Case No. IT-02-54-T

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

Registrar:
Mr. Hans Holthuis

Decision:
7 February 2005

Office of the Prosecutor:

Ms. Carla Del Ponte
Mr. Geoffrey Nice

The Accused:

Mr. Slobodan Milosevic

Court Assigned Counsel:

Mr. Steven Kay, QC
Ms. Gillian Higgins

Amicus Curiae:

Prof. 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 (“International Tribunal”),

BEING SEISED of a “Prosecution Motion Regarding Exhibits and Other Practicalities During the Defence Case”, filed 6 January 2005 (“Motion”), requesting the following :

(1) that the Prosecution be permitted to file a motion that exceeds the page limit;

(2) that the Trial Chamber reconsider, with respect to Witness Mihajlovic,

a. its decision regarding exhibit D266, tabs 1, 5, 7, 8-13, and 16-17; and

b. its decision not to admit a chapter in The Road to War in Serbia, entitled “Who Exploited Whom?”;¹

(3) that the Trial Chamber reconsider, with respect to Witness Popov,

a. its decision regarding exhibit D264, tabs 1 and 2;² and

b. its decision not to admit exhibit D264, tabs 4 and 14;

(4) that the Trial Chamber require the Accused to provide more detailed Rule 65ter witness summaries for the witnesses on his list of 50 witnesses and any such subsequent lists; and

(5) other forms of relief dealt with below,

NOTING the “Reply by Assigned Counsel to ‘Prosecution Motion Regarding Exhibits and Other Practicalities During the Defence Case’ Dated 6 January 2005”, filed 20 January 2005 (“Response”), requesting the following:

(1) that Assigned Counsel be permitted to file a response that exceeds the page limit ;

(2) that the Trial Chamber deny, with respect to Witness Mihajlovic,

a. the Prosecution’s request for reconsideration regarding exhibit D266, tabs 1, 5, 7, 8-13, and 16-17; and

b. the Prosecution’s request for reconsideration regarding denial of admission to a chapter in The Road to War in Serbia, entitled “Who Exploited Whom?”;

(3) that the Trial Chamber, with respect to Witness Popov,

a. deny the Prosecution’s request for reconsideration regarding exhibit D264, tab 1 ; and

b. grant the Prosecution’s request for reconsideration regarding denial of admission of exhibit D264, tabs 4 and 14; and

(4) that the Trial Chamber deny the Prosecution’s request that the Accused be required to provide more detailed Rule 65ter witness summaries for the witnesses on his list of 50 witnesses and any such subsequent lists,

NOTING the general approach of the Trial Chamber to the admission of documents through a witness, as set out during the hearing on 9 December 2004, as follows: (1) a Chamber may admit any relevant evidence that it deems to have probative value and request verification of the authenticity of evidence obtained out of court; (2) documents that have not been translated, but that have been dealt with during the testimony of a witness, may either be marked for identification pending translation and further order of the Trial Chamber or denied admission into evidence; and (3 ) documents, regardless of translation, that have not been dealt with during the testimony of the witness through whom they are sought to be admitted shall, in general, be denied admission into evidence,³

NOTING the Trial Chamber’s “Order to Accused to Produce a List of His Next 50 Witnesses and Finalise Compliance with Rule 65ter Obligations Regarding Exhibits”, issued 7 December 2004, which ordered, inter alia, that the Accused shall (1) ensure that documents requiring translation are submitted to the translation service of the International Tribunal sufficiently in advance of the proposed use of those documents in-court and, (2) where appropriate, identify the parts of documents that require translation so as to enable that translation to occur in a reasonable time,

NOTING the Trial Chamber’s oral decision during the hearing on 17 December 2004⁴ by which it

(1) admitted into evidence through Witness Mihajlovic exhibit D266, tabs 1, 4, 5, 6, 7, 8, 9, 14, and 15;

(2) marked for identification exhibit D266, tabs 2, 3, 10, 11, 12, 13, 16, 17, and 18 ; and

(3) denied admission of exhibit D266, tabs 19 and 20,

NOTING that the Trial Chamber admitted into evidence exhibits 811-813⁵ and D265⁶ in connection with the testimony of Witness Mihajlovic,

NOTING that the Trial Chamber denied admission of a chapter in The Road to War in Serbia, entitled “Who Exploited Whom?”, which was tendered as evidence by the Prosecution,⁷

NOTING the submissions of Assigned Counsel in the Response,⁸

CONSIDERING that the Prosecution has not demonstrated any basis upon which it would be appropriate for the Trial Chamber to reconsider its decisions regarding exhibit D266, tabs 1, 5, 7, 8-13, and 16-17 or the chapter in The Road to War in Serbia, entitled “Who Exploited Whom?”,⁹

NOTING the Trial Chamber’s oral decision during the hearing on 16 December 2004¹⁰ by which it

(1) admitted into evidence through Witness Popov exhibit D264, tabs 3, 6, 13, 15, and 16;

(2) marked for identification exhibit D264, tabs 1, 2, 5.1, 5.3, 5.5, 5.7, and 5.19; and

(3) denied admission of the remainder of the tabs in exhibit D264,

NOTING that the Trial Chamber admitted into evidence exhibits 803-810, D263, and D267-D269 in connection with the testimony of Witness Popov,

NOTING the submissions of Assigned Counsel in the Response,¹¹

CONSIDERING that exhibit D264, tab 1 was used during the direct examination of Witness Popov, and the Prosecution has not demonstrated any basis upon which it would be appropriate for the Trial Chamber to reconsider its decision regarding this exhibit,

