The Prosecutor v. Slobodan Milosevic - Case No. IT-02-54-T

“Decision on Prosecution Motion for the Admission of Transcripts in Lieu of Viva Voce Testimony Pursuant to 92 bis (D) – Foca Transcripts”

30 June 2003
Trial Chamber III (Judges May [Presiding], Robinson & Kwon)

Procedural Background

· On 10 January 2003, the Prosecution filed the “Prosecution Motion for the Admission of Transcripts in Lieu of Viva Voce Testimony Pursuant to Rule 92 bis (D)” (“Motion”) in which it sought the admission into evidence, without cross-examination, of transcripts related to the testimony of witnesses in the Krnojelac and Kunarac cases¹ in lieu of viva voce evidence. It alleged that the evidence deals exclusively with crime base events alleged to have occurred in the Foca municipality and not with the acts and conduct of the Accused, and that the evidence does not go to a critical element of the Accused’s case, such that cross-examination by the Accused would be appropriate.

· On 3 February 2003, the Amici Curiae filed the “Amici Curiae Observations on the Prosecution Motion for the Admission of Transcripts in Lieu of Viva Voce Testimony Pursuant to Rule 92 bis (D), filed 10 January 2003” (“Observations ”) in which it is asserted that whilst the transcripts do not contain evidence properly characterised as going to the acts and conduct of the Accused, the Trial Chamber should exercise its discretion not to admit the transcripts and to require all witnesses to attend to give all their evidence as viva voce evidence. Further the Amici argued that should the Chamber decide to admit the transcripts under Rule 92 bis (D), the witnesses should be required to attend for cross-examination.

· On 10 February 2003, the Prosecution filed the “Prosecution’s Reply to Amici Curiae Observations on the Prosecution Motion for the Admission of Transcripts in Lieu of Viva Voce Testimony Pursuant to Rule 92 bis (D)” (“Reply”). On 28 April 2003, the Chamber heard oral argument on the Motion. On 1 May 2003, the Prosecution filed a partly confidential “Addendum to Prosecution Motion for the Admission of Transcripts in Lieu of Viva Voce Testimony Pursuant to Rule 92 bis (D)” (“Addendum”), in which it sets out areas on which the witnesses were previously cross -examined of relevance to the cross-examination of the Accused in this case.

The Decision

On 8 May 2003, the Trial Chamber rendered the following oral ruling on the Motion :

“Th[is]…ruling concerns the Foca transcript evidence and the admissibility… of transcripts … under Rule 92 bis. All the… transcripts… are admissible under the Rule. The following witnesses must attend for cross-examination: B-1015, B-1533, B-1618, B -1120, B-1536. By a majority, Judge Robinson dissenting, the following are admitted without cross-examination: B-1542, B-1543, B-1121, B-1537, B-1538, B-1540”. T Written reasons for this ruling will follow”.

The following is a summary of the reasoned decision of the majority of the Trial Chamber. The partial dissenting opinion of Judge Robinson is also briefly summarised.

The Reasoning

Rule 92 bis² deals with the proof of facts other than by oral evidence in the form of a written statement (Rule 92 bis(A)) or in the form of transcripts of evidence given by a witness in other Tribunal proceedings (Rule 92 bis(D)). Rule 92 bis(A) provides that a Trial Chamber “may admit, in whole or in part, the evidence of a witness in the form of a written statement in lieu of oral testimony which goes to proof of a matter other than the acts and conduct of the accused as charged in the indictment”. It provides a non-exhaustive list of factors in favour of admitting evidence in the form of a written statement.

The regime of Rule 92 bis is as follows: 1) the Trial Chamber uses its discretionary power to determine whether the proposed materials are admissible (i.e. whether they relate or not to “acts and conduct of the accused”); 2) the Trial Chamber determines whether the witnesses should appear for cross-examination.

