Case No. IT-01-48-T
IN TRIAL CHAMBER I, SECTION A
Judge Liu Daqun, Presiding
Judge Florence Ndepele Mwachande Mumba
Judge Amin El Mahdi
Mr. Hans Holthuis
20 June 2005
DECISION ON ADMISSION INTO EVIDENCE OF INTERVIEW OF THE ACCUSED
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
- 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 Defence “Response to Prosecution Motion to Tender
Record of Interview Obtained in Violation of Statute and Rules”, filed on 9 May
2005 with confidential annexes (“Objection”), whereby the Defence objects to the
tendering and admission of the record of an interview of Sefer Halilovic (“the Accused
”) with representatives of the Office of the Prosecutor (“Prosecution”). The Prosecution
filed its “Response to Defence Motion Opposing the Introduction into Evidence of
the Record of Interview with the Accused Obtained in Accordance with the Statute
and Rules” on 19 May 2005 (“Response”).
- After his surrender to the custody of the Tribunal and his transfer to the
Detention Unit, the Accused was interviewed by representatives of the Prosecution
from 11 October 2001 to 12 December 2001 (“interview”). During the Status Conference
on 28 April 2005, the Prosecution sought to tender from the bar table the record
of the interview.1
- The arguments of the Defence in support of the Objection are, inter alia
The record of interview is not tendered in a permissible manner. Such a record should
be tendered through a witness who could give evidence upon the circumstances in
which the interview was taken, and cannot be tendered before the Accused testifies
himself, if he decides to do so,2
The interview was not obtained voluntarily as required by the Rules of Procedure
and Evidence (“Rules”). The Accused agreed to give this interview under the inducement
offered by the Prosecution of a promise that cooperation would promote his chance
of provisional release and/or withdrawal of the indictment,3
The “voluntariness” of the interview was also affected by the length of the interview
and the fact that the Accused was in detention at the time.4
Moreover, it is alleged that the Accused was not “effectively represented” at the
time of the interview.5 The admission
of evidence obtained in such circumstances would be in breach of the Accused’s privilege
against self-incrimination, his right to remain silent and generally his right to
a fair trial,6
- The Defence therefore submits that the record of the interview should be excluded
by the Trial Chamber pursuant to Rules 89(D) and 95 of the Rules.7
- The Defence further submits that should the Trial Chamber consider that a
prima facie case of voluntariness has been established by the Prosecution, the
Defence would request that a voir dire hearing take place concerning the
admissibility of the record of the interview.8
- Finally the Defence requests the Trial Chamber that the Prosecution be ordered
to disclose to the Defence all records of the meetings between representatives of
the Prosecution, including Ms Del Ponte, and former counsel for the Accused, Mr.
Balijagic, “in particular records of meetings during which the provisional release
, withdrawing of charges and interviewing of Mr. Halilovic were discussed”, or,
should such records not exist, “the Prosecution should be ordered to provide an
explanation for its failure to keep such records.”9
- The Prosecution’s arguments in its Response in support of tendering the interview
into evidence are, inter alia, that:
The manner of tendering the record of interview of an accused from the bar table
is by no means “novel” or “impermissible”, but, on the contrary, it has been used
in other trials before the Tribunal,10
The record of interview of the Accused is admissible as it is in compliance with
Rules 42, 43 and 63 of the Rules and does not infringe upon either Rule 89(D) or
Rule 95 of the Rules.11 Once the Prosecution
has established beyond reasonable doubt that the interview was given voluntarily
, it is the Defence that must bear a shifting evidentiary burden to demonstrate
otherwise.12 In the present case,
the Prosecution has provided all available and relevant information showing that
: (1) “?agt its highest it is that 'a full cooperation' could have a positive
influence on her ?the Prosecutor’sg position in relation to ?the Accused’sg
provisional release” and “?tghis cannot amount at law to an impermissible inducement
to an Accused person to incriminate himself”;13
and (2) the Prosecutor has repeatedly made clear to the Defence Counsel that no
promise or agreement was made to Defence Counsel to withdraw the indictment in exchange
for an agreement by the Accused to be interviewed.14
The Defence did not produce any evidence to support the suggestion of the existence
of any threat, promise or inducement,15
The manner in which the interview was conducted and the duration of the interview
cannot be viewed as oppressing or violating any safeguards afforded to the Accused
under the Statute or the Rules. 16
- During the trial hearing on 2 June 2005, the Trial Chamber requested the Prosecution
“to indicate the parts of the interview which are relevant to the present case ?
andg which they seek to have admitted into evidence”; and, “to the extent possible
, to indicate which paragraphs of the Indictment those parts are in support of.”
