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:
17 May 2005

PROSECUTOR

v.

SLOBODAN MILOSEVIC

__________________________________________

DECISION ON PROSECUTION MOTION FOR CERTIFICATION REGARDING EVIDENCE OF DEFENCE WITNESS BARRY LITUCHY

__________________________________________

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”),

BEING SEISED of a “Prosecution’s Request for Certification Pursuant to Rule 73(B)”, filed 16 March 2005 (“Motion”), requesting certification of an interlocutory appeal of certain decisions of the Trial Chamber with respect to the evidence of Defence Witness Barry Lituchy (“witness”),1

Brief procedural history

NOTING that the Accused called the witness as part of his defence case, sought to tender as evidence through him several videotaped recordings of interviews he conducted with people in Kosovo (“interviews”), and requested that portions of three of the interviews be adduced in closed session,2

NOTING that, on 9 March 2005, prior to the commencement of the witness’ evidence, the Prosecution requested that the interviews not be allowed admission into evidence;3 the Accused and Assigned Counsel argued that the interviews were admissible;4 and the Trial Chamber ruled that the witness could give evidence about the interviews, “without prejudice to particular objections being taken to any particular piece of evidence on the basis of relevance or any other ground”,5

NOTING that, during the testimony of the witness, the Accused asked him whether parts of the interviews should be viewed in closed session for the sake of the declarants’ safety, and the witness responded in the affirmative;6 the Prosecution objected,7 and the witness further articulated the grounds for the requested protective measures;8 and, after hearing oral arguments from the parties,9 the Trial Chamber ruled that the interviews were admissible (“Decision on Admission ”)10 and granted the protective measures (“Decision on Protective Measures”),11 decisions which apply – and only were intended to apply – to those particular exhibits,

NOTING that it was only portions of the videotaped interviews that were viewed in private session and that the detailed examination of the witness on these interviews mostly was conducted in public session, using pseudonyms for the declarants,

NOTING that, on 10 March 2005, (1) the Prosecution requested that the Trial Chamber reconsider its Decisions on Admission and Protective Measures on grounds that the Prosecution contacted one of the declarants,12 who told the Prosecution that it is unlikely that he meant what was said in the interview conducted by the witness and that it is unlikely that he would stand by the interview;13 and (2) the Trial Chamber ruled that it would not reconsider its decisions (“Decision on Reconsideration ”),14

Discussion

NOTING that Rule 73(B) of the Rules of Procedure and Evidence of the International Tribunal (“Rules”) provides that “(d(ecisions on all motions are without interlocutory appeal save with certification by the Trial Chamber, which may grant such certification if the decision involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings”,

CONSIDERING that, although it is unclear from the Motion’s “Requested Relief ”,15 paragraphs 2 and 3 of the Motion seem to indicate that the Prosecution is requesting certification of an interlocutory appeal of the Decision on Reconsideration, and not on the Decisions on Admission and Protective Measures; but that, later in the Motion, the Prosecution draws from its arguments from all stages of this matter in arguing for certification, rather than focusing on the arguments that were forwarded in support of its previous motion for reconsideration,16

CONSIDERING FURTHER that the Prosecution’s application for reconsideration included new circumstances that went to both the Decision on Admission (unreliability of the interviews) and the Decision on Protective Measures (absence of grounds for fear); that, because the core issue being litigated is the admission of and grant of protective measures to the interviews, the Trial Chamber will construe the Motion as seeking certification of both the Decisions on Admission and Protective Measures and the Decision on Reconsideration; and that the Trial Chamber has applied the standards of Rule 73(B) of the Rules to both the circumstances surrounding the original applications that led to the Decisions on Admission and Protective Measures, as well as the new circumstances brought forth by the Prosecution that led to the Decision on Reconsideration,

Does the decision involve an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial?

