IN THE APPEALS CHAMBER
Before: Judge David Hunt, Pre-Appeal Judge
Registrar: Mrs Dorothee de Sampayo Garrido-Nijgh
Decision of: 20 April 2000
Zejnil DELALIC, Zdravko MUCIC (aka "PAVO"), Hazim
and Esad LANDO (aka "ZENGA")
DECISION ON REQUEST BY ESAD LANDO FOR INFORMATION
REGARDING EXTRACTS TAPE
Office of the Prosecutor:
Mr Upawansa Yapa
Mr Christopher Staker
Mr Norman Farrell
Counsel for the Defence:
Mr John Ackerman for Zejnil Delalic
Mr Tomislav Kuzmanovic and Mr Howard Morrison for Zdravko Mucic
Mr Salih Karabdic and Mr Tom Moran for Hazim Delic
Ms Cynthia Sinatra and Mr Peter Murphy for Esad Landzo
The background to the principal application
The appellant Esad Landzo ("Landzo") has filed a motion seeking, first, information regarding the tape recording produced by the Audio-Visual Section of the Tribunals Electronic Support Services for use by the Appeals Chamber in the forthcoming appeal.1
The history of this application is, shortly, that one of Landzos grounds of appeal against his conviction is based upon his allegation that the Presiding Judge at his trial "was permitted to sleep through much of the proceedings".2 An order was made permitting Landzos legal representatives to view certain video-recordings taken of the trial in order to assist him in the presentation of that ground of appeal.3 Particulars of the passages from those video-recordings relied upon were supplied by each of the parties, and the Audio-Video Section compiled a tape recording in which those passages were collected in chronological order. This tape recording has throughout been referred to as the Extracts Tape, and its purpose was stated by the Appeals Chamber to be "a convenient way for the Appeals Chamber to view the material which is relevant to the Fourth Ground of Appeal".4
The Extracts Tape is presently being viewed in chambers by the judges who are to hear the appeal so as to save time during the appeal, as previously indicated.5 Counsel for Landzo informally sought permission to review the Extracts Tape as well, and permission to do so was granted. When they commenced to view the Extracts Tape, counsel discovered that, in addition to the passages to which Landzo relies (identified by the super-imposed letter "D") and the passages upon which the prosecution relies (identified by the letter "P"), there are a number of other passages in the Extracts Tape which are identified by the letter "J".
The principal application
This discovery led to allegations being made in the Motion that a third party had been permitted to insert material amounting to an "apparently adversarial influence [...] altering the format in terms of both length and content" of the passages selected by the parties,6 that permitting anyone other than a party to the appeal to "take an adversarial position in the proceedings" may raise issues under the Tribunals Statute and "the general principles of criminal law and practice",7 and that, as Landzo "has no way of knowing in whose favour J is intended to lean", he "has to assume at this stage that the intervention of J may work to [his] disadvantage".8
The Extracts Tape is described by the Motion as "a selective extract of the record made by the parties for adversarial forensic purposes, and represents the way in which the parties intend to argue their case".9 Landzo proceeds:10
The fact that both parties were able to make selections was a guarantee of fairness and balance in the selection, as was the fact that the parties had the opportunity and the obligation to explain their selections through the arguments advanced in their Briefs.
On the other hand, Landzo says, the introduction of the "J" material "constitutes an adversarial comment on the weight of the evidence and the merits of the case".11
Based upon these allegations, Landzo seeks to know:
(1) the identity of the person or persons (a) who ordered or authorised the selection of the "J" material, and (b) who compiled that material;
(2) the basis upon which the "J" material was (a) selected, and (b) inserted at the particular points in the Extracts Tape; and
(3) the evidential affect which is claimed that the "J" material has in relation to the Fourth Ground of Appeal.
The prosecution, which has not yet had the opportunity to view the Extracts Tape, and is thus unable to provide the information sought itself, does not object to the information being supplied to Landzo provided that all parties are given it.12
The allegations made on behalf of Landzo are completely baseless. They proceed upon the assumptions (1) that the Extracts Tape somehow belongs to the parties, and (2) that the parties can - by their selection of the passages upon which they rely - restrict the Appeals Chamber in the material to which it may refer in considering the Fourth Ground of Appeal. Those assumptions are erroneous.