The admissibility of Rule 92 bis materials

The Appeals Chamber in the Galic case dealt extensively with the nature of the “acts and conduct of the accused”.³ It also held that “the proximity to the Accused of the acts and conduct which are described in the written statement is relevant to the Trial Chamber’s discretion in deciding whether the evidence should be admitted in written form at all” and that “[w]here the evidence is so pivotal to the prosecution case, and where the person whose acts and conduct the written statement describes is so proximate to the accused, the Trial Chamber may decide that it would not be fair to the accused to permit the evidence to be given in written form”.⁴

Considering the above-mentioned criteria, the Trial Chamber held that the transcripts were admissible under Rule 92 bis. It found that the evidence contained in the transcripts did not go to the acts and conduct of the Accused, that the evidence was not so pivotal to the Prosecution case or so proximate to the Accused that the Chamber should consider exercising its discretion to exclude the transcripts from admission. It further found that “[w]hether the earlier Trial Chamber accepted the evidence is irrelevant”.⁵

Cross examination of the witnesses

The applicable test

The Trial Chamber first dealt with the witnesses who the Prosecution conceded “quite properly” should appear for cross-examination, the issues at stake being “live”⁶ to the parties (the role of the JNA and Serb paramilitaries in the takeover of municipalities and villages in Croatia and Bosnia and Herzegovina). It required these witnesses to attend for cross -examination and held that the Accused would not be limited to the areas of evidence he has shown to be in issue, but will be limited only by the requirement to avoid repetition and the time constraints imposed by the Trial Chamber.

The Trial Chamber then turned to the remaining witnesses whose statements the Prosecution sought to have admitted without cross-examination. According to the Trial Chamber in Sikirica, the applicable test is whether the transcript went to proof of a critical element of the Prosecution’s case against the accused and whether the cross-examination in the other proceedings dealt adequately with the issues relevant to the defence in the current proceedings.⁷ According to the present Trial Chamber, another matter for consideration to allow cross-examination is whether the evidence relates to a “live and important issue between the parties, as opposed to a peripheral or marginally relevant issue”.⁸ The Trial Chamber also took into account the finding of the Appeals Chamber in the Galic Decision that the proximity to the accused of the acts and conduct described in the evidence is relevant to the question of whether the witness should be required to attend for cross-examination.⁹ Finally, the present Trial Chamber considered a decision of the Appeals Chamber in Aleksovski setting the ratio for admitting transcripts without cross-examination. A ground for admitting the transcript without cross-examination is whether the witness was extensively cross-examined in the previous proceedings by an accused with a common interest.¹⁰

The Trial Chamber considered all the elements of the test and found that cross-examination was not needed. In doing so it also specified that the extensive character of a cross-examination is not a matter of quantity but of adequacy, which “cannot be calculated to a nicety” but can be inferred from the “length and subject-matter ” of the cross-examination.

Cross-examination and the need to protect victims and witnesses

In respect of the two witnesses who had been victims of multiple rapes, the Trial Chamber recalled that the protection and privacy of witnesses appearing before it is an affirmative one and that in determining the appropriate measures in a case the Trial Chamber must balance the rights of the accused to a fair and public trial and the protection of victims and witnesses.¹¹ It held that “[c]ross-examination should not be permitted mechanically and as a matter of course” and that “[w]here the rights of the accused are protected […] by earlier cross-examinations, the balance […] should be struck on the side of the victims and witnesses”. It therefore found a further reason in the present case not to call these witnesses: avoiding the risk of further traumatisation.

As a final observation, the Trial Chamber recalled that in circumstances where issues arise later in the trial that call into question aspects of the testimony given in prior proceeding the witness can be called and subjected to cross examination , which possibility is “a discretion that always resides with the Trial Chamber”.

Dissenting Opinion of Judge Patrick Robinson

Judge Robinson joined the majority Decision that all the transcripts were admissible but is of the view that all the witnesses concerned should have been subject to cross-examination. In his Opinion, he explains why the discretionary power given to the Chamber should be exercised in favour of cross-examination with regard to the vast majority of Motions for the admission of transcripts.

