BEFORE THE APPEALS CHAMBER
Judge Rafael Nieto-Navia, Presiding
Judge Lal Chand Vohrah
Judge Patricia Wald
Judge Fausto Pocar
Judge Liu Daqun
Mrs. Dorothee de Sampayo Garrido-Nijgh
18 September 2000
DECISION ON APPEAL REGARDING THE ADMISSION INTO EVIDENCE OF SEVEN
AFFIDAVITS AND ONE FORMAL STATEMENT
Counsel for the Prosecutor:
Mr. Geoffrey Nice
Mr. Kenneth Scott
Mrs. Susan Somers
Mr. Patrick Lopez-Terres
Counsel for Dario Kordic: Counsel for Mario Cerkez:
Mr. Mitko Naumovski Mr. Bozidar Kovacic
Mr. Turner T. Smith, Jr. Mr. Goran Mikulicic
Mr. Robert A. Stein
Mr. Stephen M. Sayers
- 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 filed by the accused Dario Kordic on 17 March 2000 (the Appellant) to
which the Appellants co-accused Mario Cerkez has joined, against an oral ruling made
by Trial Chamber III on 10 March 2000.
- Having considered all of the written submissions filed by the Appellant and the Office
of the Prosecutor (the Prosecution) 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) as follows.
- The Appellant 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 to persecute and terrorise Bosnian Muslims in the area of the Lava
valley, Bosnia and Herzegovina.
- This appeal arises as a result of the decision rendered by the Trial Chamber on the
Prosecutions application to admit into evidence seven affidavits and one Formal
Statement by a Col. Morsink (when referred to as a group, the Statements ).1 Although the seven affidavits were filed under Rule 94ter,2the Prosecution submitted that the Formal Statement should be
admitted under either Rule 94ter or under the general provision in Rule 89(C), as
it was not intended to corroborate testimony but rather, was collected pursuant to
an express suggestion from Judge Bennouna
to supplement Col. Morsinks own
- Having heard from the parties both orally on 10 March 2000 and in writing4 and pursuant to Rule 94ter of the Rules, Trial Chamber III
rendered an oral decision on 10 March 2000, admitting the Statements into evidence (see
- Following this decision the Appellant filed an application for leave to appeal ,5 to which the Appellants co-accused Mario Cerkez subsequently
filed a notice to join.6 The Prosecution filed its response on
27 March 20007 and the Appellant replied on 31 March 2000.8 On 28 April 2000, a Bench of the Appeals Chamber granted leave to
the parties to pursue the interlocutory appeal, finding that pursuant to Rule 73(B)(ii),
the Trial Chambers authority in relation to the admission of affidavit
evidence in this case constitutes an issue of general importance to proceedings before the
International Tribunal or in international law generally.9
- On 8 May 2000, the Appellant filed a brief setting out his arguments on the appeal.10 The Prosecution responded on 18 May 200011
and the Appellant filed his reply on 22 May 2000.12 In their
submissions, both parties also rely on the arguments made in their respective filings in
the recently decided interlocutory appeal, regarding the admission into evidence of the
statement of the deceased witness, Mr. Midhat Haskic (the Previous Filings).13
RELEVANT PROVISIONS OF THE RULES
- Initially, we set out the relevant parts of the Rules applicable to this appeal .
Rule 89 General Provisions
(B) In cases not otherwise provided for in this Section, a Chamber shall apply rules of
evidence which will best favour a fair determination of the matter before it and are
consonant with the spirit of the Statute and the general principles of law .
(C) A Chamber may admit any relevant evidence which it deems to have probative value .
Rule 94ter Affidavit Evidence
To prove a fact in dispute, a party may propose to call a witness and to submit in
corroboration of his or her testimony on that fact affidavits or formal statements signed
by other witnesses in accordance with the law and procedure of the State in which such
affidavits or statements are signed. These affidavits or statements are admissible
provided they are filed prior to the giving of testimony by the witness to be called and
the other party does not object within seven days after completion of the testimony of the
witness through whom the affidavits are tendered. If the party objects and the Trial
Chamber so rules, or if the Trial Chamber so orders, the witnesses shall be called for
TRIAL CHAMBER DECISION
- The Trial Chamber considered the admissibility of both the seven affidavits
and the Formal Statement under Rule 94ter and found that: (1) the requirement
that the affidavits should be taken in accordance with the law and procedure
of the State in which they are signed, does not breach the principle
of equality of arms by preventing the defence from availing itself of such
a procedure, as it is open to it to obtain such affidavits if necessary by
application to the Trial Chamber for assistance14; (2) Rule 94ter must be interpreted to give
it useful effect and that in doing so the fact that the seven
affidavits and Formal Statement were not supplied before the principal witness
testified, as required on the face of Rule 94ter, is a technical breach
only, since the timing requirement is a formal, procedural requirement which
, if interpreted otherwise, would certainly lead to or may lead to a
defeat to the interests of justice15; (3)
no prejudice was caused to either the Appellant or Mario Cerkez by the admission
of the Statements at this stage16; (4 ) the procedure
of allowing witnesses to validate their original witness statements did not
breach the Rule17; (5) all the Rule requires is that there should be
some confirmation or support of evidence in a very general sense and therefore
the term facts in dispute should be given a very broad interpretation
18 and; (6) although cross-examination of the witnesses is not necessary
or required, as the matter is covered by the affidavit[s] being on oath,
when the Trial Chamber considers the evidence it will bear in mind that
it was not given subject to cross -examination.19
OF THE PARTIES
The Appellants Arguments
- The Appellant argues that the Trial Chambers decision to admit the Statements into
evidence was in contravention of the express provisions of Rule 94ter and was
erroneous for the following reasons.
