Case No. IT-03-66-T

Before:
Judge Kevin Parker, Presiding
Judge Krister Thelin
Judge Christine Van Den Wyngaert

Registrar:
Mr. Hans Holthuis

Decision of:
15 December 2004

The Office of the Prosecutor:

Mr. Andrew Cayley
Mr. Alex Whiting

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
1. This decision of Trial Chamber II is in respect of the Prosecution’s Motion for Provisional Admission of Written Evidence in Lieu of Viva Voce Testimony pursuant to Rule 92bis and Attached Annexes A-C” (“Prosecution’s motion”). The Prosecution’s motion, filed confidentially on 9 August 2004 sought the provisional admission without cross-examination pursuant to Rule 92bis(A) of the Rules of Procedure and Evidence (“Rules”) of 17 written statements subject to compliance with the requirements of Rule 92bis(B). On 31 August 2004 counsel for Isak Musliu (“Musliu Defence”) submitted its response to the Prosecution’s Motion, in which it objected to the unchallenged admission of all written statements and requested that the Defence be given the opportunity to cross-examine the witnesses. On 7 September 2004 the Prosecution filed its Reply to the Musliu Defence’s response in which it withdrew its motion with respect to two of the 17 written statements and maintained the motion with respect to the remaining statements. On 15 September 2004 the Musliu Defence submitted a Defence Note for Clarification in which it submitted inter alia that its Response to the Prosecution’s motion was filed after consultation with counsel for Haradin Bala. Counsel for Fatmir Limaj did not submit a separate response to the Prosecution’s Motion.¹ On 11 October 2004 the Acting President of the Tribunal assigned the case to Trial Chamber II composed by Judges Parker, Thelin and Van Den Wyngaert.
   II. ARGUMENTS OF THE PARTIES

2. The Prosecution submits that none of the written statements sought to be admitted goes to proof of acts and conduct of the Accused as the proposed evidence concerns the abduction of victims by members of the Kosovo Liberation Army (“KLA”) other than the Accused, the relevant historical, political or military background, and the impact of the crimes alleged in the indictment on the victims and their families.² It further submits that the evidence is cumulative in nature and the consideration of the factors listed in Rule 92bis (A)(ii), namely overriding public interest in hearing the witness viva voce , reliability, or prejudicial effect, supports the admission of the proposed written statements.³ With respect to whether the witnesses should be called for cross-examination the Prosecution submits that the proposed written statements do not contain evidence relating to critical elements of the Prosecution case and deal with issues peripheral to the core issues in the case.⁴

3. The Defence responds that while the evidence in question may not relate to the conduct of the Accused, it relates to a critical element of the Prosecution case and to a live and important issue between the parties.⁵ It submits that the Prosecution are put to strict proof as to the existence of the Lapushnik/Llapushnik Prison Camp and the detention of anyone therein and that, therefore, evidence relevant to this is a central issue.⁶ Further it submits that as it does not accept that an armed conflict existed in Kosovo during the period charged in the indictment, evidence concerning the emergence of the KLA or its presence in certain areas, are central issues in this case.⁷ It argues that the proposed witness statements are unreliable and that their prejudicial effect will outweigh their probative value as they include hearsay evidence and that with respect to several incidents the statements rely on information from the Serbian security forces the reliability of which is questionable.⁸
   THE LAW

4. The admission of evidence, whether in written or in oral form, is governed by Rule 89(C), which provides that a Chamber may admit any relevant evidence which it deems to have probative value. Pursuant to Rule 92bis a Trial Chamber may admit into evidence written statements in lieu of oral testimony if the statements go to proof of a matter other than the acts and conduct of the accused as charged in the indictment.

5. The scope of this provision has already been identified by the jurisprudence of the Tribunal. “Acts and conduct of the accused” has been interpreted as a “plain expression” meaning “deeds and behaviour of the accused.”⁹ The Appeals Chamber has further clarified that written statements that go to proof of acts and conduct of the accused upon which the prosecution relies to establish inter alia the accused’s state of mind, the accused’s position as a superior, that the accused had reasons to know that his subordinates were committing a crime, that he participated in a joint criminal enterprise, or that he shared the intent of the other participants in the joint criminal enterprise, are not admissible under Rule 92bis.¹⁰

6. Pursuant to Rule 92bis a Trial Chamber has a discretion whether or not to admit a written statement even if the proposed evidence goes to proof of a matter other than the acts and conduct of the accused. While written statements concerning acts and conduct of persons the accused is allegedly responsible for are not inadmissible per se, this evidence may become sufficiently pivotal to the Prosecution case that it would not be fair to the accused to permit the evidence to be given in a written form.¹¹ Relevant to this determination is the proximity to the accused of the acts and conduct of his subordinates described in the written statements.¹²

7. Further, under Rule 92bis a Trial Chamber has a discretion whether or not to order the witness, whose written statement it deems in principle to be admissible, to appear in court for cross-examination. An important consideration in that regard is “whether the matter in question goes to proof of a critical element of the Prosecution’s case against the accused,”¹³ or “to a live and important issue between the parties, as opposed to a peripheral or marginally relevant issue.”¹⁴ In determining whether to admit a written statement with cross-examination, a Trial Chamber may also consider the fact that Rule 92bis was primarily intended to be used to establish what has become known as “crime-base” evidence, as opposed to evidence related to acts and conduct of an accused’s immediately proximate subordinates.¹⁵

