Case No. IT-02-54-T
IN THE TRIAL CHAMBER
Before:
Judge Richard May, Presiding
Judge Patrick Lipton Robinson
Judge O-Gon Kwon
Registrar:
Mr. Hans Holthuis
Date Filed:
25 February 2004
THE PROSECUTOR
v.
SLOBODAN MILOSEVIC
_____________________________________________________________________
The Office of the Prosecutor:
Ms Carla Del Ponte
Mr. Geoffrey Nice
Ms Hildegard Uertz-Retzlaff
Mr. Dermot Groome
Amicus Curiae:
Mr. Steven Kay
Mr. Branislav Tapuskovic
Mr. Timothy McCormack
The Accused:
Mr. Slobodan Milosevic
1. The Prosecutor notes, with great regret, the retirement through ill-health of Judge May. The Prosecutor will express elsewhere and at an appropriate time her full appreciation of the work of Judge May at this Tribunal.
2. The resignation may pose serious difficulties for the overall timetable of the case. These difficulties may arise whatever determination is made by the Trial Chamber, The President and any Appeals Chamber under Rules 15 bis (C), (D), (E) and (F) of the Rules, as to which the Prosecution makes no representations at all at this stage.
3. Difficulties are not entirely predictable but are most likely to cause additional delay to the time when the Accused can start his case (thus to the time when the trial will be concluded) and difficulties for the work of any judge who may be assigned under Rule 15 bis (C) and who would have to certify familiarisation with the case under Rule 15 bis (D)
4. With these considerations in mind and with concern for the due administration of justice and judicial economy the Prosecutor closes the case by this filing on the basis of all evidence already adduced including that filed for consideration and admission in written form to date (even if not presently ruled on), such as the document collections filed on 17 February 2004,1 and to be submitted soon, notably the documents dealt with the in Trial Chamber's order of 12 February 2004,2 together with such items of written evidence submitted with or by this filing and referred to in paragraphs 5-18 below.
5. The basis of admissibility of the following documents matches that for documents sought to be admitted in writing as document collections pursuant to the Trial Chamber’s order of 17 February 2004.3 The documents have been:
- provided to the OTP by Serbia and Montenegro pursuant to an RFA; or
- they are the products of television interviews provided in full together with video /audio recordings and full transcripts.
6. In either of these cases their provenance can properly be asserted by the Prosecution without the need to call any witness (who would in any case be something of a “token ” witness) to establish the receipt by the Prosecution of the item concerned. The Chamber has made it clear that documents are prima facie admissible.4
7. The Prosecution seeks inclusion of the “Palma Interview” referred to in paragraphs 8-10 and the Joint Command Order of 15 April 1999 referred to in paragraph 11 below at this stage for all purposes including for arguments under Rule 98bis. The items can be fully exhibited at this stage without any need for cross-examination. The Prosecution does not seek the inclusion of the records of interviews referred to in paragraphs 12-15 or the records of additional Closed Sessions of the Assembly of Republic of Serbia (paragraphs 16-18) evidence for purposes of arguments in the Rule 98bis process – it recognises that the material is voluminous and has not been presented in time for argument about it (of the kind required by the Trial Chamber for other document collections) to be advanced by the Amici or the Accused. However, the Prosecution considers that this evidence should be before the Trial Chamber in order for the Chamber to have as complete a collection of the relevant material available to it as possible, in order to facilitate, ultimately, a judgement which will stand the test of time.
The Palma Interview
8. The Accused gave an interview on 12 December 2000, to Palma TV, a television station in Serbia. The Prosecution requested a copy from the Federal Republic of Yugoslavia ("FRY") in Request For Assistance ("RFA") no. 314 dated 11 in November 2002. The Prosecution received a copy of the interview on 6 January 2003 from Dr. Sava Markovic, FRY Minister of Justice.
