Case No. IT-01-48-T
IN TRIAL CHAMBER I, SECTION
A
Before:
Judge Liu Daqun, Presiding
Judge Amin El Mahdi
Judge György Szénási
Registrar:
Mr. Hans Holthuis
Decision of:
9 May 2005
PROSECUTOR
v.
SEFER HALILOVIC
___________________________________________
DECISION ON MOTION FOR PROSECUTION ACCESS
TO DEFENCE DOCUMENTS USED IN CROSS-EXAMINATION
OF PROSECUTION WITNESSES
___________________________________________
The Office of the Prosecutor:
Mr. Philip Weiner
Ms. Sureta Chana
Mr. David Re
Mr. Manoj Sachdeva
Counsel for the Accused:
Mr. Peter Morrissey
Mr. Guénaël Mettraux
I. INTRODUCTION
- 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 “Motion for Prosecution Access
to Defence Documents used in Cross-examination of
Prosecution Witnesses”, filed by the Office of the
Prosecutor (“Prosecution”) on 8 April 2005 (“Motion”).
The Defence filed its “Response to Prosecution Motion
Regarding Defence Cross-Examination Documents”,
on 15 April 2005 (“Response”). In addition, both
parties had the opportunity to present oral arguments
related to this issue on a number of occasions,
such as during the Pre -Trial Conference of 24 January
2004 and during the trial hearings of 2 and 11 March
2005. The Trial Chamber’s decision takes into due
consideration all relevant arguments raised by the
parties.
- In its Motion the Prosecution requests that the
Trial Chamber orders the Defence to provide the
Prosecution either:
(a) “with a list of documents that it intends
to use in cross-examination in a timely manner
before the cross-examination commences so that
the Prosecution may on its own print out the
material before cross-examination commences,”1
or
(b) “with paper copies of the documents used
in cross-examination at the close of the Prosecution’s
examination in chief”.2
The Prosecution submits, inter alia,
that the practice in the present trial according
to which the documents that the Defence intends
to use during cross-examination are electronically
released to the Prosecution at the time the documents
are actually shown to the witness in court has
created “an unfortunate procedural unfairness
to the Prosecution”,3
since Prosecution counsel are forced to read “on
a computer screen a document which they may be
sighting for the first time, while the witness
is being cross-examined on its contents”,4
this being particularly prejudicial when the documents
released are longer than one single page.5
The Prosecution also submits that the electronic
retrieval of documents in cross-examination “hinders
the ability of Prosecution counsel to represent
the Prosecutor in court and to assist the Trial
Chamber in its determination of the admissibility
of documentary evidence ”.6
The Prosecution concludes by stating that as a
result of the practice used in the present trial
“the Prosecution has no real access to Defence
documents”,7 and Article
20 (1) of the Statute of the Tribunal (“Statute”)
is violated because “?ag fair trial requires an
equality of arms in cross-examination on documents”.8
- The Defence in its Response argues that the Prosecution
submissions are without merit and that the Motion
must be denied in full. In its oral submissions
the Defence submitted that it is not practice before
the Tribunal that the Defence provides the Prosecution
in advance with the documents that it wishes to
use during cross-examination, and that the Defence
does not intend to do this unless there is an order
in this respect from the Trial Chamber.9
The Defence stated that providing such a list to
“the Court and the court deputy ” before the cross-examination
is a necessity because of the electronic court system
(“E-court system”) employed in the present trial.10
However, since such a list could include documents
that the Defence might ultimately decide not to
use while cross-examining a particular witness,
the list should remain confidential and should not
be given to the Prosecution.11
- Both parties acknowledge that when reviewing
lengthy documents, the “system is slow”, 12
and that alternative solutions for such cases might
be envisaged, such as the availability of the document
in the hardcopy form.
II. DISCUSSION
- The Trial Chamber finds that the Motion, in the
light of the oral arguments presented by both parties,
raises two different issues: first, whether the
Defence is under an obligation to provide in advance
the Prosecution with the documents or a list of
documents that it intends to use during cross-examination
of a Prosecution witness; and secondly, whether
the E-court system and its new practices cause prejudice
to the parties’ access to documents used in court.
1. Whether the Defence is under an obligation
to provide in advance the Prosecution with documents
it intends to use in cross-examination
- The Trial Chamber, during the Pre-Trial Conference
of 24 January 2005, requested, inter alia,
that “?tgo facilitate the proceedings, the party
calling the witness or presenting evidence through
the witness shall provide a list of witnesses and
documents to the court deputy one or two days before
?the witness is called to give evidenceg”,13
and also stated that “there is not a strict requirement
for the party cross-examining the witness to present
?a list of documents to be usedg beforehand”.14
The Trial Chamber finally stated that it will rely
on the parties’ “bona fide attitude”15
in this respect.16
- The Trial Chamber notes that there is no provision
in the Rules of Procedure and Evidence (“Rules”)
or any established practice before the Tribunal
which imposes an obligation upon the Defence to
provide the Prosecution in advance with the documents
or a list of documents that it intends to use during
cross-examination of a witness. The first question
before the Trial Chamber is therefore whether such
an obligation would follow from the principle of
“equality of arms” as enshrined in the Statute of
the Tribunal.