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1. Krnojelac, IT-97-25-T; Kunarac et. al., IT-96-23-T & IT-96-23/1-T.
2. Rule 92 bis (Proof of Facts other than by Oral Evidence)
(A) A Trial Chamber may admit, in whole or in part, the evidence of a witness in the form of a written statement in lieu of oral testimony which goes to proof of a matter other than the acts and conduct of the accused as charged in the indictment.
(i) Factors in favour of admitting evidence in the form of a written statement include but are not limited to circumstances in which the evidence in question:
(a) is of a cumulative nature, in that other witnesses will give or have given oral testimony of similar facts;
(b) relates to relevant historical, political or military background;
(c) consists of a general or statistical analysis of the ethnic composition of the population in the places to which the indictment relates;
(d) concerns the impact of crimes upon victims;
(e) relates to issues of the character of the accused; or
(f) relates to factors to be taken into account in determining sentence.
(ii) Factors against admitting evidence in the form of a written statement include whether:
(a) there is an overriding public interest in the evidence in question being presented orally;
(b) a party objecting can demonstrate that its nature and source renders it unreliable, or that its prejudicial effect outweighs its probative value; or
(c) there are any other factors which make it appropriate for the witness to attend for cross-examination.
(B) A written statement under this Rule shall be admissible if it attaches a declaration by the person making the written statement that the contents of the statement are true and correct to the best of that person’s knowledge and belief and
(i) the declaration is witnessed by:
(a) a person authorised to witness such a declaration in accordance with the law and procedure of a State; or
(b) a Presiding Officer appointed by the Registrar of the Tribunal for that purpose; and
(ii) the person witnessing the declaration verifies in writing:
(a) that the person making the statement is the person identified in the said statement;
(b) that the person making the statement stated that the contents of the written statement are, to the best of that person’s knowledge and belief, true and correct;
(c) that the person making the statement was informed that if the content of the written statement is not true then he or she may be subject to proceedings for giving false testimony; and
(d) the date and place of the declaration. The declaration shall be attached to the written statement presented to the Trial Chamber.
(C) A written statement not in the form prescribed by paragraph (B) may nevertheless be admissible if made by a person who has subsequently died, or by a person who can no longer with reasonable diligence be traced, or by a person who is by reason of bodily or mental condition unable to testify orally, if the Trial Chamber:
(i) is so satisfied on a balance of probabilities; and
(ii) finds from the circumstances in which the statement was made and recorded that there are satisfactory indicia of its reliability.
(D) A Chamber may admit a transcript of evidence given by a witness in proceedings before the Tribunal which goes to proof of a matter other than the acts and conduct of the accused.
(E) Subject to Rule 127 or any order to the contrary, a party seeking to adduce a written statement or transcript shall give fourteen days notice to the opposing party, who may within seven days object. The Trial Chamber shall decide, after hearing the parties, whether to admit the statement or transcript in whole or in part and whether to require the witness to appear for cross-examination.
3. Galic, IT-98-29-AR73.2, Decision on Interlocutory Appeal Concerning Rule 92bis(C) (“Galic Decision”), 7 June 2002, Judicial Supplement No. 34.
4. Galic Decision, para. 13.
5. Para. 26. In their Observations, the Amici submitted that there was no evidence before the Trial Chamber that the testimony of the witnesses was accepted as reliable evidence of probative value by the previous Trial Chambers (Amici Observation, para. 13).
6. See infra note 8 and text accompanying note.
7. Sikirica et. al., IT-95-8-T, Decision on Prosecutor’s Application to Admit Transcripts under Rule 92 bis, 23 May 2001, para. 4, Judicial Supplement No. 24.
8. Milosevic, IT-02-54-T, Decision on Prosecution’s Request to Have Written Statements Admitted under Rule 92 bis, 21 March 2002, paras. 24-5, Judicial Supplement No. 31 bis. In this Decision, the Trial Chamber also used the term “critical element of the Prosecution’s case”.
9. Galic Decision, para. 13.
10. Aleksovski, IT-95-14/1-AR73, 16 February 1999, para. 25, Judicial Supplement No. 2.
11. Tadic, IT-94-1-T, 31 July 1996, p. 4.