9. In the interview, the Accused made apparently candid and unrehearsed comments on a number of issues before the Trial Chamber: the Vance-Owen Plan and the circumstances of its rejection, relations between himself and the Republics of Srpska and Serbian Krajina, Yugoslavia's material assistance and support to the war efforts of those Serb republics, his military authority, among others. For example, the accused states his "blockade" against the Republika Srpska was merely "a clever political maneuver in order to decrease the severity of sanctions against Yugoslavia."
10. This interview is clearly of significant probative value to the Prosecution case. The Trial Chamber has previously admitted other statements made by the Accused where the authenticity of the documents has not been disputed.5 The Prosecution submits that it is appropriate for the Trial Chamber to admit this interview as well.
Joint Command Order of 15 April 1999
11. Of the material analysed in the Addendum to the Expert Report of Philip Coo (see para 19 below) only this one document has not been produced to date. It was provided by Serbia and Montenegro in a partial response to the Prosecution's Request for Assistance (RFA) FRY-0338 of 6 January 2003, on 13 June 2003 - too late to be adduced through any of the witnesses who have testified about the Joint Command. The Prosecution seeks the admission of this document (a copy of which will be provided to the Chamber ) and to provide the following analysis of it which also elucidates the probative value of the document and therefore the reason the Prosecution seeks its admission :
12. This Joint Command order is the only Joint Command document for 1999 the Prosecution obtained. It confirms the existence of the Joint Command in 1999. It also provides very strong corroboration of other Joint Command information the Prosecution has submitted into evidence through witnesses such as Philip Coo, Aleksandar Vasiljevic, Shukri Aliu, and Zoran Lilic. The order is of particular relevance because it sets out explicitly the Joint Command's authority over the VJ, MUP, and armed non -Albanian civilians in Kosovo in 1999. Furthermore, its format and content leave no doubt that the VJ drafted the order. The Joint Command was a core component in a chain-of-command which brought together, under FRY control, all armed groups ( and civilian administrative structures) operating in Kosovo in 1999.
The "Death of Yugoslavia" and "Fall of Milosevic" Television Programmes and the Interviews on which these Programmes were Based
13. These two television programmes are possibly well known to the Trial Chamber. Extracts from one of them has been played in the course of the trial. In large part the programmes were built on interviews with many of the key figures in the case (not least the Accused but also, Tudjman, Izetbegovic and witnesses such as Jovic, Arria, Clarke etc).
14. The Prosecution had previously indicated its intention to adduce these programmes into evidence,6 but is aware of the concern expressed by witnesses about the editing done by the production companies in the course of making them.7 However, the Prosecution either has or has the ability to obtain the raw video footage of interviews and accurate transcriptions of this footage. The Chamber has already allowed the Prosecution to produce one such transcription - the transcription of the "Death of Yugoslavia" interview with the Accused.8 The Prosecution submits that this material is more appropriate for admission than the programmes themselves given the editing concerns referred to.
15. There are clear reasons why the Chamber may wish to admit the transcripts of select additional interviews (specifically those interviews detailed in Annex A to this motion). The interviews identified in Annex A are of key figures in the dissolution of Yugoslavia and subsequent wars which are the subject of the Indictment. Many of these “key players” are now unavailable to provide evidence to this Chamber whether by reason of their death, inability to be found, the fact they have subsequently been indicted by this Tribunal or their unwillingness to testify. These transcripts therefore could provide an invaluable and otherwise unattainable component of the picture before this Chamber.
16. In these circumstances, the Prosecution submits that the Chamber should consider admitting these transcripts into evidence, subject, potentially, to analysis or identification of key parts by the Prosecution and submissions by the Accused or Amici Curiae. The Prosecution has transcripts of all the interviews from the production companies and will provide copies of these to the Chamber for review on the same day that this motion is filed. However, the Prosecution does not seek admission of the versions now provided as the Prosecution has identified discrepancies between the videos and production company transcriptions versions on other occasions. Should the Chamber consider that some or all of these transcripts could be admitted, the Prosecution will commence the procedure of producing verifiably accurate transcriptions.