- First, with regard to cross-examination of the witnesses, he submits that in admitting
the Statements over his objections without requiring that the makers be made available for
cross-examination, the Trial Chamber deprived the Appellant of the opportunity to confront
the witnesses against him in violation of his fundamental rights protected under Article
21(4) of the Statute20 which provides inter alia, that
an accused shall have the right to examine , or have examined, the witnesses against
21 In addition, he argues that Rule 94ter does
not authorise the admission of an affidavit into evidence, if a party has objected, when
the affiant is then not made available for cross-examination. He interprets Rule 94ter to
mean that either the affidavit is admitted into evidence and the affiant produced to give
live testimony (should the opposing party so request) or the affidavit is not admitted at
- Secondly, he argues that by admitting the Statements in derogation of the plain terms of
Rule 94ter, the Trial Chamber abrogated its responsibility to ensure that trial
proceedings are conducted in accordance with the Rules. He submits that none of the
Statements satisfied the specific requirements of Rule 94ter.23In
particular, none of the Statements were filed prior to the testimony of a live witness
whose testimony they supposedly corroborated nor were they provided in corroboration of
specific facts to be introduced through such a live witness who had yet to testify.24 He states that such an interpretation of the Rule violates its
intent and essential purpose , as the timing requirement intended to afford the opposing
party the opportunity to test not only the credibility of the subsequent live witness but
also the truthfulness and accuracy of the statements contained in the affidavit.25 He further submits that because it is an exception to the general
preference in Rule 90 for live testimony, the requirement that an affidavit should
corroborate a live witnesss testimony as to a specific fact in dispute
should be interpreted restrictively and that hence the expansive interpretation of the
Trial Chamber was erroneous.26
- In general, the Appellant argues that the Trial Chambers interpretation
of Rule 94ter did not, as it asserted, give it useful effect,
but rather removed the specific protection for an accused which the Rule intended
to offer and accommodate [d] the Prosecutions perceived needs
at the expense of [the Appellants] fundamental rights
the witnesses against him [and] to be tried in accordance with the Tribunals
The Prosecutions Arguments
- The Prosecution submits that resolution of the practical difficulties it encountered in
complying with the precise terms of Rule 94ter, in particular the absence of
domestic procedures in the former Yugoslavia which would enable the Prosecution to obtain
a statement in conformity with the letter of Rule 94ter, took almost one year. It
submits that although it worked diligently to solve these problems, and kept the Trial
Chamber informed of its efforts from the start, the problems were such that it was
impossible to meet the timing requirements laid down in Rule 94ter.28 Additionally, the Prosecution argues that, as found by the Trial
Chamber, the Appellant suffered no prejudice from the admission of the Statements; in
particular, the Appellant had been aware of the content of the proposed Statements for
several months and therefore could make detailed submissions in respect of them.29 Further, the Appellant could have presented its own evidence
attacking the reliability of the Statements or contradicting their contents.30
- The Prosecution submits that the interpretation by the Trial Chamber of the timing
requirement as being of a technical nature was correct and that the main purpose of the
Rule was to provide a procedure whereby relevant evidence could be introduced in an
efficient and simplified manner without the need to call a witness , in the absence of any
material prejudice to the Appellant.31
- With regard to the Formal Statement, the Prosecution submits that it differs from the
affidavits and was obtained following a directive of the Trial Chamber. Therefore it could
also have been admitted under either Rule 98 or Rule 89(E). 32
- It submits that the scope of the powers granted by Rule 94ter to a Trial Chamber
allows the admission of affidavits into evidence despite the objections of the opposing
party and that, contrary to the Appellants submissions, in doing so it does not have
to call the witness in question for cross-examination. It submits that such an
interpretation reflects the ordinary meaning of the terms of the provision 33 and that otherwise merely an objection by an opposing party would
be enough to force the Trial Chamber to either call the affiant or dismiss the affidavit.34
- With regard to the right of an accused to confront a witness provided in Article 21(4)
of the Statute, the Prosecution submits that under the practice of the International
Tribunal, national practice and the jurisprudence of the European Court of Human Rights,
reasonable and justified limitations to the rights of an accused to confront witnesses are
- The Prosecution agrees with the broad interpretation of the terms of Rule 94ter given
by the Trial Chamber, in particular with regard to the terms fact in dispute
and corroboration and argues that such a broad interpretation is particularly
necessary in view of the nature and complexity of the facts underpinning the cases being
prosecuted and that too restrictive an interpretation would render Rule 94ter ineffective.36 In short, it submits that the Trial Chambers interpretation
of Rule 94ter was correct and should remain undisturbed.37
- The question confronting the Appeals Chamber in this appeal is whether the Trial Chamber
correctly interpreted Rule 94ter, in reaching its decision to depart from the
precise terms of the Rule and admit the Statements into evidence . The Appeals Chamber
will initially consider the admissibility of the seven affidavits before proceeding to