The Extracts Tape was prepared by the Tribunal expressly for the purpose of assisting the Appeals Chamber to view the material which the parties say is relevant to the Fourth Ground of Appeal. The alternative was for the Appeals Chamber to search through all the video-recordings taken during the twenty month trial for the passages relied upon by the parties. The Extracts Tape demonstrates very clearly (as the Motion concedes)13 precisely the passages so relied upon by the parties. The Appeals Chamber, however, is entitled by Rule 109(D) of the Tribunals Rules of Procedure and Evidence to refer to the whole of the trial record if it wishes to do so. It is absolutely no business of the parties what other parts of the trial record the Appeals Chamber may for convenience wish to include in the video-recording prepared for its use. The allegations of impropriety on the part of the Appeals Chamber should not have been made.
In any event, it is apparent from the Extracts Tape itself that the "J" passages were included for a purely pragmatic purpose and not for any of the sinister purposes alleged. If counsel for Landzo had stopped for a moment before filing this unnecessary Motion, and had looked at the time codes shown at the foot of the screen in the Extracts Tape, they would readily have understood that the "J" passages are simply passages which join two passages upon which the parties rely where the joining passage is less than a minute in elapsed time (hence their identification by the letter "J"). An easy example which demonstrates this is to be seen in the first six sequences on the Extracts Tape, each sequence being separated from the others by a blank screen for two seconds. These six sequences contain the first twelve extracts upon which either Landzo or the prosecution relies, and they are all taken from Tape 034 recorded at the trial on 11 March 1997. The time codes shown in each of these sequences are those which had been added to the original trial video-recordings and from which the parties had supplied their particulars.
The first (continuous) sequence shows a time code from 00:24:02:00 to 00:30:17:00, an elapsed time of 6 minutes 15 seconds. The sequence consists of:
D 00:24:02:00 to 00:24:19:00 (17 seconds)
J 00:24:19:00 to 00:25:15:00 (56 seconds)
D 00:25:15:00 to 00:25:28:00 (13 seconds)
J 00:25:28:00 to 00:25:57:00 (29 seconds)
D 00:25:57:00 to 00:30:17:00 (4 minutes 20 seconds)
The second (continuous) sequence shows a time code from 00:33:45:00 to 00:42:00:00, an elapsed time of 8 minutes 15 seconds. The sequence consists of:
D 00:33:45:00 to 00:38:28:00 (4 minutes 43 seconds)
J 00:38:28:00 to 00:39:25:00 (57 seconds)
D 00:39:25:00 to 00:42:00:00 (2 minutes 35 seconds)
The third sequence shows a time code from 00:43:00:00 to 00:46:56:00, an elapsed time of 3 minutes 56 seconds. There is only one passage:
D 00:43:00:00 to 00:46:56:00 (3 minutes 56 seconds)
The fourth sequence shows a time code of 00:49:18:00 to 00:49:31:00, an elapsed time of 13 seconds. Again, there is only one passage:
P 00:49:18:00 to 00:49:31:00 (13 seconds)
The fifth (continuous) sequence shows a time code from 01:35:20:00 to 01:43:29:00, an elapsed time of 8 minutes 9 seconds. The sequence consists of:
D 01:35:20:00 to 01:39:16:00 (3 minutes 56 seconds)
J 01:39:16:00 to 01:39:55:00 (39 seconds)
D 01:39:55:00 to 01:43:29:00 (3 minutes 34 seconds)
The sixth (continuous) sequence shows a time code from 01:44:50:00 to 01:52:51:00, an elapsed time of 8 minutes 1 second. The sequence consists of:
D 01:44:50:00 to 01:45:44:00 (54 seconds)
J 01:45:44:00 to 01:46:18:00 (34 seconds)
D 01:46:18:00 to 01:46:39:00 (21 seconds)
J 01:46:39:00 to 01:47:28:00 (49 seconds)
D 01:47:28:00 to 01:52:51:00 (5 minutes 23 seconds)
By leaving the joining passages in these sequences, an immense amount of time-consuming and costly work in producing the Extracts Tape was saved. It turns out that their inclusion also puts into a more accurately perceived context some of the very short extracts upon which reliance is placed by Landzo, and this could assist him in his argument. As I say, all of this would have become obvious if counsel for Landzo had stopped for a moment and looked at the Extracts Tape properly before rushing into print.
