Mr. Grant Niemann

Ms. Teresa McHenry

Mr. Guiliano Turone

Ms. Edina Residovic and Mr. Eugene O’Sullivan, for Zejnil Delalic

Mr. Zeljko Olujic and Mr. Michael Greaves, for Zdravko Mucic

Mr. Salih Karabdic and Mr. Thomas Moran, for Hazim Delic

Mr. John Ackerman and Ms. Cynthia McMurrey, for Esad Landzo

1. On 30 January 1998, this Bench of the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (respectively, "the Bench" and "the International Tribunal") was assigned by the President of the International Tribunal to examine an application for leave to appeal from Zejnil Delalic ("the Applicant"), one of the defendants in Prosecutor v. Delalic et al. (respectively, "the Delalic Application" and "the Celebici case"), pursuant to Rule 73 of the Rules of Procedure and Evidence of the International Tribunal ("the Rules"). The Delalic Application was filed on 28 January 1998  challenging a Decision on the Motion of the Prosecution for the Admissibility of Evidence rendered on 19 January 1998 and filed on 21 January 1998 by the Trial Chamber currently conducting the trial in the Celebici case ("the Decision").

2. Members of the Austrian police in Vienna, in their appearances before the International Tribunal, have testified that twelve folders of documents and several videotapes were seized from the premises of the company "Inda-Bau", and four videotapes and certain documents were seized from the apartment of one of the accused, Zdravko Mucic. In an oral decision of 12 September 1997, the Trial Chamber admitted the twelve folders into evidence but not their contents. The Trial Chamber was satisfied that the Office of the Prosecutor ("Prosecution") had established the chain of custody. District Inspector Thomas Moerbauer, one of the officers present during seizure of the evidence from "Inda-Bau", testified before the Trial Chamber about how he had subsequently examined and prepared an index to the documents contained in the twelve folders. In the course of his testimony, Inspector Moerbauer was presented by the Prosecution with a number of documents and asked to verify them as the documents contained in the twelve folders seized from the premises of "Inda-Bau".

3. In the Decision, the Trial Chamber made two rulings:

(a) it ruled as admissible documents seized from the premises of "Inda-Bau"; and

(b) it ruled as admissible three videotapes seized from the apartment of the accused Zdravko Mucic, and two videotapes seized from the premises of "Inda-Bau".

4. The Applicant challenges the Decision substantially on the grounds that:

(a) the Trial Chamber erred in admitting the documents without requiring them to be authenticated;

(b) the Trial Chamber erred in its interpretation and application of Rule 89;

(c) the Trial Chamber erred in admitting the entire videotapes and not just the segments tendered by the Prosecution; and

(d) this matter could not be satisfactorily resolved by an appeal at the close of the case.

5. The Prosecution submitted its Response to the Delalic Application on 9 February 1998.

 

6. The dispute pending before the Bench is in substance concerned with the admissibility of documentary and videotape evidence. Procedurally, the question is whether leave to appeal may be granted by the Bench in accordance with Rule 73. Thus it is the application of the provisions of Rule 73 that is for consideration first; only if the requirements of Rule 73 are met may the full Appeals Chamber consider the merits of the Delalic Application.

 

A. Rule 73

7. Rule 73, entitled "Other Motions", provides:

(A) After a case is assigned to a Trial Chamber, either party may at any time move before the Chamber by way of motion, not being a preliminary motion, for appropriate ruling or relief. Such motions may be written or oral, at the discretion of the Trial Chamber.

(B) Decisions on such motions are without interlocutory appeal save with the leave of a bench of three Judges of the Appeals Chamber which may grant such leave

(i) if the decision impugned would cause such prejudice to the case of the party seeking leave as could not be cured by the final disposal of the trial including post-judgement appeal;

(ii) if the issue in the proposed appeal is of general importance to proceedings before the Tribunal or in international law generally.

(C) Applications for leave to appeal shall be filed within seven days of the filing of the impugned decision.

8. It is clear that the provisions of Sub-rules 73 (B) and (C) are those which govern the Delalic Application. Sub-rule 73 (B) consists of two exceptions to a general bar on interlocutory appeal of all Rule 73 motions. Either the impugned decision must have prejudiced the case of the moving party to the extent that the consequences may not be cured by the final disposal of the trial; or the issue in the motion must be of general importance to the proceedings before the International Tribunal or in international law generally. Sub-rule 73 (C) provides the time-limit for filing applications under Rule 73.

