Case No. IT-02-54-T

IN THE TRIAL CHAMBER

Before:
Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy

Registrar:
Mr. Hans Holthuis

Decision:
15 February 2005

PROSECUTOR

v.

SLOBODAN MILOSEVIC

_______________________________________

DECISION AND ORDER ON ADMISSION OF EXHIBITS MARKED FOR IDENTIFICATION DURING PROSECUTION CASE-IN-CHIEF

_______________________________________

Office of the Prosecutor:

Ms. Carla Del Ponte
Mr. Geoffrey Nice

The Accused:

Mr. Slobodan Milosevic

Court Assigned Counsel:

Mr. Steven Kay, QC
Ms. Gillian Higgins

Amicus Curiae:

Prof. 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 ("International Tribunal"),

Proprio motu, and

HAVING MARKED FOR IDENTIFICATION certain exhibits that were tendered as evidence by the Prosecution during its case-in-chief,

NOTING the Trial Chamber’s "Order Concerning Exhibits Marked for Identification During the Prosecution Case", issued 20 July 2004, wherein the Trial Chamber ordered that (1) the Prosecution shall, within two weeks from the date of that Order, file its submissions on whether or not exhibits marked for identification during its case-in-chief should be admitted into evidence, and inform the Trial Chamber of any duplicate exhibits that may have been tendered under more than one exhibit number; and (2) the Accused and Amici Curiae shall file a response, if any, within two weeks from the date of the Prosecution’s filing,

NOTING the following:

  1. partially confidential "Prosecution Submissions in Response to the Trial Chamber’s 20 July 2004 ‘Order Concerning Exhibits Marked for Identification During the Prosecution Case’", filed 3 August 2004, making provisional submissions, setting out reasons why final submissions could not be submitted by the date set by the Order of 20 July 2004, and stating that final submissions would be filed the next day on 4 August 2004; and

  2. partially confidential "Supplement to ‘Prosecution Submissions in Response to the Trial Chambers 20 July 2004 "Order Concerning Exhibits Marked for Identification During the Prosecution Case"", filed 4 August 2004, setting forth its final submissions regarding the reasons why certain exhibits marked for identification during its case-in-chief should be admitted into evidence (collectively referred to as "Prosecution Submission"),

NOTING that Rule 89(C) of the Rules of Procedure and Evidence of the International Tribunal ("Rules") provides that the Trial Chamber may admit any relevant evidence that it deems to have probative value and that Rule 89(E) of the Rules provides that the Trial Chamber may request verification of the authenticity of evidence obtained out of court,

CONSIDERING that (1) the Prosecution has demonstrated that some of the exhibits are reliable and relevant to the proceedings, but has failed to so demonstrate with other exhibits; and (2) only exhibits for which the Prosecution has demonstrated relevance and sufficient indicia of reliability will be admitted into evidence,

CONSIDERING that (1) some of the exhibits were tendered as evidence under more than one exhibit number and then subsequently admitted into evidence under one of those numbers; (2) there are thus certain exhibits marked for identification that are duplicative of exhibits already admitted into evidence; and (3) such exhibits should not be admitted into evidence,

CONSIDERING that some of the exhibits marked for identification are not exhibits, but rather references to other exhibits and thus not appropriate for admission,

CONSIDERING in particular the following:

  1. exhibit 353, tab 2 is a duplicate of exhibit 613, tab 18, which was already denied admission via the Trial Chamber’s "Final Decision on the Admissibility of Intercepted Communications", issued 14 June 2004, and should be denied admission into evidence;
  2. exhibit 347, tab 5, although incorrectly designated as being admitted into evidence, when in fact it should have been marked for identification,(1) was used during the testimony of Witness Slobodan Lazarevic(2) and should now be formally admitted into evidence;
  3. exhibit 347, tab 6, although incorrectly designated as being marked for identification, was used during the testimony of Witness C-020(3) and should be admitted into evidence;
  4. exhibit 404, tab 8 is not a document for which the Prosecution requests admission and should be denied admission into evidence;
  5. exhibit 506 is a videotape, only a portion of which was played in-court;(4) and only that portion should be admitted into evidence;
  6. exhibit 538 is only partially translated;
  7. exhibit 551, tab 23 is a duplicate of exhibit 613, tab 227, which has already been admitted into evidence via the Trial Chamber’s "Final Decision on the Admissibility of Intercepted Communications", issued 14 June 2004, and should be denied admission into evidence;(5)
  8. exhibit 570, tabs 1-7, 9-10, and 14-15 are duplicates of exhibit 596, tab 2 and should be denied admission into evidence; and
  9. exhibit 589, tab 2 is a videotape that was marked for identification in connection with the testimony of Witness Milan Mandilovic in Prosecutor v. Galic, Case No. IT-98-29-T(6) and should not be admitted into evidence,

NOTING that the Accused and Amici Curiae did not respond to the Prosecution Submission,

PURSUANT to Rules 54, 89, and 127 of the Rules,

HEREBY ORDERS as follows:

  1. The following exhibits, which are marked for identification, shall be admitted into evidence: exhibits 286; 326, tab 9; 330, tabs 2-3, 6-9, 11-13, 16, 18, 21-22, 28, 35, 39, 40-42, 45-46, 49, 51-52, 55, 58-61, 63-65, 67-69; 347, tabs 5-6; 353, tab 1; 360; 434, tab 4; 551, tab 1; and 601.

  2. The following exhibits, which are marked for identification, shall not be admitted into evidence and shall be removed from the record: exhibits 327, tab 1; 330, tabs 1, 4-5, 10, 14-15, 17, 19, 20, 23-27, 29-33, 36, 38, 43-44, 47-48, 50, 53-54, 56-57, 62, 66, 70; 342, tab 13; 353, tabs 1A, 2-50; 357; 387, tabs 22-25; 404, tab 8; 425, tab 5; 432, tabs 5-6; 443, tab 3; 461; 551, tabs 2-27, 562, tabs 10-11; 568, tab 8; 570, tabs 1-7, 9-10, 14-15; 572, tabs 1-7; 589, tab 2; and 596, tabs 17-18.

  3. Those exhibits that were marked for identification on a confidential basis shall retain their confidential status.

  4. Exhibit 506, which is marked for identification, shall not be admitted into evidence and shall be removed from the record. The Prosecution shall produce within seven days of the date of this Order only the portion of exhibit 506 that was shown during court, at which time it shall be deemed admitted into evidence as exhibit 506.
  5. Exhibit 538, which is marked for identification, shall not be admitted into evidence and shall be removed from the record. The Prosecution shall produce within three months of the date of this Order a fully translated version of exhibit 538, at which time the Trial Chamber will consider its admission into evidence.

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

_____________
Judge Robinson
Presiding

Dated this fifteenth day of February 2005
At The Hague
The Netherlands

[Seal of the Tribunal]


1. 1. T. 12201 (22 October 2002).
2. T. 12428-12430 (29 October 2002).
3. T. 12205 (22 October 2002).
4. T. 24642 (22 July 2003).
5. Another duplicate of exhibit 551, tab 23 appears as exhibit 432, tab 6 (marked for identification), which the Trial Chamber has decided not to admit into evidence because it is a duplicate of exhibit 613, tab 227, which has already been admitted into evidence.
6. See Prosecutor v. Slobodan Milosevic, Case No. IT-02-54-T, "Decision on Prosecution Motions for the Admission of Evidence Pursuant to Rule 92bis", issued 7 October 2003 (holding that "the transcripts of testimony and accompanying exhibits of . . . Milan Mandilovic . . . shall be admitted without cross-examination, Judge Robinson dissenting").