consider the admissibility of the Formal Statement, which the Appeals Chamber finds can be
The seven affidavits
- The Appeals Chamber finds that there are three distinct issues raised by the Appellant
relating to the admissibility of the seven affidavits: (1) the Trial Chambers
interpretation of the timing requirement in Rule 94ter and its finding that it was
merely a technical procedural requirement; (2) the effect of an objection raised by an
opposing party if an affiant is not then made available for cross-examination ; and (3)
the interpretation of the phrase fact in dispute. Each of these issues will be
Interpretation of the timing requirement in
- As a general principle, interpretation of the Rules of Evidence should best
favour a fair determination of the matter and be consonant with
the spirit of the Statute and the general principles of law.38
In interpreting a particular Rule, a Trial Chamber should ensure that it is
interpreted in accordance with its ordinary meaning and in
the light of [the] object and purpose of the Statute and Rules.39
- The Trial Chamber relied on the principle of effectiveness (interprétation par la
méthode de leffet utile or ut res magis valeat quam pereat) in finding
that the Rules must be interpreted to give them useful effect.40 The question arises as to whether or not the Trial Chambers
interpretation achieved this, without contravening the rights of the Appellant and the
need to ensure a fair trial both of which requirements underline the object and purpose of
the Statute and the Rules. As the International Court of Justice has stated:
principle of interpretation expressed in the maxim: ut res magis valeat quam pereat, often
referred to as the rule of effectiveness, cannot justify the Court in attributing to the
a meaning which
would be contrary to their letter and spirit.41
- The Decision of 21 July 2000 re-confirmed that there is a general preference for live,
in-court testimony before the International Tribunal, to which Rule 94ter constitutes
one of four exceptions.42 There is therefore no absolute
right to confront a witness.43 Testimony other than live
testimony, may fall within one of these four exceptions , or alternatively, as is also
firmly established, hearsay evidence can be admissible if it satisfies Rule 89(C) and
presents sufficient indicia of reliability: relevant out of court statements which a
Trial Chamber considers probative are admissible under Rule 89(C)
have a broad discretion under Rule 89(C) to admit relevant hearsay evidence.44 The Prosecution submits that the seven affidavits fall under Rule 94ter45 and it was on this basis that they were admitted by the Trial
- The purpose behind Rule 94ter was the desire to contribute to the expedition of
cases before the International Tribunal, by providing a mechanism whereby affidavit
evidence could be brought before a Trial Chamber in certain circumstances, avoiding the
need to call every witness relied upon in relation to a fact in dispute especially when
the testimony is cumulative.46 This desire for expedition is
however, constrained by the need to protect the rights of an accused.47
As was explained in the Sixth Annual Report, Rule 94ter:
was added to the Rules
[as] part of the ongoing commitment of the
Tribunal to speeding up the trial process whilst providing for the proper
protection of the rights of the accused and the obligation of the Tribunal
to the international community to conduct trials fairly and expeditiously.48
- [P]roper protection of the rights of the accused, is overriding
and the Rule must not be interpreted so that this protection is lost. Again,
this need for protection has been clarified in the Decision of 21 July 2000,
which determined that Rule 94ter allows for departure from the principle
of hearing live, in court testimony , only if certain safeguards are provided:
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 for cross-examination.49
- It is specifically noted that Rule 94ter provides strict procedural
protections. If the provision is interpreted to the extent that a Trial Chamber may
nevertheless admit evidence in contravention of these protections, the intent of the Rule
becomes distorted. The Appeals Chamber recalls in this regard that:
[i]t is an elementary rule of interpretation that one should not construe
a provision or part of a provision as if it were superfluous and hence pointless:
the presumption is warranted that law-makers enact or agree upon rules that
are well thought out and meaningful in all their elements.50
- In the instant case, the Trial Chamber stated that the Rule must be interpreted to give
it useful effect. This useful effect is therefore only achieved if a
satisfactory balance is struck between protection of the rights of the accused preserved
by the safeguards in the provision and the need to ensure that trial proceedings are
properly and expeditiously conducted. In striking this balance, the Appeals Chamber is
also aware of the function which Trial Chambers must perform. In Kuprekic, the
Appeals Chamber determined:
The Appeals Chamber is also alive to the need to avoid an
overly restrictive interpretation of the Rules so as to allow the Trial Chambers to
respond to the varied circumstances with which they are faced and to ensure the efficient
functioning of the Tribunal . Notwithstanding these considerations, the Appeals Chamber
takes the view that Rule 71 must be construed strictly and in accordance with its original
purpose of providing an exception, with special conditions, to the general rule for direct
evidence to be furnished, especially in the context of a criminal trial.51
- The Kuprekic court stressed that in accordance with Article
20 of the Statute, apart from charging the Trial Chambers to make sure
that the trial is fair and expeditious [Article 20] prescribes that the Trial
Chambers shall also ensure that the proceedings are conducted in accordance
with the Rules, with full respect for the rights of the accused.
