IN TRIAL CHAMBER I, SECTION A
Judge Liu Daqun, Presiding
Judge Volodymyr Vassylenko
Judge Carmen Maria Argibay
Mr. Hans Holthuis
12 June 2003
FIRST DECISION ON PROSECTION’S MOTION FOR ADMISSION OF WITNESS
STATEMENTS AND PRIOR TESTIMONY PURSUANT TO RULE 92 bis
The Office of the Prosecutor:
Mr. Peter McCloskey
Counsel for the Accused:
Mr. Michael Karnavas and Ms. Suzana Tomanovic for Vidoje Blagojevic
Mr. Miodrag Stojanovic and Ms. Cynthia Sinatra for Dragan Jokic
TRIAL CHAMBER I, SECTION A, (“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
(“Tribunal”) is seised of the “Prosecution’s Motion for Admission of Witness
Statements and Prior Testimony Pursuant to Rule 92 bis and Incorporated
Motion in limine to Admit Related Exhibits,” dated 14 February 2003 and
filed confidentially on 18 February 2003 (“First Motion”). Additionally, the
Trial Chamber is seised of the “Prosecution’s Consolidated Reply Regarding its
14 February 2003 Motion for Admission of Evidence under Rule 92 bis and
Incorporated Motion for Admission of Nine Additional Witness Statements under
Rule 92 bis,” filed confidentially in-part by the Prosecution on 22 April
2003 (“Second Motion”).1 The Trial Chamber received
responses from the two accused, namely Vidoje Blagojevic and Dragan Jokic (collectively,
“Accused”), to the Prosecution’s First Motion,2
filed in accordance with the scheduling for filings issued by the Trial Chamber;3
neither Accused filed a response or a reply to the Second Motion. While the
Trial Chamber also received responses from former co-accused Momir Nikolic and
Dragan Obrenovic,4 as Mr. Nikolic and Mr. Obrenovic
have been separated from the proceedings in this case,5
the Trial Chamber has not considered their responses in making its decision
on the admission of these witnesses testimony pursuant to Rule 92 bis of
the Rules of Evidence and Procedure of the Tribunal (“Rules”).
THE TRIAL CHAMBER, HAVING CONSIDERED the submissions and arguments
of the Parties,
HEREBY ISSUES ITS DECISION.
- Through the First Motion, the Office of the Prosecutor (“Prosecution”)
seeks to have admitted the statements of nineteen witnesses pursuant to Rule
92 bis (A) and (B) and transcripts of former testimony of thirty witnesses
pursuant to Rule 92 bis (D).6 Additionally, it seeks to have admitted the exhibits that relate to, and were tendered
into evidence during, these witnesses’ testimony. Of the nineteen witnesses
for whom the Prosecution seeks to have evidence admitted pursuant to Rule
92 bis ( A) and (B), seven of the witnesses are experts for whom the
Prosecution has also submitted the intended “statements” as reports pursuant
to Rule 94 bis of the Rules.
- In the Second Motion, the Prosecution seeks to have admitted five witness
statements pursuant to Rule 92 bis (A) and (B), of which three of the
“statements” are expert reports that the Prosecution has also submitted or
intends to submit pursuant to Rule 94 bis.7
- In its response, the Blagojevic Defence has identified as “admissible”
under Rule 92 bis five of the proposed Rule 92 bis (A) and (B)
witnesses and fifteen of the proposed Rule 92 bis (D) witnesses, apparently
without cross-examination;8 it submits that the
remaining witnesses are inadmissible under Rule 92 bis “on the basis
that they are either unreliable as such, or that it would be in the interest
of justice to have the witnesses appear for cross-examination.”9
The Blagojevic Defence has not addressed the particular circumstances of any
of the witnesses nor did it provide the criteria upon which it based its decision
to accept certain witnesses without cross-examination or its position that
certain witnesses need to be called for cross-examination.
