IN THE TRIAL CHAMBER
Judge Almiro Rodrigues, Presiding
Judge Fouad Riad
Judge Patricia Wald
Mr. Hans Holthuis
9 July 2001
MLADEN NALETILIC aka "TUTA"
VINKO MARTINOVIC aka "STELA"
DECISION REGARDING PROSECUTORS NOTICE OF INTENT TO OFFER TRANSCRIPTS UNDER RULE 92 bis (D)
The Office of the Prosecutor:
Mr. Kenneth Scott
Counsel for the Accused:
Mr. Kresimir Krsnik, for Mladen NALETILIC
Mr. Branko Seric, for Vinko MARTINOVIC
1. TRIAL CHAMBER I (hereafter "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 (hereafter "Tribunal") has before it the "Prosecutors Notice of Intent to Offer Transcripts Under Rule 92 bis (D)", dated 29 May 2001 (hereafter "Notice"), in which the Prosecutor informed the Chamber of her intention to submit transcripts and related exhibits relating to seven (7) witnesses who testified in the Blaskic and Kordic cases.
2. The Transcripts in question were the subject of a previous motion by the Prosecutor, that was granted by the Chamber in November 2000 (hereafter "November Decision") pursuant to the Chambers general discretion to admit evidence under Rule 89 (C) of the Rules of Procedure and Evidence (hereafter the "Rules").1 Since that time, the Rules have been amended to include Rule 92 bis (D), which specifically governs the admission of transcripts from other cases before the Tribunal. Accordingly, the Prosecutor filed her Notice to inform the Chamber and counsel for the defence of her intent to offer the transcripts and associated exhibits that were previously authorised by the Chamber in its November Decision, under the new Rule 92 bis.
3. Pursuant to Rule 92 bis (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.
Rule 92 bis (E) further provides:
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...
II. ARGUMENTS OF THE PARTIES
4. The Prosecutor argues that the transcripts and exhibits in question fully meet the criteria for admissibility under Rule 92 bis. The material in question goes to matters such as the existence of an international armed conflict and of a widespread or systematic attack: there is no direct reference to either of the accused. Further, the Prosecutor points out that the witnesses were subjected to full cross-examination by accused who had "identical or very substantially similar interests, in opposing and contesting this evidence." The Prosecutor did not specifically address the application of Rule 92 bis (E) in this case. However, the Prosecutor did state that she does not consider the Chambers November Decision "to be open to re-litigation" simply because there has been a rule change in the interim.
5. The accused Martinovic has not responded to the Notice. However, the accused Naletilic has filed a reply to the Notice2 in which he objects to the admission of the transcripts under Rule 92 bis (D) and contests the Prosecutors claim that the transcripts meet the requirements of the rule. Although he accepts that the transcripts do not expressly mention his name, he considers that the Prosecutor should be required to prove the charges against him without relying upon material previously presented in other cases before the Tribunal. In particular, he considers that "the introduction of transcripts of hearings of witnesses which neither the accused, nor the Trial Chamber have ever seen, heard or directly evaluated, is contrary to the intention of Rule 92 bis (D)." He also notes that new archival material has become available since the witnesses testified in the Blaskic and Kordic cases that should be put to them, but does not give any details about the substance of this new material. Finally, the accused Naletilic argues that the cross examination of the witnesses that took place in the Blaskic and Kordic cases was insufficient but, again, he does not specifically identify the additional matters upon which he wishes to question the witnesses.
6. The application of Rule 92 bis has been previously considered by Trial Chamber III in the Sikirica case.3 In that case, Trial Chamber III emphasised that the rule "does not supplant or modify the general requirements for the admissibility of evidence as set out in sub-Rules 89 (C) and (D) of the Rules, namely that a Chamber may admit any relevant evidence which it deems to have probative value and may exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial".4 This Chamber has previously determined that the transcripts and exhibits in question in this case are of sufficient probative value to warrant admission.5
7. In the present case, the transcripts and exhibits are proffered by the Prosecutor in support of allegations relating to the existence of an international armed conflict, as well as the widespread or systematic nature of the attack that occurred in the region and time period under consideration in the indictment. As the Trial Chamber stated in its November Decision, "[p] re-requisite elements of offences charged in the indictments issued by the Prosecutor, such as the existence of an international armed conflict (a pre-condition for grave breach charges under Article 2 of the Statute), or the existence of a widespread or systematic attack (a pre-condition for crimes against humanity charges under Article 5 of the Statute) determine the category of crimes within the jurisdiction of the Tribunal that the alleged actions of an accused person are to be placed, and not whether an individual accused has in fact committed the acts alleged."6 In the circumstances, the Chamber finds that this material is admissible under Rule 92 bis (D). As the work of the Tribunal progresses, Trial Chambers are increasingly confronted with cases that overlap in material respects with cases previously tried before the Tribunal. Rule 92 bis (D) was intended to alleviate the need for witnesses to reappear before the Tribunal multiple times to present similar testimony, thus avoiding unnecessary expense and reducing the length of trials, in situations where it will not infringe the rights of the accused. The argument of the accused Naletilic that Rule 92 bis (D) does not permit the admission of evidence the Trial Chamber has not "seen, heard or directly evaluated" cannot be sustained.
