The Prosecutor v. Slobodan Milosevic - Case No. IT-02-54-AR73.4

“Decision on Interlocutory Appeal on the Admissibility of Evidence-in-Chief in the Form of Written Statements”

30 September 2003
Appeals Chamber (Judges Pocar [Presiding], Jorda, Shahabuddeen, Hunt and Güney)

Procedural Background

· On 16 April 2003, Trial Chamber III denied a Prosecution motion to be allowed to submit the evidence-in-chief of some of its witnesses in writing, meaning that witnesses would provide statements or summaries of statements signed by them as being true and would thereafter be available for cross-examination.¹ It held that “under the present Rules, such written statements are only admissible under Rule 92 bis and by no other means”.²

· On 6 May 2003, Trial Chamber III granted the Prosecution’s leave to appeal the Decision of the Trial Chamber pursuant to Rule 73(C) of the Rules of Procedure and Evidence (“Rules”).³ The relief sought by the Prosecution was inter alia a finding that written statements are not only admissible under Rule 92 bis but also under Rule 89(F) as evidence -in-chief, whereby the witnesses provide statements signed by them as being true, before being available for cross-examination.

The Decision

The Appeals Chamber allowed the appeal from the Decision of the Trial Chamber insofar as it found that, as a matter of law, the Rules allow for the admission of a written witness statement under Rule 89(F) when the witness: a) is present in court, b) is available for cross-examination and any questioning by the judges, and c) attests that the statement accurately reflects his or her declaration and what he or she would say if examined. It returned the matter to Trial Chamber III for it to consider the admission of evidence in accordance with the present Decision. On 21 October 2003, Judge Hunt appended a dissenting opinion. Judge Shahabuddeen appended a separate opinion on 31 October 2003. Other Judges reserved the right to append opinions to the present Decision.

The Reasoning

Applicable law

Under Rule 92 bis, evidence presented in the form of a written statement may be admitted in lieu of oral testimony where the statement goes to proof of a matter other than the acts and conduct of the accused as charged in the indictment.⁴ Under Rule 89(F) a Chamber may receive the evidence of a witness orally or, where the interests of justice allow, in written form. There is no requirement in Rule 89 that the evidence so presented goes only to proof of a matter other than the acts and conduct of the accused.

Connection between Rule 89 and Rule 92 bis

In the Galic Decision of 7 June 2002, the Appeals Chamber held that “Rule 92bis is the lex specialis which takes the admissibility of written statements of prospective witnesses and transcripts of evidence out of the scope of the lex generalis of Rule 89(C)”.⁵ In accordance with this ruling, the requirements of Rule 92 bis must be met when a party seeks to have evidence admitted under Rule 89 when the said materials could also be presented under the lex specialis. The Appeals Chamber held in the present case that “the prohibition does not extend to material not governed by Rule 92 bis”.⁶

Scope of Rule 92 bis

The Appeals Chamber found that “the fact that the witness is present and can orally attest to the accuracy of the written statement is sufficient to place this application beyond the scope of Rule 92 bis” and that “[w]here the witness is present before the Court and orally attests to the accuracy of the statement, the evidence entered into the record cannot be considered to be exclusively written within the meaning of Rule 92 bis”.⁷ It held that “[t]he testimony of the witness constitutes a mixture of oral and written evidence” and that “[t]he appearance of the witness in court to attest to a written statement is a crucial factor which renders Rule 92 bis inapplicable”.⁸ The reasoning given was that unless the written statement is intended to be in lieu of oral evidence, the fact that a written statement has been prepared for the purposes of legal proceedings does not by itself suffice to make it admissible under Rule 92 bis only.⁹

Safeguards in the admission of written statements under Rule 89(F)

The Appeals Chamber held that the fact that there should be greater safeguards when the evidence relates to the acts and conduct of the accused¹⁰ (as in the present instance) is “a factor that a Trial Chamber may take into account in determining whether to admit, or the weight to attach to, written evidence under Rule 89(F)”. It nonetheless held that “the appearance of the witness in court to orally attest to the accuracy of the tendered statement is an important safeguard in itself because the witness is certifying the accuracy of the statement before the court and is available to answer questions from the bench”.¹¹