8. The cumulative nature of the evidence sought to be admitted in written form is also a factor relevant to whether the written statement should be admitted with or without cross-examination. However, regardless of how repetitive the evidence is, it cannot be admitted in written form if it goes directly to the acts and conduct of the accused.¹⁶

9. The Defence submits that the proposed witness statements are unreliable as they include hearsay evidence sometimes obtained from unreliable sources. The Trial Chamber notes that in the proceedings before the Tribunal hearsay evidence is in principle admissible, provided that it is relevant and has probative value.¹⁷ In determining the probative value of hearsay evidence the Trial Chamber is to assess the indicia of its reliability such as whether the statement is voluntary, truthful and trustworthy.¹⁸
   III. DISCUSSION

10. The Trial Chamber now turns to consider whether the written statements sought to be admitted go to proof of acts and conduct of the Accused or whether the evidence is pivotal for the Prosecution case. The Chamber observes that most of the written statements address similar factual questions and finds it convenient to consider such common issues together in the context of the Prosecution case.

11. The Prosecution alleges that each of the three Accused is responsible pursuant to Article 7(1) of the Statute for ordering, committing and aiding and abetting the crimes charged, as well as for participating in a joint criminal enterprise with the other Accused, other KLA soldiers and guards at the Lapushnik/Llapushnik prison camp, and other KLA soldiers participating in the arrests of Serb civilians and perceived Albanian collaborators.¹⁹ It is alleged that the joint criminal enterprise came into existence before May 1998 and continued until at least August 1998 with the purpose of targeting Serb civilians and perceived Albanian collaborators for intimidation, imprisonment, violence, and murder. Fatmir Limaj and Isak Musliu are also charged with criminal responsibility as superiors of the actual perpetrators, pursuant to Article 7(3) of the Statute.²⁰

12. Each of the three Accused is charged with imprisonment and cruel treatment of Serbian and Albanian civilians seized in the municipalities of Stimlje/Shtime, Glogovac/Gllogoc and Lipljan/Lipjan in Kosovo and brought to the Lapushnik/Llapushnik prison camp;²¹ with torture, inhumane acts and cruel treatment at the Lapushnik/Llapushnik prison camp;²² with murder of civilians at the prison camp,²³ or near the camp.²⁴

13. The Indictment also alleges that Fatmir Limaj was a commander of the KLA, responsible for the operation of the Lapushnik/Llapushnik area and the Lapushnik/Llapushnik prison camp. Isak Musliu is alleged to have been a member of the KLA and a commander of the Lapushnik/Llapushnik area and the prison camp. Haradin Bala was allegedly a member of the KLA and a commander/guard at the prison camp.

14. All fifteen written statements sought to be admitted pursuant to Rule 92bis contain information regarding the disappearance or the kidnapping by the KLA of family members of the witnesses in May and June 1998 from various municipalities in Kosovo.²⁵ The Defence objects to the admission of this evidence without cross-examination. It does not accept that the individuals referred to in the written statements were kidnapped by the KLA.²⁶ The Prosecution replies that the proposed evidence, while relevant and important, does not relate to a critical element of the Prosecution case,²⁷ and that while the existence of the Lapushnik/Llapushnik prison camp is disputed by the Defence, only four of the written statements refer to this camp.²⁸ The Chamber observes that the parts of the written statements referring to the fact of disappearance or kidnapping of the witnesses’ relatives do not purport to prove acts and conduct of the Accused. They are therefore admissible in principle. While some of these statements refer to victims listed in the Annex to the Indictment, and therefore the fact of their disappearance may be relevant to establishing their death, the Defences do not contest the Prosecution’s position that the individuals listed in the Indictment are indeed dead.²⁹ Further, in the relevant parts, the statements do not purport to specifically identify the alleged kidnappers. Nor do the statements indicate whether they were individuals for whose acts the Accused could be held responsible, or with whom one or more of the Accused could have participated in a joint criminal enterprise. Many of the statements³⁰ lack specificity as to the alleged place of detention or other factors that may prove the responsibility of any of the Accused. In this respect, the statements cannot serve as a basis for establishing that the individuals who carried out the alleged kidnappings were under the effective command and control of one or more of the Accused. In view of the above, the Trial Chamber concludes that the statements in so far as they refer to the disappearance or the kidnapping of witnesses’ relatives, are not pivotal to the Prosecution case and may therefore be admitted without cross-examination.