17 The Prosecution was requested to
submit the above-mentioned information by 9 June 2005.18
- On 10 June 2005, the Prosecution filed the “Most Relevant Portions of Prosecution
Interview with Sefer Halilovic in 2001”, wherein, while emphasising that the interview
has to be read and considered in its entirety, the Prosecution indicated those parts
of the interview which it considers most relevant to the case against the Accused
- According to the jurisprudence of the Tribunal “a pre-requisite for admission
of evidence must be compliance by the moving party with any relevant safeguards
and procedural protections and that it must be shown that the relevant evidence
is reliable.”20 In light of this,
the Trial Chamber finds that there is no prohibition for a record of an interview
with an accused to be tendered from the bar table and subsequently admitted into
evidence if the Trial Chamber establishes that the interview was obtained voluntarily
, that it was conducted in compliance with the requirements set out in the Rules
and that is relevant and has probative value.21
- As for the voluntariness, the Trial Chamber finds that there is no evidence
in support of the Defence’s allegations that any promises in relation to the Accused’s
application for provisional release and/or as to a withdrawal of the indictment
were offered by the Prosecution to induce the Accused to give the interview.
- Both the Accused and his counsel repeatedly stated that the Accused agreed
to be interviewed in order to establish the truth. From the time of his initial
appearance on 27 September 2001 the Accused expressed his intention to “fully co
-operate with the Tribunal”, because, as Mr. Balijagic explained, “?both him and
his client attachedg the greatest importance to the establishment of the truth,
whatever it ?would turng out to be”.22
In this respect, the Trial Chamber also notes the counsel’s comment during the interview
: “?wge would like to know the truth to reach the truth whatever it is even if it
would lead to life sentence for Sefer Halilovic”.23
- Concerning the Prosecution’s alleged promise of favourable consideration of
the Accused’s application for provisional release, the Trial Chamber notes that
the position of the Prosecution at the time was, as indicated in the letter from
the Prosecutor to the Defence counsel dated 12 January 2004, that “a full cooperation
of Mr. Halilovic could have a positive influence on the Prosecution’s position in
respect to a potential application for provisional release”.24
The Trial Chamber notes that the Prosecution did not offer any “promise of provisional
release”, but only indicated to the Accused that in case of full cooperation the
Prosecution would favourably support a potential application for provisional release
, which may ultimately be granted only by a Trial Chamber, pursuant to Rule 65 of
the Rules. In this respect, the Trial Chamber notes that amongst the factors that
a Trial Chamber must take into account before granting provisional release, the
Appeals Chamber in the Šainovic and Ojdanic case listed the fact that the
accused had provisionally accepted to be interviewed by the Office of the Prosecutor
, thereby showing some degree of cooperation with the Prosecution.25
However, the Appeals Chamber also stated that “an accused person may, if he decides
to do so, cooperate with the Office of the Prosecutor, inter alia, by accepting
to be interviewed by the Prosecution, but he does not have to do so and his provisional
release is not conditioned, all other conditions being met, upon his giving such
an interview while still in custody.”26
The Trial Chamber notes that the Accused was represented by a defence counsel, who
must have been aware of the requirements and the procedure to obtain provisional
release according to Rule 65 of the Rules.
- The Trial Chamber also notes that the position of the Prosecution was not such
as to induce the Accused to make an admission or, in other words, to incriminate
himself in return for the Prosecution’ support for his application for provisional
release. As mentioned above, the Accused from the very beginning voluntarily agreed
to “fully cooperate with the Tribunal”, in order for the truth to be established
. Furthermore, the Trial Chamber notes that at the end of the interview the Accused
stated that no “threat, promise or inducement” had been made to him in order to
convince him to give the answers and that the interview had been “fair and correct
”.27 The Trial Chamber therefore finds
that the position of the Prosecution at the time in relation to the Accused’s application
for provisional release did not amount to an inducement that affected the voluntariness
of the interview.