Admission of written statements under Rule 89(F) and the interests of justice

Under Rule 89(F), a Chamber may receive the evidence of a witness in written form “where the interests of justice allow”. The Appeals Chamber held that “a determination of the ‘interests of justice’ under Rule 89(F) must be made by the Trial Chamber in relation to each individual witness, in light of not only the surrounding circumstances, but also the evidence to be given by the witness”.¹²

Dissenting Opinion of Judge Hunt¹³

Judge Hunt reviewed the history of Rule 89(F) and Rule 92 bis as well as the previous decisions of the Appeals Chamber on this matter.14 He insisted on the importance of the Rule 92 bis restriction which stipulates that the evidence so presented must not go to proof of the acts and conduct of the accused or, as a discretionary matter, to the acts or conduct of those in close proximity to the accused. He explained that all the Appeals Chamber jurisprudence concerning the relationship between Rule 89(F) and Rule 92 bis “clearly” demonstrated that: “its view that written statements prepared for use in the proceedings are admissible only where they fall within Rule 92 bis is based on important matters of principle and the fairness of the proceedings, and not merely on utilitarian practical considerations such as the desire to complete cases as quickly as possible ” (para. 8). He found the interpretation of the majority of the Appeals Chamber to be “alarming” in two respects:

“First, whereas Rule 92bis prevents evidence being given in a written form where it goes to proof of the acts and conduct of the accused or (as a discretionary matter) to the acts or conduct of those in close proximity to the accused, the Majority Appeals Chamber Decision will permit evidence to be given in written form which does go to such acts and conduct without restriction – unless the Trial Chamber is prepared to exclude it in the exercise of its discretion under Rule 89(F) on the basis that it would be unfair to the accused to admit it. The Majority Appeals Chamber Decision does not address this issue of discretion. Secondly, the evidence relating to the particularly sensitive issue of the acts or conduct of the accused, or of those in close proximity to the accused, will be in a document formulated by the party which calls the witnesses. Again, this is not merely a matter of formality. The prohibition in Rule 92bis against the use of written statements in relation to this particularly sensitive issue was designed to ensure the reliability of the evidence in relation to it, and to prevent the possibility of the statement placing the best gloss on the evidence which suits that party. It is no answer to such a possibility to say that the witness may be cross-examined on that statement. By that time, the material is already in evidence in an inadmissible and possibly unreliable form, in a way which is clearly directly inconsistent with the policy of Rule 92bis” (para. 17).

He found that the Appeals Chamber had cited no authority to interpret Rule 92 bis in the way that it did and expressed his fear of an eventual “destruction of the rights of the accused” (para. 20). In his opinion, “it is improper to take the Completion Strategy into account in departing from interpretations which had earlier been accepted by the Appeals Chamber where this is at the expense of those rights”. He stated that “[t]his Tribunal will not be judged by the number of convictions which it enters, or by the speed with which it concludes the Completion Strategy which the Security Council has endorsed, but by the fairness of its trials” (para. 22).

Separate Opinion of Judge Shahabuddeen¹⁵

Judge Shahabuddeen explained why all written statements prepared for the purpose of legal proceedings are not admissible only under Rule 92bis but also under Rule 89(F), and therefore go to proof of facts related to the acts and conduct of the accused. In his view, the possibility of calling a witness to appear for cross -examination allowed under Rule 92 bis is only a “back-up arrangement”. He stated that “the opening sentence of Rule 92bis(A), together with Rule 92bis (A)(ii)(a) and (b) and Rule 92bis(C), shows that in the normal case the witness is absent from court” (para. 6).

As to the possibility of assessing the demeanour of the witness testifying under Rule 89(F), Judge Shahabuddeen found that while the way in which a witness responds to the examination-in-chief is “often more informative with regard to his reliability than his reaction to cross-examination”¹⁶ (para. 13), “cross-examination, to which the witness would be immediately subjected, could redress any disadvantages sufficiently to satisfy the interests of justice ” (para. 14).