- The Jokic Defence did not identify any witnesses as appropriate for admission
pursuant to Rule 92 bis without cross-examination; it seeks the denial
of the First Motion in full.10 Furthermore,
the Jokic Defence did not address the particular circumstances of any of the
witnesses. Rather, it based its objection to tending the witness testimony
under Rule 92 bis on a blanket objection to the admission of evidence
without the opportunity for cross-examination.
- At the Pre-Trial Conference held on 5 May 2003, the Trial Chamber addressed
questions to both parties on these two motions in relation to two categories
of witnesses, namely those witnesses referred to under the title of “Bosnian
Muslim Witnesses” and “Dutch Battalion” in the Prosecution’s Witness List
filed pursuant to Rule 65 ter.( footnote 11 ) The
parties, and particularly the Prosecution, provided specific information in
relation to the particular witnesses identified by the Trial Chamber, which
was of assistance in determining whether these witnesses were applicable under
Rule 92 bis, and indeed whether it was necessary to maintain these
witnesses on the witness list at all.12 It is
the witnesses from these two categories that are the subject of this Decision.13
II. APPLICABLE LAW
- Rule 92 bis (“Proof of Facts other than by Oral Evidence”) provides,
in relevant part:
(A) A Trial Chamber may admit, in whole or in part, the evidence of a
witness in the form of a written statement in lieu of oral testimony which
goes to proof of a matter other than the acts and conduct of the accused
as charged in the indictment.
(i) Factors in favour of admitting evidence in the form of a written
statement include but are not limited to circumstances in which the evidence
(a) is of a cumulative nature, in that other witnesses will give or
have given oral testimony of similar facts;
(b) relates to relevant historical, political or military background;
(c) consists of a general or statistical analysis of the ethnic composition
of the population in the places to which the indictment relates;
(d) concerns the impact of crimes upon victims;
(e) relates to issues of the character of the accused; or
(f) relates to factors to be taken into account in determining sentence.
(ii) Factors against admitting evidence in the form of a written statement
(a) there is an overriding public interest in the evidence in question
being presented orally;
(b) a party objecting can demonstrate that its nature and source renders
it unreliable, or that its prejudicial effect outweighs its probative
(c) there are any other factors which make it appropriate for the
witness to attend for cross-examination.
(B) A written statement under this Rule shall be admissible if it attaches
a declaration by the person making the written statement that the contents
of the statement are true and correct to the best of that person’s knowledge
and belief and
(i) the declaration is witnessed by:
(a) a person authorised to witness such a declaration in accordance
with the law and procedure of a State; or
(b) a Presiding Officer appointed by the Registrar of the Tribunal
for that purpose ; and
(ii) the person witnessing the declaration verifies in writing:
(a) that the person making the statement is the person identified
in the said statement ;
(b) that the person making the statement stated that the contents
of the written statement are, to the best of that person’s knowledge
and belief, true and correct ;
(c) that the person making the statement was informed that if the
content of the written statement is not true then he or she may be subject
to proceedings for giving false testimony; and
(d) the date and place of the declaration.
The declaration shall be attached to the written statement presented
to the Trial Chamber.
(D) A Chamber may admit a transcript of evidence given by a witness in
proceedings before the Tribunal which goes to proof of a matter other than
the acts and conduct of the accused.
(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.
1. The Scope of Rule 92 bis
- Pursuant to Rule 92 bis, a Trial Chamber may admit a written statement
or former transcript of a witness in lieu of oral testimony, where the statement
“goes to proof of a matter other than the acts and conduct of the accused”
as charged in the indictment.14 Any evidence
admitted pursuant to Rule 92 bis must satisfy the fundamental requirements
for the admissibility of evidence, as set out in sub-Rule 89 (C) and (D),
namely relevance and probative value that is not substantially outweighed
by the need to ensure a fair trial.