CONSIDERING that, contrary to the submissions of the Prosecution in its Motion at page 9, note 8, exhibit D264, tab 2 is not the same document as exhibit 805,¹² and the Prosecution has not demonstrated any basis upon which it would be appropriate for the Trial Chamber to reconsider its decision regarding this exhibit,

CONSIDERING that both the Prosecution and Assigned Counsel are agreed that exhibit D264, tabs 4 and 14 should be admitted into evidence,

NOTING the Trial Chamber’s “Omnibus Order on Matters Dealt with at the Pre -Defence Conference”, issued 18 June 2004, which held, inter alia, that the Trial Chamber “does not require the Accused to produce more detailed witness summaries than those provided in his Rule 65 ter filing, but notes the inherent power of the Trial Chamber to make a further order to regulate procedure at any stage”,

NOTING the submissions of Assigned Counsel in the Response,¹³

CONSIDERING that the Prosecution has not demonstrated an adequate basis for the Trial Chamber to require the Accused, at this time, to provide more detailed Rule 65ter witness summaries for the witnesses on his list of 50 witnesses and any such subsequent lists,¹⁴

CONSIDERING that, as was stated in its “Omnibus Order on Matters Dealt with at the Pre-Defence Conference”, issued 18 June 2004, and in-court on several occasions, the Trial Chamber continues to keep this matter under review and will issue further Orders to regulate the proceedings if and/or when it becomes necessary,¹⁵

NOTING the relief requested on pages 24-25 of the Motion in paragraphs 2, 3, 4, 5, and 11, namely the following:

(1) “that the Accused be held to the same standards with regard to the production and use of exhibits as that of any other advocate appearing before the Tribunal”;

(2) “that in the most extreme examples of the Accused’s failure to organise translations prior to witness’ testimony, for example failing to even request a translation, the Trial Chamber refuse to admit such exhibits”;

(3) that “the Accused be required to make appropriate arguments as to foundation and relevance prior to use of an exhibit”;

(4) that “the Accused be required periodically to make arguments, including perhaps oral arguments, as to the admission of documents originally ‘marked for identification’ where translations were not originally available”; and

(4) “that, the parties be allowed to suggest parts of SDC, Council for Harmonisation and similar document collections that will be dealt with during examination of defence witnesses for pre-reading”,

NOTING the submissions of Assigned Counsel in the Response,¹⁶

CONSIDERING that (1) the above requests for relief fail to make a request upon which relief can be granted, are too general or speculative to constitute a proper request for relief, suggest a course of action for the Trial Chamber to take that is unnecessary, are dealt with in other Orders of the Trial Chamber, or do not raise specific issues upon which it is appropriate for the Trial Chamber to make determinations and (2) it is open to the Prosecution to raise specific issues if and/or when they arise during the course of the proceedings,

Proprio motu,

CONSIDERING that generally it is the position of the Trial Chamber that entire books (and other similarly lengthy documents) should not be admitted into evidence and that instead only the relevant portions should be tendered as evidence by the party seeking to rely up the document,

PURSUANT to Rules 54, 65ter, and 89 of the Rules of Procedure and Evidence of the International Tribunal,

HEREBY DECIDES and ORDERS as follows:

(1) The Prosecution and Assigned Counsel are GRANTED leave to exceed the page limit.

(2) With respect to the Prosecution’s requests for the Trial Chamber to reconsider its decision regarding exhibit D266, tabs 1, 5, 7, 8-13, and 16-17 and its decision not to admit a chapter in The Road to War in Serbia, entitled “Who Exploited Whom?”, the Motion is DENIED.

(3) With respect to the Prosecution’s request for the Trial Chamber to reconsider its decision regarding exhibit D264, tabs 1 and 2, the Motion is DENIED.

(4) With respect to the Prosecution’s request for the Trial Chamber to reconsider its decision not to admit exhibit D264, tabs 4 and 14, the Motion is GRANTED.

(5) With respect to the request for the Trial Chamber to require the Accused, at this time, to provide more detailed Rule 65ter witness summaries for the witnesses on his list of 50 witnesses and any such subsequent lists, the Motion is DENIED.

(6) With respect to the relief requested on pages 24-25 of the Motion in paragraphs 2, 3, 4, 5, and 11, the Motion is DISMISSED.

(7) The parties shall take sufficient steps when tendering as evidence books (and other similarly lengthy documents) so that only the relevant portions of the document are tendered and translations provided, where appropriate.

AND for the avoidance of doubt HEREBY CONFIRMS its prior Orders and ORDERS FURTHER as follows:

(8) With respect to the Mihajlovic exhibits,

a. exhibits 811, 812, 813, D265, and D266, tabs 1, 4, 5, 6, 7, 8, 9, 14, and 15 are admitted;

b. exhibit D266, tabs 2, 3, 10, 11, 12, 13, 16, 17, and 18 are marked for identification pending translation and further order; and

c. exhibit D266, tabs 19 and 20 and the chapter in The Road to War in Serbia, entitled “Who Exploited Whom?” are denied admission.

(9) With respect to the Popov exhibits,

a. exhibits 803-810, D263, D264, tabs 3, 4, 6, 13, 14, 15, and 16, and D267-D269 are admitted;

b. exhibit D264, tabs 1, 2, 5.1, 5.3, 5.5, 5.7, and 5.19 are marked for identification ; and

c. the remainder of the tabs in exhibit D264 are denied admission.

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

______________
Judge Robinson
Presiding

Dated this seventh day of February 2005
At The Hague
The Netherlands

[Seal of the Tribunal]