Case No.: IT-01-47-T
TRIAL CHAMBER II
Judge Jean-Claude Antonetti
Judge Vonimbolana Rasoazanany
Judge Bert Swart
1 June 2005
DECISION ON THE PROSECUTION’S APPLICATION TO RE-OPEN ITS CASE
The Office of the Prosecutor:
Mr Daryl Mundis
Mrs Tecla Henry-Benjamin
Mr Stefan Waespi
Mr Matthias Neuner
Counsel for the Accused:
Mrs Edina Residovic and Mr Stéphane Bourgon
for Enver Hadzihasanovic
Mr. Fahrudin Ibrisimovic and Mr Rodney Dixon for Amir Kubura
A. The Application
1. On 22 April 2005, the Office of the Prosecutor (“Prosecution”) filed a partly confidential application to re-open is case (“the Application”), in which it asks the Trial Chamber (“the Chamber”) to re-open its case for the purpose of tendering 24 new documents which it annexed to the Application.
2. Of the 24 documents which the Prosecution seeks to admit, twelve concern Ramo Durmis1, two relate specifically to Abdulathim Maktouf 2, two concern the “Gerila” unit3, and eight relate to the more general issue of foreigners within the ABiH.4 All 24 originate from the following sources: the archives of the Intelligence and Security Agency of Bosnia and Herzegovina (“the OSA”) 5, the Zenica Cantonal Court6, the Security Services Centre Zenica (“the CSB”)7 and the Ministry of Defence of Bosnia and Herzegovina.8
B. Introduction and Background
3. On 23 July 2004, the Prosecution closed its case against the two accused Enver Hadzihasanovic (“the accused Hadzihasanovic”) and Amir Kubura (“the accused Kubura”).9 The Defence of the accused Hazihasanovic (“the Defence of Mr Hazihasanovic”) presented its case from 18 October 2004 to 11 April 2005 and the Defence of the accused Kubura (“the Defence of Mr Kubura”) from 11 April 2005 to 19 May 2005.
4. At the hearing of 22 March 2005, the Prosecution expressly informed the Chamber that it intended to file an application to re-open its case in order to seek the admission of a certain number of documents.10 The Defence submitted that the application to re-open the case should be a two-step procedure: the first application should seek authorisation to re-open and the second deal with the evaluation of the documents tendered at the time of the second filing requesting their admission into evidence.11 By oral decision on 23 March 200512, the Chamber expressed its preference for a two-step approach in respect of the Prosecution’s filing an application to re-open its case but also stated that it was not the responsibility of the Chamber to impose the form and content of an application a party must use.13
5. Nonetheless, on 22 April 2005, the Prosecution filed a single application for permission to re-open its case in order to tender the 24 documents attached in annexes. The Defence of Mr Kubura filed a response to the Application on 6 May 2005 (“the Response of Mr Kubura”) and the Defence of Mr Hadzihasanovic filed its response on 9 May 2005 (“the Response of Mr Hadzihasanovic »), further to a request for extension, which was granted.
6. At the hearing of 17 May 200514, the Defence produced a letter from the authorities of Bosnia and Herzegovina stating that the 9 documents from the OSA, which the Prosecution requests be admitted into the record, were available to the Prosecution as early as 2002.
7. At the hearing of 19 May 2005, the Prosecution confirmed what the authorities of Bosnia and Herzegovina had indicated, namely that it had received the 9 documents from the OSA in October 2002. The Prosecution explained that it had indeed received the documents but in a form, which for technical reasons, made it impossible to view, analyse and inventory them.15 The Prosecution’s letter and explanations will be discussed in the paragraphs which deal with the documents from the OSA.
8. In this Decision, the Chamber will restate the submissions of the parties which first go to the principle of due diligence and then to the four criteria established in the case-law of the International Tribunal (“the Tribunal”). The parties’ submissions which deal specifically with the following documents will be summarised in the sections of the Decision devoted to them, that is: (1) the documents from the OSA; (2) the documents which relate to Ramo Durmis16, (3) the documents which relate Abduladhim Maktouf, and (4) Annex 7 of the Application.
9. It should be noted that in footnote 42 of the Application, the Prosecution states somewhat cryptically that it reserves its position with respect to seeking to call a case in rebuttal based on subsequent evidentiary developments in this case. In its Response, the Defence of Mr. Hazihasanovic submits that insofar as the Prosecution has acknowledged that the exculpatory evidence submitted by the Defence caused no surprise and raised nothing unexpected, there is no reason to authorise the Prosecution to file evidence in rebuttal.17 The Chamber considers that it is not seised of the question at this stage because the Prosecution did not clearly raise the issue in its Application. Accordingly, the question will not be dealt with in this Decision.
The principle of reasonable diligence
10. In its Application, the Prosecution submits that it is in the interests of justice for it to be authorised to re-open its case for the limited purpose of tendering 24 documents into evidence. It asserts that all the documents are “fresh” evidence insofar as they came into its possession after the close of its case.18 In so doing, it recalls that the standard for admitting such evidence is that the material “by the exercise of reasonable diligence could not have been obtained before the close of its case-in-chief.”19 In respect of the case in point, this means that, in requesting the admission of new material, the Prosecution must have exercised reasonable due diligence in identifying and obtaining the material in question.20 The Prosecution contends that it satisfied this obligation by demonstrating the reasonable due diligence in identifying and obtaining the material in question but that, despite such diligence, could not have presented it before the close of its case on 23 July 2004.
