IN TRIAL CHAMBER I

Before:
Judge Alphons Orie, Presiding
Judge Amin El Mahdi
Judge Rafael Nieto-Navia

Registrar:
Mr. Hans Holthuis

Decision of:
2 April 2003

The Office of the Prosecutor:

Mr. Mark Ierace

Defence Counsel:

Ms. Mara Pilipovic
Mr. Stéphane Piletta-Zanin

I. INTRODUCTION
1. Following the close of the Defence case, the Prosecution informed the Trial Chamber I, Section B (“the 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 (“the Tribunal”) of its intention to tender eight Rule 92 bis statements and up to three viva voce witnesses in rebuttal.¹

2. On 14 March 2003, the Prosecution filed its “Submissions Pursuant to Rule 92 bis with respect to Rebuttal Evidence” (“the Prosecution’s Submissions”), whereby it sought admission of eight Rule 92 bis statements. That same day, the Prosecution transmitted to the Trial Chamber the statement of two witnesses it sought to call as viva voce witnesses. On 18 March 2003, the Prosecution filed “the Prosecution’s Explanation of the Relevance of its Rebuttal Evidence” (“the Prosecution’s Explanation”). On 20 March 2003, the Defence filed its “Response on Prosecution Motion Pursuant with the Rule 92 bis in Relation to Rebuttal ” (“the Defence Response”).

3. The Trial Chamber, after hearing the parties, rendered its oral decision on 21 March 2003 while indicating that a written decision, further detailing the grounds for the Trial Chamber’s decision, would soon follow.

   THE TRIAL CHAMBER, HAVING CONSIDERED the written and oral submissions of the parties,

   HEREBY ISSUES ITS WRITTEN DECISION.

   II. DISCUSSION

   A. Applicable Law

4. The Tribunal’s case law on admission of evidence in rebuttal is well established. In The Prosecutor v. Delalic & al., the Appeals Chamber ruled that “rebuttal evidence must relate to a significant issue arising directly out of defence evidence which could not reasonably have been anticipated”.² The Appeals Chamber asserted that “where it is reasonably foreseeable by the Prosecution that some gap in the proof of guilt needs to be filled by the evidence called by it”, it is inappropriate to admit it in rebuttal, as the Prosecution “cannot call additional evidence merely because its case has been met by certain evidence to contradict it”.³ This test precludes from being admitted in rebuttal evidence of low probative value,⁴ evidence merely reinforcing the Prosecution case-in-chief, or evidence relating to a fundamental part of the Prosecution’s case-in-chief and only presented at this stage of the trial.

5. Rebuttal evidence should be distinguished from fresh evidence. Fresh evidence is evidence which was not available to the Prosecution at the time it presented its case-in-chief. According to the Delalic & al. Appeal Judgement, fresh evidence is admissible if two conditions are met:

   1) the Prosecution must show that the evidence would not have been found with the exercise of reasonable diligence before the close of its case-in-chief;

   2) the Trial Chamber has discretion in deciding whether to admit fresh evidence, taking due consideration of the probative value of the evidence and the fairness to the accused of admitting it late in the proceedings.⁵

6. Regarding admission of Rule 92 bis statements, Rule 92 bis specifies that the statement should not pertain to the acts and conduct of the accused. This requirement has been interpreted by the Appeals Chamber as excluding only those statements dealing with the “acts and conduct of the accused as charged in the indictment which establish his responsibility for the acts and conduct of those others”, as opposed to the statements dealing with the “acts and conduct of those others who commit the crimes for which the indictment alleges that the accused is individually responsible”.⁶ The Appeals Chamber also specified that “conduct” includes the accused’s state of mind.

7. The issue as to whether the Rule 92 bis statements submitted are relevant evidence which the Trial Chamber deems to have probative value, within the meaning of Rule 89(C), as well as the issue of the statements’ cumulative nature with other evidence, should be considered in light of the specific assessment to be made in the context of rebuttal evidence. As set out above, to be admitted, rebuttal evidence should be of significant probative value and evidence not of a cumulative nature.

