Case No. IT-02-60-T
IN TRIAL CHAMBER I, SECTION A
Judge Liu Daqun, Presiding
Judge Volodymyr Vassylenko
Judge Carmen Maria Argibay
Mr. Hans Holthuis
18 September 2003
DECISION ON PROSECUTION’S MOTION FOR CLARIFICATION OF ORAL DECISION
REGARDING ADMISSIBILITY OF ACCUSED’S STATEMENT
The Office of the Prosecutor:
Mr. Peter McCloskey
Counsel for the Accused:
Mr. Michael Karnavas and Ms. Suzana Tomanovic for Vidoje Blagojevic
Mr. Miodrag Stojanovic and Ms. Cynthia Sinatra for Dragan Jokic
TRIAL CHAMBER I, SECTION A, (“Trial Chamber”) of the International
Tribunal for the Prosecution of Persons Responsible for Serious Violations of
International Humanitarian Law Committed in the Territory of the Former Yugoslavia
since 1991 (“Tribunal”) is seised of the “Prosecution’s Motion for Clarification
of Oral Decision Regarding Admissibility of Accused’s Statements” (“Motion”)
filed on 30 June 2003, in which the Office of the Prosecutor (“Prosecution”)
seeks clarification of a Trial Chamber oral decision of 22 May 2003.
- Prior to the commencement of the testimony of Jean-René Ruez on 15 May
2003, the Prosecution delivered to the Trial Chamber and the defence for the
Accused Vidoje Blagojevic and Dragan Jokic (“Blagojevic Defence” and “Jokic
Defence”, respectively ) a proposed exhibit list for its first witness, Mr.
Ruez, who had served as an investigator in the Prosecution for almost six
years, working on cases related to events in and around Srebrenica in the
summer and fall of 1995.1 The distribution of
such an exhibit list, with hard-copies of each exhibit attached for the Trial
Chamber, was in accordance with a request made by the Trial Chamber at the
Pre-Trial Conference that each party supply both the Trial Chamber and the
opposing party or parties with such a list one to two days before each witness
begins his or her testimony.
- On 16 May 2003, the Prosecution informed the Trial Chamber and both defence
teams that it would be seeking to introduce three additional exhibits through
that witness. Each of the proposed additional exhibits appeared on the Prosecution’s
Exhibit List and had been previously disclosed to both defence teams.2
The three additional exhibits (“Proposed Exhibits”) are: (1) transcript of
interview conducted by Jean-René Ruez with Dragan Obrenovic, 2 April 2000
(“P25.1”); (2) transcript of interview conducted by Jean-René Ruez with Dragan
Jokic, 14 December 1999 (“P26.1”); and (3) transcript of interview conducted
by Jean-René Ruez with Dragan Jokic, 1 April 2000 (“P26.2”).
- The Prosecution introduced the Proposed Exhibits on 19 May 2003,3
and following the cross-examination of Mr. Ruez by the Blagojevic Defence
and the Jokic Defence, sought to have the Proposed Exhibits admitted into
evidence on 22 May 2003.4 The Jokic Defence objected
to the admission of the two interviews conducted with Dragan Jokic, P26.1
- Having heard the parties and considered the context in which the statements
were taken based on the testimony of Mr. Ruez, the Trial Chamber held that,
pursuant to Rule 89 (D) of the Rules of Evidence and Procedure of the Tribunal
(“Rules”), the interviews with Dragan Jokic and former co-accused Dragan Obrenovic
were inadmissible at the current time and in the circumstances of that time
(“Oral Decision”). In making this finding, the Trial Chamber expressed particular
concern about interfering with one accused’s right to remain silent in order
to permit another accused to cross-examine the maker of the statement. The
Trial Chamber further held that in the event that an accused gave up his right
to remain silent and the defence teams would have an opportunity to cross-examine
the accused about the statement, the Prosecution could reintroduce the statements
through that witness, with the Trial Chamber taking into consideration the
testimony of Mr. Ruez and the context in which the interviews were conducted.6
- On 30 June 2003, the Prosecution filed the Motion, seeking clarification
of the Oral Decision. In response to the Motion, the Jokic Defence filed “Mr.
