IN THE APPEALS CHAMBER
Judge Lal Chand Vohrah, Presiding
Judge Wang Tieya
Judge Rafael Nieto-Navia
Judge David Hunt
Judge Mohamed Bennouna
Mrs Dorothee de Sampayo Garrido-Nijgh
15 July 1999
Zoran KUPRESKIC, Mirjan KUPRESKIC, Vlato KUPRESKIC,
Drago JOSIPOVIC, Dragan PAPIC and Vladimir SANTIC (aka Vlado)
SEPARATE OPINION OF JUDGE DAVID HUNT
ON APPEAL BY DRAGAN PAPIC AGAINST
RULING TO PROCEED BY DEPOSITION
The Office of the Prosecutor:
Mr Franck Terrier
Mr Michael Blaxill
Counsel for the Appellants:
Mr Ranko Radovic for Zoran Kupreskic
Ms Jadranka Slokovic-Glumac for Mirjam Kupreskic
Mr Boris Krajina and Mr Zelimir Par for Vlatko Kupreskic
Mr Luko Susak and Ms Goranka Herjevic for Drago Josipovic
Mr Peta Puliselic and Ms Nika Pinter for Dragan Papic
Mr Peta Pavkovic for Vladimir Santic
1. Dragan Papic (appellant) is standing trial before Trial Chamber II with five other accused on charges of crimes against humanity, violations of the laws and customs of war and persecution on racial, religious or ethnic grounds1. He appeals, by leave, from an oral decision of the Trial Chamber that, in the absence through illness of one of its judges, evidence was to be taken by deposition (in accordance with Rule 71 of the Rules of Procedure and Evidence) with the other two judges of the Chamber acting as Presiding Officers for that purpose. The relief which the appellant seeks is a declaration of principle by the Appeals Chamber as to his rights as an accused person in these proceedings. It will be necessary to elaborate upon the nature of the relief sought later in this Opinion.
2. I agree with the joint decision that the appeal should be allowed and that the evidence taken by deposition should be called before the Trial Chamber if the appellant so requests, but I regret that I am unable to agree with all of the reasons given in the joint decision for that result. I now give my own reasons upon the issues raised in the appeal.
II The proceedings at the trial
3. Trial Chamber II is constituted for the purposes of this trial by Judge Cassese (Presiding) and Judges May and Mumba. On Wednesday 24 February last, Judge May was ill and was not expected to be able to attend any further hearings before the following Monday. Only Judges Cassese and Mumba were in court when Judge Cassese informed the parties of Judge Mays illness and prognosis and asked whether either party was prepared to request that evidence be taken by way of deposition in the meantime. It was explained that Judge May would read the transcript of that evidence and view the video recording of it.
4. Counsel for the prosecution stated that he was prepared to make a formal request that such a course be followed. Counsel for the appellant stated that his client opposed such a course because the witnesses to be called were very important for him. Judge Cassese referred to what had happened the previous week, when he had been ill and when evidence had been taken by way of deposition by Judges May and Mumba. Counsel for the appellant replied that the situations were different, as the witnesses so heard the previous week had given evidence relating only to general matters.
5. Judge Cassese, without any adjournment, then announced the Trial Chambers rulings that Rule 71 applied notwithstanding the opposition of any party, that exceptional circumstances existed, that the interests of justice commanded a fair and expeditious trial, that Judge May would be able to appraise the evidence for himself and become fully familiar with it, and that there was nothing which would jeopardise the rights of the appellant. It was accordingly decided that evidence should be taken by way of deposition, and orders were made in accordance with Rule 71. The first witness was then called.
