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:
26 August 2005
PROSECUTOR
v.
SLOBODAN MILOSEVIC
_________________________________________________
DECISION ON ADMISSION OF DOCUMENTS IN CONNECTION
WITH TESTIMONY OF DEFENCE WITNESS DRAGAN JASOVIC
_________________________________________________
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 (“Tribunal”), is seised of motions
from both the Accused and Prosecution to admit documents
in connection with the testimony of Defence witness
Dragan Jasovic (“witness”), and hereby renders its
decision thereon.
A. Procedural history
- After Prosecution challenges to the evidence
of the witness, the Trial Chamber issued its “Decision
on Testimony of Defence Witness Dragan Jasovic”,
on 15 April 2005, wherein it ordered that (a) the
witness could be examined in connection with statements
he had taken from declarants in Kosovo (“statements”);
(b) the statements the Accused sought to tender
into evidence through the witness were admissible,
if they were found to have sufficient indicia of
reliability; (c) determination of the admissibility
of a statement would only be made after it had been
translated and the evidence of the witness had been
concluded; and (d) the Trial Chamber would make
further orders in respect of the witness and the
statements as necessary.
- The witness testified on direct-examination
on 25-27 April 2005. The Trial Chamber decided that
the witness should return for cross-examination at
a later date in order to afford the Prosecution
adequate time to prepare.1
During this hiatus, the Trial Chamber issued on 9 June
2005 its “Decision on Prosecution
Motion for Voir Dire Proceeding”, denying the Prosecution’s
request to conduct a voir dire (or “trial within a
trial”) to determine whether evidence prepared by
the witness should be excluded pursuant to Rule 95
of the Rules of Procedure and Evidence of the Tribunal
(“Rules”).2
The witness testified on cross-examination on 15-17
and 20 June 2005 and on re-examination on 20-21 June
2005.
B. Submissions of the parties
- In response to an oral Order of the Trial Chamber,3
the Prosecution filed its “Prosecution Submissions
on the Admissibility of Potential Defence and Prosecution
Exhibits Concerning Dragan Jasovic”, on 27 June 2005
(“Prosecution
Motion”), wherein it requests that the Trial Chamber
(a) grant it leave to exceed the page limit; (b) exclude
the entirety of the Jasovic material4
pursuant to Rules 89 and 95; or, (c) alternatively,
should the Chamber decide to admit all or part of
the Jasovic material, admit some or all of the Prosecution
material5 used
during cross-examination of the witness.
- The Prosecution argues that (a) the Jasovic
material is hearsay and, as such, must be reliable
for it to be admitted; (b) the reliability of a document
goes to the issue of admissibility first and then,
if the document is admitted, to its weight; and
(c) it has demonstrated during the cross-examination
of the witness that the Jasovic material is unreliable.6
- The Prosecution argues that (a) the Jasovic
material is inadmissible under Rule 95 on the basis
that it was obtained under duress, using methods
contrary to internationally protected human rights,
and/or is otherwise manifestly unreliable ; (b) “sufficient
information is already in the possession of the Trial
Chamber in oral evidence and/or already admitted
exhibits to trigger the application of Rule 95 and
exclude Jasovic’s material from the record...” (footnote
omitted); and (c) the Trial Chamber should make
its determination by applying the legal standard
of a balance of the probabilities, not beyond reasonable
doubt.7
- “The Prosecution submits that the Trial Chamber
can rely on the (Prosecution material( to reach
a decision on admissibility of Jasovic’s material.
