Case No. IT-02-54-T

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

Registrar:
Mr. Hans Holthuis

Decision:
17 May 2005

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”), is seised of a “Prosecution Motion for Reconsideration of the Trial Chamber’s Refusal to Admit Certain Prosecution Exhibits During the Defence Case”, filed 15 March 2005 (“Motion”), and hereby renders its decision thereon, as well as issuing a decision proprio motu concerning exhibits 837 and 838.

Arguments of the parties
Prosecution Motion
1. In the Motion, the Prosecution requests the Trial Chamber to reconsider several of its decisions denying admission of certain exhibits into evidence that were tendered by the Prosecution during the cross-examination of Defence Witnesses Mitar Balevic, Vladislav Jovanovic, Vukasin Andric, and Dobre Aleksovski, on the basis of new legal authority and new arguments.¹

2. The Prosecution submits that its application is, in part, based on discovery of a “new” decision not known of or considered at the time of the Trial Chamber’s ruling,² which it says supports the admission of material during cross-examination that goes to the issue of a witness’ credibility. It further submits that the position apparently taken by the Trial Chamber of admitting documents tendered by the Prosecution only when they “are accepted /acknowledged by the Defence witness”, creates a risk that Defence witnesses could make a blanket denial of the veracity of a document put to them during cross-examination resulting in non-admission, however incredible the denial may be.³ The Prosecution also argues that, because “anxiety to complete the trial will dominate all other considerations” when the time comes for the Trial Chamber to determine the time the Prosecution will have for its case in rebuttal or a reopening of its case (if allowed), it should be permitted to adduce evidence during cross-examination.⁴ Finally, the Prosecution states that the Trial Chamber has been applying two different standards for the admission of evidence to the Prosecution and the Defence.⁵ The Prosecution sets forth additional, detailed arguments with respect to each of the documents for which is requests reconsideration in Annex 1 to the Motion.
   Assigned Counsel Response

3. Assigned Counsel submit that the Hadzihasanovic Decision relied on by the Prosecution is not new because Assigned Counsel themselves (1) brought it to the attention of the Prosecution in advance of the oral arguments held on this issue on 9 February 2005 and (2) cited the authority in its oral argument to the Trial Chamber.⁶ As a result, it is argued that the Motion is fundamentally flawed, since “no good cause has been established to merit reconsideration of the Trial Chamber’s previous decisions on admissibility ”.⁷ The Prosecution’s suggestion that the Trial Chamber’s rulings will result in future Defence witnesses intentionally blocking the admission of Prosecution evidence by refusing to accept the contents therein is said to be “both inappropriate and implausible” and there is no evidence to support such a proposition.⁸ Furthermore, Assigned Counsel submit that the Prosecution’s characterisation of the Trial Chamber’s approach to admission of evidence as unbalanced is flawed.⁹ Finally, Assigned Counsel disagree with the Prosecution’s arguments premised upon the length of the rebuttal case and comment that the issue relevant to rebuttal is the admissibility of evidence during rebuttal, rather than issues relating to time and the admissibility of evidence during the Defence case.
   Prosecution Reply

4. The Prosecution, in reply, admits that it was aware of the Hadzihasanovic Decision during oral argument on 9 February 2005 and “regrets that it overlooked ” this authority during its oral argument.¹⁰ The Prosecution attempts to explain its oversight by stating that it did not have an opportunity to respond to Assigned Counsel arguments and that the Trial Chamber did not refer to the Hadzihasanovic Decision when delivering the challenged decisions on the admission of various documents.¹¹ The Prosecution then reiterates its arguments regarding “why the emerging principles of admissibility are erroneous and the refusal by the Chamber to admit certain material is unjust”.¹²

5. The Prosecution’s Reply largely repeats arguments already set forth in the Motion and discourses upon topics that are of no relevance to this matter.
   Discussion
   Test for Reconsideration

6. To succeed in its application, the Prosecution must satisfy the Trial Chamber that there is a legitimate basis for it to reconsider its initial rulings.