6. On Thursday 25 February, the Trial Chamber issued a written decision which granted the oral request of the prosecution to take deposition evidence, having considered:
(i) that the unavailability of one of the judges constituted an exceptional circumstance;
(ii) that the absent judge would scrutinise the transcript of the deposition proceedings and view the videotaped recording of those proceedings, enabling him fully and independently to appraise the evidence and assess the credibility of the witnesses whose depositions had been taken;
(iii) that, in the circumstances, the taking of deposition evidence did not prejudice the rights of the accused and that the requirements of Articles 20 and 21 of the Tribunals Statute for both a fair and expeditious trial would thus be satisfied;
(iv) that the depositions would be taken as a temporary measure for the three days during which the judge would be absent; and
(v) that it was therefore in the interests of justice that the continuation of the proceedings not be interrupted.
7. On the same day, the appellant filed a request (dated the previous day) for leave to appeal against the oral decision given on that day. When Judge Cassese and Judge Mumba were informed that such an application had been made, they halted the deposition proceedings.
III The leave application
8. The prosecution was not invited to respond to the application for leave to appeal, but leave was nevertheless granted by three judges of the Appeals Chamber on 12 March. Leave was granted on the basis that the interpretation and application of Rules 15(E), 15(F) and 71 were issues of general importance to proceedings before the Tribunal.2 The appellants claim that the decision of the Trial Chamber would cause such prejudice to his case as could not be cured by the final disposal of the trial, including post-judgment appeal, was rejected.3
IV The relevant statutory provisions and rules
9. Before turning to the issues raised in the appeal, it is convenient to refer to the various statutory provisions and rules which may be, or which are said to be, relevant to the interpretation and application of those rules.
10. The Tribunals Statute provides that three of its judges shall serve in each of the Trial Chambers.4 The judgment of the Trial Chamber may be given by a majority of the judges5, as may the judgment of the Appeals Chamber.6 In practice within the Tribunal, a distinction is drawn between a judgment and a decision. The former is the decision finally disposing of the trial or the appeal, as the case may be. The latter is the name given to any other decision of the Trial Chamber or the Appeals Chamber. There is no specific provision permitting a decision of either the Trial Chamber or the Appeals Chamber to be given by majority, but it has been the practice of the Tribunal since its commencement to permit such decisions also to be given by majority.
11. The Statute provides that the Trial Chamber must ensure that a trial is fair and expeditious, that proceedings are conducted in accordance with the Rules of Procedure and Evidence, with full respect for the rights of the accused and due regard for the protection of victims and witnesses7, and that all persons shall be equal before the Tribunal.8 The accused is entitled to the minimum guarantee, "in full equality", that he will obtain the examination of witnesses on his behalf under the same conditions as witnesses against him.9
12. Rule 71 (A) provides:
At the request of either party, a Trial Chamber may, in exceptional circumstances and in the interests of justice, order that a deposition be taken for use at trial, and appoint, for that purpose, a Presiding Officer.
The motion for the taking of a deposition is required to be in writing and to indicate the name and whereabouts of the person whose deposition is sought, the date and place at which the deposition is to be taken, a statement of the matters on which the person is to be examined, and of the exceptional circumstances justifying the taking of the deposition.10 The Presiding Officer is required to ensure that the deposition is taken in accordance with the Rules, and to transmit the record made of that deposition to the Trial Chamber.11
13. Rule 5(A) provides that, where there has been a non-compliance with the Rules of Procedure and Evidence, and where an objection upon that ground is raised by a party at the earliest opportunity, the Trial Chamber is required to grant relief if it finds that the alleged non-compliance is proved and that such non-compliance has caused material prejudice to that party.12 Where an objection upon that ground is raised otherwise than at the earliest opportunity, the Trial Chamber may, in its discretion, grant relief if it finds that the alleged non-compliance is proved and that it has caused material prejudice to the objecting party. The relief to be granted is to be such remedy as the Trial Chamber considers appropriate to ensure consistency with the fundamental principles of fairness.13 On an appeal from the decision of a Trial Chamber, the Appeals Chamber may affirm, reverse or revise the decision from which the appeal is taken,14 and thus may grant or refuse relief in the same way as the Trial Chamber might have done.