- The Appeals Chamber, in its decision of 7 June 2002 in the case of Prosecutor
v. Stanislav Galic, (“Galic Appeals Decision”) held that the phrase
“ acts and conduct of the accused as charged in the indictment” in Rule 92
bis should be interpreted to mean the acts and conduct of the accused
which establish his responsibility for the acts and conduct of others;
Rule 92 bis should not be read to exclude “acts and conduct
of those others who commit the crimes for which the indictment alleges that
the accused is individually responsible.”15
- In the Galic Appeals Decision, the Appeals Chamber found that Rule
92 bis (A) excludes a written statement which goes to proof
of any act or conduct of the accused which the Prosecution relies upon
(a) that the accused committed (that is, that he personally physically
perpetrated ) any of the crimes charged himself, or
(b) that he planned, instigated or ordered the crimes charged, or
(c) that he otherwise aided and abetted those who actually did commit
the crimes in their planning, preparation or execution of those crimes,
(d) that he was a superior to those who actually did commit the crimes,
(e) that he knew or had reason to know that those crimes were about
to be or had been committed by his subordinates, or
(f) that he failed to take reasonable steps to prevent such acts or
to punish those who carried out those acts.16
- In this case, in addition to direct criminal responsibility pursuant to
Article 7(1) of the Statute of the Tribunal, the Accused are charged under
a “joint criminal enterprise” theory of individual criminal responsibility,
in the Amended Joinder Indictment of 27 May 2002 (“Indictment”). Additionally,
Mr. Blagojevic is charged with command or superior responsibility pursuant
to Article 7(3) of the Statute for every count.
- In cases when a joint criminal enterprise is alleged, and the accused
is “therefore liable for the acts of others in that joint criminal enterprise,”17
Rule 92bis(A) also excludes any written statement which goes to proof
of any act or conduct of the accused upon which the prosecution relies
to establish :
(a) that he or she had participated in that joint criminal enterprise,
(b) that he or she shared with the person who actually did commit the
crimes charged the requisite intent for those crimes.18
- Relevant to both the fact that a joint criminal enterprise is alleged in
the Indictment involving both Accused, and that Mr. Blagojevic is charged
pursuant to Article 7(3) of the Statute, is the observation by the Appeals
Chamber that the question of whether a statement relates to the acts and conduct
of an alleged subordinate of the accused or of a person for whose
acts the accused is charged with responsibility is relevant to the exercise
of the Trial Chamber’s discretionary power under Rule 92 bis (E).19
Where the individual, whose acts and conduct are described in the statement
or transcript is so proximate to the accused and where the evidence is so
pivotal to the Prosecution case, the Trial Chamber may decide: (i) not to
admit the statement or transcript at all, or (ii) to require the witness to
appear for cross-examination.20 The Appeals Chamber
emphasises that Rule 92 bis was primarily intended to be used to establish
“crime-base” evidence, and not the acts and conduct of “what may be described
as the accused’s immediately proximate subordinates – that is, subordinates
of the accused of whose conduct it would be easy to infer that he knew or
had reason to know,”21 thereby providing evidence
to establish an element for liability under Article 7 (3) of the Statute.
The Trial Chamber endorses this interpretation of the primary purpose of Rule
- In relation to establishing the necessary mens rea of the
accused, the Appeals Chamber found: “The ‘conduct’ of an accused person necessarily
includes his relevant state of mind, so that a written statement which goes
to proof of any act or conduct of the accused upon which the prosecution
relies to establish that state of mind is not admissible under Rule 92bis.
In order to establish that state of mind, however, the prosecution may rely
upon the acts and conduct of others which have been proved by Rule 92bis
statements.”( footnote 22 ) Additionally, the
Appeals Chamber specified that the “conduct” of an accused person “may also
in the appropriate case include his omission to act.”23
- Additionally, as Rule 92 bis (E) provides, a Trial Chamber has the
discretion to admit a written statement or transcript without calling the
witness to appear for cross-examination. Thus, unlike the proposition put
forward in the Jokic Response,24 the right to
cross-examine witnesses is not an absolute right,25
although the decision to accept evidence without cross-examination is one
which the Trial Chamber shall arrive at only after careful consideration.
