Case No.IT-02-60-T

Before:
Judge Liu Daqun, Presiding
Judge Volodymyr Vassylenko
Judge Carmen Maria Argibay

Registrar:
Mr. Hans Holthuis

Decision of:
12 June 2003

PROSECUTOR
v.
VIDOJE BLAGOJEVIC
DRAGAN JOKIC

__________________________________

FIRST DECISION ON PROSECTION’S MOTION FOR ADMISSION OF WITNESS STATEMENTS AND PRIOR TESTIMONY PURSUANT TO RULE 92 bis

__________________________________

The Office of the Prosecutor:

Mr. Peter McCloskey

Counsel for the Accused:

Mr. Michael Karnavas and Ms. Suzana Tomanovic for Vidoje Blagojevic
Mr. Miodrag Stojanovic and Ms. Cynthia Sinatra for Dragan Jokic

TRIAL CHAMBER I, SECTION A, (“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 (“Tribunal”) is seised of the “Prosecution’s Motion for Admission of Witness Statements and Prior Testimony Pursuant to Rule 92 bis and Incorporated Motion in limine to Admit Related Exhibits,” dated 14 February 2003 and filed confidentially on 18 February 2003 (“First Motion”). Additionally, the Trial Chamber is seised of the “Prosecution’s Consolidated Reply Regarding its 14 February 2003 Motion for Admission of Evidence under Rule 92 bis and Incorporated Motion for Admission of Nine Additional Witness Statements under Rule 92 bis,” filed confidentially in-part by the Prosecution on 22 April 2003 (“Second Motion”).¹ The Trial Chamber received responses from the two accused, namely Vidoje Blagojevic and Dragan Jokic (collectively, “Accused”), to the Prosecution’s First Motion,² filed in accordance with the scheduling for filings issued by the Trial Chamber;³ neither Accused filed a response or a reply to the Second Motion. While the Trial Chamber also received responses from former co-accused Momir Nikolic and Dragan Obrenovic,⁴ as Mr. Nikolic and Mr. Obrenovic have been separated from the proceedings in this case,⁵ the Trial Chamber has not considered their responses in making its decision on the admission of these witnesses testimony pursuant to Rule 92 bis of the Rules of Evidence and Procedure of the Tribunal (“Rules”).

THE TRIAL CHAMBER, HAVING CONSIDERED the submissions and arguments of the Parties,

HEREBY ISSUES ITS DECISION.

I. INTRODUCTION
1. Through the First Motion, the Office of the Prosecutor (“Prosecution”) seeks to have admitted the statements of nineteen witnesses pursuant to Rule 92 bis (A) and (B) and transcripts of former testimony of thirty witnesses pursuant to Rule 92 bis (D).⁶ Additionally, it seeks to have admitted the exhibits that relate to, and were tendered into evidence during, these witnesses’ testimony. Of the nineteen witnesses for whom the Prosecution seeks to have evidence admitted pursuant to Rule 92 bis ( A) and (B), seven of the witnesses are experts for whom the Prosecution has also submitted the intended “statements” as reports pursuant to Rule 94 bis of the Rules.

2. In the Second Motion, the Prosecution seeks to have admitted five witness statements pursuant to Rule 92 bis (A) and (B), of which three of the “statements” are expert reports that the Prosecution has also submitted or intends to submit pursuant to Rule 94 bis.⁷

3. In its response, the Blagojevic Defence has identified as “admissible” under Rule 92 bis five of the proposed Rule 92 bis (A) and (B) witnesses and fifteen of the proposed Rule 92 bis (D) witnesses, apparently without cross-examination;⁸ it submits that the remaining witnesses are inadmissible under Rule 92 bis “on the basis that they are either unreliable as such, or that it would be in the interest of justice to have the witnesses appear for cross-examination.”⁹ The Blagojevic Defence has not addressed the particular circumstances of any of the witnesses nor did it provide the criteria upon which it based its decision to accept certain witnesses without cross-examination or its position that certain witnesses need to be called for cross-examination.

4. The Jokic Defence did not identify any witnesses as appropriate for admission pursuant to Rule 92 bis without cross-examination; it seeks the denial of the First Motion in full.¹⁰ Furthermore, the Jokic Defence did not address the particular circumstances of any of the witnesses. Rather, it based its objection to tending the witness testimony under Rule 92 bis on a blanket objection to the admission of evidence without the opportunity for cross-examination.