- Similarly, Rule 94ter must be construed in such a way that the intent of the Rule
to admit affidavit evidence under prescribed conditions is not defeated , while at the
same time ensuring full respect for the rights of the accused. To achieve this
end, Rule 94ter, as an exception to the general rule for direct evidence,
prescribes a precise and specific sequence of events. This sequence ensures that, an
accused has the opportunity to consider the proposed affidavit evidence before the live
testimony of a witness on a fact in dispute and thereafter , if so desired, to apply to
the Trial Chamber52 for the right to cross-examine the
affiant at the conclusion of the principal testimony of the witness, in support of whose
testimony the affidavit was submitted. Affidavit evidence under Rule 94ter is
therefore admissible only in support or corroboration of live testimony. It is not
intended that it should substitute for the live testimony .
- The affidavits in the instant case were submitted at the end of the Prosecution case,
and in some cases months after the live testimony which they were supposed to corroborate
had concluded. Contrary to the interpretation by the Trial Chamber of the timing
requirement and the finding that it is a technical procedural requirement ,53 the Appeals Chamber finds that this is an integral and fundamental
part of the Rule. It ensures that a party is informed of the facts in question and in
doing so enables them to cross-examine the future live witness as to the disputed fact on
the basis of the affidavit evidence , challenging both the credibility of the live witness
together with the truthfulness and accuracy of the statements contained in the affidavits.
If a party fails to comply with this requirement, material prejudice may be caused as the
timing requirement is not only a technical requirement but also upholds the rights of the
- As seen above, it is accepted that the Rules must be interpreted with some degree of
flexibility, the primary object being to achieve justice, not to delay it, and not
to permit mere technicalities to intrude where there has been no material prejudice caused
by a non-compliance.54 Indeed, the Appeals Chamber has,
in some other types of cases, accepted non-compliance with the precise terms of a Rule,
provided it has no adverse effect upon the integrity of the proceedings or the rights of
the accused.55 But departure from the precise terms of Rule 94ter
in this case was more than of a technical procedural nature.
- The Appellant was deprived of the opportunity to challenge and cross-examine a live
witness on the facts alleged in the seven affidavits. The terms of Rule 94ter should
not be extended so that it becomes a general mechanism by which a party may file
unchallenged affidavit evidence to support oral testimony which has already concluded.
Departure from the terms of the Rule deprived the Appellant of the right to consider the
affidavit evidence before the testimony of the live witness, to cross-examine that witness
on the issues raised and thereafter to make his submissions as to whether or not he needed
to cross-examine the makers of the supporting affidavits.
- For these reasons, the Appeals Chamber finds that the Trial Chamber erred in its
interpretation of the timing requirement in Rule 94ter as being merely a
technical procedural requirement and that on the contrary this requirement is
an integral part of the Rule protecting the rights of the accused. This departure from the
terms of Rule 94ter caused the Appellant material prejudice and on this basis this
appeal should be granted and the seven affidavits excluded from evidence.
Effect of an objection by a party if the affiant is not made available
- The last sentence of Rule 94ter provides: If the party objects and the
Trial Chamber so rules, or if the Trial Chamber so orders, the witnesses shall be called
for cross-examination. The Appellant submits that this sentence should be
interpreted to mean that a Trial Chamber has no discretion to admit an affidavit into
evidence where an opposing party has raised an objection to its admission and the affiant
is not produced for cross-examination. The Prosecution submits that on a plain reading,
Rule 94ter authorises a Trial Chamber to admit an affidavit despite an objection by
an opposing party. Although the Appeals Chamber has found , for the reasons set out above,
that the seven affidavits should not have been admitted into evidence under Rule 94ter,
it also finds that contrary to the Appellants submissions, the last sentence of
Rule 94ter does not automatically entail that an affidavit must be excluded if a
party objects to its admission and the Trial Chamber does not order that the affiant be
called for cross-examination . Therefore in principle the Appeals Chamber finds no error
in the exercise of the Trial Chambers discretion to deny a request that the affiants
be made available for cross-examination in the instant case. However, this finding does
not affect the overall ruling of the Appeals Chamber in this decision.
- The intention behind Rule 94ter was to assist in the expedition of proceedings
and avoid the unnecessary duplication of evidence before a Trial Chamber. This is limited
by the need to protect the rights of the accused. The rights of the accused are protected
by adherence to the strict procedural protections contained within the Rule.
The interpretation suggested by the Appellant of this phrase would defeat the intention of
the Rule and render a Trial Chamber constrained by the absolute right of an opposing party
to demand that an affiant be made available for cross -examination. As seen above, there
is no absolute right to cross-examine a witness and the Appeals Chamber finds that a Trial
Chambers discretion should not be limited in this way.
- On the contrary, the final sentence of Rule 94ter should be interpreted to mean
that, a party has the right to apply to the Trial Chamber for an order that the
affiant shall be called for cross-examination. Although a Trial Chamber is obliged to
consider the application it remains within its discretion to make a decision based on the
merits. Such a decision will be made on a case by case basis .
