Case No. IT-03-66-T
IN TRIAL CHAMBER II
Before:
Judge Kevin Parker, Presiding
Judge Krister Thelin
Judge Christine Van Den Wyngaert
Registrar:
Mr. Hans Holthuis
Decision of:
9 March 2005
PROSECUTOR
v.
Fatmir LIMAJ
Haradin BALA
Isak MUSLIU
______________________________________________
DECISION ON PROSECUTION’S THIRD MOTION FOR PROVISIONAL
ADMISSION OF WRITTEN EVIDENCE IN LIEU OF VIVA VOCE TESTIMONY
PURSUANT TO RULE 92BIS
______________________________________________
The Office of the Prosecutor:
Mr. Alex Whiting
Mr. Julian Nicholls
Mr Milbert Shin
Mr. Colin Black
Counsel for the Accused:
Mr. Michael Mansfield, QC, and Mr. Karim
A. Khan for Fatmir Limaj
Mr. Gregor Guy-Smith and Mr. Richard Harvey for Haradin Bala
Mr. Michael Topolski, QC, and Mr. Steven Powles for Isak Musliu
I. INTRODUCTION
- This decision of Trial Chamber II is in respect of the
"Prosecution’s Third Motion for Provisional Admission of Written
Evidence in Lieu of Viva Voce Testimony pursuant to Rule 92bis"
("Motion") and Annex A to the Motion, filed confidentially
on 11 November 2004. The Prosecution seeks the provisional
admission without cross-examination, pursuant to Rule 92bis(A)
of the Rules of Procedure and Evidence ("Rules"), of the written
statement of Witness L-94, subject to compliance with
the requirements of Rule 92bis(B) of the Rules. The
Prosecution submits that the proposed statement is primarily
concerned with the kidnapping of Serbs by the KLA from a bus
in Crnoljevo and, to some extent, the existence of a KLA checkpoint
in Crnoljevo and the presence of the KLA in the area. In the
Prosecution’s submission, and referring to a previous decision
of the Chamber,1 these matters
are admissible as they do not go to the proof of acts or conduct
of the Accused, and do not require that the witness appear
for cross-examination.2
- On 22 November 2004, the Defence counsel
for the three Accused submitted a joint Response,3
in which they did not object to the Motion.
II. PRELIMINARY ISSUE
-
The Chamber notes, at the outset, that the
witness who is the subject of the Motion appears neither
on the initial Prosecution’s witness list filed confidentially
on 27 February 2004 nor on the subsequent witness
list filed confidentially prior to the commencement of the
trial on 30 September 2004. Nevertheless, in the
Motion, the Prosecution does not expressly seek to amend
its list of witnesses so as to add the proposed Rule 92bis
witness.
- In this respect, Rule 73bis (E) provides that
"[ a]
fter commencement of the trial, the Prosecutor may file a
motion to vary … the number of witnesses that are to be called
or for additional time to present evidence and the Trial Chamber
may grant the Prosecutor’s request if satisfied that this
is in the interests of justice." The spirit of Rule 73bis
(E) is to prevent the Prosecution from calling witnesses without
sufficient notice to the Defence, while ensuring that the
search for the truth is guaranteed by allowing the Prosecution
to seek to amend its list of witnesses where it is in the
interests of justice to do so.4
- In the present case, the proposed evidence deals with
the general situation in Kosovo in 1998 and more specifically
with events surrounding the kidnapping and abduction of a
Serb civilian in June 1998 in the village of Crnoljevo. The
Chamber is of the view that the evidence proposed is relevant
to the allegations in the Indictment that the Accused participated
in a joint criminal enterprise, which included the arrest
of Serb civilians and perceived Albanian collaborators.5
The late notice of this witness will not, in the Chamber’s
opinion, cause undue hardship to the Defence. It is therefore
in the interests of justice to allow this witness to be added
to the Prosecution’s witness list.
III. THE ADMISSION OF THE PROPOSED STATEMENT PURSUANT TO
RULE 92BIS
- The law concerning the admission into evidence of written
statements under Rule 92bis has been sufficiently set
out in the First Rule 92bis Decision. For a written
statement in lieu of oral testimony to be admitted into evidence,
it must go to proof of a matter other than the acts and conduct
of the accused as charged in the indictment. The Chamber recalls
that a Trial Chamber has discretion in deciding whether to
admit a written statement. Relevant to this determination
is the proximity to the accused of any acts and conduct of
his subordinates described in the written statements.6
Further, the Chamber notes that an important consideration
in deciding to admit a written statement with cross-examination
is whether the evidence in question "goes to proof of a critical
element of the Prosecution’s case against the accused", or
relates "to a live and important issue between the parties,
as opposed to a peripheral or marginally relevant issue."7
Therefore, when a written statement touches upon the very
essence of the prosecution case against the accused, the witness
should be available for cross-examination. The cumulative
nature of the evidence sought to be admitted in written form
is also a factor in determining whether to admit a witness
statement with cross-examination.8
Moreover, hearsay evidence is in principle admissible in proceedings
before this Tribunal if it is relevant and has probative value.
A Trial Chamber may decide the probative value of such evidence
by assessing, inter alia, whether the statement is
voluntary, truthful and trustworthy.9
- The Chamber now turns to consider whether the proposed
written statement fulfils the requirements for admission into
evidence under Rule 92bis and if so, whether the witness
should be required to appear for cross-examination. As stated
above, the written statement sought to be admitted pursuant
to Rule 92bis contains information regarding the disappearance
or the kidnapping by unidentified KLA soldiers of a Serb man,
in June 1998 in Crnoljevo. The Chamber notes that the
statement does not contain any information identifying the
perpetrators of the alleged kidnapping or establishing a relationship
between those perpetrators and one or more Accused. Thus,
the Trial Chamber is satisfied that the statement does not
go to proof of the acts and conduct of the Accused and is
not pivotal to the Prosecution case. It may therefore be admitted
without cross-examination.
IV. DISPOSITION
For the foregoing reasons, pursuant to Rules 54, 73bis and 92bis of the Rules, the Chamber
ALLOWS the Prosecution to add Witness L-94 to its witness list;
GRANTS the Motion and ORDERS that the proposed statement be provisionally admitted into evidence without requiring that Witness L-94 be called for cross-examination, subject first to compliance with the Rule 92bis(B) procedure;
Done in English and French, the English version being authoritative.
______________________
Judge Kevin Parker
Presiding
Dated this ninth day of March 2005
At The Hague
The Netherlands
[Seal of the Tribunal]
1. "Decision on Prosecution’s
Motion for Provisional Admission of Witness Statements under Rule
92bis" ("First Rule 92bis Decision"), filed confidentially
on 13 October 2004, a public version of which was filed on 14 December
2004.
2. Prosecution’s Motion, para 7.
3. "Joint Response by Accused Fatmir Limaj, Haradin Bala and Isak
Musliu to Prosecution’s Third Motion for Provisional Admission
of Written Evidence in Lieu of Viva Voce Testimony Pursuant to
Rule 92bis Dated 11 November 2004", filed
confidentially on 22 November 2004.
4. Prosecutor v. Stanislav Galic, "Decision on Prosecution’s
Application to Have Witness Barry Hogan Added to its Witness List
and his Evidence Admitted Pursuant to Rule 92bis", 2 August 2002,
page 4.
5. Indictment, para 9.
6. First Rule 92bis Decision, para 6.
7. First Rule 92bis Decision, para 7.
8. First Rule 92bis Decision, para 8.
9. First Rule 92bis Decision, para 9.
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