Jokic’s Motion to Exclude Statements and Response to Prosecution’s Motion
for Clarification of Oral Decision Regarding Admissibility of Statements,”
on 14 July 2003 (“Jokic Motion and Response”), in which it objected to the
admission of P26.1 and P26.27 on the grounds that
the exhibits are inadmissible under Articles 21(2) and 21(4)( g) of the Statute
and Rules 95, 42(A)(iii) and 89 (B) and (D) of the Rules of the Tribunal.
Finding that the Jokic Motion and Response expands on previous arguments put
forward by the Jokic Defence on the date the interviews in question were tendered
by the Prosecution and raises some new arguments, the Trial Chamber permitted
the Prosecution to file a consolidated response and reply.8
The Prosecution filed its response on 30 July 2003.9
The Blagojevic Defence did not file a response to the Motion.
- The Prosecution seeks to have one interview with former co-accused Dragan
Obrenovic and two interviews with Accused Dragan Jokic conducted by members
of the Prosecution admitted into evidence. These interviews were taken with
the two defendants10 prior to the time that an
indictment was confirmed against either individual, and as such, the defendants
were not “accused”.11 The defendants appeared
at the interviews in response to a summons issued by the Prosecution pursuant
to Article 18(2) of the Statute and Rule 39(i) of the Rules.12
The Trial Chamber has been supplied a copy of the Summons issued to Dragan
Jokic, signed 8 November 1999, which states that he is to be “questioned as
a suspect and provide a statement in respect of an investigation into
crimes that occurred in and around Srebrenica in 1995.”13
As the 1999 summons clearly indicated that Mr. Jokic was being summoned as
a suspect, the Trial Chamber rejects the claim by the Jokic Defence that Mr.
Jokic only became aware of his status as a suspect in April 2000.14
In determining whether these interviews are admissible into evidence, the
Trial Chamber will first examine whether the interviews were conducted in
accordance with the procedure detailed in the relevant Rules of the Tribunal.
A. Were the interviews conducted in accordance with the Statute and
Rules of the Tribunal?
- Article 18(3) of the Statute and Rule 42 of the Rules of the Tribunal provide
that suspects enjoy certain rights when being questioned by the Prosecution.15
These rights must be communicated to the suspect by the Prosecution prior
to the commencement of questioning in a language the suspect understands.
The rights include the right to be assisted by counsel of the suspect’s choice,
the right to be assisted by an interpreter and the right to remain silent.
- Rule 43 of the Rules provides the mechanism by which questioning of suspects
is to be conducted.16 Specifically, this Rule
provides that questioning sessions of suspects must be recorded, with breaks
being noted in the record, and the suspect provided with a copy of the recording.
In the event that the suspect becomes an accused, the tape shall be transcribed.
- In this case, the rights of both Dragan Obrenovic and Dragan Jokic guaranteed
under Rule 42 of the Rules were respected. An interpreter was provided to
translate between English and B/C/S for all three interviews.17
At the start of each interview, the Prosecution informed the suspect of his
right to remain silent; additionally, the Prosecution cautioned both men that
anything they said during the interview could be used as evidence.18
There is no evidence to find that either man was forced or coerced into attending
the interview or answering the questions put forward by the Prosecution. The
Trial Chamber finds that both men knowingly and voluntarily waived their right
to remain silent.
- Both Dragan Obrenovic and Dragan Jokic were assisted by counsel whom each
man brought with him to the interview. Indeed, both men were assisted by the
same counsel. The Jokic Defence argues that the fact that both men
were represented by the same counsel qualifies as a conflict of interest that
makes the statements inadmissible. At this stage of the analysis, the Trial
Chamber will examine only whether, based on the transcript of the interviews,
Mr. Obrenovic and Mr. Jokic were informed of their right to be represented
by counsel of their own choosing, in accordance with Rule 42(A)(i), and whether
there was any obvious interference with their enjoyment of this right.19
In response to the Prosecution informing Mr. Jokic of his right to be assisted
by counsel of his own choosing at the first interview in December 1999, Mr.
Jokic responded : “I’m not a lawyer, and I don’t know much about the law.
And I would like Mr. Krstan Simic to represent me as a lawyer.”20
In response to the reading of this right to Mr. Jokic and Mr. Obrenovic in
April 2000, both men indicated that Mr. Simic was the lawyer of their choice.21
Mr. Simic remained present throughout the entirety of the three interviews
in question. The Trial Chamber finds that based on the information given by
the defendants to the Prosecution and their actions at the time of the interviews,
Dragan Obrenovic and Dragan Jokic were represented by counsel of their choice.
