BEFORE THE APPEALS CHAMBER
Judge Patricia Wald, Presiding
Judge Lal Chand Vohrah
Judge Rafael Nieto-Navia
Judge Fausto Pocar
Judge Liu Daqun
Mrs. Dorothee de Sampayo Garrido-Nijgh
21 July 2000
DECISION ON APPEAL REGARDING STATEMENT OF A DECEASED WITNESS
Counsel for the Prosecutor:
Mr. Geoffrey Nice
Mr. Kenneth Scott
Mrs. Susan Somers
Mr. Patrick Lopez-Terres
Counsel for Dario Kordic:
Mr. Mitko Naumovski
Mr. Turner T. Smith, Jr.
Mr. Robert A. Stein
Mr. Stephen M. Sayers
Counsel for Mario Cerkez:
Mr. Bozidar Kovacic
Mr. Goran Mikulicic
- The Appeals 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 (the
Tribunal) is seized of an appeal against an oral ruling made by Trial Chamber III on
21 February 2000, filed by counsel for the accused Dario Kordic (the
Appellant" or "the Defence") on 28 February 2000.1
- On 28 March 2000, the Appeals Chamber granted leave to pursue this interlocutory appeal.2
- Having considered all the written submissions of the Appellant and the Office of the
Prosecutor ("the Prosecution" or "the OTP"), the Appeals Chamber
hereby renders its decision pursuant to the Statute and the Rules of Procedure and
Evidence of the Tribunal ("the Statute" and "the Rules" respectively)
I. Proceedings in the Trial Chamber
- The Appellant, Dario Kordic is currently on trial for grave breaches of the Geneva
Conventions of 1949, violations of the laws or customs of war, and crimes against
humanity, based on an alleged campaign of persecution committed by Bosnian-Croat forces in
the Lava Valley.
- The Prosecution first indicated that it would try to introduce the statement of Mr.
Midhat Haskic on 20 May 1999. This statement had been taken by a Prosecution investigator
in 1995. Mr. Haskic had since died, and the Prosecution contended that it was in the
interests of justice to admit this statement into evidence. In the statement, Mr. Haskic
claimed to have seen Kordic in the village of Donja
Vecerska in the company of soldiers from the Croatian Defence Council (the
HVO) including members of the Jokers," one of the units most closely
associated with alleged wrongdoing in the area, on the night before an HVO attack on the
village. After hearing arguments from the parties, the Trial Chamber declined to
admit the statement on 16 June 1999, leaving open the possibility that it might be
admitted after further argument at a later date.
- On 21 February 2000, after hearing further arguments of the parties, Trial Chamber III
decided to admit the statement. In its oral ruling, the Trial Chamber held that Rule 89(C)
gave it discretion to admit the statement, and that the fact that the statement had not
been subjected to cross-examination and was not made under oath were factors that went to
the weight to be given to the statement, and not its admissibility.3
The Trial Chamber noted, however, that pursuant to European Court of Human Rights
jurisprudence cited by the parties, "it would not be possible to convict the accused
on the basis of this statement alone if that evidence was uncorroborated" without
violating his fundamental rights.4
II. The Appeal
A. The Appellants Arguments
- On appeal, Kordic contends that the Trial Chambers decision to admit the Haskic
statement was erroneous in several respects.5
- First, he argues that the out-of-court statement of this deceased witness could not be
admitted without violating his right "to examine, or to have examined, the witnesses
against him," as guaranteed by Article 21(4) of the Tribunals Statute.
- In addition, he argues that admission of a statement that is not subject to
cross-examination is at odds with decisions of the European Court of Human Rights, and of
various common and civil law jurisdictions. For example, he
points to decisions interpreting Article 6(3)(d) of the European Convention on Human
Rights,6 which also gives the accused the right to
examine or have examined the witnesses against him. Kordic contends that the
European Court of Human Rights has generally deemed permissible the use of
out-of-court statements in evidence only if the accused has at some point been given the
opportunity to question the witness. When exceptional circumstances have compelled the use
of such statements without cross-examination, he argues, the
European Court has held that the conviction cannot be solely or mainly based on the
uncross-examined statement.7 In addition, Kordic submits that
an unsworn, uncross-examined statement taken by an investigator in the field (and not
by an investigating judge) would be inadmissible in both civil and common law countries,
citing as examples the laws of the United States, Germany, and the Netherlands.8
- More generally, Kordic contends that the Trial Chamber here construed Rule 89(C) so broadly
as to allow it to admit any evidence, so long as it gives such evidence only the proper
"weight" in its final decision.9 This construction,
he submits, is contrary to both the plain language and the overall structure of the
Tribunals Rules. In this regard, he points to Rule 90(A), which provides that
"[s]ubject to Rules 71 and 71bis, witnesses shall, in principle, be heard
directly by the Chambers." Rules 71 and 71bis set out the circumstances and
conditions in which testimony may be taken by deposition or video-conference, and both
allow for cross-examination.
