Case No. IT-02-60-T

IN TRIAL CHAMBER I, SECTION A

Before:
Judge Liu Daqun, Presiding
Judge Volodymyr Vassylenko
Judge Carmen Maria Argibay

Registrar:
Mr. Hans Holthuis

Decision of:
28 September 2004

PROSECUTOR

v.

VIDOJE BLAGOJEVIC
DRAGAN JOKIC

________________________________

DECISION ON PROSECUTION’S NOTICE OF FILING RULE 92 BIS STATEMENTS

________________________________

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 Mr. Branko Lukic 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”),

BEING SEISED of the “Prosecution’s Notice of Filing Rule 92 bis Statement ”, filed confidentially on 8 September 2004 (“Notice”), by which the Prosecution seeks a final decision on admission pursuant to Rule 92 bis (A) of the Rules of Procedure and Evidence (“Rules”) of two statements of Witness W36 (“Witness”), one dated1 6 September 1995 and another dated 29 November 1999 (“Statements”), which the Prosecution initially moved to have admitted by its “Motion for Admission of Witness Statements and Prior Testimony Pursuant to Rule 92 bis and Incorporated Motion In Limine to Admit Related Exhibits”, dated and filed under seal on 14 February 2003,

NOTING “Vidoje Blagojevic’s Response to Prosecution’s Notice of Filing Rule 92 bis Statement”, filed confidentially on 22 September 2004 (“Response”), by which the Defence of Vidoje Blagojevic (“Defence”) objects to the admission of the Statements on the grounds that:

1) the Prosecution has not shown due diligence as the certification was carried out only after the Prosecution rested its case-in-chief without any reasons given in the Notice2,

2) the Statements cannot be admitted or given weight by the Trial Chamber absent cross-examination as the Witness during the certification stated that he does not have an “independent recollection of certain incidents3 mentioned in Sthe 1999 StatementC due to the lapse of time between when these incidents occurred in 1995, my statement in 1999 and today”4,

3) the Prosecution does not explain how “a statement of a witness who has no recollection of the events he once claimed he did and who now claims did not have first-hand knowledge of the events that he described in his previous statement, i.e., a self-contradictory statement, would have any evidentiary value”5,

4) the Witness therefore must be subjected to “vigorous” cross-examination even though the Witness, “by his own admission would testify that he has no recollection of any of the events contained in the statement”6, and that

5) the admission into evidence of the Statements is tantamount to rebuttal evidence due to the advanced stage of the proceedings and the Witness’s lack of independent recollection of the enumerated incidents7,

NOTING the Trial Chamber’s “First Decision on Prosecution’s Motion for Admission of Witness Statements and Prior Testimony Pursuant to Rule 92 bis”, dated 12 June 2003 (“First Decision”), by which the Trial Chamber, pending certification of the Statements in accordance with Rule 92 bis (B) of the Rules, admitted the Statements, and ordered the Prosecution to have the Statements certified and to provide the final Statements when certified, and reserved its decision on whether it would be necessary to call the Witness for cross-examination,

CONSIDERING that the only issue remaining for consideration and arising out of the First Decision is whether the Witness should be called for cross-examination ,

CONSIDERING that the Statements were certified in accordance with Rule 92 bis (B) of the Rules on 7 September 2004,

NOTING that in light of the fact that the Trial Chamber in the First Decision “SencouragedC the Prosecution to consider whether the evidence of this witness SwasC necessary to its case”, the Prosecution should have had the Statements certified before the close of its case once a decision was made to keep the Witness on the witness list, but that the Trial Chamber does not find any grounds to believe that the Prosecution deliberately has delayed having the Statements certified,

REITERATING that, in accordance with the Rules and the jurisprudence of this Tribunal, as has been spelt out clearly by this Trial Chamber in the “Guidelines on the Standards Governing the Admission of Evidence”8, and with which the Defence agrees9, it is for the Trial Chamber to determine the probative value of any piece of admitted evidence,

CONSIDERING that the Defence is misstating the information given by the Witness during the certification; firstly, the Witness did not state that he “did not have first-hand knowledge”10 of the events described in the 1999 statement but that he currently does not have independent recollection of certain events – an all together different matter, and, secondly and more importantly, that the Witness did not state that he “has no recollection of any of the events contained in the [1999 statement]”11, but that he specified in respect of which two events he does not have independent recollection, a fact which must have been obvious to the Defence,

CONSIDERING that the Witness’s explanation for the lack of independent recollection in this regard – i.e. the lapse of nine years between the events and the certification – is credible,

CONSIDERING HOWEVER that the Witness’s lack of independent recollection at this point in time of the two clearly specified events does not render the Statements unreliable or call into question their authenticity and consequently that this is not a reason for calling the Witness for cross-examination,

CONSIDERING that there are slight discrepancies between the 1995 and the 1999 Statements with regard to the two specified incidents,

NOTING that the Witness stated that he does not have independent recollection of the two specified incidents and that it consequently would serve no purpose to call him as a witness in order to clarify these discrepancies,

CONSIDERING FURTHERMORE that the Statements do not contain any other information that would require the calling of the Witness for cross-examination and consequently that this is not necessary,

CONSIDERING that as the present matter originated in the Prosecution’s case -in-chief and that the Statements are in evidence as a result of the First Decision , the current matter does not contain any issue of rebuttal evidence, a fact which must have been clear to the Defence,

PURSUANT TO Rule 54 and Rule 92 bis of the Rules,

HEREBY FORMALLY ADMITS the Statements without cross-examination of the Witness .

 

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

_____________
Judge Liu Daqun
Presiding

Dated this twenty-eighth day of September 2004
At The Hague,
The Netherlands

[Seal of the Tribunal]


1 - As informed by the Witness during the certification.
2 - Response, paras 3-6.
3 - Enumerated in the witness statement, dated 7 September 2004, by which the Statement was certified.
4 - Notice, statement of 7 September 2004, ERN 03610465.
5 - Response, para. 9.
6 - Response, para. 12 c).
7 - Response, para. 10.
8 - Adopted 23 April 2003.
9 - Accused Blagojevic’s Comments Concerning the Trial Chamber’s Draft Guidelines on the Standards Governing the Admission of Evidence & Request for Oral Argument, dated 3 March 2003.
10 - Response, para. 9, emphasis added.
11 - Response, para. 12 c), emphasis added.