IN THE APPEALS CHAMBER
Judge Richard May, Presiding
Judge Wang Tieya
Judge David Hunt
Judge Mohamed Bennouna
Judge Patrick Robinson
Mrs. Dorothee de Sampayo Garrido-Nijgh
16 February 1999
DISSENTING OPINION OF JUDGE PATRICK ROBINSON
The Office of the Prosecutor:
Mr. Grant Niemann
Mr. Anura Meddegoda
Counsel for the Accused:
Mr. Goran Mikulicic
Mr. Srdan Joka
1. This Appeal raises serious questions as to the kind of evidence that can be admitted in trial before a Chamber, the manner in which that evidence is presented to a Chamber, that is, how it gets to the Chamber, and the sequence for its presentation.
2. The background to the case is clearly set out in the majority Decision; I would only add that, at the time when the transcript of Admiral Domazets evidence from the Blaskic case was admitted, that case had not yet been concluded.
3. The Majority Decision dismisses the Prosecutors appeal in respect of the First Decision of the Trial Chamber on the basis that the transcript of Admiral Domazets evidence from the Blaskic case was properly admitted as hearsay evidence under Rule 89(C). I disagree with that Decision.
4. Although several grounds of appeal have been argued, the fundamental question to be answered is whether in a trial before a Chamber evidence in the form of a transcript of evidence from other proceedings of the Tribunal is admissible, and whether it should be admitted in the instant case.
5. Rule 89(C) provides:
"A Chamber may admit any relevant evidence which it deems to have probative value."
The Rule gives a discretionary power to a Chamber to admit relevant evidence with probative value. It does not mandate the admission of that kind of evidence. The temptation to read the rule as saying that, once evidence is relevant and has probative value, it should be admitted, must be resisted. A determination as to the circumstances for the proper exercise of the discretionary power to admit relevant evidence with probative value must be made in the light of the general object and purpose of the Statute, and, more importantly, in the context of other provisions of the Statute and Rules which impact on that exercise. The discretion should not be exercised where to do so conflicts with other Rules and the general scheme for the admission and presentation of evidence established by the Rules; in particular, where special regimes are established by the Rules for the admission of certain types of evidence, the discretionary power under Rule 89(C) must yield to the operation of those regimes. This principle applies whether the evidence being admitted is direct or hearsay. In fact, in view of thenature of hearsay evidence, it would apply with even greater force to that kind of evidence.
6. It certainly is not the case that any evidence that is relevant and probative must be admitted; for example, no matter how relevant and probative a particular piece of evidence is, it will be excluded if it has been obtained in the circumstances set out in Rule 951. Also, under Rule 89(D) evidence, whose probative value is substantially outweighed by the need to ensure a fair trial, should be excluded.
7. Rules 85 and 90 impact on the exercise of the discretionary power under Rule 89(C).
8. Rule 85 sets out the sequence for the presentation of evidence. The admission of the transcript of Admiral Domazets evidence in the Blaskic case, coming as it did, after the presentation of all the evidence, breaks the sequence set out in the Rule. But the Rule allows a Trial Chamber to direct a different sequence when the interests of justice so require. A determination as to whether such a direction should be given in the circumstances of this case must await the examination of other relevant provisions of the Rules. For there is a question that is anterior to the issue of sequence: it is the form of the evidence and the manner in which it is presented to the Tribunal, that is, how it gets to the Tribunal.
9. Rule 90 is headed "Testimony of Witnesses" and paragraph (A), which deals with the manner in which a witnesss testimony is brought to the Chamber, provides:
"Witnesses shall, in principle, be heard directly by the Chambers unless a Chamber has ordered that the witness be heard by means of a deposition as provided for in Rule 71 or where, in exceptional circumstances and in the interests of justice, a Chamber has authorized the receipt of testimony via video-conference link."
10. The phrase, "in principle", indicates quite plainly that the intention was to establish direct evidence or the orality of evidence as a general rule for the manner in which the testimony of a witness is to be presented to a Chamber; to that general rule there are two exceptions: first, a deposition pursuant to an order by a Chamber and secondly, a video-conference link authorized by a Chamber.