5. At the Pre-Trial Conference held on 5 May 2003, the Trial Chamber addressed questions to both parties on these two motions in relation to two categories of witnesses, namely those witnesses referred to under the title of “Bosnian Muslim Witnesses” and “Dutch Battalion” in the Prosecution’s Witness List filed pursuant to Rule 65 ter.( footnote 11 ) The parties, and particularly the Prosecution, provided specific information in relation to the particular witnesses identified by the Trial Chamber, which was of assistance in determining whether these witnesses were applicable under Rule 92 bis, and indeed whether it was necessary to maintain these witnesses on the witness list at all.¹² It is the witnesses from these two categories that are the subject of this Decision.¹³
   II. APPLICABLE LAW

6. Rule 92 bis (“Proof of Facts other than by Oral Evidence”) provides, in relevant part:

   (A) A Trial Chamber may admit, in whole or in part, the evidence of a witness in the form of a written statement in lieu of oral testimony which goes to proof of a matter other than the acts and conduct of the accused as charged in the indictment.

   (i) Factors in favour of admitting evidence in the form of a written statement include but are not limited to circumstances in which the evidence in question:

   (a) is of a cumulative nature, in that other witnesses will give or have given oral testimony of similar facts;

   (b) relates to relevant historical, political or military background;

   (c) consists of a general or statistical analysis of the ethnic composition of the population in the places to which the indictment relates;

   (d) concerns the impact of crimes upon victims;

   (e) relates to issues of the character of the accused; or

   (f) relates to factors to be taken into account in determining sentence.

   (ii) Factors against admitting evidence in the form of a written statement include whether:

   (a) there is an overriding public interest in the evidence in question being presented orally;

   (b) a party objecting can demonstrate that its nature and source renders it unreliable, or that its prejudicial effect outweighs its probative value; or

   (c) there are any other factors which make it appropriate for the witness to attend for cross-examination.

   (B) A written statement under this Rule shall be admissible if it attaches a declaration by the person making the written statement that the contents of the statement are true and correct to the best of that person’s knowledge and belief and

   (i) the declaration is witnessed by:

   (a) a person authorised to witness such a declaration in accordance with the law and procedure of a State; or

   (b) a Presiding Officer appointed by the Registrar of the Tribunal for that purpose ; and

   (ii) the person witnessing the declaration verifies in writing:

   (a) that the person making the statement is the person identified in the said statement ;

   (b) that the person making the statement stated that the contents of the written statement are, to the best of that person’s knowledge and belief, true and correct ;

   (c) that the person making the statement was informed that if the content of the written statement is not true then he or she may be subject to proceedings for giving false testimony; and

   (d) the date and place of the declaration.

   The declaration shall be attached to the written statement presented to the Trial Chamber.

   […]

   (D) A Chamber may admit a transcript of evidence given by a witness in proceedings before the Tribunal which goes to proof of a matter other than the acts and conduct of the accused.

   (E) Subject to Rule 127 or any order to the contrary, a party seeking to adduce a written statement or transcript shall give fourteen days notice to the opposing party, who may within seven days object. The Trial Chamber shall decide, after hearing the parties, whether to admit the statement or transcript in whole or in part and whether to require the witness to appear for cross-examination.

   III. DISCUSSION
   1. The Scope of Rule 92 bis

7. Pursuant to Rule 92 bis, a Trial Chamber may admit a written statement or former transcript of a witness 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.¹⁴ Any evidence admitted pursuant to Rule 92 bis must satisfy the fundamental requirements for the admissibility of evidence, as set out in sub-Rule 89 (C) and (D), namely relevance and probative value that is not substantially outweighed by the need to ensure a fair trial.

