IN THE TRIAL CHAMBER

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

Registrar:
Mr. Hans Holthuis

Order of:
17 January 2003

PROSECUTOR
v.
SLOBODAN MILOSEVIC

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ORDER ON PROSECUTION MOTION FOR ADMISSION OF THE TRANSCRIPT OF TESTIMONY OF DR. VESNA BOSANAC PURSUANT TO RULE 92 BIS (D)

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The Office of the Prosecutor

Ms. Carla Del Ponte
Mr. Geoffrey Nice
Mr. Dermot Groome

The Accused

Slobodan Milosevic

Mr. Steven Kay, QC
Mr. Branislav Tapuskovic
Prof. Timothy L.H. 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 ("International Tribunal"),

BEING SEISED OF a "Prosecution Motion for Admission of Transcript of Testimony Pursuant to Rule 92 bis (D) During the Croatia Phase of the Trial, and Request to Shorten Time", filed on 15 January 2003 ("Motion") in which the Prosecution seeks the admission of a transcript of the testimony of Vesna Bosanac, a doctor at Vukovar Hospital who testified in the Dokmanovic case on 2 February 1998, along with one exhibit admitted during that testimony,

NOTING the Prosecution’s arguments that:

1. the evidence which it seeks to admit is crime base evidence;
2. whilst that evidence goes to the acts and conduct of others for which the accused is charged in the indictment with responsibility, it does not go to facts and matters probative of his individual responsibility under Articles 7(1) or 7(3) of the Statute, or as a co-perpetrator in a joint criminal enterprise;
3. the witness will be available to be cross-examined on the content of her testimony in Dokmanovic;
4. Consistent with a decision in the Martinovic case, exhibits accompanying the testimony should be admitted with the transcript; and
5. the time that would be saved without prejudicing the accused’s rights constitute "good cause" under Rule 127 of the Rules of Procedure and Evidence ("Rules"), and therefore the application to shorten the time required for service of such an application under Rule 92 bis (E) of the Rules is appropriate,

NOTING the "Amici Curiae Response to ‘Prosecution Motion for Admission of Transcript of Testimony Pursuant to Rule 92 bis (D) During the Croatia Phase of the Trial, and Request to Shorten Time’", filed on 16 January 2003 ("Response"), in which the amici argue that the Prosecution has not shown good cause for a shortening of the time under Rule 127, and that granting the Motion would violate the accused’s Statutory right to adequate time in which to prepare his defence,

NOTING that the testimony contained in the transcript deals with matters properly characterised as "crime base" matters, not going to the acts and conduct of the accused, and including the following subjects:

• The shelling of Vukovar Hospital by the JNA in violation of the laws of war
• Negotiations to achieve a cease-fire
• Agreement between the JNA, Croatia and the ECMM to evacuate the hospital (the agreement is exhibit 9 and annexed to this Motion). The plans to evacuate and the JNA deception goes on for some time
• Mrksic said to be responsible for Vukovar operation
• Later Sljivancanin said to have taken over
• Civilians are removed from the hospital by Sljivancanin
• The JNA took over the hospital 20 November 1991
• Witness taken by JNA and imprisoned in Mitrovica on 21 November, is interrogated and exchanged on 13 December 1991
• Witness’s father-in-law and husband’s nephew were taken from the hospital and later identified at the Ovcara grave site
• Members of the "White Eagles" and "Chetniks" were present and the witness believes they were under the control and protection of the JNA,

CONSIDERING therefore that the testimony is capable of admission pursuant to Rule 92 bis (D) of the Rules and that the accused will be given the opportunity of cross-examining the witness on the contents of the transcript,

NOTING, with respect to the application to shorten time, the relevant provisions of Rule 92 bis, which read as follows:

(E) Subject to Rule 127 or any order to the contrary, a party seeking to adduce a written statement or transcript shall give fourteen days notice to the opposing party, who may within seven days object. The Trial Chamber shall decide, after hearing the parties, whether to admit the statement or transcript in whole or in part and whether to require the witness to appear for cross-examination.

NOTING the relevant provisions of Rule 127, which read as follows:

(A) Save as provided by paragraph (C), a Trial Chamber may, on good cause being shown by motion,

(i) enlarge or reduce any time prescribed by or under these Rules;

CONSIDERING

(a) that the right of the accused to cross-examine the witness is not prejudiced;
(b) the shortage of time and disruption to the order of witnesses caused by the accused’s illness;
(c) the time constraints which have been imposed upon the Prosecution concerning the expeditious conclusion of its case;
(d) that by the time the witness is scheduled to be called, the accused will have had the Motion for five days; and
(e) that the transcript was disclosed to the accused on 31 May 2002 and he was therefore put on notice of the prospect that the testimony of this witness would be led pursuant to Rule 92 bis (D),
(f) and that, for these reasons, the Prosecution has shown good cause under Rule 127,

PURSUANT TO Rules 92 bis and 127 of the Rules

HEREBY GRANTS THE MOTION to admit the transcript and the exhibit into evidence and ORDERS that the accused will have the opportunity to cross-examine the witness on the contents of her testimony contained in the transcript when she is called to give evidence.

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

__________________
Richard May
Presiding

Dated this seventeenth day of January 2003
At The Hague
The Netherlands

[Seal of the Tribunal]