However, should the Trial Chamber decide that it
can only rely on the material that is ‘on
the record’, the Prosecution submits that sufficient
evidence is available for Jasovic’s
material to be excluded.”8
- The Prosecution (a) sets forth the factual
environment in which the witness operated, referencing
already-admitted Prosecution exhibits and the Prosecution
material, not yet admitted, and (b) argues that
this material shows that the Jasovic material was
obtained in a manner that either makes it unreliable
or contrary to the provisions of Rule 95.9
- Apart from the materials that the Prosecution
put to the witness, the Prosecution (a) sets forth
multiple, detailed arguments and examples in connection
with the witness’ testimony and documents in order
to demonstrate that the Jasovic material lacks the
requisite indicia of reliability and (b) argues that
inconsistencies and implausible statements in the
witness’ own evidence independently prevent the Jasovic
material from being admissible.10
- During oral argument on this matter on 29 June
2005,11
Assigned Counsel argued in favour of the Trial Chamber
admitting the Jasovic material, advancing the position
that (a) the statements contained within the Jasovic
material were not prepared for purposes of proceedings
before the Tribunal, but arose as part of an official
record, and (b) the material thus can be considered
to have a level of independence from the proceedings.
As support, Assigned Counsel cited the fact that the
Chamber admitted into evidence official notes of interviews
taken by police investigators that constituted information
available to Prosecution witness Dragan Karleusa,
who headed a working group investigating the refrigerator
lorry incident in Kosovo.12
- Assigned Counsel argued that, during the Prosecution
case, the Accused attempted to move into evidence “cross-examination
ammunition and material” after having put
it to a witness, but was unsuccessful, being told by
the Trial Chamber that he would have to adduce such
evidence during his Defence case. As support, Assigned
Counsel cite the cross-examination of Prosecution
witness Vesna Bosanac, who was director of the Vukovar
medical centre and who testified about the events
at Vukovar Hospital.13
- Assigned Counsel finally argued that a consistent
approach to the admission of evidence during cross-examination
should be applied by the Trial Chamber to do justice
between the parties and to ensure that the parties
are treated the same.14
- During the hearing,15 the Prosecution
(a) disagreed with Assigned Counsel’s argument that
there is a general practice of admitting documents
that are considered to be “official”, in circumstances
where they otherwise do not meet admission standards;
rather, admission of a document is a case-by-case
determination; (b) pointed out the difference between
(i) the examples cited by Assigned Counsel (Karleusa,
Bosanac) and (ii) the present situation where the
witness is confronted by a substantial body of material
contradicting his evidence; and (c) repeated its position,
as set forth in the Prosecution Motion, that the standard
of proof is a balance of the probabilities, but that
the burden of proof is on the party tendering the
documents as evidence.
- During the hearing,16 the Accused
argued that (a) the Jasovic material consists of public
and contemporaneous documents of the Ministry
of the Interior and that none were created for
the purposes of this trial; (b) the witness
worked at the Ministry of the Interior and has
been a crime investigator for several decades,
during which time there has never been any criticism
of his work; and (c) the Jasovic material “contain(s(
countless facts, countless names, descriptions
of events, and it’s simply unbelievable for
anyone who is a Homo sapiens to imagine that
this was all a product of imagination.”
- The Accused (a) pointed out that the witness
was brought to his attention by the Prosecution
itself; (b) argued that the evidence of the witness
made it clear that the declarants in the Prosecution
material contradicted their earlier statements in
the Jasovic material because their lives were in
danger; and (c) submitted that the Prosecution has
falsified evidence and has deliberately distorted
the truth.
- Finally, the Accused argued, “There is nothing
in (the Prosecution’s( evidence
to refute the official records and the official statements
collected by Mr. Jasovic as an official authorised
officer that need to be exhibited, and the evidence
collected by (the Prosecution( to shake the credibility
of this witness should, in my opinion, be rejected
because it doesn’t meet a single criterion of authenticity.”17
C. Discussion
1. Admissibility of the Jasovic material under
Rule 95
- The Trial Chamber will first deal with the
Prosecution’s argument that the
Jasovic material is inadmissible under Rule 95. Despite
questioning by the Prosecution, the witness adhered
to his position that the statements were not given
under duress. Although the Prosecution, in paragraphs
16-25 of the Motion, pointed to what it considered
to be inconsistencies and implausibilities in the
evidence of the witness, the Chamber has not been
persuaded that the criteria set out in Rule 95 for
excluding the evidence have been satisfied. The evidence
given by the witness during cross-examination will
be carefully considered by the Trial Chamber when
the time comes to assess the weight that can be
attributed to the Jasovic material. It may very
well be that serious consideration of the Jasovic
material will have to be confined to its status
as public documentation within the Ministry of the
Interior. However, that is something that should
be considered by the Chamber during final deliberations
in light of its consideration of all the evidence
relating to the reliability of the Jasovic material.