- Pursuant to Articles 20 and 21 of the Statute
the trial must be fair and expeditious and must
be governed by the established international law
principle of "equality of arms". According to the
jurisprudence of the Tribunal the principle of “equality
of arms” should be interpreted in favour of both
parties and not only in favour of the accused, meaning
that the Prosecution and the Defence must be equal
before the Trial Chamber.17
This application of the concept of a fair trial
in favour of both parties relies on the fact that
the Prosecution acts on behalf and in the interests
of the international community, including the interests
of the victims of the offences charged.18
- However, pursuant to Article 21 (3) of the Statute,
according to which the accused shall be presumed
innocent until proved guilty, the burden of proof
lies with the Prosecution, which must establish
beyond reasonable doubt the guilt of the accused.
While the Prosecution has a duty to prove its case,
the accused has not to prove his defence. Until
the end of the Prosecution case, therefore, the
Prosecution needs to establish its case independently,
without requiring the Defence to reveal anything.
More in particular, the Trial Chamber notes that,
under the Rules, the Defence has certainly a duty
to disclose information and documents to the Prosecution
but such disclosure is limited to: (1) providing
in its pre-trial brief “in general terms, the nature
of the accused’s defence”, as stated in Rule 65
ter (f) (i); (2) notifying the Prosecution
of its intent to offer the defence of alibi or any
special defence, including the defence of diminished
or lack of mental responsibility, as required by
Rule 67 (A) (i);19
and (3) filing after the close of the Prosecution’s
case and before the commencement of the defence
case, a list of witnesses that it intends to call
and a list of exhibits that it intends to offer
in its case, as provided for in Rule 65 ter (g).
The Trial Chamber therefore observes that until
the end of the Prosecution’s case, the Defence is
not under any obligation to provide the Prosecution
with any information that could reveal the strategy
of its case – except for, as mentioned above, “
in general terms, the nature of the accused’s
defence”,20 and any
special defence listed in Rule 67 (A) (i). It follows
that during the Prosecution case the Defence is
not obliged to provide in advance (not even at the
beginning of cross-examination) the Prosecution
with the documents or a list of documents which
it intends to use during cross-examination of a
witness, since the Defence might ultimately, even
while conducting cross-examination, decide not to
use all the documents originally planned to put
to that particular witness. The Defence is therefore
entitled to provide the Prosecution only with those
documents actually used in court during cross-examination,
at the time the documents are shown to the witness.
- The Trial Chamber, however, notes that it is
in the interests of justice that the parties are
able to assist the Chamber in its determination
of the admissibility of the evidence. In this respect,
the Trial Chamber notes that the documents that
the Defence may use during cross-examination are
either documents originally disclosed to the Defence
by the Prosecution pursuant to Rules 65 (E) (iii),
66 and 68 of the Rules, and therefore already within
the possession of the Prosecution, or documents
obtained from or belonging to the accused, which
are not within the possession of the Prosecution.
The Trial Chamber finds that in cases where a document
that is not in the possession of the Prosecution
is shown to the witness by the Defence in cross-examination,
the Prosecution, if need be, may request to view
the document before it is used in court, in order
to test the document and therefore to assist the
Trial Chamber in its determination of the admissibility
of the document. In such cases, the Trial Chamber
finds that it is in the interests of justice, if
good cause shown, to grant the Prosecution the time
necessary to view the document in its entirety.
- Furthermore, the Trial Chamber notes that the
Prosecution may, in any case, make its submissions
as to the admissibility of the document introduced
by the Defence in cross-examination at any time
during cross-examination and re-examination of the
witness. Moreover, if the Prosecution deems it necessary,
it may request the Trial Chamber to make submissions
regarding admissibility at a later stage.
- As mentioned above, the Prosecution bears the
burden of proof, throughout the whole proceedings.
Moreover, the Prosecution must disclose its case
against the accused from the very early stage of
the proceedings and its disclosure obligation continues
throughout the trial, under the above-mentioned
Rules.21 The disclosure
of material and information by the Prosecution is
fundamental to the fairness of the proceedings before
the Tribunal. The Defence must be put on notice
of the case and the evidence on which the Prosecution
intends to rely at trial and should therefore not
be taken by surprise by the Prosecution introducing
new documents during the examination or cross-examination
of witnesses. The Trial Chamber therefore endorses
the view that in order to avoid a possible prejudice
to the accused, which might result from the Prosecution
introducing documents in the cross-examination of
a witness which the Defence had never had the opportunity
to review, the Prosecutor must “bona fide disclose
to […] the accused at the earliest available opportunity
and, at the latest, prior to cross-examination,
any new material it wishes to submit to a defence
witness in cross-examination, in order to give the
accused due notice”.22
- After having found that as a general principle
the Defence is not required to provide in advance
the Prosecution with the documents or a list of
documents to be used in cross-examination, the Trial
Chamber will now examine whether the use of the
E-court system might limit this general principle.
