Case No. IT-02-54-T

IN THE TRIAL CHAMBER

Before:
Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy

Registrar:
Mr. Hans Holthuis

Decision:
14 June 2004

PROSECUTOR

v.

SLOBODAN MILOSEVIC

_______________________________

DECISION ON PROSECUTION MOTION FOR ADMISSION PURSUANT TO RULE 92bis OF PROPOSED EVIDENCE OF DECEASED WITNESSES B-1539, LUDVIK KRANJC, AND FARUK ALISIC

_______________________________

Office of the Prosecutor:

Ms. Carla Del Ponte
Mr. Geoffrey Nice
Mr. Dermot Groome
Ms. Hildegaard Uertz-Retzlaff

Amici Curiae:

Mr. Steven Kay, QC
Prof. Timothy L.H. McCormack

The Accused:

Mr. Slobodan Milosevic

 

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 ("International Tribunal"),

BEING SEISED of a "Prosecution Motion for the Admission of Written Evidence from 3 Deceased Witnesses Pursuant to Rule 92 bis And Confidential Annexe", filed by the Prosecution on 6 February 2004 ("Motion"), requesting the admission pursuant to Rule 92bis of the Rules of Procedure and Evidence of the International Tribunal ("Rules") of the proposed evidence of Witnesses B-1539, Ludvik Kranjc, and Faruk Alisic, and "Addendum to the Prosecution Motion for the Admission of Written Evidence from 3 Deceased Witnesses Pursuant to Rule 92 bis and Confidential Annexe", filed on 19 February 2004,

NOTING the "Amici Curiae Reply to Prosecution Motion for the Admission of Written Evidence from 3 Deceased Witnesses Pursuant to Rule 92 bis Dated 6 February 2004", filed 10 February 2004 ("Response"), opposing in part the Motion,

NOTING that the three witnesses are deceased,

Witness B-1539

NOTING that the Prosecution submits the following in the Motion:

    1. the transcript and related exhibits of B-1539 should be admitted into evidence because they (a) do not go to the acts and conduct of the Accused and (b) are not so pivotal to the Prosecution case or so proximate to the Accused that the Trial Chamber should consider exercising its discretion to exclude them; and

    2. the witnessís proposed evidence should be admitted without cross-examination because (a) requiring the witness to appear for cross-examination would, in effect, exclude his proposed evidence due to his inability to appear for cross-examination and (b) the Trial Chamber has held that other Rule 92bis(D) witnesses were not required to attend for cross-examination whose evidence pertained to the KP-DOM detention facility;1 but

    3. it is conceded that the fact that the Trial Chamber has already admitted a substantial amount of evidence regarding KP-DOM could be a basis upon which to deny admission of any further evidence thereof,

NOTING that the Amici Curiae in their Response seem not to oppose admission of the proposed evidence of B-1539 and simply observe that it (1) concerns conditions at KP-DOM in Foca and (2) is cumulative,

NOTING that Rule 92bis(D) and (E) of the Rules provides that the Trial Chamber (1) may admit a transcript of evidence given by a witness in proceedings before the International Tribunal that goes to proof of a matter other than the acts and conduct of the Accused and (2) shall decide whether to admit the transcript in whole or in part and whether to require the witness to appear for cross-examination,

CONSIDERING that the proposed evidence does not go to proof of the acts and conduct of the Accused and is therefore admissible under Rule 92bis(D) of the Rules,

CONSIDERING that (1) the witness was subjected to cross-examination in the prior proceeding; (2) the impact of the witnessís unavailability for cross-examination goes to the weight the Trial Chamber ultimately will attribute to the proposed evidence; and (3) it is appropriate to admit the proposed evidence of the witness without cross-examination pursuant to Rule 92bis(E) of the Rules,

Witness Ludvik Kranjc

NOTING that the Prosecution submits the following in the Motion:

    1. the transcript and related exhibits of Witness Kranjc should be admitted into evidence because they (a) do not go to the acts and conduct of the Accused and (b) are not so pivotal to the Prosecution case or so proximate to the Accused that the Trial Chamber should consider exercising its discretion to exclude them; and
    2. it is conceded that, if the witness were still alive, it would be appropriate for him to appear for cross-examination; but
    3. the witnessís proposed evidence should be admitted without cross-examination because (a) the only absolute bar to the admission of evidence pursuant to Rule 92bis of the Rules is evidence that pertains to the acts and conduct of the Accused; (b) the Trial Chamber has discretion to admit all other evidence without requiring the witness to attend for cross-examination; and (c) the Trial Chamber may, in its discretion, admit the witnessís proposed evidence without cross-examination and then decide what weight to give to the evidence therein,

NOTING that the Amici Curiae in their Response submit that it is reasonably open to the Accused to oppose admission on the following grounds:

  1. the evidence concerns the links of the JNA to the forces of Republika Srpska;
  2. the evidence is pivotal and goes to a live issue in the trial, namely the involvement of the JNA in events relevant to the Bosnia Indictment;
  3. the witness "did not appear on the final witness lists [for the week commencing 10 February 2004] . . . and [ the Prosecutionís Motion] is an attempt to introduce evidence under Rule 92 bis which avoids live testimony and the possibility of cross-examination by the accused because the witness is dead"; and
  4. the Accused will be deprived of the opportunity to cross-examine and challenge the evidence,

NOTING Rule 92bis(D) and (E) of the Rules,

CONSIDERING that the proposed evidence does not go to proof of the acts and conduct of the Accused and is therefore admissible under Rule 92bis(D) of the Rules,