8. The Appeals Chamber, in its decision of 7 June 2002 in the case of Prosecutor v. Stanislav Galic, (“Galic Appeals Decision”) held that the phrase “ acts and conduct of the accused as charged in the indictment” in Rule 92 bis should be interpreted to mean the acts and conduct of the accused which establish his responsibility for the acts and conduct of others; Rule 92 bis should not be read to exclude “acts and conduct of those others who commit the crimes for which the indictment alleges that the accused is individually responsible.”¹⁵

9. In the Galic Appeals Decision, the Appeals Chamber found that Rule 92 bis (A) excludes a written statement which goes to proof of any act or conduct of the accused which the Prosecution relies upon to establish:

   (a) that the accused committed (that is, that he personally physically perpetrated ) any of the crimes charged himself, or

   (b) that he planned, instigated or ordered the crimes charged, or

   (c) that he otherwise aided and abetted those who actually did commit the crimes in their planning, preparation or execution of those crimes, or

   (d) that he was a superior to those who actually did commit the crimes, or

   (e) that he knew or had reason to know that those crimes were about to be or had been committed by his subordinates, or

   (f) that he failed to take reasonable steps to prevent such acts or to punish those who carried out those acts.¹⁶

10. In this case, in addition to direct criminal responsibility pursuant to Article 7(1) of the Statute of the Tribunal, the Accused are charged under a “joint criminal enterprise” theory of individual criminal responsibility, in the Amended Joinder Indictment of 27 May 2002 (“Indictment”). Additionally, Mr. Blagojevic is charged with command or superior responsibility pursuant to Article 7(3) of the Statute for every count.

11. In cases when a joint criminal enterprise is alleged, and the accused is “therefore liable for the acts of others in that joint criminal enterprise,”¹⁷ Rule 92bis(A) also excludes any written statement which goes to proof of any act or conduct of the accused upon which the prosecution relies to establish :

    (a) that he or she had participated in that joint criminal enterprise, or

    (b) that he or she shared with the person who actually did commit the crimes charged the requisite intent for those crimes.¹⁸

12. Relevant to both the fact that a joint criminal enterprise is alleged in the Indictment involving both Accused, and that Mr. Blagojevic is charged pursuant to Article 7(3) of the Statute, is the observation by the Appeals Chamber that the question of whether a statement relates to the acts and conduct of an alleged subordinate of the accused or of a person for whose acts the accused is charged with responsibility is relevant to the exercise of the Trial Chamber’s discretionary power under Rule 92 bis (E).¹⁹ Where the individual, whose acts and conduct are described in the statement or transcript is so proximate to the accused and where the evidence is so pivotal to the Prosecution case, the Trial Chamber may decide: (i) not to admit the statement or transcript at all, or (ii) to require the witness to appear for cross-examination.²⁰ The Appeals Chamber emphasises that Rule 92 bis was primarily intended to be used to establish “crime-base” evidence, and not the acts and conduct of “what may be described as the accused’s immediately proximate subordinates – that is, subordinates of the accused of whose conduct it would be easy to infer that he knew or had reason to know,”²¹ thereby providing evidence to establish an element for liability under Article 7 (3) of the Statute. The Trial Chamber endorses this interpretation of the primary purpose of Rule 92 bis.

13. In relation to establishing the necessary mens rea of the accused, the Appeals Chamber found: “The ‘conduct’ of an accused person necessarily includes his relevant state of mind, so that a written statement which goes to proof of any act or conduct of the accused upon which the prosecution relies to establish that state of mind is not admissible under Rule 92bis. In order to establish that state of mind, however, the prosecution may rely upon the acts and conduct of others which have been proved by Rule 92bis statements.”( footnote 22 ) Additionally, the Appeals Chamber specified that the “conduct” of an accused person “may also in the appropriate case include his omission to act.”²³

14. Additionally, as Rule 92 bis (E) provides, a Trial Chamber has the discretion to admit a written statement or transcript without calling the witness to appear for cross-examination. Thus, unlike the proposition put forward in the Jokic Response,²⁴ the right to cross-examine witnesses is not an absolute right,²⁵ although the decision to accept evidence without cross-examination is one which the Trial Chamber shall arrive at only after careful consideration.

