Case No.: IT-98-34-T

BEFORE THE TRIAL CHAMBER

Before:
Judge Liu Daqun, Presiding
Judge Maureen Harding Clark
Judge Fatoumata Diarra

Registrar:
Mr. Hans Holthuis

Order of:
27 February 2002

PROSECUTOR

v.

MLADEN NALETILIC aka "TUTA"
and
VINKO MARTINOVIC aka "STELA"

___________________________________________________________

DECISION ON THE PROSECUTOR’S REQUEST FOR PUBLIC VERSION OF TRIAL CHAMBER’S "DECISION ON THE MOTION TO ADMIT STATEMENT OF DECEASED WITNESSES […]" OF 22 JANUARY 2002

___________________________________________________________

The Office of the Prosecutor:

Mr. Kenneth Scott

Counsel for the Accused:

Mr. Kresimir Krsnik, for Mladen Naletilic
Mr. Branko Seric, for Vinko Martinovic

 

TRIAL CHAMBER I, SECTION A ("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"):

BEING SEIZED OF the "Prosecutor’s Request For Public Version of Trial Chamber’s "Decision on the Motion to Admit Statement of Deceased Witnesses" of 22 January 2002" ("the Request"), filed on 1 February 2002, whereby the Prosecution applies to the Chamber for a public version of the Chamber’s "Decision on the Motion to Admit Statement of Deceased Witnesses S…C" ("the Decision"), filed on 22 January 2002, in which the names of the deceased witnesses are redacted;

NOTING that the Prosecution argues that the Decision is one of only a few rulings - and the most recent one - dealing with the admission of statements of deceased witnesses, that other Prosecution teams would like to cite the Decision but cannot provide the Decision to Defence Counsel due to its confidential character;

CONSIDERING that the names of the deceased witnesses are referred to in several paragraphs of the Decision, that these references can be redacted and that, after such a redaction, there remain no other reasons why the content of the Decision should retain its confidential status;

GRANTS THE MOTION AND STATES THAT THE ATTACHED TEXT (ANNEX A) SHALL CONSTITUTE THE PUBLIC VERSION OF THE DECISION.

 

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

Dated this twenty-seventh day of January 2002,
At The Hague,
The Netherlands

__________________
Judge Liu Daqun
Presiding Judge

[Seal of the Tribunal]

ANNEX A

TRIAL CHAMBER I, SECTION A ("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"):

BEING SEIZED OF the Prosecutor’s "Motion to Admit Statement of Deceased Witnesses S…C", filed confidentially on 14 January 2002;

NOTING that the Prosecutor requests that the Trial Chamber admit into evidence two written witness statements given by the witnesses to investigators of the Office of the Prosecutor, such witnesses having since died;

CONSIDERING that, in reliance on Rule 89 (C) of the Rules of Procedure and Evidence ("the Rules") and the Interlocutory Appeals Decision in Pros. v. Kordic and Cerkez ("the Interlocutory Appeals Decision"), the Prosecutor argues that the statements of the deceased witnesses are sufficiently reliable to be admissible into evidence;

CONSIDERING that, in support of their argument, the Prosecutor did not consider nor refer to Rule 92 bis (C) of the Rules;

CONSIDERING that Rule 92 bis (C) of the Rules was incorporated into the Rules following the Interlocutory Appeals Decision, and that it constitutes, as far as the admission of statements of deceased witnesses is concerned, the lex specialis to the "general provisions" of Rule 89 (C) of the Rules;

CONSIDERING therefore, the standard enshrined in Rule 92 bis (C) of the Rules applies, and that it provides that a written statement made by person not in the form prescribed by Rule 92 bis (B) of the Rules may only be admitted into evidence (after this persons has subsequently died) if the Trial Chamber (i) is so satisfied on a balance of probabilities; and (ii) finds from the circumstances in which the statement was made and recorded that there are satisfactory indicia of its reliability;

CONSIDERING that the two witness statements were not taken in the form of Rule 92 bis (B) of the Rules, i.e., they were not witnessed by a person authorised to witness such a declaration in accordance with the law and procedure of a State or by a Presiding Officer appointed by the Registrar of the Tribunal for that purpose, and that, therefore, the prerequisites of Rule 92 bis (C) (i) and (ii) of the Rules must be satisfied for their admission;

CONSIDERING that Rule 92 bis (A) of Rules allows for the admission of written evidence in lieu of oral testimony only if it "goes to proof of a matter other than the acts and conduct of the accused as charged in the indictment";

CONSIDERING that Rule 92 bis (D) also contains this material restriction to "matters other than the acts and conduct of the accused" even with regard to the admission of transcripts of such evidence that was given by a witness in proceedings before the Tribunal itself (and, therefore, has even already been subject to cross-examination in a different proceeding);

CONSIDERING that a teleological interpretation of Rule 92 bis requires Rule 92 bis (C) to be read in the light of the material restriction laid down in Rule 92 bis (A), with the result that Rule 92 bis (C), given the requirements of Rule 92 bis (C) (i) and (ii) are met, only allows for the admission of a written transcript of a deceased witness if it "goes to proof of a matter other than the acts and conduct of the accused as charged in the indictment";

NOTING that the witness statement of the deceased witness S…C goes to proof of the acts and conduct of the accused Mladen Naletilic as charged under Count 47 of the indictment and to his superior authority as charged under paragraphs 14 and 16 of the indictment;

NOTING that the witness statement of the deceased witness S…C goes to proof of the acts and conduct of the accused Mladen Naletilic in terms of his superior responsibility as charged under paragraphs 14 to 17 in the indictment;

CONSIDERING that, therefore, both witness statements do not meet the chapeau requirement of Rule 92 bis (A) of the Rules since they go directly to proof of the acts and conduct of the Accused as charged in the indictment;

CONSIDERING that the Trial Chamber may therefore not admit the written evidence of these witnesses in lieu of oral testimony since it would be prejudicial to the rights of the Accused to cross-examine his accuser and, consequently, his right of a fair trial;

CONSIDERING FURTHER, that the Trial Chamber shares various concerns with regard to the general reliability of witness statements given to investigators of the Prosecution as expressed by the Interlocutory Appeals Decision, namely the fact that such statements are not given under oath, that they never have been subject to cross-examination, that they are given by a witness not contemporaneously with the events in question but only some years afterwards, and, that, in particular, the taking of these statements regularly involves the process of multiple translations whose reliability as such already appears to be at least questionable;

CONSIDERING that, in this regard, the Prosecution has not submitted any detailed information to the Trial Chamber as to the concrete procedure applied when the statements of the two witnesses were taken;

CONSIDERING finally, that the Prosecution did neither inform the Trial Chamber when these witnesses deceased nor provided the Trial Chamber with any formal confirmation of their death;

CONSIDERING that as a result of these findings concerning the circumstances in which the statements were made and recorded, the Trial Chamber is not satisfied on a balance of probabilities and cannot conclude that there are satisfactory indicia of their reliability, as defined by Rule 92 bis (C) (i) and (ii);

FOR THE FOREGOING REASONS DENIES THE MOTION.