Case No. IT-03-66-T

IN TRIAL CHAMBER II

Before:
Judge Kevin Parker, Presiding
Judge Krister Thelin
Judge Christine Van Den Wyngaert

Registrar:
Mr. Hans Holthuis

Decision of:
9 March 2005

PROSECUTOR

______________________________________________

DECISION ON PROSECUTION’S THIRD MOTION FOR PROVISIONAL ADMISSION OF WRITTEN EVIDENCE IN LIEU OF VIVA VOCE TESTIMONY PURSUANT TO RULE 92BIS

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The Office of the Prosecutor:

Mr. Alex Whiting
Mr. Julian Nicholls
Mr Milbert Shin
Mr. Colin Black

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

I. INTRODUCTION

1. This decision of Trial Chamber II is in respect of the "Prosecution’s Third Motion for Provisional Admission of Written Evidence in Lieu of Viva Voce Testimony pursuant to Rule 92bis" ("Motion") and Annex A to the Motion, filed confidentially on 11 November 2004. The Prosecution seeks the provisional admission without cross-examination, pursuant to Rule 92bis(A) of the Rules of Procedure and Evidence ("Rules"), of the written statement of Witness L-94, subject to compliance with the requirements of Rule 92bis(B) of the Rules. The Prosecution submits that the proposed statement is primarily concerned with the kidnapping of Serbs by the KLA from a bus in Crnoljevo and, to some extent, the existence of a KLA checkpoint in Crnoljevo and the presence of the KLA in the area. In the Prosecution’s submission, and referring to a previous decision of the Chamber,¹ these matters are admissible as they do not go to the proof of acts or conduct of the Accused, and do not require that the witness appear for cross-examination.²
2. On 22 November 2004, the Defence counsel for the three Accused submitted a joint Response,³ in which they did not object to the Motion.

II. PRELIMINARY ISSUE

3. The Chamber notes, at the outset, that the witness who is the subject of the Motion appears neither on the initial Prosecution’s witness list filed confidentially on 27 February 2004 nor on the subsequent witness list filed confidentially prior to the commencement of the trial on 30 September 2004. Nevertheless, in the Motion, the Prosecution does not expressly seek to amend its list of witnesses so as to add the proposed Rule 92bis witness.

4. In this respect, Rule 73bis (E) provides that "[ a] fter commencement of the trial, the Prosecutor may file a motion to vary … the number of witnesses that are to be called or for additional time to present evidence and the Trial Chamber may grant the Prosecutor’s request if satisfied that this is in the interests of justice." The spirit of Rule 73bis (E) is to prevent the Prosecution from calling witnesses without sufficient notice to the Defence, while ensuring that the search for the truth is guaranteed by allowing the Prosecution to seek to amend its list of witnesses where it is in the interests of justice to do so.⁴
5. In the present case, the proposed evidence deals with the general situation in Kosovo in 1998 and more specifically with events surrounding the kidnapping and abduction of a Serb civilian in June 1998 in the village of Crnoljevo. The Chamber is of the view that the evidence proposed is relevant to the allegations in the Indictment that the Accused participated in a joint criminal enterprise, which included the arrest of Serb civilians and perceived Albanian collaborators.⁵ The late notice of this witness will not, in the Chamber’s opinion, cause undue hardship to the Defence. It is therefore in the interests of justice to allow this witness to be added to the Prosecution’s witness list.
III. THE ADMISSION OF THE PROPOSED STATEMENT PURSUANT TO RULE 92BIS
6. The law concerning the admission into evidence of written statements under Rule 92bis has been sufficiently set out in the First Rule 92bis Decision. For a written statement in lieu of oral testimony to be admitted into evidence, it must go to proof of a matter other than the acts and conduct of the accused as charged in the indictment. The Chamber recalls that a Trial Chamber has discretion in deciding whether to admit a written statement. Relevant to this determination is the proximity to the accused of any acts and conduct of his subordinates described in the written statements.⁶ Further, the Chamber notes that an important consideration in deciding to admit a written statement with cross-examination is whether the evidence in question "goes to proof of a critical element of the Prosecution’s case against the accused", or relates "to a live and important issue between the parties, as opposed to a peripheral or marginally relevant issue."⁷ Therefore, when a written statement touches upon the very essence of the prosecution case against the accused, the witness should be available for cross-examination. The cumulative nature of the evidence sought to be admitted in written form is also a factor in determining whether to admit a witness statement with cross-examination.⁸ Moreover, hearsay evidence is in principle admissible in proceedings before this Tribunal if it is relevant and has probative value. A Trial Chamber may decide the probative value of such evidence by assessing, inter alia, whether the statement is voluntary, truthful and trustworthy.⁹
7. The Chamber now turns to consider whether the proposed written statement fulfils the requirements for admission into evidence under Rule 92bis and if so, whether the witness should be required to appear for cross-examination. As stated above, the written statement sought to be admitted pursuant to Rule 92bis contains information regarding the disappearance or the kidnapping by unidentified KLA soldiers of a Serb man, in June 1998 in Crnoljevo. The Chamber notes that the statement does not contain any information identifying the perpetrators of the alleged kidnapping or establishing a relationship between those perpetrators and one or more Accused. Thus, the Trial Chamber is satisfied that the statement does not go to proof of the acts and conduct of the Accused and is not pivotal to the Prosecution case. It may therefore be admitted without cross-examination.

IV. DISPOSITION

For the foregoing reasons, pursuant to Rules 54, 73bis and 92bis of the Rules, the Chamber

ALLOWS the Prosecution to add Witness L-94 to its witness list;

GRANTS the Motion and ORDERS that the proposed statement be provisionally admitted into evidence without requiring that Witness L-94 be called for cross-examination, subject first to compliance with the Rule 92bis(B) procedure;

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

______________________
Judge Kevin Parker
Presiding

Dated this ninth day of March 2005
At The Hague
The Netherlands