11. In its Response, the Defence of Mr Hadzihasanovic submits that the Application must be dismissed because the Prosecution did not demonstrate reasonable diligence in obtaining and presenting the additional evidence during its case even though it had been available since the beginning of its investigation.21
12. The Defence of Mr Hadzihasanovic also submits that re-opening a case is entirely exceptional as appears from the case-law of the legal systems of several States.22 In its opinion, the admission of additional material by the Prosecution after the close of its case is a clear infringement of the accused’s right “to be informed properly and in detail [ …] of the nature and cause of the charge against him” (Article 21(4)(a) of the Statute of the Tribunal) (“the Statute”); to be tried without undue delay under (Article 21(4)(c) of the Statute) and to have adequate time and facilities for the preparation of his defence under (Article 21(4)(b) of the Statute).23
13. The Defence of Mr Hadzihasanovic also submits that the Prosecution has the burden to demonstrate that further evidence should be admitted and that this is a two-step process. The Prosecution must first show that it was not in a position to obtain and present the proposed evidence during its case (reasonable diligence), and only when this has been established, can the Prosecution demonstrate why the evidence proposed should be admitted in light of the other criteria mentioned below.24
14. The Defence of Mr Hadzihasanovic notes moreover that the Prosecution had access to the archives of the ABiH and the Presidency, the files of the intelligence services and the documents of the courts operating at the time. It adds that the Prosecution itself had acknowledged that the authorities of Bosnia and Herzegovina were cooperative.25
15. The Defence of Mr Hadzihasanovic criticises the Prosecution’s lack of rigour in respect of its requests for assistance, which it should have properly identified and followed up on.26 It considers that the requests which the Prosecution sent to the authorities of Bosnia and Herzegovina were insufficiently detailed27 and notes that there were several “periods when the Prosecution investigators made no attempt to obtain additional evidence” or follow up on their requests.28
16. The Defence of Mr Hadzihasanovic submits that none of these steps with the exception of three requests for assistance in 2002 (over fourteen months after the Indictment had been confirmed)29 was taken before the testimony of the Prosecution’s military expert witness.30 It points out that if the Prosecution had demonstrated due diligence, it would have repeated its request to the authorities of Bosnia and Herzegovina.
17. The Defence of Mr Kubura also submits that the Prosecution did not discharge its burden in the present case. Had the Prosecution demonstrated reasonable diligence, all the documents it seeks to have admitted through the re-opening of its case could have been obtained at a much earlier stage and before it closed its case in July 2004.31 The Defence of Mr Kubura asserts that the authorities of Bosnia and Herzegovina were in possession of the documents since 1999, which means that if the Prosecution had organised proper searches, especially of the intelligence and security services of Bosnia and Herzegovina, and in particular, the local offices in Zenica, the Ministry of Defence and the Zenica Cantonal Court, it would have obtained the proposed documents.32 The Defence of Mr Kubura submits that it is inconceivable that a diligent and reasonable Prosecutor would not have sought to review the relevant archives and documents during the investigation of the case.33
18. In the opinion of the Defence of Mr Kubura, the Prosecution should have presented its complaints to the Bosnian authorities that they were not responding to its requests for assistance during the investigation and the presentation of its case and, if necessary, to the Chamber, which it did not do.34 It could have also requested authorisation to continue its case until these questions had been resolved.35
The discretion of the Chamber in view of the four factors identified from the case-law
19. In its Application, the Prosecution acknowledges that it is cognisant of the fact that it lies in the sole discretion of the Chamber whether to admit fresh evidence once it has been established that the party concerned has exercised the reasonable due diligence. The Prosecution states that this power is exercised in view of the four factors identified from the case-law of the Tribunal: (1) the advanced stage of the trial; (2) the delay likely to be caused by a re-opening of the Prosecution case and the suitability of an adjournment in the overall context of the trials; (3) the effect of bringing evidence against one Accused on the fairness of the trial of another Accused in a multi-defendant case and (4) the probative value of the evidence to be presented36.
The 1st and 2nd criteria: the advanced stage of the trial and the delay caused by a re-opening of the Prosecution case
20. The Prosecution submits that the re-opening of its case at this state of the proceedings does not unduly prejudice the rights of the Defence. While acknowledging that it is not specifically addressing the question of setting a date for re-opening its case, it notes that, since early 2005, it has made clear that it intends to do so and that its Application was not unexpected. The Prosecution argues that, starting from the date the Application was filed, the Defence of Mr Kubura had sufficient time to prepare its defence should the documents be admitted. It also submits that, as of the filing of the Application, the Defence of Mr Hazihasanovic could anticipate that new documents would be produced and/or that it could interview other witnesses.37 The Prosecution reiterates that the originals of all the exhibits proposed in the Application were disclosed previously to the Defence of Mr Kubura and the Defence of Mr Hazihasanovic between 15 November 2004 and 4 March 2005.38
21. The Prosecution submits that the re-opening of its case will not lead to a substantial delay in the current proceedings because the admission of the documents would cause no additional delay and that, even if there were to be a minimal delay, it could not be characterised as a violation of the principle of fairness or international norms. Moreover, the delay, if there were to be one, would be warranted in order to determine the truth.39
22. The Defence of Mr Hazihasanovic argues that the Application is late because the Prosecution closed its case on 11 April 2005. It notes that the later the application for admission of additional evidence is submitted, the more reluctant the Chamber will be to admit it.40
23. The Defence of Mr Hazihasanovic also submits that the admission of the additional documents into evidence would cause a significant delay of at least four months.41
24. The Defence of Mr Kubura states that it is surprised that the Prosecution applied to re-open its case only at this stage and not at the earliest opportunity once the documents were in its hands.42 In its opinion, any prejudice caused could have been tempered if the Prosecution had presented its Application before the Defence case commenced. By way of illustration, it refers to the case-law of the Supreme Court of Canada which emphasised the distinction between two phases of a trial – before the Defence has started to answer the Prosecution case and after – and, in the latter stage, the Prosecution be will be permitted to re-open its case only in the narrowest of circumstances.43 In the same vein, the Defence of Mr Kubura, states that case-law of the European Court of Human Rights has confirmed that the late admission of evidence should be considered a “rare exception”.44
The 3rd criterion: the effect of bringing evidence against one Accused on the fairness of the trial of another Accused in a multi-defendant case
25. The Prosecution argues that because the Accused are charged in this case with crimes allegedly committed inter alia by foreigners operating for the 7th Muslim Mountain Brigade (the”BMM”) and the 3rd Corps, the proposed exhibits cause no particular prejudice to one Accused only but relate to both.45