- Finally, in the Galic Appeals Decision the Appeals Chamber notes
that Rule 92 bis provides for a particular form of hearsay, namely
written statements that are prepared for the purpose of legal proceedings.26
Issues related to the reliability of such hearsay evidence must be given due
2. Analysis of Proposed 92 bis Witnesses
- Through the First Motion and the Second Motion, the Prosecution seeks to
have tendered the evidence of five witnesses from the Dutch Battalion through
former testimony in four cases, and a written statement in one case. Additionally,
the Prosecution seeks to have tendered the evidence of seventeen Bosnian Muslim
witnesses, through former testimony in fourteen cases and through a written
statement in three cases. These witnesses are testifying to events in and
around Srebrenica and Potocari in July 1995, as well as to various acts alleged
in paragraphs 43-47.8 of the Indictment. The Prosecution seeks to have the
evidence for all witnesses submitted without calling any of these witnesses
- The Trial Chamber begins its analysis of the proposed Bosnian Muslim Witnesses
and Dutch Battalion witnesses by observing that none of the proposed Rule
92 bis witnesses makes any direct mention of either of the Accused,
and therefore the evidence to be admitted through these witnesses does not
go directly to “acts and conduct of the accused as charged in the indictment”.
Additionally, none of the proposed Rule 92 bis witnesses make any indirect
reference to the acts and conduct of either Accused through other means including,
for example, reference to the acts and conduct of persons who held the positions
which either Accused are alleged to have held.
- As Rule 92 bis does not permit evidence of any act or conduct of
the accused upon which the Prosecution relies to establish either that an
accused participated in a joint criminal enterprise or that an accused shared
with the person who actually did commit the crimes charged the requisite intent
for those crimes, the Trial Chamber also examined the proposed Rule 92 bis
statements and transcripts for any reference to such evidence; the Trial
Chamber found no such evidence in relation to either Accused.
- Finally, in relation to the charges against Mr. Blagojevic under Article
7( 3) of the Statute, the Trial Chamber further observes that none of the
proposed Rule 92 bis witnesses, through their statements or former
testimony, provide evidence or information that the acts and conduct of the
subordinates of Mr. Blagojevic are so proximate to him or that the evidence
is so pivotal to the Prosecution case that the Trial Chamber needs to hear
the witnesses testimony viva voce. Indeed, the Trial Chamber has not
identified, nor has the Blagojevic Response identified for the Trial Chamber,
any references to subordinates of Mr. Blagojevic in the proposed testimony
of these witnesses that is so proximate to Mr. Blagojevic or so pivotal to
the Prosecution’s case so as to require that these witnesses be called for
cross -examination on this ground.
- One of the factors that weighs in favour of admitting evidence in the form
of a written statement pursuant to Rule 92 bis (A) and (B) is that
the evidence in question is of a cumulative nature, meaning that other witnesses
will give oral testimony of similar facts.28
The Trial Chamber notes that while Rule 92 bis permits for the admission
of cumulative evidence on matters other than the acts and conduct of the accused
through written statements, this Rule should not be interpreted by any of
the parties to these proceedings as an invitation to tender unnecessarily
cumulative or repetitive evidence. The Trial Chamber recalls that it
has the power to set the number of witnesses that either party may call, pursuant
to Rule 73 bis and Rule 73 ter of the Rules, and shall exercise
this power if necessary. Furthermore, the Trial Chamber recalls that pursuant
to Rule 89(D), it may exclude evidence if the probative value is substantially
outweighed by the need to ensure a fair trial. One criteria used to establish
whether a trial is fair is if an accused is tried without undue delay.29
The admission of unnecessarily cumulative or repetitive evidence may
affect the expeditious nature of the proceedings, and therefore will not
- While Rule 92 bis (D) does not establish the same factors for admission
of a transcript as Rule 92 bis (A) establishes for a written statement,
the Trial Chamber finds that the criteria set out for admission of a written
statements in sub-Rules 92 bis (A)(i) and (A)(ii) can also be applied
to consideration of the admission of transcripts as evidence.
