IN THE TRIAL CHAMBER
Before:
Judge Richard May, Presiding
Judge Patrick Robinson
Judge O-Gon Kwon
Registrar:
Mr. Hans Holthuis
Decision of:
23 January 2004
PROSECUTOR
v.
SLOBODAN MILOSEVIC
_________________________________________________
ORDER ON PROSECUTION MOTION FOR ADMISSION OF A STATEMENT OF B-235 PURSUANT TO RULE 89 (F) AND FOR CERTAIN PROTECTIVE MEASURES
__________________________________________________
The Office of the Prosecutor
Ms. Carla Del Ponte
Mr. Geoffrey Nice
Mr. Dermot Groome
The Accused
Mr. Slobodan Milosevic
Amici Curiae
Mr. Steven Kay, QC
Mr. Branislav Tapuskovic
Mr. Timothy L.H. 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 ("the International Tribunal"),
BEING SEISED of a confidential "Prosecution Motion for the Admission of a Statement of (B-235) Pursuant to 89 (F) and for Protective Measures", filed by the Prosecution on
21 January 2004 ("Motion"), requesting:
Time at which the statement of the witness was disclosed to the Accused
NOTING that the statement of the witness was only served in the language of the Accused on 21 January 2004,
CONSIDERING that the Accused should have sufficient time in which to prepare for the testimony of this witness, who will give important evidence,
Admissibility of the statement under Rule 89 (F)
NOTING Rule 89 (F), which provides as follows: "A Chamber may receive the evidence of a witness orally or, where interests of justice allow, in written form",
NOTING the decision of the Appeals Chamber, which held that Rule 89 (F) allows for the admission of a written witness statement when the witness:
CONSIDERING that the determination of whether the interests of justice favour the admission of a written statement under Rule 89 (F) as evidence-in-chief is made by the Trial Chamber in relation to each individual witness, in light of not only the surrounding circumstances, but also the evidence to be given by the witness,(2)
CONSIDERING that in circumstances in which the statement has been disclosed within a reasonable time before the witness is called to testify, the evidence contained in the statement is admissible pursuant to Rule 89 (F),
Protective measures
NOTING confidential and ex parte A to the Motion, a declaration of an investigator detailing express intimidation of the witness with respect to giving testimony before the International Tribunal,
CONSIDERING that the protective measures sought in respect of the witness, as set out in the Motion, are reasonable and appropriate for the protection of the witness and the family of the witness,
CONSIDERING that the Trial Chamber is satisfied that the measures sought are consistent with the rights of the Accused,
PURSUANT TO Rules 54, 75 and 89 (F) of the Rules of Procedure and Evidence of the International Tribunal,
HEREBY ORDERS AS FOLLOWS:
Done in English and French, the English text being authoritative.
____________
Richard May
Presiding
Dated this twenty-third day of January 2004
At The Hague
The Netherlands
[Seal of the Tribunal]