Additional Closed Sessions of the Assembly of Republic of Serbia
17. On 17 February 2004 the Prosecution made submissions on the relevance of, and set out analysis and interpretation of Closed Sessions of the Assembly of the Republic of Serbia in the period between 1991 and 1992 that it had received in response to RFAs from Serbia and Montenegro.9 On 22 February 2004 the Prosecution discovered that it had received in August last year eight additional Closed Sessions10, seven of which are additional to those dealt with in the 17 February 2004 filing (one session duplicated what had been provided on another occasion). These sessions had been accidentally mislaid within the office and had failed to make their way to either staff involved in this case or the Prosecution evidence collection.
18. The Prosecution sincerely apologises to the Trial Chamber for failing to locate and include this documentation in previous submissions.
19. However, as submitted in the 17 February 2004 filing, the Assembly of Republic of Serbia Closed Sessions document collection is best viewed whole "so that a complete picture can emerge of the development of topics discussed".11 Consequently the Prosecution seeks permission from the Trial Chamber to include these documents in an Addendum to the 17 February 2004 filing.
19. The Prosecution had intended to call the following witnesses in the 2 days scheduled for the remainder of its case:
- Helge Brunborg – evidence in chief completed by production of Expert Report and some evidence in chief; yet to be cross examined;
- Phil Coo - for presentation of the Addendum to his Expert Report which deals with material in relation to the Joint Command for Kosovo and Metohija;
- B-235, a witness dealing with various JNA/VJ/Srebrenica issues;
- B-1764, a witness dealing with intercepts; and
- An additional witness detailed in Confidential Annex B (a brief summary of the evidence of all the above witnesses is also given in this Annex).
20. The Prosecution recognises that by closing its case without calling this evidence it can not rely on it for the purposes of answering any Rule 98 bis arguments that may be made. It would, however, ask the Chamber to have in mind that it was originally intended that this evidence be called, that it is clearly evidence of value and that it may be in the interests of justice in due course for the evidence to be called either by the Chamber itself or by permitting the Prosecution to call the evidence if the Rules so permit. In the event that the Trial Chamber elects to call any of the witnesses the Prosecution would, of course, accept that its examination should be in the form appropriate to examination in chief not cross-examination.
Exhibits and Intercepts
21. In a trial of this length there are, inevitably, issues to be resolved that can not be conclusively dealt with by the time the Prosecution closes its case. One such issue is the exercise of checking the accuracy of the Exhibit list; another is the exercise of deciding which exhibits marked for identification at the time of production may now fall to be dealt with as exhibits fully produced (this could require filings from the parties as with the exhibits produced in the Kosovo section ). These exercises have been the subject of regular discussion between the Prosecution and the Registry but there has simply not been time to bring either exercise to completion. The Prosecution holds itself ready, now that the case will be closed, to deal expeditiously with these two exercises whenever called upon to do so. Intervention by the Trial Chamber may be necessary to resolve any unresolved disputes, but it is hoped not.
22. The status of certain intercepts also remains unresolved. Specifically, there were three intercepts produced by the Prosecution during B-1804's testimony the production of which, it is submitted, is complete. A ruling on the status of these intercepts is sought. The same issue may arise in relation to some intercepts produced through Hrvoje Sarinic.
23. Finally on this topic, there are a number of 92bis packages that need to be formally admitted into evidence. Copies of these packages have been distributed to the Chamber; distribution to the Accused, Registry and Amici will be completed shortly. Proposed exhibit numbers have been agreed with all parties. These numbers, and the details of each proposed exhibit, are set out in the attached confidential Annex C. The Prosecution seeks the Trial Chamber's confirmation of the exhibit numbers for these packages.
Evidence obtained after this date
24. The Trial Chamber is aware of the attempts that have been made by the Prosecution to obtain various documents from Serbia and Montenegro. Efforts to obtain documents from this and other providers by “RFA”s, “54 bis” and through other means are on -going. The Prosecution seeks permission to leave open the possibility that it may seek to adduce evidence obtained from providers in response to RFAs, and otherwise, as a consequence of these efforts at a later stage.