15. Finally, in the Galic Appeals Decision the Appeals Chamber notes that Rule 92 bis provides for a particular form of hearsay, namely written statements that are prepared for the purpose of legal proceedings.²⁶ Issues related to the reliability of such hearsay evidence must be given due consideration.²⁷
    2. Analysis of Proposed 92 bis Witnesses

16. Through the First Motion and the Second Motion, the Prosecution seeks to have tendered the evidence of five witnesses from the Dutch Battalion through former testimony in four cases, and a written statement in one case. Additionally, the Prosecution seeks to have tendered the evidence of seventeen Bosnian Muslim witnesses, through former testimony in fourteen cases and through a written statement in three cases. These witnesses are testifying to events in and around Srebrenica and Potocari in July 1995, as well as to various acts alleged in paragraphs 43-47.8 of the Indictment. The Prosecution seeks to have the evidence for all witnesses submitted without calling any of these witnesses for cross-examination.

17. The Trial Chamber begins its analysis of the proposed Bosnian Muslim Witnesses and Dutch Battalion witnesses by observing that none of the proposed Rule 92 bis witnesses makes any direct mention of either of the Accused, and therefore the evidence to be admitted through these witnesses does not go directly to “acts and conduct of the accused as charged in the indictment”. Additionally, none of the proposed Rule 92 bis witnesses make any indirect reference to the acts and conduct of either Accused through other means including, for example, reference to the acts and conduct of persons who held the positions which either Accused are alleged to have held.

18. As Rule 92 bis does not permit evidence of any act or conduct of the accused upon which the Prosecution relies to establish either that an accused participated in a joint criminal enterprise or that an accused shared with the person who actually did commit the crimes charged the requisite intent for those crimes, the Trial Chamber also examined the proposed Rule 92 bis statements and transcripts for any reference to such evidence; the Trial Chamber found no such evidence in relation to either Accused.

19. Finally, in relation to the charges against Mr. Blagojevic under Article 7( 3) of the Statute, the Trial Chamber further observes that none of the proposed Rule 92 bis witnesses, through their statements or former testimony, provide evidence or information that the acts and conduct of the subordinates of Mr. Blagojevic are so proximate to him or that the evidence is so pivotal to the Prosecution case that the Trial Chamber needs to hear the witnesses testimony viva voce. Indeed, the Trial Chamber has not identified, nor has the Blagojevic Response identified for the Trial Chamber, any references to subordinates of Mr. Blagojevic in the proposed testimony of these witnesses that is so proximate to Mr. Blagojevic or so pivotal to the Prosecution’s case so as to require that these witnesses be called for cross -examination on this ground.

20. One of the factors that weighs in favour of admitting evidence in the form of a written statement pursuant to Rule 92 bis (A) and (B) is that the evidence in question is of a cumulative nature, meaning that other witnesses will give oral testimony of similar facts.²⁸ The Trial Chamber notes that while Rule 92 bis permits for the admission of cumulative evidence on matters other than the acts and conduct of the accused through written statements, this Rule should not be interpreted by any of the parties to these proceedings as an invitation to tender unnecessarily cumulative or repetitive evidence. The Trial Chamber recalls that it has the power to set the number of witnesses that either party may call, pursuant to Rule 73 bis and Rule 73 ter of the Rules, and shall exercise this power if necessary. Furthermore, the Trial Chamber recalls that pursuant to Rule 89(D), it may exclude evidence if the probative value is substantially outweighed by the need to ensure a fair trial. One criteria used to establish whether a trial is fair is if an accused is tried without undue delay.²⁹ The admission of unnecessarily cumulative or repetitive evidence may affect the expeditious nature of the proceedings, and therefore will not be admitted.³⁰

21. While Rule 92 bis (D) does not establish the same factors for admission of a transcript as Rule 92 bis (A) establishes for a written statement, the Trial Chamber finds that the criteria set out for admission of a written statements in sub-Rules 92 bis (A)(i) and (A)(ii) can also be applied to consideration of the admission of transcripts as evidence.

22. The Trial Chamber observes that in the case of nearly all witnesses related to this Decision, there are additional viva voce witnesses who will provide testimony of similar facts, and therefore the testimony of the proposed Rule 92 bis witnesses can be considered to be of a cumulative nature.

