Case No. IT-03-66-T

IN TRIAL CHAMBER II

Before:
Judge Kevin Parker, Presiding
Judge Krister Thelin
Judge Christine Van Den Wyngaert

Registrar:
Mr. Hans Holthuis

Decision of:
7 July 2005

PROSECUTOR

v.

Fatmir LIMAJ
Haradin BALA
Isak MUSLIU

_______________________________________________

DECISION ON PROSECUTION’S MOTION TO ADMIT REBUTTAL STATEMENTS VIA RULE 92BIS

_______________________________________________

The Office of the Prosecutor:

Mr. Alex Whiting
Mr. Julian Nicholls
Mr Milbert Shin
Mr. Colin Black

Counsel for the Accused:

Mr. Michael Mansfield, QC, and Mr. Karim A. Khan for Fatmir Limaj
Mr. Gregor Guy-Smith and Mr. Richard Harvey for Haradin Bala
Mr. Michael Topolski, QC, and Mr. Steven Powles for Isak Musliu

    I. INTRODUCTION

  1. This decision of Trial Chamber II is in respect of the “Prosecution’s Motion to Admit Rebuttal Statements via Rule 92bis” (“Motion”) and Appendixes A, B, C and D to the Motion, filed partly confidentially on 29 June 2005. The Prosecution seeks the admission of the following four statements, as evidence in rebuttal to the Defence case, pursuant to Rules 92bis and 85 of the Rules of Procedure and Evidence (“Rules”):

    1) a statement of Ole Lethinen, investigator for the Office of the Prosecutor (“OTP ”), dated 24 June 2005 (Appendix A) (“First Statement”);

    2) a statement of Ole Lethinen dated 28 June 2005 (Appendix B) (“Second statement”);

    3) a statement of Andreas Manthey, former police officer at the Central Criminal Investigations Unit, dated 28 June 2005 (Appendix B) (“Third Statement”); and

    4) a statement of Ole Lethinen dated 24 June 2005 (Appendix C) (“Fourth Statement”).

  2. The Prosecution submits the proposed statements as rebuttal evidence to the testimony of Ferat Sopi on 9 June 2005 (First statement), Professor Wagenaar on 27 June 2005 (Second and Third Statements) and Fatmir Limaj on 25 May 2005 (Fourth Statement). In the Prosecution’s submission, all four statements go to proof of matters other than the acts and conduct of the Accused as charged in the Indictment and are therefore admissible under Rule 92bis.1

  3. The Defence for Fatmir Limaj filed a “Response by Fatmir Limaj to Prosecution’s Motion to Admit Rebuttal Statements Via Rule 92bis” on 1 July 2005 (“Response ”), whereby it submits that the motion should be denied with respect to the Fourth Statement as it does not amount to rebuttal evidence and that the reliance on Rule 92bis is inappropriate in light of the importance the Prosecution now seeks to place on the search of Fatmir Limaj’s apartment and the items recovered therein.2

  4. On 4 July 2005, the Prosecution filed a “Prosecution’s Reply to Response by Fatmir Limaj to Prosecution’s Motion to Admit Rebuttal Statements via Rule 92bis ” (“Reply”), requesting authorisation to file the reply as set forth in the filing.

    II. APPLICABLE LAW

  5. The law concerning the admission into evidence of written statements under Rule 92bis has been sufficiently set out in previous decisions of the Chamber.3 For a written statement in lieu of oral testimony to be admitted into evidence, it must go to proof of a matter other than the acts and conduct of the accused as charged in the indictment. The Chamber recalls that it has discretion in deciding whether to admit a written statement. Relevant to the determination whether the witness should be called for cross- examination, is whether the statement touches upon the very essence of the Prosecution case against the Accused and the cumulative nature of the evidence sought to be admitted. Moreover, hearsay evidence is in principle admissible in proceedings before this Tribunal if it is relevant and has probative value. A Trial Chamber may decide the probative value of such evidence by assessing, inter alia, whether the statement is voluntary, truthful and trustworthy.4

  6. On the jurisprudence of the Tribunal, “rebuttal evidence must relate to a significant issue arising directly out of defence evidence which could not reasonably have been anticipated.”5 It is the obligation of the Prosecution to lead its evidence in its case-in-chief, and it is only if a new issue is raised in the course of the Defence case that the Prosecution may lead evidence in rebuttal. Rebuttal evidence may not be called by the Prosecution merely because its case has been met by contradicting evidence6 or in order to reinforce its case-in-chief.7 Further, only highly probative evidence may be led as rebuttal evidence.8

    III. DISCUSSION

  7. The First Statement is an account by Ole Lehtinen of a meeting held on 4 May 2005 between Defence witness Ferat Sopi and representatives of the OTP, during which Ferat Sopi, in response to questions by Alex Whiting, indicated that he had read the transcript of the evidence of Prosecution witness Zeqir Gashi in the newspaper and that everything he said was accurate. In the Prosecution’s submission, the statement is proposed in rebuttal to Ferat Sopi’s evidence before the Chamber. The effect of Ferat Sopi’s evidence is essentially that he did not read Zeqir Gashi’s testimony in its entirety and did not analyse it in details.9 It is not readily apparent to the Chamber to which extent the First Statement rebuts in fact the evidence given by Ferat Sopi in court. Nevertheless, given the agreement of the parties, the Chamber will accept to treat the First Statement as rebuttal evidence. Turning to the issue whether the First Statement is admissible under Rule 92bis, the Chamber is satisfied that while it aims at undermining the credibility of a Defence witness, it does not directly go to the acts and conduct of the Accused in the present case. It is therefore admissible under that Rule. The Chamber takes note of the non-objection of the Defence to the First Statement being admitted without cross-examination of the witness.