- The Trial Chamber observes that in the case of nearly all witnesses related
to this Decision, there are additional viva voce witnesses who will
provide testimony of similar facts, and therefore the testimony of the proposed
Rule 92 bis witnesses can be considered to be of a cumulative nature.
- At the Pre-Trial Conference on 5 May 2003, the Trial Chamber asked the
Prosecution whether it was necessary to maintain certain witnesses on the
witness list, citing the fact that the testimony of these witnesses appeared
to be repetitive and did not provide the Trial Chamber with additional details
of great assistance to it in carrying out its fact-finding function. In relation
to three witnesses testifying about events in and around Potocari, namely
W49, W52 and W54, the Prosecution responded that there is “a nice written
record of their testimony and their cross-examination,” and that these witnesses
can assist the Trial Chamber in understanding the “very difficult and complex
situation” at Potocari during a two-day period in July 1995, particularly
on the issue of forcible transfer.31 The Prosecution
further argued that to maintain these three witnesses on the witness list
would not be an “undue burden”.
- While the Trial Chamber appreciates that the situation in Potocari may
have been very complex and that the testimony of additional witnesses may
provide additional detail for the Trial Chamber to consider when determining
the facts in this case, the Trial Chamber also observes that there are nearly
140 witnesses on the Prosecution’s witness list, many of whom will testify
about events in and around Potocari. The Trial Chamber does appreciate the
Prosecution’s efforts to use Rule 92 bis to limit the number of viva
voce witnesses whenever possible. But the Trial Chamber must consider
all evidence in this case carefully. To maintain witnesses who are
not necessary to establish the Prosecution’s case and whose testimony does
not assist the Trial Chamber in its fact-finding mission is not in the interests
of the Accused or the Trial Chamber. Therefore, the Trial Chamber recommends
that the Prosecution remove W49, W52 and W54 from its witness list. The Trial
Chamber makes this recommendation bearing in mind that in the course of a
trial some witnesses may decide that they do not want to testify or that other
witnesses need to be removed from the witness list for other reasons. Should
the Prosecution consider it necessary at a later date to reinstate these witnesses,
the Trial Chamber will consider the merits of such a motion.
- In relation to two witnesses that are the subject of Decision, W50 and
W59, who are proposed 92 bis (D) witnesses, the Trial Chamber observes
that they may be the only witnesses to testify to paragraph 43(c) and 46.2
of the Indictment, respectively. The Trial Chamber recalls the observation
of the Appeals Chamber in the Galic Appeals Decision that “where the
witness who made the statement is not called to give the accused an adequate
and proper opportunity to challenge the statement and to question that witness,
the evidence which the statement contains may lead to a conviction only if
there is other evidence which corroborates the statement,”32
and reminds all parties that such “other evidence” will be necessary to corroborate
evidence put forward by a single Rule 92 bis witness who was not called
for cross-examination in order to lead to a conviction on that charge of the
- In considering whether to require that the proposed Rule 92 bis witnesses
appear before the Trial Chamber for cross-examination, the Trial Chamber recalls
its obligations under Article 20 and Article 21 of the Statute to ensure the
a fair trial for the Accused.33 The Trial Chamber
endorses the criteria employed by former Trial Chambers in making this assessment
for witnesses proposed under Rule 92 bis (D), namely whether the testimony
goes to proof of a critical element of the Prosecution’s case against the
accused and whether the cross-examination of the witness in prior proceedings
dealt adequately with the issues relevant to the defence in the current proceedings.34
In this respect, the Trial Chamber notes that all of the proposed Rule 92
bis (D) witnesses save one testified in the case Prosecutor v. Radislav
Krstic , Case No. IT-98-33-T, which dealt with substantially similar events.35
- In assessing the former testimony of the proposed Rule 92 bis (D)
witnesses, the Trial Chamber finds that it is not necessary to call any of
these witnesses for cross-examination. The Trial Chamber did not find that
there were open questions for these witnesses following their examination,
cross-examination and questioning by the Trial Chamber in the former proceedings
that would have an impact on the two Accused in this case. Neither the Blagojevic
Response nor the Jokic Response provided the Trial Chamber with concrete or
specific reasons why any of these witnesses would need to be recalled for
- It appears that these witnesses are so-called “crime-base witnesses”. Such
a characterisation is not meant to minimise the evidence put forward by these
witnesses or their overall importance to this case. Rather, in cases before
the Tribunal, where the crucial issue is the individual criminal responsibility
of persons brought before it, the Trial Chamber does not find that these witnesses
provide evidence that is “so pivotal” to establishing the individual criminal
responsibility of either Vidoje Blagojevic or Dragan Jokic for the crimes
alleged in the Indictment. Accordingly, in weighing the various interests
in recalling these witnesses for cross-examination, including the impact
of testifying before the Tribunal on the proposed witnesses and the right
of the Accused to a fair and expeditious trial, the Trial Chamber finds that
it is not necessary to call these witnesses.