11. None of the methods set out in Rule 90(A) for getting a witnesss testimony before a Chamber includes the transcript of evidence from another case. But it would be wrong to conclude that for that reason alone the Rules prohibit a Trial Chamber from admitting in a trial the transcript of evidence from a case that has been heard by another Chamber. For there are other Rules that impact directly or indirectly on the manner in which evidence is brought to a Chamber.
12. Rule 94 is devoted to Judicial Notice. Paragraph (A) reflects the rule common to many systems of law: proof of facts of common knowledge is not required. Paragraph (B) provides:
"At the request of a party or proprio motu, 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."
13. This Rule treats as a species of the facts of which judicial notice may be taken, adjudicated facts or documentary evidence from other proceedings before the Tribunal. In doing so it provides a strong ground for the contention that the Rules do not permit the admission of the transcript of evidence from other proceedings of the Tribunal in a trial before a Chamber, at any rate, not without proof of the facts sought to be established by that evidence. For the purpose of the Rule is obviously to confine this peculiar species of judicial notice to facts or documentary evidence that have been adjudicated; in the system established by the Statute that means facts or documentary evidence in respect of which there has been a final determination by a Trial Chamber or in the case of an appeal, by the Appeals Chamber; as the Blaskic case is still pending, Rule 94(B) is inapplicable.
14. But, more importantly, the Rule can be seen as reflecting the intention of the drafters as to how evidence from the other proceedings in the Tribunal is to be treated in a trial before a Chamber. Significantly, there is no other provision in the Rules that deals explicitly with that situation.
15. The Rule may a contrario be interpreted as meaning that in a case before a Chamber proof is required of facts or documentary evidence from other proceedings of the Tribunal which do not have the status of adjudicated facts or documentary evidence. This would not be a surprising conclusion, because, absent the final judicial determination of the facts and documentary evidence from other proceedings of the Tribunal, it would be unsafe and imprudent to admit without proof in a trial before a Chamber those facts and documentary evidence. In the absence of a final judicial adjudication in relation to those facts and documentary evidence either by a Trial Chamber where there is no appeal, or by the Appeals Chamber, in the case of an appeal, there is no good reason for treating them any differently from similar evidence that comes from a judicial body, whether national or international, that is wholly unrelated to the Tribunal. The fact that they come from other proceedings of the Tribunal does not invest them with any special value, over and above evidence from any other court or tribunal, unless they fall in the category of "adjudicated facts or documentary evidence".
16. Rule 94bis is a special provision on the Testimony of Expert Witnesses. It sets out special procedures that are to be followed if the evidence of an expert is to be admitted without calling the expert to testify in person; these procedures involve time limits for:
(i) the disclosure of the experts statement to the opposing party; and
(ii) the opposing party to indicate whether
- it accepts the expert witness statement; or
- whether it wishes to cross-examine the expert witness.
It is only in the event that the opposing party accepts the statement that it may be admitted into evidence without calling the witness to testify in person.
17. Admiral Domazet testified as an expert in the Blaskic case; the reception of his evidence as an expert from that case into the Aleksovski trial by the simple device of a transcript is a clear violation of all the procedural safeguards built into Rule 94bis for the admission of expert evidence without calling the expert to testify in person. Again, these safeguards reflect the primacy that the Rules accord to the orality of evidence.
18. Rule 94bis is lex specialis as to the procedures to be followed for the admission of expert evidence. The provisions of Rule 89(C) granting a Chamber a discretion to admit relevant evidence of probative value must be read subject to the requirements of Rule 94bis in any situation, such as the instant case, where expert evidence is being tendered. In particular, that Rule must, in accordance with the well recognised principle of interpretation, "generalia specialibus non derogant", yield to the modalities of the special regime for the reception of expert evidence set out in Rule 94bis, including the right of the opposing party to cross-examine the expert if it indicates that it does not accept the statement of the expert witness. In these circumstances a decision to admit the transcript of Admiral Domazet in the face of the objections of the Prosecutor who insisted on her right of cross-examination is an improper exercise of the discretionary power under Rule 89(C).
