ICTY: Karadzic: Decision on Admission of Babic’s Evidence

2010-04-13, The Hague, The Netherlands. Milan Babic had a long history with the tribunal. He was an OTP witness in the Slobodan Milosevic, Krajisnik and Martic cases and committed a suicide at the UNDU on March 5, 2006. The OTP sought to admit his oral testimonies from those trials and 309 associated exhibits under Rule 92 quater, that allows the admission of evidence of unavailable persons. The Chamber rendered its decision on the motion holding the following:

Test for the admission of evidence of unavailable persons:

1. the witness is unavailable;
2. the evidence is reliable;
3. the evidence is relevant to the proceedings and of probative value;
4. the probative value of the evidence is not outweighed by the need to ensure a fair trial.

Probative Value

• the evidence must meet general requirements for the admission of evidence under Rule 89;
• to have any probative value, evidence must be prima facie reliable;
• evidence that goes to the acts and conduct of the accused and evidence that goes to critical issues of the OTP’s case is not barred from admission under Rule 92 quater, but its nature constitutes a factor against its admission;
• evidence may be excluded if its probative value is substantially outweighed by the need to ensure a fair trial.

Factors for Evaluating Reliability:

• the circumstances in which the evidence was generated,
• whether it was subject to cross-examination,
• whether there are manifest inconsistencies in the evidence,
• whether the evidence was corroborated,

The evaluation of reliability of the evidence by one Trial Chamber does not bind another Trial Chamber.

The Chamber cannot base a conviction on the uncorroborated evidence of a deceased witness.

Associated Exhibits

• should form an “inseparable and indispensable part” of the testimony – should not merely have been mentioned during the course of that testimony, but rather have been used and explained by the witness;
• should also satisfy the requirements of relevance and probative value contained in Rule 89;
• their probative value must not be substantially outweighed by the need to ensure a fair trial.

Intercepts

• can be admitted under Rule 92 quater;
• must have been raised and/or discussed in court by the witness;
• must satisfy the requirements of Rule 89 (authenticity and reliability);
• must form an inseparable and indispensable part of the witness’ evidence;

Intercepts bear no indicia of authenticity or reliability on their face. As a result their prima facie reliability is established by further evidence, such as a testimony from the intercept operator or the participants in the intercepted conversation. Intercepts, where the witness was not one of the participants in the conversation, are generally inadmissible because the witness’ recognition of voices on the recordings does not constitute authentication.

Application

• repetitive testimonies and parts of the testimonies that have excessive and unnecessary detail should not be admitted;
• the following evidence is relevant: any actions of the Accused, evidence reflecting favourably on the Accused, plans related to Yugoslavia in general, actions related to BiH, evidence of Mladic acting without orders; evidence concerning Babic’s background, credibility, or character;
• the witness’ testimony was prima facie reliable because it was elicited with the safeguards of a judicial proceeding, had minimal contradictions that did not relate to Karadzic, and was corroborated. The fact that Babic was testifying to obtain a lenient treatment by the OTP does not make his testimony unreliable by default. His testimony should be evaluated by the Chamber as any other evidence;
• the Chamber refused to admit any intercepts.

The decision is replete with criticism of numerous errors made by both sides in their submissions.

Decision