25. In this respect, the Chamber will recall that the adduction of evidence by the Prosecution after the completion of the Prosecution case has been allowed in other cases, notably the Kordic case where the Croatian archives only became available after the Prosecution case closed.12
Provision of the "fill box" and "chronology" documents
26. Since the early days of the Trial the Prosecution has been periodically providing the Trial Chamber with revised versions of documents - one for each portion of the Trial, i.e. the Kosovo, Croatia and Bosnia components - which analyse the evidence adduced to date against the allegations made in the indictment. The Prosecution has termed these documents the "fill box" documents.
27. The Prosecution intends to provide versions of the Kosovo and Croatia "fill box" documents complete with all evidence adduced to date by Friday 27 February 2004 with a near final draft of the Bosnia document to be provided on Monday 1 March 2004. The versions of these documents that will be provided over the coming week will only cover evidence accepted by the Trial Chamber to date. This means, for instance, that the Supreme Defence Council stenographic notes, Republic of Serbia Closed Sessions, Council for Harmonisation Records and documents which the Trial Chamber dealt with in the its 12 February 2004 Decision relating to the evidence of Investigator Bernard O'Donnell13 will not be included in these versions of the documents.
28. As the Trial Chamber is aware alongside the "fill box" documents, the Prosecution has been preparing a chronology based on the evidence adduced in the Trial. The Prosecution has previously provided drafts of this chronology to the Trial Chamber. A version of the chronology covering all evidence adduced by the Prosecution during its case should be available to the Trial Chamber and parties in around 10 days. However, if it would assist the Trial Chamber, especially in relation to the 98 bis process, an almost complete draft of this document can be provided this Friday, 27 February 2004.
29. Refinements of these documents, particularly the Bosnia "fill box" document and chronology, will be made over the coming month, not least to include material such as SDC records yet to be ruled on. Revised versions will be provided at appropriate intervals to assist the Amici, the Accused and the Chamber.
Allegations not made out or not made out in full
30. The Prosecution has not adduced evidence in relation to all allegations in its Indictment during its case. The Prosecution has kept track of which allegations have not been addressed, particularly in the "fill box" documents, and proposes to notify the Chamber very soon of what these allegations are. It may be that the Chamber would consider it appropriate for these allegations to be marked in the Indictment in some manner. The Prosecution is in the Chamber's hands as to the most appropriate method but will not seek to amend the indictments to reflect allegations not addressed in evidence.
Corrigendum to 17 February 2004 Filing
31. Finally the Prosecution wishes to provide the Trial Chamber with a Corrigendum to Annex 1 to its 17 February 2004, "Prosecution's Analysis and Interpretation of Supreme Defence Council Related Documents and other Material Described in the Prosecution Motion Dated 29 January 2004". By reason of a computer glitch there were more typographic errors in this Annex than are acceptable. The Prosecution therefore submits, as Confidential Annex D to this filing, a few pages to be substituted into the previously provided document, marked to indicate where the corrections have been made.
The Prosecution seeks:
1. to close its case:
2. the Admission into evidence of:
a) the interview given by the Accused to Palma TV;
b) the Joint Command Order of 15 April 1999;
c) the selected "The Death of Yugoslavia" and "The Fall of Milosevic" interview transcripts identified in Annex A to this filing;
d) the additional Republic of Serbia Closed Sessions (by way of an Addendum to the 17 February 2004 filing analysing other such documents) and;
3. the Trial Chamber's confirmation of the exhibit numbers for the 92bis packages detailed in Annex C.
_____________
Carla Del Ponte
Prosecutor
Dated this 25h day of February 2004
At The Hague,
The Netherlands
THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA
Case No. IT-02-54-T
IN THE TRIAL CHAMBER
Before:
Judge Richard May, Presiding
Judge Patrick Lipton Robinson
Judge O-Gon Kwon
Registrar:
Mr. Hans Holthuis
Date Filed:
25 February 2004
THE PROSECUTOR
v.