26. Neither the Defence of Mr Kubura nor the Defence of Mr Hazihasanovic deals with this issue in its filings.
The 4th criterion: the probative value of the proposed exhibits
27. In recalling the principle of probative value, the Prosecution submits in its Application that all the proposed documents are relevant and tend to prove facts at issue in the current proceedings.46
28. In its Response, the Defence of Mr Hazihasanovic submits that, in view of the late stage of the proceedings, the proposed additional evidence must go directly to proof of one of the essential elements of the charges against the Accused Hazihasanovic, namely the identity of the perpetrators of the alleged crimes; the fact that a superior-subordinate relationship existed between the Accused Hazihasanovic and the perpetrators of the crimes; the fact that the Accused Hazihasanovic knew or had reason to know that the perpetrators were about to commit these crimes or had done and that the Accused Hazihasanovic failed to take the necessary and reasonable measures to prevent such crimes or to punish the perpetrators thereof.47 It asserts however that such is not the case and that because this additional evidence cannot be accorded sufficient probative value under Rule (89)(D) of the Rules of Procedure and Evidence (“the Rules”), it should not be admitted.48
29. In addition, the Defence of Mr Hazihasanovic submits that even though the additional evidence tendered by the Prosecution might appear to be relevant prima facie, its probative value is not sufficient to outweigh the need to guarantee a fair trial and that, pursuant to Rule (89)(D), it should not be admitted.49
30. The Defence of Mr Kubura does not deal with this issue in its filings.
A. Applicable law
1. The right to re-open the case deriving from the case-law
31. The Prosecution’s right to re-open its case once both parties have presented all their evidence is not provided for in the Rules. Rule 85(A) provides only that once the parties have presented their evidence, the Prosecution may present additional evidence in rebuttal. However, re-opening the case is an issue about which the Tribunal has established case-law.
32. In the Celebici case, in confirming the Decision of the Trial Chamber, the Appeals Chamber found that in exceptional circumstances the Prosecution might be authorised to re-open its case in order to present fresh evidence not in its possession when it completed its case-in-chief.50 Such a possibility however is subject to strict conditions.
33. The Celebici Trial Chamber established that “such fresh evidence is properly defined not merely as evidence that was not in fact in the possession of the Prosecution at the time of the conclusion of its case, but as evidence which by the exercise of reasonable diligence could not have been obtained by the Prosecution at that time.”51 The Celebici Appeals Chamber stipulated the criteria for the admission of new evidence by considering that:
“the primary consideration in determining an application for reopening a case to allow for the admission of fresh evidence is the question of whether, with reasonable diligence, the evidence could have been identified and presented in the case in chief of the party making the application. If it is shown that the evidence could not have been found with the exercise of reasonable diligence before the close of the case, the Trial Chamber should exercise its discretion as to whether to admit the evidence by reference to the probative value of the evidence and the fairness to the accused of admitting it late in the proceedings.”52
34. Accordingly, the review of the evidence which the Prosecution is seeking to admit is conducted in two steps.
2. Review of re-opening the case: two-step procedure
a. Principle of a two-step procedure
35. The Chamber notes that the case-law of the Tribunal has established that only when the party submitting the application has demonstrated that, despite its diligence, it was unable to identify and produce evidence during its case-in-chief can a trial chamber decide whether to exercise its discretion to authorise the admission of such evidence. The trial chamber can then do so by weighing the probative value of that evidence against any prejudice its admission might cause to an accused. This is why it is not for the Chamber to determine whether the applicant has exercised due diligence to obtain the evidence in the light of its relevance and probative value. This position taken in the Tribunal’s case-law seems different from that of most national legal systems in that it makes a strict and unconditional division of the request for authorisation to re-open a case into two phases.
b. The proof of diligence
36. Before the Prosecution’s application for authorisation to re-open its case can be examined, the Blagojevic and Krstic Trial Chambers ruled that it must first be determined whether the Prosecution has satisfactorily demonstrated that, despite reasonable diligence, it was unable to obtain the proposed evidence before the close of its case-in-chief.53 The Prosecution has the burden to prove that this condition has been met.54
37. As an example, the Appeals Chamber found that, even making allowances for the complexities of such investigations, by allowing a period of over five months to elapse between becoming aware of the location of the documents and taking any steps to obtain them, in light of the advanced state of the Defence case, the Prosecution did not demonstrate the exercise of reasonable diligence.55 Accordingly, it is not enough to claim that there were inherent problems in obtaining the evidence.56
It is now appropriate to consider the main elements of what defines the notion of “due diligence” as developed in the case-law.
c. The elements which underpin the notion of “due diligence”
38. Regarding the interpretation of the notion of “due diligence”, the Chamber would underscore the following four aspects.
39. The Chamber considers that a first factor which determines a party’s due diligence is its having identified questions of fact and law underlying the case. By distinguishing the principal from the secondary elements, the party can conduct the appropriate investigations needed to gather the required evidence.