- In the case of the three remaining witnesses proposed under Rule 92 bis
(B), the Trial Chamber recalls that due to the large number of witnesses
proposed under this Rule, the Prosecution has provided the Defence and the
Trial Chamber with preliminary statements in order to assess whether these
witnesses would be suitable under Rule 92 bis before formal declarations
are obtained. The Trial Chamber finds that in case of two of the proposed
Rule 92 bis (B) witnesses, namely W57 and W71, there is insufficient
detail in the statement for the Trial Chamber to make a conclusive decision
on the issue of cross-examination. The Trial Chamber further finds that in
relation to one of the proposed Rule 92 bis (B) witnesses, namely
W36, the statement appear to be rather cumulative of viva voce testimony.
While the Trial Chamber finds that there appear to be additional details provided
by this witness which would warrant the maintenance of this witnesses on the
Prosecution’s witness list, the Trial Chamber encourages the Prosecution to
consider whether the evidence of this witness is necessary to its case before
taking a Rule 92 bis (B) declaration. The Trial Chamber reserves its
decision on cross-examination of this witnesses until the final Rule 92 bis
statement is provided.
3. Admission of Exhibits with the Testimony of Rule 92 bis (D)
- In addition to the transcripts of former testimony of eighteen witnesses
relevant to this Decision, the Prosecution seeks to have admitted all exhibits
admitted into evidence during their former testimony. It is recognised in
the jurisprudence of the Tribunal that although Rule 92 bis (D) does
not explicitly provide for the admission of exhibits admitted during former
testimony, such exhibits are admissible pursuant to this Rule, as these exhibits
“form an inseparable and indispensable part of the testimony.”36
- The Trial Chamber notes that the majority of exhibits attached to the former
testimony are maps which the witnesses marked or photographs shown to the
witnesses. The Trial Chamber notes, however, that an index has not been provided
with the First Motion or the Second Motion indicating the exact title or exhibit
number given to each exhibit in the Krstic case. The Trial Chamber
considers such an index would be helpful, particularly in identifying which
exhibits in this case overlap with exhibits tendered in the Krstic case.
- The Trial Chamber reserves its decision on the admission of all exhibits
which were admitted during the former testimony of the proposed Rule 92 bis
(D) witnesses until such a time as the Trial Chamber can review the index
of proposed exhibits. Therefore, the Trial Chamber requests that the Prosecution
supply both the Trial Chamber and the Accused with an index indicating the
exact title and exhibit number for each exhibit for the witnesses who are
subject of this Decision and all remaining Rule 92 bis (D) witnesses.
- Having considered the submissions of the parties, the Rules and Statute
of the Tribunal, as well as the jurisprudence on Rule 92 bis, the Trial
Chamber GRANTS the First Motion and the Second Motion in relation to
the following witnesses, thereby permitting the statement or former testimony
of these witnesses to be entered into evidence pursuant to Rule 92 bis
without calling the witnesses for cross-examination: W33, W34, W37,
W38, W44, W48, W50, W51, W53, W59, W61, W63, W65, W72, W73 and W74.