14. In this case, there is an issue as to whether the provisions of Rule 15 ("Disqualification of Judges") affect the proper interpretation and application of Rule 71 ("Depositions"). Rule 15(A) provides that a judge who has a personal interest in any case or any association which may affect his or her impartiality must withdraw from the case, and the President must assign another judge to the case. There follows a number of provisions dealing with different situations concerning the disqualification of judges where a party wishes to apply to the Presiding Judge of a Trial Chamber for the disqualification and withdrawal of a judge15, where a judge of the Trial Chamber has already reviewed (or confirmed) an indictment against the accused in accordance with Rule 4716, and (in relation to appeals) where a judge had been a member of the Trial Chamber whose decision or judgment is under appeal17. Against that background, and in that context, Sub-Rules (E) and (F) are in the following terms:
(E) In case of illness or an unfilled vacancy or in any other exceptional circumstances, the President may authorise a Chamber to conduct routine matters, such as the holding of an initial appearance under Rule 62 or the delivery of decisions, in the absence of one or more of its members.
(F) If a Judge is, for any reason, unable to continue sitting in a part-heard case, the Presiding Judge may, if that inability seems likely to be of short duration, adjourn the proceedings; otherwise the Presiding Judge shall report to the President who may assign another Judge to the case and order either a rehearing or continuation of the proceedings from that point. However, after the opening statements provided for in Rule 84, or the beginning of the presentation of evidence pursuant to Rule 85, the continuation of the proceedings can only be ordered with the consent of the accused.
V The issues raised
15. The parties by their filed documents in relation to this appeal18 have dealt with various issues which may be considered in four different categories:
1. Procedural regularity and validity
Whether the order in this case to take evidence by deposition was procedurally correct and validly made, it having been made
(a) without a written motion in accordance with Rule 71(B); and
(b) by only two judges.
2. General considerations
Whether the power to take depositions pursuant to Rule 71 can be exercised
(a) otherwise than upon the application of the party whose witness is to be deposed;
(b) otherwise than with the consent of the other parties; and
(c) where the witnesses are available to give evidence in The Hague in the normal way.
3. Considerations said to lead to consequences prejudicial to the appellant
(a) Whether an order that evidence be taken by deposition can be (or should be) made in relation to other than minor matters.
(b) Whether the short absence of one judge through illness amounted to exceptional circumstances.
4. The nature of the relief to which the appellant is entitled
Because I have come to a conclusion as to the basis upon which this appeal should be disposed of which is different to that expressed in the joint decision, it is strictly unnecessary for me to determine all of these issues. They are nevertheless of general importance to proceedings before the Tribunal (as the grant of leave to appeal demonstrates) and, as my views in relation to some of them do not coincide with those expressed in the joint decision, I propose to deal with them all.
1. Procedural regularity and validity (a) no written Motion
16. The appellant argues that he is entitled to challenge the order to take evidence by deposition because there was no written motion in accordance with Rule 71(B) of the Rules of Procedure and Evidence. The absence of a written motion was, however, no more than a procedural error, or a non-compliance with the Rules, and the appellant must therefore demonstrate, in accordance with Rule 5, that such non-compliance has caused him material prejudice.
17. The circumstances in which the application was being made were evident to all concerned at the time. The witnesses to be deposed were identified, and the nature of the evidence which they were to give and their whereabouts were known. No arrangements had to be made for the deposition to be taken away from the usual place of hearing. Counsel for the appellant was in a position to make an informed decision to object at the time, and to make oral submissions in support of his objection. The first objection to the absence of any written application was raised in the last of the documents filed by the appellant in relation to this appeal, almost two months after the event. There has been no suggestion of any material prejudice to the appellant as a result of the non-compliance proved. He has claimed only a material prejudice caused by the order itself, not by the non-compliance with Rule 71(B) in making that order. It is material prejudice caused by the latter which Rule 5 requires to be shown before relief may be granted in relation to a non-compliance with the Rules.