40. Second, on the basis of an in-depth analysis of the Indictment, a diligent party will identify all the potential sources of evidence. Accordingly, at the very start of its investigation, that party will attempt to determine the locations, private and public persons, national or international authorities, or other sources which can supply the information to support its case. Based on an in-depth analysis of the evidence it has collected, the party must then decide whether it is appropriate to further investigate some of the elements. A diligent party must of course proceed methodically and systematically, taking into account prior investigations and the results already obtained in order to determine whether it is appropriate to begin any investigation of new leads. Such an approach should make it possible to avoid interruption of the investigation and analysis of the evidence supporting its case, even if those who initiated the investigation are no longer present.
41. Third, if the party has concrete information about the existence of specific evidence available during the trial, it will decide whether it is necessary or appropriate to obtain it before the close of its case-in-chief. If it does not have that information, it will nonetheless decide whether there is a reason to attempt to obtain the additional evidence even if its existence has not been established beforehand.
42. Fourth, a diligent will party will make every effort to obtain all the evidence it believes it needs before the commencement of its case. If, during the presentation of its case, it finds that unexpected developments have arisen which suggest the necessity and appropriateness of obtaining new evidence which can support its case, it must further investigate without delay in order to produce the newly obtained evidence before the close of the case.57 If it has reason to believe that it will be unable to conclude its investigation before the close of its case, it must inform the Chamber as promptly as possible so that the Chamber may rule on any procedural consequence this may have.58
d. The Chamber’s discretion: the probative value of the proposed evidence weighed against the need to ensure a fair trial to the accused
43. To the extent that diligence has been established, the Chamber must use its discretionary power whether to authorise the admission of the proposed evidence by weighing its probative value against the need to ensure that the accused has a fair trial. This discretion derives from Rule 89(C) and (D) which permits the Chamber “to receive any relevant evidence which it deems to have probative value” and “to exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial.59
44. In accordance with Article 20 of the Statute, the Chamber must ensure a fair and expeditious trial with full respect for the rights of the accused. Article 21 guarantees that the accused shall be tried without delay and have adequate time and facilities for the preparation of his defence.
45. The Celebici Trial Chamber identified several factors which must be considered in order to rule on whether it would be fair to admit new evidence. These factors, which the Celebici Appeals Chamber and the Blagojevic Trial Chamber reiterated, are:
- the “advanced stage of the trial”; i.e., the later in the trial that the application is made, the less likely the evidence will be admitted;
- the delay likely to be caused by a re-opening of the Prosecution case, and the suitability of an adjournment in the overall context of the trial;
- the probative value of the proposed evidence much be such that it outweighs any prejudice caused to the accused.60
46. Moreover, insofar as there are several accused, it is also appropriate to consider :
- the effect that bringing new evidence against one accused might have on the fairness of the trial of another accused in a multi-defendant case.61
47. A balance must therefore be struck between the admission of relevant new evidence and the justice of the case and the fair and expeditious conduct of the proceedings.62 It is only in exceptional circumstances where the justice of the case so demands that the Prosecution may be allowed to adduce new evidence after it has closed its case-in-chief.63
B. Analysis of the Application
1. General observations
48. In order to examine the application to re-open the case, the Chamber must first determine whether the Prosecution has demonstrated that, despite due diligence, it would not have been able to identify and produce the evidence during its case -in-chief.64
49. In its discussion on the applicable law, the Chamber made several general observations about the notion of “due diligence”.65 The significance of that diligence to the case at hand must now be evaluated.
50. The twenty-four documents which the Prosecution seeks to admits all relate to foreign Muslim combatants and their local sympathisers, commonly known as the “Mujahedin”.
51. The Third Amended Indictment (“the Indictment”) raises the question of whether the individuals alleged to have committed the acts described were or were not under the command and control of the Accused and is one of the most important questions of fact and law in this case. This is particularly true of the acts allegedly committed by the Mujahedin. The Indictment states that these combatants executed four people in Miletici on 24 April 1993, massacred about thirty people and seriously wounded four others in Maline/Bikosi on 8 June 1993, and that they severely beat detainees and beheaded one of them at the Orasac camp in October 1993. The same allegations had already been made in the first Indictment of 5 July 2001. As these are serious offences, a diligent prosecution must conduct a systematic, assiduous investigation of any evidence which might indicate whether the Mujahedin were in fact under the command and control of the Accused.
52. Second, when preparing its case, a diligent prosecution should ascertain all the sources of information about foreign combatants and their local sympathisers. If the Prosecution claims that these foreigners are members of the ABiH, the army archives would be among the most appropriate sources of specific information about them. Other sources might also be considered. In all States, several governmental institutions keep track of the presence and conduct of foreigners on their national territory. At the national level, these ordinarily include the Ministry of Justice or the Interior and the national secret services and, at the local level, municipalities, the police and the local civil courts. It would appear logical to assume that when foreigners arrive in a territory for the purpose of lending military assistance, several national institutions would closely monitor their movements and activities.
53. Accordingly, in such a case, a diligent prosecution should attempt to identify those institutions and search their archives. It is obvious that by deciding not to search the archives which might provide that information, the prosecution limits its chances of obtaining key elements to support its case.
2. Exhibits from the OSA archives
a. Presentation of the specific case of the OSA exhibits
54. In its Application, the Prosecution requests admission of nine documents from the archives of the Intelligence and Security Agency of the Federation of Bosnia and Herzegovina, the OSA.66 It explains that the nine documents were obtained further to a request for assistance as part of the investigation concerning Rasim Delic.67 They were provided to the Head of the Prosecution’s field office in Sarajevo on 26 October 2004 (that is, three months and several days after the close of the Prosecution’s case on 23 July 2004) on a CD-ROM and contained about 6,000 pages of material (approximately 10% of which were in Arabic).68 Most of the nine documents provide general information about the nationality and presence in Bosnia of several individuals and the fact that they were members of the Mujahedin unit or the 3rd Corps.
