Case No. IT-02-54-T


Judge Richard May, Presiding
Judge Patrick Robinson
Judge O-Gon Kwon

Mr. Hans Holthuis

18 February 2004







Office of the Prosecutor:

Mr. Geoffrey Nice
Ms. Hildegaard Uertz-Retzlaff
Mr. Dermot Groome

Amici Curiae:

Mr. Steven Kay
Mr. Branislav Tapuskovic
Prof. Timothy McCormack

The Accused:

Mr. Slobodan Milosevic


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 ("International Tribunal"),

BEING SEISED of a confidential "Prosecution Second Motion for the Admission of the Prior Transcripts of B-1585 and B-1764 Pursuant to Rule 92 bis (D) And Confidential Annexes", filed by the Office of the Prosecutor ("Prosecution") on 13 February 2004 ("Motion"), (1) withdrawing certain exhibits from the first motion1 and (2) requesting that the Trial Chamber, pursuant to Rule 92bis(D) of the Rules of Procedure and Evidence of the International Tribunal ("Rules"), admit into evidence without cross-examination the transcripts and certain related exhibits ("proposed evidence") of Witnesses B-1585 and B-1764 ("witnesses") and mark for identification certain other exhibits,

NOTING the Trial Chamberís "Decision on Prosecution Motion for Admission of Transcripts Pursuant to Rule 92bis(D) for Witnesses B-1585 and B-1764", issued 22 January 2004,2 denying the Prosecutionís first motion for the witnesses,

CONSIDERING the Prosecutionís arguments in the first motion, as well as those set forth in the Motion regarding the removal of BCS material not translated into English and the importance of the proposed evidence of the witnesses,3

CONSIDERING the confidential "Amici Curiae Reply to Prosecution Motion for the Admission of Transcripts Pursuant to Rule 92BIS(D) Dated 19 December 2003", filed 31 December 2003, opposing the first motion and arguing that the witnesses should be required to give their evidence viva voce and appear for cross-examination on the bases that (1) the proposed evidence of the witnesses is linkage evidence and (2) the interests of justice require that the Accused have the opportunity to cross-examine witnesses giving evidence not only relating to his acts and conduct, but also evidence that is circumstantial and relates to allegations against him,

NOTING that Rule 92bis(D) and (E) of the Rules provides that the Trial Chamber (1) may admit a transcript of evidence given by a witness in proceedings before the International Tribunal that goes to proof of a matter other than the acts and conduct of the Accused and (2) shall decide whether to admit the transcript in whole or in part and whether to require the witness to appear for cross-examination,

CONSIDERING that the proposed evidence does not go to proof of the acts and conduct of the Accused and is therefore admissible under Rule 92bis(D) of the Rules,

CONSIDERING that the proposed evidence goes to matters that may be of critical importance to the Accusedís defence and that it is therefore appropriate for the witnesses to appear for cross-examination,

PURSUANT to Rules 54 and 92bis(D) and (E) of the Rules,

HEREBY ORDERS that the transcripts of the witnessesí prior testimony shall be admitted into evidence and the related exhibits shall be withdrawn, admitted into evidence, or marked for identification (according to the schemes set out in confidential Annexes A and B of the Motion), provided that the witnesses are made available for cross-examination.

Done in both English and French, the English text being authoritative.

Patrick Robinson

Dated this 18th day of February 2004
At The Hague
The Netherlands

[Seal of the Tribunal]

1. See note 2, infra.
2. Confidential "Prosecution Motion for the Admission of Transcripts Pursuant to Rule 92bis(D)", filed by the Prosecution on 19 December 2003 ("first motion").
3. Motion, at paras 4-5, 6-9.