Case No. IT-95-9-T

IN TRIAL CHAMBER II

Before:
Judge Florence Ndepele Mwachande Mumba, Presiding
Judge Sharon A. Williams

Judge Per-Johan Viktor Lindholm

Registrar:
Mr. Hans Holthuis

Decision of:
28 April 2003

PROSECUTOR
v.
BLAGOJE SIMIC
MIROSLAV TADIC
SIMO ZARIC

_______________________________________________

DECISION ON PROSECUTOR’S MOTION FOR TRIAL CHAMBERS REDETERMINATION OF ITS DECISION OF 2 APRIL 2003 RELATING TO CROSS-EXAMINATION OF DEFENCE RULE 92 bis WITNESSES OR ALTERNATIVELY CERTIFICATION UNDER RULE 73 (B) OF THE RULES OF PROCEDURE AND EVIDENCE

_______________________________________________

The Office of the Prosecutor:

Mr. Gramsci Di Fazio
Mr. Philip Weiner
Mr. David Re

Counsel for the Accused:

Mr. Igor Pantelic and Mr. Srdjan Vukovic for Blagoje Simic
Mr. Novak Lukic and Mr. Dragan Krgovic for Miroslav Tadic
Mr. Borislav Pisarevic and Mr. Aleksandar Lazarevic for Simo Zaric

TRIAL CHAMBER II 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”),

NOTING the oral decision of the Trial Chamber on 2 April 2003 (“Oral Decision ”)1 which denied the oral motion of the Office of the Prosecutor (“Prosecution”) on the same day seeking leave to cross -examine the Defence witness Dorde Tubakovic on inconsistencies between his vive voce testimony and a paragraph struck out of his statement taken on 18 February 2003 pursuant to Rule 92 bis of the Rules of Procedure and Evidence (“Rules ”),

NOTING the “Prosecutor’s Motion for Trial Chamber’s Redetermination of its Decision of 2 April 2003 Relating to Cross-Examination of Defence Rule 92 bis Witnesses, or Alternatively Certification Under Rule 73(B) of Rules of Procedure and Evidence”, filed on 3 April 2003, where the Prosecution requests:

the Trial Chamber to re-determine its oral decision of 2 April 2003 denying permission to cross-examine Defence witnesses as to inconsistencies between their sworn Rule 92 bis statements and their in-court testimony, having had the benefit of legal submissions, or alternatively,

certification pursuant to Rule 73(B) of the Rules for an interlocutory appeal against the Trial Chamber’s oral ruling of 2 April 2003,

CONSIDERING that Rule 92 bis (A) makes admissible evidence of a witness in the form of a written statement, in lieu of oral testimony, where the statement goes to proof of a matter other than acts and conduct of the accused as charged in the indictment,

CONSIDERING that the purpose of Rule 92 bis is to restrict the admissibility of this “very special type of hearsay evidence”, 2 and that it is the lex specialis, which takes the admissibility of such written statements of witnesses out of the scope of the lex generalis of Rule 89( C), although general propositions which are implicit in Rule 89(C), requiring that evidence is admissible only if it is relevant and probative, are applicable to Rule 92 bis,3

CONSIDERING that the lex specialis nature of Rule 92 bis, and the special character of the Tribunal, makes comparisons with other domestic jurisdictions unhelpful;

CONSIDERING that Rule 92 bis allows the Trial Chamber to admit, in whole or in part, the written evidence of a witness, and that portions of the witness statement that are struck out by the Trial Chamber for non-compliance with Rule 92 bis may not be resurrected by parties for the purpose of cross-examination on the credibility of the witness, and may not be treated as a prior representation for cross-examination purposes as they exist only for the purpose of the Rule 92 bis procedure and do not stand alone,

CONSIDERING that the Trial Chamber’s Oral Decision does not prevent a written statement given to investigators for the Prosecution or others for the purposes of legal proceedings, otherwise than in accordance with Rule 92 bis, being received into evidence, or being used for cross-examination purposes, where such evidence complies with the Rules,

CONSIDERING that in accordance with Rule 90 (H)(i) and where the interests of justice require, the Trial Chamber has selected witnesses who have made statements pursuant to Rule 92 bis to appear for vive voce evidence and/or for cross-examination on an admitted 92 bis statement,

NOTING that under Rule 73 (B) the Trial Chamber may grant a certification provided that:

The Impugned Decision involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the Trial, and

The Trial Chamber is of the opinion that an immediate resolution by the Appeals Chamber may materially advance the proceedings,

NOTING that the Oral Decision involves an issue that would significantly affect the fair and expeditious conduct of the proceedings, relating to the right of cross-examination by the Prosecution and also to the rights of Blagoje Simic, Miroslav Tadic and Simo Zaric (“Accused”), to examine witnesses enshrined in Article 21 (e) of the Statute of the Tribunal,4

NOTING that the trial of the Accused is nearing completion, with a limited number of witnesses remaining to be heard, and that it is expedient for a determination to be made on this issue,

FINDING the Trial Chamber upholds its Oral Decision, and grants certification pursuant to Rule 73(B) of the Rules of Procedure and Evidence for an interlocutory appeal against this Oral Decision.

 

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

____________________________
Florence Ndepele Mwachande Mumba,
Presiding

Dated this twenty eighth day of April 2003,
At The Hague
The Netherlands

[Seal of the Tribunal]


1 - T. 17930-32.
2 - Prosecutor v. Slobodan Milosevic, “Decision on Admissibility of Prosecution Investigator’s Evidence”, 30 September 2002, 11.
3 - Id. p11-12.
4 - Article 6(3)(d) of the European Convention for the Protection of Human Rights and fundamental Freedoms” (1950).