55. To determine whether the Prosecution demonstrated due diligence in obtaining these documents and whether to grant the request to re-open its case, the Chamber must analyse the main attempts the Prosecution made in September 1999 when its investigation commenced.69
56. On 24 January 2000, the Prosecution submitted a first request for assistance to the authorities of the Federation of Bosnia and Herzegovina.70 The Prosecution did not receive a response to its request although the investigative team was permitted to search the main archive of the Army of Bosnia and Herzegovina (“the ABiH”) in Sarajevo from 11 to 19 October 2000.71 On that occasion, the Prosecution team consulted the ABiH presidential archives in Sarajevo and the Zenica archives of the headquarters of the 7th Mechanised Brigade formerly known as the 7th Muslim Mountain Brigade.72
57. On 14 January 2002, as part of an investigation relating to the Halilovic case, the Prosecution asked the government of the Federation of Bosnia and Herzegovina to send it certified copies of all the State Security Service (“SDB”) files relevant to the person under investigation. On 6 March 2002, the Prosecution received about six hundred documents from that government,73 three of which the Chamber admitted in this case.74 One of the documents was a transcription of a telephone conversation and might be related to the Mujahedin.75 It should be noted that the State Security Service was one of the components of the CBS, the State Security Services Centre, a precursor of the OSA.76
58. In April 2002, Prosecution investigators again searched the ABiH archive in Sarajevo.77
59. On 5 September 2002, the Prosecution requested assistance from the director of the State Security Service of the Federation (“FOSS”),78 the immediate predecessor of the OSA.79 The request stated that foreign volunteers known as Mujahedin were allegedly involved in serious violations of international humanitarian law committed in the former Yugoslavia during the period 1992-1995. It also stated that it was investigating those Mujahedin and asked the FOSS to provide it with all materials in its possession relevant to them.
60. Further to the request, on 3 October 2002, the government of Bosnia and Herzegovina submitted a large number of documents to the representatives of the Office of the Prosecutor in Sarajevo. The delivery of the material is mentioned in a letter from the government dated that same day which was sent with the documents. The letter refers to 796 documents and a CD-ROM containing 114 files. The details of the documents are attached in an annex to the letter. Page 36 of the English translation of the annex to the letter on the CD again refers to a CD containing 114 files. The text of the annex to the letter adds that the documents relate to Operation Vranduk. An acknowledgement of receipt dated 3 October 2002 states that Don King, an investigator at the Sarajevo field office, received the documents and the CD from the FOSS referred to in the letter of 3 October.80
61. The Application is based on the Prosecution’s implicit assumption that the nine documents it received from the OSA on 26 October 2004 were not included in the material it had received from the FOSS two years earlier. This assumption subsequently proved incorrect however. At the hearing of 17 May 2005, the Defence of Mr Hadzihasanovic referred to a letter from the government of Bosnia and Herzegovina dated 9 May 2005, indicating that the Prosecution had already received the nine documents in 2002.81 The Prosecution confirmed that this was so and added that it could provide further details at the hearing of 19 May 2005.82
62. At the hearing of 19 May 2005, the Prosecution explained the chain of events following receipt of the materials from the FOSS by its representatives in Sarajevo on 3 October 2002. It presented several explanations to justify the fact that although it had indeed received the materials in October 2002, it was unable to present them to the Chamber before the close of its case. It stated that its explanations did not relate to the fifteen other exhibits referred to in its Application.83
63. The Prosecution confirmed that it had acknowledged receipt of the 796 documents and the CD-ROM at the Tribunal on 30 October 2002. On 19 November 2002, they were given to the Tribunal’s Evidence Unit by Peter Hackshaw, the leader of Team 9 at the Office of Investigations. Team 9 was responsible for all the investigations and cases concerning Muslims. An entry in the Unit’s log-book dated 19 November 2002 confirms that Mr Hackshaw submitted the 796 documents and the CD together.
64. The Evidence Unit listed and numbered the 796 documents using the ERN system but could not analyse and list the information on the CD the same way. The CD was given a single ERN number. Since each document on the CD was not given an ERN number, the Prosecution submits that no electronic search was possible and that the CD held 114 electronic files, each containing 6,000 documents.
65. The Prosecution explained that the Office of the Prosecution has software which makes electronic numbering of the documents it receives possible but that the software can be used only for WORD format documents, whereas the documents on the CD were in TIFF. The Prosecution submits that these technical problems might explain why the CD was not analysed in the usual way. However, Mr Hackshaw may simply have believed that the CD was the electronic version of the 796 documents.
66. The Prosecution also stated that the CD was marked “Operation Vranduk”, which is why the Evidence Unit’s registration form indicated that the CD was part of the Tusk 2 investigation into Rasim Delic and Alija Izetbegovic. It seems that the investigators and attorneys working on this case did not learn about Operation Vranduk until the spring of 2004, which explains why they did not understand the significance of the information which might be on the CD.
67. The Prosecution does not rule out the possibility that the significance of the documents on the CD may have escaped the attention of Team 9 because of its heavy workload at the time.
b. Submissions of the Parties
68. The Prosecution submits that it acted with due diligence and does not wish to withdraw the part of the Application dealing with the nine OSA documents. The Defence of Mr Hazihasanovic and the Defence of Mr Kubura contend that the production of the letter from the Bosnian authorities is proof that the Prosecution did not demonstrate reasonable due diligence.84
69. In view of what the Prosecution disclosed at the hearing of 19 May 2005 further to the letter produced by the Defence of Mr Hazihasanovic, there is no need to repeat here the Defence submissions concerning the diligence the Prosecution exercised in order to obtain the OSA documents.
c. Findings of the Chamber
70. The Chamber would first note that the Prosecution was in possession of the nine documents as of late 2002. It would also note that the response of the government of Bosnia and Herzegovina dated 3 October 2002 and the annex to the letter enclosed with the response make a clear and unambiguous distinction between the 796 documents and a CD containing 114 files. At first view, there is no reason to assume that the CD contained the same documents as those submitted in paper form. Furthermore, only knowledge of what the CD contained would have made it possible to deduce that the CD was not the electronic version of the 796 documents.