- As far as the alleged promise to withdraw the indictment is concerned, the
Trial Chamber notes that at one point during the time period of the interview, the
Accused and his Defence counsel asked for a break in order to clarify with representatives
from the Prosecution, or the Prosecutor herself, whether the so-called “reached
agreements”, the nature and content of which the Defence did not specify, were still
valid and why they were not respected.28
After the break, the interview continued with no mention from the Defence counsel
or the Accused of whether any meeting took place or whether any clarification in
relation to the alleged agreements had been offered. The Trial Chamber also notes
that, during the Status Conference on 10 February 2003, Mr. Caglar, the then-Defence
counsel of Mr. Halilovic, stated in open court that Mr. Balijagic had informed him
that he had not objected to the indictment because of the existence of an agreement
between the Prosecutor herself and the Defence, according to which the indictment
would be withdrawn at a given moment in time.29
On that occasion, the Prosecution counsel, Mr. Withopf, replied that the Prosecution
“never intended” to withdraw the indictment against the Accused.30
The Trial Chamber further notes that the Prosecutor herself, in her letter to the
Defence dated 12 January 2004, stated that at the meeting with Mr. Balijagic which
took place on 11 October 2001, “?tghe issue of a potential withdrawal of the indictment
against Mr. Halilovic was not even touched upon.”31
The Prosecutor also concurred with Mr. Withopf’ statement in his letter to the Defence
dated 22 October 2003, that “at no point in time has any agreement between the Prosecutor
and Mr. Balijagic to withdraw the indictment against Mr. Halilovic been made. The
Prosecution emphasises again that it never intended nor does it intend to withdraw
- With regard to the meaning of the above-mentioned “agreements”, the Trial Chamber
notes that the Defence stated in its Objection that “promises were made to Mr. Halilovic
that, should he fully cooperate with the prosecution, ?…g and ?…g should he be
able to convince the prosecution of his innocence, the indictment would be withdrawn
.”33 Moreover in a letter to the
Disciplinary Panel of the Tribunal, Mr. Balijagic wrote that: “?tghe representatives
of the prosecution ?had informed himg that ?…g if Mr. Halilovic proves that he
was not the commanding officer of Operation “Neretva 93” the prosecution shall withdraw
the indictment.”34 The Trial Chamber
finds that the alleged statements made by the Prosecution could not in any case
amount to “agreements” that could induce the Accused to give information that might
contain self-incriminating evidence, but merely indicate the Prosecution’s intent
to conditionally withdraw the indictment should the evidence appear insufficient
to support its case.35
- In light of the evidence discussed above, the Trial Chamber does not deem a
voir dire hearing necessary and finds that the interview was given voluntarily
- The Trial Chamber finds that the Accused’s interview was conducted in accordance
with Rules 42,36 43 37
and 6338 of the Rules. In particular
, the Trial Chamber notes that the Accused was assisted by a defence counsel, Mr
. Balijagic, chosen by the Accused and assigned by the Registrar,39
during the entirety of the interview. The Accused was questioned and could answer
in his own language, through the presence of an interpreter. He was clearly informed
of his rights in the presence of his Defence counsel, at the very beginning of the
interview as well as on several occasions throughout the interview,40
in full respect of the voluntariness of the interview, of his right to remain silent
, and with the Accused’s understanding that any statements he makes shall be recorded
and may be used in evidence.41 The
Trial Chamber further notes that the interview was audio-recorded, in accordance
with the procedure set out in Rule 43. The record of the interview shows that the
Accused was effectively represented by his Defence counsel, and that there were
regular breaks throughout the interview. At any time the Accused or his Defence
counsel could ask, if need be, for further suspensions or for interruptions of the
interview, and the record shows that they occasionally did so.
- In light of the circumstances in which the interview was conducted, and after
having examined the content of the interview, the Trial Chamber finds that the admission
into evidence of the record of the interview cannot be considered contrary to the
demands of a fair trial. The Trial Chamber further finds that the record of the
interview is relevant and has probative value. Although the record contains portions
of the interview which are not strictly relevant to the case against the Accused
, the Trial Chamber finds that in order to best assess the portions of the interview
relevant to the present case, the interview needs to be considered in its entirety
. The Trial Chamber also notes that the record of the interview contains portions
in which the word “inaudible” is very recurrent and that a clearer version of the
record of those portions would facilitate the Trial Chamber’s assessment of the
information included therein. The Prosecution might, at a later stage, be requested
to provide, if possible, the Trial Chamber and the Defence with a clearer version
of those portions of the interview. The Trial Chamber will assess the weight to
give to this evidence at the appropriate time, as indicated in the Guidelines on
the Standards Governing the Admission of Evidence, issued by the Trial Chamber on
16 February 2005.
- For the foregoing reasons, pursuant to Rule 42, 43, 63 and 54 of the Rules,
this Trial Chamber DISMISSES the Objection, and ADMITS the record
of the interview of the Accused into evidence in its entirety.
