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:
6 July 2005

PROSECUTOR

Fatmir LIMAJ
Haradin BALA
Isak MUSLIU

________________________________________________

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.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

1. introduction

This decision of Trial Chamber II is in respect of the "Motion by the Defence for the Accused Haradin Bala to Admit the Witness Statement of Howard Tucker Pursuant to Rule 92bis" ("Motion") and Appendix to the Motion, filed on 1 July 2005. The Defence for Haradin Bala seeks the admission, pursuant to Rule 92bis(A) of the Rules of Procedure and Evidence ("Rules"), of the written statement of Howard Tucker, and submits that it has already complied with the requirements of Rule 92bis(B) of the Rules¹. The Defence for Haradin Bala submits that the proposed statement relates to the form and the content of an interview of Dr Zeqë Gashi conducted by Howard Tucker, Investigator for the Office of the Prosecutor, in September 2003. In the Defence’s submission, the statement is admissible as it does not go to the proof of acts or conduct of the Accused.

On 4 July 2005, the Prosecution filed a "Prosecution’s Response to Motion by the Defence for the Accused Haradin Bala to Admit the Witness Statement of Howard Tucker Pursuant to Rule 92bis", whereby it indicated that it "has no opposition to this motion by the Defence."

2. DISCUSSION

The law concerning the admission into evidence of written statements under Rule 92bis has been set out in the "Decision on Prosecution’s Motion for Provisional Admission of Witness Statements under Rule 92bis", issued on 13 October 2004. 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 it has discretion in deciding whether to admit a written statement. In determining whether the witness should be available for cross-examination, the Chamber will consider whether the evidence in question relates to a critical and live issue between the parties as opposed to a peripheral or marginally relevant issue. 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. 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.

The written statement sought to be admitted pursuant to Rule 92bis relates to the methods used by Howard Tucker while interviewing Dr Zeqë Gashi in September 2003 and information obtained during the interview, as to when exactly Dr Zeqë Gashi started to operate the clinic in Llapushnik in the months of May to July 1998. Thus, the Chamber is satisfied that the statement does not go to proof of the acts and conduct of the Accused. The Chamber understands from the parties’ submissions that there is no objection to the statement being admitted into evidence without calling the witness for cross-examination. It will therefore be admitted without cross-examination.

3. DISPOSITION

For the foregoing reasons, pursuant to Rule 92bis of the Rules, the Chamber

GRANTS the Motion and ORDERS that the proposed statement of Howard Tucker be admitted into evidence without requiring the witness to be called for cross-examination;

REQUESTS the Registry to (a) mark as an exhibit the written statement of Howard Tucker, (b) assign an exhibit number to this document, and to inform the Chamber and the parties of the exhibit number in writing as soon as practicable.

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

______________________
Judge Kevin Parker
Presiding

Dated this sixth day of July 2005
At The Hague
The Netherlands