IN THE TRIAL CHAMBER

Before:
Judge Patrick Robinson, Presiding
Judge Richard May
Judge Mohamed Fassi Fihri

Registrar:
Mr. Hans Holthuis

Order of:
23 May 2001

PROSECUTOR

v.

DUSKO SIKIRICA
DAMIR DOSEN
DRAGAN KOLUNDZIJA

_________________________________________________________

DECISION ON PROSECUTIONíS APPLICATION
TO ADMIT TRANSCRIPTS UNDER RULE 92 BIS
___________________________________________________________

The Office of the Prosecutor:

Mr. Dirk Ryneveld
Ms. Julia Baly
Mr. Daryl Mundis

Counsel for the Accused:

Mr. Veselin Londrovic and Mr. Michael Greaves, for Dusko Sikirica
Mr. Vladimir Petrovic and Mr. Goran Rodic, for Damir Dosen
Mr. Ivan Lawrence and Mr. Jovan Ostojic, for Dragan Kolundzija

 

I.  Introduction

This Trial Chamber of the International Criminal Tribunal of the former Yugoslavia ("International Tribunal") having, on 2 May 2001, given its decision orally1 in relation to a motion filed by the Prosecution seeking admission of the transcript testimony of certain witnesses pursuant to Rule 92 bis of the Rules of Procedure and Evidence ("Rules"),

HEREBY GIVES ITS REASONS.

II. Discussion

A.  The Operation of Rule 92 bis

1.  In its application, the Prosecution sought to have admitted the evidence of six witnesses who had previously testified in trials before the International Tribunal. This application was made pursuant to Rule 92 bis which provides:

(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.

2.  Rule 92 bis (D) is designed to allow the admission of evidence given by a witness in proceedings before another Chamber, without requiring that witness to give evidence again. This provision permits the admission of transcripts where the evidence goes to proof of matters other than the acts and conduct of the accused.

3.  Rule 92 bis (D) does not supplant or modify the general requirements for the admissibility of evidence set out in sub-Rules 89 (C) and (D) of the Rules, namely that a Chamber "may admit any relevant evidence which it deems to have probative value" and may exclude evidence "if its probative value is substantially outweighed by the need to ensure a fair trial". These requirements must be met in any case.

4.  The principal criterion for determining whether, pursuant to Rule 92 bis (E), a witness should be required to appear for cross-examination is the overriding obligation of a Chamber to ensure a fair trial under Articles 20, and 21, of the Statute. In that regard, among the matters for consideration are whether the transcript goes to proof of a critical element of the Prosecutionís case against the accused and whether the cross-examination of the witness in the other proceedings dealt adequately with the issues relevant to the defence in the current proceedings.

B.  Prosecutionís Application

5.  The Prosecution, pursuant to Rule 92 bis of the Rules, sought the admission of the transcripts of the evidence of six witnesses who had previously testified in trials before the International Tribunal; Edward Vulliamy, Osman Selak, Vasif Gutic, Emsud Garibovic, Dr. Hanne Greve and Mevludin Sejmenovic. The Trial Chamber will address each of these in turn:

1.  Testimony of Edward Vulliamy

6.  Edward Vulliamy testified before the International Tribunal on three previous occasions, in the Tadic, Blaskic and Kovacevic trials. The Prosecution indicated that it would seek to rely solely on his evidence from the Kovacevic trial.

(a)  Arguments of the parties

7.  The Prosecution argued that Mr. Vulliamyís evidence does not implicate the acts or conduct of any of the accused and is, therefore, admissible under Rule 92 bis (D). In the Prosecutionís submission, the evidence is relevant to the charges against the accused, as it demonstrates the interrelationship between the three camps, Keraterm, Trnopolje and Omarska and provides an eyewitness account of conditions at the two latter camps.

8.  The Defence counsel for Sikirica requested an opportunity to cross-examine Mr. Vulliamy on the grounds that his client is charged, not only with his individual acts and the acts of his subordinates in Keraterm, but also with complicity to commit genocide throughout the wider Prijedor area, including in the Omarska and Trnopolje camps. He submitted that elements of Mr. Vulliamyís testimony touch upon the intent of the Serb authorities in Prijedor in relation to the non-Serb population, and that the Prosecution would rely on this evidence to fix the accused Sikirica with knowledge of genocidal acts occurring in the Trnopolje and Omarska camps. Moreover, Mr. Vulliamy testified as to the conditions of detention at the Trnopolje and Omarska camps, which, Mr. Greaves argued, may go to proof of genocide; in his submission, the accused should be entitled to cross-examine the witness as to whether genocide did, in fact, occur in the Prijedor municipality.