9. With regard to an application under Sub-rule 73 (B)(i), in order to make out a case successfully for the granting of leave to appeal, an applicant must establish that the impugned decision is so prejudicial to the case that the detrimental effect could not be rectified by the Trial Chamber in its judgement or by the Appeals Chamber in post-judgement appeal.

B. Submissions of the Applicant

10. The Applicant contends that the admitted documents should have been excluded by the Trial Chamber because they are completely unreliable. The Applicant challenges the Trial Chamber's oral decision of 12 September 1997 in which it held that the documents were seized from the premises of "Inda-Bau" and accepted that the Prosecution had established the chain of custody. The Applicant maintains that Inspector Moerbauer should not have been allowed to rely on the inventory he had prepared to identify the documents before the Trial Chamber. Further, since Inspector Moerbauer had no independent recollection of the documents apart from the inventory, the documents' origins are unaccounted for. Hence, in the Applicant's view, the documents are completely unreliable and should have been excluded under Sub-rule 89 (D) because the need to ensure a fair trial substantially outweighs the probative value of the documents.

11. The Applicant also claims that the Trial Chamber erred in its interpretation and application of Rule 89. The Applicant contends that proof of reliability must be established for every piece of potential evidence before its relevance and probative value can be assessed to determine its admissibility. The Applicant asserts that Rule 89 requires the Trial Chamber to satisfy itself of three prerequisites: the relevance and probative value of evidence under Sub-rule 89 (C) as well as its authenticity under Sub-rule 89 (E).

12. The Applicant further submits that the Trial Chamber erred by admitting into evidence documents whose authors did not appear as witnesses, thereby depriving the accused of his right to cross-examine witnesses brought against him, as provided for in Article 21, paragraph 4 (e), of the Statute of the International Tribunal ("the Statute"), and of his right to a fair trial, as guaranteed by Article 20, paragraph 1, of the Statute.

13. With respect to two of the videotapes found at the apartment of the accused Zdravko Mucic, the Applicant submits that the Trial Chamber erred in admitting the entire videotapes instead of the video segments tendered by the Prosecution.

 

C. Response of the Prosecution

14. In responding to the Delalic Application, the Prosecution has found it unnecessary to elaborate on the merits of the Applicant’s submissions with respect to the admissibility of documentary and videotape evidence, taking the position that the arguments had already been advanced before the Trial Chamber which had addressed each of them sufficiently. Instead, the Prosecution focuses on whether the Applicant has been able to establish that the Delalic Application should be heard under Sub-rule 73 (B)(i). The Prosecution maintains that the Applicant has not shown any prejudice caused by the Trial Chamber’s rulings. It notes that the Trial Chamber has reserved judgement on the weight of the admitted evidence until all the evidence has been presented, at which time it may decide to attach no weight whatsoever to this evidence. Furthermore, any detrimental effect to the Applicant's case caused by the admission of such evidence could be rectified by post-judgement appeal since it is within the purview of the Appeals Chamber to remit the case back to the Trial Chamber for reconsideration or for re-trial.

15. The Prosecution also disputes the Applicant's contention that his motion should be considered by the Appeals Chamber under Sub-rule 73 (B)(ii). While conceding that the issues raised are of general importance to the Defence in the Celibici case, the Prosecution argues that they are not of general importance to proceedings before the International Tribunal as a whole or in international law generally. In support of this position, the Prosecution submits that a motion should not lie from the Decision because it is consistent with the settled law of the International Tribunal.

III. THE FINDINGS OF THE BENCH

 

16. Sub-rule 73 (C) requires an application for leave to appeal be filed within seven days of the filing of the impugned decision. The Decision was filed on 21 January 1998 and the Delalic Application was filed on 28 January 1998. Therefore, the Bench finds that the Delalic Application was filed in time.

17. One of the substantive issues raised by the Delalic Application concerns the authenticity of the documentary evidence. The Applicant advanced this same argument before the Trial Chamber which clearly answered it in the Decision in which it stated that the issue goes to the weight to be attached to such evidence at the end of trial, and is not one that affects the admissibility of such evidence. In determining whether the Prosecution has met the burden of proof in the case, the Trial Chamber will apply the law to the factual findings. To make these findings, the Trial Chamber has access only to the admitted evidence. At the stage of admission of evidence, the implicit requirement of reliability means no more than that there must be sufficient indicia of reliability to make out a prima facie case.