- Both Dragan Obrenovic and Dragan Jokic were informed that the statement
would be recorded, in accordance with Rule 43.22
The interviews were recorded and were transcribed in accordance with Rule
43 (vi ), as Mr. Obrenovic and Mr. Jokic became accused.
- The Trial Chamber finds, based on its examination of P25.1 P26.1 and P26.2
and taking into consideration the testimony of Mr. Ruez, that the questioning
of Mr. Obrenovic and Mr. Jokic was in accordance with procedure outlined in
Rules 42 and 43 of the Rules, and that, from a procedural stand-point, the
Proposed Exhibits are admissible.
B. Admissibility of the Proposed Exhibits as Evidence in this Case
- Having found that from a procedural stand-point the statements are admissible,
the Trial Chamber must now consider whether these particular statements should
be admitted, taking into account the Rules of the Tribunal and Guidelines
on the Admission of Evidence, issued by the Trial Chamber,23
as well as relevant provisions of the Statute of the Tribunal.24
- Rule 89 (“General Provisions”) of the Rules provides, in relevant part:
(B) 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.
(C) A Chamber may admit any relevant evidence which
it deems to have probative value.
(D) A Chamber may exclude evidence if its probative
value is substantially outweighed by the need to ensure a fair trial.
- The Guidelines provide, in paragraph 8 of the Annex:
The “best evidence rule” will be applied in the
determination of matters before this Trial Chamber. This means that the
Trial Chamber will rely on the best evidence available in the circumstances
of the case and parties are directed to regulate the production of their
evidence along these lines. What is the best evidence will depend on the
particular circumstances attached to each document and to the complexity
of this case and the investigations that preceded it.
- The Guidelines further provide, in paragraph 9 of the Annex:
Rule 95 of the Rules provides for the exclusion of
improperly obtained evidence. It declares that no evidence shall be
admissible if obtained by methods that cast substantial doubt on its reliability
or if its admission is antithetical to, and would seriously damage the
integrity of, the proceedings. Accordingly, the Trial Chamber makes it
clear at the very outset that statements which are not voluntary, but
rather are obtained by means including oppressive conduct, cannot be admitted
pursuant to Rule 95. If there is prima facie indicia that there
was such oppressive conduct, the burden is on the party seeking to have
the evidence admitted to prove that the statement was voluntary and not
obtained by oppressive conduct.25
1. The Interview with Dragan Obrenovic
- At the time that the Prosecution added P25.1 to its proposed exhibit list
for Mr. Ruez, Dragan Obrenovic was an accused in this case. By the time the
Prosecution sought to tender this exhibit, Mr. Obrenovic had pled guilty to
one count in the Indictment and was subsequently separated from the proceedings.
Dragan Obrenovic is currently on the Prosecution’s witness list in this case.26
As a future witness, rather than an accused, the Trial Chamber finds that
the decision of the admissibility of the statement of Dragan Obrenovic is
best determined at the time that Mr. Obrenovic testifies. In this regard,
the Trial Chamber recalls decisions taken to date in this case on the admissibility
of former witness statements of witnesses appearing before the Trial Chamber.27
Accordingly, the Trial Chamber reserves its decision on the admission of P25.1
until such a time as Mr. Obrenovic testifies in this case and his statement
is tendered by one of the parties to these proceedings.
2. The Interviews with Dragan Jokic
- The Trial Chamber finds that there are matters of concern in relation to
the admissibility of the two interviews with Accused Dragan Jokic. The Trial
Chamber will first examine the context in which the interviews were taken.
Based on its findings in relation to the context in which the statements were
taken, it will determine whether the admission of the statements is in accordance
with the Rules of the Tribunal and the Guidelines issued by this Trial Chamber.