- In relation W36, W57 and W71, the Trial Chamber GRANTS
the First Motion to the extent that the witness statements of these witnesses
shall be entered into evidence, pursuant to Rules 92 bis (A) and (B).
The Trial Chamber RESERVES its decision on whether it is necessary
to call these witnesses for cross-examination until the final Rule 92 bis
statements have been filed.
- The Trial Chamber RECOMMENDS that the Prosecution withdraw witnesses
W49, W52 and W54 from its witness list at this stage. Should
the Prosecution determine at a later stage that it is necessary to reinstate
these witnesses on the witness list, the Trial Chamber will consider such
- The Trial Chamber further ORDERS that the Prosecution supply the
Trial Chamber with an index for all Rule 92 bis (D) witnesses, which
includes the exact title and exhibit number of each exhibit admitted during
that witness’ former testimony. The Trial Chamber will rule on the admissibility
of the exhibits following receipt of such an index.
Done in French and English, the English version being authoritative.
Judge Liu Daqun
Dated this twelfth day of June 2003,
At The Hague
[Seal of the Tribunal]
1 - On 10 June 2003, the Prosecution filed “Prosecution’s
Motion to Amend Witness List and Incorporated Motion to Admit Evidence under Rule
92 bis,” under seal. This motion will be ruled on in due course.
2 - “Vidoje Blagojevic’s Response to the Prosecution’s Motion
Concerning Rule 92 bis,” filed confidentially on 31 March 2003 (“Blagojevic
Response”) and “Dragan Jokic’s Response to 'Prosecution’s Motion for Admission
of Prior Testimony and Witness Statements pursuant to Rule 92 bis and Incorporated
Motion in limine to Introduce Related Exhibits',” 31 March 2003 (“Jokic
3 - Order for Filings Related to 92 bis and 94 bis,
20 February 2003.
4 - “Accused Nikolic’s Response to Prosecution’s Motion for
Admission of Witness Statements and Prior Testimony pursuant to Rule 92 bis
and Incorporated Motion in limine to Admit Related Exhibits and to Prosecution’s
Notice of Expert Witness Statements under Rule 92 bis,” filed confidentially
on 31 March 2003, and “Dragan Obrenovic’s Response to the Prosecution’s Motion
Concerning Rule 92 bis,” filed confidentially on 7 April 2003.
5 - Following Mr. Nikolic’s plea of guilty to one count and
the entry of a conviction to that count by the Trial Chamber, the Trial Chamber
separated the proceedings against Momir Nikolic on 9 May 2003 (Separation of Proceedings
and Scheduling Order). Following Mr. Obrenovic’s plea of guilty to one count and
the entry of a conviction to that count by the Trial Chamber, the Trial Chamber
separated the proceedings against Mr. Obrenovic on 23 May 2003 (Separation of
Proceedings and Scheduling Order).
6 - The Prosecution withdrew two of the proposed 92 bis
(A) and (B) witnesses from its witness list on 27 March 2003. Status Conference,
27 March 2003, Transcript page (“T.”) 135. The Prosecution also changed one of
its proposed 92 bis (D) witnesses to a viva voce witness.
On 16 May 2003, the Prosecution filed a missing transcript for one of the proposed
92 bis (D) witnesses (Prosecution’s Notice of Filing Additional Transcript
to Accompany Rule 92 bis Motion). Finally, on 10 June 2003, the Prosecution
withdrew an additional proposed Rule 92 bis (D) from its witness
7 - At the time the Second Motion was filed, there were nine
proposed Rule 92 bis witnesses listed in that motion. On 10 June
2003, the Prosecution filed a new motion in which it withdrew four of the proposed
Rule 92 bis witnesses from its overall witness list, leaving five
witnesses for the Trial Chamber to consider under Rule 92 bis from the
8 - Blagojevic Response, Annex.
9 - Id., para. 5.