2. E-court system
- The Trial Chamber recognises that the present
trial, as a pilot project, is using an E-court system,
which allows the electronic presentation and management
of evidence and ensures that all evidence introduced
at trial is available to both parties in electronic
form from the moment the evidence is used in court.
The Trial Chamber furthermore notes that both parties
have agreed to work with this system and to cooperate
during this pilot project.
- The E-court system, as opposed to the Prosecution’s
“Sanction” software, is designed to permit simultaneous
display in-court of documents in several languages,
and therefore it allows the Accused and the witness,
as well as the parties to view the documents in
a language they understand.
- The Trial Chamber notes that up to this stage
of the proceedings, the great majority of the documents
that the Defence used during cross-examination were
originally disclosed to the Defence by the Prosecution
and therefore already within the possession of the
Prosecution. The Trial Chamber also notes that documents
which the Defence decides to use during cross-examination
but which are not within the possession of the Prosecution
are electronically disclosed in-court to the Prosecution
at the time the documents are shown to the witness.
Thus, the Prosecution is granted full access to
their contents.
- While recognising that counsel of both parties
may have preferences as to the way the evidence
is presented, the Trial Chamber fails to see a material
difference between viewing a document for the first
time on hardcopy or on a computer screen.
- One of the main purposes of the E-court system
is to improve the efficiency of the trial proceedings,
inter alia by reducing the need to rely on
hardcopy documents, without causing any prejudice
to the rights of the parties. The Trial Chamber
finds that the new court practices resulting from
the use of the E-court system, insofar as the retrieval
and perusal of electronic documents is concerned,
do not negatively impact on the parties and do not
disturb the equality between them. The Trial Chamber
therefore finds that the Prosecution’s argument
suggesting the existence of procedural inequality
between the parties or unfairness caused by the
E-court system is unfounded.
- However, the Trial Chamber acknowledges that
the E-court system is a new system, which the parties,
as well as the Bench, need to get used to and make
full use of. The Trial Chamber therefore stresses
that any difficulties encountered must be brought
to the attention of the section of the Tribunal
charged with the operation of the E-court system,
and urges the parties to do so.
III. DISPOSITION
- For the foregoing reasons, pursuant to Rule 54
of the Rules, this Trial Chamber DENIES the
Motion and URGES the parties to continue
to display a bona fide attitude with respect
to the E-court system in order to facilitate the
proceedings.
Done in French and English, the English version being
authoritative.
_______________
Judge Liu Daqun
Presiding Judge
Dated this ninth day of May 2005,
At The Hague,
The Netherlands.
[Seal of the Tribunal]
1 - Motion, para.
13 (a).
2 - Motion, para. 13 (b).
3 - Motion, para. 6.
4 - Motion, para. 7.
5 - Motion, para. 7.
6 - Motion, para. 4.
7 - Motion, para. 11.
8 - Motion, para. 12.
9 - Trial Hearing, 2 March 2005, T.
74-75.
10 - Trial Hearing, 2 March 2005,
T. 76.
11 - Trial Hearing, 2 March 2005,
T. 76; Trial Hearing, 11 March, T. 5-6.
12 - Trial Hearing, 11 March, T.
4 and 6.
13 - Pre-Trial Conference, 24 January
2005, T. 6.
14 - Pre-Trial Conference, 24 January
2005, T. 8.
15 - Pre-Trial Conference, 24 January
2005, T. 8.
16 - In other cases before the Tribunal
the Defence provides the Prosecution with the documents
or a list of the documents that it intends to use during
cross-examination by courtesy.
17 - See for example, Delalic
et al., Decision on the Prosecution’s Motion for an
Order Requiring Advance Disclosure of Witnesses by the
Defence, 4 February 1998, para. 49; Tadic Appeal
Judgement, 15 July 1999, para. 52; and Aleksovski
Appeal Decision on Prosecutor’s Appeal on Admissibility
of Evidence, 16 February 1999, paras 23-25.
18 - See also Aleksovski
Appeal Decision on Prosecutor’s Appeal on Admissibility
of Evidence, 16 February 1999, para. 25.
19 - See also Brdjanin
and Talic, Appeals Chamber, Decision on the Interlocutory
Appeal Against a Decision of the Trial Chamber, as of
Right, 6 June 2002, p.4.
20 - Rule 65 ter (f) (i) of
the Rules, emphasis added.
21 - See Rules 65 (E) (iii),
66 and 68 of the Rules.
22 - Kupreskic et al., Decision
on Order of Presentation of Evidence, 21 January 1999,
p.3-4. The question before the Kupreskic Trial Chamber
was whether co-accused should be allowed to re-cross-examine
a witness called by another co-accused after the witness
had been cross-examined by the Prosecution. The Kupreskic
Trial Chamber found that a possible prejudice to an
accused “[…] might result from the Prosecution introducing
documents in the cross-examination of a witness which
the accused had not hitherto had the opportunity to
review and to cross-examine the witness upon” and therefore
confirmed its oral ruling that the Prosecutor must bona
fide disclose to all accused at the latest prior
to cross-examination any new material it intends to
use.