Finally, should the Trial Chamber find that the statements are admissible,
it will examine whether it is proper to take the statement of one accused
in a joint trial as evidence, when the second accused may be deprived of his
right to cross-examine the maker of the statement due to maker of the statement
invoking his right to remain silent, and therefore not allow the second accused
to fully test the evidence that may be used against him.
a. Context within which the Interviews were taken
- As noted above, the two interviews with Dragan Jokic were conducted in
accordance with Rules 42 and 43 of the Tribunal. The Trial Chamber finds,
that as a matter of principle, as reflective of the fact that these Rules
and Rule 63 are included in the Tribunal’s Rules of Procedure and Evidence,
once a suspect or an accused waives his or her right to remain silent, the
result of any questioning by members of the Prosecution (which in this case
includes both members involved in the investigative stage and the post-indictment
stage of proceedings) can be used in proceedings involving that suspect or
accused.28 It is because of the circumstances
in which those statements were taken that the Trial Chamber finds it necessary
to further examine whether the admission of these statements at this time
would be in the interests of justice and would ultimately assist the Trial
Chamber in its determination of the individual criminal responsibility of
the Accused in this case.
i. Counsel for Dragan Jokic
- The Trial Chamber is concerned that Mr. Jokic and other suspects purported
to be from the Zvornik Brigade being questioned by the Prosecution shared
a counsel.29 While the Jokic Defence argues that
it was for the Prosecution to inform Mr. Jokic of what it describes as an
apparent conflict of interest30 and to “raise
the issue of waiver of conflict-free counsel,”31
the Trial Chamber finds that the Prosecution satisfied its obligations under
Rules 42 and 43 by confirming that Mr. Jokic has counsel of his choice present
at the interviews. It was not for the Prosecution to question – or interfere
with – Mr. Jokic’s choice of counsel. It is primarily the responsibility of
counsel and the person who retains counsel to ensure that chosen counsel does
not “labour under a conflict of interest.” It is apparent from P26.2 that
Mr. Jokic was aware at the time of the April 2000 interview that Mr. Simic
represented other members of the Zvornik Brigade and yet he chose to continue
with the interview with Mr. Simic acting as his counsel. While Mr. Simic had
professional responsibilities to raise the matter with his client or even
to decline to represent Mr. Jokic, the Prosecution did not have the responsibility
to enquire into Mr. Jokic’s choice of Mr. Simic, other than to inform him
of his right to have counsel of his choice assist him, which the Prosecution
- Having said this, the Trial Chamber has questions as to whether Mr. Simic
provided adequate legal assistance to Mr. Jokic during the interviews. As
already mentioned, Mr. Simic represented other members of the Zvornik Brigade
and the Jokic Defence alleges that he “disclosed confidential communications
to clients with conflicting interests.”32 The
Jokic Defence cites examples from the interviews of Mr. Simic refusing to
intercede to stop the interview when Mr. Jokic complained about being tired,
of Mr. Simic “attempt?ingC to bolster the Prosecution’s questioning”33
and of Mr. Simic “repeatedly refusing to consult with Mr. Jokic despite Mr.
Jokic’s specific requests for an opportunity to consult with his Counsel.”34
- The Trial Chamber finds that there is support in the interviews for these
complaints. The Trial Chamber also finds, however, that while Mr. Simic may
not have provided what can generally be considered as good legal assistance,
Mr. Jokic still remained free to simply refuse to answer questions put to
him and free to stop the interview. There is no evidence in the record that
the Prosecution forced or coerced Mr. Jokic into answering questions put to
him; the transcripts of the interviews and the testimony of Mr. Ruez make
this clear. Indeed, Mr. Jokic had the option to choose another counsel to
assist him during the interviews. Additionally, Mr. Jokic was aware that Mr.
Simic was representing other members of the Zvornik Brigade at the time of
the interviews and still went ahead with Mr. Simic as his counsel. Without
further explanation for why Mr. Jokic did so, the Trial Chamber cannot
make findings on the issue of a conflict of interest and whether Mr. Jokic
in fact gave his informed consent to Mr. Simic’s representation despite the
potential existence of a conflict of interest. The Trial Chamber reserves
a final determination on the impact of Mr. Jokic’s choice of counsel
upon the full enjoyment of his right to be assisted by counsel until
further evidence on this issue is available to it.
ii. “Interrogation Techniques” of the Prosecution
- The Trial Chamber rejects the submission by the Jokic Defence that the
“interrogation techniques” of the Prosecution were “outside of the legally
acceptable means of questioning adhered to by the creators of the ideals of
the ICTY” resulting in the interviews being “coercive”.35
The Jokic Defence appears to rely on the length of the interviews and the
fact that the suspects grew tired as support for this claim. The Trial Chamber
would not find “expert evidence to show the coerciveness and misleading interview
tactics that deprive the results of the interrogations of reliability,” as
proposed by the Jokic Defence to be useful.36
The Trial Chamber finds no evidence to support the claim that the interviews
were “coercive”.37 The Trial Chamber therefore
does not find Rule 95, relied on by the Jokic Defence in its Motion and Response,
applicable in this case.