18. It is not to the point for the appellant to invoke the obligation imposed by Article 20 upon the Tribunal to conduct its proceedings in accordance with the Rules of Practice and Evidence. Those Rules include Rule 5, which provides that non-compliance with the Rules does not invalidate the proceedings in the absence of material prejudice to the party complaining of that non-compliance. In this way, Rule 5 gives the clearest indication that the Rules of Procedure and Evidence were intended to be the servants and not the masters of the Tribunals procedures.19 Rule 5 thus requires the Rules to be kept subordinate to the Tribunals obligation pursuant to Articles 20 and 21 to ensure a fair and expeditious trial.20 The object is 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. I would reject the appellants complaint upon this basis.
1.(b) only two judges
19. The appellants alternative claim that the order to take evidence by deposition is invalid because it was made by only two of the three judges of the Trial Chamber is in my view made good, although not for all of the reasons which he has suggested.
20. The appellants principal argument is, in effect, that Rule 15 provides a code in relation to what may be done whenever one of the judges in a Trial Chamber is absent, so that only "routine matters" (as described in Rule 15(E)) may be conducted during that absence unless by consent. That is not so. There is nothing to prevent a judge who is unable to continue sitting in court for only a short duration from continuing to participate in any decisions of the Trial Chamber which do not require the hearing of evidence or oral argument. It is significant that each of the situations to which Rule 15(E) refers involves an actual sitting of the Trial Chamber in court. The judge who is temporarily absent through illness may still be able to confer with the other two judges so that reserved decisions may be completed. Decisions may also be made by all three judges on other matters not requiring an oral hearing.21 To interpret the rules as requiring that none of this may be done without consent, as the appellant contends, would be effectively to create a stay of the whole proceedings rather than of merely the hearing in court. It is not expressly so provided by the rule, and there is no reason why it should be interpreted as so providing by implication.
21. An application that evidence be taken by deposition does not require an oral hearing. It is obvious that there was such a hearing on this occasion only in order to save time. There is thus no basis upon which it could validly be argued that a decision could not be made upon such an application simply because one of the judges was unable to sit in court, provided that all three judges participated in that decision. In the present case, it may well be that Judge May was able to express his views upon the matter of taking evidence by deposition in advance of it being raised with the parties in court. But there was no adjournment after the matter had been discussed with the parties, and before the oral decision was announced, to inform him of the arguments which had been put. He was thus unable to consider those arguments. The oral decision as announced by the Presiding Judge was silent as to any participation by Judge May in it. The only conclusion which can be drawn is that it was at that time the decision of the other two judges only.
22. As such, the decision was no mere procedural error. It was not made by a properly constituted Trial Chamber, and it was therefore invalid. It does not fall within the description of "routine matters" which Rule 15(E) permits the Trial Chamber to conduct in court in the case of absence through illness, but in any event even routine matters may be conducted by the Trial Chamber in court pursuant to that rule only where the President authorises it to do so. It has not been suggested that such authority had been obtained in this case. Because the relief which the appellant seeks is bound up to a considerable extent with the nature of the prejudice which he claims to have suffered, I propose to put the nature of the relief to which the appellant is entitled in this case to one side at this stage, whilst consideration is given some general considerations in relation to Rule 71 applications raised in the appeal and to the appellants complaints that the order made has nevertheless caused him prejudice of one kind or another.
2. General considerations (a) by whom may the application be made?
23. The appellant argues that only the party whose witness is to be deposed may make an application for depositions to be taken. The only reason put forward by the appellant for that argument is that the parties are equal in the proceedings. Although it is clear that it would usually be the party whose witness is to be deposed who would make the application pursuant to Rule 71, the wording of the rule does not expressly limit its operation in that way. There are situations where it may well be appropriate for the other party to make the application. Take the example of a prosecution witness who is unavailable through illness for an extended period of time to travel to The Hague. It would do nothing to ensure that the trial is a fair and expeditious one if the rule were to be interpreted as nevertheless implicitly limiting the right to apply for the evidence to be taken by deposition to the prosecution, so that the accused would have to wait in custody until the witness was well enough to travel. The rule should not be interpreted in the limiting way for which the appellant contends in this appeal.