- At the same time, even if a Trial Chamber decides that an affiant is not required for
cross-examination and that an affidavit is nevertheless admitted under Rule 94ter,
this does not mean that the affidavit goes unchallenged. This is because it is envisaged
that a party always has the right to challenge the affidavit evidence through
cross-examination of the live witness, as the affidavit will have been submitted prior to
his or her live testimony. (Again this emphasises the importance of the timing
requirement). Therefore, the affiant need only give evidence in person if , following an
application to the Trial Chamber, the Trial Chamber considers it appropriate. An
alternative interpretation would mean that a Trial Chamber is always obliged to accede to
such an application despite the fact that it could be wholly without merit and frivolous.
In this regard, Rule 94ter is in fact distinct from the other three so-called
exceptions to the general principle in favour of direct testimony, each of which generally
envisage cross-examination of a witness . In this case, the evidence is intended to add to
live testimony and not substitute for it.56 The Appeals
Chamber finds that the protections afforded by the Rule are sufficient to alleviate any
concerns should the affiant not be called for cross-examination by ensuring that in any
event , the evidence is not unchallenged.
fact in dispute
- Rule 94ter provides for affidavit evidence to corroborate live evidence . As the
live evidence is called to prove a fact in dispute, the fact in dispute must
be clear, as the affidavit evidence is intended specifically to support testimony on
that fact. The Appeals Chamber agrees with the Trial Chamber generally that this
phrase should not be interpreted too narrowly. But the affidavit evidence must support the
testimony of some live witness on some fact in dispute and cannot simply be filed in a
general way without such a reference. Therefore the Appeals Chamber finds that the
standard endorsed by the Trial Chamber, that all that is required is that there
should be some confirmation or support of evidence in a very general sense and that the
term facts in dispute should be given a very broad interpretation ,57 is too open-ended.
- We do not suggest that the affidavit evidence must mirror the proposed live testimony as
to every detail. Clearly some flexibility must be accorded. At the same time, a clear link
must be established between the testimony and the affidavit and the corroborating evidence
must be focused on the facts contained in the live testimony and not on the surrounding
events of the case in general. This line should be drawn on a case by case basis.
Furthermore, where the opposing party objects to the admission of affidavit evidence
pursuant to Rule 94ter, and the Trial Chamber is of the view that the fact in
dispute is not of a minor nature, the Trial Chamber may order the party seeking to rely on
the affidavit evidence to call the relevant witness for cross-examination. What amounts to
a minor fact in dispute should be determined on a case by case basis.
- As the Appeals Chamber has already found that the Trial Chamber failed to comply with
the timing requirements of Rule 94ter and for that reason the appeal should be
granted, it is not necessary to consider whether each affidavit individually met these
The Formal Statement of Col. Morsink
- Col. Morsink gave live evidence before the Trial Chamber in October 1999.
On 19 January 2000, Judge Bennouna stated on behalf of the Trial Chamber,
that with regard to a proposal to recall the witness to deal with the issue
of a list of detainees in the cinema, the Trial Chamber suggested that it
was preferable to deal with that specific point (the authentication of the
list, or a statement regarding how the list was obtained) through a simple
affidavit. This was subsequently agreed, and counsel for the Appellants
co-accused stated that [t]he practical solution is obviously the one
you suggest: for Morsink to make an affidavit. However he asked for
the right to recall the witness, if necessary, after the affidavit was submitted
, to which the Trial Chamber replied: we have in mind your application.
In due course well receive the affidavit, and then, if youve got
submissions about it , of course well hear them.58
Therefore it is clear that the right to apply to cross-examine this witness
was preserved until the affidavit had been submitted.
- The Appeals Chamber agrees with the Prosecution and finds that the Formal
Statement constitutes a different case from the other seven affidavits as
it was obtained, through agreement, pursuant to a suggestion by the Trial
Chamber, to supplement live testimony. The Prosecution initially argued
before the Trial Chamber that the Formal Statement could be admitted under
either Rule 94ter or Rule 89 (C).59 Subsequently, before the Appeals Chamber, it stated
that as it simply complied with a directive of the Trial Chamber , [i]n
this sense, th[e] [F]ormal [S]tatement could also have been appropriately
characterized and admitted under Rule 98
or Rule 89(E).60
- Although the Formal Statement was considered by the Trial Chamber under Rule 94ter,
given its history and the circumstances under which it was brought before the Trial
Chamber, including the Trial Chambers suggestion to the Prosecution , it appears to
the Appeals Chamber that it was not properly filed under Rule 94ter. Therefore in
admitting the Formal Statement under Rule 94ter, the Trial Chamber erred.
- If the evidence contained within the Formal Statement is admitted in this
form , i.e., as an affidavit, it would have to fall within one of the other
exceptions to the general principle of live, in-court testimony outlined above.