9.  Counsel for Dosen submitted that Mr. Vulliamyís evidence contained several conclusions based upon his observations in the Prijedor municipality and he requested an opportunity to cross-examine the witness as to the facts from which those conclusions were drawn.

10.  Counsel for Kolundzija contended that Mr. Vulliamyís observations were informed by bias and that the question of the credibility of a Prosecution witness could not be adequately addressed by calling evidence in the Defence case to contradict the Prosecutionís evidence. Moreover, the accused Kolundzija claimed to have new evidence he wished to put to the witness in cross-examination.

(b)  The Chamberís ruling

11.  The question of the accused Sikiricaís intent in respect of the genocide charge, and whether the events that occurred in the Prijedor municipality may be appropriately characterised as genocide, are implicated by Mr. Vulliamyís testimony in the Kovacevic case. Accordingly, his evidence may constitute a means of proof of an element of the genocide charge against the accused on this limited issue, since the evidence relates to the alleged complicity of the accused in genocide. In such circumstances, the accused must be given an opportunity to cross-examine the witness. Accordingly, the Trial Chamber ruled as admissible the transcript of Mr. Vulliamyís previous testimony in the Kovacevic trial and held that he should be recalled to permit counsel for the accused Sikirica to cross-examine the witness as to the facts going to proof of genocide and the requisite intent. The remaining arguments of counsel do not give rise to any need for further cross-examination. Issues of credibility and alleged bias are matters which were explored in cross-examination in Kovacevic and the Trial Chamber is in a position to form its own conclusions upon them from the transcript.

2.  Testimony of Osman Selak

(a) Arguments of the parties

12.  In the Prosecutionís submission, Colonel Selakís evidence was of a background nature and did not relate to the acts or conduct of any of the three accused. It is therefore appropriate for admission under Rule 92 bis.

13.  Counsel for the accused Sikirica argued that, while the testimony did not relate to acts or conduct of his client, the matters addressed by Colonel Selakís testimony were in dispute and his account was very one-sided. Similarly, counsel for Dosen contended that Colonel Selakís testimony was very one-sided and that the Defence should be given an opportunity to put other viewpoints to the witness. Both Defence counsel requested an opportunity to cross-examine this witness.

14.  Counsel for Kolundzija argued that the cross-examination of this witness in the Tadic case was not helpful, since the defence counsel in that case had no opportunity to visit Prijedor. He requested that he be given an opportunity to cross-examine the witness in relation to certain matters, in particular, the attack on Kozarac.

15.  The Prosecution responded that the cross-examination in the previous case covered many of the areas raised by Defence counsel.

(b)  The Chamberís ruling

16.  Colonel Selakís testimony, while relevant to this case, does not bear directly upon the case against any of the accused. His evidence is merely helpful background material and was adequately covered in cross-examination. Accordingly, the transcript of his evidence from the Tadic case was admitted and no cross-examination was allowed.

3.  Testimony of Vasif Gutic

(a)  Arguments of the parties

17.  The Prosecution sought to admit the evidence of Mr. Gutic, a medical practitioner, from the Tadic and Kvocka trials, primarily for his testimony in relation to the Trnopolje camp. As a detainee in the camp, Mr. Gutic attempted to treat other detainees who had been mistreated or raped in the camp. He was able to testify as to the nature of their injuries. He also witnessed the arrival at the Trnopolje camp of detainees from the Omarska and Keraterm camps.

18.  Counsel for Sikirica submitted that Mr. Guticís evidence may serve as proof of the genocide charge against his client and as such, the Defence should be given an opportunity to cross-examine the witness. In particular, Mr. Greaves submitted, the Prosecution will attempt to show that rape was one of the means by which genocide was committed. He argued that the prior cross-examination did not deal sufficiently with the hearsay nature of Mr. Guticís evidence about rape committed at the Trnopolje camp. Mr. Greaves further argued that the witness provided a one-sided account of the attack on Kozarac. In his evidence, Mr. Gutic made reference to, but did not elaborate upon, the system of reporting offences committed by guards at the camp, an issue that was, in Mr. Greavesís submission, relevant to the case against his client. Mr. Greaves also claimed to have identified new evidence, which contradicted Mr. Guticís testimony as to the conditions at the Trnopolje camp.