2. (b) do all parties have to consent?
24. The appellant argues that an order cannot be made for depositions to be taken without the consent of the other parties. For this argument, the appellant relies upon the final sentence of Rule 15(F) that, after what is in effect the commencement of the hearing, "the continuation of the proceedings can only be ordered with the consent of the accused". This restriction, however, applies only to the second of the two alternatives with which Rule 15(F) is specifically concerned. The choice between those two alternatives arises only where a judge is unable to continue sitting in a part-heard case for otherwise than a short duration. At that stage, the President may assign another judge to the case to replace that judge and, if a new judge is assigned, the President must order either a rehearing or the continuation of the proceedings from that point on with the new judge. The consent of the accused is required only if the second of those two alternatives is chosen where the proceedings are to be continued, rather than reheard, with the new judge. That was not this case.
2. (c) was this order within the purpose of Rule 71?
25. It is suggested by the joint decision that Rule 71 was not intended to be used in circumstances such as the present, where the witnesses were available to give evidence in The Hague. It may well be correct to say that the original purpose of any rule for taking the evidence of witnesses by deposition was that it should be used in relation to witnesses who are not available to give evidence at the trial. But there is nothing in the terms of Rule 71 itself to limit its use to such a situation. It does not require any stretching of the terms in which the rule is expressed in order to use it in the circumstances in which it was used on this occasion. Such use is a good example of how the Rules of Procedure are the servants and not the masters of the Tribunals procedure.
26. It is also suggested by the appellant that Rule 71 has been used here as a device to circumvent the provisions of Rules 15(E) and (F). This suggestion appears to proceed upon the assumption that the effect of the order to take evidence by deposition was to permit the proceedings to continue before the Trial Chamber with only two judges present, without the consent of the appellant. The appellant argues that he was denied his entitlement to have the proceedings continue before the three judges of the Trial Chamber, unless he otherwise consents. With respect, however, both such an assumption and that argument misconceive what was being done.
27. The proceedings did not continue in the Trial Chamber before only two judges when the witnesses were being deposed. The taking of depositions from a witness is in no sense part of the proceedings before the Trial Chamber. Normally, depositions would be taken by someone other than a judge of the Trial Chamber, but convenience dictated that the two judges who were available should be the Presiding Officers in this particular case. The Rules require the Presiding Officer to transmit the record made of the deposition to the Trial Chamber.22 That requirement makes it clear that taking the deposition does not by itself constitute any part of the proceedings before the Trial Chamber. The evidence of the witnesses deposed does not become evidence in the proceedings until the record of the deposition is tendered. That may be done only when the proceedings are being heard by all three judges of the Trial Chamber. It is quite wrong to assert, as the appellant here has asserted, that he is being denied a fundamental right when the proceedings are continuing before only two judges, and that the evidence of his witnesses is being heard by only two judges.
28. I see no valid basis for the suggestion that Rule 71 has been used here as a device to circumvent the provisions of Rules 15(E) and (F). And, with unfeigned respect to those who think otherwise, I see nothing wrong with the use of Rule 71 in the circumstances of this case.
