IN THE APPEALS CHAMBER
Judge Rafael Nieto-Navia, Presiding
Judge Wang Tieya
Judge Almiro Simões Rodrigues
Judge David Hunt
Judge Mohamed Bennouna
Mrs Dorothee de Sampayo Garrido-Nijgh
22 April 1999
Zejnil DELALIC, Zdravko MUCIC (aka PAVO), Hazim DELIC
& Esad LANDZO (aka ZENGA)
SEPARATE OPINION OF JUDGE DAVID HUNT
ON MOTION BY ESAD LANDZO TO PRESERVE AND PROVIDE EVIDENCE
The Office of the Prosecutor:
Mr Yapa Upawansa
Mr Christopher Staker
Mr Rodney Dixon
Counsel for the Respondents and Cross-Appellants:
Mr John Ackerman, Mr Eugene OSullivan, for Zejnil Delalic
Ms Nihada Buturovic, Mr Howard Morrison, for Zdravko Mucic
Mr Salih Karabdic, Mr Thomas Moran, for Hazim Delic
Ms Cynthia Sinatra, Mr Peter Murphy for Esad Landzo
1. The issues raised in this interlocutory application are adequately described in the Decision of the Appeals Chamber. I agree with that Decision that the appellants Motion should be dismissed, but I prefer to express my own reasons for that result. This appeal deals with an important issue of practice within the Tribunal, and I believe that the parties in particular, the unsuccessful party are entitled to know the reasons which have led to such a result. In that way, there should be a greater understanding and acceptance of what the Appeals Chamber has held. I emphasise, however, that these are my reasons, and that they do not necessarily reflect the reasons of the other judges of the Appeals Chamber in this case.
2. I agree, for the reasons given in the Decision, with the rejection of the submissions made by the prosecution that the relevant ground of appeal should be dismissed summarily or, alternatively, that the decision on the Motion should be deferred. I agree also that the application for a copy of the video recording should be refused. My reasons for the refusal at this stage of an order for access to that video recording follow.
3. It is the fundamental obligation of this Tribunal, imposed by Articles 20 and 21 of its Statute, to ensure the fair and expeditious trial of those indicted before it. The Tribunal also has an inherent power, deriving from its judicial function, to control its proceedings in such a way as to ensure that justice is done1. This obligation and inherent power become particularly relevant when the Tribunal is dealing with matters of practice which arise in those proceedings, for it is these matters which primarily ensure that the trial proceeds fairly and expeditiously. They are expressed, in part, in the discretion given to the Tribunal by Rule 54 of the Rules of Procedure and Evidence to do such things as are necessary for the preparation and conduct of the trial. The provisions of Rule 54 so far as they relate to practice matters are equally applicable to the preparation and conduct of an appeal (Rule 107). It is against that background that the present application must be determined.
4. A party is not entitled to have an order made to produce material so that he may have access to it simply because he says that the material is relevant to an issue in the trial or appeal. He is not entitled to conduct a fishing expedition in the sense that he wishes to inspect the material in order to discover whether he has any case at all to make2. An order to produce is not the same as obtaining discovery against a party3. Before obtaining an order for access to material where his right to such access is not conceded, the party must identify expressly and precisely the legitimate forensic purpose for which access is sought4. It should be demonstrated that it is likely - or at least "on the cards" that the material produced will materially assist the case of the party seeking access5. Something is "on the cards" if there is a good chance that it will happen.
5. The authorities which I have cited in support of the propositions stated in the previous paragraph are all from common law systems, but that is only because I am more familiar with them6 Those authorities, however, do no more than state common sense solutions to matters of practice which constantly arise in both civil and criminal litigation. Common sense is a universal touchstone in relation to matters of practice, which are important to the effective operation of any court or tribunal. Unique though the characteristics of international criminal litigation may be,7 even an international tribunal such as this Tribunal must apply the canons of common sense when ensuring that its operation is effective to bring about the fair and expeditious trial of those indicted before it. There is nothing arising from this Tribunals international character which affects the validity of that proposition so far as it relates to matters of practice, such as may arise in litigation between sovereign States. It cannot be emphasised too strongly that this Tribunal deals with criminal trials and not with litigation between sovereign States, and that save for some perhaps analogous problems such as those arising from the non-compliance by a State with orders made against it, with which the Blaskic Subpoena Decision8 was concerned the practice of this Tribunal is primarily concerned with ensuring the fair and expeditious disposition of criminal trials. In those circumstances, there is little relevance to matters of practice within the Tribunal of the oft quoted passage from that decision concerning the confusion which may be caused by the adoption in an international tribunal of approaches prevailing in national law systems,9 where those approaches will assist in ensuring the fair and expeditious disposition of the proceedings before the Tribunal.