7. The Appeals Chamber has stated, “A Trial Chamber may... always reconsider a decision it has previously made, not only because of a change of circumstances but also where it is realised that the previous decision was erroneous or that it has caused an injustice.”¹³ “(S(uch particular circumstances include new facts or new arguments.”¹⁴ “Where such a decision is changed, there will be a need in every case for the Trial Chamber to consider with great care and to deal with the consequences of the change upon the proceedings which have in the meantime been conducted in accordance with the original decision.”¹⁵ “Whether or not a Chamber does reconsider its decision is itself a discretionary decision ”.¹⁶

8. The only change of circumstances asserted by the Prosecution was the existence of the Hadzihasanovic Decision, which it now acknowledges was erroneously described as such. The Trial Chamber will, therefore, consider whether there are any other bases upon which it should properly reconsider its initial rulings.
   Reconsideration in respect of the potential evidence

9. What the Prosecution seeks from the Trial Chamber is reconsideration of its rulings not to admit material presented by it during cross-examination of certain Defence witnesses. In respect of most of this potential evidence, the Prosecution has put an assertion (based on a document or other material) to the witness, in response to which the witness has either not adopted the assertion, rejected it outright, or was not in a position to say anything meaningful about it. In these circumstances, the Trial Chamber has ruled that the potential evidence is inadmissible, lacking as it is in any probative value. If, by the witness’ response to questioning about a piece of potential evidence, the content of that potential evidence is not adopted, there is no way of introducing it without the Prosecution leading evidence of its own. This is something the Prosecution cannot do during the course of the Defence case, its case having closed.¹⁷ In challenging the evidence adduced by the Defence, the Prosecution may put material to Defence witnesses, so long as it does so in accordance with Rule 90(H) of the Rules,¹⁸ but this does not allow it to have that material admitted into evidence where no basis for its admission has been made out.

10. The Prosecution sought to rely on the Hadzihasanovic Decision in support of its application for reconsideration. The relevant passages of that Decision are as follows:

    The Trial Chamber would like to indicate that there is a principle which is fundamental and which must be respected by the Prosecution, and that is that the Prosecution must present all its evidence in the course of its case. This is a rule that is present in the jurisprudence of the Tribunal. See, for example, paragraph 14 of the decision rendered on the 31st of October, 2000 by the Trial Chamber in the Kunarac case, and paragraph 5 of the decision dated the 10th of September, 2004, rendered by the Trial Chamber in the Strugar case.

    As a result of this principle, the Prosecution can only present in the course of its cross-examination of a witness new documents that have not been admitted – it may present new documents only if it wants to reinforce evidence that it has presented already or if it wants to introduce new elements that concern the criminal responsibility of the accused.

    * * *

    The Prosecution may present and request that certain documents be tendered into evidence, if these documents have not already been admitted into evidence, in the course of cross-examination, but the conditions will be much more restricted and will be governed by the principles that have already been referred to.

    In the opinion of the Trial Chamber, the Prosecution may present, in the course of its cross-examination, any documents that have not already been admitted in order to test the credibility of a witness or to refresh such a witness’s memory. In each of these two cases, the Prosecution may present a document that has not already been admitted and which it had in its possession before or after the presentation of its case.¹⁹

11. This Decision recognises that documents not disclosed by a party under Rule 65ter of the Rules as part of its case can nevertheless be used in cross- examination. Documents which have not been disclosed under Rule 66 of the Rules may be used in cross-examination since that Rule is designed to deal with material to be used for the Prosecution’s case-in-chief. On the other hand, exhibition of documents used in cross-examination should only be permitted if they contain material which has actually become part of the evidence in the case. Nothing said by the Trial Chamber in the Hadžihasanovic Decision contradicts that. In the view of the Trial Chamber, the Decision does not, therefore, support the admission of the documents in the manner sought by the Prosecution in the Motion.

12. The Prosecution has sought on numerous occasions to admit statements of persons to rebut evidence given by a Defence witness, and a number of the items for which reconsideration is sought fall into this category. The Prosecution’s practice has been to contact persons who have made statements or given interviews relied upon by the Accused in examination of a witness and to take a further statement contradicting the content of the prior statement. The Trial Chamber has recently had cause to examine the admissibility of statements in respect of Defence Witness Dragan Jasovic. In doing so, it was noted that the Appeals Chamber has held that “(a( party cannot be permitted to tender a written statement given by a prospective witness to an investigator of the OTP under Rule 89(C) in order to avoid the stringency of Rule 92bis”, but that “Rule 92bis has no effect upon hearsay material which was not prepared for the purposes of legal proceedings”.²⁰ The Trial Chamber found that the reference by the Appeals Chamber to material “prepared for the purposes of legal proceedings” was intended to relate to material prepared for the purposes of legal proceedings before this Tribunal, such as a witness statement taken by a Prosecution investigator in answer to the content of statements given by witnesses for the purposes of this case.²¹ The preparation of a statement in the terms discussed above clearly leads to the conclusion that any such statement is prepared for the purposes of these proceedings. Such a statement would only, therefore, be admissible under the terms of Rules 89(F)²² or 92bis of the Rules. However, for the reasons discussed above, the Prosecution has no basis upon which it can seek to admit these statements in contradiction of the evidence of a Defence witness during the Defence case. The question of admissibility of the material as hearsay evidence, or in some other manner appropriate under the Rules or practice of the International Tribunal, does not arise because the Prosecution cannot have material admitted during the course of the Defence case that it cannot properly adduce in cross-examination.