71. The Prosecution puts forth several possible explanations of why Team 9 and the investigators working on the Tusk 2 investigation were unable to access the documents on the CD but cannot say which explanation is the most likely. In any case, it is not particularly important to determine who is responsible for the “disappearance” of the 114 files containing the nine documents. What is important however is that a member of the Office of the Prosecution in the Hague committed an error.
72. It must also be noted that the Prosecution did not mention any instructions given in 2002 about what to do if documents submitted by external services cannot be consulted because of their electronic format. Such rules or instructions might have made it possible to prevent documents from becoming unlocatable.
73. The Chamber also considers that in respect of documents originating from a State’s secret services, those in charge of the investigation at the time the information is produced must be even more diligent about how the documents, which may be particularly significant for the on-going investigation, are processed and recorded. This means that the procedures for handling information after it arrives at the Office of the Prosecution must be followed and monitored. Apparently, such was not the case here.
74. Due diligence concerns not only the procedures used for obtaining information in support of a party’s case but also how that information is handled. The Chamber notes that, in respect of this second factor, the Prosecution committed errors which it should and could have reasonably avoided. The Chamber is therefore of the opinion that the Prosecution did not demonstrate due diligence in producing the exhibits proposed in Annexes 1, 4, 5, 6, 8, 9, 10, 11, and 12.
3. The exhibits concerning Ramo Durmis
a. Annexes 13 to 23 of the Application
i. Submissions of the Parties
75. In its Application, the Prosecution seeks the admission of eleven documents in Annexes 13 to 23.
76. The Prosecution submits that it could not have obtained them before the close of its case because it did not realise the precise importance of Ramo Durmis until after its case-in-chief had been completed.85
77. With regard to Ramo Durmis, the Defence of Mr Hadzihasanovic notes that Ramo Abu Dzihad was a target of the Prosecution’s investigation and that the Prosecution should have realised that the possibility of this person’s being one and the same person existed since the testimony of ZP on 18 June 2004 at the latest.86 In addition, the Defence of Mr Hadzihasanovic contends that a diligent prosecutor would have obtained all the documents relating to Ramo Durmis by applying to the courts which were operating in the 3rd Corps’ area of responsibility at the earliest stages of its investigation.87
78. The Defence of Mr Kubura submits that the Zenica Cantonal Court was an obvious place for the Prosecution to search for documents relating to Ramo Durmis in respect of records of the offences alleged in the Indictment and that a diligent prosecutor would have found them before the start of his case. It refers to the brevity of the Prosecution’s investigation in Zenica in June 2004 and points out that the name of Ramo Durmis was mentioned during the testimony of a Prosecution witness about the kidnapping of Zivko Totic on 29 March 2004.88 It notes that the Prosecution should have conducted further inquiries before the close of it case.89
ii. Findings of the Chamber
79. The Prosecution obtained the documents in question here between 13 October 2004 and 22 February 2005. The documents were transmitted further to several requests for assistance to the authorities of Bosnia and Herzegovina after the close of its case on 23 July 2004. Accordingly, it received eight documents (Annexes 15, 16, 17, 18, 20, 21, 22 and 23 of the Application) on 13 October 2004 in response to its request for assistance on 9 September 2004.90 These come from the Zenica Cantonal Court.91 The three other documents (Annexes 13, 14 and 19 of the Application) were received on 22 February 2005 in response to a request for assistance dated 26 October 2004 and further requests on 21 December 2004 and 19 January 2005.92 The first of these documents (Annex 13 of the Application) was received from the Ministry of Defence of Bosnia and Herzegovina, the second (Annex 14 of the Application ) from the CSB in Zenica, and the third (Annex 19 of the Application) from the Zenica Cantonal Court. The requests for assistance sought additional information about a person responding to the name of Ramo Durmis and several other individuals.93 The documents received do in fact relate to Durmis.
80. The Chamber first observes that the name Ramo Durmis appears in several exhibits the Prosecution produced during its case-in-chief.94 The exhibits indicate that Durmis was a member of the 3rd Corps and Commander of the 7th Brigade 1st Battalion 1st Company in late 1992 but that in August 1993 he was no longer a member of the unit.95 In several documents, the name Durmis appears in relation to the Mujahedin. According to those documents, he was a member of the Travnik Muslim forces and fought with the Mujahedin in December 1992.96 Ever since the start of the case, the Prosecution submitted that the Mujahedin were part of the 3rd Corps and the 7th BMM. Consequently, the documents in the possession of the Prosecution before the start of the case contained indications that Durmis was potentially important and that, according to the Prosecution’s own premise97, might play an important role in shedding light on a link between the Mujahedin and the ABiH.
81. During the Prosecution’s case-in-chief, two of its witnesses referred to Durmis. Witness ZN in particular, a member of the Zenica civilian police in 1993, suggested in his testimony on 29 March 2004 that there was a direct link between Durmis and the Mujahedin. Among other things, he asserted that Durmis was involved in the kidnapping of Živko Totic, allegedly instigated by the Mujahedin.98 The kidnapping was one of a series of incidents which the Prosecution considered extremely important for its case even before the start of the trial and produced twenty-four exhibits on the subject.99
82. It is therefore reasonable to conclude that, on the basis of the documents in its possession before the start of the trial, a diligent prosecution would be in a position to understand Durmis’ potential importance. His importance to this case was underscored during witness ZN’s testimony, further to which a diligent prosecution might consider whether it was appropriate to search the relevant archives again before the end of its case. Such an investigation would have allowed the Prosecution to obtain the eleven documents in a timely manner. Because it failed to take that initiative by not conducting a timely analysis of the facts available to it before the end of its case, the Prosecution did not demonstrate due diligence.
b. Annex 24 of the Application
i. Submissions of the Parties
83. In its Application, the Prosecution seeks the admission of a document from the archives of the police station (“SJB”) which was part of the Zenica CSB.
