Case No. IT-03-66-T
IN TRIAL CHAMBER II
Judge Kevin Parker, Presiding
Judge Krister Thelin
Judge Christine Van Den Wyngaert
Mr. Hans Holthuis
15 December 2004
PUBLIC VERSION OF “DECISION ON PROSECUTION’S MOTION FOR PROVISIONAL
ADMISSION OF WITNESS STATEMENTS UNDER RULE 92BIS” DATED
13 OCTOBER 2004
The Office of the Prosecutor:
Mr. Andrew Cayley
Mr. Alex Whiting
Counsel for the Accused:
Mr. Michael Mansfield, QC, and Mr. Karim A. Khan for Fatmir Limaj
Mr. Gregor Guy-Smith and Mr. Richard Harvey for Haradin Bala
Mr. Michael Topolski, QC, and Mr. Steven Powles for Isak Musliu
- This decision of Trial Chamber II is in respect of the
Prosecution’s Motion for Provisional Admission of Written
Evidence in Lieu of Viva Voce Testimony pursuant to Rule 92bis
and Attached Annexes A-C” (“Prosecution’s motion”). The Prosecution’s
motion, filed confidentially on 9 August 2004 sought the provisional
admission without cross-examination pursuant to Rule 92bis(A)
of the Rules of Procedure and Evidence (“Rules”) of 17 written
statements subject to compliance with the requirements of
Rule 92bis(B). On 31 August 2004 counsel for Isak Musliu
(“Musliu Defence”) submitted its response to the Prosecution’s
Motion, in which it objected to the unchallenged admission
of all written statements and requested that the Defence be
given the opportunity to cross-examine the witnesses. On 7 September 2004
the Prosecution filed its Reply to the Musliu Defence’s response
in which it withdrew its motion with respect to two of the
17 written statements and maintained the motion with respect
to the remaining statements. On 15 September 2004 the Musliu
Defence submitted a Defence Note for Clarification in which
it submitted inter alia that its Response to the Prosecution’s
motion was filed after consultation with counsel for Haradin
Bala. Counsel for Fatmir Limaj did not submit a separate response
to the Prosecution’s Motion.1
On 11 October 2004 the Acting President of the Tribunal assigned
the case to Trial Chamber II composed by Judges Parker, Thelin
and Van Den Wyngaert.
II. ARGUMENTS OF THE PARTIES
- The Prosecution submits that none of the written statements sought
to be admitted goes to proof of acts and conduct of the Accused as the
proposed evidence concerns the abduction of victims by members of the
Kosovo Liberation Army (“KLA”) other than the Accused, the relevant
historical, political or military background, and the impact of the
crimes alleged in the indictment on the victims and their families.2
It further submits that the evidence is cumulative in nature and the
consideration of the factors listed in Rule 92bis (A)(ii), namely
overriding public interest in hearing the witness viva voce ,
reliability, or prejudicial effect, supports the admission of the proposed
written statements.3 With respect to whether
the witnesses should be called for cross-examination the Prosecution
submits that the proposed written statements do not contain evidence
relating to critical elements of the Prosecution case and deal with
issues peripheral to the core issues in the case.4
- The Defence responds that while the evidence in question may not
relate to the conduct of the Accused, it relates to a critical element
of the Prosecution case and to a live and important issue between the
parties.5 It submits that the Prosecution
are put to strict proof as to the existence of the Lapushnik/Llapushnik
Prison Camp and the detention of anyone therein and that, therefore, evidence relevant to this is a central issue.6
Further it submits that as it does not accept that an armed conflict
existed in Kosovo during the period charged in the indictment, evidence
concerning the emergence of the KLA or its presence in certain areas,
are central issues in this case.7 It argues
that the proposed witness statements are unreliable and that their prejudicial
effect will outweigh their probative value as they include hearsay evidence
and that with respect to several incidents the statements rely on information
from the Serbian security forces the reliability of which is questionable.8
- The admission of evidence, whether in written or in oral form, is
governed by Rule 89(C), which provides that a Chamber may admit any
relevant evidence which it deems to have probative value. Pursuant to
Rule 92bis a Trial Chamber may admit into evidence written statements
in lieu of oral testimony if the statements go to proof of a matter
other than the acts and conduct of the accused as charged in the indictment.
- The scope of this provision has already been identified by the jurisprudence
of the Tribunal. “Acts and conduct of the accused” has been interpreted
as a “plain expression” meaning “deeds and behaviour of the accused.”9
The Appeals Chamber has further clarified that written statements that
go to proof of acts and conduct of the accused upon which the prosecution
relies to establish inter alia the accused’s state of mind, the
accused’s position as a superior, that the accused had reasons to know
that his subordinates were committing a crime, that he participated
in a joint criminal enterprise, or that he shared the intent of the
other participants in the joint criminal enterprise, are not admissible
under Rule 92bis.10
- Pursuant to Rule 92bis a Trial Chamber has a discretion whether
or not to admit a written statement even if the proposed evidence goes
to proof of a matter other than the acts and conduct of the accused.