13. Of course, as the Trial Chamber has stated on numerous occasions, the Prosecution may always seek to admit relevant evidence in rebuttal if it satisfies the relevant test for admission of rebuttal evidence. In relation to this point, the Prosecution submits that the Trial Chamber’s concern to ensure an expeditious conclusion to the trial will “dominate all other considerations”, apparently suggesting that it will be disinclined to admit material otherwise admissible in rebuttal. The Trial Chamber does not accept the Prosecution’s assertions, nor does the Chamber accept that the Prosecution’s argument in any material way supports its application for reconsideration of the material in question. It is no doubt preferable to avoid seeking to admit a vast quantity of evidence in rebuttal. Furthermore, the admission of any such material would have to satisfy the relevant test for admission, and the Chamber will apply that test at the appropriate time. However, such an argument in no way justifies the admission of material that is not otherwise properly open to admission into evidence.

14. The Prosecution makes a submission often raised by it that characterises the Defence case as a “broadened case”. No attempt is made in the Motion to explain what is meant by this phrase. The Accused can hardly be said to be “broadening” the case simply because the witnesses he leads to portray his conduct as honourable rather than criminal speak of events that did not feature during the course of the Prosecution case. It would plainly undermine the Chamber’s control of the trial through careful allocation of time to the Prosecution and Defence to present their cases, if the Prosecution were permitted to lead its own evidence during the Defence case in order to respond to the particular points raised by Defence witnesses who are simply answering the case or charges made against the Accused that emerged in the course of the Prosecution evidence. It is, therefore, distinctly possible that the evidence of a defence witness may be left “in the air” without any specific contradictory evidence. In such circumstances it will be for the Trial Chamber to evaluate the evidence against the background of all other relevant evidence in the case. At the end of the day, it remains open to the Trial Chamber, should it be faced with a particular problem arising out of the way in which evidence was presented, to order the production of further evidence, or ex proprio motu summon witnesses pursuant to Rule 98 of the Rules.

15. The Prosecution identify a risk that “word will spread” about the approach taken to the evidence in question and witnesses will manipulate their evidence accordingly, simply refuting the content of any assertion contained in a document or other material put to them by the Prosecution in cross-examination. This is a risk that may exist. However, there is no evidence that such a practice has materialised in these proceedings; and, at any rate, it is questionable whether this would be a basis for admitting otherwise inadmissible material. It is certainly not appropriate for the Trial Chamber to consider such an argument when made as a broad assertion.

16. The Prosecution makes the enigmatic submission that the introduction of new documents could be of assistance to the Trial Chamber in the exercise of its “truth -finding function”.²³ The Prosecution cites no authority for, nor provides any explanation as to, the content of such a principle in these proceedings. The Chamber notes that Rule 90(F)(i) of the Rules states, “The Trial Chamber shall exercise control over the mode and order of interrogating witnesses and presenting evidence so as to (i) make the interrogation and presentation effective for the ascertainment of the truth”. This reference seems to be no more than a recognition of the purpose of any criminal trial. Such an assertion of principle does not lend any weight to the Prosecution’s application for reconsideration of the material in question.

17. The Prosecution makes further reference to a statement by the Presiding Judge during the proceedings that the applicable system of law here is sui generis. This would appear to be a reference to what has been described elsewhere as a mixed system of rules relating to the admissibility of evidence, the International Tribunal being neither a strictly common law nor strictly civil law jurisdiction.²⁴ The Prosecution has asserted that the rulings of the Trial Chamber are an overly formalistic application of the rules of evidence applicable in adversarial systems of law. As stated recently by the Trial Chamber in the Limaj case, “(w(hile the procedure and evidentiary system of this Tribunal represents an attempt to blend elements of both civil and adversarial systems, it remains primarily adversarial”.²⁵ The Trial Chamber has had regard to Rule 85 of the Rules. It has also considered Rule 90(H) of the Rules. The principal reason for the Trial Chamber’s ruling, as discussed above, is that the Prosecution case has now closed and that it cannot seek the admission of material on a freestanding basis during the course of the Defence case to challenge Defence evidence. In respect of the Motion, the Prosecution has not satisfied the Trial Chamber that there is a basis upon which it should reconsider admission of any of the relevant material.