19. Rule 94ter was incorporated in the latest version of the Rules, dated 17 December 1998. It provides that Affidavit Evidence may be called to corroborate the testimony of another witness; the affidavit is signed in accordance with the law of the State where it is signed, and is admissible if the other party does not object within five working days of the witnesss testimony; if there is objection the witness is called for cross-examination.
20. It is not clear whether Rule 94ter sets out the only circumstance in which affidavit evidence may be used in a Chamber, and whether, prior to its adoption affidavit evidence could have been used at all in a Chamber. There would appear to be good grounds for resolving both queries affirmatively on the basis of an interpretation that prior to the adoption of Rule 94ter, the Rules, which were exhaustive as to the manner in which evidence was to be brought before a Chamber, did not provide for the admission of affidavit evidence. By the same token they do not provide for the admission of the transcript of evidence from other proceedings in the Tribunal.
21. There is another provision that could impact on the question of the reception in a trial before a Chamber of the transcript of evidence from other proceedings of the Tribunal. Rule 89(B) provides:
"In cases not otherwise provided for in this Section, a Chamber shall apply rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law."
22. This provision has no application to the instant case since the form and manner for the admission of evidence by a Chamber are provided for in Rule 90(A) and other Rules. Rule 89(B) is confined to a situation where there is a lacuna in the Rules as to the treatment of a particular issue or subject. Where, as in the instant case, the particular subject the manner in which evidence is to be presented to a Chamber - is dealt with, but a potential aspect or modality of it has been omitted, the proper construction is that that aspect or modality is prohibited; a Chamber is not at large to act creatively on the basis of Rule 89(B).
23. The foregoing analysis shows that the Rules are to be read as providing exhaustively for the manner in which evidence is to be presented to a Chamber, and that no provision is made for the admission of the transcript of evidence from other proceedings of the Tribunal.
24. The manner in which hearsay evidence is admitted is no different from the mode for giving any other kind of evidence. Hearsay evidence comes in through a witness; under the Rules that witness may testify in a Chamber itself under Rule 90(A), or may give out of Chamber evidence in a deposition or by video-conference link under Rule 90(A), as an expert under Rule 94bis, or in an affidavit under Rule 94(C). Where judicial notice is taken of evidence under Rule 94, proof is not required. But evidence, whether hearsay or not, must come in through a witness; the notion of a species of evidence that is self-propelling and has the power to get to the Chamber on its own steam is as alien to the Tribunal as it is to the conduct of criminal cases in most legal systems.
25. The discretionary power under Rule 89(C) to admit relevant evidence of probative value, which the majority Decision reminds us, includes the power to admit hearsay evidence, is a power to admit evidence, whether hearsay or direct, which has come to a Chamber for its consideration in any of the forms or by any of the means mentioned in the previous paragraph. None of the two cases cited in paragraph 15 of the Decision is authority for the proposition that a Chamber may admit as hearsay, evidence which has not been brought before the Chamber for its consideration in any of the forms, or by any of the means, set out in the previous paragraph.
26. In Prosecutor v. Tadic2 the question as to the admissibility of hearsay was considered generally and not in relation to any specific piece of evidence. However, in Prosecutor v. Blaskic3, the question was raised both as a matter of principle and in relation to specific evidence, as is indicated by the following excerpt from paragraph 2 of the Decision:
"On its Motion, the Defence raises an objection in principle to the admission of hearsay evidence, with no inquiry as to its reliability, in particular, following the deposition of two witnesses who testified before the Trial Chamber on 26 and 29 September 1997" (emphasis added).