As the Extracts Tape is for the use of the Appeals Chamber, and as it complies entirely with the expectations of the parties that the Appeals Chamber will be able conveniently to identify the passages upon which each of the parties relies, the request made for the information sought by Landzo is quite inappropriate. Notwithstanding the absence of any objection by the prosecution, the request is rejected.
This Motion is, on at least one count, the thirty-seventh interlocutory application filed by the parties to this appeal. Many of those applications were substantial in nature - whether or not they were successful - and no-one would deny the parties the right to make such applications. However, other applications have been quite unnecessary. The present Motion has been one of the latter kind. At an informal conference held by me on 7 October last with the representatives of both Landzo and the prosecution in order to resolve another problem in relation to the compilation of the Extracts Tape, I made it clear that the sensible means of resolving any other problems with that compilation would be an informal request for assistance without filing a formal motion, provided that the other party was notified of the request. It is a pity that, even if counsel for Landzo had not understood what the "J" material was after looking at the time codes in the Extracts Tape, they did not take advantage of that offer on this occasion.
The second application
Landzo refers to a statement by the Appeals Chamber in its Order of 4 October that the Extracts Tape was to be "authenticated by its production to the Appeals Chamber by the officer of the Audio-Visual Section who prepared it". He complains that he has not been provided with a copy of the officers "authentication", and he suggests by implication that it would have been improper for the Appeals Chamber to have commenced viewing the Extracts Tape before such an authentication had been provided.14 He then requests a copy of the "authentication" which had been submitted to the Appeals Chamber by the officer of the Audio-Visual Section.15
This complaint and request are misconceived. As the Order of 4 October expressly states (in the passage quoted in the Motion, and repeated above), the authentication of the Extracts Tape was to be by the officers act of producing the Extracts Tape to the Appeals Chamber. No other "authentication" was either required or needed.
The request for the authentication is a frivolous one, and it should not have been made. It is refused.
The requests for information and for a copy of the "authentication" of the Extracts Tape are refused, and the Motion is denied.
Done in English and French, the English text being authoritative.
Dated this 20th day of April 2000,
At The Hague,
Judge David Hunt
[Seal of the Tribunal]
1. Request of the Appellant,
Esad Landzo, for Information Regarding Certain Portions of the Extracts Tape
Produced for Consideration by Appeals Chamber, 7 Apr 2000.
2. Defendant Esad Landzo' s Notice of Appeal, 1 Dec 1998, Fourth Ground of Appeal.
3. Order on the Second Motion to Preserve and Provide Evidence, 15 June 1999, p 3.
4. Order on Esad Landzo's Motion (1) to Vary in Part Order on Motion to Preserve and Provide Evidence, (2) to be Permitted to Prepare and Present Further Evidence, and (3) that the Appeals Chamber Take Judicial Notice of Certain Facts, 4 Oct 1999 ("Order of 4 October"), p 3.
5. Ibid, p 4.
6. Motion, par 5.
7. Ibid, par 6.
8. Ibid, par 6.
9. Ibid, par 3.
10. Ibid, par 3.
11. Ibid, par 3.
12. Prosecution Response to Esad Landzos Request for Information of 7 April 2000, 11 Apr 2000, p 3.
13. Motion, par 1.
14. Ibid, par 2: "Appellant has not been provided with a copy of the officers authentication, but assumes that this was provided to the Appeals Chamber before the Members began viewing it."
15. Ibid, par 7.