19.  Counsel for Dosen contended that Mr. Guticís testimony as to the interrelationship between the three camps (Trnopolje, Omarska and Keraterm) bore directly upon the question whether there was a body or group organising those camps, possibly pursuant to a plan, and the extent to which the alleged acts of persecution were committed as part of a widespread and systematic attack against the non-Serb population of Prijedor. Mr. Petrovic argued that the prior cross-examination of this witness did not adequately address these issues.

20.  Counsel for Kolundzija noted the limitations in the prior cross-examination of this witness in both the Tadic and the Kvocka trials.

(b)  The Chamberís ruling

21.  Mr. Guticís evidence about the commission of rapes at the Trnopolje camp might be capable of going towards proof of the crime of genocide with which Mr. Sikirica is charged. As the prior cross-examination did not challenge Mr. Guticís hearsay evidence in relation to the commission of the rapes, the accused Sikirica should be given an opportunity to cross-examine the witness on this limited issue. Further, counsel for Sikirica should also be allowed to cross-examine Mr. Gutic in relation to his testimony about the conditions at Trnopolje camp, as this evidence may similarly constitute a means of proof of the crime of genocide. Accordingly, the Chamber admitted the transcripts of Mr. Guticís evidence from the Tadic and Kvocka trials, subject to cross-examination on behalf of the accused Sikirica in relation to those matters. The other arguments of counsel deal with issues already covered sufficiently in the earlier cross-examination. The fact that a witnessís account is alleged to be one-sided is a matter which can be dealt with by comments in final submissions or the calling of evidence. The way to deal with new evidence, alleged to contradict the witnessís evidence, is to call the new evidence.

4.  Testimony of Emsud Garibovic

(a)  Arguments of the Parties

22.  In the Prosecutionís submission, since Mr. Garibovicís testimony deals primarily with the massacre at Mount Vlasic, and does not bear directly upon the acts or conduct of any of the accused, it is admissible under Rule 92 bis.

23.  Counsel for Sikirica argued that this witness provided a one-sided account of the attack on Kozarac, and further that his evidence relating to the massacre at Mount Vlasic fell outside the scope of the charges in the Indictment. He contended that this evidence should be excluded under Rule 92 bis on the grounds that it was not relevant. Counsel for Dosen concurred with the arguments advanced by counsel for Sikirica. The Prosecution responded that the International Tribunal has subject matter jurisdiction throughout the territory of the former Yugoslavia and that the Mount Vlasic massacre is related to the Indictment, since the individuals alleged to have been massacred were from Prijedor.

24.  Counsel for Kolundzija submitted that the evidence of this witness did not bear upon the charges against his client and that the Trial Chamber should only admit it on the clear understanding that it could not be used as evidence to support those charges.

(b)  The Chamberís ruling

25.  The Defence challenged the admission of this evidence under Rule 92 bis primarily on the grounds of relevance. However, as the Prosecution argued, while the massacre may have occurred in Travnik, the victims of the massacre belonged to the Prijedor population; accordingly, the evidence is relevant to this case. Since no objection was raised as to the evidence of Mr. Garibovic, either on the ground that it related to a central issue in the case, or on the adequacy of the previous cross-examination, the transcript of his evidence from the Kvocka trial was admitted without cross-examination.

5.  Testimony of Dr. Hanne Greve

(a) Arguments of the Parties

26.  The Prosecution submitted that Dr. Greveís evidence provided an overview as to the context in which the events alleged in the Indictment occurred. It observed that in the Kovacevic case, the Trial Chamber had determined that Dr. Greve should be treated as an expert on historical matters.

27.  Counsel for Sikirica expressed concern about the methodology used by Dr. Greve in her report, and requested an opportunity to cross-examine her on this basis. In addition, Mr. Greaves submitted, the documents upon which Dr. Greveís conclusions are, in part, based, have been supplemented by new material; he asked for the opportunity to put these new documents to the witness.