B. The Prosecutions Arguments
- The Prosecution argues that "the exercise of the rights of the accused in
each case is not absolute, but is subject to the control of the Trial Chamber to ensure a
fair and expeditious trial in the interests of justice."10
The right of the accused to examine the witnesses against him, the Prosecution argues,
must yield in appropriate circumstances in the interests of considering the maximum amount
of relevant evidence.
- Accordingly, the Prosecution contends, Rule 89 gives extremely broad powers to the Trial
Chambers to admit all relevant evidence, with only two exceptions: (1) "if its
probative value is substantially outweighed by the need to ensure a fair trial;"11 or (2) if the evidence was
obtained by methods which cast substantial doubt on its reliability.12
In the Prosecutions view, the Haskic statement does not fall within either of these
- The fact that evidence was not subject to cross-examination, the Prosecution contends,
should therefore go to its weight and not its admissibility.
- The Prosecution notes that the prior out-of-court statement of this witness was admitted
in the Blakic case at the request of the
accused,. In that case, the Trial Chamber considered "the need for the proper
administration of justice and the requirement of a fair trial" and the exceptions to
the principle of oral testimony and cross-examination recognized "both in the
national legal systems and precedents established by international jurisdictions,
including those exceptions relating to the admission of statements of deceased
- The Prosecution further relies on the Appeals Chamber decision in Aleksovski
upholding the admission of transcripts from the
Blakic trial. In Aleksovski, the accused offered a transcript of
the testimony of one witness, which was then admitted over the Prosecutions
objection. This decision was upheld by the Appeals Chamber.14
In addition, the Appeals Chamber in Aleksovski ordered the Trial Chamber to admit
another transcript of another witnesss testimony from Blakic
at the Prosecutions request and over the objection of the accused, for the purpose
of rebutting the testimony contained in the first transcript.15
The Aleksovski decision, the Prosecution contends, establishes the propriety of
admitting prior statements without calling the witness for cross-examination in the
- With regard to the jurisprudence of the European Court of Human Rights, the Prosecution
submits that the Court has not held that Article 6(3)(d) is violated by the admission into
evidence of uncross-examined statements. Rather, the court has held that it is violated
only in cases in which the untested evidence has been the sole or the main basis for a
conviction, and has upheld convictions based in part on such statements where there was
other evidence of guilt.16
- Finally, while noting that the Tribunal is not bound by national jurisprudence, the
Prosecution contends that the Haskic statement would arguably be admissible under
exceptions to the general rules in favour of oral testimony in a number of civil and
common law countries, including the United Kingdom, Australia, United States, Japan,
Italy, Germany, Spain, Portugal and the Netherlands.17
- The question before us is whether the unsworn, uncross-examined, out-of-court statement
of a deceased witness should have been admitted into evidence as the only proof of the
accuseds presence in a particular place at a particular time.
- The Tribunals Rules express a preference for live, in-court testimony; Rule 90
states that "[s]ubject to Rules 71 and 71bis, witnesses shall, in principle,
be heard directly by the Chambers." As the Appeals Chamber explained in Kuprekic, "[t]he Rules . . . provide for
four exceptions to this general rule of direct evidence in the form of 1) deposition
evidence (Rule 71); 2) the receipt of testimony via video-conference link (Sub-rule 90(A))
[now Rule 71bis]; 3) expert witness statement (Rule 94bis); and 4) the
submission of affidavit evidence in corroboration of witness testimonies (Rule 94ter)."18 The statement at issue here does not fall within any of
these enumerated exceptions. If it is admissible at all, therefore, it must be under the
Trial Chambers residual power under Rule 89(C) to admit "any relevant evidence
which it deems to have probative value."
