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:
7 July 2005
PROSECUTOR
v.
Fatmir LIMAJ
Haradin BALA
Isak MUSLIU
_______________________________________________
DECISION ON PROSECUTION’S MOTION TO ADMIT
REBUTTAL STATEMENTS VIA 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 Motion
to Admit Rebuttal Statements via Rule 92bis” (“Motion”)
and Appendixes A, B, C and D to the Motion, filed
partly confidentially on 29 June 2005. The Prosecution
seeks the admission of the following four statements,
as evidence in rebuttal to the Defence case, pursuant
to Rules 92bis and 85 of the Rules of Procedure
and Evidence (“Rules”):
1) a statement of Ole Lethinen, investigator for the
Office of the Prosecutor (“OTP
”), dated 24 June 2005 (Appendix A) (“First Statement”);
2) a statement of Ole Lethinen dated 28 June 2005 (Appendix
B) (“Second statement”);
3) a statement of Andreas Manthey, former police officer
at the Central Criminal Investigations Unit, dated
28 June 2005 (Appendix B) (“Third Statement”); and
4) a statement of Ole Lethinen dated 24 June 2005 (Appendix
C) (“Fourth Statement”).
- The Prosecution submits the proposed statements
as rebuttal evidence to the testimony of Ferat Sopi
on 9 June 2005 (First statement), Professor Wagenaar
on 27 June 2005 (Second and Third Statements) and
Fatmir Limaj on 25 May 2005 (Fourth
Statement). In the Prosecution’s submission, all four
statements go to proof of matters other than the acts
and conduct of the Accused as charged in the Indictment
and are therefore admissible under Rule 92bis.1
- The Defence for Fatmir Limaj filed a “Response
by Fatmir Limaj to Prosecution’s
Motion to Admit Rebuttal Statements Via Rule 92bis” on
1 July 2005 (“Response
”), whereby it submits that the motion should be denied
with respect to the Fourth Statement as it does not
amount to rebuttal evidence and that the reliance on
Rule
92bis is inappropriate in light of the importance
the Prosecution now seeks to place on the search of
Fatmir Limaj’s apartment and the items recovered therein.2
- On 4 July 2005, the Prosecution filed a “Prosecution’s
Reply to Response by Fatmir Limaj to Prosecution’s
Motion to Admit Rebuttal Statements via Rule 92bis
” (“Reply”), requesting authorisation to file the
reply as set forth in the filing.
II. APPLICABLE LAW
- The law concerning the admission into evidence
of written statements under Rule 92bis has
been sufficiently set out in previous decisions of
the Chamber.3 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 it has discretion in deciding
whether to admit a written statement. Relevant to
the determination whether the witness should be called
for cross- examination, is whether the statement
touches upon the very essence of the Prosecution
case against the Accused and the cumulative nature
of the evidence sought to be admitted. 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.4
- On the jurisprudence of the Tribunal, “rebuttal
evidence must relate to a significant issue arising
directly out of defence evidence which could not
reasonably have been anticipated.”5 It is the obligation
of the Prosecution to lead its evidence in its case-in-chief,
and it is only if a new issue is raised in the course
of the Defence case that the Prosecution may lead
evidence in rebuttal. Rebuttal evidence may not be
called by the Prosecution merely because its case
has been met by contradicting evidence6
or in order to reinforce its case-in-chief.7
Further, only highly probative evidence may be led
as rebuttal evidence.8
III. DISCUSSION
- The First Statement is an account by Ole
Lehtinen of a meeting held on 4 May 2005 between
Defence witness Ferat Sopi and representatives of
the OTP, during which Ferat Sopi, in response to
questions by Alex Whiting, indicated that he had
read the transcript of the evidence of Prosecution
witness Zeqir Gashi in the newspaper and that everything
he said was accurate. In the Prosecution’s submission, the statement is proposed in rebuttal to Ferat Sopi’s
evidence before the Chamber. The effect of Ferat Sopi’s
evidence is essentially that he did not read Zeqir
Gashi’s testimony in its entirety and did not analyse
it in details.9
It is not readily apparent to the Chamber to which
extent the First Statement rebuts in fact the evidence
given by Ferat Sopi in court. Nevertheless, given the
agreement of the parties, the Chamber will accept
to treat the First Statement as rebuttal evidence.
Turning to the issue whether the First Statement is
admissible under Rule 92bis, the Chamber is satisfied
that while it aims at undermining the credibility
of a Defence witness, it does not directly go to the
acts and conduct of the Accused in the present case.
It is therefore admissible under that Rule. The Chamber
takes note of the non-objection of the Defence to
the First Statement being admitted without cross-examination
of the witness.
- The Second and Third Statements concern
procedures used for the interview of witnesses involving
line-up identifications in the present case. The
Chamber is satisfied that this evidence relates
to a significant issue arising directly out of the
Defence case and which could not have been anticipated.