28.  Counsel for Dosen similarly requested an opportunity to cross-examine this witness as to the methodology of her work. Mr. Rodic stated in particular that many of the witness statements upon which Dr. Greve relied were taken by local authorities in various European States and he claimed that the accuracy of those statements had later been challenged. He further sought to question Dr. Greveís reliance, for the purposes of her report, on the media in the former Yugoslavia.

29.  Counsel for Kolundzija requested the opportunity to cross-examine Dr. Greve and questioned the value of her opinion, in light of the fact that she had not visited Prijedor during the relevant period.

(b)  The Chamberís ruling

30.  Dr. Greveís evidence provides a helpful overview of events in Prijedor before and during the period relevant to the Indictment. The Presiding Judge in the Kovacevic case likened her evidence to that of an expert historian in this way:

It is our view that the witness should be treated as an expert in this sense, an expert who has made a study of material and is therefore qualified to give evidence about it. The position being analogous to that of the historian.2

This Chamber concurs in that opinion. The Defence sought to challenge Dr. Greveís evidence primarily on the basis of the methodology used in her report. The Trial Chamber observes that her testimony in both the Tadic and Kovacevic trials was subject to extensive cross-examination, much of it relating to the question of methodology. There is no reason why Dr. Greve should be recalled to be cross-examined for a third time as to this matter. If the Defence seeks to challenge Dr. Greveís conclusions based upon new information, such information may be tendered into evidence, and will be taken into account by the Trial Chamber. Accordingly, the testimony of Dr. Greve from both the Tadic and the Kovacevic trials was admitted, without cross-examination.

6.  Testimony of Mevludin Sejmenovic

(a)  Arguments of the parties

31.  In the Prosecutionís submission, Mr. Sejmenovicís testimony was relevant to background matters, including the political context in which the alleged Serb take-over in Prijedor occurred. A prominent Muslim politician in the Prijedor area, he witnessed the attack on Kozarac and other alleged cleansing operations in the Prijedor area and was subsequently detained in the Omarska camp. Mr. Sejmenovic testified on three previous occasions before the Tribunal and was subject to extensive cross-examination. His testimony did not relate to the acts or conduct of any of the accused. In the Prosecutionís submission, the transcripts should be admitted pursuant to Rule 92 bis without recalling the witness for cross-examination.

32.  Counsel for Sikirica argued that this witness provided a very one-sided account of events in the Trnopolje camp. He further submitted that new information, including lists of detainees who had been released and receipts for property and food received in the Trnopolje camp, paints a different and much more favourable picture of life in the camp. In the Defenceís submission, this witness could usefully be questioned about the military preparedness of the Muslims in the Prijedor area prior to the Serb take-over.

33.  Counsel for Dosen contended that, since the evidence of this witness related to issues of critical importance to this case (in particular he testifies as to his observations of the condition of detainees in the Keraterm camp) this testimony was, arguably, not even admissible under Rule 92 bis (D). Certainly, it was argued, the Defence should have an opportunity to cross-examine this witness in relation to the establishment of centres in Prijedor, the witnessís role, as a prominent Muslim politician, in the Serb take-over and the witnessís knowledge of a Serb who is alleged to have participated in the highest levels of the SDA.

34.  Counsel for Kolundzija requested an opportunity to cross-examine the witness on the basis of information not previously available.

(b)  The Chamberís ruling

35.  In the Trial Chamberís opinion, the evidence of this witness, while not related to the acts or conduct of any of the three accused, bears upon this case in such a significant and direct way that all three accused should be given an opportunity to cross-examine the witness. Mr. Sejmenovic was a senior Muslim politician in Prijedor during the period relevant to the Indictment and he was an extensive fact witness, particularly in relation to conditions at the Trnopolje camp. Accordingly, the Chamber ruled as admissible the transcript of Mr. Sejmenovicís testimony in the Tadic and Kovacevic trials, and required that the witness appear for cross-examination.

 

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

 

___________________________
Patrick Robinson Presiding

 

Dated this twenty-third day of May 2001
At The Hague
The Netherlands

 

[Seal of the Tribunal]


1 - Transcript of proceedings in Prosecutor v. Dusko Sikirica et al., Case No. IT-95-8-T, p. 2639.

2 - Transcript from the hearings in Case No. IT-97-24, The Prosecutor v. Milan Kovacevic, dated 6 July 1998 (T.75).