IN THE TRIAL CHAMBER
Judge Almiro Rodrigues, Presiding
Judge Fouad Riad
Judge Patricia Wald
Mr. Hans Holthuis
17 May 2001
DECISION ON DRAGOLJUB PRCACíS REQUEST TO INTRODUCE
AFFIDAVIT EVIDENCE (RULE 94 TER)
The Office of the Prosecutor: Defence Counsel:
Ms. Susan Somers Mr. Krstan Simic for Miroslav Kvocka
Mr. Kapila Waidyaratne Mr. Zarko Nikolic for Milojica Kos
Mr. Daniel Saxon 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 Annex III of the "Defence Request for Admission (Sic) Evidence" dated 27 April 2001 ("the Request"), by which the Defence of Dragoljub Prcac ("Prcac") seeks the admission of thirteen affidavits into evidence as corroboration of witness testimony heard by the Chamber, pursuant to Rule 94 ter of the Rules of Procedure and Evidence of the Tribunal ("the Rules"), which the Chamber has held to be the applicable provision in this matter;1
NOTING the "Prosecutionís Response to the Accused Prcacís Submission of formal Statement of Nevenka Sikman" dated 27 April 2001, in which the Prosecution objects to the admission of the affidavit of Nevenka Sikman on the ground that the affidavit does not corroborate the live testimony it is intended to corroborate;
NOTING the "Prosecutorís Response to Accused Prcacís "Defense Request for Admission (Sic) Evidence " filed on 14 May 2001, in which the Prosecution does not object to the admission of three proposed affidavits but objects to the admission of the ten other proposed affidavits,2 including the affidavit of Nevenka Sikman, 3 (the "Opposed Affidavits");
CONSIDERING that affidavits and/or formal statements may be submitted in corroboration of witness testimony to prove a fact in dispute pursuant to former Rule 94 ter of the Rules;
CONSIDERING that the Prosecution objects to the admission of the affidavit of Zarko Tejic on the ground that the affiant gave information about the activities of Prcac at the Omarska camp whereas it is not established in the affidavit that the affiant was present in the camp; that however, it seems that the affiant was in a position to give information regarding Prcacís assignment in the Omarska camp because he worked with Prcac in the Public Security Centre in Prijedor before and after Prcacís assignment in the Omarska camp; that, in addition, an affiant is not precluded from giving hearsay evidence;
CONSIDERING that the Prosecution objects to the admission of the affidavit of Gordana Jokic on the ground that the affidavit is intended to corroborate the fact that Prcac was a "crime technician" by profession, whereas the affiant stated that Prcac was a "traffic technician" by profession; that however, the Defense of Prcac indicated in Annex III of the Request that the facts to be corroborated by the affiant are related to the "time of the accusedís arrival" in the Omarska camp, to the "accusedís role" and to the "period of the accusedís stay" in the Omarska camp; that in addition, Prcac himself stated that "I started working [Ö] as a crime technician, working traffic accident scenes [...]";4
CONSIDERING that the Prosecution objects to the admission of the affidavit of Dr. Slavica Radic-Popovic on the ground that the affidavit is intended to corroborate the fact that Prcac came often to the dispensary, whereas the live witness said that he only saw Prcac in the Omarska health centre on one occasion; that however, it does not appear contradictory to the Chamber that one doctor saw Prcac only on one occasion whereas another doctor saw Prcac more often, in view of the fact that doctors had different assignments and did not attend the health centre at the same times;
CONSIDERING that the Prosecution objects to the admission of the affidavit of Bosko Dabic because the affidavit is a kind of "double-hearsay" and thus unreliable; that however, the jurisprudence of the Tribunal has held that hearsay evidence can be admissible and that the Chamber shall decide upon the weight to be afforded to such evidence;5
CONSIDERING that the Prosecution objects to the admission of the affidavits of Rade Andic and Ilija Prpos on the ground that the affidavits "attempt(s) to draw conclusions about the mental state of the accused Prcac" when he went to work to the Omarska camp and when he left the Omarska camp respectively, which constitute "an inappropriate use of former Rule 94 ter"; that nothing in the Rule prevents corroboration of these facts by the submission of an affidavit or a formal statement;
