Case No. IT-02-54-T
IN THE TRIAL CHAMBER
Before:
Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy
Registrar:
Mr. Hans Holthuis
Decision:
14 June 2004
PROSECUTOR
v.
SLOBODAN MILOSEVIC
_______________________________
DECISION ON PROSECUTION MOTION FOR ADMISSION PURSUANT TO RULE 92bis OF PROPOSED EVIDENCE OF DECEASED WITNESSES B-1539, LUDVIK KRANJC, AND FARUK ALISIC
_______________________________
Office of the Prosecutor:
Ms. Carla Del Ponte
Mr. Geoffrey Nice
Mr. Dermot Groome
Ms. Hildegaard Uertz-Retzlaff
Amici Curiae:
Mr. Steven Kay, QC
Prof. Timothy L.H. 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 "Prosecution Motion for the Admission of Written Evidence from 3 Deceased Witnesses Pursuant to Rule 92 bis And Confidential Annexe", filed by the Prosecution on 6 February 2004 ("Motion"), requesting the admission pursuant to Rule 92bis of the Rules of Procedure and Evidence of the International Tribunal ("Rules") of the proposed evidence of Witnesses B-1539, Ludvik Kranjc, and Faruk Alisic, and "Addendum to the Prosecution Motion for the Admission of Written Evidence from 3 Deceased Witnesses Pursuant to Rule 92 bis and Confidential Annexe", filed on 19 February 2004,
NOTING the "Amici Curiae Reply to Prosecution Motion for the Admission of Written Evidence from 3 Deceased Witnesses Pursuant to Rule 92 bis Dated 6 February 2004", filed 10 February 2004 ("Response"), opposing in part the Motion,
NOTING that the three witnesses are deceased,
Witness B-1539
NOTING that the Prosecution submits the following in the Motion:
NOTING that the Amici Curiae in their Response seem not to oppose admission of the proposed evidence of B-1539 and simply observe that it (1) concerns conditions at KP-DOM in Foca and (2) is cumulative,
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 (1) the witness was subjected to cross-examination in the prior proceeding; (2) the impact of the witness’s unavailability for cross-examination goes to the weight the Trial Chamber ultimately will attribute to the proposed evidence; and (3) it is appropriate to admit the proposed evidence of the witness without cross-examination pursuant to Rule 92bis(E) of the Rules,
Witness Ludvik Kranjc
NOTING that the Prosecution submits the following in the Motion:
NOTING that the Amici Curiae in their Response submit that it is reasonably open to the Accused to oppose admission on the following grounds:
NOTING Rule 92bis(D) and (E) of the Rules,
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 (1) the witness was subjected to cross-examination in the prior proceeding; (2) the information in the proposed evidence was adequately covered in the prior cross-examination; (3) the impact of the witness’s unavailability for cross-examination goes to the weight the Trial Chamber ultimately will attribute to the proposed evidence; and (4) it is appropriate to admit the proposed evidence of the witness without cross-examination pursuant to Rule 92bis(E) of the Rules,
Witness Faruk Alisic
NOTING that the Prosecution submits the following in the Motion:
NOTING that the Amici Curiae in their Response submit that it is reasonably open to the Accused to oppose admission on the following grounds:
NOTING that Rule 92bis(C) of the Rules provides, in relevant part, that a written statement not in the form prescribed by Rule 92bis(B) of the Rules may nevertheless be admitted if made by a person who has subsequently died, provided that the Trial Chamber (1) is so satisfied on a balance of probabilities that the written statement was made by a person who has subsequently died; (2) finds from the circumstances in which the statement was made and recorded that there are satisfactory indicia of its reliability;3 and (3) is satisfied that the information in the statement is relevant,4
NOTING that Rule 92bis(C) of the Rules does not provide a separate and self-contained method of producing evidence in written form in lieu of oral testimony, but rather merely excuses the necessary absence of the declaration required by Rule 92bis(B) of the Rules for written statements to become admissible under Rule 92bis(A) of the Rules,5
NOTING that, as a result, Rule 92bis(C) of the Rules excludes proof of the acts and conduct of the Accused by a written statement of a deceased person,6
NOTING that the Trial Chamber has previously granted the admission of statements of deceased witnesses pursuant to Rule 92bis(A) and (C) of the Rules,7
NOTING that the Prosecution has submitted a death certificate for the witness,
CONSIDERING that (1) the Prosecution has demonstrated, on the balance of probabilities, that the witness died after having made his statement to the Prosecution and that Rule 92bis(C)(i) of the Rules is thus satisfied and (2) the circumstances surrounding the taking of the statement bear sufficient indicia of reliability under Rule 92bis(C)(ii) of the Rules,
CONSIDERING that the Trial Chamber is satisfied that the information in the statement is relevant and does not go to the acts and conduct of the Accused,
CONSIDERING that (1) the impact of the witness’s unavailability for cross-examination goes to the weight the Trial Chamber ultimately will attribute to the proposed evidence; and (2) it is appropriate to admit the proposed evidence of the witness without cross-examination pursuant to Rule 92bis(E) of the Rules,
PURSUANT to Rules 54 and 92bis(A), (C), (D), and (E) of the Rules,
HEREBY ORDERS as follows:
Done in both English and French, the English text being authoritative.
___________
Judge Robinson
Presiding
Dated this fourteenth day of June 2004
At The Hague
The Netherlands
[Seal of the Tribunal]