18. Finally, the Prosecution argues that the Trial Chamber is applying different standards to the admission of evidence between the parties, submitting that “while the threshold for admission of evidence by the Accused has seemingly been going down, at the same time the threshold for admission of exhibits to be introduced during cross-examination by the Prosecution seems to be going up”.²⁶ The Prosecution appears to seek to support this argument by reference to its application for certification pursuant to Rule 73(B) of the Rules concerning evidence tendered during the testimony of the Defence Witness Barry Lituchy. The Trial Chamber sees no support for the assertion made by the Prosecution, and the Chamber is not assisted by it in the determination of the Motion.
    Findings

19. The Trial Chamber has considered the application in respect of each of the documents discussed in Annex 1 of the Motion and applied the appropriate test as set out above in reconsideration of each item. The Trial Chamber finds as follows :
    Document number 156

20. This item concerned a number of extracts from a series of articles from Borba. The witness did not adopt the content of the extracts put to him. There is no basis for the Trial Chamber to reconsider its initial decision.
    Document number 163

21. This item is a list of members of the Sloboda Organization that the Prosecution used during the cross-examination of the witness to challenge his credibility. The Trial Chamber initially ruled the document inadmissible because the witness denied being a member of the organisation’s board. However, on review of the transcript it is apparent that the witness agrees that he is a member of this organisation and that the document represents accurately the mission statement of the organisation. The treatment of the document by the witness and the contents of the document itself are relevant to the credibility of the witness. The Trial Chamber therefore reconsiders its prior decision not to admit the document into evidence for the purpose of impeaching the credibility of the witness and admits it into evidence.
    Document number 172

22. This item concerns news clippings concerning a rally in Nis in 1988 in which the witness participated. There is no basis for the Trial Chamber to reconsider its decision not to admit this document into evidence.
    Document number 212

23. This item concerns a letter that was not tendered as evidence by the Prosecution because of an issue relating to its restriction under Rule 70 of the Rules. The Prosecution uses the Motion as an opportunity to request admission of the document for the first time, having nothing to do with a request for reconsideration.
    Document numbers 215, 216, 219, and 221

24. These items are statements tendered by the Prosecution to challenge the evidence of the witness that Kosovo Albanians were not dismissed from their work at a medical facility in Pristina on the basis of their ethnicity. The assertions were not accepted by the witness, and there is no basis for the Trial Chamber to reconsider its decision not to admit these documents into evidence.
    Document number 222

25. This item concerns a transcript of an interview given by a person to the Prosecution contradicting the content of an earlier statement made by that same person and introduced through the witness to show that he left Kosovo because of NATO bombing. The assertions were not accepted by the witness, and there is no basis for the Trial Chamber to reconsider its decision not to admit this document into evidence.
    Document numbers 245, 256, 247, and 248

26. These items concern articles and reports put to the witness in contradiction of his evidence concerning the Macedonian refugee camps. The assertions were not accepted by the witness, and there is no basis for the Trial Chamber to reconsider its decision not to admit these documents into evidence.
    Proprio motu reconsideration of two exhibits admitted during cross-examination of Defence Witness Barry Lituchy

27. The Accused sought to tender as evidence through Defence Witness Barry Lituchy several videotaped recordings of interviews that the witness had conducted with people in Kosovo (“first interviews”). The Prosecution subsequently interviewed one of the declarants (“second interviews”) and argued that the second interviews demonstrated the unreliability of the first interviews.²⁷ The Trial Chamber ruled that the first interviews were admissible, permitted the Accused to examine the witness on them, and ultimately admitted them into evidence.²⁸ During cross-examination, the Prosecution questioned the witness on the second interviews and then tendered them as evidence. The Trial Chamber granted the second interviews admission into evidence as exhibits 837 and 838.²⁹

28. The Prosecution now submits that its present Motion for Reconsideration is strengthened by the Trial Chamber’s decision to admit exhibits 837 and 838 and argues that “admission of these exhibits reveals an inconsistent approach with the approach previously taken by the Trial Chamber”.³⁰

29. In light of the decisions herein and the fact that the witness did not accept the contents of the second interviews, the Trial Chamber finds that it is appropriate for it to reconsider its prior decision to admit exhibits 837 and 838.
    Disposition

30. Pursuant to Rules 54, 85, 89, 90, and 126bis of the Rules, the Trial Chamber hereby

    GRANTS the request of Assigned Counsel to exceed the page limitation;

    GRANTS the Prosecution leave to file the Reply;

    DENIES the Motion with respect to documents 156, 172, 215, 216, 219, 221, 222, 245, 246, 247, and 248;

    GRANTS the Motion with respect to document 163, GRANTS its admission into evidence, and INSRUCTS the Registry to include it in the record;

    DISMISSES the Motion with respect to document 212; and

    DECIDES proprio motu to reconsider its decision to admit exhibits 837 and 838, DENIES their admission into evidence, and INSTRUCTS the Registry to remove them from the record.

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]