23. At the Pre-Trial Conference on 5 May 2003, the Trial Chamber asked the Prosecution whether it was necessary to maintain certain witnesses on the witness list, citing the fact that the testimony of these witnesses appeared to be repetitive and did not provide the Trial Chamber with additional details of great assistance to it in carrying out its fact-finding function. In relation to three witnesses testifying about events in and around Potocari, namely W49, W52 and W54, the Prosecution responded that there is “a nice written record of their testimony and their cross-examination,” and that these witnesses can assist the Trial Chamber in understanding the “very difficult and complex situation” at Potocari during a two-day period in July 1995, particularly on the issue of forcible transfer.³¹ The Prosecution further argued that to maintain these three witnesses on the witness list would not be an “undue burden”.

24. While the Trial Chamber appreciates that the situation in Potocari may have been very complex and that the testimony of additional witnesses may provide additional detail for the Trial Chamber to consider when determining the facts in this case, the Trial Chamber also observes that there are nearly 140 witnesses on the Prosecution’s witness list, many of whom will testify about events in and around Potocari. The Trial Chamber does appreciate the Prosecution’s efforts to use Rule 92 bis to limit the number of viva voce witnesses whenever possible. But the Trial Chamber must consider all evidence in this case carefully. To maintain witnesses who are not necessary to establish the Prosecution’s case and whose testimony does not assist the Trial Chamber in its fact-finding mission is not in the interests of the Accused or the Trial Chamber. Therefore, the Trial Chamber recommends that the Prosecution remove W49, W52 and W54 from its witness list. The Trial Chamber makes this recommendation bearing in mind that in the course of a trial some witnesses may decide that they do not want to testify or that other witnesses need to be removed from the witness list for other reasons. Should the Prosecution consider it necessary at a later date to reinstate these witnesses, the Trial Chamber will consider the merits of such a motion.

25. In relation to two witnesses that are the subject of Decision, W50 and W59, who are proposed 92 bis (D) witnesses, the Trial Chamber observes that they may be the only witnesses to testify to paragraph 43(c) and 46.2 of the Indictment, respectively. The Trial Chamber recalls the observation of the Appeals Chamber in the Galic Appeals Decision that “where the witness who made the statement is not called to give the accused an adequate and proper opportunity to challenge the statement and to question that witness, the evidence which the statement contains may lead to a conviction only if there is other evidence which corroborates the statement,”³² and reminds all parties that such “other evidence” will be necessary to corroborate evidence put forward by a single Rule 92 bis witness who was not called for cross-examination in order to lead to a conviction on that charge of the Indictment.

26. In considering whether to require that the proposed Rule 92 bis witnesses appear before the Trial Chamber for cross-examination, the Trial Chamber recalls its obligations under Article 20 and Article 21 of the Statute to ensure the a fair trial for the Accused.³³ The Trial Chamber endorses the criteria employed by former Trial Chambers in making this assessment for witnesses proposed under Rule 92 bis (D), namely whether the testimony goes to proof of a critical element of the Prosecution’s case against the accused and whether the cross-examination of the witness in prior proceedings dealt adequately with the issues relevant to the defence in the current proceedings.³⁴ In this respect, the Trial Chamber notes that all of the proposed Rule 92 bis (D) witnesses save one testified in the case Prosecutor v. Radislav Krstic , Case No. IT-98-33-T, which dealt with substantially similar events.³⁵

27. In assessing the former testimony of the proposed Rule 92 bis (D) witnesses, the Trial Chamber finds that it is not necessary to call any of these witnesses for cross-examination. The Trial Chamber did not find that there were open questions for these witnesses following their examination, cross-examination and questioning by the Trial Chamber in the former proceedings that would have an impact on the two Accused in this case. Neither the Blagojevic Response nor the Jokic Response provided the Trial Chamber with concrete or specific reasons why any of these witnesses would need to be recalled for cross-examination only.

28. It appears that these witnesses are so-called “crime-base witnesses”. Such a characterisation is not meant to minimise the evidence put forward by these witnesses or their overall importance to this case. Rather, in cases before the Tribunal, where the crucial issue is the individual criminal responsibility of persons brought before it, the Trial Chamber does not find that these witnesses provide evidence that is “so pivotal” to establishing the individual criminal responsibility of either Vidoje Blagojevic or Dragan Jokic for the crimes alleged in the Indictment. Accordingly, in weighing the various interests in recalling these witnesses for cross-examination, including the impact of testifying before the Tribunal on the proposed witnesses and the right of the Accused to a fair and expeditious trial, the Trial Chamber finds that it is not necessary to call these witnesses.

