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:
2 December 2003
PROSECUTOR
v.
SLOBODAN MILOSEVIC
_________________________________________________
DECISION ON CONFIDENTIAL PROSECUTION MOTION FOR THE ADMISSION
OF TRANSCRIPTS PURSUANT TO 92BIS(D) AND THE STATEMENT OF WITNESS B-1636
PURSUANT TO RULE 89(F)
__________________________________________________
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 the confidential Prosecution Motion for the Admission
of Transcripts Pursuant to 92bis(D) and the Statement of Witness B-1636
Pursuant to Rule 89(F) ("Motion"), filed on 5 November 2003 by the
Office of the Prosecutor ("Prosecution"), in which the Prosecution
request the admission into evidence of the following transcripts and associated
exhibits in the Simic case, and witness statements, all in respect of
events in the Bosanski Samac municipality:1
- The admission, without cross-examination, of two transcript evidence of
witnesses B-1639 and B-1643,
- The admission, with cross-examination, of portions of the transcript evidence
of witness B-1636,2 and their accompanying exhibits,
- The admission, with cross-examination, of two statements of witness B-1636,
under Rule 89(F),
NOTING the Prosecution submission, in relation to Rule 89(F), that:
- The Witness will state under solemn declaration and verify before the Chamber
that the content of the statement is true;
- While the Witness’ transcript evidences meet all the criteria under Rule
92bis(D), in order to avoid overburdening the Accused with what was
lengthy evidence in the earlier proceedings, it is more expedient to rely
upon the relatively short extracts of the transcript evidence, as well as
the two statements, which are eligible for admission under Rule 92bis(A),
although, in order to save Registry time and resources, no application is
made to admit the statement under Rule 92bis(A),
- Although cumulative evidence is not a requirement under Rule 92bis(A),
the statement regarding the SUP detention facilities and TO buildings in Bosanski
Samac is cumulative of evidence given by Witness B-124,
- Because the transcript evidence and the two statements fulfil the Rule 92bis
admission requirements, the Prosecution request that cross-examination be
limited in time to the same extent that cross-examination is ordinarily limited
in the context of other evidence admitted under rule 92bis,
NOTING the Amici Curiae Reply to Prosecution Motion for
the Admission of Transcripts Pursuant to 92bis(D) and the Statement of
Witness B-1636 Pursuant to Rule 89(F) Dated 5 November 2003 ("Motion"),
filed on 14 November 2003 by the Amici Curiae ("Amici"),
in which the Amici submit:
- The evidence given by Witnesses B-1636, B-1639 and B-1643 could be described
as crime base which neither goes to the acts and conducts of the Accused,
nor is it proximate to him,
- The part of the evidence of Witness B-1636 regarding the take-over of Bosanski
Samac is not cumulative of other testimony, and can be regarded as pivotal,
and the evidence involves the Serbia as it describes the JNA and Serbian paramilitaries’
activities in Bosnia and Herzegovina –a material issue in the trial– and the
issue of detention facilities in Serbia, while Witness B-1636 false statement
to a television journalist may bring into question the reliability of the
witness if he has made a contradictory public statement,
- The part of the evidence of Witness B-1639 regarding the take-over of Bosanski
Samac is not cumulative of other testimony, and can be regarded as pivotal
as it is new evidence dealing with a fresh municipality,
- The evidence given by Witnesses B-1643 is not cumulative if the previous
witnesses do not give viva voce testimony and therefore the transcript evidence
may be considered as pivotal, and the evidence involves the Serbia as it describes
Serbian paramilitaries and detention facilities in Serbia, and finally, the
contradictory account to the Red Cross raises the issue of unreliability as
a feature of his testimony,
NOTING further the Amici submission, in relation to Rule 89(F),
that
- As Witness B-1636 is to be called to give evidence, the transcript evidence
are not being used in lieu of oral testimony, there is no issue for the witness
being saved the inconvenience of returning to give evidence and therefore,
the witness falls to be dealt with under either the written aspect of Rule
89(F) or viva voce; if Rule 89(F) were to be used, it would be a matter
whether it is in the interest of justice to do so, while the transcript evidence
adds nothing extra to the statement,
- In the interest of justice, Witness B-1636 should give all his testimony
viva voce, otherwise the matters relating to Bosanski Samac
and the detention in Serbia should be heard live; alternatively, if the evidence
is given under the written aspect of Rule 89(F), there should be no restriction
on the subject-matters of cross-examination,
- If the Trial Chamber were to admit the transcript evidence of Witness B-1639,
the Accused should be able to cross-examine the witness,
NOTING that Rule 89(F) provides:
A Chamber may receive the evidence of a witness orally or, where the interests
of justice allow, in written form.
NOTING that Rule 92bis(D) provides:
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 the Decision on Interlocutory Appeal on the Admissibility of
Evidence-in-Chief in the Form of Written Statements, dated 30 September 2003,
in which the Appeals Chamber held that Rule 89(F) could be used for the introduction
of a written statement of a witness as evidence-in-chief, if it was in the
interest of justice to do so,3
NOTING Articles 20 and 21 of the Statute,
CONSIDERING the Accused’s general opposition to the admission of Rule
92bis evidence,
CONSIDERING that all three witnesses were subjected to cross-examination
by counsel for the accused in the Simic case,
CONSIDERING that the evidence does not go to proof of the acts and conduct
of the Accused and is therefore admissible under Rule 92bis(D),
CONSIDERING that the evidence goes to matters which may be of critical
importance to his defence and that the earlier cross-examination of witnesses
B-1639 and B-1643 adequately covers those matters,
CONSIDERING that it is in the interest of justice to introduce the two
written statements of Witness B-1636 as evidence-in-chief,
PURSUANT TO Rules 54, 89(F) and 92bis(D) and (E) of the Rules,
HEREBY ORDERS as follows:
- The transcripts and the accompanying exhibits of witnesses B-1639 and B-1643
shall be admitted without cross-examination, provided that (a) the passages
of the transcripts referring to the JNA are excluded from the transcripts
and (b) the Prosecution submit such transcripts seven days from the date of
this decision, Judge Robinson dissenting to the decision; or the witnesses
must be made available for cross-examination by the Accused.
- The two statements of Witness B-1636 as well as the portions of the transcripts
and the accompanying exhibits of witness B-1636,4 shall
be admitted under Rules 89(F) and 92bis(D), subject for the witness
being made available for cross-examination.
Done in English and French, the English text being authoritative.
________________
Richard May
Presiding
Dated this second day of December 2003
At The Hague
The Netherlands
[Seal of the Tribunal]
1. Prosecutor v. Blagoje Simic et al.,
Case No. IT-95-9-T.
2. These portions (T. 1447-87 and T. 1497-1514) relate to the detention of the
witness in JNA barracks in Brcko and Bijeljina, in Batajnica and Sremska Mitrovica,
and broadcasts filmed in Bosanski Samac and Sremska Mitrovica.
3. Decision on Interlocutory Appeal on the Admissibility of Evidence-in-Chief
in the Form of Written Statements, dated 30 September 2003, para. 21.
4. T. 1447-87 and T. 1497-1514.