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 NOTICE CONCERNING ALLEGATIONS OF MANIPULATION OF INFORMATION BY CNN AND BBC

_____________________________________________

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 confidential "Prosecution Notice of CNN and BBC Responses to Allegations of Manipulation of Information in the Macedonian Refugee Camps", filed on 15 March 2005 ("Motion"), in which the Prosecution seeks the admission of two "formal statements" provided by both CNN and BBC (and annexed to the Motion) as exhibits to rebut the allegations made by defence witnesses Stojčik and Babik that certain news events relevant to the crimes charged were "stage managed" and did not in fact occur, and arguing that it is appropriate that "respectable media organizations be given an opportunity to rebut the serious accusations made against them",

NOTING the confidential "Assigned Counsel Reply to Confidential Prosecution Notice of CNN and BBC Responses to Allegations of Manipulation of Information in the Macedonian Refugee Camps", filed on 18 March 2005 ("Response"), in which Assigned Counsel requests that the Trial Chamber deny the Motion, and that the filings be made public, submitting that the Motion seeks the introduction of potential rebuttal evidence during the Defence stage of the trial, in contravention of Rule 85 of the Rules of Procedure and Evidence of the International Tribunal ("Rules"), which should be pursued, if at all, in the appropriate manner and at the appropriate time, and in respect of the two annexes, submits:

  1. Annex 1 contains an e mail transmission carrying no declaration as to its authenticity or original signature; by signing the filing and producing the transmission therein Mr. Nice is said to be seeking to introduce the evidence himself, making himself inappropriately a potential witness in the trial; and, the proposed exhibit is not produced in accordance with any recognisable evidential process, such as evidence admitted pursuant to Rule 89 or 92bis of the Rules, without which the document is inadmissible;
  2. Annex 2 contains a fax transmission signed by a person not involved in the relevant events, notes that it is not possible to investigate allegations made by the witnesses further but nonetheless denies the allegations made by the witnesses; by signing the filing and producing the transmission therein Mr. Nice is said to be seeking to introduce the evidence himself, making himself inappropriately a potential witness in the trial; and, the proposed exhibit is not produced in accordance with any recognisable evidential process, such as evidence admitted pursuant to Rule 89 or 92bis of the Rules, without which the document is inadmissible;

NOTING the confidential "Prosecution Response to the ‘Assigned Counsel Reply to Confidential Prosecution Notice of CNN and BBC Responses to Allegations of Manipulation of Information in the Macedonian Refugee Camps’ Dated 18 March 2005", filed on 21 March 2005 ("Reply"), for which leave was not sought pursuant to Rule 126bis of the Rules, in which the Prosecution do not object to the filings in this matter being made public but which otherwise do not materially advance the matter under consideration,

NOTING the terms of Rule 89(C) that "A Chamber may admit any relevant evidence which it deems to have probative value",

CONSIDERING that the e-mail transmission (Annex 1) and facsimile transmission (Annex 2) are not presented in a manner in which the Trial Chamber could consider their admissibility, because:

  1. It is a legitimate defence to advance that events relevant to charges in the indictment were stage-managed and to lead evidence from Defence witnesses to that effect;
  2. It is not open to the Prosecution at this stage of the proceedings to present evidence other than through cross-examination of Defence witnesses and presented in the proper way; and

  3. It is not open to the Prosecution to rebut this evidence by seeking to admit statements not otherwise admissible under the Rules,

CONSIDERING that the Prosecution can only otherwise seek introduction of the material by an application to lead evidence in rebuttal and that, while the Prosecution’s own position is that "the issue of whether news was sensationalised or not is hardly a crucial matter in this case", it is a matter for it to determine whether to make such application, whereafter the Trial Chamber will determine whether the material is so admissible,

PURSUANT to Rules 54 and 89 of the Rules of Procedure and Evidence of the International Tribunal,

HEREBY DENIES THE MOTION and ORDERS the Registrar to make public the filings of the parties in this matter.

 

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]