IN THE TRIAL CHAMBER
Before:
Judge Almiro Rodrigues, Presiding
Judge Fouad Riad
Judge Patricia Wald
Registrar:
Mr Hans Holthuis
Decision of:
17 April 2001
THE PROSECUTOR
v.
MIROSLAV KVOCKA
MILOJICA KOS
MLADO RADIC
ZORAN ZIGIC
DRAGOLJUB PRCAC
_____________________________________________________________________
DECISION ON DEFENCE MOTION TO INTRODUCE EXHIBIT EVIDENCE
_____________________________________________________________________
The Office of the Prosecutor:
Ms Susan Somers
Defence Counsel:
Mr Krstan Simic for Miroslav Kvocka
Mr Zarko Nikolic for Milojica Kos
Mr Toma Fila for Mladjo Radic
Mr Slobodan Stojanovic for Zoran Zigic
Mr Jovan Simic for Dragoljub Prcac
TRIAL CHAMBER I ("the 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 Tribunal");
BEING SEISED of the "Defence motion to introduce exhibit evidence", filed by the Defence of the accused Miroslav Kvocka on 26 January 2001 ("the Motion"), requesting the admission into evidence of the documents attached thereto;
NOTING the oral discussion on the Motion during the Status Conference of 19 February 2001;
NOTING the "Prosecution’s Response to accused Kvocka’s «The Defence Motion to introduce exhibit evidence»" ("the Prosecution’s Response"), filed on 20 February 2001, in which the Prosecution put forward their objections to the admission or "re-admission" of most of the documents attached to the Motion, with the exception of four, to the admission of which they do not object;
FURTHER NOTING the "Order Granting request for admission of documentary evidence" issued by Trial Chamber III of the Tribunal on 17 March 1999, by virtue of which the following documents included in the Motion were admitted into evidence as Prosecution exhibits: 2/2.7, 2/2.11, 2/3.18, 2/3.70, 2/4.10, 2/4.16, 2/4.22, 2/4.25, 2/4.26, 2/6.1, 2/7.8;
NOTING the "Decision on the «Motion for Confirmation and Clarification of Status of Prosecution Exhibits»" issued by this Trial Chamber on 14 December 2000, confirming the prior admission into evidence of the above-mentioned documents;
NOTING that some of these documents were also assigned Defence exhibit numbers during the course of the trial, which may cause confusion when reference is made thereto and considering it necessary for the Chamber and the Parties to be aware of such overlaps;
NOTING that exhibit D40/1, attached to the Motion, had orally been admitted into evidence on 23 January 2001 as a Defence exhibit;
CONSIDERING that according to Rule 89(C) of the Rules of Procedure and Evidence of the Tribunal ("the Rules") "A Chamber may admit any relevant evidence which it deems to have probative value"; that relevance is established with respect not only to the facts of the case or the acts alleged in the indictment, but also to the defence of the accused and to the accused himself, to the testimony of witnesses and to the credibility thereof, as well as to previously admitted evidence;
CONSIDERING that the right of the accused to defend himself envisaged by Article 21(4)(d) of the Statute of the Tribunal ("the Statute") encompasses his right not only to respond to the charges he is facing but also to evoke circumstances that may constitute mitigation of a possible sentence, diminish his responsibility for the alleged acts or even relieve him from responsibility; that in order for this right to be effective the accused must have the opportunity to introduce evidence supporting his defence;
CONSIDERING that, according to article 7(4) of the Statute, "the fact that an accused person acted pursuant to an order of a Government or of a superior may be considered in mitigation of punishment if the International Tribunal determines that justice so requires";
CONSIDERING that documents issued by the national military judicial organs of Republika Srpska concerning offences related to failure to comply with government or military orders during the period of armed conflict in the Republic’s territory may be indicative of the practice followed by these organs with respect to all individuals who commit such offences and of the resulting sentences; that such documents are relevant to the case and of probative value as to what may constitute circumstances mitigating a possible sentence, according to article 7(4) of the Statute;
CONSIDERING that the judgements rendered by the Military Court of Banja Luka for the offences of evading military service, failing to respond to a draft order, wilful abandonment and desertion of armed forces, attached to the Motion and bearing exhibit number D51/1, constitute such documents and are therefore relevant and of probative value;
CONSIDERING that the request for an investigation for the offence of failure to carry out a material obligation addressed by the Military Prosecutor’s Office in Banja Luka to the Investigating Judge of the Military Court and the two consequent Military Court decisions, respectively ordering and suspending the requested investigation, also attached to the Motion and bearing exhibit number D41/1, constitute such documents too and are therefore relevant and of probative value;
FURTHER CONSIDERING that the above-mentioned right of the accused to defend himself "in person or through legal assistance of his own choosing" as envisaged in article 21(4)(d) extends to the right and obligation of his counsel to seek and provide the Tribunal with any evidence contributing to the defence of the accused, including communications he or she received from competent authorities; that objections put forward by the Prosecution, according to which documents that have been prepared by the Defence for the purposes of this litigation should not be admitted into evidence, lack legal basis insofar as they deny the above-mentioned right of the accused to defend himself;