2. Admissibility of the Jasovic material under
Rule 89
- The Trial Chamber will now deal with the admissibility
of the material under Rule 89 and the jurisprudence
of the Tribunal regarding hearsay.
- Rule 89(C) provides that “[a] Chamber may admit
any relevant evidence which it deems to have probative
value.” Moreover, the Appeals Chamber has held that
[i]t is well settled in the practice of the
Tribunal that hearsay evidence is admissible....
Since such evidence is admitted to prove the
truth of its contents, a Trial Chamber must be
satisfied that it is reliable for that purpose,
in the sense of being voluntary, truthful and
trustworthy, as appropriate; and for this purpose
may consider both the content of the hearsay
statement and the circumstances under which the
evidence arose; or,... the probative value of
a hearsay statement will depend upon the context
and character of the evidence in question. The
absence of the opportunity to cross-examine the
person who made the statements, and whether the
hearsay is “first-hand” or more removed, are
also relevant to the probative value of the
evidence. The fact that the evidence is hearsay
does not necessarily deprive it of probative
value, but it is acknowledged that the weight
or probative value to be afforded to that evidence
will usually be less than that given to the testimony
of a witness who has given it under a form of
oath and who has been cross -examined, although
even this will depend upon the infinitely variable
circumstances which surround hearsay evidence.18
The Appeals Chamber has also held that “evidence is
admissible only if it is relevant and it is relevant
only if it has probative value, general propositions
which are implicit in Rule 89(C)”.19 The Trial
Chamber considers that reliability of a hearsay statement
is a necessary prerequisite for probative value under
Rule 89(C).20
The Chamber will apply the law as set out in these
statements.
- As pointed out by Assigned Counsel and to a
certain extent by the Accused, the witness took
the statements in the course of his official duties,
and the statements are official documents of the
Ministry of the Interior. The Jasovic material relates
to the crimes alleged in paragraph 66(a) of the
Kosovo Indictment: the events in Racak on 15 January
1999, specifically the identities of the alleged
victims and their status as either civilians or
members of the KLA. As such, it is both relevant
and has probative value. For the foregoing reasons,
the Chamber finds that the Jasovic material meets
the tests set out in paragraph 18 of this Decision
and thus are admissible. The evidence given by the
witness during cross-examination will be considered
when the Chamber assesses the weight to be given
to the Jasovic material and the credibility of the
witness.
3. Phoenixes of Liberty
- The document Phoenixes of Liberty, The Kosovo
Liberation Army Martyrs
(Kosovo Liberation Army Veterans Association, Pristina,
2002)21
was disclosed to the Accused by the Prosecution under
Rule 68.22
The Prosecution used the document in its cross-examination
of the witness23
and did not object to its admission.24
The Accused re-examined the witness in relation to
this document as well.25
In these circumstances, the Trial Chamber decides that
it is appropriate to admit the document as a Defence
exhibit.
4. Exhibits of Defence witness Obrad Stevanovic
- The Trial Chamber notes that some of the Jasovic
material was tendered as evidence in connection
with the testimony of Defence witness Obrad Stevanovic.26
Any such document was denied admission in the Trial
Chamber’s “Decision on Admission
of Documents in Connection with Testimony of Defence
Witness Obrad Stevanovic”,
issued 8 July 2005 (“Stevanovic Decision”), on the
basis that it would be dealt with in this Decision.