iii. Status of Dragan Jokic
- The Trial Chamber recalls that Dragan Jokic appeared at the questioning
sessions with the Prosecution as a suspect; as is the case with any suspect,
Mr. Jokic did not want to leave those sessions having been “elevated” to an
accused. It is reasonable to expect that any person appearing at such a questioning
session may minimise his role in any criminal activities while highlighting
or even exaggerating the role of others in order to deflect attention from
himself. A suspect appearing for questioning is not required to make a solemn
declaration, as is a witness testifying before this Tribunal.38
Without making any finding about the specific interviews with Mr. Jokic or
seeking to make any observation on the character or truthfulness of Mr. Jokic,
the Trial Chamber finds that the veracity of any such interview is inherently
suspect, and would not be sufficient to establish any facts at issue before
it as proven beyond a reasonable doubt.
b. Admissibility of the statements under the Rules of the Tribunal
- As the Jokic Defence often points out, Mr. Jokic was unfamiliar with his
legal rights and that is why he required legal assistance at his interviews
with the Prosecution. Indeed, the purpose of Article 18(3) of the Statute
and Rule 42 is not to have counsel present with a suspect during questioning
but to assist a suspect during questioning. As it is this Trial Chamber’s
duty to ensure that evidence is not admitted for which the probative value
is substantially outweighed by the need to ensure a fair trial, the Trial
Chamber finds that, on balance, the alleged conflict of interest in relation
to Mr. Jokic’s counsel at the interviews, as well as the behaviour of his
counsel, may be considered at this stage as a contributing factor
to this Trial Chamber’s decision not to admit the interviews at this stage,
though it is not a sufficient reason for the Trial Chamber to deprive the
Prosecution and itself of the relevant facts which may be contained in the
interviews with Dragan Jokic.
- In the Guidelines, the Trial Chamber holds that the best evidence rule
will be applied. In relation to the facts that may be extracted from P26.1
and P26.2 which are relevant to the determination of Mr. Jokic’s individual
criminal responsibility, the Trial Chamber expects that the Prosecution has
additional or alternative, more reliable sources for those facts which are
necessary to establish its case. The Trial Chamber prefers to rely on this
evidence, the reliability of which the Trial Chamber may be more assured.
Indeed, in the event that the Trial Chamber were to admit the interviews with
Dragan Jokic at this stage, it would not be able to attribute much weight
to this evidence and would certainly not rely on these interviews as a single
source by which to determine that a given allegation has been proven beyond
a reasonable doubt.
- Therefore, taking into consideration that the Trial Chamber finds that
it is unable to rely on the interviews with Dragan Jokic as an indisputably
reliable source of information upon which to determine issues in this case
and has concerns in relation to Mr. Jokic’s legal representation at the interviews,
the Trial Chamber declines to admit the statements into evidence at this stage.
In the event that circumstances change and additional evidence becomes available
to respond to the Trial Chamber’s concerns, the Prosecution can renew its
request to have P26.1 and P26.2 admitted as evidence.
c. Impact of Admitting Jokic Interviews on co-Accused
- Having found that the statements are inadmissible at the current time,
the Trial Chamber finds it unnecessary to consider the additional issue of
the potential impact of the admission of the interviews with Dragan Jokic
on co-accused Vidoje Blagojevic. Should circumstances change with effect that
the interviews are re- tendered by the Prosecution, the Trial Chamber will
rely on the arguments advanced by the Prosecution and Jokic Defence, while
bearing in mind that the Blagojevic Defence has not offered any submissions
on this issue and that Dragan Obrenovic, the former co-accused most directly
affected by the admission of the Jokic interviews, is now the subject of separate
- Pursuant to Rule 89(D) of the Rules and considering the Guidelines on the
Standards Governing the Admission of Evidence, the Trial Chamber hereby CONFIRMS
the Oral Decision and DENIES the admission of the three exhibits
at the present stage of the proceedings, and, in the event of a change of
circumstances, would permit the Prosecution to re-tender the exhibits at a
later stage of the proceedings for renewed consideration.