Decisions on Admission and Reconsideration

NOTING that the Prosecution argues the following: (1) the interviews admitted into evidence were irrelevant and unreliable hearsay and thus inadmissible under Rules 89(C) and 95 of the Rules and established jurisprudence of the International Tribunal;17 (2) admission of the interviews circumvents the procedural mechanisms of Rule 92bis of the Rules;18 and (3) the decisions of the Trial Chamber lower the standard for admission of evidence, which results in a large amount of irrelevant and unreliable evidence being admitted, the analysis of which will then slow down the proceedings and take attention away from relevant and reliable evidence,19

NOTING the “Reply to Prosecution’s Request for Certification Pursuant to Rule 73(B)”, filed by Assigned Counsel on 24 March 2005 (“Response”), wherein Assigned Counsel oppose the Motion and argue the following: (1) the Prosecution’s divergent view on admissibility of evidence is insufficient to justify a grant of certification, and the Prosecution must demonstrate that the decision of the Trial Chamber in fact involves the criteria in Rule 73(B) of the Rules, and not that they simply may do so;20 (2) the Trial Chamber is applying the same standards of admissibility to the Defence that it did to the Prosecution;21 and ( 3) the Trial Chamber made plain its concerns about the weight attributable to the interviews, and the Prosecution would have the opportunity to make submissions upon the evidence and seek to call evidence in rebuttal,22

CONSIDERING that (1) the arguments set forth above by the Prosecution were appropriate while the Trial Chamber was initially deciding whether to admit the interviews and whether to grant them protective measures and (2) it was open to the Prosecution to bring to the Trial Chamber’s attention new information and arguments in order to support its argument on reconsideration,

CONSIDERING HOWEVER that, by simply reiterating these arguments the Prosecution has failed to address the criteria for an application for certification of an interlocutory appeal under Rule 73(B) of the Rules; it is insufficient, for the purposes of Rule 73(B) of the Rules, for the Prosecution to take issue with a decision in respect to particular documents, which are made by the Trial Chamber on a case-by-case basis, and then argue that those specific decisions will serve as incorrect precedent for the parties during the remainder of the trial; rather, it must be shown that those specific decisions involve issues that will actually, significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial; and that a request for certification is not a further opportunity for the Prosecution to inform the Trial Chamber that it disagrees with a decision it has made,

CONSIDERING FURTHER that, even if the arguments of the Prosecution, such as those set forth above, were to satisfy the first criterion of Rule 73(B) of the Rules, the Prosecution still fails to satisfy the second criterion, as is discussed below,

Decisions on Protective Measures and Reconsideration

NOTING that the Prosecution argues the following: (1) the Trial Chamber erred in granting limited protective measures to the interviews;23 (2) the grant of protective measures is contrary to the interests of justice and contradicts Rule 79 of the Rules;24 (3) the Decision on Protective Measures was counter to the jurisprudential principle that prevailing circumstances within the former Yugoslavia cannot by themselves amount to exceptional circumstances because the main arguments put forth for the protective measures were that the KLA is a criminal organisation that is taking its revenge and killing its political opponents;25 and (4) statements taken by the Prosecution from Albanian No. 3 undermine the basis upon which the protective measures were granted,26

NOTING that Assigned Counsel argue that (1) the Prosecution has failed to demonstrate how the Trial Chamber’s refusal to reconsider the Decision on Protective Measures satisfies the criteria of Rule 73(B) of the Rules; (2) the Trial Chamber correctly balanced the interests of a public trial and the protection of the declarants under Rule 79(A)(ii) of the Rules;27 and (3) the Prosecution has failed to demonstrate that the Trial Chamber in fact applied or will apply an incorrect or lower standard for the issuance of protective measures during the Defence phase of the trial,28

CONSIDERING that (1) the Prosecution takes the Motion as a further opportunity to reiterate arguments that were properly made while the Trial Chamber was initially deciding admission, protective measures, and reconsideration, but that do not satisfy the test set forth in Rule 73(B) of the Rules and (2) the Trial Chamber considered the possible risk and decided to order protective measures in this particular situation for a very limited portion of the evidence, rather than carrying out a detailed inquiry into the grounds for the protective measures, which would have delayed the trial,

Does the Decision involve an issue for which, in the opinion of the Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings?