Alternatively , it might be admitted under Rule 89(C), that is, as relevant
evidence which [the Trial Chamber] deems to have probative value. Once
before the Trial Chamber, the Formal Statement must be considered with regard
to the relevant criteria under that Rule and the Trial Chamber should in that
context consider any application by a party to cross-examine the witness on
- In the instant case, when considering the right to cross-examine on the affidavits and
the Formal Statement as a whole, the Trial Chamber determined:
we have to consider, in
light of the Defence objections, whether there should be cross-examination of the
witnesses. We have considered that. We do not think that that is required or necessary in
this case. We think that the matter is covered by the affidavit being on oath. But when we
come to consider this evidence, we will , of course, bear in mind that it was not given
subject to cross-examination.62
- The Appeals Chamber finds that the Trial Chamber failed to properly consider the
admissibility of the Formal Statement under the relevant criteria and improperly denied
the Appellants request for cross-examination. In this case, the only way the Trial
Chamber could admit the Formal Statement was under Rule 89(C), after considering the
relevant criteria recently confirmed in the Decision of 21 July 2000.63
The Prosecution both before the Trial Chamber and the Appeals Chamber did not make
detailed submissions on the admissibility of the statement on this basis. The Trial
Chamber reasoned the admissibility of the Formal Statement solely under Rule 94ter and
on that basis found that it should be admitted.
- The Appeals Chamber accordingly finds that the Trial Chamber erred in admitting the
Formal Statement under Rule 94ter.
- For the foregoing reasons the Appeals Chamber ALLOWS the appeal and:
1. DIRECTS the Trial Chamber to exclude the seven affidavits from evidence ;
2. FINDS that the Formal Statement should not have been admitted into evidence
under Rule 94ter and accordingly DIRECTS the Trial Chamber to re-evaluate
its admissibility under Rule 89(C), considering if necessary any further submissions by
Done in both English and French, the English text being authoritative.
Dated this eighteenth day of September 2000
At The Hague,
[Seal of the Tribunal]
1- Six affidavits were delivered to the Appellant
on 25 February 2000 with the seventh delivered on 7 March 2000. The Formal Statement
was delivered on 1 March 2000.
2- The Prosecution did however respond to the Appellants
argument that Rule 94ter provides the only authority for the admission of the
affidavits, by referring to Rule 89(C) and the Trial Chambers discretion
to admit affidavits outside the scope of Rule 94ter provided they constitute
relevant evidence of probative value. Prosecutors
Response to Dario Kordics Objections, Pursuant to Rule 94 ter, to Six
Affidavit Statements and One Formal Statement Submitted
by the Prosecution, filed confidentially on 7 March 2000, para. 8. In addition,
during the hearing on 10 March 2000 the Prosecution stated that in the
event that [the] Chamber considered that the timing requirements for 94 ter
are essential, the Chamber will still have the power to admit these affidavits
under Rule 89(C). (Transcript p. 16482).
3- Prosecutors Response to Dario Kordics Objections,
Pursuant to Rule 94 ter, to Six Affidavit Statements and One Formal
Statement Submitted by the Prosecution, filed confidentially on 7 March
2000, para. 7.
4- Dario Kordics Objections, Pursuant to Rule 94 ter,
to Six Affidavit Statements and One Formal Statement
Submitted by the Prosecution, filed confidentially on 3 March 2000 and Prosecutors
Response to Dario Kordics Objections, Pursuant to Rule 94 ter, to Six
Affidavit Statements and One Formal Statement Submitted
by the Prosecution, filed confidentially on 7 March 2000.
5- Accused Dario Kordics Application for Leave to Pursue
an Interlocutory Appeal of Trial Chamber IIIs March 10, 2000 Ruling to
Admit into Evidence Seven Affidavits and One Formal Statement in Contravention
of the Provisions of Rule 94 ter, filed 17 March 2000.
6- Accused Mario Cerkezs Notice of Joinder in Accused
Dario Kordics Application for Leave to Pursue an Interlocutory Appeal
of Trial Chambers [sic] III March 10, 2000 Ruling to Admit into Evidence
Seven Affidavit Satatements [sic] and One Formal Statement
in Contradiction of the Provisions of to [sic] Rule 94 ter, filed 17 March 2000.
Since filing this Notice of Joinder, Mario Cerkez has filed no further briefs
on the merits of the appeal with the Appeals Chamber.
7- Prosecutors Response to Accused Dario Kordics
Application for Leave Pursuant [sic] an Interlocutory Appeal of Trial Chamber
IIIs March 10, 2000 Ruling to Admit into Evidence Seven Affidavits and
One Formal Statement Under Rule 94 ter, filed 27 March 2000. Although the Prosecution
also filed, partly confidential, the Prosecutors Request for Leave to
File a Supplementary Response to New Facts Raised by the Accuseds [sic]
Dario Kordic in his Reply on 6 April 2000, this was declared inadmissible by
the Appeals Chamber in its Decision on Application for Leave to Appeal and on
Request for Leave to File a Supplementary Response, issued 28 April 2000.
8- Reply to the Prosecutors Response to the Accused Dario
Kordics Application for Leave to Pursue an Interlocutory Appeal of Trial
Chamber IIIs March 10, 2000 Ruling to Admit into Evidence Seven Affidavits
and One Formal Statement in Contravention of the Provisions of Rule 94 ter,
filed 31 March 2000.
9- Decision on Application for Leave to Appeal and on Request
for Leave to File a Supplementary Response, p. 3.