Done in English and French, the English version being authoritative.
Judge Liu Daqun
Dated this eighteenth day of September 2003,
At The Hague
[Seal of the Tribunal]
1 - At this stage of the Prosecution’s examination
of Mr. Ruez, a third accused, Dragan Obrenovic, was joined to the case. Before
cross-examination of Mr. Ruez commenced, Mr. Obrenovic entered a plea of guilty
to one count of the Indictment and was separated from these proceedings.
2 - The Prosecution had alerted the defence teams and the Trial
Chamber that it had not yet disclosed the statements of the accused, anticipating
a possible motion by defence counsel to exclude those statements, at a Rule 65
ter (D)(v) conference on 26 November 2002; barring such a motion, the Prosecution
indicated that it would offer those statements as exhibits. No motion by any of
the defence teams to suppress any statements by the accused was filed. The three
exhibits were added to the Prosecution’s Exhibit List pursuant to Rule 65 ter
(E)(iii) of the Rules of Procedure and Evidence of the Tribunal following a motion
by the Prosecution on 29 January 2003, to which neither the Blagojevic Defence
nor the Jokic Defence objected. See, Decision on Prosecution’s Motion for Leave
to Supplement Exhibit List, 20 March 2003.
3 - Trial Proceedings, 19 May 2003, Transcript pages (“T.”)
4 - Trial Proceedings, 22 May 2003, T. 732.
5 - Trial Proceedings, 22 May 2003, T. 732. See earlier questioning
of Mr. Ruez on the Proposed Exhibits, T. 682-704.
6 - Trial Proceedings, 22 May 2003, T. 735-36.
7 - While no specific objection was expressed in relation to
P25.1, as the Trial Chamber’s Oral Decision included P25.1, this Decision will
address P25.1 to the extent necessary to address the Prosecution’s request for
8 - Decision on Prosecution’s Motion for Leave to File Consolidated
Response and Reply Concerning Admissibility of Jokic Statements, 24 July 2003.
9 - Prosecution’s Response to Dragan Jokic’s Motion to Exclude
Statements and Incorporated Reply Regarding Prosecution Motion for Clarification,
30 July 2003 (“Prosecution’s Response”).
10 - The Trial Chamber uses the term “defendants” for simplicity,
as Dragan Obrenovic and Dragan Jokic are currently at different stages of the
proceedings, and it may therefore be misleading to use the term “Accused” for
11 - The initial Indictment against Dragan Jokic was confirmed
on 31 May 2001 and remained sealed under 15 August 2001. Prosecutor v. Dragan
Jokic, Case No. IT-01-44. The initial Indictment against Dragan Obrenovic
was confirmed on 9 April 2001 and remained sealed until 15 April 2001. Prosecutor
v. Dragan Obrenovic, Case No. IT-01-43. Pursuant to Rule 2 of the Rules, an
Accused is: “A person against whom one or more counts in an indictment have been
confirmed in accordance with Rule 47.”
12 - Article 18(2) of the Statute (“Investigations and preparation
of Indictment”) provides: “The Prosecutor shall have the power to question suspects,
victims and witnesses, to collect evidence and to conduct on-site investigations.
In carrying out these taks, the Prosecutor may, as appropriate, seek the assistance
of State authorities concerned.” Rule 39 (“Conduct of Investigations”) provides,
in part: “In the conduct of an investigation, the Prosecutor may: (i) summon and
question suspects, victims and witnesses and record their statements, collect
evidence and conduct on-site investigations; […].”
13 - Emphasis added. According to Rule 2 of the Rules, a “suspect”
is defined as: “A person concerning whom the Prosecutor possesses reliable information
which tends to show that the person may have committed a crime over which the
Tribunal has jurisdiction.” At the start of the second interview with Mr. Jokic
on 1 April 2000, Peter McCloskey from the Prosecution informed Mr. Jokic that
he was “considered as a suspect.” P26.2, p.1.
14 - See, Jokic Motion and Response, para. 5.