While written statements concerning acts and conduct of persons the
accused is allegedly responsible for are not inadmissible per se,
this evidence may become sufficiently pivotal to the Prosecution case
that it would not be fair to the accused to permit the evidence to be
given in a written form.11 Relevant to
this determination is the proximity to the accused of the acts and conduct
of his subordinates described in the written statements.12
- Further, under Rule 92bis a Trial Chamber has a discretion
whether or not to order the witness, whose written statement it deems
in principle to be admissible, to appear in court for cross-examination.
An important consideration in that regard is “whether the matter in
question goes to proof of a critical element of the Prosecution’s case
against the accused,”13 or “to a live and
important issue between the parties, as opposed to a peripheral or marginally
relevant issue.”14 In determining whether
to admit a written statement with cross-examination, a Trial Chamber
may also consider the fact that Rule 92bis was primarily intended
to be used to establish what has become known as “crime-base” evidence,
as opposed to evidence related to acts and conduct of an accused’s immediately
- The cumulative nature of the evidence sought to be admitted in written
form is also a factor relevant to whether the written statement should
be admitted with or without cross-examination. However, regardless of
how repetitive the evidence is, it cannot be admitted in written form
if it goes directly to the acts and conduct of the accused.16
- The Defence submits that the proposed witness statements are unreliable
as they include hearsay evidence sometimes obtained from unreliable
sources. The Trial Chamber notes that in the proceedings before the
Tribunal hearsay evidence is in principle admissible, provided that
it is relevant and has probative value.17
In determining the probative value of hearsay evidence the Trial Chamber
is to assess the indicia of its reliability such as whether the statement
is voluntary, truthful and trustworthy.18
- The Trial Chamber now turns to consider whether the written statements
sought to be admitted go to proof of acts and conduct of the Accused
or whether the evidence is pivotal for the Prosecution case. The Chamber
observes that most of the written statements address similar factual
questions and finds it convenient to consider such common issues together
in the context of the Prosecution case.
- The Prosecution alleges that each of the three Accused is responsible
pursuant to Article 7(1) of the Statute for ordering, committing and
aiding and abetting the crimes charged, as well as for participating
in a joint criminal enterprise with the other Accused, other KLA soldiers
and guards at the Lapushnik/Llapushnik prison camp, and other KLA soldiers
participating in the arrests of Serb civilians and perceived Albanian
collaborators.19 It is alleged that the
joint criminal enterprise came into existence before May 1998 and continued
until at least August 1998 with the purpose of targeting Serb civilians
and perceived Albanian collaborators for intimidation, imprisonment,
violence, and murder. Fatmir Limaj and Isak Musliu are also charged
with criminal responsibility as superiors of the actual perpetrators,
pursuant to Article 7(3) of the Statute.20
- Each of the three Accused is charged with imprisonment and cruel
treatment of Serbian and Albanian civilians seized in the municipalities
of Stimlje/Shtime, Glogovac/Gllogoc and Lipljan/Lipjan in Kosovo and
brought to the Lapushnik/Llapushnik prison camp;21
with torture, inhumane acts and cruel treatment at the Lapushnik/Llapushnik
prison camp;22 with murder of civilians
at the prison camp,23 or near the camp.24
- The Indictment also alleges that Fatmir Limaj was a commander of
the KLA, responsible for the operation of the Lapushnik/Llapushnik area
and the Lapushnik/Llapushnik prison camp. Isak Musliu is alleged to
have been a member of the KLA and a commander of the Lapushnik/Llapushnik
area and the prison camp. Haradin Bala was allegedly a member of the
KLA and a commander/guard at the prison camp.
- All fifteen written statements sought to be admitted pursuant to
Rule 92bis contain information regarding the disappearance or
the kidnapping by the KLA of family members of the witnesses in May
and June 1998 from various municipalities in Kosovo.25
The Defence objects to the admission of this evidence without cross-examination.
It does not accept that the individuals referred to in the written statements
were kidnapped by the KLA.26 The Prosecution
replies that the proposed evidence, while relevant and important, does
not relate to a critical element of the Prosecution case,27
and that while the existence of the Lapushnik/Llapushnik prison camp
is disputed by the Defence, only four of the written statements refer
to this camp.28 The Chamber observes that
the parts of the written statements referring to the fact of disappearance
or kidnapping of the witnesses’ relatives do not purport to prove acts
and conduct of the Accused. They are therefore admissible in principle.