10- Brief of the Accused Dario Kordic Seeking Reversal of Trial
Chamber IIIs March 10, 2000 Ruling to Admit into Evidence Seven Affidavits
and One Formal Statement in Contravention of the Express Provisions
of Rule 94 ter, filed 8 May 2000 and marked confidential by the Registry (the
11- Prosecutors Response to the Brief of the Accused
Dario Kordic Seeking Reversal of Trial Chambers [sic] III March 10, 2000
Ruling to Admit into Evidence Seven Affidavits and One Formal Statement
in Contravention of the Express Provisions of Rule 94 ter, filed confidentially
on 18 May 2000 (the Prosecution Response).
12- Reply Brief of the Accused Dario Kordic Seeking Reversal
of Trial Chamber IIIs March 10, 2000 Ruling to Admit into Evidence Seven
Affidavits and One Formal Statement in Contravention of the Express
Provisions of Rule 94 ter, filed 22 May 2000 and marked confidential by the
Registry (the Appellants Reply). The Appellant also filed
Accused Dario Kordics Summary of Affidavits he has Filed to Date, on 24
13- This appeal was decided by the Appeals Chamber in the Decision
on Appeal Regarding Statement of a Deceased Witness, issued 21 July 2000 (the
Decision of 21 July 2000). The Previous Filings referred to are: 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, filed
6 April 2000; 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, filed 17 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,
filed 25 April 2000.
14- Transcript p. 16486.
15- Transcript p. 16487.
17- Transcript p. 16488.
18- Transcript p. 16489.
19- Transcript pp. 16491-16492.
20- Appellants Brief, p. 9.
21- Article 21(4)(e). With regard to this argument, the Appellant
refers to his more detailed submissions set out in his Previous Filings, which
are summarised in paras. 7-10 of the Decision of 21 July 2000.
22- Appellants Brief, p. 14.
23- Appellants Brief, pp.10-13.
24- Appellants Brief, pp.4, 16-17. The Appellant also
referred to a chart which the Prosecution had attached to the Prosecutors
Response to Dario Kordics Objections, Pursuant to Rule 94 ter, to Six
Affidavit Statements and One Formal Statement Submitted
by the Prosecution, filed 7 March 2000 in which he stated that the Prosecution
attempted to illustrate that the six affidavits addressed matters on which previous
witnesses had testified. He submitted that it revealed that some of the live
witnesses whose testimony the affidavits supposedly corroborated, had testified
as much as 10 months earlier (pp 5-6).
25- Appellants Brief, p. 16.
26- Appellants Brief, pp. 17-18.
27- Appellants Brief, p. 20.
28- Prosecution Response, paras 5-11.
29- Prosecution Response, para. 35.
30- Prosecution Response, para. 36.
31- Prosecution Response, paras. 34-38. As an example of another
case, the Prosecution relied on Prosecutor v. Zoran Kuprekic et al., Decision
on Appeal by Dragan Papic Against Ruling to Proceed by Deposition, Case No.
IT-95-16-AR73.3, 15 July 1999 (Kuprekic), in which the Appeals
Chamber stated that in circumstances in which both parties had been present
and had been allowed to make representations in relation to an issue raised
by a motion, the non-compliance with the requirement embodied in Sub-rule
71(B) [was] merely of a technical nature and ha[d] no adverse effects upon the
integrity of the proceedings or the rights of the accused (para. 15, footnote
32- Prosecution Response, para. 12. As seen above, the Prosecution
previously submitted before the Trial Chamber that the Formal Statement could
also be admitted under Rule 89(C).
33- Prosecution Response, para. 24, referring to Prosecutor
v. Duko Tadic, Judgement, Case No. IT-94-1-A, 15 July 1999, para. 282.
34- Prosecution Response, para. 26.
35- Prosecution Response, para. 28. With regard to this argument,
the Prosecution refers to the more detailed submissions set out in the Previous
Filings, which are summarised in paras. 11-17 of the Decision of 21 July 2000.
36- Prosecution Response, paras. 29-33, also incorporating
the arguments on this point raised in Prosecutors Response to Dario Kordics
Objections, Pursuant to Rule 94 ter, to Six Affidavit Statements
and One Formal Statement Submitted by the Prosecution, filed 7 March
37- Prosecution Response, para. 39.
38- Although this is the wording provided in Rule 89(B) of
the Rules, which relates to cases not otherwise provided for in
Section 3 of the Rules (the title of Section 3 being: Rules of Evidence),
nevertheless the general principle is important.
39- In interpretation, the Tribunal is guided by the principles
which may be drawn from Article 31(1) of the Vienna Convention on the Law of
Treaties (1969), U.N. Doc. A/CONF.39/27: A treaty shall be interpreted
in good faith in accordance with the ordinary meaning to be given to the terms
of the treaty in their context and in the light of its object and purpose.
These principles are considered today as general principles to be applied in
the interpretation of all international instruments. See also Prosecutor v.
Duko Tadic, Decision on the Prosecutors Motion requesting protective
measures for victims and witnesses, Case No. IT-94-1-T, 10 August 1995, paras.
18 et seq., and Prosecutor v. Zejnil Delalic et al., Judgement, Case No. IT-96-21-T,
16 November 1998, para.158 et seq.
40- Transcript p. 16487. The Trial Chamber referred to Case
Concerning the Factory at Chorzów, (1927) P.C.I.J Series A, Vol 2, No.8 at p.