15 - Article 18(3) of the Statute provides: “If questioned,
the suspect shall be entitled to be assisted by counsel of his own choice, including
the right to have legal assistance assigned to him without payment by him in any
case if he does not have sufficient means to pay for it, as well as to necessary
translation into and from a language he speaks and understands.” Rule 42 (“Rights
of Suspects during Investigation”), which is included in Part 4 of the Rules (“Investigations
and Rights of Suspects”), provides:
(A) A suspect who is to be questioned by the Prosecutor shall have the following
rights, of which the Prosecutor shall inform the suspect prior to questioning,
in a language the suspect speaks and understands:
(i) the right to be assisted by counsel of the suspect’s choice or to be assigned
legal assistance without payment if the suspect does not have sufficient means
to pay for it;
(ii) the right to have the free assistance of an interpreter if the suspect cannot
understand or speak the language to be used for questioning; and
(iii) the right to remain silent, and to be cautioned that any statement the suspect
makes shall be recorded and may be used in evidence.
(B) Questioning of a suspect shall not proceed without the presence of counsel
unless the suspect has voluntarily waived the right to counsel. In case of waiver,
if the suspect subsequently expresses a desire to have counsel, questioning shall
thereupon cease, and shall only resume when the suspect has obtained or has been
16 - Rule 43 (“Recording Questioning of Suspects”) provides:
Whenever the Prosecutor questions a suspect, the questioning shall be audio-recorded
or video-recorded, in accordance with the following procedure:
(i) the suspect shall be informed in a language the suspect speaks and understands
that the questioning is being audio-recorded or video-recorded;
(ii) in the event of a break in the course of the questioning, the fact and the
time of the break shall be recorded before audio-recording or video-recording
ends and the time of resumption of the questioning shall also be recorded;
(iii) at the conclusion of the questioning the suspect shall be offered the opportunity
to clarify anything the suspect has said, and to add anything the suspect may
wish, and the time of conclusion shall be recorded;
(iv) a copy of the recorded tape will be supplied to the suspect or, if multiple
recording apparatus was used, one of the original recorded tapes;
(v) after a copy has been made, if necessary, of the recorded tape, the original
recorded tape or one of the original tapes shall be sealed in the presence of
the suspect under the signature of the Prosecutor and the suspect; and (vi) the
tape shall be transcribed if the suspect becomes an accused.
17 - See, P25.1/A, p. 2; P26.1/A, p. 1; and P26/.2/A, p. 1
(agreeing to the interpreter provided by the Prosecution).
18 - See, P25.1/A, p. 1; P26.1/A, p. 1. At the April 2000 interview
with Mr. Jokic, Peter McCloskey from the Prosecution repeated that Mr. Jokic had
the right to remain silent, adding that “if, during the questioning if you don’t
want to answer the question, you don’t have to.” Mr. Jokic clarified: “It means
that I do not have to answer the questions?” to which Mr. McCloskey responded
“correct” and asked if “knowing all this” Mr. Jokic was willing to speak to members
of the Prosecution. Mr. Jokic responded “yes”. P26.2/A, pp. 1-2.
19 - See, e.g. Prosecutor v. Zejnil Delalic, Case No.
IT-96-21-T, Decision on the Motion on the Exclusion and Restitution of Evidence
and Other Material Seized from the Accused Zejnil Delalic, 9 October 1996, para.
12: “All that is necessary under Rule 42 is that the suspect be informed of his
rights as set out in the Rules.”
20 - P26.1/A, p.1.
21 - See, P25.1/A, p. 1-2: Mr. Ruez asked Mr. Obrenovic: “I
assume that you already made a choice regarding who your counsel is?” to which
Mr. Obrenovic, who was accompanied by Mr. Simic, replied: “I obviously did.”;
Mr. Ruez introduced the persons present at the start of the second interview with
Mr. Jokic, indicating that Mr. Jokic and “his defence lawyer, Mr. Simic” were
present. Mr. Jokic did not indicate that this information was incorrect. P26.2/A,
22 - See, P25.1/A, p. 2; P26.1/A, p. 1; and P26.2/A, p. 1.
23 - Guidelines on the Standards Governing the Admission of
Evidence, 23 April 2003 (“Guidelines”).
