Case No. IT-01-47-T

IN TRIAL CHAMBER II

Before:
Judge Jean-Claude Antonetti

Judge Vonimbolana Rasoazanany
Judge Bert Swart

Registrar:
Mr Hans Holthuis

Decision of:
2 July 2004

THE PROSECUTOR

v.

ENVER HADZIHASANOVIC
AMIR KUBURA

________________________________________________

DECISION ON PROSECUTION MOTION PURSUANT TO RULE 92 BIS (C) AND (D) OF THE RULES

________________________________________________

The Office of the Prosecutor:

Mr Daryl Mundis
Ms Tecla Henry-Benjamin

Defence Counsel:

Ms Edina Residovic and Mr Stéphane Bourgon for Enver Hadzihasanovic
Mr Fahrudin Ibrisimovic and Mr Rodney Dixon for Amir Kubura

TRIAL CHAMBER II (“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”),

BEING SEISED of the Prosecution Motion for Admission of Written Statements Pursuant to Rule 92 bis (B) and (C) and of Prior Testimony Pursuant to Rule 92 bis (D) filed by the Office of the Prosecutor (“Prosecution”) on 10 June 2004 (“Motion”), in which the Prosecution requested the Chamber to admit into evidence : a) the witness statements of Ivica Andrijevic and Marijan Bobas, pursuant to Rule 92 bis (B) and (C) of the Rules of Procedure and Evidence (“Rules”) and b ) the prior testimony given by Marijan Bobas in another case before the Tribunal, pursuant to Rule 92 bis (D) of the Rules; 1

NOTING that after the Motion was filed, the Prosecution stated orally on 15 June 2004 that it was, with the Chamber’s consent, withdrawing its request for the admission into evidence of the witness statements of Ivica Andrijevic, while maintaining the statements and testimony of Marijan Bobas; 2

NOTING that in its Motion, the Prosecution requested the Chamber to admit into evidence, pursuant to Rule 92 bis (D) of the Rules, the transcript of the testimony given on 11 December 1998 by Marijan Bobas in the first instance proceedings of the Blaskic case (“Testimony”) stating that the Testimony: a) is reliable because it relates to events which Mr Bobas witnessed personally on 8 June 1993, b) is relevant because it relates to the detention centre in the elementary school of Mehurici referred to in count 4 of the Third Amended Indictment, and c) relates to a point other than the acts and conduct of the Accused; 3

NOTING that, pursuant to Rule 92 bis (C) of the Rules, the Prosecution also requests the admission into evidence of the written statements of Marijan Bobas dated 19 April 2000 and 15 September 2000 annexed to the Motion (“Statements”) stating that: a) Mr. Bobas's inability to come and testify is established by the certified, authenticated death certificate annexed to the Motion, b) the Statements are relevant because they relate to mass killings alleged in the Third Amended Indictment which are said to have occurred on 8 June 1993 in Maline/Bikose which Mr Bobas is said to have survived, c) with regard to these alleged mass killings, the Statements concern “the impact of crimes upon victims” according to Rule 92 bis (A)( i)(d) of the Rules, d) the Statements merely corroborate testimony of other witnesses in this case, whom counsel for the two Accused (“Defence”) were able to cross-examine, and e) there are satisfactory indicia of reliability of the Statements since they were taken by investigators and interpreters of the Tribunal, they include an attestation from Mr Bobas as to the accuracy of their content, and they are based on the Testimony which had been taken under oath; 4

NOTING that in the Joint Defence Response to the Prosecution Motion for Admission of Written Statements Pursuant to Rule 92 bis (B) and (C) and of Prior Testimony Pursuant to Rule 92 bis (D) filed on 17 June 2004 (“Response”), the Defence objected to the Testimony’s admission into evidence stating that it: a) is not reliable because Marijan Bobas was not cross-examined when he appeared in the Blaskic case, and b) does not satisfy any of the criteria set out in Rule 92 bis (A)(i) of the Rules which might justify a written statement being tendered in lieu of Mr Bobas's oral testimony; 5

NOTING that the Defence objects also to the admission of the Statements on the grounds that: a) they are not reliable because their sole purpose was to gather prosecution evidence, b) differences in the content of the Statements and the Testimony would require Mr Bobas to appear in this case, which is not possible, c) both the Statements and the Testimony contain new elements which are not part of the evidence in this trial, and d) with regard to the Statements and Testimony the Prosecution submitted its motion more than eight months after the death of Mr Bobas and at the end of its case, thus preventing the Defence from preparing or modifying the cross -examination of the Prosecution witnesses in order to take into consideration the Statements and Testimony; 6