CONSIDERING that (1) the witness was subjected to cross-examination in the prior proceeding; (2) the information in the proposed evidence was adequately covered in the prior cross-examination; (3) the impact of the witnessís unavailability for cross-examination goes to the weight the Trial Chamber ultimately will attribute to the proposed evidence; and (4) it is appropriate to admit the proposed evidence of the witness without cross-examination pursuant to Rule 92bis(E) of the Rules,

Witness Faruk Alisic

NOTING that the Prosecution submits the following in the Motion:

  1. the statement and related exhibit2 of the witness should be admitted into evidence because they (a) do not relate to the acts and conduct of the Accused or (b) are not proximate to the Accused;
  2. the proposed evidence is cumulative of other live testimony regarding the presence of Arkanís men in Sanski Most in September 1995;
  3. the cumulative nature of evidence is only one factor in a non-exhaustive list of examples of the type of evidence that qualifies as admissible under Rule 92bis of the Rules;
  4. none of the factors against admitting evidence in written form set forth in Rule 92bis of the Rules is applicable; and
  5. it is conceded that, if the witness were still alive, it would be appropriate for him to appear for cross-examination; but
  6. for the same reasons as set forth for Witness Kranjc, the Trial Chamber should exercise its discretion to admit the witnessís proposed evidence without requiring him to appear for cross-examination; and
  7. (a) the statement was taken from the witness by a Prosecution Investigator; (b) each page of the statement was signed by the witness, investigator, and Registry-approved interpreter; (c) the witnessís statement begins with a declaration that the information in the statement was given voluntarily and pertains to his personal knowledge; and (d) there is a signed witness acknowledgement and an interpreterís certification,

NOTING that the Amici Curiae in their Response submit that it is reasonably open to the Accused to oppose admission on the following grounds:

  1. the evidence concerns events in Sanski Most and the involvement of Arkanís paramilitaries;

  2. the evidence is pivotal and goes to a live issue in the trial, namely the involvement of the JNA in events relevant to the Bosnia Indictment;

  3. the witness "did not appear on the final witness lists [for the week commencing 10 February 2004] and [the Prosecutionís Motion] is an attempt to introduce evidence under Rule 92 bis which avoids live testimony and the possibility of cross-examination by the accused because the witness is dead"; and

  4. the Accused will be deprived of the opportunity to cross-examine and challenge the evidence,

NOTING that Rule 92bis(C) of the Rules provides, in relevant part, that a written statement not in the form prescribed by Rule 92bis(B) of the Rules may nevertheless be admitted if made by a person who has subsequently died, provided that the Trial Chamber (1) is so satisfied on a balance of probabilities that the written statement was made by a person who has subsequently died; (2) finds from the circumstances in which the statement was made and recorded that there are satisfactory indicia of its reliability;3 and (3) is satisfied that the information in the statement is relevant,4

NOTING that Rule 92bis(C) of the Rules does not provide a separate and self-contained method of producing evidence in written form in lieu of oral testimony, but rather merely excuses the necessary absence of the declaration required by Rule 92bis(B) of the Rules for written statements to become admissible under Rule 92bis(A) of the Rules,5

NOTING that, as a result, Rule 92bis(C) of the Rules excludes proof of the acts and conduct of the Accused by a written statement of a deceased person,6

NOTING that the Trial Chamber has previously granted the admission of statements of deceased witnesses pursuant to Rule 92bis(A) and (C) of the Rules,7

NOTING that the Prosecution has submitted a death certificate for the witness,

CONSIDERING that (1) the Prosecution has demonstrated, on the balance of probabilities, that the witness died after having made his statement to the Prosecution and that Rule 92bis(C)(i) of the Rules is thus satisfied and (2) the circumstances surrounding the taking of the statement bear sufficient indicia of reliability under Rule 92bis(C)(ii) of the Rules,

CONSIDERING that the Trial Chamber is satisfied that the information in the statement is relevant and does not go to the acts and conduct of the Accused,

CONSIDERING that (1) the impact of the witnessís unavailability for cross-examination goes to the weight the Trial Chamber ultimately will attribute to the proposed evidence; and (2) it is appropriate to admit the proposed evidence of the witness without cross-examination pursuant to Rule 92bis(E) of the Rules,

PURSUANT to Rules 54 and 92bis(A), (C), (D), and (E) of the Rules,

HEREBY ORDERS as follows:

  1. The transcript and related exhibits of Witness B-1539 shall be admitted into evidence [Judge Robinson dissenting] .

  2. The transcript and related exhibits of Witness Ludvik Kranjc shall be admitted into evidence [Judge Robinson dissenting] .

  3. The statement and related exhibit of Witness Faruk Alisic shall be admitted into evidence [Judge Robinson dissenting] .

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

___________
Judge Robinson
Presiding

Dated this fourteenth day of June 2004
At The Hague
The Netherlands

[Seal of the Tribunal]


1. See "Decision on Prosecution Motion for the Admission of Transcripts in Lieu of Viva Voce Testimony Pursuant to 92bis(D) Ė Foca Transcripts", issued 30 June 2003; but see "Dissenting Opinion of Judge Patrick Robinson", issued 30 June 2003.
2. Tabs 1 and 2 of the materials were furnished to the Trial Chamber, Accused, and Amici Curiae, but not filed.
3. See also Prosecutor v. Stanislav Galic, Case No. IT-98-29-AR73.2, "Decision on Interlocutory Appeal Concerning Rule 92bis(C)", 07 June 2002, at para. 33.
4. See ibid at para. 35.
5. See ibid at para. 24.
6. See ibid at para. 25.
7. "Decision on Prosecution Motion for Admission of Written Statements of Deceased Witnesses Ivan Rastija, Bosko Brkic, and Stana