8. Once the Trial Chamber has found a Rule 92 bis statement admissible under both Rule 89 and Rule 92 bis, it has discretion in appreciating whether cross-examination would be required to ensure the fairness of the trial. However, the Tribunal’s case-law has consistently ruled that cross-examination should be granted if the statement touches upon a “critical element of the Prosecution’s case, or, put another way, to a live and important issue between the parties, as opposed to peripheral or marginally relevant issue”.⁷ This Trial Chamber has previously found that any Rule 92 bis statement containing information that would be relevant to the determination of the source of fire should not be admitted without the witness being called for cross-examination.⁸
   B. Law applied to the Material Submitted in the Application for Admission in Rebuttal

9. The Chamber will first consider the evidence which the Prosecution sought to tender through viva voce witnesses and will then analyse the admissibility in rebuttal of the Rule 92 bis Statements submitted.
   1. Evidence submitted through viva voce witnesses

   (a) Roelof From

10. The Prosecution sought to call Roelof From as a witness. Roelof From, a military analyst at the Office of the Prosecution, was supposed to “explain the technology and methodology involved in the production of the Prosecution maps of the area of the scheduled sniping and shelling incidents, which have been tendered into evidence, and further maps and graphs which have been disclosed to the Defence and not as yet tendered.”⁹ The Prosecution sought to tender through this witness five three-dimensional maps, each dealing with a scheduled sniping incident, which it claims would directly rebut Defence allegations that there was no line of sight from the alleged source of fire to the alleged position of the victim.¹⁰ The Prosecution also sought to tender three-dimensional maps in respect of all the other scheduled sniping and scheduled incidents, “as an aid to the Trial Chamber in the interests of permitting accurate measurements of relevant distances.”¹¹ It however recognised in court that these maps did not constitute rebuttal evidence and withdrew its request, “unless the Trial Chamber took the view that it was material which the Trial Chamber wished to have directly.”¹² The Prosecution presented these maps before the Trial Chamber on 28 November 2002 and debate on their admissibility also took place on 3 and 10 December 2002.

11. The Defence objected in principle to the admission of computerised maps, which, in addition, it considered incapable of providing any reliable information with respect to the line of sight, as the maps do not contain any data on the height of the buildings, density of trees, or density of bushes.¹³

12. The Trial Chamber finds that the existence of a line of sight between the alleged source of fire and the alleged position of the victim is an important issue in the part of the Prosecution case dealing with sniping and that the contradictions it met during the Defence case does not justify to present the additional evidence. This part of Roeland From’s evidence is therefore inadmissible as rebuttal evidence. As for the other maps submitted by the Prosecution to assist the Trial Chamber, they constitute fresh evidence. The Trial Chamber first notes that, while the Prosecution indicated that its Office purchased the software in November 2002, it could not indicate from when the software was available on the market.¹⁴ The Prosecution thereby failed to demonstrate that it could not have obtained the software with the exercise of reasonable diligence before the close of the case- in-chief. The Trial Chamber also finds that it would be contrary to the right of the accused to a fair trial to admit such maps at this stage of the trial.

    (b) Hajrudin Suman

13. The Prosecution provided the Trial Chamber with the statement of Hajrudin Suman, who intercepted a conversation which he claims took place between Colonel Vukasinovic and General Mladic on 29 May 1992. No submission was presented by the parties on the question of admission of his testimony in rebuttal. The Prosecution did not present any evidence in respect of the telephone intercept while presenting its case. The Prosecution confronted the Defence’s military expert witness, Radovan Radinovic, during cross examination, with the intercept on 11 march 2003. The Chamber allowed the Prosecution to put questions to the witness to find out whether the expert witness fully explored the material available to him, but did not allow any questions on the issue of whether the telephone conversation had ever taken place, since there were no reasons to believe that the expert witness would have any knowledge about it. Radovan Radinovic testified that, in order to prepare his report, he read the transcripts of Prosecution interviews, including that of Milenko Indjic, but that he did not recall that, during the interview of Indjic, an audio-tape of an intercept in which Mladic is heard ordering shelling of certain part of Sarajevo, was discussed.¹⁵