- Three documents in the Prosecution Racak Binder27
were tendered as evidence through Defence witness Stevanovic,
but were not admitted through that witness because
they were not referred to during his testimony. However, because the Prosecution subsequently included them
in its materials in relation to Defence witness Jasovic,
thus indicating its lack of objection to their admission, the Trial Chamber will hereby admit them into evidence,
via this Decision, which may be considered as modifying
the Stevanovic Decision.
5. Admissibility of the Prosecution material
- Much of the Prosecution material consists of
interviews of the declarants in the Jasovic material
taken by Prosecution investigators during the hiatus
in the witness’ testimony. The Prosecution submits
that “the totality of the credible
evidence demonstrating the unreliability of Jasovic’s
material, including his evasive and inconsistent responses
to questions from the Trial Chamber and from the Prosecution, justifies the admission of some or all of the previously
un-admitted material contained in the [Prosecution
material], regardless of whether Jasovic acknowledged
the truthfulness of the Prosecution material” and
that “[o]n this occasion and in
these particular circumstances, the Trial Chamber is
urged to reconsider the appropriateness of following
the approach taken in the Hadzihasanovic case,
as supported by the Prosecution in earlier submissions”.28
- The Trial Chamber has recently held that in
circumstances where, during cross -examination,
the Prosecution has put an assertion (based
on a document or other material) to a 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...,... 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.29 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,30
but this does not allow it to have that material admitted
into evidence where no basis for its admission has
been made out.31
The Chamber discerns no reason to depart from this
approach in the present circumstances, and the Prosecution’s
request that the Chamber reconsider the Decision
on Reconsideration is thus rejected.
- Due to the fact that the witness consistently
did not adopt, rejected outright, or was not in
a position to say anything meaningful about the documents
put to him by the Prosecution during cross-examination,
the Prosecution material is denied admission into
evidence.
Disposition
- Pursuant to Rules 54 and 89 of the Rules, the
Trial Chamber hereby ORDERS as follows:
(a) The Jasovic material is GRANTED admission into
evidence.
(b) Phoenixes of Liberty, including the translation
of the Foreword, is GRANTED admission into evidence
as a Defence exhibit.
(c) The Stevanovic Decision is hereby MODIFIED so that
exhibit D299, tabs 384, 386, and 401 are admitted
into evidence; and the Registry of the Tribunal shall
include them in the record of the proceedings.
(d) The Prosecution material is DENIED admission into
evidence.
(e) The Prosecution is GRANTED leave to exceed the
page limit.
Done in both English and French, the English
text being authoritative.
___________
Judge Robinson
Presiding
Dated this twenty-sixth day of August 2005
At The Hague
The Netherlands
[Seal of the Tribunal]
1 - See, e.g., Order Rescheduling
Cross-Examination of Defence Witness Dragan Jasovic,
issued 11 May 2005.
2 - See
also Decision on Prosecution Motion for Certification
of Trial Chamber Decision on Prosecution Motion for
Voir Dire Proceeding, issued 20 June 2005 (denying
the Prosecution’s motion for certification of an
interlocutory appeal of the voir dire decision).
3 - T. 41112
(21 June 2005).
4 - Fifty-eight
statements (tabs 1.1–1.58) of named individuals who
gave the witness information in the course of his duties
as inspector on terrorism matters at the Urosevac/Ferizaj
Secretariat of Internal Affairs (“Urosevac SUP”); thirty
official notes and records of operative information
(tabs 2.1–2.30); a record of receipt of a criminal
complaint dated 27 December 1998 (tab 3); and a criminal
complaint dated 10 October 1998 (tab 4) (hereinafter
referred to collectively as “Jasovic material”).
5 - Tabs
1-21, organised into five parts with multiple subtabs
and annexes (herein referred to collectively as “Prosecution
material”). Tabs 20-21 are previously admitted material.
6 - Prosecution
Motion, paras. 4-6.
7 - Prosecution
Motion, paras. 7-9.
8 - Prosecution
Motion, p. 4, note 21.
9 - Prosecution
Motion, paras. 10-15, 27.
10 - Prosecution
Motion, paras. 16-25.