In connection with the fairness of the trial, he stated that “cross-examination should be enough to afford reasonable redress to the fact that the evidence was not given orally, together with the circumstance that it was prepared by one side only and not collected by a neutral investigating judicial officer as in civil law countries” (para. 19). He added that the witness will be subject to re-examination by the moving party and that the Judges may also ask him questions on any part of his written statement and that, as a result, “[t]he substance of the right of the accused to a fair trial will be retained” (para. 19).

Judge Shahabuddeen concluded, inter alia, that “it would not be correct for the Appeals Chamber to give priority to the Completion Strategy of the Security Council over the rights of the accused” and that it is “therefore not surprising that that Strategy has not been mentioned in the decision of the Appeals Chamber”. He stated that “the reasoning may be microscopically examined, but it leaves no room for a judicial finding that a plainly inadmissible factor has been taken into account” (para. 21).

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1.The application was first made in the confidential “Report by the Prosecution Concerning the Time Remaining for the Prosecution Case” filed on 11 December 2002. It was then reiterated in the confidential “Supplement to Report by the Prosecution Concerning the Time Remaining for the Prosecution Case and Request for Hearing” filed on 10 January 2003. The application is very concisely presented in both filings and was elaborated upon in oral submissions made in open session before the Trial Chamber, on 2 April 2003 (see Transcript 18481-18489).
2. Milosevic, IT-02-54-T, Decision on Prosecution Motion for the Admission of Evidence-in-Chief of its Witnesses in Writing, 16 April 2003 (“Decision of the Trial Chamber”), page 2. Judge Kwon appended a Dissenting Opinion in which he expressed his view that the Prosecution’s application should have been granted insofar as the contents of the witness statements did not go to proof of the acts and conduct of the accused and the witnesses were available to attest to the truth of the written statements under oath at the International Tribunal and were subject to cross-examination by the Accused.
3. Milosevic, IT-02-54-T, Decision on Two Prosecution Requests for Certification of Appeal against Decisions of the Trial Chamber, 6 May 2003.
4. Galic, IT-98-29-AR73.2, Decision on Interlocutory Appeal Concerning Rule 92 bis(C) (“Galic Decision”), 7 June 2002, para. 10, Judicial Supplement No. 34. See also Milosevic, IT-02-54-T, Decision on Prosecution's Request to Have Written Statement Admitted under Rule 92 bis, 21 March 2002, para. 22: “[T]he phrase 'acts and conduct of the accused' in Rule 92 bis is a plain expression and should be given its ordinary meaning: deed and behaviour of the accused. It should not be extended by fanciful interpretation. No mention is made of acts and conduct by alleged co-perpetrators, subordinates or, indeed, of anybody else. Had the rule been intended to extend to acts and conduct of alleged co-perpetrators or subordinates it would have said so”. See Judicial Supplement No. 31 bis.
5. Galic Decision, para. 31.
6. Para. 10.
7. Para. 16.
8. Ibid. The Appeals Chamber added that the fact that a witness may merely give a brief oral statement to the effect that the written statement is accurate does not alter this conclusion.
9. Para. 18 (emphasis in the original).
10. Argument of the amici curiae in para. 11 of their “Amici Brief” (Milosevic, IT-02-54-AR73.4, Amici Curiae Reply to Prosecution Motion for the Admission of Evidence-in-Chief of its Witnesses in Writing, 21 May 2003).
11. Para. 19.
12. Para. 21.
13. Dissenting Opinion of Judge Hunt on Admissibility of Evidence-in-Chief in the Form of Written Statements, 21 October 2003.
14. Kordic & Cerkez, IT-95-14/2-AR73.5, Decision on Appeal Regarding Statement of a Deceased Witness, 21 July 2000, Judicial Supplement No. 18. Galic, IT-98-29-AR73.2, Decision on Interlocutory Appeal Concerning Rule 92bis(C), 7 June 2002 (“Galic Decision”); Milosevic, IT-02-54-AR73.2, Decision on Admissibility of Prosecution Investigator’s Evidence, 30 September 2002, Judicial Supplement No. 34.
15. Separate Opinion of Judge Shahabuddeen Appended to Appeals Chamber’s Decision Dated 30 September 2003 on Admissibility of Evidence-in-Chief in the Form of Written Statements, 31 October 2003.
16. Quoting Cross and Tapper on Evidence, 8th ed. (London, 1995), page 284.