29. In the case of the three remaining witnesses proposed under Rule 92 bis (B), the Trial Chamber recalls that due to the large number of witnesses proposed under this Rule, the Prosecution has provided the Defence and the Trial Chamber with preliminary statements in order to assess whether these witnesses would be suitable under Rule 92 bis before formal declarations are obtained. The Trial Chamber finds that in case of two of the proposed Rule 92 bis (B) witnesses, namely W57 and W71, there is insufficient detail in the statement for the Trial Chamber to make a conclusive decision on the issue of cross-examination. The Trial Chamber further finds that in relation to one of the proposed Rule 92 bis (B) witnesses, namely W36, the statement appear to be rather cumulative of viva voce testimony. While the Trial Chamber finds that there appear to be additional details provided by this witness which would warrant the maintenance of this witnesses on the Prosecution’s witness list, the Trial Chamber encourages the Prosecution to consider whether the evidence of this witness is necessary to its case before taking a Rule 92 bis (B) declaration. The Trial Chamber reserves its decision on cross-examination of this witnesses until the final Rule 92 bis statement is provided.
    3. Admission of Exhibits with the Testimony of Rule 92 bis (D) Witnesses

30. In addition to the transcripts of former testimony of eighteen witnesses relevant to this Decision, the Prosecution seeks to have admitted all exhibits admitted into evidence during their former testimony. It is recognised in the jurisprudence of the Tribunal that although Rule 92 bis (D) does not explicitly provide for the admission of exhibits admitted during former testimony, such exhibits are admissible pursuant to this Rule, as these exhibits “form an inseparable and indispensable part of the testimony.”³⁶

31. The Trial Chamber notes that the majority of exhibits attached to the former testimony are maps which the witnesses marked or photographs shown to the witnesses. The Trial Chamber notes, however, that an index has not been provided with the First Motion or the Second Motion indicating the exact title or exhibit number given to each exhibit in the Krstic case. The Trial Chamber considers such an index would be helpful, particularly in identifying which exhibits in this case overlap with exhibits tendered in the Krstic case.

32. The Trial Chamber reserves its decision on the admission of all exhibits which were admitted during the former testimony of the proposed Rule 92 bis (D) witnesses until such a time as the Trial Chamber can review the index of proposed exhibits. Therefore, the Trial Chamber requests that the Prosecution supply both the Trial Chamber and the Accused with an index indicating the exact title and exhibit number for each exhibit for the witnesses who are subject of this Decision and all remaining Rule 92 bis (D) witnesses.
    III. DISPOSITION

33. Having considered the submissions of the parties, the Rules and Statute of the Tribunal, as well as the jurisprudence on Rule 92 bis, the Trial Chamber GRANTS the First Motion and the Second Motion in relation to the following witnesses, thereby permitting the statement or former testimony of these witnesses to be entered into evidence pursuant to Rule 92 bis without calling the witnesses for cross-examination: W33, W34, W37, W38, W44, W48, W50, W51, W53, W59, W61, W63, W65, W72, W73 and W74.

34. In relation W36, W57 and W71, the Trial Chamber GRANTS the First Motion to the extent that the witness statements of these witnesses shall be entered into evidence, pursuant to Rules 92 bis (A) and (B). The Trial Chamber RESERVES its decision on whether it is necessary to call these witnesses for cross-examination until the final Rule 92 bis statements have been filed.

35. The Trial Chamber RECOMMENDS that the Prosecution withdraw witnesses W49, W52 and W54 from its witness list at this stage. Should the Prosecution determine at a later stage that it is necessary to reinstate these witnesses on the witness list, the Trial Chamber will consider such a motion.

36. The Trial Chamber further ORDERS that the Prosecution supply the Trial Chamber with an index for all Rule 92 bis (D) witnesses, which includes the exact title and exhibit number of each exhibit admitted during that witness’ former testimony. The Trial Chamber will rule on the admissibility of the exhibits following receipt of such an index.

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

________________
Judge Liu Daqun
Presiding

Dated this twelfth day of June 2003,
At The Hague
The Netherlands

[Seal of the Tribunal]

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