Legal Issues Frame Case as Prosecution Seeks Extension of Time

Management of the unwieldy giant that is the prosecution's case against Slobodan Milosevic for crimes in three wars continues to be as much of an issue as the crimes themselves and Milosevic's responsibility for them. As the prosecution struggles to prove its case within the ever constricting limits of the Trial Chamber and Milosevic's illnesses, the Chamber struggles to balance the rights of a self-represented accused to a fair trial with its duty to see justice done as expeditiously as possible. The accused, for his part, takes little interest in such matters, except to demand cross examination of all witnesses for as long as the court will allow.

In recent weeks, there have been a number of developments which affect the shape and content of the prosecution's case. In two, the Trial Chamber issued decisions once again denying the prosecution the benefit of time saving measures it sought. The prosecution seeks to appeal one of these rulings. The prosecution has also filed an official written request for additional time to present evidence, seeking to place responsibility for how much and what kind of a case it wants to hear squarely on the Trial Chamber.

TRANSCRIPTS FROM OTHER TRIALS
One timesaving method the prosecutor proposed is allowed under ICTY Rule 92bis (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.' The OTP asked the Chamber to admit transcripts of the evidence eight witnesses gave in the Dokmanovic trial, a trial aborted on the death of the accused. The evidence concerned the alleged massacre at Ovcara Farm of 250 Croats and non-Serbs taken from the Vukovar hospital. According to the prosecution, the evidence solely concerned the 'crime-base,' i.e. sought to establish that the massacre occurred. Milosevic has not been accused of committing those crimes, but of having responsibility for those who did. In such cases, Rule 92bis (D) can eliminate the need for witnesses to repeatedly appear before the Tribunal to give the same evidence. It lessens expense and reduces the length of trials.

Even where the Trial Chamber concludes that the transcript evidence does not go to the acts or conduct of the accused and is therefore admissible, it must then determine whether to allow the accused to cross examine the witnesses from the prior trial (Rule 92bis (E)). A trial chamber in another case provided some guidance in holding that 'among the matters for consideration are whether the transcript goes to proof of a critical element of the Prosecution's case against the accused and whether the cross-examination of the witness in the other proceedings dealt adequately with the issues relevant to the defence in the current proceedings.' The holding recognizes that different accuseds have different interests, as well as different defense strategies. One accused may decide to not cross examine on an issue another considers vital.

On the prosecution's motion for the admission of transcript evidence of 8 witnesses from the Dokmanovic trial, the Trial Chamber ruled the transcripts were admissible but the witnesses who testified in the earlier trial must be available for cross examination by the accused because their evidence 'does go to matters which may be of critical importance to his defence and . . . the earlier cross-examination did not adequately cover those matters. . . .' While the Chamber did not spell out what the matters of critical importance might be, it has previously stated orally that Yugoslav People's Army (JNA/VJ) involvement is one of them. That is clearly the case in the Vukovar hospital massacre.

While the Chamber's decision is a correct one (apparently recognized by the prosecution which did not seek to appeal it), time saved is much less than without cross examination. This is particularly so in the Milosevic case, where he insists on cross examining all witnesses, often on irrelevant or side issues. A professional attorney would be much more discriminating -- if not, the court would see to it.

FACTS FROM OTHER CASES
The second timesaving method sought by the prosecution was admission of facts that have been decided in other cases (ICTY Rule 94 (B)). The OTP sought to have 482 paragraphs of facts from four other cases admitted. It also sought to have admitted all facts of which Trial Chamber 1 in the Krajisnik case (still at pretrial stage) took judicial notice under Rule 94 -- over 600 paragraphs. Momcilo Krajisnik is named as a member of the joint criminal enterprise with Milosevic and others which was allegedly responsible for war crimes, crimes against humanity and genocide committed in Bosnia-Herzegovina.

Like Rule 92bis, Rule 94 is a timesaving device. Where matters which don't bear directly on the guilt of the accused have been established with finality in another case before the Tribunal, there is little reason to require that they be proven again. By its terms, Rule 94 (B) doesn't provide much guidance about its application: '[A] Trial Chamber, after hearing the parties, may decide to take judicial notice of adjudicated facts or documentary evidence from other proceedings of the Tribunal relating to matters at issue in the current proceedings.' That leaves the trial chambers with a lot of discretion. In the Milosevic case, the Chamber used its discretion to deny the largest part of the prosecution's request.

The Milosevic Trial Chamber admitted 130 paragraphs only, requiring the prosecution to prove the facts from the remaining 252 paragraphs and the more than 600 paragraphs accepted by the Krajisnik Trial Chamber. The prosecution has sought leave to appeal this decision. Only in exceptional circumstances may a party appeal a matter before the end of a trial (it is called an interlocutory appeal) and to do so it must get permission (certification) from the Trial Chamber. ICTY Rule 73 (B) provides for interlocutory appeal of 'an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings.' There's little question that the prosecution's argument has merit, given the issue of time in this case. The Trial Chamber should certify its appeal.

