Case No. IT-02-54-T
IN TRIAL CHAMBER III
Before:
Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy
Registrar:
Mr. Hans Holthuis
Order of:
23 September 2004
PROSECUTOR
v.
SLOBODAN MILOSEVIC
______________________________
PUBLIC VERSION
FIRST DECISION ON ADMISSIBILITY OF SUPREME DEFENCE COUNCIL
MATERIALS
______________________________
Office of the Prosecutor:
Ms. Carla Del Ponte
Mr. Geoffrey Nice
The Accused:
Mr. Slobodan Milosevic
Court Assigned Counsel:
Mr. Steven Kay, QC
Ms. Gillian Higgins
Amicus Curiae:
Prof. Timothy McCormack
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"),
NOTING that the Trial Chamber issued the confidential version of this Decision on 11 June 2004,
NOTING the following:
- confidential and partly ex parte "Prosecution’s Fourth Omnibus
Motion For Leave to Amend the Witness List and Request for Protective Measures
For Witnesses Named Herein", filed by the Prosecution on 31 October 2003,
requesting that Nena Tromp [ redacted]
be added to the list of witnesses and setting forth a brief outline of her
proposed evidence;
- "Decision on Prosecution’s Fourth Omnibus Motion For Leave to Amend
the Witness List and Request for Protective Measures", issued 21 November
2003, finding that there was no "good cause" to add Ms. Tromp to
the witness list and thus refusing the Prosecution’s application in this regard;
- confidential "Prosecution Motion Concerning Withdrawal of the Witness
[ redacted]
from the Witness List, the Analysis and Interpretation of Supreme Defence
Council Material and the Addition of an Analyst to the Witness List",
filed by the Prosecution on 29 January 2004, applying – again – to add Ms.
Tromp to the witness list so that documentation pertaining to sessions of
the Supreme Defence Council of the Federal Republic of Yugoslavia ("SDC
material") could be tendered as evidence through her and providing the
following reasons:
- the Prosecution had intended to produce the SDC material through [
redacted] ; however, in light of the Trial
Chamber’s [ confidential]
"Decision on Serbia and Montenegro’s Application for an Order to Protect
State Interests in Relation to Testimony of Witness [
redacted] ", filed 28 January 2004,
the Prosecution decided it was unable to call the witness;
- much of the SDC material is self-explanatory, but there are portions which
require and benefit from contextual analysis, and the Prosecution was preparing
such an analysis; and
- the analysis is that of Ms. Tromp, a member of the Leadership Research
Team of the Office of the Prosecutor, who has studied the SDC material in
depth and who assisted in the selection of the most significant extracts
for the Trial Chamber’s consideration;
- confidential "Amici Curiae Reply to Confidential Prosecution Motion
Concerning the Withdrawal of a Witness From the Witness List and the Addition
of an Analyst to the Witness List dated 29 January 2004", filed by the
Amici Curiae on 1 February 2004, submitting that the addition of the
witness should not be allowed;
- confidential "Decision on Prosecution Motion Concerning Withdrawal
of the Witness [ redacted]
and Addition of an Analyst to the Witness List to Deal with the Supreme Defence
Council Material", issued 4 February 2004, in which the Trial Chamber
denied the application to add Ms. Tromp to the witness list and ordering that
the Prosecution may produce the SDC material along with its analysis and interpretation
of that material ("Relevance Submission" – see below) by 10 February
2004, after which the Trial Chamber would make a decision whether to admit
that material into evidence; and
- confidential "Prosecution’s Analysis and Interpretation of Supreme
Defence Council Related Documents and Other Material Described in the Prosecution
Motion dated
29 January 2004", filed by the Prosecution on 17 February 2004 ("Relevance
Submission"),1 in which it made submissions, inter
alia, with respect to the relevance of the SDC material in Annex I thereto,
entitled "Analysis, relevance and interpretation of the records of the
sessions of the Supreme Defence Council",
NOTING that the Accused and Amici Curiae have not responded to the Relevance Submission,
CONSIDERING that the Prosecution has demonstrated that the SDC material with respect to the 41st and 43rd sessions is relevant to the current proceedings,
NOTING that the Trial Chamber shall issue its decision with respect to the remainder of the SDC material in due course,
NOTING that (1) certain portions of the SDC material with respect to
the 41st and 43rd sessions have been granted protective
measures by prior Decisions of the Trial Chamber pursuant to Rule 54bis
of the Rules of Procedure and Evidence of the International Tribunal ("Rules")2
and (2) these portions (as indicated in the Fourth and Ninth Decisions) shall
therefore be admitted into evidence on a confidential basis,
PURSUANT TO Rules 54 and 89 of the Rules,
HEREBY ORDERS as follows:
- the SDC material with respect to the 41st and 43rd
sessions shall be admitted into evidence; and
- the portions of the SDC material with respect to the 41st and
43rd sessions that have already been granted protective measures
shall be admitted into evidence on a confidential basis.
Done in both English and French, the English text being authoritative.
_____________
Patrick Robinson
Presiding
Dated this twenty-third day of September 2004
At The Hague
The Netherlands
[Seal of the Tribunal]
1. The Relevance Submission was initially provided
to the Trial Chamber, Accused, and Amici Curiae as an unfiled document,
but was subsequently filed.
2. See [ confidential] "Decision on Serbia and Montenegro’s
Request for Protective Measures Pursuant to Rule 54bis", issued 30
July 2003 ("Fourth Decision"); [ confidential] "Ninth Decision
on Applications Pursuant to Rule 54bis of Prosecution and Serbia and Montenegro",
issued 15 October 2003 ("Ninth Decision").