What can be salvaged from the Milosevic trial?

26 March 2006 by HEIKELINA VERRIJN STUART

Not all the evidence presented during the four-year trial of Slobodan Milosevic, who died on March 11, will be lost. The rules of evidence at the International Criminal Tribunal for the Former Yugoslavia (ICTY) state that facts established in a trial may not be transferred to another trial until the first trial has been finalized. But even if Milosevic had lived, the trial chamber’s ruling would have been appealed and the appeals decision would not have been made in time for the evidence to be used in many of the other upcoming cases. Now that Milosevic is dead, there are still some options for recycling at least part of the evidence accumulated in his trial.

First of all, the Trial Chambers may take judicial notice of facts substantiated in the Milosevic trial, under restrictive conditions. International judges have interpreted this rule with caution. Only truly adjudicated facts can be admitted as evidence. Moreover, facts from a plea agreement cannot be admit-ted in another case since they have not been subject to the scrutiny of an examination and cross-examination. However, transcripts of testimony given in an ongoing trial can be admitted in another case, only if the testimony does not incriminate the defendant in the second trial. For example, on January 13, 2006, the evidence given by a colonel in the Milosevic trial relating to the number of killed, expelled and missing persons in Croatia was admitted as transcripts in the trial of former Krajina president Milan Martic. However, the testimony of a military expert who referred to instructions Milosevic gave to Martic via the Chief of the Staff of the Yugoslav army was only partially admit-ted because it directly referred to Martic’s role in the alleged criminal enterprise.

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