- Rule 89(C) grants the Trial Chambers broad discretion. The bounds of this discretion,
however, are suggested by Rule 89(B), which provides that "[i]n cases not otherwise
provided for in this Section, a Chamber shall apply rules of evidence which will best
favour a fair determination of the matter before it and are consonant with the spirit of
the Statute and the general principles of law." A Trial Chambers exercise of
discretion under Rule 89(C) ought, pursuant to Rule 89(B), to be in harmony with the
Statute and the other Rules to the greatest extent possible.
- The other rules providing for departures from the principle of hearing live, in-court
testimony provide certain safeguards. For example, the provisions for depositions (Rule
71), testimony by video-conference link (Rule 71bis)19
and expert reports (Rule 94bis) all envisage cross-examination. Likewise, Rule 94ter,
which governs the use of affidavits or formal statements to corroborate live witness
testimony, includes strict procedural protections. First, Rule 94ter statements are
to be used to corroborate a fact in dispute contained in the live testimony of another
witness. Second, Rule 94ter statements must be executed "in accordance with
the law and procedure of the State in which such affidavits or statements are
signed." Third, Rule 94ter provides that "if the party objects and the
Trial Chamber so rules, or if the Trial Chamber so orders, the witnesses shall be called
- In the same way, Rule 89(C) must be interpreted so that safeguards are provided to
ensure that the Trial Chamber can be satisfied that the evidence is reliable. A starting
point is the requirements of these other rules that expressly allow for departures from
the principle of live evidence. Rule 89(C) may indeed permit some relaxation of these
requirements, but it would be odd to find that a statement that met none of the
requirements of those other rules was nonetheless admissible under Rule 89(C) without any
other compensating evidence of reliability. This statement does not meet the requirements
of these other rules and therefore other evidence of reliability must be found.
- The admission of this statement is in marked tension with the guarantee in Article 21(4)
that the accused has the right to examine the witnesses against him.20
It is of course well-settled that this provision does not create a general prohibition on
hearsay evidence, and as the Appeals Chamber explained in Aleksovski,
"relevant out of court statements which a Trial Chamber considers probative are
admissible under Rule 89(C)."21 But as the Aleksovski
Appeals Chamber went on to explain:
Since such evidence is admitted to prove the truth of its contents, a
Trial Chamber must be satisfied that it is reliable for that purpose, in the sense of
being voluntary, truthful and trustworthy, as appropriate; and for this purpose may
consider both the content of the hearsay statement and the circumstances under which the
evidence arose; or, as Judge Stephen described it, the probative value of a hearsay
statement will depend upon the context and character of the evidence in question. The
absence of the opportunity to cross-examine the person who made the statements, and
whether the hearsay is "first-hand" or more removed, are also relevant to the
probative value of the evidence.22
- This passage in Aleksovski supports the proposition that the reliability of a
statement is relevant to its admissibility, and not just to its weight. A piece of
evidence may be so lacking in terms of the indicia of reliability that is not
"probative" and is therefore inadmissible.
- In the Appeals Chambers view, several factors distinguish the statement at issue
here from the statements admitted in Aleksovski.
- The two statements admitted in Aleksovski were transcripts of in-court testimony
given in the Blakic case. These
statements were given under oath to the Tribunal. Moreover, they were subject to
cross-examination when originally given. The first statement was offered against the
Prosecution, which had itself cross-examined the witness in the Blakic case and had made "no attempt . . .
to demonstrate any particular line of cross-examination which would have been both
relevant and significant to the Aleksovski trial but which would not also have been
both relevant and significant to the Blakic
trial."23 With regard to the second statement, offered
against the defence to rebut the first statement, "the witness was extensively
cross-examined in the Blakic trial, and
there is a common interest between the Defence in the two cases."24
- By contrast, the statement in this case contains none of these indicia of reliability.
It lacks all of the factors present in Aleksovski. It was not given under oath. It
was never subject to cross-examination by anyone.25 In terms
of the truth of the matter asserted the presence of the accused on a particular
evening in a particular place it appears not to have been corroborated by any other
evidence.26 In terms of whether it is
"first-hand or more removed," it is not first-hand hearsay, but is
more removed.27 Although statements
can be taken through interpreters, the taking of this statement was more unusual. In this
case, the investigator admitted that she did not speak Croatian, the language in which Mr.
