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:
17 December 2003

PROSECUTOR

v.

SLOBODAN MILOSEVIC

_______________________________________

DECISION ON PROSECUTION MOTION FOR ADMISSION OF TRANSCRIPTS AND PORTIONS OF A STATEMENT PURSUANT TO RULES 92BIS(D) AND 89(F) FOR WITNESSES B-1068, B-1021, 1266, 1354, AND B-1695

_______________________________________

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 the Admission of Transcripts Pursuant to Rule 92bis(D) and Identified Paragraphs of the Statement of Witness B-1021 Pursuant to Rule 89(F)", filed by the Office of the Prosecutor ("Prosecution") on 12 November 2003 ("Motion"), requesting that the Trial Chamber, pursuant to Rules 92bis(D) and 89(F) of the Rules of Procedure and Evidence of the International Tribunal ("Rules"), admit into evidence (1) the transcripts and related exhibits of Witnesses B-1068, B-1266, B-1354, and B-1695 ("four witnesses"), without requiring them to appear for cross-examination, and (2) the transcript and related exhibits and portions of the statement and related exhibit of B-1021 (cumulatively "witnesses"),

CONSIDERING the Prosecution’s arguments, with respect to the four witnesses and as stated in the Motion, (1) that the transcripts and related exhibits should be admitted because they contain information that is crime-base evidence that does not go to the acts and conduct of the Accused and is not pivotal to the Prosecution case and (2) that cross-examination in the present proceeding of the four witnesses should not be required because the cross-examination of the four witnesses in the prior proceedings before the International Tribunal dealt adequately with the issues relevant to the defence of the Accused in the present proceeding,

NOTING the "Reply to Confidential Prosecution Motion for the Admission of Transcripts Pursuant to Rule 92bis(D) and Identified Paragraphs of the Statement of Witness B-1021 Pursuant to Rule 89(F) dated 12 November 2003", filed by the Amici Curiae on 25 November 2003 ("Opposition"), opposing the Motion,

CONSIDERING the position of the Amici Curiae, as set forth in the Opposition, that the witnesses should be called as viva voce witnesses and subject to cross-examination by the Accused, based on the following arguments:

  1. B-1068 – although the prior testimony does not go to the acts and conduct of the Accused, it is not cumulative as it deals with a new place where crimes were allegedly committed, and the beatings by "Seselj’s men" go to the live issue of the involvement of "Serb paramilitaries" in Bosnia and Herzegovina ("BiH");

  2. B-1266 – although the prior testimony does not go to the acts and conduct of the Accused, it is not cumulative as it deals with a new place where crimes were allegedly committed;

  3. B-1354 – although the prior testimony does not go to the acts and conduct of the Accused, it is not cumulative as it deals with a new place where crimes were allegedly committed, and the evidence goes to the live issue of the involvement of the Yugoslav People’s Army ("JNA") and "soldiers with red berets" in BiH;

  4. B-1695 – although the prior testimony does not go to the acts and conduct of the Accused, it is not cumulative as it deals with a new place where crimes were allegedly committed, and the evidence goes to the live issue of the involvement of "JNA reservists" and "Serb paramilitary units" in BiH; and

  5. B-1021 – although the prior testimony does not go to the acts and conduct of the Accused, it is not cumulative as it deals with a new place where crimes were allegedly committed, and the evidence involves live issues, namely "weapons from Serbia destined for Knin and the presence of the red berets" and the "involvement of Serbia and paramilitaries" in BiH,

HAVING ORALLY GRANTED the Prosecution’s Motion with respect to Witness B-1021 on 27 November 2003 ("Decision of 27 November 2003"), specifically the admission of Witness B-1021’s (1) transcript and related exhibits from Prosecutor v. Radoslav Brdjanin, Case No. IT-99-36-T under Rule 92bis(D) and (2) prior statement (paragraphs 11, 18-20, 23-24, 27, 55-63) to the Prosecution and an exhibit thereto under Rule 89(F), on the condition that Witness B-1021 appear for cross-examination,

NOTING that (1) the Prosecution conceded in its Motion that B-1021 should have been required to appear for cross-examination and (2) B-1021 testified before the Trial Chamber on 03 and 04 December 2003, including being cross-examined by the Accused,

NOTING that Rule 92bis(D) and (E) of the Rules provides that the Trial Chamber (1) may admit a transcript of evidence given by a witness in proceedings before the International Tribunal that goes to proof of a matter other than the acts and conduct of the Accused and (2) shall decide whether to admit the transcript in whole or in part and whether to require the witness to appear for cross-examination,

CONSIDERING that the information in the transcripts and related exhibits of the four witnesses does not go to proof of the acts and conduct of the Accused and is therefore admissible under Rule 92bis(D) of the Rules,

CONSIDERING the following, pursuant to Rule 92bis(E) of the Rules:

  1. the four witnesses were subjected to cross-examination by defence counsel in Prosecutor v. Radoslav Brdjanin, Case No. IT-99-36-T;

  2. the information in the transcripts and related exhibits of the four witnesses goes to matters that may be of critical importance to the Accused’s defence;

  3. but these matters were adequately covered in the prior cross-examinations of the four witnesses [ Judge Robinson dissenting] ,

  4. except with respect to references to the JNA in the prior testimonies and related exhibits,

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

CONSIDERING the Accused’s general opposition to the admission of evidence under Rules 92bis and 89(F) of the Rules,

PURSUANT to Rules 54, 92bis(D) and (E), and 89(F) of the Rules,

HEREBY CONFIRMS its Decision of 27 November 2003 and ORDERS as follows:

  1. The transcript and related exhibits of Witness B-1068 shall be admitted into evidence, without the witness being required to appear for cross-examination [Judge Robinson dissenting] .

  2. The transcript and related exhibits of Witness B-1266 shall be admitted into evidence, without the witness being required to appear for cross-examination [Judge Robinson dissenting] .

  3. The transcript and related exhibits of Witness B-1354 shall be admitted into evidence, without the witness being required to appear for cross-examination, provided that the portions of the transcript and related exhibits referring to the JNA are redacted [ Judge Robinson dissenting] ; otherwise, the witness must be made available for cross-examination.

  4. The transcript and related exhibits of Witness B-1695 shall be admitted into evidence, without the witness being required to appear for cross-examination, provided that the portions of the transcript and related exhibits referring to the JNA are redacted [ Judge Robinson dissenting] ; otherwise, the witness must be made available for cross-examination.

  5. Witness B-1021’s transcript and related exhibits and statement (paragraphs 11, 18-20, 23-24, 27, 55-63) and related exhibit shall be admitted into evidence, provided that the witness is made available for cross-examination.

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

align

__________
O-Gon Kwon
Judge

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

[Seal of the Tribunal]