CONSIDERING that the Prosecution objects to the admission of the affidavit of Milorad Pusac because the affidavit contains "new information", namely that "in fact, command matters were completely contrary to his [Prcacís] character", which was not mentioned in the live testimony sought to be corroborated; that, however, the Defense of Prcac stated in Annex III of the Request that the affidavit of Milorad Pusac is to corroborate two facts in dispute: the "work of the accused in the Police Station Division of Omarska" and the "time of his leaving" for the Omarska camp; that the affidavit does not need to mirror the live testimony at to every detail, and that moreover, the affidavit of Molorad Pusac contains information pertinent to the case that in the main is not supplementary to the live testimony, so that it can be said that "the corroborating testimony [ is ] focused on the facts contained in the live testimony and not on the surrounding events of the case in general";6
CONSIDERING that the Prosecution objects to the admission of the affidavit of Nevenka Sikman on the ground that the affiant stated that Prcac "did not go out [of the Omarska camp] unless he had something to give the detainees, something their families has sent them or something he had brought from his own home" whereas, according to the Prosecutor, the live testimony of DD10, which is to be corroborated by the affidavit of Nevenka Sikman, stated that Prcac would leave his office to "ascertain whether certain people were actually detained in the Omarska camp, or to bring prisoners to the administration building for questioning"; that it seems that there is at first sight a contradiction between the statement of the affiant and the statement of the live witness; yet, it appears that the affidavit is also intended to corroborate the live testimony of two other live witnesses ,7 one of them testifying that Prcac assisted detainees; that moreover, the fact that the affiant stated that Prcac would leave his office to assist detainees does not preclude that another witness deemed that Prcac left his office for other reasons, e.g. "ascertaining whether certain people were actually detained in the Omarska camp";
CONSIDERING that the Prosecution objects to the admission of the affidavits of Rade Ritan and Milenko Romanic on the ground that in the first case, the affiant is allegedly a perpetrator of serious violations of international humanitarian law in the former Yugoslavia so that "this is an inappropriate use of former Rule 94 ter, and in the second case, because the affiant allegedly suffers from a "psychological condition"; that there is no limitation in the Rules preventing an affiant, who has allegedly committed a crime, or who has a "psychological condition", from giving relevant evidence; that on contrary, the jurisprudence has consistently held that the psychological condition of a witness does not automatically render his or her statement unreliable;8
CONSIDERING that the Prosecution seeks to cross-examine the authors of the Opposed Affidavits if they are admitted into evidence; that although the Chamber is obliged to consider the Prosecutorís application to cross-examine an affiant, "it remains within its discretion to make a decision based on the merits";9 that a relevant test is whether the fact in dispute which is corroborated by the affiant is minor in nature, or whether it can be said to be so central to the case that every witness to that fact need be cross-examined before the Chamber; that the facts in dispute corroborated by the Opposed Affidavits do not rise to this critical level;
CONSIDERING moreover, that the Prosecutor has had the opportunity to challenge the evidence contained in the affidavits by cross-examination of the live witnesses whose testimony the affidavits corroborate;
PURSUANT to Rules 89 and former 94 ter;
FOR THE FOREGOING REASONS,
HEREBY GRANTS the Request and DECIDES that the affidavits subject of the Request are admitted and that the affiants shall not be called for cross-examination.
Done in English, this seventeenth day of May 2001.
[Seal of the Tribunal]
1 - Oral decision of 22 January 2001, T.6914.
Rule 94 ter was deleted at the twenty-third Plenary Session, 19 January
2 - Miodrag Kicanovic, Nedeljko Delic and Ljuban Grahovac.
3 - Zarko Tejic, Gordana Jokic, Dr. Slavica Radic-Popovic, Bosko Dabic, Rade Andic, Ilija Prpos, Milorad Pusac, Nevenka Sikman, Rade Ritan and Milenko Romanic.
4 - Exhibit 3/167, p 4.
5 - See e.g. Prosecutor v. Tadic, "Decision on the Defense Motion on Hearsay", Case No. IT-94-1-T, TCII, 5 August 1996; Prosecutor, v. Aleksovksi, "Decision on Prosecutorís Appeal on Admissibility of Evidence", Case No. IT-95-14/1-AR, AC, 16 February 1999.
6 - Prosecutor v Kordic; and Cerkez, Case No. IT-95-14/2-AR73.6 "Decision on Appeal Regarding the Admission in to Evidence of Seven Affidavits and One Formal Statement", 18 September 2000, ("Kordić Decision"), para 40.
7 - Ljubisa Prcac and Milenko Jasnic.
8 - Prosecutor v Furundzija, Judgement, Case No. IT-95-17-T, TCII, 10 December 1998.
9 - Kordic Decision, para 37.