Case: IT-98-29-T

_________________________________________

DECISION ON THE ADMISSION INTO EVIDENCE OF WRITTEN STATEMENT BY A DECEASED WITNESS, HAMDIJA CAVCIC, AND RELATED REPORT PURSUANT TO RULE 92BIS (C)

_________________________________________

TRIAL CHAMBER I Section B ("the 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 ("the Tribunal");

NOTING the Trial Chamber’s "Decision on Prosecution’s Motion for the Admission into Evidence of Written Statement by Deceased Witness, and Related Report Pursuant to Rule 92 bis (C)", rendered on 12 April 2002 ("the First Trial Chamber’s Decision") admitted into evidence the Statement ("the Statement") and the accompanying ballistic report ("the Report") of the deceased witness, Hamdija Cavcic;

NOTING the "Defence Motion for Rule 73 (C) Certification" filed on 18 April 2002;

NOTING the "Certification Pursuant to Rule 73 (C) in Respect of Decision of the Trial Chamber on the Admission into Evidence of Written Statements Pursuant to Rule 92 bis (C)", dated 25 April 2002 ("the Certificate"), in which the Trial Chamber certified that an interlocutory appeal was appropriate for the continuation of trial to determine the proper interpretation of what constitutes "the acts and conduct of the accused" under Rule 92 bis (A)¹;

NOTING the "Decision on Interlocutory Appeal Concerning Rule 92 bis (C)" rendered on 7 June 2002 ("the Appeals Chamber Decision"); that this decision recognised that the Statement and the Report of Hamdija Cavcic did not pertain to acts and conduct of the accused within the meaning of Rule 92 bis; that it nevertheless allowed the appeal against the First Trial Chamber’s Decision on the ground that it had failed to discuss any issue of discretion as might have been expected² and returned the matter to the Trial Chamber "for it to consider the exercise of its discretion in accordance with this Decision in relation to the statement of Hamdija Cavcic"³;

NOTING the " Prosecution’s Submissions Pursuant to Rule 92 bis, following the Appeals Chamber Decision of 7 June 2002" filed on 24 June 2002 ("the Prosecution’s Submissions");

NOTING the "Defence Rule 92 bis Submissions" filed confidentially on 5 July 2002;

NOTING the "Prosecution’s Reply to Defence Rule 92 bis Submissions", filed on 12 July 2002;

CONSIDERING that, pursuant to Rule 92 bis (C), "a written statement not in the form prescribed by paragraph B may nevertheless be admissible if made by a person who has subsequently died, or by a person who can no longer with reasonable diligence be traced, or by a person who is by reason of bodily or mental condition unable to testify orally, if the Trial Chamber: (i) is so satisfied on a balance of probabilities; and (ii) finds from the circumstances in which the statement was made and recorded that there are satisfactory indicia of its reliability"⁴;

CONSIDERING that, under Rule 92 bis (A), a statement may not be admitted if it goes to proof relating to "the acts and conduct of the accused as charged in the indictment"; that this requirement equally applies to Rule 92 bis (C)⁵;

CONSIDERING that the Appeals Chamber Decision specified that, in order to decide the admission of a Rule 92 bis statement, it is not sufficient to conclude that the Statement does not pertain to the acts and conduct of the accused; that the Trial Chamber is further expected to exercise its discretion in deciding whether the evidence should be admitted in a written form at all;⁶

CONSIDERING that the Appeals Chamber’s Decision also provided guidelines to this Trial Chamber in the exercise of its discretionary power and indicated that "[w]here the evidence is so pivotal to the prosecution case, and where the person whose acts and conduct the written statements describe is so proximate to the accused, the Trial Chamber may decide that it would not be fair to the accused to permit the evidence to be given in written form"⁷; that, as an example, the Appeals Chamber referred to the particularly sensitive situation posed by a charge of command responsibility under Article 7 (3), in the context of which the acts and conduct of subordinates could be so proximate to the accused that "it would be unfair to the accused to permit the evidence to be given in written form"⁸;

CONSIDERING that the Appeals Chamber Decision specifically mentioned that the deceased witness’s conclusions, as to the direction from which the particular shell had been fired, could be of substantial importance to the prosecution case if it is the vital link in demonstrating that the shell which is alleged to have caused many casualties was fired from a gun emplacement manned by immediately proximate subordinates of the accused;

