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:
18 July 2005

PROSECUTOR

v.

Fatmir LIMAJ
Haradin BALA
Isak MUSLIU

_________________________________________

DECISION ON JOINT DEFENCE MOTION TO ADMIT REJOINDER STATEMENT 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

  1. Introduction
  2. This decision of Trial Chamber II is in respect of the "Motion by the Joint Defence for the Accused Fatmir Limaj, Haradin Bala and Isak Musliu to Admit Rejoinder Statement via Rule 92bis" filed on 12 July 2005 ("Motion"). This Motion seeks admission into evidence of the written statement of Adri van Amelsvoort via Rule 92bis together with "Guidelines for multiple photo identification procedures," annexed to the statement, in rejoinder to the written statement of Ole Lehtinen which was admitted as rebuttal evidence under Rules 92bis and 85 of the Rules of Procedure and Evidence ("Rules") by this Trial Chamber on 7 July 2005.

    The Prosecution responded to the Motion on 13 July 2005 objecting to the admission of the statement of Adri van Amelsvoort as rejoinder evidence in this case.1

  3. The law
  4. The admission of evidence in rejoinder is provided for by Rule 85(A)(iv) of the Rules. The jurisprudence of the Tribunal has established that Rule 85(A)(iv) does not create an absolute entitlement to lead evidence in rejoinder.2 Similarly to the Prosecutionís obligation to lead its evidence in its case-in-chief and its entitlement to lead evidence in rebuttal only if the Defence raises a new issue in the presentation of its case, it is settled jurisprudence of the Tribunal that the Defence may lead rejoinder evidence only with respect to "what directly arises out of rebuttal evidence and could not be expected to have been addressed during the Defence case."3

    The law on the admission into evidence of written statements pursuant to Rule 92bis has been set out in previous decisions of this Chamber4 and will not be discussed here.

  5. Discussion
  6. The written statement sought to be admitted in the present case contains information about a training session for trial attorneys and investigators of the Office of the Prosecutor of the ICTY in February 1997 in which the proposed witness participated. It is said that part of this training included multiple photo identification procedures, and was based on guidelines from a book written by the proposed witness, which were translated from Dutch into English by the translation unit of the Office of the Prosecutor. These are the "Guidelines for multiple photo identification procedures" annexed to the statement of the proposed witness. It is suggested by the Defence that this statement (and the accompanying guidelines) are in rejoinder of evidence given by way of written statement, of Ole Lehtinen, an investigator in the Office of the Prosecutor, in which reference was made to "ICTY instructions" requiring photo sheets used for identification to contain eight photographs. The Defence submits that, in the absence from evidence of a copy of these ICTY instructions, the guidelines provided during the February 1997 training may be assumed to constitute the basis for the ICTY instructions in place at the time of photo identifications relevant to this case. On this assumed basis, in the Defence submission, they are relevant and admissible as rejoinder evidence.5 The Prosecution responds that the proposed evidence relates to issues actually raised by the Defence in cross-examination of Prosecution witnesses and examination-in-chief of Defence witnesses and which, therefore, could and should have been addressed and indeed were addressed in the course of the Defence case.6 Further, it is submitted that the statement in question does not rebut the evidence in respect of which its admission is sought.7

    The potential relevance of the proposed evidence is the propriety of the procedure followed by investigators of the Office of the Prosecutor in conducting photo identifications relevant to this case, which in turn bears on the reliability of any purported photo identification. That being so it is clear that this issue could be expected to have been addressed during the Defence case. Indeed, it was in fact anticipated and pursued by Counsel for Isak Musliu during examination-in-chief of the Defence expert witness Dr Wagenaar. He was questioned about rules for identification procedures adopted by the Tribunal, and, more specifically, about the documents used by the proposed witness, Mr von Amelsvoort in a training course for investigators of this Tribunal.8 The ability of the Defence to anticipate this issue is even more obvious as the very same guidelines, the admission of which is now sought, were known to the Defence and were directly put to the Defence expert witness during his evidence.

    It should be further observed that, in any event, the relevance of what is now actually proposed to be received in evidence is not apparent. What is now tendered is evidence about the content of a lecture or training delivered by a visiting lecturer to some investigators and trial attorneys of the Office of the Prosecutor on one occasion in 1997. There is nothing to support the assumption on which the Defence founds its submissions that the content of this lecture was adopted as rules for identification by the Office of the Prosecutor which were still applicable at the time of the identification procedures relevant to this case. These identification procedures occurred many years after 1997, not before September 2002. The proposed evidence contradicts the Defence "assumption" because the "Guidelines for multiple photo identification procedure" do not stipulate that eight photos be used, rather than six, which is the evidence of Mr Lehtinen.9 Guideline 5 stipulates "a minimum of six and a maximum of twelve photos." Hence, had these guidelines been in place as the ICTY instructions Mr Lehtinen would not have been required to use eight photos rather than six. The proposed evidence, therefore, would be of little or no probative value to the issues in this case.

    In view of its decision on the inadmissibility of the evidence proposed in rejoinder, it is unnecessary to determine whether the proposed written statement would have been admissible under Rule 92bis.

  7. Disposition

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

DENIES the Motion.

 

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

______________________
Judge Kevin Parker
Presiding

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

[Seal of the Tribunal]


1. "Prosecutionís Response to Motion by the Defence for the Accused Fatmir Limaj, Haradin Bala and Isak Musliu to Admit Rejoinder Statement via Rule 92bis," 13 July 2005 ("Response").
2. Prosecutor v Dragoljub Kunarac and Radomir Kova~, Case No: IT-96-23-T &IT-96-23/1-T, Decision on Defence Motion for Rejoinder" 31 October 2000, para 14.
3. Prosecutor v Stanislav Gali}, Case No: IT-98-29-T, "Decision on Rejoinder Evidence," 2 April 2003. See also Prosecutor v Pavle Strugar, Case No: IT-01-42-T, Decision III on the Admissibility of Certain Documents," 10 September 2004, para 5; Prosecutor v Naletili} and Martinovi}, Case No: IT-98-34-T, "Decision on the Admission of Exhibits Tendered during the Rejoinder Case," 23 October 2002.
4. Decision on Prosecutorís Motion for Provisional Admission of Witness Statements under Rule 92bis, issued confidentially on 13 October 2004.
5. Motion, para 6.
6. Response, paras 2-3.
7. Response, paras 4-5.
8. Dr Wagenaar, T 7142-7144.
9. Exhibit P258.