, and a decision on their relevance has therefore already been taken;

PURSUANT to Articles 21 and 22 of the Statue of the Tribunal and to Rules 54, 75 and 89 of the Rules;

HEREBY DECIDES that as follows:

  1. The following exhibits are admitted: 3/173, 3/174, 3/175, 3/176, 3/177, 3/178, 3/181, 3/204, 3/208, 3/210, 3/267, D4/6, D4/7, D1/54, D1/56, D1/57, D1/58;
  2. Exhibits D1/57 and D1/58 are confidential;
  3. The following exhibits are not admitted: 3/179, 3/275, D1/55;
  4. The Zigic arrest warrant is admitted as exhibit D4/32;
  5. The Prcac psychiatric reports are admitted together as exhibit D5/46;
  6. The exhibits listed in the Memorandum from the Registry annexed to this Decision are admitted.
  7. the confidential schedules are superseded by the following documents that the Prosecutor must file, as soon as practicable:
  8. public schedules attached to the indictment not mentioning those protected victims/witnesses who have testified with the use of a pseudonym,
  9. confidential schedules of those protected victims/witnesses who have testified before the Tribunal with the use of a pseudonym.

 

Done in English.

___________
Almiro Rodrigues
Presiding Judge

Dated this nineteenth day of July 2001,
At The Hague
The Netherlands.

[Seal of the Tribunal]
1 - Transcript p. 11845
2 - Transcript p. 11847