In particular, the Chamber is satisfied that these
two statements constitute proper rebuttal evidence
to the testimony of Defence expert witness Professor
Wagenaar who suggested that a number of rules ought
to be applied in line-up identification procedures.
On the issue of the admissibility of the Second
and Third Statements under Rule
92bis of the Rules, the Chamber is satisfied
that the statements do not go to the acts and conduct
of the Accused as charged in the Indictment. Both statements
are therefore admissible under that Rule. The Chamber
takes note of the non-objection of the Defence to
the Second and Third Statements being admitted into
evidence without cross-examination of the witness.
- The Fourth Statement details the procedure
followed in the course of the search of Fatmir Limaj’s
apartment on 19 February 2003 and describes more
specifically the documents which were found in the
storage room, among which Exhibit P30. According
to the Fourth Statement, Exhibit P30 was in a pile
of documents found on a shelf in the storage room,
documents which were not in a box or binder of any
kind.
- The Prosecution generally seeks to rebut the
explanation given by Fatmir Limaj on how Exhibit
P30 came to be in his apartment.10
More specifically, it is the Prosecution’s submission
that the statement “relates
” to the testimony of Fatmir Limaj in that (1) it “casts
considerable doubt on Fatmir Limaj’s suggestion that
P30 was part of a larger group of documents being stored
in its apartment on behalf of the Ministry of Defence”;
(2) it “refutes the suggestion
made by (Fatmir( Limaj that the documents were stored
in boxes or binders”; and
(3) it “casts considerable doubt on the indication
from Fatmir Limaj that he had never read the document
when it was in his house” given the small number of
KLA documents found during the search.11
The Prosecution further submits that Exhibit P30 concerns
a “significant issue”
as it contains the name of one of the victims listed
in Annex III of the Indictment and information relating
to suspected Albanian collaborators and Serb civilians,12
and that it could not have been anticipated that Fatmir
Limaj “would claim that
this document was part of a collection of documents
stored on behalf of the Ministry of Defence.”13
- The Defence for Fatmir Limaj objects to the
Fourth Statement being admitted as rebuttal evidence
on the ground that “all the matters detailed in the
statement could have been included as part of the
Prosecution’s case”14,
but that the Prosecution decided not to call direct
evidence relating to the search of Fatmir Limaj’s
apartment, aside from that of Ole Lehtinen.15
In the Defence’s submission, there is no basis to “call
rebuttal evidence after the Accused has accepted that
the seized items were found”16
and given that Fatmir Limaj’s evidence that documents
from the Ministry of Defence were stored in his apartment
was not “contradicted by the Prosecution in cross-examination
” through inquiries as to when the documents were brought,
by whom or for how long. Further, the Defence is concerned
that the proposed rebuttal evidence “is more
prejudicial than probative as it invites that Chamber
to a leap of logic that was not properly or fairly
put to the witness to deal with.”17
- At the outset, the Chamber notes that Exhibit
P30 was introduced into evidence during the testimony
of Ole Lehtinen on 24 November 2004.18
While the Defence suggests that the exhibits admitted
through Ole Lehtinen were to be treated merely as “an
introductory summary (which( will be of no weight unless
later witnesses substantiate the basis for it”,19
it is apparent that this reservation did not apply
to the search of Fatmir Limaj’s
apartment in which Ole Lehtinen directly participated
and of which he has direct knowledge.20 In the course of the
examination-in-chief, Ole Lehtinen was questioned at
length by the Prosecution in relation to Exhibit P30,
both as to its content and the specific location where
it was found in Fatmir Limaj’s apartment.21
- Exhibit P30 was used again by the Prosecution
in the course of the cross-examination of Fatmir
Limaj on 25 May 2005, with a view to establishing
a link between the Accused and the document.22 The effect of
Fatmir Limaj’s evidence is essentially that he does
not know of this document. He does not deny that the
document was found in his apartment. However, when
specifically asked by the Prosecution how this document
came to be in his apartment, Fatmir Limaj stated that
the “only explanation” he could give was that documents
from the Ministry of Defence, which was located across
the road from the apartment and of which Fatmir Limaj
was the spokesperson after the war, were temporarily
stored in his apartment.23 Fatmir Limaj’s evidence is that
he does not recall precisely where these documents
were stored24
and that he does not know whether they were in boxes
or binders.25
While cross-examining Fatmir Limaj on these matters,
the Prosecution did put to him that Exhibit P30 had
been found in the storage room, and Fatmir Limaj did
not deny that there might have been documentation
there, including from the Ministry of Defence.