2 and The Corfu Channel Case, 1949 I.C.J. Rep., at p.4. In the former, the Court
held that in interpreting a provision of a particular convention, account
must be taken not only of the historical development of arbitration treaties,
as well as the terminology of such treaties, and of the grammatical and logical
meaning of the words used, but also and more especially of the function which,
in the intention of the contracting Parties, is to be attributed to this provision.
41- Interpretation of Peace Treaties (second phase), Advisory
Opinion, I.C.J. Reports, 1950 p. 221, at p. 229.
42- Para. 19. In Kuprekic at para.19, the Appeals Chamber
found: The 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), 3) expert witness statement
(Rule 94bis) and 4) the submission of affidavit evidence in corroboration of
witness testimonies (Rule 94ter).
43- Although there is no absolute right to confront a witness,
as seen infra., the other three so-called exceptions to live, in-court testimony
(i.e., excluding Rule 94ter), in fact generally envisage a right of cross-examination
in some form.
44- Prosecutor v. Zlatko Aleksovski, Decision on Prosecutors
Appeal on Admissibility of Evidence, Case No. IT-95-14/1-AR73, 16 February 1999,
45- Supra., note 2.
46- Rule 94ter was adopted at the Nineteenth Plenary session
on 17 December 1998.
47- It is envisaged that Rule 94ter may also be invoked by
the Defence. In such circumstances the need for expedition will naturally be
constrained by the need to protect the interests of the Prosecution.
48- Sixth Annual Report 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, (U.N. Doc.
A/54/187, S/1998/846, 25 August 1999), para. 116.
49- Decision of 21 July 2000, para. 21 (Emphasis added).
50- Prosecutor v. Duko Tadic, Judgement, Case No. IT-94-1-A,
15 July 1999, para. 284.
51- Kuprekic, para.19.
52- See infra.
53- Transcript, p. 16487.
54- Kuprekic, Separate Opinion of Judge Hunt, para. 18.
55- Examples are: Kuprekic, wherein the Appeals Chamber
found inter alia, that although a decision had been rendered based on an oral
motion for the taking of a deposition and although Rule 71(B) stipulated that
such a motion should be in writing, this was merely of a technical nature
and ha[d] no adverse effects upon the integrity of the proceedings or the rights
of the accused (para. 15); while in Prosecutor v. Goran Jelisic, Order,
Case No. IT-95-10-A, 21 March 2000, the Appeals Chamber, inter alia, rejected
a request to strike out the Prosecutions Notice of Appeal because it had
not been served by the Prosecution itself (which a plain reading of Rule 108
would suggest is required) but rather through the Registry, finding that this
was the standard practice of the Tribunal and that the Appellant in that case
had suffered no material prejudice. These cases are however not
comparable to the instant case as it is clear that on their particular facts
the non-compliance found was indeed merely of a technical nature
(Kuprekic, para. 15).
56- Rule 71 bis provides for testimony via a video-conference
link. In effect this is the same as live testimony, but transmitted via a video
link and therefore cross-examination will take place in the same way it would
if the witness were in person. Rule 71 provides for the taking of a deposition
for use at trial, if it is in the interests of justice. When taking the deposition,
the other party has the right to attend and to cross-examine the person from
whom the deposition is being taken. This exception to the general rule is distinct
and in fact arguably does not constitute such a clear cut exception, as the
intention is still for the witness to give primary evidence in person,
but simply not in the formal environment of a Trial Chamber. Otherwise the procedure
largely resembles that for live testimony in that it must be taken in accordance
with the Rules, a record must be made, cross-examination permitted and objections
transmitted for decision by the Trial Chamber. Its purpose is mainly to alleviate
resource and time pressures on a Trial Chamber. Similarly, Rule 94bis (which
deals with the testimony of expert witnesses) is intended to avoid unnecessary
prolongation of proceedings so that if the opposing party accepts the written
statement of an expert witness, it can be admitted into evidence by the Trial
Chamber without calling the witness to testify in person. Again the evidence
in question could be the only evidence on the facts in question and therefore
the right to cross-examine, if needed, is preserved. As noted above, the evidence
under Rule 94ter is intended to be in corroboration.
57- Transcript, p. 16489.
58- Transcript, pp. 12689-12695. The Trial Chamber also stated
that they did not wish to have Col. Morsink testify on the contents itself but
simply on the source of the document.
59- Supra., note 3.
60- Supra., para. 16 of this decision. See also, Prosecutors
Response to Accused Dario Kordics Application for Leave Pursuant [sic]
an Interlocutory Appeal of Trial Chamber IIIs March 10, 2000 Ruling to
Admit into Evidence Seven Affidavits and One Formal Statement Under Rule 94
ter, filed 27 March 2000, footnote 28.
61- In this case, the Trial Chamber assured the Appellant and
his co-accused that if they had such submissions, it would hear them at that
time. Supra., note 58.
62- Transcript, pp. 16491-2.
63- See also, Prosecutor v. Zlatko Aleksovski, Decision on
Prosecutors Appeal on Admissibility of Evidence, Case No. IT-95-14/1-AR73,
16 February 1999, para. 15.