3. Consequences alleged to be prejudicial to the appellant (a) Minor matters only?
29. The appellant argues that an order for evidence to be taken by deposition should only be made in relation to minor matters of evidence. He sees support for this argument in his entitlement, given to him by Article 21.4(e), to obtain the examination of witnesses on his behalf under the same conditions of witnesses against him.23 Each of the prosecution witnesses, he says, were able to make a direct impression upon each of the three judges of the Trial Chamber, and the same must be permitted for each of his witnesses unless he consents to the contrary. It is, of course, of the utmost importance that any tribunal of fact should have the opportunity of seeing the demeanour of the witnesses and of observing the way in which various questions put to them in cross-examination are answered. This is particularly so where the witnesses are vital to the determination of significant factual issues. It was this principle which, over the last one hundred years or so, led to the rejection by the courts (at least in the common law systems) of applications to take evidence by way of deposition where the witnesses were vital to the case of one or other party and where there was to be a dispute as to their credit as witnesses. But this approach was swept to one side when modern technology came to permit the video recording of that evidence.24
30. The judges of this Tribunal now have the opportunity to study the demeanour of each witness not only when the evidence is given but also later from the video recording which is made of every witness when giving evidence. Such is the geography of the courtrooms used by the Tribunal that the view of the witness and of the witnesss demeanour on the television screens provided throughout the courtroom is usually better than that from across the room. The video recording of the proceedings is of a high quality indeed. The appellant has sought to meet this argument by saying that a judge who is not present when the evidence is given is denied the opportunity to ask his or her own questions of the witness. Questions are ordinarily asked by trial judges for one of two reasons. The first is to achieve clarity in the evidence. It is, however, the obligation of counsel who calls the witness to ensure that the evidence of that witness is given clearly; it is not the obligation of the judges to do so. The second reason for a judge to ask questions when sitting as the tribunal of fact is ordinarily to test the accuracy or the honesty of the witness. The use of that opportunity by judges is rarely to the advantage of the party calling the witness (here the appellant), and its loss was certainly not to his disadvantage. I would reject the appellants complaint upon this basis.
3.(b) Short absence of judge capable of amounting to exceptional circumstances?
31. The appellant argues that the expected absence through illness of one judge for three days is incapable of amounting to the exceptional circumstances which Rule 71 requires before an order may be made for taking evidence by deposition. If that fact is looked at in isolation, there is perhaps some support for his argument. But that fact does not exist in isolation. Every trial so far conducted by this Tribunal has taken very much longer than was ever contemplated when the Tribunal commenced its operations and when Rule 71 was inserted in the Rules of Procedure and Evidence. Whatever may be the reason for it, the fact is that trials are taking a very long time, and that cannot be challenged. There are presently twelve persons in custody still awaiting trial, many of them for very substantial periods of time already. At this time, the longest period for which anyone still awaiting trial has been in custody is approximately seventeen months. Many of them cannot anticipate the commencement of their trial for at least another twelve months.
32. Against that background, it does not require much to constitute any factor causing a further delay in the current trials an exceptional circumstance. The illness of one judge causing more than an insignificant delay in this trial was therefore capable of amounting to the exceptional circumstances required by Rule 71.25 The decision that the illness of Judge May for an expected three days did in fact amount to such exceptional circumstances was one which depended to a very large extent upon the progress of that particular trial to date and what it was likely to be in the future. There is no dispute that, for one reason or another, the trial had already gravely exceeded its expected length. The Appeals Chamber is not in any position to say that the decision that there were exceptional circumstances was wrong, and there certainly has been no miscarriage of justice caused by it. No error has been demonstrated by the appellant in relation to the decision that the illness of Judge May did in fact fulfil this requirement of Rule 71, nor any miscarriage of justice occasioned by it.26
4. Nature of relief in relation to the invalidity established
33. There was no objection to the application being heard by only two judges raised at the time when it was being discussed, when there could easily have been a short adjournment taken to consult Judge May and a decision given then and there in which all three judges had participated. As pointed out earlier, it was not an application which required an oral hearing, and a written decision could have been prepared (as was given the next day). It is the obligation of counsel to raise objections in a timely fashion, so that the objection may be considered (and possibly met) by the Trial Chamber, and not to complain later to the Appeals Chamber when it may be too late to grant relief without causing substantial delays.
34. There has been no attack made upon the validity of the written decision given the day after the application was argued before the two judges. There was ample opportunity for Judge May to participate in that particular decision, and it purports to be the decision of all three judges. Omnia praesumuntur rite et solemniter esse acta.27 That written decision cannot cure the invalidity of the earlier oral decision, although it would have been effective in relation to any of the evidence taken by deposition after it came into operation. What the written decision demonstrates is that, had all three judges participated in the decision made at the time when the application was discussed, the result would have been the same.