SLOBODAN MILOSEVIC
_____________________________________________________________________
ANNEX A
_____________________________________________________________________
The Office of the Prosecutor:
Mr. Geoffrey Nice
Ms. Hildegard Uertz-Retzlaff
Mr. Dermot Groome
Amicus Curiae:
Mr. Steven Kay
Mr. Branislav Tapuskovic
Mr. Timothy McCormack
The Accused
Mr. Slobodan Milosevic
From "The Death of Yugoslavia" the transcriptions of the entire interviews of :
Borisav Jovic,
Momir Bulatovic,
Vojislav Seselj
Martin Spegelj
Ivan Stambolic
Franjo Tudjman
Vasil Tupurkovski
Alija Izetbegovic
Naser Oric
Radovan Karadzic
Momcilo Krajisnik
Biljana Plavsic
Nikola Koljevic
Milan Martic
From "The Fall of Milosevic" the transcriptions of the entire interviews of:
Momcilo Perisic
Milan Dukanovic
Milan Milutinovic
Nebojsa Pavkovic
Goran Radosavljevic14
In this -- in this jurisdiction, or this Tribunal, we admit hearsay evidence, which of course includes documents. As I said before, they speak for themselves. If there is a real objection to authenticity and there is some ground for that objection apart from just being a general objection, if there is specific ground to say that in a particular case a document is not authentic, then of course that would be considered on being raised by the party making it.
5 - For example, the Trial Chamber admitted
a statement made by the Accused to the Investigating Judge in Belgrade and another
statement by him opposing his continued detention in its Decision on Admissibility
of Morten Torkildsen's Evidence, 28 March 2003, p. 5-6. After responses by the
Accused and the Amici
6 - Trial Transcript, 11 November 2003, T. 28796.
7 - Trial Transcript, 20 November 2003, T.29435-29437.
8 - See Decision on Prosecution Motion for the Admission of
Witness Statement of Investigator Bernard O'Donnell in Lieu of Viva Voce Testimony
Pursuant to Rules 54 and 92bis, 12 February 2004. The Trial Chamber allowed
the Prosecution to produce this transcription (no. 42 of the Prosecution's list
of exhibits to be produced through Bernard O'Donnell) along with the Prosecution's
analysis and interpretation of it. After responses by the Accused and the Amici,
the Trial Chamber will decide whether to admit the documents into evidence.
The Trial Chamber has also denied the admission of the "Fall of Milosevic" interview
with Goran Radosavljevic; see Decision on Prosecution Submission of Addendum
to the Expert Report of Philip Coo, 26 January 2004, p. 3.The admission of this
material was denied on the grounds that the Prosecution had not demonstrated
sufficient grounds for its admission.
9 - Annex 1 and 3 to Confidential Prosecution's Analysis
and Interpretation of Supreme Defence Council Related Documents and other Material
Described in the Prosecution Motion Dated 29 January 2004, 17 February 2004.
10 - Namely Closed Sessions of the Assembly of the Republic
of Serbia for the following dates: 26 September 1991; 27 September 1991; 17
October 1991; 24 October 1991; 06 November 1991; 27 November 1991; 19 December
1991; 06 May 1992
11 - Annex 1 to Confidential Prosecution's Analysis
and Interpretation of Supreme Defence Council Related Documents and other Material
Described in the Prosecution Motion Dated 29 January 2004, 17 February 2004,
para. 14.
12 - Case No, IT-95-14/2-T, "The Prosecutor v. Kordic and
^erkez", "Decision on Prosecutor's Submissions Concerning "Zagred Exhibits"
and Presidential Transcripts", 1 December 2000.
13 - Decision on Prosecution Motion for the Admission of
Witness Statement of Investigator Bernard O'Donnell in Lieu of Viva Voce Testimony
Pursuant to Rules 54 and 92 bis, 12 February 2004.
14 - As noted the Trial Chamber has previously denied the
admission of the "Fall of Milosevic" interview with Goran Radosavljevic on the
grounds that the Prosecution had not demonstrated sufficient grounds for its
admission; see Decision on Prosecution Submission of Addendum to the Expert
Report of Philip Coo, 26 January 2004, p. 3. The Prosecution urges the reconsideration
of this decision in light of the arguments made in the instant Motion.