While some of these statements refer to victims listed in the Annex
to the Indictment, and therefore the fact of their disappearance may
be relevant to establishing their death, the Defences do not contest
the Prosecution’s position that the individuals listed in the Indictment
are indeed dead.29 Further, in the relevant
parts, the statements do not purport to specifically identify the alleged
kidnappers. Nor do the statements indicate whether they were individuals
for whose acts the Accused could be held responsible, or with whom one
or more of the Accused could have participated in a joint criminal enterprise.
Many of the statements30 lack specificity
as to the alleged place of detention or other factors that may prove
the responsibility of any of the Accused. In this respect, the statements
cannot serve as a basis for establishing that the individuals who carried
out the alleged kidnappings were under the effective command and control
of one or more of the Accused. In view of the above, the Trial Chamber
concludes that the statements in so far as they refer to the disappearance
or the kidnapping of witnesses’ relatives, are not pivotal to the Prosecution
case and may therefore be admitted without cross-examination.
- The statements of witnesses L-29, L-34, L-13, L-37 and L-84 contain
reference to specific KLA commanders in the area. While the statements
of witnesses L-29 and L-34 do not contain a reference to any of the
Accused, the statements of witnesses L-13, L-37 and L-84 refer to Fatmir
Limaj (aka Celiku) as being a KLA commander in the area (together with
commander Drini). The statement of witness L-84 further refers to the
commander in Lapushnik making decisions regarding the release of persons
held for interrogation, a fact that could be relevant to establishing
effective control over subordinates for the purposes of Article 7(3).
None of the statements refers to Isak Musliu and Haradin Bala as having
a status of KLA commander in the area. The relevant parts of the statements
of witnesses L-13, L-37 and L-84 contain information which may be used
to establish that Fatmir Limaj was a superior, and therefore these parts
are inadmissible under Rule 92bis. While there is no separate
response from the Limaj Defence and the response of Musliu Defence does
not raise this issue explicitly, the Trial Chamber nevertheless holds
that the statements of witnesses L-13, L-37 and L-84 are inadmissible
so far as they refer to Fatmir Limaj (commander Celiku) as being the
KLA commander of the area..
- The statements of witnesses L-09 and L-84 contain information about
victims listed in the Indictment being detained, interrogated, beaten,
forced to give written statements or possibly murdered (witness L-09),
or in the case of witness L-84, about instances of detention and interrogation
taking place at the Lapushnik/Llapushnik prison camp. As the Accused
are charged with inter alia murder and inhumane treatment taking
place in the Lapushnik/Llapushnik prison camp, and as two of the Accused
are also charged with participating in a joint criminal enterprise,
as well as with responsibility under Article 7(3), and could be held
responsible for acts of their subordinates or other members of the joint
criminal enterprise, these parts of the above statements are pivotal
for the Prosecution case. The Trial Chamber is persuaded, therefore,
that while the above statements are admissible, the interests of justice
require that the witnesses attend for cross-examination.
- The statements of witnesses L-09, L-37, L-84 and L-43 refer to persons
being detained in the Lapushnik/Llapushnik prison camp. The Defence
does not accept the existence of this prison camp and objects to the
admission of the above statements on the grounds that the above issue
represents a critical element of the Prosecution case.31
The Prosecution submits however that this evidence will be merely corroborating
other viva voce testimony. While the statements of witness L-37
and L-43 each refer to persons being noticed in the camp, the references
are unclear and alone could not serve as the basis for establishing
the circumstances of the death of these persons. The Trial Chamber holds
that the statements of L-37 and L-43 are admissible without cross-examination, provided that they will be corroborating or cumulative on other viva
voce testimony. The Trial Chamber already has held that the statements
of L-09 and L -84 are admissible with cross-examination and does not
propose to vary that in favour of the Prosecution.
- The statements of witnesses L-86, L-29, L-84 and L-31 contain information
about the escalation of tension in the area, the establishment of KLA
checkpoints, KLA presence in the area, and incidences of provocations.
The Defence objects to the admission of written statements on these
matters on the grounds that it does not accept the existence of an armed
conflict in Kosovo in 1998. The Chamber does not agree that these statements
evidence or assume the existence of a state of armed conflict. Rather,
they provide relevant historical, political and military background. The Chamber therefore holds that the relevant parts of these statements
are not pivotal for the Prosecution case and that they are admissible
- Finally, the Chamber is persuaded that each of the written statements
is relevant to the case. It is further persuaded by the Prosecution
submission that while aspects of each of the statements are based on
hearsay, having regard to the nature of those aspects and the circumstances
of this case, the statements are not thereby so unreliable as to render
them inadmissible as lacking probative value. The witnesses do assume
who has kidnapped certain persons, and when and how. It is clear however
from the context that these are assumptions based on hearsay. There
are sufficient indicia of reliability to justify admission into evidence.
The ultimate weight that may be attached to these aspects of the statements
is something to be determined at a later stage of the hearing.
