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

Decision:
09 December 2003

PROSECUTOR

v.

SLOBODAN MILOSEVIC

________________________________

DECISION ON PROSECUTION MOTION FOR ADMISSION OF WRITTEN STATEMENTS OF DECEASED WITNESSES IVAN RASTIJA, BOSKO BRKIC, AND STANA ALBERT PURSUANT TO RULE 92bis(C)

________________________________

Office of the Prosecutor:

Mr. Geoffrey Nice
Ms. Hildegaard Uertz-Retzlaff
Mr. Dermot Groome

Amici Curiae:

Mr. Steven Kay
Mr. Branislav Tapuskovic
Prof. Timothy McCormack

The Accused:

Mr. Slobodan Milosevic

 

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 ("International Tribunal"),

BEING SEISED of a confidential "Prosecution Motion for Admission into Evidence of Written Statements by Deceased Witnesses Ivan Rastija, Bosko Brkic, and Stana Albert Pursuant to Rule 92 BIS (A) and (C)", filed by the Prosecution on 27 December 2003 ("Motion"), requesting the admission into evidence of written statements and related exhibits of three crime-base witnesses, all of whom died after having made their statements,

NOTING that Rule 92bis(C) of the Rules of Procedure and Evidence of the International Tribunal ("Rules") provides, in relevant part, that a written statement not in the form prescribed by Rule 92bis(B) of the Rules may nevertheless be admitted if made by a person who has subsequently died, provided that the Trial Chamber (1) is so satisfied on a balance of probabilities that the written statement was made by a person who has subsequently died and (2) finds from the circumstances in which the statement was made and recorded that there are satisfactory indicia of its reliability,1

NOTING that Rule 92bis(C) of the Rules does not provide a separate and self-contained method of producing evidence in written form in lieu of oral testimony, but rather merely excuses the necessary absence of the declaration required by Rule 92bis(B) for written statements to become admissible under Rule 92bis(A),2

NOTING that the Prosecution has submitted death certificates for each of the witnesses,

CONSIDERING that the "Reply to Prosecution Motion for the Admission into Evidence of Written Statements by Deceased Witnesses Ivan Rastija, Bosko Brkic and Stana Albert Pursuant to Rule 92 BIS (A) and (C) dated 27 November 2003", filed by the Amici Curiae on 02 December 2003, not opposing the Motion with respect to Mr. Rastija and Mr. Brkic, but opposing the Motion with respect to Ms. Albert because (1) Ms. Albertís statement records her date of birth as 27 December 1926, whilst her death certificate records the date of birth as 28 December 1925; (2) it is a precondition of Rule 92bis(C)(i) that the death of the witness is established by a balance of the probabilities; and (3) this discrepancy prevents the satisfaction of this precondition,

CONSIDERING that the Trial Chamber, due to the proximity of the separate dates of birth for Ms. Albert, is satisfied on a balance of probabilities that Ms. Albert died after having made her statement to the Prosecution,

CONSIDERING that the Trial Chamber is satisfied on a balance of the probabilities that Mr. Rastija and Mr. Brkic died after having made their statements to the Prosecution,

FINDING that the Prosecution has demonstrated and the Trial Chamber, on a balance of probabilities, is satisfied that each of the witnesses died after having made their statements to the Prosecution and that Rule 92bis(C)(i) is thus satisfied,

NOTING that the Prosecution argues that the statements were taken under circumstances bearing sufficient indicia of reliability and that the statements are corroborative, reconcilable with viva voce testimony already adduced, do not speak to the acts or conduct of the Accused, and involve crime-base evidence, rather than critical issues in the proceedings,

CONSIDERING that Mr. Rastija gave his statement to the Prosecution on 01 March 2002 with the assistance of Registry-approved interpreters and signed each page of the statement and an acknowledgement that it was true to the best of his recollection,

CONSIDERING that Mr. Brkic gave his statement to the Prosecution on 19-20 March 2002 with the assistance of Registry-approved interpreters and signed each page of the statement and an acknowledgement that it was true to the best of his recollection,

CONSIDERING that Ms. Albert gave her statement to the Prosecution on 13 and 17 December 1998 with the assistance of Registry-approved interpreters and signed each page and an acknowledgement that it was true to the best of her recollection,

FINDING that the circumstances surrounding the taking of the statements bear sufficient indicia of reliability under Rule 92bis(C)(ii) of the Rules,

NOTING Articles 20 and 21 of the Statute of the International Tribunal,

CONSIDERING the Accusedís general opposition to the admission of Rule 92bis evidence,

CONSIDERING that the Trial Chamber is satisfied that the information in the statements is both probative and relevant3 and does not go to the acts and conduct of the Accused,4

PURSUANT to Rule 92bis(A) and (C) of the Rules,

HEREBY GRANTS the Motion and ORDERS that the statements of Ivan Rastija, Bosko Brkic, and Stana Albert shall be admitted into evidence.

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

__________
Richard May
Presiding

Dated this ninth day of December 2003
At The Hague
The Netherlands

[Seal of the Tribunal]
1. See Prosecutor v. Stanislav Galic, Case No. IT-98-29-AR73.2, "Decision on Interlocutory Appeal Concerning Rule 92bis(C)", 07 June 2002 ("Galic Appeals Decision"), at para. 33.
2. See Galic Appeals Decision, at para. 24.
3. See Galic Appeals Decision, at para. 35.
4. See Galic Appeals Decision, at paras 24-25.