27. Thus the hearsay evidence that was at issue in the preliminary motion in the Blaskic case came in through one of the three means identified previously: oral testimony; it was presented to the Chamber for its consideration and was not snatched from other proceedings of the Tribunal. A remarkable feature of this case is that the transcript of Admiral Domazets evidence was admitted into evidence without being put in evidence for the Chambers consideration through some witness. Thus, although no objection was taken, in principle a serious issue could arise as to its authenticity. If the transcript were to be admitted the proper course would have been for it to be put in evidence through a person, such as an official of the Tribunal who was present during the Admirals testimony.
28. I would hold, on the following grounds, that the Chambers discretionary power under Rule 89(C) to admit relevant evidence (including hearsay evidence) of probative value was wrongly exercised by the Trial Chamber, and that its exercise cannot be justified on the basis that the transcript is hearsay evidence:
(i) the Rules seek to reflect exhaustively the manner in which evidence is to be presented to a Chamber, and no provision is made for the admission by a Chamber of the transcript of evidence from other proceedings of the Tribunal; in this regard it is irrelevant whether the transcript is or is not properly categorised as testimony within the ambit of Rule 90, because the Rules are exhaustive as to the ways in which evidence, whether testimony or not, is to be presented to a Chamber and a transcript of evidence from other proceedings of the Tribunal is not one of them. Rule 89(B) is inapplicable, since there is no lacuna in the Rules as to the treatment of the question of the manner in which evidence is to be brought to a Chamber;
(ii) even if the transcript were to be admitted, it was wrong to admit it without it being put in evidence for the Chambers consideration through some person who could testify as to its source and to other questions relating to its authenticity. The question of authenticity is, of course, entirely distinct from that of weight;
(iii) admission of the transcript runs into conflict with the primacy of the principle of orality for the reception of evidence established by Rule 90(A), and is not covered by any of the exceptional situations in that Rule, or in any other Rule;
(iv) admission of the transcript breaches the specific procedures set out in Rule 94bis for the admission of expert evidence; these procedures, including the right of cross-examination, being lex specialis for expert witnesses, take precedence, in relation to the admission of the evidence of such witnesses, over the discretionary power under Rule 89(C) to admit relevant hearsay evidence;
(v) judicial notice cannot be taken of the transcript, since it does not constitute adjudicated facts under Rule 94(B); hence proof is required of the facts sought to be established by the transcript (i.e., the nature of the conflict), and this cannot be provided by evidence from a case that has not been the subject of final judicial determination;
(vi) admission of the transcript was not accompanied by the usual safeguards for evidence whose reception is by a means that is a deviation from the primacy of the principle of orality of evidence. This ground calls for some elaboration:
(a) there is a good reason for the Rules establishment of the primacy of the principle of orality of evidence in Rule 90(A): the presence of the witness before the Chamber makes him/or her available for cross-examination and puts the Chamber in the best possible position to see his/or her demeanour and assess his/or her credibility. Thus it is significant that whenever the Rules allow for the admission of evidence other than by the witness being heard directly by the Chamber, provision is, (as is indicated below in sub-paragraphs (b), (c) and (d)), with one exception, expressly made for cross-examination;
(b) rule 90(A) provides for a deposition as set out in Rule 71, which, after stipulating that an order for a deposition is only made in exceptional circumstances, and in the interests of justice, identifies detailed procedures to be followed, including the right of the opposing party to attend the taking of the deposition and cross-examine the deponent;
(c) rule 90(A) also provides for the receipt of testimony via video-conference link where, in exceptional circumstances, and in the interests of justice, it has been authorized by a Chamber. Although there is no express reference to the right of cross-examination, it is reasonable to conclude that the procedures for the reception of evidence via a deposition would also apply to the receipt of evidence via video-conference link. One is fortified in arriving at this conclusion because Rule 71(D) provides that "deposition evidence may also be given by means of a video-conference". Presumably, therefore, the procedures for the taking of a deposition, which include the right of cross-examination, would apply, at any rate, to the taking of a deposition via a video-conference link;
