Case No. IT-04-74-PT

IN TRIAL CHAMBER II

Before:
Judge Carmel Agius, Presiding
Judge Kevin Parker
Judge Jean-Claude Antonetti

Registrar:
Mr. Hans Holthuis

Decision:
4 April 2006

PROSECUTOR

v.

JADRANKO PRLIC
BRUNO STOJIC
SLOBODAN PRALJAK
MILIVOJ PETKOVIC
VALENTIN CORIC
BERISLAV PUSIC

______________________________________________

DECISION ON THE ADMISSION OF RULE 92 BIS WRITTEN STATEMENTS

______________________________________________

Office of the Prosecutor:

Mr. Kenneth Scott
Mr. Daryl Mundis

Counsel for Accused:

Mr. Michael Karnavas and Ms. Suzana Tomanovic for Jadranko Prlic
Ms. Senka Nožica for Bruno Stojic
Mr. Božidar Kovačic and Ms. Nika Pinter for Slobodan Praljak
Ms. Vesna Alaburic for Milivoj Petkovic
Mr. Tomislav Jonjic for Valentin Coric
Mr. Fahrudin Ibrišimovic for Berislav Pušic

 

THIS TRIAL 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 ("Tribunal"),

BEING SEIZED of the "Prosecution Motion for Admission of Written Statements pursuant to Rule 92 bis (A) and (B)", filed confidentially on 27 December 2005 ("First Prosecution Motion"), in which the Prosecution requests the admission of 22 written statements, as well as the "Prosecution Second Motion for Admission of Written Statements pursuant to Rule 92 bis (A) and (B) ("Second Prosecution Motion"), filed confidentially on 8 February 2006,

NOTING "Jadranko Prlic’s Response to Prosecution Motion for Admission of Written Statements pursuant to Rule 92 bis (A) and (B)", filed on 5 January 2006; “the Accused Valentin Coric’s Response to the Prosecution Motion for Admission of Written Statements pursuant to Rule 92 bis (A) and (B)", filed confidentially on 9 January 2006; the "Response of the Defence for the Accused Petkovic to Prosecution's Motion for Admission of Written Statements pursuant to Rule 92bis (A) and (B), of 27 December 2005", filed confidentially on 9 January 2006; the “Response on behalf of Berislav Pusic to the Prosecution’s Motion for Admission of Written Statements pursuant to Rule 92 bis (A) and (B)", filed confidentially on 17 January 2006; and “Bruno Stojic's Notice of Joinder to the Response on behalf of Berislav Pusic to the Prosecution's Motion for Admission of Written Statements pursuant to Rule 92 bis (A) and (B)", filed confidentially on 17 January 2006,

NOTING the Trial Chamber’s "Order granting an extension of time", dated 18 January 2006, extending the deadline for all of the Accused to respond to all Rule 92 bis Motions filed by the Prosecution until 22 February 2006,

NOTING the "Prosecution Notification concerning Motions filed under 92 bis", filed on 24 January 2006, in which the Prosecution requests leave from the Trial Chamber to answer all the Defence Responses in one consolidated Reply after 22 February 2006,-1-

NOTING "Jadranko Prlic's response to Prosecution Motion for admission of written statements pursuant to Rule 92 bis (A) and (B)", filed on 15 February 2006; "the Accused Valentin Coric's response to the Prosecution second Motion for admission of written statements pursuant to Rule 92 bis (A) and (B)", filed on 21 February 2006; the “Response on behalf of Berislav Pusic to the Prosecution's second Motion for admission of written statements pursuant to Rule 92 bis (A) and (B)", filed confidentially on 22 February 2006; and the "Response of the Defence for the Accused Petkovic to Prosecution's (three) Motions filed pursuant to Rule 92 bis on 30 June 2005, 5 December 2005 and 27 December 2005", filed confidentially on 22 February 2006,-2-

CONSIDERING that, given the large number of witnesses that will be called by the Prosecution and by the Accused in this case, it may be necessary to admit certain written statements pursuant to Rule 92 bis of the Rules,

CONSIDERING, however, that the precise parameters of the Prosecution case, including the number of witnesses it will call at trial, has not been fully determined yet,

CONSIDERING, further, that the Trial Chamber has not received from the Prosecution the means to assess, with regard to each individual Accused, which witnesses will testify to which incident alleged in the indictment,-3- and that it is therefore unable to assess whether or not the information in the written statements is of "a cumulative nature," which is one of the factors in favour of admitting evidence in the form of a written statement listed in Rule 92 bis(A)(i) of the Rules,-4-

CONSIDERING FURTHER, in relation to the crimes charged pursuant to Article 7(3) of the Statute, that this Trial Chamber is unable to assess at this stage of the proceedings whether alleged subordinates were so proximate to the Accused that their acts would have such a direct bearing on the Accused’s own acts and conduct that it would be unfair to admit this evidence in the form of a written statement,-5-

CONSIDERING that while it would be premature to admit the proposed evidence at the present stage of proceedings under Rule 92 bis of the Rules, the Prosecution may tender all or some of the proposed written statements as evidence at trial, in the usual manner, or it may seek again to have some or all of the proposed evidence admitted pursuant to Rule 92 bis at a later stage when there has been clarification of the matters referred to above,

FOR THE FOREGOING REASONS, pursuant to Rules 54 and 92 bis of the Rules,

DENIES the First and the Second Prosecution Motions.

 

Done in both English and French, the English text being authoritative.

_____________
Judge Carmel Agius
Presiding

Dated this fourth day of April 2006
At The Hague
The Netherlands

[Seal of the Tribunal]


1. The Trial Chamber notes that the Prosecution has not filed a consolidated Reply after 22 February 2006, and that the Trial Chamber has not granted the request for leave to file a Reply.
2. On 23 February 2006, the Accused Stojic filed “Bruno Stojic's Response to Prosecution Motion of 8 February 2006 for admission of written statements pursuant to Rule 92 bis (A) and (B)". The Trial Chamber has not taken this filing into consideration.
3. See Prosecutor v. Prlic, Stojic, Praljak, Petkovic, Coric, and Pušic, Case No. IT-04-74-PT, Order on Guidelines for Drawing Up the List of Witnesses and Exhibits, 30 November 2005; Prlic et al., Order Directing the Prosecution to Comply with the Provisions of Ordinary Proceedings, 17 January 2006; Prlic et al., Prosecution Submission pursuant to the Pre-Trial Judge’s Order Dated 24 January 2006, 30 January 2006.
4. See also Prosecutor v. Brdjanin & Talic, IT-99-36-T, "Decision on ‘objection and/or consent to Rule 92 bis admission of witness statements number one’ filed by Brđanin on 16 January 2002 and ‘Opposition du général Talic à l’admission des dépositions recueillies en application de l’article 92 B du Règlement’ filed by Talic on 21 January 2002", filed confidentially on 30 January 2002 ("Brđanin Decision"), para. 30: "However, a party is expected to give some general information about which other witnesses will give similar evidence and the nature of the overlap. The prosecution has not done that in this case. In the absence of such information, the Trial Chamber is left with little means of assessing the prosecution’s claim that this witness will give "repetitive evidence". The Trial Chamber emphasizes that a party seeking to rely on Rule 92 bis (as well as parties objecting to Rule 92 bis statements) should assist the Trial Chamber by adequately addressing the relevant factors specified in the Rule".
5. Brdjanin Decision, para. 17. See also Galic Decision, para. 15.