  8. The Second and Third Statements concern procedures used for the interview of witnesses involving line-up identifications in the present case. The Chamber is satisfied that this evidence relates to a significant issue arising directly out of the Defence case and which could not have been anticipated. In particular, the Chamber is satisfied that these two statements constitute proper rebuttal evidence to the testimony of Defence expert witness Professor Wagenaar who suggested that a number of rules ought to be applied in line-up identification procedures. On the issue of the admissibility of the Second and Third Statements under Rule 92bis of the Rules, the Chamber is satisfied that the statements do not go to the acts and conduct of the Accused as charged in the Indictment. Both statements are therefore admissible under that Rule. The Chamber takes note of the non-objection of the Defence to the Second and Third Statements being admitted into evidence without cross-examination of the witness.

  9. The Fourth Statement details the procedure followed in the course of the search of Fatmir Limaj’s apartment on 19 February 2003 and describes more specifically the documents which were found in the storage room, among which Exhibit P30. According to the Fourth Statement, Exhibit P30 was in a pile of documents found on a shelf in the storage room, documents which were not in a box or binder of any kind.

  10. The Prosecution generally seeks to rebut the explanation given by Fatmir Limaj on how Exhibit P30 came to be in his apartment.10 More specifically, it is the Prosecution’s submission that the statement “relates ” to the testimony of Fatmir Limaj in that (1) it “casts considerable doubt on Fatmir Limaj’s suggestion that P30 was part of a larger group of documents being stored in its apartment on behalf of the Ministry of Defence”; (2) it “refutes the suggestion made by (Fatmir( Limaj that the documents were stored in boxes or binders”; and (3) it “casts considerable doubt on the indication from Fatmir Limaj that he had never read the document when it was in his house” given the small number of KLA documents found during the search.11 The Prosecution further submits that Exhibit P30 concerns a “significant issue” as it contains the name of one of the victims listed in Annex III of the Indictment and information relating to suspected Albanian collaborators and Serb civilians,12 and that it could not have been anticipated that Fatmir Limaj “would claim that this document was part of a collection of documents stored on behalf of the Ministry of Defence.”13

  11. The Defence for Fatmir Limaj objects to the Fourth Statement being admitted as rebuttal evidence on the ground that “all the matters detailed in the statement could have been included as part of the Prosecution’s case”14, but that the Prosecution decided not to call direct evidence relating to the search of Fatmir Limaj’s apartment, aside from that of Ole Lehtinen.15 In the Defence’s submission, there is no basis to “call rebuttal evidence after the Accused has accepted that the seized items were found”16 and given that Fatmir Limaj’s evidence that documents from the Ministry of Defence were stored in his apartment was not “contradicted by the Prosecution in cross-examination ” through inquiries as to when the documents were brought, by whom or for how long. Further, the Defence is concerned that the proposed rebuttal evidence “is more prejudicial than probative as it invites that Chamber to a leap of logic that was not properly or fairly put to the witness to deal with.”17

  12. At the outset, the Chamber notes that Exhibit P30 was introduced into evidence during the testimony of Ole Lehtinen on 24 November 2004.18 While the Defence suggests that the exhibits admitted through Ole Lehtinen were to be treated merely as “an introductory summary (which( will be of no weight unless later witnesses substantiate the basis for it”,19 it is apparent that this reservation did not apply to the search of Fatmir Limaj’s apartment in which Ole Lehtinen directly participated and of which he has direct knowledge.20 In the course of the examination-in-chief, Ole Lehtinen was questioned at length by the Prosecution in relation to Exhibit P30, both as to its content and the specific location where it was found in Fatmir Limaj’s apartment.21

  13. Exhibit P30 was used again by the Prosecution in the course of the cross-examination of Fatmir Limaj on 25 May 2005, with a view to establishing a link between the Accused and the document.22 The effect of Fatmir Limaj’s evidence is essentially that he does not know of this document. He does not deny that the document was found in his apartment. However, when specifically asked by the Prosecution how this document came to be in his apartment, Fatmir Limaj stated that the “only explanation” he could give was that documents from the Ministry of Defence, which was located across the road from the apartment and of which Fatmir Limaj was the spokesperson after the war, were temporarily stored in his apartment.23 Fatmir Limaj’s evidence is that he does not recall precisely where these documents were stored24 and that he does not know whether they were in boxes or binders.25 While cross-examining Fatmir Limaj on these matters, the Prosecution did put to him that Exhibit P30 had been found in the storage room, and Fatmir Limaj did not deny that there might have been documentation there, including from the Ministry of Defence.

