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:
7 October 2003

PROSECUTOR

v.

SLOBODAN MILOSEVIC

_________________________________________________

DECISION ON PROSECUTION MOTIONS FOR THE ADMISSION OF EVIDENCE PURSUANT TO RULE 92BIS

__________________________________________________

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 the following motions filed by the Office of the Prosecutor ("Prosecution"):

  1. Partially Confidential Prosecutionís Consolidated Motion for the Addition of Witnesses to the Witness List and the Admission of Evidence Pursuant to Rule 92bis(D), filed on 8 August 2003 ("Consolidated Motion"), seeking, inter alia, the admission of the transcripts of testimony, given in the Galic Trial, of Carl Harding, witness B-1345, Milan Mandilovic, John Hamill, Jeremy Hermer, and Eldar Hafizovic without cross-examination, and conceding that the Galic Trialís transcripts of testimony of Francis Roy Thomas, David Fraser, and Mirsad Kucanin, should be admitted with cross-examination,
  2. Partially Confidential Prosecutionís Motion for the Admission of Evidence Pursuant to Rule 92bis(A), filed on 22 August 2003 ("Motion"), seeking the admission of the statement of Joseph Rousseau without cross-examination, and conceding that the statements of Mehmed Music, B-1787 and B-1788 should be admitted with cross-examination,

NOTING the following responses filed by the Amici Curiae ("Amici"):

  1. Confidential Amici Curiae Reply to Prosecution Consolidated Motion for the Addition of Witnesses to the Witness List and the Admission of Evidence Pursuant to Rule 92bis(D) Dated 8 August 2003, filed on 2 September 2003 ("Amici Reply to Consolidated Motion"), submitting, inter alia, that the transcripts of testimony of Francis Roy Thomas, David Fraser, Mirsad Kucanin, witness B-1345 and Jeremy Hermer should be admitted with cross-examination,
  2. Confidential Amici Curiae Reply to Partially Confidential Prosecutionís Motion for the Admission of Evidence Pursuant to Rule 92bis(A) Dated 22 August 2003, filed on 4 September 2003, submitting, inter alia, that the witness statements of Joseph Rousseau should be admitted with cross-examination, and that Mehmed Music, B-1787 and B-1788 should be heard viva voce;

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 Accusedís general opposition to the admission of Rule 92bis evidence and assuming the same in regard to the present motions,

CONSIDERING that the evidence presented in the motions does not go to proof of the acts and conduct of the Accused and chiefly crime base, 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 the Rule 92bis(D) evidence relating to Mirsad Kucanin, witness B-1345, Jeremy Hermer, Francis Roy Thomas, and David Fraser does go to matters which may be of critical importance to the defence of the Accused and that some of the earlier cross-examinations did not adequately cover those matters,

PURSUANT TO Rule 92bis of the Rules,

HEREBY ORDERS as follows:

  1. The Consolidated Motion: the transcripts of testimony and accompanying exhibits of Mirsad Kucanin, witness B-1345, Jeremy Hermer, Francis Roy Thomas, and David Fraser, shall be admitted, subject to the witnesses being available for cross-examination by the Accused, and the transcripts of testimony and accompanying exhibits of Carl Harding, Milan Mandilovic, John Hamill, and Eldar Hafizovic shall be admitted without cross-examination, Judge Robinson dissenting to the decision on Carl Harding, Milan Mandilovic, and Eldar Hafizovic;
  2. The Motion: the statements of Mehmed Music, B-1787, B-1788 and Joseph Rousseau, except for paragraphs 5-7 which will be heard viva voce, shall be admitted subject to the witnesses being available for cross-examination;
  3. The Accused shall not be limited in his cross-examination of the above witnesses.

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

_______________
Richard May
Presiding

Dated this seventh day of October 2003
At The Hague
The Netherlands

[Seal of the Tribunal]