CONSIDERING that the letter addressed to Defence Counsel Mr. Krstan Simic by the Ministry of Justice of Republika Srpska, attached to the Motion and bearing exhibit number D53/1, is relevant to the case and of probative value as to the alleged facts and the role of the accused therein insofar as it states that the accused Kvocka was never appointed to the position of warden in any penal and correctional facility or remand prison and also refers to the existence of an ad hoc investigation centre in Omarska;
CONSIDERING that contradictions, if any, between the contents of this letter and the Chamber’s "Decision on judicial notice" of 8 June 2000 or other admitted exhibits as submitted in the Prosecution’s Response will be addressed by the Chamber in weighing this document after admission; that the principle of equality of arms so requires, as weighing was also postponed to a later stage for the Prosecution’s exhibits, by virtue of the "Order Granting request for admission of documentary evidence" issued by Trial Chamber III on 17 March 1999;
CONSIDERING that information related to witness testimony and credibility should in principle be considered as relevant and of probative value and admitted accordingly;
CONSIDERING that the fax addressed to the law office of Defence Counsel Krstan Simic by the Prijedor Public Security Centre, attached to the Motion and bearing exhibit number D49/1, is also relevant and of probative value as to witness testimony and credibility insofar as it contains information on prior convictions of witness Emir Beganovic, about which the witness was asked during the course of the trial;
CONSIDERING that the documents concerning the hospitalisation and medical status of Miroslav Nisic and Emir Zjakic, attached to the Motion and bearing exhibit numbers D48/1 and D52/1 respectively, are relevant and of probative value as to the testimonies of witnesses Branko Rosic and Milenko Rosic, who testified before the Chamber on 6 February 2001;
CONSIDERING that the document entitled "Report on the implementation of the conclusions of the Prijedor Municipal Crisis Staff" issued by the Municipal Assembly Administrative Services and dated 13 July 1992, attached to the Motion and bearing exhibit number D50/1, is relevant to the temporal and territorial circumstances of the case as well as to previously admitted evidence such as Crisis Staff decisions and orders and of probative value in that respect;
CONSIDERING that the document entitled "Certificate for the temporary confiscation of items", signed by the accused M. Kvocka, by Z. Mejakic and R. Bunic, also attached to the Motion and bearing exhibit number D45/1, is relevant to the testimony of the accused Kvocka of 15 February 2001 and of probative value as to persons and incidents related to the case;
NOTING that during the oral discussions of 15 February 2001 it was established that an error has occurred in the translation of exhibit D45/1, the date of which should read 13 May 1992 instead of 13 March 1992;
NOTING that attached to the Motion is a revised translation of Prosecution exhibit 2/3.70, already admitted into evidence and that the Prosecution in their Response stated that they do not object to the admission of the revised translation of the document;
CONSIDERING that it is in the interests of justice that the translation which appears to be more accurate be retained;
NOTING that attached to the Motion are two versions of already admitted Prosecution exhibit 2/4.10 ("Report on the work of the Prijedor Public Security Station during the last nine months of 1992"), one of them being identical to the admitted Prosecution exhibit and the other being different, and wishing to clarify the reasons for this second filing;
PURSUANT to Articles 7(4), 21(2) and 21(4)(d) of the Statute and to Rule 89(C) of the Rules;
GRANTS the Motion with respect to exhibits D41/1, D45/1, D48/1, D49/1, D50/1, D51/1, D52/1, D53/1, and admits the above-mentioned documents into evidence;
REQUESTS the Registry to make the appropriate corrections in the translation of exhibit D45/1;
GRANTS the Motion with respect to the revised translation of Prosecution’s exhibit 2/3.70 and requests the Registry to assign a new exhibit number to this document for future reference;
REQUESTS the Defence to state, within 7 days of the publication of this decision, whether they maintain their application to admit a different version of Prosecution exhibit 2/4.10 and the reasons therefor, failing which the Chamber will consider the application withdrawn;
STATES that the rest of the documents attached to the Motion are not admitted, as they have already been admitted by previous Trial Chamber decisions;
REQUESTS the Registry to establish a comparative table for all admitted exhibits so far, indicating all numbers that correspond to the same documents and to communicate this table to the Chamber and the Parties within 2 weeks of the publication of this decision;
STATES that the weight to be attached to the documents hereby admitted will be the object of evaluation during the deliberations of the Chamber.
Done in English.
___________________
Almiro Rodrigues
Presiding Judge
Done this seventeenth day of April 2001
At The Hague,
The Netherlands.
[Seal of the Tribunal]