Haskic spoke, and relied on the interpreters account of what he was saying. The statement of Mr. Haskic was then written in English by
the investigator, whose native tongue is Dutch, and was then translated back into Croatian
for the witness to sign it. These multiple translations in an informal setting create a
much greater potential for inaccuracy than is the case when both the declarant and
the witness speak the same language or when the original statement is given in court with
professional, double-checked simultaneous translation. Nor do any of the additional
factors mentioned by the Prosecution in its brief28 weigh in
favour of reliability. The statement was not made contemporaneously with the events in
question, but some years afterwards.29 Nor was it made under
formal circumstances that might increase its reliability, such as in a hearing before an
investigating judge. Consequently, it would be an abuse of discretion for the Trial
Chamber to give this evidence any weight in its final judgement.
- Taking all these factors into account, the Appeals Chamber finds that the statement is
so lacking in reliability that it should have been excluded as without probative value
under Rule 89(C).
- For the foregoing reasons, the Appeals Chamber ALLOWS the appeal and DIRECTS the
Trial Chamber to exclude the statement.
Done in both English and French, the English text being authoritative.
Dated this 21st day of July 2000
At The Hague,
[Seal of the Tribunal]
1. Accused Dario Kordics Application for Leave to Pursue an Interlocutory Appeal of a
February 21, 2000 Ruling of the Trial Chamber to Admit into Evidence a Prior Unsworn,
Uncorroborated Witness Statement Whose Maker Mr. Kordic Could Neither Confront Nor
Cross-Examine, 28 February 2000.
2. Decision on Application for Leave to Appeal and Scheduling Order, 28 March 2000. The co-accused, Mario Cerkez, asked to
join in Kordics appeal in his Notice of Joinder in Accused Dario Kordics
Application for Leave to Pursue an Interlocutory
Appeal of a February 21, 2000 Ruling of the Trial Chamber to Admit into Evidence a Prior
Unsworn, Uncorroborated Witness Statement Whose Maker Mr. Kordic Could Neither Confront
Nor Cross-Examine, dated 29 February 2000. Although Cerkezs motion was
untimely, the Appeals Chamber nonetheless allowed him to join in the appeal in its 28
March 2000 order. However, he filed no further briefs on the merits of the appeal.
3. Transcript p. 14701.
4. Transcript p. 14702.
5. Brief of the Accused Dario Kordic
Seeking Reversal of a February 21, 2000 Ruling of Trial Chamber III To Admit into Evidence
a Prior Unsworn, Uncorroborated Witness Statement Whose Maker Mr. Kordic Could Neither
Confront Nor Cross-examine Shereinafter "Appellants Brief"C, 6
April 2000; Reply Brief of the Accused
Dario Kordic Seeking Reversal of a February 21, 2000 Ruling of Trial Chamber III To Admit
into Evidence a Prior Unsworn, Uncorroborated Witness Statement Whose Maker Mr. Kordic
Could Neither Confront Nor Cross-examine Shereinafter "Appellants
Reply Brief"C, 25 April 2000.
6. European Convention for the Protection of Human Rights and Fundamental
Freedoms, opened for signature 4 November 1950, 213 U.N.T.S. 222 (Council of Europe)
(entered into force 3 September 1953).
7. See Appellants Brief at p. 12 (citing, e.g., Unterpertinger
v. Austria, 24 November 1986, Series A, No. 110, at para. 33 (conviction reversed); Saidi
v. France, 20 September 1993, Series A, No. 261-C, at para. 44 (conviction reversed)).
8. See Appellants Brief at pp. 13-17.
9. Rule 89(C) provides that "A Chamber may admit any relevant
evidence which it deems to have probative value."
10. Prosecutors Response
to the Brief of the Accused Dario Kordic Seeking Reversal of a February 21,
2000 Ruling of Trial Chamber III To Admit into
Evidence a Prior Unsworn, Uncorroborated Witness Statement Whose Maker Mr. Kordic Could
Neither Confront Nor Cross-examine Shereinafter "Prosecution Brief"C,
17 April 2000, at p.7, quoting Prosecutor v.
Delalic, et al, Decision on the Alternative Request for Renewed Consideration of Delalics Motion for an Adjournment
until 22 June or Request for Issue of Subpoenas to Individuals and Requests for Assistance
to the Government of Bosnia and Herzegovina, 22 June 1998, Case No. IT-96-21-T,
T. Ch. I, at paras. 44-45. The Prosecutions briefs in this case were initially filed
as confidential documents, and the Appellants filings were classified as
confidential documents by the Registry. As the Appeals Chamber has been informed that
there is no reason for these documents to remain confidential, all of the briefs are
hereby declared public documents.