Decisions on Admission and Reconsideration

NOTING that the Prosecution argues that (1) variance of “the threshold standard for admissibility of evidence greatly disrupts the uniformity of practice during these long and complex proceedings” and leads to unnecessary and time-consuming legal argument over the admission of evidence;29 (2) it would be improper for the parties to have to wait until a final resolution on appeal of this issue and thus risk applying incorrect evidentiary standards for the remainder of the trial;30 (3) clear and timely standards for admission of evidence are particularly necessary for the Accused, who is conducting his own defence;31 and (4) admission of the interviews – and, in general, the lowering of the threshold standard of admissibility of evidence – will force it to lead a more substantial rebuttal case, and thus will prolong the proceedings,32

NOTING the arguments of Assigned Counsel with respect to the second criterion of Rule 73(B) of the Rules, which are substantially subsumed within their arguments with respect to the first criterion,

CONSIDERING that the Prosecution’s arguments are based upon the premise that the Trial Chamber is applying incorrect legal standards to the admission of evidence during the Defence case; but that the Prosecution, in the opinion of the Trial Chamber, has failed to demonstrate that the actual decisions for which it is seeking certification involve issues for which an immediate resolution by the Appeals Chamber may materially advance the proceedings,

CONSIDERING FURTHER that, (1) with respect to the first argument, the fact that a party may choose in the future to challenge frequently the admission of evidence cannot be construed as fulfilment of the second criterion of Rule 73(B) of the Rules; (2) the second argument fails because challenging a decision made on a case-by -case basis wherein the Trial Chamber is assessing the relevance and probative value of a particular piece of evidence is not the province of Rule 73(B) of the Rules, absent a showing that the challenged decision involves an issue that fulfils the criteria of the Rule; (3) the third argument fails because it is the responsibility of the Trial Chamber pursuant to Article 20 of the Statute of the International Tribunal to ensure that the trial is fair and expeditious; and (4) the final argument is too speculative to satisfy the second criterion of Rule 73(B) of the Rules,

Decisions on Protective Measures and Reconsideration

NOTING that the Prosecution argues that the Decision on Protective Measures – and, in general, the misapplication of the Rules for protective measures – will reduce the amount of evidence available to the public and thus “(i(n order to protect the public nature of these proceedings, which is particularly important for the trial of this Accused, the correct standard for the imposition of witness protective measures should be determined immediately rather than after a Judgement on appeal, when much or all of this material will have been lost to the public,”33

NOTING the arguments of Assigned Counsel with respect to the second criterion of Rule 73(B) of the Rules, which are substantially subsumed within their arguments with respect to the first criterion,

CONSIDERING that, in the opinion of the Trial Chamber, the Prosecution’s purported attempts “to protect the public nature” of the trial do not in the present circumstances go to the second criterion under Rule 73(B) of the Rules; moreover, the Prosecution’s concerns regarding the public nature of the proceedings are belied by its extensive use of confidentiality during its own case-in-chief,

HAVING CONSIDERED all the arguments of the Prosecution34 and Assigned Counsel,35 the Trial Chamber finds that the criteria of Rule 73(B) of the Rules have not been satisfied because the Prosecution has failed to demonstrate that the decisions involve issues that significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial and for which, in the opinion of the Trial Chamber, an immediate resolution may materially advance the proceedings,

Disposition

PURSUANT to Rules 54, 73, and 126bis of the Rules,

HEREBY GRANTS the Prosecution leave to file the Reply and DENIES the Motion.

 

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

_______________
Judge Robinson
Presiding

Dated this seventeenth day of May 2005
At The Hague
The Netherlands

[Seal of the Tribunal]