(d) we have already seen that Rule 94bis conditions the receipt of the statement of an expert without calling him/or her to testify in person on the right of cross-examination; similarly, the receipt of affidavit evidence under Rule 94ter is linked to a right of cross-examination;
(e) the right to cross-examination is an essential component of most systems of law; arguably, failure to provide for such a right is inconsistent with the International Covenant on Civil and Political Rights. In most systems of law the introduction of a piece of evidence by one party gives the opposing party the right to challenge it by cross-examination or by some other means. The Statute and the Rules of Procedure and Evidence are no different. Rule 85(B) provides that cross-examination is to be allowed in all six phases for the presentation of evidence at trial; this undoubtedly means that the right exists where exceptionally, evidence, as in the instant case, is given out of sequence;
(f) but the Trial Chambers Decision proceeds on the basis that there is such a right; it argues, however, that that right was satisfied by the opportunity which the Prosecutor had to cross-examine Admiral Domazet in the Blaskic case. I find this approach unacceptable;
(g) the opportunity to cross-examine Admiral Domazet in the Blaskic case, even on such a technical legal issue as the nature of the conflict cannot satisfy the Prosecutors right to cross-examine the same witness on the same issue in the Aleksovski trial, unless of course the Prosecutor is given the right to cross-examine in Aleksovski, and waives it expressly on the ground that she stands by her cross-examination in the Blaskic case. The fallacy in the contention that cross-examination in the Blaskic case on the nature of the conflict satisfies the right to cross-examination on the same issue in the Aleksovski case is easily exposed: bear in mind that at the time of the admission of the transcript the Blaskic trial had not been concluded and that the issue of the nature of the conflict was being keenly contested by both sides - suppose the Prosecutor, as would be her right, wished to adopt in Aleksovski, a different line of cross-examination from that used in the Blaskic case. What is to prevent her from doing that? She was not bound in the Aleksovski trial by the line of cross-examination she adopted in the Blaskic case. Indeed, experience gained from the Blaskic case might properly have been reflected in a different line of cross-examination in the Aleksovski trial. However, there is no burden, as appears to be suggested in paragraph 20 of the majority Decision, on the Prosecutor, to "demonstrate any particular line of cross-examination which would have been both relevant and significant to the Aleksovski trial but which would not also have been both relevant and significant to the Blaskic trial". The Prosecutor has, under Rule 85(B), a right to cross-examine on evidence tendered by the Defence. This right cannot properly be conditioned on her demonstrating that a different line of cross-examination in Aleksovski is warranted. She has the right; there is no basis for qualifying it in that way. If she wishes to use it for the purpose of adopting a different approach from that taken in Blaskic, that is her prerogative. But it is unacceptable to condition the right on a demonstration that a different line of cross-examination is warranted in Aleksovski.
(h) there is a danger in the assumption of a congruence between two cases, even if, as in the cases of Blaskic and Aleksovski, they have, as is stated in paragraph 20 of the Majority Decision, "much in common in both their legal and factual aspects". Originally, both Blaskic and Aleksovski were charged on the same indictment. But at the request of Aleksovski an order was made for separate trials; under Rule 82(B) the basis for such an order is either the need to avoid a conflict of interests that might be prejudicial to an accused or to protect the interests of justice. Notwithstanding any similarity in law and facts, the case against Aleksovski is legally distinct from the case against Blaskic, and great care should be taken in assuming that what is applicable to one is equally applicable to the other. Extrapolation from one to the other has to be approached with great caution, especially since the Blaskic case has not been finally determined and the question in issue the nature of the conflict is hotly contested by both parties, one of whom has objected to the extrapolation.
(i) I find, therefore, even assuming that the evidence in question was properly admitted, that the Tribunal fell into error by not allowing the Prosecutor to cross-examine Admiral Domazet.