11. Rule 89(C).
12. Rule 95.
13. Prosecution Brief at p. 9, quoting Prosecutor v. Blakic, Decision
on the Defence Motion to Admit into Evidence the Prior Statement of Deceased Witness
Midhat Haskic, 29 April 1998, Case No. IT-95-14-T, T. Ch. I.
14. Prosecutor v. Aleksovski, Decision on Prosecutors
Appeal on Admissibility of Evidence Shereinafter AleksovskiC, 16 February 1999,
Case No. IT-95-14/1-AR73, A. Ch., at pp. 9-10.
15. Id., at pp.12-13.
16. Prosecution Brief at p. 11 (citing Ferrantelli and Santangelo v.
Italy, 7 August 1996, R.J.D., 1996-III, No. 12).
17. Prosecution Brief at pp. 15-24.
18. Prosecutor v.
Kuprekic, Decision on Appeal by
Dragan Papic Against Ruling to Proceed by Deposition, 15 July 1999, Case No.
IT-95-16-AR73.3, A. Ch., at paras. 18-19.
19. It has been held that when testimony is taken by video-conference
link, the accuseds right to confrontation must be respected. Prosecutor v. Delalic, et al, Decision on
the Motion To Allow Witnesses K, L and M to Give Their Testimony by Means of Video-Link
Conference, 28 May 1997, Case No. IT-96-21-T, T. Ch. I.
20. Although the statement of this same deceased witness was admitted in
the Blakic case, it was at the request
of Blakic, and so the accuseds right to examine the witnesses against him was
not implicated. Prosecutor v. Blakic, Decision on the Defence
Motion to Admit into Evidence the Prior Statement of
Deceased Witness Midhat Haskic, 29 April 1998, Case No. IT-95-14-T, T. Ch. I.
21. Aleksovski, at para 15. The general principle that hearsay is
admissible before the Tribunal is not upset by this decision. The hearsay issue arises
most often in the context of a live witness who, incidental to his or her testimony, says
something about what he or she heard someone else say: "And when I was in the camp, I
heard the guards say that someone had been killed." That sort of hearsay is a very
different matter, in terms of the preference for live testimony and the accuseds
right to examine the witnesses against him, from admitting complete statements of primary
witnesses in lieu of calling them to court.
23. Id. at para. 20.
24. Id. at para. 27.
25. The post-World War II trials operated under liberal rules of
evidence and generally allowed the use of affidavits. Affidavits were, however, viewed
skeptically and even stricken from evidence if the witness was not available for
questioning: "[a] practice developed that if the witness was not available for
cross-examination or interrogatories, either when the affidavit was presented or at a
later stage, the affidavit was struck out." Richard May and Marieke Wierda, Trends
in International Criminal Evidence: Nuremberg, Tokyo, The Hague, and Arusha, 37
Columbia Journal of Transnational Law 725, 751 (1999). In at least one case, the affidavit
of a deceased witness was excluded, though in others such statements were allowed. See
id. at 752. In any event, one of the common criticisms of the World War II trials is
that affidavits were admitted too freely. Id. at 751.
26. Corroboration is also a factor looked at in the European Court of
Human Rights cases concerning whether reliance on out-of-court statements had the effect
of denying the accused a fair trial. See, e.g., Farrantelli and Santangelo, supra.
The parties in the case before us dispute whether the statement is corroborated by other
evidence, and that question seems to turn on at what level of generality one should look
at corroboration: need there be other evidence of the truth of the facts asserted in the
statement, or simply other evidence of the accuseds guilt in general? The Trial
Chamber did not explicitly rule on this issue, though it did state that it dealt with an important issue relating to the accused
Dario Kordic, his presence in Donja Veceriska on the evening of the 15th
of April, 1993, when he was in company with members of the military." Transcript
p.14700. The Defence asserts that there is no other
evidence of Kordics presence in that town on that day. The fact that the Trial
Chamber deemed the testimony important could be viewed as cutting both ways (both for and
against admissibility), but our opinion is that it mainly increases the possible
prejudice to the defence.
27. Aleksovski at para. 15.
28. See, e.g., Prosecution Brief at para. 46 (citing U.S. law
considering, inter alia, the lapse of time between the event and the statement and
whether the statement was made under formal circumstances); see also Appellants
Brief at p.16 (discussing requirements under German and Dutch evidence law that statements
must have been sworn before a judge to be admissible).
29. Statements used in the Tribunal are often taken several years after
the events in question. While this is not necessarily an indication of unreliability,
neither is it a factor weighing in favour of reliability.