Case No.: IT-02-54-T

IN THE TRIAL CHAMBER

Before:
Judge Richard May, Presiding
Judge Patrick Robinson
Judge O-Gon Kwon

Registrar:
Mr. Hans Holthuis

Order of:
12 September 2003

PROSECUTOR

v.

SLOBODAN MILOSEVIC

_________________________________________________

DECISION ON PROSECUTION MOTIONS FOR ADMISSION OF THE STATEMENT OF THE WITNESS BARON VAN LYNDEN PURSUANT TO RULE 92BIS (A) AND TRANSCRIPT OF TESTIMONY IN ANOTHER TRIAL PURSUANT TO RULE 92BIS (D)

__________________________________________________

The Office of the Prosecutor

Mr. Geoffrey Nice

The Accused

Slobodan Milosevic

Amicus Curiae

Mr. Steven Kay
Mr. Branislav Tapuskovic
Mr. Timothy McCormack

 

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 ("the International Tribunal"),

BEING SEISED of

  1. a partly confidential "Prosecutionís Motion for the Admission of Evidence Pursuant to Rule 92bis (A)", filed by the Prosecution on 22 August 2003, in which the Prosecution (in part) requests the admission of paragraphs 1, 2, 11-41 (together with video tapes and a map referred to in the statement) of the statement of the witness, Baron van Lynden ("witness"), pursuant to Rule 92bis (A), the remainder of the evidence to be led live, and for an order that the Accusedís cross-examination on the written statement be limited to paragraphs 3 to 10; and
  2. a partly confidential "Prosecutionís Consolidated Motion for the Addition of Witnesses to the Witness List and the Admission of Evidence Pursuant to Rule 92bis (D)", filed by the Prosecution on 8 August 2003, in which the Prosecution (in part) requests the admission of the transcript of the testimony of the witness given in the Galic trial pursuant to Rule 92bis (D), and that the Accused not be permitted to cross-examine the witness on this testimony except in respect of meetings with Mladic and Karadzic, which will be led by way of viva voce evidence,

NOTING

  1. the response filed by the Amici Curiae on 4 September 2003, in which it is stated that the relevant evidence to be led by way of Rule 92bis (A) does not go to the acts and conduct of the Accused but is not yet properly cumulative, and that the Accused should be entitled to cross-examine the witness on all areas of his evidence, both the viva voce part and that admitted by way of his written statement; and
  2. the response filed by the Amici Curiae on 2 September 2003, in which it is stated that the evidence contained in the Galic transcript sought to be admitted by way of
    Rule 92bis (D) does not go to the acts and conduct of the Accused, except for those parts the Prosecution will lead by way of viva voce evidence,

NOTING that Rule 92bis provides:

(A) A Trial Chamber may admit, in whole or in part, the evidence of a witness in the form of a written statement in lieu of oral testimony which goes to proof of a matter other than the acts and conduct of the accused as charged in the indictment.

[Ö]

(D) A Chamber may admit a transcript of evidence given by a witness in proceedings before the Tribunal which goes to proof of a matter other than the acts and conducts of the accused,

NOTING Articles 20 and 21 of the Statute,

CONSIDERING the Accusedís general opposition to the admission of Rule 92bis evidence and assuming the same in regard to the present motions,

CONSIDERING that the evidence sought to be admitted by way of Rule 92bis does not go to proof of the acts and conduct of the Accused and is therefore admissible under Rule 92bis,

CONSIDERING that the cumulative nature of the testimony is only one factor in favour of admitting a statement under Rule 92bis (A),

CONSIDERING that it is proper that the Accused be entitled to cross-examine the witness on all areas of his evidence, including the evidence admitted by way of Rule 92bis,

PURSUANT TO Rule 92bis of the Rules,

HEREBY ORDERS as follows:

  1. Paragraphs 1, 2, 11-41 of the statement of the witness is admitted pursuant to Rule 92bis (A) (together with video tapes and a map referred to in the statement);
  2. The remainder of the evidence of the witness contained in his statement shall be given viva voce;
  3. The transcript of the testimony of the witness given in the Galic trial is admitted pursuant to Rule 92bis (D), subject to the testimony concerning the meetings the witness says he had with Mladic and Karadzic being led by way of viva voce evidence,; and
  4. The Accused shall not be limited in his cross-examination of the witness to the viva voce component of his evidence.

 

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

___________________________
Richard May
Presiding

Dated this twelfth day of September 2003
At The Hague
The Netherlands

[Seal of the Tribunal]