(a) admission of the transcript cannot be justified on the ground that it is hearsay. Relevant evidence with probative value should not be admitted under Rule 89(C) when its admission flies in the face of the general scheme for the admission and presentation of evidence established by the Rules. If that is true for direct evidence, it is, in view of its nature, a fortiori, even more applicable to hearsay evidence. There is, as is stated in paragraph 15 of the Majority Decision, "a broad discretion under Rule 89(C) to admit relevant hearsay evidence". But as broad as the discretion is, it is not limitless and it certainly is not broader than the discretion to admit relevant direct evidence;
(b) the general scheme for the admission of out of Chamber evidence emphasises the right of cross-examination (vide Rule 90(A) for depositions and testimony via video conference link; Rule 94bis for Expert Witnesses; and Rule 94ter for affidavits); the broad right to admit relevant hearsay evidence must be exercised in a manner that pays due regard to that scheme. That broad right is granted because of a Chambers faculty to assess factors affecting the reliability and weight of hearsay evidence, including the absence of cross-examination. But in the case of an expert witness that broad right must, in accordance with the maxim "generalia specialibus non derogant", give way to the lex specialis of Rule 94bis that is specifically devoted to expert evidence, and requires cross-examination when, as in the instant case, the opposing party does not accept the statement of the expert witness.
29. The Tribunal has a heavy workload, and there can be little doubt but that the trial of cases would be expedited if it were proper for a Chamber to admit in a trial the transcript of evidence from other proceedings of the Tribunal. However, if the Chambers are to have that power the Rules should provide for it and, in doing so, establish safeguards for the reception of such evidence. These safeguards would include notice to the opposing party, and affording that party the right to object or cross-examine.
30. The Decision of the Trial Chamber makes the point that the grant of the defence motion "would be consistent with the interests of justice and the need for fairness and expediency SsicC provided for in Article 20 of the Statute". Article 20(i) twins the requirements of fairness and expeditiousness. The grant of the motion advanced the interest of expeditiousness but not that of fairness. The requirements are cumulative and both interests have to be satisfied. Moreover, that provision also obliges the Trial Chambers to ensure "that proceedings are conducted in accordance with the Rules of Procedure and Evidence". The grant of the motion was not in accordance with the Rules.
31. The Tribunal is a creature of its Statute and the Rules of Procedure and Evidence made thereunder; it owes its powers and jurisdiction entirely to the Statute and the Rules and to any applicable rule of customary international law. It must at all times operate in accordance with the Statute and the Rules; this requirement is as applicable to evidential matters as it undoubtedly is to such apparently weightier matters as subject-matter jurisdiction.
32. I would allow the Prosecutors appeal in respect of the Trial Chambers Decision to admit the transcript of the evidence of Admiral Domazet from the Blaskic case into the Aleksovski trial.
33. I would dismiss the Prosecutors appeal in respect of the Trial Chambers Decision rejecting the Prosecutors motion for the admission of the transcript of the evidence of a witness from the Blaskic case into the Aleksovski trial, for the reason that the evidence sought to be admitted the transcript of evidence from other proceedings of the Tribunal - is of the same ilk as that which was the subject-matter of the defence motion.
34. I would remit the case to the Trial Chamber so that it could give both the Defence and the Prosecutor the right to make an application to the Chamber to call their respective witness to testify in person; alternatively, in view of its acknowledgement of the importance of the issue of the nature of the conflict, and particularly if it considers that the evidence on that issue is insufficient, the Chamber could, acting under Rule 98, order the attendance of either Admiral Domazet or the witness that the Prosecution proposed to call in rebuttal of Admiral Domazet.
Done in English and French, the English text being authoritative.
Judge Patrick L. Robinson
Dated this sixteenth day of February 1999
At The Hague
[Seal of the Tribunal]
1. Rule 95 provides: "No evidence shall be admissible if obtained
by methods which cast substantial doubt on its reliability or if its admission is
antithetical to, and would seriously damage, the integrity of the proceedings."
2. Case No. IT-94-1-T, Decision on the Defence Motion on Hearsay, 5 Aug. 1996.
3. Case No. IT-95-14-T, Decision on Standing Objection of the Defence for the Admission of Hearsay with no Inquiry as to its Reliability, 26 Jan. 1997.