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:
4 November 2003
PROSECUTOR
v.
SLOBODAN MILOSEVIC
PUBLIC VERSION
_________________________________________________
DISSENTING OPINION OF JUDGE ROBINSON TO
DECISION DATED 31 OCTOBER 2003 ON PROSECUTION MOTION FOR
THE ADMISSION OF WITNESS STATEMENTS RELEVANT TO EVENTS IN GACKO, VISEGRAD, ZVORNIK
AND SANSKI MOST MUNICIPALITIES IN LIEU OF VIVA VOCE TESTIMONY PURSUANT TO RULES
54 and 92BIS
__________________________________________________
The Office of the Prosecutor
Mr. Geoffrey Nice
The Accused
Slobodan Milosevic
Amicus Curiae
Mr. Steven Kay
Mr. Branislav Tapuskovic
Mr. Timothy McCormack
DISSENTING OPINION OF JUDGE PATRICK ROBINSON
- In this Opinion, I explain why, in response to the Prosecution Motion for
the admission of the statement of witness B-1756 without cross-examination,
the Trial Chamber should exercise its discretion under Rule 92 bis
(E) in favour of cross-examination.
- The Accused is charged in Count 3 of the Indictment with Persecution committed
in a number of territories, including Visegrad. Paragraph 35 (e) alleges sexual
violence, a form of cruel and inhumane treatment, as one of the means by which
this persecution was committed.
- In the past, the Accused has maintained that the rape of women was not committed
by persons linked to him, but by ordinary criminals.1
Thus he has cross-examined victims with a view to showing that rapes were
not committed by JNA soldiers.2
- If his case is accepted by the Chamber, the Prosecution would not have substantiated
its allegation in respect of sexual violence for those specific instances
of rape, and thus, in my view, there might be a chance of a submission under
Rule 98 bis succeeding on the basis that the evidence is insufficient
to support a conviction. I make it plain that this view is confined to the
allegation of sexual violence in paragraph 35 (e), since that paragraph contains
allegations of cruel and inhumane treatment committed by other means; moreover,
there are allegations of sexual violence committed in territories other than
Višegrad.
- In the initial part of her statement, the witness speaks of JNA soldiers
in Višegrad in March and April 1992, and being told that they had to leave,
and that Serbian paramilitaries were planning to come to Višegrad. She later
saw some men dressed in camouflage uniforms and was told that they were paramilitary
soldiers.
- In the evening, the witness and the other women were taken by three soldiers
from their apartment to another building on their street. She was able to
describe two of the three soldiers clearly. These two were younger than the
third. One wore a camouflage jacket, a black T-shirt and blue jeans. The other
wore a JNA army T-shirt and a cap. All three spoke with a Serbian accent.
The soldier with the cap took the other woman out of the room. She later heard
the other woman scream. The older soldier left the room. The younger of the
two soldiers then jumped on her and raped her. When the other woman returned
they were both raped repeatedly by the soldiers. In the morning, they went
home. In the evening, two other soldiers came; they spoke with a Serbian accent.
She was raped that night by one of the soldiers and the other woman was forced
to have sexual contact with the other soldier. On another occasion, a day
later, the other woman and herself were again raped by two soldiers, one of
whom wore a black cap with an unknown insignia on it; she believes there was
a kind of lion or tiger drawn on it in gold.
- I do not know whether the Accused will adopt the same approach to this rape
victim as he has taken in the past, and it would not be right for the Chamber
to make a presumption as to his position. However, the point is that if he
wishes to take that approach, he must be given the opportunity of challenging
the witness as to the identity of her assailants so as to show that the men
who raped the other woman and herself were not persons linked to him in any
way, but ordinary criminals. It is clear that the Prosecution will allege
that the men described by the witness as soldiers, one of whom wore a JNA
T-shirt and all of whom spoke with a Serbian accent, were either members of
the JNA, or members of a paramilitary group with sufficient links to the Accused
to fix him with liability under Article 7 (1) or 7 (3) of the Statute. If
that is not the Prosecution case, the evidence has no value.
- The links between the JNA and the Accused as well as those between the paramilitaries
and the Accused are both matters of debate between the parties. Generally,
the Prosecution case is that there are such links. On the other hand, the
Defence case is that there are no such links. Whether such links exist is
a mixed question of law and fact that the Trial Chamber will have to determine.
- In my view, the statement does not establish clearly whether the men who
carried out the rapes belonged either to the JNA or the paramilitaries. To
the extent that they might have been members of the JNA, the Accused should
be allowed to cross-examine to show that they were not. To the extent that
they might have been members of a paramilitary group, the Accused should be
allowed to cross-examine with a view to so confirming; in which event, if
the Chamber found that there was no connection between the Accused and the
paramilitaries, the Prosecution charge in respect of this incident would not
be substantiated. Cross-examination might also show that the men were not
members of the JNA or a paramilitary group, or at any rate, that the Accused
had no connection with them sufficient to fix him with liability under Article
7 (1) or 7 (3) of the Statute.