For the foregoing reasons, the Trial Chamber
A. (1) Provisionally, and subject first to compliance with the Rule
92bis (B) procedure, that it will admit in evidence written
(a) L-13, but not paragraph 4 on page 3 of his present statement
which commences “Rahman also told me …” and concludes “dangerous man;”
(b)L-37, but not – in paragraph 6 of his present statement—the passage
commencing with “Based on what I heard” to the end of paragraph 6;
(c) L-84, but not paragraphs 20, 42, 43 and 54 of his present statement;
(2) The Admission of the written statement of L-84 is subject to
that witness being called by the Prosecution for the purpose of cross-examination;
(3) The Admission of the written statement of L-37 is subject to
that statement being corroborative of or cumulative on other viva
voce testimony; and
(4) The Admission of a written statement of each of these witnesses
is not intended to preclude the Prosecution calling any one or more
of them with a view to seeking to lead evidence additional to that
contained in the written statement.
B. (1) Provisionally, and subject first to compliance with the Rule
92bis (B) procedure, that it will admit in evidence in their
entirety written statements of L-86, L-29, L-34, L-25, L-09, L-31,
L-28, L-48, L-65, L-43, L-30 and L-83;
(2) The Admission of a written statement of L-09 is subject to that
witness being called by the Prosecution for the purpose of cross-examination;
(3) The admission of a written statement of L-43 is subject to that
statement being corroborative of or cumulative on other viva voce
Done in English and French, the English version being authoritative.
Judge Kevin Parker
Dated this fifteenth day of December 2004
At The Hague
[Seal of the Tribunal]
1 - The response submitted by
the Musliu Defence hereinafter is referred to as the Defence response.
2 - Prosecution’s Confidential Motion, para.
3 - Prosecution’s Confidential Motion, paras
4 - Prosecution’s Confidential Motion, para.
5 - Defence response, para. 14.
6 - Defence response, para. 14.
7 - Defence response, para. 16.
8 - Defence response, para. 17.
9 - Prosecutor v. Slobodan Milosevic,
Case No. IT-02-54-T, Decision on Prosecution’s Request to Have
Written Statements Admitted Under Rule 92 bis, 21 March
2002 (“Milosevic Trial Decision”), para. 22.
10 - Prosecutor v. Stanislav Galic,
“Decision on Interlocutory Appeal concerning Rule 92bis
(C)”, 7 June 2002 (Galic Appeals Decision). Rule 92bis
excludes any written statement which goes to proof of any act
or conduct of the accused upon which the prosecution relies to
establish that: (a) that the accused committed any of the crimes
charged; (b) that he planned, instigated or ordered the crimes;
or (c) otherwise aided and abetted the alleged perpetrators; or
(d) that he was their superior; or (e) that he knew or had reason
to know that those crimes were about to be or had been committed
by his subordinates; or (f) that he failed to take reasonable
steps to prevent such acts or to punish those who carried out
those acts, are inadmissible under Rule 92bis. Where the
prosecution case is that the accused participated in a joint criminal
enterprise and is therefore liable for acts of others in that
joint criminal enterprise, Rule 92bis(A) excludes also
written statement which goes to proof of any act or conduct of
the accused upon which the prosecution seeks to establish that
the accused had participated in the joint criminal enterprise
or that he shared with the persons who actually committed the
alleged crimes the requisite intent. (Galic Appeal Decision,
11 - Galic Appeals Decision, para. 15.
See also Prosecutor v. Radoslav Brdjanin and Momir Talic,
Public Version of the Confidential Decision on the Admission of
Rule 92 bis statements dated 1 May 2002 (“Br|anin Trial Decision”),
12 - Galic Appeals Decision, para. 13.
13 - Prosecutor v. Dusko Sikirica, Damir
Dosen and Dragan Kolundzija, Trial Chamber Decision of 23
May 2001 (“Sikirica Decision”), para. 4.
14 - Milosevic Trial Decision, paras
15 - Galic Appeals Decision, para. 16.
16 - Milosevic Trial Decision, para.
17 - Prosecutor v. Dusko Tadic, Case
No.: IT-94-1-T, Decision on Defence Motion on Hearsay, 5 August
1996 (“Tadic Decision”).
18 - Tadic Decision, para. 16.
19 - Indictment paras 6-10.
20 - Indictment, paras 14-17.
21 - Counts 1-2 of the Indictment, paras 21-24.
22 - Counts 3-6 of the Indictment, paras 25-27.
23 - Counts 7-8; Indictment, paras 28-33.
24 - Counts 9-10, Indictment, paras 34-37.
25 - Lipljan, Suva Reka, Obilic municipalities,
Likovc, and in the area around Crnoljevo.
26 - Defence Response, Annex A.
27 - Prosecution’s reply, para. 13.
28 - Prosecution’s reply, para. 14.
29 - Defence response, para. 23.
30 - See also para. 17 below.
31 - Defence response, para. 14.