8. The Chamber accepts the argument made by the Prosecutor that, although Rule 92 bis (D) does not expressly address the issue, exhibits accompanying transcripts form an inseparable and indispensable part of the testimony and can be admitted along with the transcripts.
9. Having accepted that the transcripts and exhibits are admissible, the next question for consideration is whether the witnesses should, nonetheless, be recalled for the purpose of affording the accused an opportunity to cross-examine them in accordance with Rule 92 bis (E). In the Sikirica case, Trial Chamber III held that:
The principal criterion for determining whether, pursuant to Rule 92 bis (E), a witness should be required to appear for cross-examination is the overriding obligation of a Chamber to ensure a fair trial under Articles 20, and 21, of the Statute. In that regard, among the matters for consideration are whether the transcript goes to proof of a critical element of the Prosecutions case against the accused and whether the cross-examination of the witness in the other proceedings dealt adequately with the issues relevant to the defence in the current proceedings.7
10. Thus Trial Chamber III accepted that if the transcripts in question could potentially constitute "proof of a critical element of the Prosecutions case" cross-examination may be necessary. In particular, the Trial Chamber was concerned to ensure that the accused would have the opportunity to cross-examine any witnesses giving evidence that could be used to establish that the accused had genocidal intent, or knowledge of genocidal acts being committed within the confines of a specific detention camp.
11. By contrast, in the present case the requirement of an international armed conflict, as an element for Article 2 charges, is in the nature of a general pre-requisite or contextual element and does not, of itself, constitute criminal conduct. It is a technical requirement that stems from the peculiarities of the development of international humanitarian law relating to internal and international armed conflicts.8 Elements of a contextual nature must be distinguished from elements of a more substantive nature that directly relate to an accuseds conduct, including the mental state of the accused, when determining what is a "critical" element of the offence for the purposes of applying Rule 92 bis (E).
12. The element of the existence of a widespread or systematic attack, required to prove crimes against humanity, is more difficult to categorise. Although it can also be considered a contextual element of Article 5, it is linked to the conduct of the accused because, in order to be convicted of a crime against humanity, the accused must have knowledge that there is an attack on the civilian population and that his or her act is part of the attack.9 Nonetheless, for the purposes of the present case the Chamber notes that the witnesses from the Blaskic and Kordic cases were subjected to cross-examination by accused persons having a similar interest to the present accused in contesting the existence of a widespread or systematic attack. The Chamber is not prepared to order that such witnesses be recalled for cross-examination in the absence of specific information as to why the cross examination of the witnesses in the Blakic and Kordic cases was inadequate and the substance of the additional lines of cross-examination the accused in the present case wishes to pursue. No such information has been provided.
13. Finally, as to the defence argument that new material has become available since the witnesses testified that should be put to them, the Chamber reiterates its finding from the November Decision, which accords with Trial Chamber IIIs approach in the Sikirica case, that the way to deal with such rebuttal evidence is to call it as part of the defence case.10
FOR THE FOREGOING REASONS
TRIAL CHAMBER I,
HEREBY confirms the admission, under the new Rule 92 bis (D), of transcripts and accompanying exhibits of the seven witnesses previously authorised by the Chamber in its November Decision.
Done in French and English, the English version being authoritative.
Dated this 9th day of July 2001,
At The Hague,
[Seal of the Tribunal]
Prosecutor v Naletilic & Martinovic, Case No.: IT-98-34-PT, Decision on
Prosecution Motion for Admission of Transcripts and Exhibits Tendered During Testimony of
Certain Blaskic and Kordic Witnesses, 27 November 2000 (hereafter November
2. Prosecutor v Naletilic & Martinovic, Case No.: IT-98-34-PT, Response to the Prosecutors Notice of Intent to Offer Transcripts Under Rule 92 bis (D)" 7 June 2001 (hereafter "Response").
3. Prosecutor v Sikirica et. al., Case No.: IT-95-8-T, Decision on Prosecutions Application to Admit Transcripts Under Rule 92 Bis, 23 May 2001 (hereafter Sikirica Decision).
4. Sikirica Decision, para 3.
5. November Decision p 7.
6. November Decision p 7.
7. Sikirica Decision, at para 4.
8. In the context of cumulative convictions, the majority of the Delalic Appeals Chamber considered the existence of an international armed conflict (or status of the victims as protected persons) to constitute a materially distinct element of grave breach charges under Article 2 of the Statute. See Prosecutor v Delalic et. Al., Case No.: IT-96-21-A, Judgement 20 February 2001 (hereafter "Delalic), para 423-424. However, in their separate and dissenting opinion in the Delalic case, Judge Hunt and Judge Bennouna referred to the nature of the conflict as a "legal prerequisite or contextual element which [ does] not have a bearing on the accuseds conduct " They emphasised that such elements must be distinguished from "substantive elements which relate to an accuseds conduct, including his mental state ". See Delalic, Separate and Dissenting Opinion of Judge David Hunt and Judge Mohamed Bennouna, para 26.
9. See e.g. Prosecutor v Kunarac et. al., Case No.: IT-96-23-T & IT-96-23/1-T, Judgement, 22 February 2001, para 418.
10. November Decision p 6; Sikirica Decision, at para 21.