18. The Applicant's claim that the documents are completely unreliable is groundless as the Prosecution has demonstrated the following indicia of reliability before tendering the documents:

(a) several members of the Austrian police testified that the documents were found at the premises of "Inda-Bau", a company linked to the Applicant, and on whose premises he was seen by the Austrian police a few days before the seizure; and

(b) the pattern of events described in the documents is more or less consistent in the context of the documents as a whole, and generally corresponds to that described in witness testimony and other documents previously admitted into evidence.

19. In the Decision, the Trial Chamber admitted the tendered documents into evidence pursuant to Sub-rule 89 (C). In interpreting this provision, the Trial Chamber endorsed the holding of a majority of Trial Chamber II (Judge McDonald and Judge Vohrah, with separate opinion by Judge Stephen) in Prosecutor v. Dusko Tadic that the Rules implicitly require that reliability be a component of admissibility. The Trial Chamber in the present case observed:

it is an implicit requirement of the Rules that the Trial Chamber give due considerations (sic) to indicia of reliability when assessing the relevance and probative value of evidence at the stage of determining its admissibility.

20. It is to be noted that the Trial Chamber in this case stated that a decision to admit a piece of evidence does not influence in any way the weight it would later attach to that evidence. The Applicant appears to have confused a question relating to admissibility with that as to weight. The implicit requirement that a piece of evidence be prima facie credible - that it have sufficient indicia of reliability - is a factor in the assessment of its relevance and probative value. To require absolute proof of a document's authenticity before it could be admitted would be to require a far more stringent test than the standard envisioned by Sub-rule 89 (C).

21. It is clear on the record that the Trial Chamber found that sufficient indicia of reliability had been established. The Applicant, in the view of the Bench, has failed to show any prejudicial effect caused to its case by the Decision and has, accordingly, failed to meet the requirements of Sub-rule 73 (B)(i).

22. As to the Applicant’s claim of a right to cross-examine the author of the document, the Decision does not affect, in any way, the accused's right to confront the witnesses against him pursuant to Article 21, paragraph 4 (e), of the Statute. As for the assertion that the Decision deprives the Applicant of his right to a fair trial as provided for by Article 20, paragraph 1, of the Statute, no reasons have been furnished to support the claim that this provision should be interpreted to require the cross-examination of a document's author before it could be admitted into evidence. On the contrary, to require the attendance of the authors at this stage of the proceedings would be, in the view of the Bench, to require an extremely high standard for the purposes of a fair trial envisioned by Article 20, paragraph 1. Hence this submission of the Applicant also has failed to fulfil the requirements of Sub-rule 73 (B)(i).

23. It is clear that the Trial Chamber ruled to admit the entire videotapes after satisfying itself that the Prosecution had established the chain of custody of the tapes. The Chamber stressed that this ruling was by no means determinative of the weight it will attach later to this evidence, if any. For the Chamber properly to assess the weight of the relevant videotape segments, it must have access to the entire videotapes so that it can evaluate the significance of the segments. The Bench is of the view that the Applicant has failed to show that the ruling has in any way prejudiced its case and, accordingly, finds that the Delalic Application has failed to meet the requirements of Sub-rule 73 (B) (i) with regard to the admission of the videotapes.

24. Since the admissibility of evidence plays a considerable role in the outcome of any case, it does raise concerns about the proper conduct of criminal proceedings before the International Tribunal and fairness to the accused. The Bench will now consider whether the Applicant has made out a case for leave to appeal under Sub-rule 73 (B)(ii).

25. The Applicant submits that where the tendering party has not proven the authenticity of a document then that document is necessarily irrelevant and of no probative value; hence it should be excluded. Sub-rule 89 (E), whereby "[a] Chamber may request verification of the authenticity of evidence obtained out of court", cited by the Applicant, does not operate as a pre-condition to bar the admissibility of evidence under Sub-rule 89 (C). There is no legal basis for the Applicant's argument that proof of authenticity is a separate threshold requirement for the admissibility of documentary evidence. Since the Decision is consistent with the settled law of the International Tribunal, the Applicant’s motion does not raise any issue of general importance to proceedings before the International Tribunal as required by Sub-rule 73 (B)(ii) for consideration by the full Appeals Chamber.

III DISPOSITION

 

For the foregoing reasons, pursuant to Rule 73 of the Rules, THE BENCH OF THE APPEALS CHAMBER UNANIMOUSLY REJECTS the Application by Zejnil Delalic for leave to appeal against the Decision of the Trial Chamber on the Motion of the Prosecution for the Admissibility of Evidence.

Done in both English and French, the English text being authoritative.

___________________

Lal Chand Vohrah

Presiding Judge

Dated this fourth day of March 1998

At The Hague

The Netherlands.

[Seal of the Tribunal]