Case No.: IT-02-54-T
IN THE TRIAL CHAMBER
Before:
Judge Richard May, Presiding
Judge Patrick Robinson
Judge O-Gon Kwon
Registrar:
Mr. Hans Holthuis
Order of:
12 September 2003
PROSECUTOR
v.
SLOBODAN MILOSEVIC
_________________________________________________
DECISION ON PROSECUTION MOTIONS FOR ADMISSION OF THE STATEMENT
OF THE WITNESS BARON VAN LYNDEN PURSUANT TO RULE 92BIS (A) AND TRANSCRIPT
OF TESTIMONY IN ANOTHER TRIAL PURSUANT TO RULE 92BIS (D)
__________________________________________________
The Office of the Prosecutor
Mr. Geoffrey Nice
The Accused
Slobodan Milosevic
Amicus Curiae
Mr. Steven Kay
Mr. Branislav Tapuskovic
Mr. Timothy McCormack
THIS 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 ("the International
Tribunal"),
BEING SEISED of
- a partly confidential "Prosecution’s Motion for the Admission of Evidence
Pursuant to Rule 92bis (A)", filed by the Prosecution on 22 August
2003, in which the Prosecution (in part) requests the admission of paragraphs
1, 2, 11-41 (together with video tapes and a map referred to in the statement)
of the statement of the witness, Baron van Lynden ("witness"), pursuant to
Rule 92bis (A), the remainder of the evidence to be led live, and for
an order that the Accused’s cross-examination on the written statement be
limited to paragraphs 3 to 10; and
- a partly confidential "Prosecution’s Consolidated Motion for the Addition
of Witnesses to the Witness List and the Admission of Evidence Pursuant to
Rule 92bis (D)", filed by the Prosecution on 8 August 2003, in which
the Prosecution (in part) requests the admission of the transcript of the
testimony of the witness given in the Galic trial pursuant to Rule
92bis (D), and that the Accused not be permitted to cross-examine the
witness on this testimony except in respect of meetings with Mladic and Karadzic,
which will be led by way of viva voce evidence,
NOTING
- the response filed by the Amici Curiae on 4 September 2003, in which
it is stated that the relevant evidence to be led by way of Rule 92bis
(A) does not go to the acts and conduct of the Accused but is not yet
properly cumulative, and that the Accused should be entitled to cross-examine
the witness on all areas of his evidence, both the viva voce part and
that admitted by way of his written statement; and
- the response filed by the Amici Curiae on 2 September 2003, in which
it is stated that the evidence contained in the Galic transcript sought
to be admitted by way of
Rule 92bis (D) does not go to the acts and conduct of the Accused,
except for those parts the Prosecution will lead by way of viva voce
evidence,
NOTING that Rule 92bis provides:
(A) A Trial Chamber may admit, in whole or in part, the
evidence of a witness in the form of a written statement in lieu of oral testimony
which goes to proof of a matter other than the acts and conduct of the accused
as charged in the indictment.
[…]
(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 conducts of the accused,
NOTING Articles 20 and 21 of the Statute,
CONSIDERING the Accused’s general opposition to the admission of Rule
92bis evidence and assuming the same in regard to the present motions,
CONSIDERING that the evidence sought to be admitted by way of Rule 92bis
does not go to proof of the acts and conduct of the Accused and is therefore
admissible under Rule 92bis,
CONSIDERING that the cumulative nature of the testimony is only one
factor in favour of admitting a statement under Rule 92bis (A),
CONSIDERING that it is proper that the Accused be entitled to cross-examine
the witness on all areas of his evidence, including the evidence admitted by
way of Rule 92bis,
PURSUANT TO Rule 92bis of the Rules,
HEREBY ORDERS as follows:
- Paragraphs 1, 2, 11-41 of the statement of the witness is admitted pursuant
to Rule 92bis (A) (together with video tapes and a map referred to
in the statement);
- The remainder of the evidence of the witness contained in his statement
shall be given viva voce;
- The transcript of the testimony of the witness given in the Galic trial
is admitted pursuant to Rule 92bis (D), subject to the testimony concerning
the meetings the witness says he had with Mladic and Karadzic being led by
way of viva voce evidence,; and
- The Accused shall not be limited in his cross-examination of the witness
to the viva voce component of his evidence.
Done in English and French, the English text being authoritative.
___________________________
Richard May
Presiding
Dated this twelfth day of September 2003
At The Hague
The Netherlands
[Seal of the Tribunal]