14. The Trial Chamber finds that the intercept does not relate to an issue directly arising out of defence evidence. Further, the intercept could be seen to go to the core of the case since it could constitute evidence of a plan to shell residential parts of Sarajevo for the purpose of terrorising the civilian population. Hajrudin Suman therefore cannot be called as a witness in rebuttal.
    2. Rule 92 bis statements

15. The Trial Chamber will first analyse whether the statements submitted constitute proper rebuttal evidence. If so, it will then consider whether the statements are admissible as Rule 92 bis statements.

    (a) Statements of Fatima Sisic and Vehija Makic

16. The statements of Fatima Sisic and Vehija Makic were tendered to rebut the claim made during the Defence case and the evidence adduced to support the claim that the mosques were not targeted during the period covered in the indictment, which would prove, in the Defence’s opinion, that there was no “campaign”.

17. The Prosecution recognised that “damages and targeting of mosques are not mentioned in the indictment”, which clearly illustrate that the evidence is of a “peripheral nature.”¹⁶

18. The Trial Chamber notes that that it is not part of the Prosecution case that the campaign included targeting of mosques. Further, evidence was presented during the Defence case referring to damage presumably inflicted on at least one mosque.¹⁷ The Trial Chamber finds that it is not a significant enough issue to be admissible in rebuttal.

    (b) Statement of Dr. Zecevic

19. Dr. Zecevic is an expert in ballistics whom the Prosecution called during its case-in-chief. The Prosecution claims that Dr. Zecevic’s statement relates to two new matters raised by Dr. Vilicic, the Defence ballistics expert witness, for the first time during his testimony.¹⁸ These matters are: a) the results of calculations for depth of penetration using the Berezanski formula and b) the characteristics of craters as a function of fuse activation speed.¹⁹ The Defence objected to the admission of the statement on the ground that it did not meet the requirements of Rule 92 bis.²⁰

20. The Trial Chamber finds that evidence relating to the issues of (a) the penetration of parts of a shell into the landing surface and its relation to the speed of impact as well as (b) the effects of various fuses used, have been dealt with during the Prosecution case, in particular during Dr. Zecevic’s testimony. The Defence expert witness responded to these elements, using, among other things, tables and the Berezansky formula. Having reviewed the material presented by the Prosecution in rebuttal, the Trial Chamber finds that the evidence that the Prosecution here seeks to tender merely reinforces the Prosecution case and is not significant enough to be admissible in rebuttal.

    (c) Statements of Mile Babic and Linda Patrick

21. The Prosecution submitted the statements of Mile Babic and Linda Patrick to rebut evidence, presented during the Defence case, that a building of the school of theology had lost its top floor during the armed conflict. The Defence contested that such was its claim and the parties noted in court their agreement on the fact that this building of the school of theology had three floors above the ground floor. As a result, the Prosecution withdrew its request with respect to both statements.²¹

    (d) Statements of Izet Berkovac and Adnan Bijedic

22. Adnan Bijedic, the commander of the ABiH 1st Corps Armoured Battalion, describes the locations of ABiH military facilities in the vicinity of Kosevo hospital in his statement. The Prosecution seeks by this statement to rebut evidence presented by the Defence on the positions of ABiH armament in the vicinity of Kosevo hospital, which had not been put to any relevant Prosecution witness.²²

23. Izet Berkovac, the commander of the ABiH 105th Motorised Brigade, describes in his statement the location of mortar batteries within his area of responsibility. The Prosecution seeks by this statement to rebut evidence presented by the Defence on the locations and firing of mortars from the close proximity to the Markale market.²³

24. The Trial Chamber finds that the issue of the location of potential military targets and firing positions of the ABiH is important enough to the case that it should have been anticipated by the Prosecution. Moreover, the Trial Chamber does not leave unnoticed that evidence has been adduced in this respect during the Prosecution’s case-in-chief.²⁴ As a result, both statements would corroborate evidence adduced during the case-in-chief and hence would merely reinforce the Prosecution case. As such, both statements are inadmissible in rebuttal.