84. Referring to the documents relevant to the kidnapping of Živko Totic, the Defence of Mr Kubura submits that a diligent prosecutor would not have sought to only make requests to the authorities after the close of its case and that the record in Annex 24 of the Application should have been one of the very first documents requested or searched by the Prosecution’s investigators.100
85. The Defence of Mr Hazihasanovic makes no specific submission about Annex 24.
ii. Findings of the Chamber
86. The document is dated 16 April 1993 (Annex 24 of the Application) and concerns the kidnapping of Commander Živko Totic and the murder of five other persons in Zenica on 15 April 1993 and the possible links with the ABiH. The Prosecution requested the government of Bosnia and Herzegovina to allow it access to the Centre’s archives in a letter dated 22 July 2004, that is, one day before the end of its case on 23 July 2004.101 The letter states that the Prosecution wishes to inspect the archives covering the period 1993-1995. The text of the Application and its Annexes indicates that the request for assistance submitted to the authorities of Bosnia and Herzegovina was part of an investigation in the Delic case. Like Annex 7 of the Application, Annex 24 was discovered by a Prosecution investigator in the CSB Zenica archives on 23 October 2004.102
87. The exhibits which the Prosecution presented during its case suggest that the kidnapping of Commander Totic was one of several kidnappings of Mujahedin by the Croat forces and kidnappings of Croat soldiers and civilians by the Mujahedin in the early months of 1993.103 Two of the exhibits refer to the Zenica CSB. Document P 819 indicates that the investigation of an incident on 30 March 1993 during which a foreigner was allegedly killed was picked up by the CSB. The document is part of the “Sarajevo I” Collection and was discovered by the Prosecution in October 2000.104 Furthermore, document P 155, a report by a member of the ECMM in Bosnia on an exchange of Croat and Mujahedin prisoners in which Totic was involved and which is on the Prosecution’s exhibit list of 10 October 2003, states that the Zenica civilian police had been informed of the incident.105 At the hearing of 29 March 2004, witness ZN, a member of the Zenica civilian police in 1993, stated that Ramo Durmis was implicated in Totic’s kidnapping and that the civilian police had conducted an investigation into the matter.106
88. The Chamber observes that all the documents which the Prosecution had in its possession before the start of the trial show that a search of the Zenica CSB archives could have shed light on the issue of the role the Mujahedin played in the series of kidnappings in central Bosnia in early 1993 and any links they may have had with the ABiH. The support this might have given to the Prosecution’s case became crystal clear after the testimony of witness ZN. A search of the CSB archives could have been made after that testimony and allowed the Prosecution to obtain Annex 24 of the Application before the end of its case.
89. The Chamber also observes that, during its case, the Prosecution did not inform it of its intention to conduct a search of the CSB archives related to the Delic case even though its request to the government of Bosnia and Herzegovina was made before the end of its case. Had the information been made available to the Chamber, it would have been able to render a decision on the possible procedural consequences this might have before the start of the Defence case. Clearly, a search of the relevant archives as part of an investigation in the Delic case covering the period 1993- 1995 was likely to lead to the production of documents with direct significance for the Prosecution’s case here. It should be noted that the Indictment of 15 February 2005 in the Delic case contains two counts which deal with the same events as those in two of the counts in the Indictment in this case.107
90. For these reasons, the Chamber finds that the Prosecution did not demonstrate due diligence in obtaining and producing Annex 24 of the Application.
4. The exhibits relative to Abduladhim Maktouf: Annexes 2 and 3 of the Application
a. Submissions of the Parties
91. The Prosecution seeks to admit two documents relative to Abduladhim Maktouf which state that he was a member of the ABiH between 8 April 1992 and 17 February 1996.108
92. The Prosecution submits that the full relevance of Abduladhim Maktouf to these proceedings became clear only after the close of its case when he was indicted by the State Court of Bosnia and Herzegovina.109
93. The Defence of Mr Hadzihasanovic contends that the Prosecution is not credible when it states that the relevance and significance of Maktouf became apparent to it only after the close of its case. The Defence of Mr Hadzihasanovic notes that the Prosecution had specific information about Maktouf’s identity because one of its witnesses, Ivo Fisic, referred to this on several occasions: in the report on him sent to the Head of Investigations at the Office of the Prosecutor on 27 March 1998, in a statement to the Prosecution investigators on 20 October 1999 and during his testimony to the Chamber on 30 January 2004.110
94. As regards the documents relevant to the “Maktouf” case, the Defence of Mr Kubura submits that it is evident from the pre-defence conference on 6 October 2004 that the Prosecution knew at the very latest in September 2004 about the “Maktouf” case and, consequently, before the Defence case commenced.111 It further submits that the Prosecution had ample opportunity to further investigate the case and to seek to admit any relevant materials before the Defence started its case.112
95. The Defence of Mr Kubura submits that, in any event, Mr Maktouf appears in a video clip that the Prosecution relied on extensively during the trial and that it should have made inquiries to identify the persons on the video. In addition, such persons could have been identified through a thorough and diligent investigation into the structure and composition of the armed forces operating in the relevant locations at the material times.113
b. Findings of the Chamber
96. The Prosecution obtained Annexes 2 and 3 concerning Mr Maktouf on 22 February 2005. When seeking information in this case, the Prosecution submitted an initial request for assistance to the Ministry of Defence of Bosnia and Herzegovina on 26 October 2004 and a second request on 19 January 2005.114
97. The Chamber would first note that the name of Abduladhim Maktouf, admittedly spelled differently, appears in two Prosecution exhibits. The name “Abdula Makteuf” is on a list dated 15 September 1992 setting out the names of the members of the Travnik Muslim forces (MOS) which also includes the name of Ramo Durmis.115 In addition, the Prosecution produced a video cassette entitled “Video tape of the Formation of the ABiH 3rd Corps 7th Muslim Mountain Brigade in 1992 in Travnik Municipality ” produced by “Abdulathim Muktaufa”.116 Both documents relate to the MOS in Travnik. When the video cassette was presented on 2 June 2004, the Prosecution stated that it had attempted to obtain additional information about Abduladhim Maktouf117 which it found in its archives, namely that he was originally from Iraq, was born in Basra, and was a member of the El Moudjahid detachment.118 According to the Prosecution, both documents, which it already had in its possession in 1992, show a link between the Mujahedin and the ABiH, which suggests that Abduladhim Maktouf was of potential interest.