  14. It is the view of the Chamber that the Fourth Statement does not rebut the evidence of Fatmir Limaj as is suggested by the Prosecution. The Prosecution seeks to rely on the Fourth Statement to establish that there was a reasonably limited amount of documentation seized in the course of the search of Fatmir Limaj’s apartment. This does not, in the Chamber’s opinion, amount to an unanticipated new issue arising out of the Defence case. The fact that a limited amount of documentation was seized was certainly already apparent from the property seizure record which was admitted into evidence in the course of the evidence of Ole Lehtinen.26 It was open to the Prosecution to put that record to Fatmir Limaj in the course of his cross-examination and its failure to do so may not be properly compensated through rebuttal evidence. The Prosecution further submits that the Fourth Statement rebuts the evidence of Fatmir Limaj that the documentation was stored in boxes or binders. As stated above, this is not the Chamber’s understanding of the Accused’s evidence. This is therefore not, in the Chamber’s view, a matter open for rebuttal. A third aspect of Fatmir Limaj’s evidence which the Prosecution wishes to rebut through the admission of the Fourth Statement is the suggestion that Exhibit P30 was part of a larger group of documents stored on behalf of the Ministry of Defence. However, the documents among which Exhibit P30 is said to have been found27 appear to include a number of military reports addressed to the Ministry of Defence around May 1999. The information that the Prosecution now wishes to tender was in its possession from the commencement of the trial and the inference it now wishes to draw from the nature of this documentation was not put to Fatmir Limaj in the course of his evidence.

  15. In these circumstances, the Chamber is of the view that the proposed Fourth Statement does not relate to a significant issue arising out of the Defence case which could not have been anticipated. It is therefore not admissible as rebuttal evidence. The conclusion of the Chamber is reinforced by the very limited probative value which the Fourth Statement appears to have in rebuttal of the evidence of Fatmir Limaj.

  16. The Chamber notes that the Defence for Fatmir Limaj offers a “secondary basis” upon which it opposes to the admission of the Fourth Statement, namely that the statement does not properly fall under Rule 92bis of the Rules. In light of the Chamber’s finding that the Fourth Statement may not be admitted as rebuttal evidence, there is no need to further consider by which means it ought to have been admitted, had it been considered as proper rebuttal evidence.28

    IV. DISPOSITION

    For the foregoing reasons, pursuant to Rules 85, 89 and 92bis of the Rules, the Chamber

    ALLOWS the Prosecution to file a Reply to the Response;

    PARTLY GRANTS the Motion and ORDERS that the First, Second and Third Statements be admitted as rebuttal evidence;

    DENIES the Motion in so far as it seeks the admission of the Fourth Statement ; and

    REQUESTS the Registry to (a) mark as exhibits the First, Second and Third Statements in Annex to the Motion, and (b) assign an exhibit number to these documents, and to inform the Chamber and the parties of the exhibit numbers in writing as soon as practicable.

 

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

______________________
Judge Kevin Parker
Presiding

Dated this seventh day of July 2005
At The Hague
The Netherlands

[Seal of the Tribunal]


1 - Motion paras 2-4.
2 - Response, paras 1 and 25.
3 - Decision on Prosecutor’s Motion for Provisional Admission of Witness Statements under Rule 92bis, issued confidentially on 13 October 2004.
4 - Ibid, para 9.
5 - The Prosecutor v. Delalic & al., Case No. IT-96-21-A, Judgement, 20 February 2001 (“the Delalic & al. Appeals Judgement”), para 273.
6 - Delalic & al. Appeals Judgement, para 275.
7 - The Prosecutor v. Dario Kordic and Mario Cerkez, Case No IT-94-14/2-T, T 26647. See also The Prosecutor v. Stanislav Galic, Case No. IT-98-29-T. Decision on Rebuttal Evidence, 2 April 2003, p  3.
8 - The Prosecutor v. Dario Kordic and Mario Cerkez, Case No IT-94-14/2-T, T 26646-26647. See also, The Prosecutor v. Radislav Krstic, Case No  IT-98-33-T, Decision on the Defence Motions to Exclude Exhibits in Rebuttal and Motion for Continuance, para 11.
9 - T 7079.
10 - Reply, para 2.
11 - Motion, paras 10-12.
12 - Motion, para 14.
13 - Motion, para 15.
14 - Response, para 6.
15 - Response, paras 7-9 and 13.
16 - Response, para 10.
17 - Response, para13.
18 - T 518-522.
19 - T 448.
20 - T 483-484. While it appears from the evidence of Ole Lehtinen that he did not have direct knowledge of the conduct of the searches in Haradin Bala’s and Isak Musliu’s respective properties, he did participate in the search of Fatmir Limaj’s apartment, T 481-482.
21 - T 518-522.
22 - T 6338-6347.
23 - T 6338-6339.
24 - T 6341-6342.
25 - T 6342.
26 - Exhibit P7.
27 - The documents were attached to the Motion as Exhibit D.
28 - See Reply, para 4.