35. It follows that the invalidity of the oral decision has not caused the appellant to lose any real chance of being acquitted, or any other material prejudice. That invalidity is, however, of such a fundamental nature that there was simply no decision of the Trial Chamber at all to permit the evidence to be taken by way of deposition. The appeal must therefore be allowed.
36. In that context, I turn to the particular relief which the appellant seeks. In answer to an order by the Appeals Chamber that "the Defence [ ] clearly indicate in its written brief the relief which is being sought", the appellant replied:28
The defence is aware of the fact that in appeal procedure, if any, there is the possibility of repeated calling the witnesses who made their testimony contrary to the Rules.
The reason for the lodged appeal to which we refer on the whole in this letter also, is in the question in principle whether the accused is the party enjoying the same rights in the proceedings and whether he has the right to the consistent application of the Rules as all other accused have in this proceedings as well as in all other proceedings before the International Tribunal.
There are two things to be said in relation to that reply.
37. First, the reference in the first paragraph to the "appeal procedure, if any" is clearly enough to an appeal which may be brought after judgment if the appellant is convicted. It is not a reference to calling the witnesses in this present interlocutory appeal. The reference to evidence being called during the hearing of such an appeal appears to be to Rule 115, which provides:
(A) A party may apply by motion to present before the Appeals Chamber additional evidence which was not available to it at the trial. Such motion must be served on the other party and filed with the Registrar not less than fifteen days before the date of the hearing.
(B) The Appeals Chamber shall authorise the presentation of such evidence if it considers that the interests of justice so require.
38. The appellant should be left under no misapprehension as to his position in relation to this rule. Although obviously enough an application to the Appeals Chamber to call evidence in any appeal after conviction which the appellant may bring is a matter for the Appeals Chamber which hears that appeal, it is only fair to the appellant to point out at this stage that
(1) having now established the invalidity of the oral decision to take evidence by deposition, he is entitled to an order that the evidence of those witnesses whose evidence was taken pursuant to the oral decision is to be taken again in the course of his still current trial, so that that evidence is available to him at the trial (in accordance with Rule 115(A)); and
(2) should he not take advantage of that entitlement, it may be extremely difficult for him to persuade the Appeals Chamber in any appeal which he may bring after conviction that the interests of justice require that he be permitted to call the witnesses again on the appeal (in accordance with Rule 115(B)).
It would, in my respectful view, be entirely contrary to the interests of justice to permit a party one who has the evidence made available to him at his still current trial by this decision of the Appeals Chamber to stand by, not calling it, and then to seek either an acquittal or a new trial based upon the absence of that evidence at that trial.
39. For this reason, in addition to allowing the appeal, I would grant to the appellant an order that, if he so requests, the evidence called by way of deposition pursuant to the oral decision from which this appeal is brought is to be called before the Trial Chamber in the current trial.
40. The second thing to be said in answer to the appellants claim for relief is that no useful purpose has been shown for the making of a declaration along the lines suggested in the second paragraph. The terms proposed appear to assume that the appellant has succeeded in showing that he has suffered some prejudice as a result of what occurred. In my view, he has completely failed to do so. He already has the benefit of the obligation upon the Tribunal to ensure that his trial is fair,29 and the guarantee, in full equality, to the examination of witnesses on his behalf under the same conditions as witnesses against him.30 In the circumstances of this case, any declaration to that effect could take the matter no further.
41. For this reason, I would refuse to grant the appellant any further relief.
42. In my judgment, and in the circumstances to which I have referred, the objection based upon the absence of Judge May at the time when the oral decision was made does not entitle the appellant to any relief beyond that identified in para 39. I therefore concur in the relief granted in the joint decision.
Done in English and French, the English version being authoritative.
Dated this 15th day of July 1999
At The Hague
Judge David Hunt
[Seal of the Tribunal]
1. The other accused are Zoran Kuprekic, Mirjan Kuprekic, Vlatko
Kuprekic, Drago Josipovic and Vladimir antic (also known as Vlado).
