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:
12 January 2004

PROSECUTOR

v.

SLOBODAN MILOSEVIC

________________________________________

DECISION ON CONFIDENTIAL PROSECUTION MOTION FOR ADMISSION OF A TRANSCRIPT AND STATEMENT PURSUANT TO RULES 92BIS(D) AND 89(F) FOR WITNESS B-1805

________________________________________

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 the Statement of Witness B-1805 Pursuant to Rule 89(F)", filed by the Office of the Prosecutor ("Prosecution") on 19 December 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 transcript and related exhibits of Witnesses B-1805 ("transcript"), with limited cross-examination by the Accused, and (2) the statement of the witness made to the Prosecution on 15 December 2003 ("statement"),

CONSIDERING the Prosecutionís arguments that the transcript should be admitted into evidence because it contains information that (1) relates to crime base evidence, and not the acts and conduct of the Accused and (2) is not so pivotal to the Prosecution case or so proximate to the Accused that the Trial Chamber should consider exercising its discretion to exclude the transcript,

CONSIDERING the Prosecutionís arguments that it is in the interests of justice to admit the statement into evidence because it contains information that relates to crime base evidence, does not relate to the acts and conduct of the Accused, and was not addressed in the prior testimony Witness B-1805 ("witness"),

CONSIDERING that the Prosecution concedes that the witness should be required to attend for cross-examination, provided that the Trial Chamber impose suitable time limits based upon the witnessí cross-examination in the prior proceeding, which was full, rigorous, and effective and carried out by defence counsel for an accused with a similar interest to the Accused in the present proceedings,

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 transcript (except for references to the JNA) does not go to proof of the acts and conduct of the Accused and is therefore admissible under Rule 92bis(D) of the Rules, provided that references to the JNA are redacted,

CONSIDERING that, with respect to Rule 92bis(E) of the Rules, the witness was subjected to cross-examination by defence counsel in the prior proceeding, but additional cross-examination is appropriate in the present proceeding,

NOTING that (1) Rule 89(F) of the Rules provides that a Chamber may receive the evidence of a witness orally or, where the interests of justice allow, in written form and (2) the jurisprudence of the International Tribunal allows for the admission of a written witness statement under Rule 89(F) of the Rules, provided that the witness is present in court, available for cross-examination and any questioning by the judges, and attests that the statement accurately reflects his or her declaration and what he or she would say if examined,1

CONSIDERING that the determination of the "interests of justice" under Rule 89(F) of the Rules must be made by the Trial Chamber in relation to each individual witness, in light of not only the surrounding circumstances, but also the evidence to be given by the witness,2

CONSIDERING that it is not in the interests of justice to admit the statement under Rule 89(F) of the Rules,

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

CONSIDERING the Accusedís 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 ORDERS as follows:

  1. The transcript and related exhibits shall be admitted into evidence, provided that the witness appears for cross-examination and the portions of the transcript and related exhibits referring to the JNA are redacted.

  2. Cross-examination by the Accused and the Amici Curiae shall be limited to two hours in total.

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

___________
Richard May
Presiding

Dated this twelfth day of January 2004
At The Hague
The Netherlands

[Seal of the Tribunal]


1. Prosecutor v. Slobodan Milosevic, Case No. IT-02-54-AR73.4, "Decision on Interlocutory Appeal on the Admissibility of Evidence-in-Chief in the Form of Written Statements", 30 September 2003, at page 11.
2. Ibid, at para. 21.