NOTING moreover that before the beginning of its case, the Prosecution informed the Chamber and the Defence of its intention to call Marijan Bobas as a witness; 7

NOTING that, pursuant to Rule 66(a)(ii) of the Rules, which requires that the statements of the witnesses whom the Prosecution is calling at trial be made available, it transmitted the four statements of Marijan Bobas, including the Statements in question, to the Defence; 8

NOTING that, before the beginning of its case, the Prosecution informed the Defence and the Chamber on 20 and 21 November 2003 respectively that Marijan Bobas had died on 14 November 2003;

CONSIDERING that, pursuant to Rule 92 bis (C) of the Rules, a written statement may be admissible if made by a person who has since died if a Trial Chamber considers that the circumstances in which the statement was made and recorded are satisfactory indicia of its reliability;

CONSIDERING that, pursuant to Rule 92 bis (D) of the Rules, 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;

CONSIDERING that the Testimony, heard under oath, goes to proof of a matter other than the acts and conduct of the accused, as set out in Rule 92 bis (D) of the Rules;

CONSIDERING also that the Testimony merely corroborates, in the meaning of Rule 92 bis (A)(i)(a) of the Rules, other evidence previously adduced at trial and does not comprise new evidence;

CONSIDERING that, with regard to the Statements, the certified, authenticated death certificate of Marijan Bobas provided by the Prosecution establishes Mr Bobas's inability to come and testify, pursuant to Rule 92 bis (C) of the Rules;

CONSIDERING that, pursuant to Rule 92 bis (A) of the Rules, a Trial Chamber may admit, in whole or in part, evidence presented by a witness in the form of a written statement in lieu of oral testimony and which demonstrates a matter other than the acts and conduct of the accused as alleged in the Indictment;

CONSIDERING that the Statements go to proof of a matter other than the acts and conduct of the accused;

CONSIDERING that the Statements are satisfactory indicia of reliability because they merely corroborate other evidence previously adduced at trial in the meaning of Rule 92 bis (A)(i)(a) of the Rules;

CONSIDERING, in particular, that Marijan Bobas stated that he saw a person of Arab origin in Maline on 8 June 1993 and that another witness who appeared, Berislav Marjanovic, also indicated that he saw “the Mujahedins” 9 the same morning in Maline;

CONSIDERING, furthermore, that the Statements are corroborated by the Testimony given under oath;

CONSIDERING that the Defence had the Statements during the Prosecution case and was, thus, in a position to cross-examine the Prosecution witnesses on the basis of those Statements;

CONSIDERING also that the Defence could challenge the content of the Testimony and the Statements by calling its own witnesses and in its submissions;

CONSIDERING that the Testimony and Statements are relevant because they relate to crimes alleged in Counts 1, 2 and 4 of the Third Amended Indictment;

CONSIDERING, consequently, that the Testimony and Statements are admissible pursuant to Rule 92 bis (C) and (D) of the Rules;

CONSIDERING, nevertheless, that the content of the Testimony already appears in the Statements;

CONSIDERING, thus, that the said Testimony should not be admitted since it is repetitive;

CONSIDERING, lastly, that the admission of the Statements as evidence would not infringe the probative value which the Chamber might, at the end of the trial and if necessary, decide to accord to the evidence contained in the Statements;

FOR THE FOREGOING REASONS,

PURSUANT to Rule 92 bis (C) and (D) of the Rules,

ADMITS the Statements into evidence,

REFUSES to admit the Testimony into evidence.

 

Done in French and English, the French version being authoritative.

Done this second day of July 2004
At The Hague
The Netherlands

___________________
Presiding Judge of the Chamber
Jean-Claude Antonetti

[Seal of the Tribunal]


1 - See para. 1 of the Motion.
2 - T. 8827 and 8829-8830.
3 - See paras. 2 and 3 of the Motion.
4 - See paras. 4-15 of the Motion.
5 - See paras. 11-16 of the Response.
6 - See paras. 14-15 and 17-25 of the Response.
7 - See, for example, para. 7 of the Response.
8 - See para. 4 of the Response.
9 - T. 2699.