98. Furthermore, during his testimony on 30 January 2004, Ivo Fisic, who was detained in Orasac camp and was present at the beheading of Dragan Popovic in October 1993, referred to an Arab named “Mektauf” who lived in Travnik and worked with other Arabs on several tasks.119 Ivo Fisic’s testimony suggests that Mektauf was involved in the events at Orasac camp by transporting the witness from Travnik to Orasac and by his presence at the beheading of Dragan Popovic.120
99. It is reasonable to find that, on the basis of the documents in its possession before the start of the trial, a diligent prosecution would be able to evaluate the potential significance of Abdulahim Maktouf. His significance to the case in point was brought out during the testimony of witness Ivo Fisic, after which a diligent prosecution would consider whether it was appropriate to search the relevant archives before the close of its case. Such a search would have made it possible for the Prosecution to obtain the two documents before the close of its case. By failing to take that initiative because it did not make a timely analysis of the elements in its possession before the end of its case, the Prosecution did not demonstrate due diligence. In view of all the information available to the Prosecution shortly after the start of its case, the Chamber has not been convinced by the Prosecution’s arguments that the spelling of Abdulahim Maktouf’s name presented insurmountable difficulties for the search which was conducted.
100. For these reasons, the Chamber finds that the Prosecution did not demonstrate due diligence in order to obtain Annexes 2 and 3.
5. Annex 7 of the Application
a. Submissions of the Parties
101. In its Application, the Prosecution seeks to admit a document from the police station (“SJB”) at the Zenica CSB Centre. The document is dated 1993 (Annex 7 of the Application ) and is translated as Overview of the El Mujahidin Detachment.
102. The Defence of Mr Kubura submits that, unlike what was done in this case, a diligent prosecutor would have addressed requests to the Zenica CSB authorities about that document before the close of its case.121
103. The Defence of Mr Hadzihasanovic made no submission on this point.
b. Findings of the Chamber
104. The Prosecution requested the government of Bosnia and Herzegovina for access to the CSB archives in a letter dated 22 July 2004, that is, one day before the close of its case on 23 July 2004.122 In the letter, the Prosecution states that it wishes to visit and inspect the archives covering the period 1993-1995. The Application states that the request for assistance to the authorities of Bosnia and Herzegovina was part of the investigation concerning the Delic case.123 Like Annex 24 of the Application, Annex 7 of the Application was discovered by an Office of the Prosecution investigator in the Zenica CSB archives on 23 October 2004.124
105. As the Chamber noted at the beginning of its discussion on due diligence in this case,125 a diligent prosecution in a criminal investigation concerning inter alia the presence and activities of foreigners in the territory of a national State could have to identified the archives of the national or local authorities responsible for keeping track of foreigners as being those to visit or investigate. The Chamber holds that the SJB archives, which are part of the CSB facilities, are archives which a diligent prosecution could have consulted when preparing this case and that, by failing to do so, it took the risk of not finding the exhibits which a more proactive approach might have made it possible to find.
106. The Application appears to state, as do the successive lists of Prosecution exhibits since the start of the trial, that the request for assistance on 22 July 2004 is the first request for assistance the Prosecution addressed to the local CSB archives in respect of access or the provision of documents.126 The request sought information relevant to the presence and activity of certain foreigners during the war. Accordingly, the Chamber finds that by proceeding as it did, the Prosecution opened itself to the risk of not obtaining Annex 7 of the Application until very late in the trial, whereas it could have acted differently.
107. It should be recalled that, during its case, the Prosecution did not inform the Chamber of its intention to make a search of the CSB archives in respect of another case, whereas the request for assistance was addressed to the government of Bosnia and Herzegovina before the end of its case. Had it done so, the Chamber would have been in the position to render a decision on the possible procedural consequences of such a step before the start of the Defence case. The Chamber reiterates that it is obvious that a search of the relevant archives as part of an investigation in the Delic case covering the period 1993-1995 would probably yield documents directly significant to the Prosecution’s case here. It should be stated again at this point that the Indictment of 15 February 2005 in the Delic case contains two counts which deal with the same events as two of the counts in the Indictments in this case.127
108. For these reasons, the Chamber finds that the Prosecution did not demonstrate due diligence in obtaining Annex 7 of the Application before the close of its case.
109. The Chamber considers that the Prosecution did not demonstrate reasonable due diligence in order to identify and produce the twenty-four documents before the close of its case on 23 July 2004. On this basis, the Application should be dismissed without an analysis of the other criteria established by the case-law of the Tribunal.
FOR THE FOREGOING REASONS
DISMISSES the Application.
Done in French and English, the French version being authoritative
Presiding Judge Trial Chamber II
Done this first day of June 2005
The Hague, The Netherlands
[(Seal of the Tribunal]