10 - Jokic Response, para. 36.
11 - According to the Prosecution’s witness list provided pursuant
to Rule 65 ter (E), the witnesses included in the First Motion and Second
Motion fall into various categories. For the purposes of this decision, the Trial
Chamber is examining five proposed witnesses from the Dutch Battalion and eighteen
proposed witnesses described as Bosnian Muslim Witnesses.
12 - T.227-254.
13 - Specifically, this Decision includes (by 65 ter
number): W33, W34, W36, W37, W38, W44, W48, W49, W50, W51, W52, W53, W54, W57,
W59, W61, W63, W65, W71, W72, W73 and W74.
14 - See also, Rule 89 (F): A Chamber may receive the evidence
of a witness orally or, where the interests of justice allow, in written form.
15 - See, Galic Appeals Decision, para. 9.
16 - Galic Appeals Decision, para. 10.
17 - Id. See also, Prosecutor v. Dusko Tadic,
Case No. IT-94-1-A, Judgement, 15 July 1999, para. 220.
18 - Galic Appeals Decision, para. 10.
19 - Id., para. 13.
20 - Id., paras 13-15: “there is often but a short step
from a finding that the accused knew or had reason to know that those crimes were
about to be or had been committed by [his subordinates].” (para. 14)
21 - Id., para. 16.
22 - Id., para. 11.
23 - Id.
24 - Jokic Response, paras 15-21.
25 - See, Prosecutor v. Stanislav Galic, Case No. IT-98-29-T,
Decision on the Prosecution’s Request for Admission of Rule 92 bis Statements,
26 July 2002, (“Galic Trial Decision”), para. 18. See also, Prosecution v.
Slobodan Milosevic, Case No. IT-02-54-T, Decision on Prosecution’s Request
to have Written Statement Admitted under Rule 92 bis, 21 March 2002, and
Separate Opinion of Judge Patrick Robinson, attached thereto.
26 - Galic Appeals Decision, paras 27-31.
27 - Id.,paras 27-31. It is for this reason that the
Appeals Chamber found that a Prosecution statement given to an investigator could
not be tendered under Rule 89(C) as a way of getting around the requirements of
Rule 92 bis (B).
28 - See, Rule 92 bis (A)(i)(a).
29 - Article 21(4)(c) of the Statute of the Tribunal.
30 - See also, Galic Trial Decision, para. 16, which
states in part: “the Chamber will admit statements containing evidence of a cumulative
nature only if it is significant, which supposes, among other things, that it
is not a pure repetition of evidence already admitted but adds details and information
which contribute to a better understanding or assessment of the evidence presented.”
31 - T.234.
32 - Galic Appeals Decision, fn. 34.
33 - See, Article 21(4)(e) of the Statute: “In the determination
of any charge against the accused pursuant to the present Statute, the accused
shall be entitled to the following minimum guarantees, in full equality: […] to
examine, or have examined, the witnesses against him and to obtain the attendance
or examination of witnesses on his behalf under the same conditions as witnesses
34 - Prosecutor v. Dusko Sirkirica, Case No. IT-95-8-T,
Decision on Prosecution’s Application to Admit Transcripts under Rule 92 bis,
23 May 2001, para. 4.
35 - The former testimony of one proposed Rule 92 bis
(D) witness is taken from the witness’ testimony in a Rule 61 proceeding concerning
Ratko Mladic and Radovan Karadzic (Cases No. IT-95-18-R61 and IT-95-5-R61). The
subject of this proceeding was, in part, the events in and around the fall of
Srebrenica in July 1995. The Trial Chamber notes, however, that there was no cross-examination
of the witness conducted on behalf of either indictee. See, Prosecutor v. Mladen
Naletilic and Vinko Martinovic, Case No. IT-98-34-PT, Decision Regarding Prosecutor’s
Notoce of Intent to Offer Transcripts under Rule 92 bis (D), 9 July 2001
(“Naletilic Decision”), para. 7.
36 - See, Naletilic Decision, para. 8.