As for the merits of its objections, there are two sets of facts at issue, with different legal implications. The first concerns the 252 fact paragraphs in the four cases which have reached their final stage of adjudication, i.e. where all appeals have been exhausted and the facts decided in those cases have been accepted at the highest possible level of the Tribunal. The second concerns the 600 plus facts which the Krajisnik Trial Chamber accepted. According to the amici curiae in the Milosevic case, those facts include a large number of facts which have not been finally adjudicated. The Krajisnik Chamber admitted facts agreed to by the parties, as well facts in cases that have not reached their final stage. In accepting these facts, the Krajisnik Chamber ruled that taking judicial notice of a fact merely creates a presumption that the fact is true. It then 'shifts the burden' of contesting that fact to the accused. The Milosevic Chamber refused to accept this novel interpretation of Rule 94: '[I]n the Trial Chamber's view, a fact, if admitted, is a fact that is accepted by the Chamber and cannot give rise to a presumption.' The Prosecution argues that these different interpretations of Rule 94 by two trial chambers support its request for prompt appellate review.

The Trial Chamber apparently refused to admit the 252 paragraphs from the finally adjudicated cases because it considered that they were subject to reasonable dispute between the parties. It also noted that 'the wholesale admission of facts taken from a judgment based upon the assessment by another Trial Chamber of the evidence before it is not an appropriate exercise of a Trial Chamber's discretion under Rule 94 (B) and is in conflict with the accused's right to a fair trial . . . .' In other words, different judges may draw different conclusions from the same evidence. Facts, even finally adjudicated ones, should be closely scrutinized before they are accepted in another case. If the Trial Chamber certifies the issue for appeal, one can hope for more clarity on this issue. In the meantime, the prosecution has lost another round in its efforts to present its case as fully as possible within the time the Court allows.

CASE STATUS AND EXTENSION OF TIME
On April 17, 2003, the Prosecution filed its long-awaited motion for an extension of time to present its case. In its July 25, 2002 ruling, the Chamber established May 16, 2003 as the end date for the prosecution's case on all three indictments. Later, after losing weeks of trial time to Milosevic's absences for illness, the Chamber said it would allow the prosecution an additional 54 days for time lost. In addition, the Chamber limited the number of witnesses and the time allotted to each phase of the case. In its motion, the OTP points out the unintended anomaly this created, i.e. a need for the prosecution to end its case 'after 177 live witnesses or on 16 May 2003 whichever came sooner, such a formula being arguably out of place in a criminal trial.'

In its motion, the OTP reviewed all the steps it's taken to date to comply with the Chamber's time and witness limitations, while still presenting sufficient evidence to prove the indictment. It has eliminated some counts of the indictment and considerably reduced the number of Bosnian crime sites for which it will seek to hold the accused accountable (from 47 sites to 11, only 5 of which will have live evidence). In its motion, the prosecution pointed out that its initiatives to produce evidence in timesaving forms (allowed under ICTY rules) 'have generally been rejected' by the Chamber. The Chamber's decision to allow cross examination of '92bis' witnesses (whose direct evidence is presented in writing) added significant unanticipated time to the prosecution's case -- time used by the accused and, therefore, not available to the prosecution for presenting evidence. [Of late, the Chamber has ruled some 92bis witness statements admissible without cross examination.]

The prosecution also reviewed the overall status of the case -- witnesses called to date, those who remain to be called, the manner of their evidence (oral or written), and what part of the case it seeks to prove. For the most part, the Kosovo and Croatia phases of the case have been completed. Bosnia has barely begun. The prosecution separated future witnesses into three categories: 1) those it considers essential; 2) those whose evidence it believes should be heard to provide a complete understanding of the case and the conduct of the accused; 3) those whose written testimony it seeks under Rule 92bis, largely because of its cumulative nature.

The prosecution advised the Chamber that it will continue to seek revisions in its witness list, since the situation affecting witnesses remains fluid. In the Croatia phase of the case, for example, it was able to eliminate 14 witnesses when a high level insider came forward. The recent assassination of Prime Minister Zoran Djindjic in Serbia is expected to affect the willingness of witnesses to testify as well.

The prosecution's final assessment given all the above was that 'the remaining time difficulties are no longer within the Prosecution's ability to resolve without being obliged to abandon significant portions of the core case against the accused.' As a result, it did not ask the Chamber to set a new end date for the prosecution's case, a device the prosecution considers artificial. The real issue underlying time and witness limits and timesaving procedures is the need for a full presentation of the case against the accused in as expeditious a manner as possible. Based on this, the prosecution asked the Trial Chamber to 'allow the Prosecution case to continue until the Chamber has heard the evidence either of all the witnesses listed in the attached Schedule [categories 1, 2, and 3 above] or of those witnesses so listed whose evidence the Chamber decides should be heard in order to complete the Prosecution case. . . .' Essentially, the prosecutor is telling the Chamber: either let us present the evidence we believe is necessary or you take over and make our decisions for us. The legal language hides a high degree of frustration and a prosecution team at its wits end.

The Chamber has its own frustrations after 14 months of dealing with a self-represented accused who doesn't recognize the legitimacy of the Tribunal and who suffers periodic illnesses necessitating significant adjournments. Nor is Milosevic's position stable. Aside from his health difficulties, it is likely that he's lost a large part of the network that provided shadow assistance to his cross examination of prosecution witnesses. He's certainly lost contact with his main source of support, his wife, who is reportedly on the run somewhere in Russia from Serbian authorities who want to question her about the murder of Ivan Stambolic.

The prosecution has given us a picture of the present status of the case. No one, however, can predict its future.