2. Rule 73(B)(ii) of the Rules of Procedure and Evidence.
3. Rule 73(B)(I).
4. Article 12.
5. Article 23.2 and Rule 98ter(C).
6. Rule 117(B).
7. Articles 20.1 and 21.2.
8. Article 21.1.
9. Article 21.4(e). The principle of equality of arms is discussed in Prosecutor v Aleksovski, Case IT-95-14/1-AR73, Decision on Prosecutors Appeal on Admissibility of Evidence, 16 Feb 1999. See also footnote 20, below.
10. Rule 71(B).
11. Rule 71(E).
12. Rule 5(B).
13. Rule 5(C).
14. Statute, Article 25.2.
15. Rule 15(B).
16. Rule 15(C).
17. Rule 15(D).
18. Request of the Defence Counsel for Dragan Papic for the Leave to Appeal Against Oral Decision Dated 24 February 1999, filed 25 Feb 1999; Appeal Against Oral Decision Dated 24 February 1999, filed 25 Feb 1999; Prosecutors Brief Filed in Response to the Trial Chambers [sic] Scheduling Order of 25 February 1999, filed 1 Apr 1999; Defence Counsel Brief in Response to the Appeals Chambers Scheduling Order of 25 March 1999, filed 14 Apr 1999.
19. In Kendall v Hamilton (1879) 4 App Cas 504 at 525, Lord Penzance said: "Procedure is but the machinery of the law after all the channel and means whereby law is administered and justice reached." Later (at 530-531), his Lordship referred to the then recently enacted Judicature Act 1873 as having been "based upon the broad principle of making forms, rules and modes of procedure subordinate to the prime and paramount object of reaching the justice of the case".
20. The principle of equality does not affect the fundamental protections given by the general law or the Statute (Article 21 provides that it is for the prosecution to prove the guilt of the accused beyond reasonable doubt, and that the accused cannot be compelled to testify or to incriminate himself), and the trial proceeds against the background of those fundamental protections. However, the concept of a fair trial is one which operates in favour of both parties both the accused who is on trial and the prosecution, which acts on behalf of and in the interests of the community: Prosecutor v Aleksovski, Case IT-95-14/1-AR73, Decision on Prosecutors Appeal on Admissibility of Evidence, 16 Feb 1999, at paras 23-25.
21. It is the general practice of the Tribunal not to hear oral argument in relation to motions unless good reason is shown for its need in the particular case: Prosecutor v Krnojelac, Case IT-97-25-PT, Decision on the Defence Preliminary Motion on the Form of the Indictment, 24 Feb 1999, at para 65; see also Prosecutor v Delalic, a decision of the Appeals Chamber, Case IT-96-21-A, 26 Mar 1999, at p 2.
22. Rule 71(E).
23. Reference was also made to Article 14.3(e) of the International Covenant on Civil and Political Rights, but that takes the matter no further.
24. United States v Tunnell 667 F 2d 1182 (1982) at 1188; Director of Public Prosecutions v Alexander (1993) 33 NSWLR 482 at 497-498. The old approach was exemplified by such cases as Berdan v Greenwood (1880) 20 Ch D 764(n) at 766, 768; Lawson v Vacuum Brake Co (1884) 27 Ch D 137 at 142, 143; Burnside v Melbourne Fire Office Ltd  VLR 639 at 641; Walt Disney Productions v H John Edwards Publishing Co Pty Ltd (1952) 69 WN(NSW) 281 at 282.
25. It is perhaps significant that, in its collocation within Rule 15(E), illness is equated with an unfilled vacancy as being an exceptional circumstance.
26. cf Statute, Article 25.1.
27. All things are presumed to have been correctly and solemnly done (until the contrary is established).
28. Defence Counsel Brief in Response to the Appeals Scheduling Order of 25th March 1999, para 11.
29. Statute, Articles 20.1 and 21.2.
30. Statute, Article 21.4(e).