- It is the view of the Chamber that the Fourth
Statement does not rebut the evidence of Fatmir
Limaj as is suggested by the Prosecution. The Prosecution
seeks to rely on the Fourth Statement to establish
that there was a reasonably limited amount of documentation
seized in the course of the search of Fatmir Limaj’s
apartment. This does not, in the Chamber’s opinion,
amount to an unanticipated new issue arising out
of the Defence case. The fact that a limited amount
of documentation was seized was certainly already
apparent from the property seizure record which
was admitted into evidence in the course of the evidence
of Ole Lehtinen.26
It was open to the Prosecution to put that record to
Fatmir Limaj in the course of his cross-examination
and its failure to do so may not be properly compensated
through rebuttal evidence. The Prosecution further
submits that the Fourth Statement rebuts the evidence
of Fatmir Limaj that the documentation was stored in
boxes or binders. As stated above, this is not the
Chamber’s understanding of the Accused’s
evidence. This is therefore not, in the Chamber’s view,
a matter open for rebuttal. A third aspect of Fatmir
Limaj’s evidence which the Prosecution wishes to rebut
through the admission of the Fourth Statement is the
suggestion that Exhibit P30 was part of a larger group
of documents stored on behalf of the Ministry of Defence. However, the documents among which Exhibit P30 is
said to have been found27
appear to include a number of military reports addressed
to the Ministry of Defence around May 1999. The information
that the Prosecution now wishes to tender was in its
possession from the commencement of the trial and the
inference it now wishes to draw from the nature of
this documentation was not put to Fatmir Limaj in the
course of his evidence.
- In these circumstances, the Chamber is of the
view that the proposed Fourth Statement does not
relate to a significant issue arising out of the
Defence case which could not have been anticipated.
It is therefore not admissible as rebuttal evidence.
The conclusion of the Chamber is reinforced by the
very limited probative value which the Fourth Statement
appears to have in rebuttal of the evidence of Fatmir
Limaj.
- The Chamber notes that the Defence for Fatmir
Limaj offers a “secondary basis” upon which it opposes
to the admission of the Fourth Statement, namely
that the statement does not properly fall under Rule
92bis of the Rules. In light of the Chamber’s finding
that the Fourth Statement may not be admitted as
rebuttal evidence, there is no need to further consider
by which means it ought to have been admitted, had
it been considered as proper rebuttal evidence.28
IV. DISPOSITION
For the foregoing reasons, pursuant to Rules 85, 89
and 92bis of the Rules, the Chamber
ALLOWS the Prosecution to file a Reply to the
Response;
PARTLY GRANTS the Motion and ORDERS that
the First, Second and Third Statements be admitted
as rebuttal evidence;
DENIES the Motion in so far as it seeks the
admission of the Fourth Statement ; and
REQUESTS the Registry to (a) mark as exhibits
the First, Second and Third Statements in Annex to
the Motion, and (b) assign an exhibit number to these
documents, and to inform the Chamber and the parties
of the exhibit numbers in writing as soon as practicable.
Done in English and French, the English version being
authoritative.
______________________
Judge Kevin Parker
Presiding
Dated this seventh day of July 2005
At The Hague
The Netherlands
[Seal of the Tribunal]
1 - Motion
paras 2-4.
2 - Response,
paras 1 and 25.
3 - Decision
on Prosecutor’s Motion for Provisional Admission of
Witness Statements under Rule 92bis, issued
confidentially on 13 October 2004.
4 - Ibid,
para 9.
5 - The
Prosecutor v. Delalic & al., Case No. IT-96-21-A,
Judgement, 20 February 2001 (“the Delalic & al. Appeals
Judgement”),
para 273.
6 - Delalic & al. Appeals Judgement, para 275.
7 - The
Prosecutor v. Dario Kordic and Mario Cerkez, Case
No IT-94-14/2-T, T 26647. See also The Prosecutor v.
Stanislav Galic, Case No. IT-98-29-T. Decision
on Rebuttal Evidence, 2 April 2003, p 3.
8 - The
Prosecutor v. Dario Kordic and Mario Cerkez, Case
No IT-94-14/2-T,
T 26646-26647. See also, The Prosecutor v. Radislav
Krstic, Case No IT-98-33-T, Decision on the Defence
Motions to Exclude Exhibits in Rebuttal and Motion
for Continuance, para 11.
9 - T 7079.
10 - Reply,
para 2.
11 - Motion,
paras 10-12.
12 - Motion,
para 14.
13 - Motion,
para 15.
14 - Response,
para 6.
15 - Response,
paras 7-9 and 13.
16 - Response,
para 10.
17 - Response,
para13.
18 - T 518-522.
19 - T 448.
20 - T 483-484.
While it appears from the evidence of Ole Lehtinen
that he did not have direct knowledge of the conduct
of the searches in Haradin Bala’s and Isak Musliu’s
respective properties, he did participate in the search
of Fatmir Limaj’s apartment, T 481-482.
21 - T 518-522.
22 - T
6338-6347.
23 - T 6338-6339.
24 - T 6341-6342.
25 - T
6342.
26 - Exhibit
P7.
27 - The
documents were attached to the Motion as Exhibit D.
28 - See
Reply, para 4.
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