Done in English and French, the English version being authoritative.
Judge Liu Daqun
Dated this twentieth day of June 2005
At The Hague
[Seal of the Tribunal]
1 - Status Conference, 28 April
2005, T. 26.
2 - Objection, paras 1(i) and
3 - Objection, paras 1(ii)
4 - Objection, paras 1(iii) and
5 - Objection, paras 1(iv)
6 - Objection, paras 55-61.
Objection, paras 46-74.
8 - Objection,
para. 1(v) and 45.
9 - Objection,
10 - Response, paras
11 - Response, para. 13.
Response, para. 13.
13 - Response,
14 - Response, para.
15 - Response, para. 14.
See also paras 26-41.
16 - Response, paras 42-46.
Trial Hearing, 2 June 2005, T. 30.
18 - Ibid.
See “Most Relevant Portions of Prosecution Interview
with Sefer Halilovic in 2001”, paras 1-2.
20 - Kvocka Appeals Chamber
Judgement, 28 February 2005, para. 128, citing CelebiciAppeal Judgement, para. 533.
21 - See for example KvockaAppeal Judgement, 28 February 2005, paras 122-128.
The Trial Chamber also notes that in other cases before
the Tribunal, such as Simic et al. and Krstic, the
Prosecution tendered into evidence the record of the
interview of the accused during the Prosecution case,
and the Trial Chamber admitted them without knowing
that the accused would testify during the Defence case.
22 - Initial Appearance, 27
September 2001, T. 4-5. See also Status Conference,
8 January 2002, T. 13-14.
23 - See V000-3480 Tape 19,
Part 2, p.17.
24 - Objection, Annex B.
Prosecutor v. Nikola Sainovic and Dragoljub Ojdanic,
Case No. IT-99-37- AR65, Decision on Provisional Release,
30 October 2002, para. 6.
26 - Ibid., para. 8. The Appeals
Chamber recently referred to this passage in Prosecutor
v. Ivan Cermak and Mladen Markac, Case No. IT-03-73-AR65.1,
Decision on Interlocutory Appeal Against Trial Chamber’s
Decision Denying Provisional Release, 2 December 2004,
27 - V000-3480 Tape 25, Part
28 - Tape 22, Part 1, p. 14-15.
Status Conference, 10 February 2003, T. 89.
30 - Status Conference, 10 February
2003, T. 92.
31 - Objection, Annex B.
Objection, Annexes A and B.
Objection, para. 2.
34 - Objection,
35 - The Prosecution
may withdraw an indictment in accordance with Rule
51 of the Rules.
36 - Rule 42 (Rights of Suspects
during Investigation) 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 assigned counsel.
37 - 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.
38 - Rule 63 (Questioning of
Accused) provides: Questioning by the Prosecutor of
an accused, including after the initial appearance,
shall not proceed without the presence of counsel unless
the accused has voluntarily and expressly agreed to
proceed without counsel present. If the accused subsequently
expresses a desire to have counsel, questioning shall
thereupon cease, and shall only resume when the accused’s
counsel is present. The questioning, including any
waiver of the right to counsel, shall be audio-recorded
or video-recorded in accordance with the procedure
provided for in Rule 43. The Prosecutor shall at the
beginning of the questioning caution the accused in
accordance with Rule 42 (A) (iii).
39 - See Registrar’s Decision
assigning Mr. Balijagic as counsel to the Accused on
the basis of Article 11 (A) of the Directive on Assignment
of Defence Counsel, dated 11 February 2002.
40 - See for example, V000-3480
Tape 1, Side A p.1-5; V000-3480 Tape 3, Part 1, p.
1; V000-3480 Tape 4, Part 1, p. 17; V000-3480 Tape
5, Part 2, p.3; V000-3480 Tape 21, Part 1, p.10; V000-3480
Tape 25, Part 1, p.11.
41 - Rule 42 of the Rules. Seealso Decision on the Admission of the Record of the
Interview of the Accused Kvocka, 16 March 2001; and
Kvocka Appeal Judgement, 28 February 2005, para. 128.