    (e) Statement of Jonathan Tait-Harris

25. The statement of Jonathan Tait-Harris, an investigator at the Office of the Prosecution, deals with four different topics.

26. First, it relates to the results of the investigator’s interview with the Defence investigator on the issue of the source of the SRK documents tendered during the Defence case. This part of the statement intends to contest the authenticity of SRK documents tendered and the Prosecution claims that it is relevant to the issue of the weight to be attached to them.²⁵ The Defence objected to the admission of this part of the statement on the ground that the documents had been authenticated by various Defence witnesses, including a military expert.²⁶

27. The Trial Chamber points out that it is incumbent on any party to authenticate the documents it tenders, upon complaint of the other party. The Trial Chamber notes that the Prosecution has consistently, and from the very beginning, challenged the authenticity of the SRK documents tendered by the Defence, on the ground that the Defence did not explain where exactly it had found them. The Trial Chamber is therefore sufficiently informed on the question of authentication and the issue of the origin of these documents, to properly appreciate the weight to be eventually given to each SRK document admitted. This part of the statement is not proper rebuttal evidence and is in any event not of such significance that it should be admitted in rebuttal.

28. The second part of the statement relates to the medical examination conducted on Witness G on 7 March 2003. A medical certificate dated 7 March 2003 and a photograph of Witness G’s back are also attached to the statement. The Prosecution explained that this part of the statement intends to rebut evidence of the Defence forensic medical expert, who challenged the consistency of the Prosecution medical evidence.²⁷ The Trial Chamber finds that it cannot admit in rebuttal a medical documentation made a posteriori in order to correct a document initially adduced by the Prosecution during its case-in-chief. However, the Trial Chamber notes that neither party initially noticed the discrepancy between the medical report adduced and the description made by the witness of his injury. The Trial Chamber finds that it is in the interest of justice to accept this part of the statement to the limited extent that it comments on the taking of, and tenders, the photograph of witness G’s back, where the traces of his injury presumably appear.

29. The Trial Chamber left it up to the Prosecution to chose whether it wanted to tender Mr. Tait-Harris’ evidence as a Rule 92 bis statement or as a viva voce witness.²⁸ Should the Prosecution chose to tender the evidence as a Rule 92 bis statement, the Trial Chamber granted cross-examination for no longer than 15 minutes to the Defence, on the ground that the photograph may be relevant to establish how the incident took place.

30. The third part of the statement describes the terrain in the area surrounding the school of theology, as the witness saw it on 13 December 2002. The Prosecution indicated that it would rebut Defence evidence according to which this terrain provided no cover.²⁹ It however recognised in court that the Defence case was not unequivocal in this respect and that it would not insist on having this part of the statement admitted.³⁰ The Trial Chamber understands this position to amount to a withdrawal of the request. This part of the statement should in any event not be admitted in rebuttal as it would merely constitute evidence that reinforces evidence already adduced by the Prosecution during its case-in-chief.

31. Fourth, a series of photographs of the school of theology were attached to the statement. Noting the parties’ agreement on the fact that the building concerned of the school of theology had three floors above the ground floor, the Prosecution withdrew its request with respect to this specific part of the statement.³¹

FOR THE FOREGOING REASONS

PURSUANT TO Articles 20 and 21 of the Statute, and Rules 85, 89 and 92 bis of the Rules of Procedure and Evidence,

THE TRIAL CHAMBER

ALLOWS the Prosecution to present as rebuttal evidence witness Tait-Harris’ Rule 92 bis statement or viva voce testimony, to the limited extent that it commented upon the taking of the photograph of witness G’s back;

DENIES the Submission in respect of all other material presented.

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

__________________________
Alphons Orie, Presiding Judge

Dated this Second Day of April 2003
At The Hague
The Netherlands

[Seal of the Tribunal]