15. The statements of witnesses L-29, L-34, L-13, L-37 and L-84 contain reference to specific KLA commanders in the area. While the statements of witnesses L-29 and L-34 do not contain a reference to any of the Accused, the statements of witnesses L-13, L-37 and L-84 refer to Fatmir Limaj (aka Celiku) as being a KLA commander in the area (together with commander Drini). The statement of witness L-84 further refers to the commander in Lapushnik making decisions regarding the release of persons held for interrogation, a fact that could be relevant to establishing effective control over subordinates for the purposes of Article 7(3). None of the statements refers to Isak Musliu and Haradin Bala as having a status of KLA commander in the area. The relevant parts of the statements of witnesses L-13, L-37 and L-84 contain information which may be used to establish that Fatmir Limaj was a superior, and therefore these parts are inadmissible under Rule 92bis. While there is no separate response from the Limaj Defence and the response of Musliu Defence does not raise this issue explicitly, the Trial Chamber nevertheless holds that the statements of witnesses L-13, L-37 and L-84 are inadmissible so far as they refer to Fatmir Limaj (commander Celiku) as being the KLA commander of the area..

16. The statements of witnesses L-09 and L-84 contain information about victims listed in the Indictment being detained, interrogated, beaten, forced to give written statements or possibly murdered (witness L-09), or in the case of witness L-84, about instances of detention and interrogation taking place at the Lapushnik/Llapushnik prison camp. As the Accused are charged with inter alia murder and inhumane treatment taking place in the Lapushnik/Llapushnik prison camp, and as two of the Accused are also charged with participating in a joint criminal enterprise, as well as with responsibility under Article 7(3), and could be held responsible for acts of their subordinates or other members of the joint criminal enterprise, these parts of the above statements are pivotal for the Prosecution case. The Trial Chamber is persuaded, therefore, that while the above statements are admissible, the interests of justice require that the witnesses attend for cross-examination.

17. The statements of witnesses L-09, L-37, L-84 and L-43 refer to persons being detained in the Lapushnik/Llapushnik prison camp. The Defence does not accept the existence of this prison camp and objects to the admission of the above statements on the grounds that the above issue represents a critical element of the Prosecution case.³¹ The Prosecution submits however that this evidence will be merely corroborating other viva voce testimony. While the statements of witness L-37 and L-43 each refer to persons being noticed in the camp, the references are unclear and alone could not serve as the basis for establishing the circumstances of the death of these persons. The Trial Chamber holds that the statements of L-37 and L-43 are admissible without cross-examination, provided that they will be corroborating or cumulative on other viva voce testimony. The Trial Chamber already has held that the statements of L-09 and L -84 are admissible with cross-examination and does not propose to vary that in favour of the Prosecution.

18. The statements of witnesses L-86, L-29, L-84 and L-31 contain information about the escalation of tension in the area, the establishment of KLA checkpoints, KLA presence in the area, and incidences of provocations. The Defence objects to the admission of written statements on these matters on the grounds that it does not accept the existence of an armed conflict in Kosovo in 1998. The Chamber does not agree that these statements evidence or assume the existence of a state of armed conflict. Rather, they provide relevant historical, political and military background. The Chamber therefore holds that the relevant parts of these statements are not pivotal for the Prosecution case and that they are admissible without cross-examination.

19. Finally, the Chamber is persuaded that each of the written statements is relevant to the case. It is further persuaded by the Prosecution submission that while aspects of each of the statements are based on hearsay, having regard to the nature of those aspects and the circumstances of this case, the statements are not thereby so unreliable as to render them inadmissible as lacking probative value. The witnesses do assume who has kidnapped certain persons, and when and how. It is clear however from the context that these are assumptions based on hearsay. There are sufficient indicia of reliability to justify admission into evidence. The ultimate weight that may be attached to these aspects of the statements is something to be determined at a later stage of the hearing.
    IV. DISPOSITION

    For the foregoing reasons, the Trial Chamber

    DECIDES:

    A. (1) Provisionally, and subject first to compliance with the Rule 92bis (B) procedure, that it will admit in evidence written statements of

    (a) L-13, but not paragraph 4 on page 3 of his present statement which commences “Rahman also told me …” and concludes “dangerous man;”

    (b)L-37, but not – in paragraph 6 of his present statement—the passage commencing with “Based on what I heard” to the end of paragraph 6; and

    (c) L-84, but not paragraphs 20, 42, 43 and 54 of his present statement;

    (2) The Admission of the written statement of L-84 is subject to that witness being called by the Prosecution for the purpose of cross-examination;

    (3) The Admission of the written statement of L-37 is subject to that statement being corroborative of or cumulative on other viva voce testimony; and

    (4) The Admission of a written statement of each of these witnesses is not intended to preclude the Prosecution calling any one or more of them with a view to seeking to lead evidence additional to that contained in the written statement.

    B. (1) Provisionally, and subject first to compliance with the Rule 92bis (B) procedure, that it will admit in evidence in their entirety written statements of L-86, L-29, L-34, L-25, L-09, L-31, L-28, L-48, L-65, L-43, L-30 and L-83;

    (2) The Admission of a written statement of L-09 is subject to that witness being called by the Prosecution for the purpose of cross-examination; and

    (3) The admission of a written statement of L-43 is subject to that statement being corroborative of or cumulative on other viva voce testimony.

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

______________
Judge Kevin Parker
Presiding

Dated this fifteenth day of December 2004
At The Hague
The Netherlands

[Seal of the Tribunal]

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