Case No. IT-95-13/1-T

Before:

Judge Kevin Parker, Presiding

Registrar:

Mr Hans Holthuis

Decision:

9 November 2006

DECISION ON ORAL MOTIONS FOR ADMISSION OF EVIDENCE Dated this 15th day of November 2006, At The Hague, The Netherlands.

The Office of the Prosecutor:

Mr Marks Moore    

Mr Philip Weiner

Counsel for the Accused:

Mr Miroslav Vasic and Mr Vladimir Domazet for Mile Mrksic

Mr Borivoje Borovic and Ms Mira Tapuskovic for Miroslav Radic

Mr Novak Lukic and Mr Momcilo Bulatovic for Veselin Sljivancanin

This decision of Trial Chamber II is in respect of two oral motions for admission of evidence. The first motion was moved orally by counsel for Veselin Sljivancanin ("Sljivancanin Defence") in court sessions on 16 June 2006, 14 September 2006, 9 October 2006, and 8 November 2006. The second motion was moved orally by the Office of the Prosecutor ("Prosecution") in court session on 2 October 2006.

1. Background

The first motion concerns the admission into evidence of a video recording presently known as MFI 576. The Sljivancanin Defence sought admission of a video recording on three occasions. The Prosecution objected to the admission into evidence of this video recording on the first two occasions as being of no demonstrated relevance in the case and as being unverified by other evidence. The Chamber did not admit the document into evidence but had it marked for identification.

The second motion concerns the admission into evidence of Borisa Gluscevic’s witness summaries prepared by counsel for Mile Mrksic ("Mrksic Defence") and submitted pursuant to Rule 65ter of the Rules of Procedure and Evidence ("Rules"). The motion was raised orally by the Prosecution in court on 2 October 2006 in cross-examination of Borisa Gluscevic, a witness called by Mile Mrksic. The Prosecution had referred to the summaries extensively during its cross-examination and it was submitted by the Prosecution that the summaries would assist in the evaluation of the credibility of that witness. The Chamber reserved its decision.

2. Law

Pursuant to Rule 89(C) of the Rules a Chamber may admit any relevant evidence which it deems to have probative value. The Appeals Chamber has held that the reliability of the statement is relevant to its admissibility and not only to its weight and that "a piece of evidence may be so lacking in terms of indicia of reliability that it is not ‘probative’ and is therefore not admissible." Relevant out of court statements are generally admissible under Rule 89(C) provided that a Chamber considers them to be probative. However, as held by the Appeals Chamber, since such evidence is admitted to prove the truth of its contents, a Chamber must be satisfied that it is reliable for that purpose, in the sense of being voluntary, truthful and trustworthy, as appropriate; and for this purpose may consider both the content of the hearsay statement and the circumstances under which the evidence arose.

3. Discussion

In the present case, the Sljivancanin Defence seeks to have admitted into evidence a video recording of an interview with Goran Hadzic, apparently in the capacity of "prime minister of the government" of SAO Krajina, which interview is said to have been broadcast on TV Belgrade news on 20 November 1991. In this interview Goran Hadzic is alleged to have said that at a meeting held earlier that day, the government of SAO had decided that no captured "Ustasha" would leave the area and that they would be tried in the territory of SAO. The Sljivancanin Defence first sought to have this document admitted on 16 June 2006 in cross-examination of Prosecution witness P002. P002 was present in Vukovar at the time of the events charged in the Indictment. He had not seen this interview before it was shown to him in court. He did not attend any meeting of the "government" of SAO Krajina alleged to have taken place on 20 November 1991. He was not aware that there was such a meeting. He was not present when the interview was recorded and he did not know who the journalist who took the interview was. There is nothing in the evidence of P002 which may give the Chamber a basis upon which it can assess the authenticity of this video recording and the reliability of the statement made during this interview.

A further attempt to have MFI 576 admitted was made by the Sljivancanin Defence on 14 September 2006 during cross-examination of Dusan Jak{i}. Dusan Jak{i}, a witness for the defence of Mile Mrksic, attended the meeting of the SAO government. However, it is his evidence that he was not present at that meeting all the time. He did not remember all the participants at the meeting, he did not know what the subject of the meeting was and could not remember who chaired the meeting. He believed that there was some tension concerning the prisoners of war, but he could not remember anything more specific. He was not present when Goran Hadzic is alleged to have given the interview. He did not see this interview until it was shown to him in the courtroom. Therefore, the evidence of Dusan Jak{i} is of little assistance to the Chamber in assessing the authenticity of Hadzic’s statement made during this interview and in determining the reliability and the probative value of the proposed MFI 576.

The third occasion when the Sljivancanin Defence sought to have MFI 576 admitted was in the course of examination of Miodrag Pani}, a witness called by the Sljivancanin Defence on 8 November 2006. It was the evidence of Pani} that he attended a meeting of the cabinet of the "government" on 20 November 1991 and was present through part of the deliberations. He took notes of some of the main conclusions relevant to the issues in this case and spoke at the meeting. He identified a number of the major participants in the meeting, including Goran Hadzic, who he described as the prime minister of SAO. Miodrag Pani} further identified Goran Hadzic as the person being interviewed at MFI 576. It was his evidence that what was said by Hadzic at this interview reflected the conclusions reached at that meeting. In these circumstances, in the view of the Chamber, there are sufficient indications of relevance and of indicia as to the authenticity of this interview to justify admission of this video recording into evidence. For this reason the motion of [ljivan~nain Defence of 8 November 2006 will be granted.

The Chamber turns next to the Prosecution’s oral motion of 2 October 2006 to have the Rule 65ter witness summaries of Borisa Gluscevic, a witness called by Mile Mrksic, admitted into evidence. It was submitted by the Prosecution that Borisa Gluscevic testified to a number of events that were not included in the Rule 65ter witness summaries provided by the Mrksic Defence, or that Borisa Gluscevic provided in court an account different from what was said in the Rule 65ter summaries submitted by the Mrksic Defence that his evidence would be. In cross-examination by the Prosecution these summaries were put to Borisa Gluscevic and his account as to these discrepancies was sought. At the end of cross-examination the Prosecution sought to have the summaries admitted as exhibits going to this witness’s credibility.

As this Chamber has already held, while the admission of statements solely for the purposes of cross-examination as to credibility need not involve the admission into evidence as an exhibit, the Rules on admissibility of evidence provide a useful guide in deciding on admissibility of statements for the purposes of cross-examination. In the present case the Prosecution seeks to have admitted into evidence witness summaries prepared by the Mrksic Defence with respect to a witness whom this Defence had called. These summaries were not created by the witness. These documents are documents prepared by one of the parties to these proceedings to give notice to other parties of the anticipated evidence of a witness. The probative value of such summaries can hardly meet the admissibility criteria set out in Rule 89(C) and the jurisprudence of this Tribunal. The material parts of the summaries were read to the witness in court and the witness’s position with respect to differences between the summary and the witness’s evidence was elicited through cross-examination. In these circumstances, the Chamber is of the view that the admission of these summaries into evidence as exhibits will be of no further assistance.

4. Disposition