1 - Motion, at paras 2-3.
2 - T. 37216 (9 March 2005).
3 - T. 37184-37187, 37189 (9 March 2005).
4 - T. 37187-37190 (9 March 2005).
5 - T. 37192 (9 March 2005).
6 - T. 37214 (9 March 2005) (“Yes. Yes. It’s my opinion that it would be risky and we would be putting the lives of the Albanians at risk if this was – if their identities were known.”).
7 - T. 37215 (9 March 2005).
8 - T. 37215-37216 (9 March 2005) (stating that (1) “the KLA functions classically as a fascist paramilitary organisation that is determined to destroy first and foremost its political opponents. That means kill.” and (2) one of the three declarants had already been killed by the KLA).
9 - T. 37214-37228 (9 March 2005).
10 - T. 37228 (9 March 2005) (“We also rule that the evidence coming through the interviews will be admissible notwithstanding the absence of the persons interviewed. This is a matter that will go to the weight that the Chamber attaches to the evidence given.”).
11 - T. 37228, 37230 (9 March 2005) (“It's always difficult to balance the right to a public trial with the right to protect particular witnesses. Although the procedures were not followed by the accused, in this case we're going to grant the protective measures sought in respect of the persons referred to in the interview.... And the protective measures will be as Mr. Milosevic indicated; they will be confined to that part in the clip where the identity of the three persons would be revealed.... And also the way they're identified in the course of the examination so that they're referred to as Albanians 1 and 2....”).
12 - At the time, the Prosecution was only able to contact by telephone one of the two declarants. T. 37233 (10 March 2005).
13 - T. 37234-37235 (10 March 2005). The Prosecution also argued that it would not be able to cross-examine the witness and would have to call the witness to testify, and then the Accused would be able to cross-examine him. T. 37235 (10 March 2005). The declarant also told the Prosecution that, although he had no objection to the public disclosure of the fact that the witness interviewed him (T. 37234, lines 11-16 (10 March 2005)), he would prefer that his interview was only used confidentially because it is unlikely that he would now stand by it. T. 37234 (10 March 2005). The Prosecution argued, “There are great dangers in having material of this kind used in closed-session testimony, for if it's in error, there is absolutely no stimulus to the person concerned identifying the error as he might have done were he to learn about it and correcting it, and in the absence of our being able to contact the person and establish the error, the position would remain completely uncorrected.” T. 37234 (10 March 2005).
14 - T. 37236 (10 March 2005).
15 - Motion, at para. 19.
16 - See, e.g., Motion, at paras 6-7, 9, 12. In addition, the Prosecution argues in reply that “the Response (of Assigned Counsel( addresses whether there are errors in the two decisions for which certification is sought in the Motion, but does [sic – not?] directly address the question of whether the decisions involve... the test for certification contained within Rule 73(B). (Note: Indeed, in relation to the decision on the admissibility of the interviews, the Assigned Counsel concede that lowering the threshold for the admission of evidence may constitute an issue which would significantly affect the fair and expeditious conduct of the proceedings or outcome of the trial.(”“Prosecution’s Reply to Assigned Counsel Response to ‘Prosecution’s Request for Certification Pursuant to Rule 73(B)’”, filed 31 March 2005 (“Reply”), at para. 3, p. 3, note 3 (emphasis in original).
17 - Motion, at paras 6-8; Reply, at p. 4, note 7 (reiterating its position that the interviews were inadmissible under Rule 95).
18 - Motion, at para. 9.
19 - Motion, at para. 10; Reply, at paras 4-5 (reiterating its position that the interviews were inadmissible due to their unreliability and lack of relevance).
20 - Response, at para. 18.
21 - Response, at paras 19-20. In Annex 1 to the Reply, the Prosecution sets out its interpretation of the examples cited by Assigned Counsel in notes 24 and 25 of the Response (at page 8) and argue that they are distinguishable from the admission of the interviews through the witness.
22 - Response, at para. 21.
23 - Motion, at paras 11-13.
24 - Motion, at para. 12.
25 - Reply, at para. 8.
26 - Reply, at para. 9.
27 - Response, at paras 24-25.
28 - Response, at para. 25.
29 - Motion, at para. 15.
30 - Motion, at para. 16.
31 - Motion, at para. 16.
32 - Motion, at para. 17.
33 - Motion, at para. 18.
34 - E.g., Motion, at paras 6-18; Reply, at paras 3-9, p. 3, note 3, p. 4, note 7, Annex 1.
35 - E.g., Response, at paras 17-26, p. 8, notes 24-25.