- The Accused could be building a case for the dismissal of the charge of
sexual violence, a form of cruel and inhumane treatment, under paragraph 35
(e) on the basis of a submission under Rule 98 bis. Not allowing him
to cross examine the witness, the maker of the statement, will weaken that
submission. At the same time, it will allow the Prosecution to submit either
on a Rule 98 bis submission or at the end of the case, that the statement
is an item of evidence that substantiates the charge of sexual violence, since
it was not challenged by the Accused. There is no warrant for applying Rule
92 bis in such a way that it prejudices a Defence motion for acquittal
under Rule 98 bis on the basis that the evidence is insufficient to
sustain a conviction on a specific charge. Moreover, depriving the Accused
of the right to cross-examine the witness constitutes, in the circumstances
of this case, a breach of his fair trial right, guaranteed by Article 21 (4)
(e) of the Statute, to put his case to the Prosecution witnesses.
- There is, in my view, an issue as to the identity and status of the men
who raped the witness and the other woman that needs to be tried, tested and
determined in the old fashioned way – by cross-examination.
- Another reason for cross-examination is that, as far as I have been able
to gather, this witness provides the sole evidence of this incident of sexual
violence. The point is not that her evidence has to be corroborated. Rule
96 makes it clear that corroboration is not required. But it must be unacceptable
that the Prosecution case in relation to this incident could be substantiated
on the basis of a single piece of evidence that has not been subject to cross-examination.
- The jurisprudence of the European Court of Human Rights is that it is not
compatible with the rights of the defence for a conviction to be based solely
or to a decisive extent on a statement when there was no opportunity to challenge
it.3 Concededly, the charge of persecution in
Count 3 has many more constituent elements than this single incident of rape
in paragraph 35(e). Thus, the Accused could be convicted of persecution even
if the Trial Chamber determines that the Prosecution case in respect of this
incident has not been substantiated. However, in my view, it would be unsafe
for the Trial Chamber to determine that the Prosecution case in respect of
this segregated incident of sexual violence has been substantiated on the
sole basis of the statement of this witness, since the Accused has not had
the opportunity to cross-examine its maker, B-1756. In other words, the evidence
in the statement relating to this incident should not contribute to a finding
of guilt of cruel and inhumane treatment under paragraph 35(e), and consequentially,
of persecution under Count 3 of the Indictment.
- This Motion may be compared with the Prosecution application for the admission
of transcripts of B-1542 and B-1543 in the Foča Decision.4
In that case, I dissented because I was of the view that the Accused was entitled
to cross-examine witnesses B-1542 and B-1543, who were also rape victims.
Note, however, that that case is markedly different from this one in that
there had been at least cross-examination of B-1542 and B-1543 in a previous
trial,5 which allowed the Prosecution to argue
that cross-examination was adequate for the purposes of this trial – a position
with which I disagreed.6 Thus the Trial Chamber
had the benefit of the previous cross-examination of B-1542 and B-1543 – an
advantage that it does not have in respect of B-1756.
Done in English and French, the English text being authoritative.
_________________
Patrick Robinson
Dated this fourth day of November 2003
At The Hague
The Netherlands
[Seal of the Tribunal]
1. In relation to witnesses B-1542 and B-1543,
T. 19616.
2. See, e.g., witness B-1405, Transcript, pp 18221-18222.
3. See, e.g., Kostovski v. The Netherlands, Judgment of 20 Nov.
1989, Series A no 166, para. 44; Unterpertinger v. Austria, Judgment of
24 Nov. 1986, Series A no 110, para. 33; Lüdi v. Switzerland, Judgment
of 15 June 1992, Series A no 238, para. 47; Saïdi v. France, Judgment
of See, e.g., Kostovski v. The Netherlands, Judgment of 20 Nov.
1989, Series A no 166, para. 44; Unterpertinger v. Austria, Judgment of
24 Nov. 1986, Series A no 110, para. 33; Lüdi v. Switzerland, Judgment
of 15 June 1992, Series A no 238, para. 47; Saïdi v. France, Judgment
of 20 Sept. 1993, Series A no 261-C, para. 44, Van Mechelen v. The Netherlands,
Judgment of 23 Apr 1997, Reports 1997-III, para. 63.
4. Prosecutor v Milosevic, Decision on Prosecution Motion for the Admission
of Transcripts in Lieu of Viva Voce Testimony pursuant to Rule 92bis (D)
– Foca Transcripts, Case No. IT-02-54-T, 30 June 2003 ("Foca Decision")
5. Prosecutor v. Kunarac et. al., Case No. IT-96-23-T and IT-96-23/1-T.
6. See Foca Decision, Dissenting Opinion of Judge Patrick Robinson, pp
19-39.