11 - T.
41499-41504 (29 June 2005).
12 -
T. 8344-8364 (22 July 2002).
13 -
T. 15655-15680 (5 February 2003). See also T. 40809-40814
(15 June 2005).
14 - Assigned
Counsel also raised other matters relating to specific
exhibits, and the Prosecution responded in detail to
these points. The Trial Chamber has considered these
arguments when deciding on the admission of Jasovic
and Prosecution materials.
15 - T.
41504-41508, 41511-41512 (29 June 2005).
16 - T.
41509-41511 (29 June 2005).
17 -
T. 41511 (29 June 2005).
18 -
Prosecutor v. Aleksovski, Case No. IT-95-14/1-AR73,
Decision On Prosecutor’s Appeal on Admissibility
of Evidence, 16 February 1999, para. 15 (citing Prosecutor
v. Tadic, Case No. IT-94-1-T, Decision on the
Defence Motion on Hearsay, 5 August 1996, paras.
15-19 & Separate
Opinion of Judge Stephen on the Defence Motion on
Hearsay, pp. 2-3; Prosecutor v. Blaskic, Case No. IT-95-14-T,
Decision on the Standing Objection of the Defence to
the Admission of Hearsay with No Inquiry as to Its
Reliability, 21 January 1998, paras. 10, 12) (footnotes
omitted).
19 - Prosecutor
v. Galic, Case No. IT-98-29-AR73.2, Decision on Interlocutory
Appeal Concerning Rule 92bis(C), 7 June 2002, para.
35.
20 - Prosecutor
v. Tadic, Case No. IT-94-1-T, Decision on the
Defence Motion on Hearsay, 5 August 1996, para. 15
(holding that “if evidence offered is unreliable, it certainly
would not have probative value”). This statement
in Tadic thus indicates that evidence having probative
value is necessarily reliable.
21 - This
document was referred to in court as “Fallen Heroes” and “Phoenix”.
T. 40796 (15 June 2005), 40956 (16 June 2005), 41018
(17 June 2005), 41162, 41165, 41171, 41175 (20 June
2005), 41200 (21 June 2005).
22 - T.
41204-41206 (21 June 2005).
23 -
T. 40769 (15 June 2005), 40956-40957 (16 June 2005),
41016-41018 (20 June 2005).
24 - T.
41204 (21 June 2005).
25 - T.
41162-41176 (20 June 2005), 41199-41206 (21 June 2005).
26 - Prosecution
Motion, paras. 3, 26. Some of the Jasovic material
was also tendered as evidence in connection with the
testimony of Defence witness Danica Marinkovic.
27 - No.
15 – D299, tab 384; No. 24 – D299, tab 386; No. 36 – D299,
tab 401.
28 - Prosecution
Motion, paras. 29-31 (footnotes omitted).
29 - Rule
85 of the Rules provides a clear structure for the
presentation of evidence in proceedings before the
International Tribunal.
30 - Rule
90(H) of the Rules provides the following:
(i) Cross-examination
shall be limited to the subject-matter of the evidence-in-chief
and matters affecting the credibility of the witness
and, where the witness is able to give evidence
relevant to the case for the cross-examining party,
to the subject-matter of that case.
(ii) In the
cross-examination of a witness who is able to give
evidence relevant to the case for the cross-examining
party, counsel shall put to that witness the nature
of the case of the party for whom that counsel
appears which is in contradiction of the evidence
given by the witness.
(iii) The Trial Chamber may,
in the exercise of its discretion, permit enquiry
into additional matters.
31 - See Decision on
Prosecution Motion for Reconsideration Regarding
Evidence of Defence Witnesses Mitar Balevic, Vladislav
Jovanovic, Vukasin Andric, and Dobre Aleksovski
and Decision Proprio Motu Reconsidering Admission
of Exhibits 837 and 838 Regarding Evidence of Defence
Witness Barry Lituchy, issued 18 May 2005 (“Decision
on Reconsideration”), para. 9.