CONSIDERING that, in relation to the statement of the deceased witness, Hamdija Cavcic, the Trial Chamber should consider the exercise of its discretion, in order to determine whether it would be unfair to the accused to permit this evidence to be given in written form in any event, due to the absence of the opportunity to cross-examine this witness;⁹

NOTING that Hamdija Cavcic was a ballistic expert for the Sarajevo Ministry of Interior Criminal and Technical Investigations Department¹⁰;

NOTING that the Statement (i) indicates the method used on in-site investigations to establish the trajectory and direction of the source fire of a shell; (ii) briefly describes the investigation carried out by the deceased witness and his team on the shelling incident of 12 July 1993 in Dobrinja, (identified as shelling incident No. 2 in the schedule to the indictment), (iii) provides information on his participation in the investigation conducted together with Mirza Sabljica on the shelling incident of 05 February 1994 on the Markale Market, (identified as shelling incident No. 5 in the schedule to the indictment), and (iv) succinctly describes the investigation conducted by his team following the burning of the National Library in the summer of 1992, indicating that the source of the incendiary ammunition that caused the fire was unknown to the witness;

NOTING that the Report presents the conclusions of the forensic investigation conducted by the deceased witness and his team on shelling incident No. 2; that it describes the type and calibre of shell that was launched and the point of impact; that it also provides information as to the trajectory and the direction of the source of fire of the shell, indicating that it had been fired from "Northwest-West direction (direction Nedzarici)";

NOTING that the Prosecution will not call Muhamed Jusufspahic, who was due to give oral testimony on both shelling incidents, since this witness is no longer available;¹¹

CONSIDERING that, however, in relation to shelling incident No. 2, on 30 July and 1 August 2002 the Trial Chamber heard the viva voce testimony of Witness AK, an UNPROFOR member who conducted an on-site investigation of this incident; that he confirmed the findings contained in his report as to the type of shell that was fired and the direction of the source of fire¹²; that the Defence has had the opportunity to cross-examine this witness and thus verify the reliability of the findings of Hamdija Cavcic’s Report;

NOTING that, in relation to shelling incident No.5, the Statement refers to the report that was elaborated as a result of an on-site investigation conducted by the deceased witness together with Mirza Sablijca; that in the Statement the deceased witness confirms the veracity of the findings without referring to the specific contents of this report;

CONSIDERING that, concerning this shelling incident, the Trial Chamber has already heard the viva voce testimony of two witnesses: Mirza Sabljica, who had signed the report and confirmed the findings it contained, and Sead Besic, who was present when Hamdija Cavcic and Mirza Sabljica conducted their investigation and gave evidence as to how it was carried out; that the Defence thus has already had the opportunity to challenge the information contained in both the Statement and the Report by cross- examining those witnesses;

CONSIDERING that, in relation to the possible "immediate proximity" of the accused to those responsible for manning the gun emplacements from which the shells were fired, it must be noted that the evidence in question relates to the direction of the source of fire; that it does not provide any further information as to the identity of the units responsible for launching these shells, to their exact location nor does it describe their relationship with the accused; that no direct reference to the accused himself is contained in the Statement or in the Report; that this piece of evidence further appears to be of cumulative nature to what has been given by viva voce witnesses; that thus the evidence contained in both the Statement and the Report does not appear to be so pivotal to the prosecution case as to render it unfair to permit it to be given in written form;

CONSIDERING that, with respect to the information in the Statement regarding the burning of the National Library, this incident has not been identified in the schedules to the indictment; that it further appears that it is situated outside the time-frame of the indictment; that no indication is given in the Statement as to the source of fire of this shelling incident; that the evidence of this witness relating to the burning of the National Library should not be admitted because it lacks probative value and is thus irrelevant;

FOR THE FOREGOING REASONS,

DENIES the admission into evidence of the section of the Statement that relates to the burning of the National Library;

ADMITS the remaining parts of the Statement and the Report of Hamdija Cavcic into evidence.

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

Done this second day of August 2002
At The Hague,
The Netherlands.

______________________
Alphons Orie
Presiding Judge, Trial Chamber

Home | Terms & Conditions | About

Copyright © 1999- WorldCourts. All rights reserved.