24 - Article 20 (“Commencement and conduct of trial proceedings”)
of the Statute provides, in relevant part: “1. The Trial Chambers shall ensure
that a trial is fair and expeditious and that proceedings are conducted in accordance
with the rules of procedure and evidence, with full respect for the rights of
the accused and due regard for the protection of victims and witnesses.” Article
21 (“Rights of the accused”) provides, in relevant part: 4. In the determination
of any charge against the accused pursuant to the present Statute, the accused
shall be entitled to the following minimum guarantees, in full equality:
(a) to be informed promptly and in detail in a language which he understands of
the nature and cause of the charge against him;
(b) to have adequate time and facilities for the preparation of his defence and
to communicate with counsel of his own choosing;
(e) to examine, or have examined, the witnesses against him and to obtain the
attendance and examination of witnesses on his behalf under the same conditions
as witnesses against him;
(f) to have the free assistance of an interpreter if he cannot understand or speak
the language used in the International Tribunal;
(g) not to be compelled to testify against himself or to confess guilt.
25 - Rule 95 (“Exclusion of Certain Evidence”) 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.”
26 - Decision on Prosecution’s Motion to Amend Witness List,
25 June 2003.
27 - See, e.g., Trial Proceedings, 8 July 2003, T.876-77.
28 - See, e.g., Prosecutor v. Miroslav Kvocka et al.,
Case No. IT-98-30/1-T, Decision on the Admission of the Record of the Interview
of the Accused Kvocka, 16 March 2001. See also, Rule 92 (“Confessions”): A confession
by the accused given during questioning by the Prosecutor shall, provided
the requirements of Rule 63 were strictly complied with, be presumed to have been
free and voluntary unless the contrary is proved. Emphasis added.
29 - The Trial Chamber recalls that the issue of Mr. Simic
representing both Mr. Obrenovic and Mr. Jokic during the investigative stage of
these proceedings was already raised by both defendants at the time that the Prosecution
moved to join the cases of the two accused, and that many of the arguments advanced
by the Jokic Defence in the Jokic Motion and Response had previously been raised
and addressed. See, Dragan Jokic’s Motion for Separate Trial, dated 21 June 2002
and filed 27 June 2002. See, Decision on Jokic’s Motion Requesting a Separate
Trial, 5 July 2002. See also, Case Nos. IT-98/1-PT; IT-01-43-PT; IT-01-44-PT,
Written Reasons following Oral Decision of 15 January 2002 on the Prosecution’s
Motion for Joinder, 16 January 2002, paras 8, 11, 14 and 20-21, and at para. 25:
“The Trial Chamber is not required at this stage of the proceedings to go into
the merits of any argument that Jokic and Obrenovic should not have been represented
at ?ang interview by the same lawyer, and that a conflict of interest exists between
them. The proper determination of these issues is at trial, where the admissibility
of the interviews as evidence will have to be considered by the Trial Chamber.”
30 - Jokic Motion and Response, para.1.
31 - Jokic Motion and Response, paras 9 and 13.
32 - Jokic Motion and Response, paras 1 and 3. The Jokic Defence
further alleges that Mr. Jokic and “others in the VRS” were “instructed that all
officers who had received summonses were to be represented by, attorney, Mr. Krstan
33 - Jokic Motion and Response, para. 8, citing P26.1/A, p.
9, p.17, pp. 25-26, pp. 48-49, p. 56-57, p. 68 and p.70.
34 - Jokic Motion and Response, para. 15, citing P26.2/A, p.6
and p.9, and para. 18, citing P26.2/A, p.71.
35 - Jokic Motion and Response, para.1. See also, paras. 17
and xx 19
36 - See, Jokic Motion and Response, para. 34.
37 - The Trial Chamber attributes no weight to proposed exhibit
D2/3, letter from the Republika Srpska Ministry of Defence on interviews of suspects
and witnesses in the investigation conducted by the International Criminal Tribunal
for former Yugoslavia regarding events in Srebrenica in 1995.
38 - See, Rule 90 of the Rules.
39 - The Trial Chamber recalls a decision it took in a separate
proceeding, Prosecutor v. Momir Nikolic, Case No. IT-02-60/1-T, Decision
Regarding the Preparation of Sentencing Hearing, 28 May 2003 in which it held
that “for the purposes of sentencing, the Trial Chamber shall take into consideration
the factual submissions upon which the plea agreement was based, and other relevant
information, as filed by the Prosecution and Defence in the sentencing briefs
and as provided in the submissions made by the parties at the sentencing hearing”.
Thus, the Jokic interviews cannot be considered in the proceedings against Dragan
Obrenovic unless specifically tendered and admitted in those proceedings.