6. Common sense must be permitted to prevail in relation to practice matters arising in international criminal litigation, and it cannot be disregarded simply because it also prevails in relation to practice matters in some national law systems. For myself, I have no doubt that it will assist the effective operation of this Tribunal in ensuring the fair and expeditious trial of those indicted before it if parties are prevented from using orders to produce to engage in fishing expeditions and if they are obliged to identify a legitimate forensic purpose before being granted access to material where access is not conceded.10
7. How then is the legitimate forensic purpose to be established? It is a common practice in interlocutory matters in this Tribunal for various factual matters to be merely asserted in the Motion, in the other partys Response and in the Reply, without evidence being given to establish those factual matters. Such a practice works well only where there is no issue in relation to the factual matters alleged. Where access to material sought by an order to produce is not conceded, and where the factual basis for an asserted legitimate forensic purpose is also in issue, there must be sworn, first hand and detailed affidavit evidence which demonstrates that such access is likely to materially assist the case of the party seeking access, or that there is at least a good chance that it will give that assistance. This necessarily entails evidence which demonstrates that the party already has a case, and is not "fishing" in the hope of establishing one. The case which the party must show as already being in existence need not be demonstrated by any particular standard of proof, such as a prima facie case. That is too high a standard; the case may exist without the means of formal proof, and access is being sought in order to obtain that formal proof. What must be demonstrated by way of evidence is that the party has sufficient of a case as to make it clear that the access sought will materially assist him in proving it.
8. In the present case, such evidence would have to suggest that the Presiding Judge was indeed asleep during substantial portions of the trial, so that the application for access can be seen as no more than seeking a convenient and possibly uncontroversial form of evidence to establish the truth of the allegation made. The evidence should be of facts perceived by the deponents themselves; it would not be appropriate for any affidavit to state a conclusion reached by the deponent from those perceived facts, for it is for the Appeals Chamber to draw its own conclusions from the perceived facts which it accepts. So that there can be no misunderstanding, I should make it clear that there is, in my view, a substantial difference between what is required to establish a legitimate forensic purpose for having access to the video recording and what is required to establish the factual basis of the ground of appeal, that the judge was asleep. Success in relation to the former does not guarantee success in relation to the latter.
9. I therefore agree, for the reasons which I have given, with the Decision of the Appeals Chamber that such evidence is required before an order is made to produce the video recording for inspection. There is no such evidence in the present case. Allegations made in the appellants Motion or in his Reply to the prosecutions Response to the Motion do not constitute such evidence, even less do allegations made in a ground of appeal. This allegation is not one of which it is appropriate for the Appeals Chamber to take judicial notice, as the appellant has suggested.
10. I also agree with the Decision of the Appeals Chamber that an issue in the appeal will be whether, by the appellants silence at the trial, there has been a waiver by him of his right to complain on appeal of the alleged conduct of the Presiding Judge. When that issue arises at the hearing of the appeal, it would not, in my provisional view, be appropriate for the appellant to rely, as he has attempted in this Motion to rely, upon admissions alleged to have been made by the Legal Officer of the Trial Chamber and the former President of the Tribunal. Such evidence would be no more than hearsay and as both the President and the Legal Officer are protected by immunity from giving evidence taking issue with what they are alleged to have said (the President by a judicial immunity and the Legal Officer by a functional immunity in respect of the work which he performs in relation to the Trial Chamber) the hearsay would appear to have no probative value. If that be so, it would therefore not be admissible pursuant to Rule 89(C) of the Rules of Procedure and Evidence11. There appears to be no other basis upon which such evidence would be admissible, although I reserve any concluded view because its admissibility is a matter which will have to be determined in the appeal itself.
Done in English and French, the English version being authoritative.
Done this 22nd day of April 1999
At The Hague
Judge David Hunt
[Seal of the Tribunal]
1. See, generally, in relation to such inherent power:
Northern Cameroons Case (ICJ Reports 1963, p 29) and the Nuclear Tests Case
(ICJ Reports 1974, pp 259-260, para 23), followed by the Appeals Chamber of this
Tribunal in the Blakic Subpoena Decision: Prosecutor v Blakic,
Case IT-95-14-AR108bis, Judgment on Request of Republic of Croatia for Review
of Decision of Trial Chamber II of 18 July 1997, 29 Oct 1997, footnote 27 at
2. The term "fishing expedition" has been defined as one where the party had no evidence that fish of a particular kind were in the pool but wanted to drag the pool in order to find out whether there were any such fish there or not: Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250 at 254. See also Hennessy v Wright (1888) 24 QBD 445 at 448. The term has been recognised by senior appellate courts: Air Canada v Secretary of State for Trade  2 AC 394 at 439 (per Lord Wilberforce); Alister v The Queen (1984) 154 CLR 404 at 414 (per Gibbs CJ, and see also Brennan J at 455-456).
3. Burchard v Macfarlane  2 QB 241 at 247; Commissioner for Railways v Small (1938) 38 SR(NSW) 564 at 573-574.
4. The term "legitimate forensic purpose" is well recognised in the law relating to subpoenas (or orders to produce): see, for example, Burmah Oil Co Ltd v Bank of England  AC 1090 at 1113-1114 and Attorney General v Stuart (1994) 34 NSWLR 667 at 681.
5. Alister v The Queen (1984) 154 CLR 404 at 414. This test was accepted by the NSW Court of Criminal Appeal as satisfying the requirement that there be some legitimate forensic purpose for having access to the documents: Regina v Saleam (1989) 16 NSWLR 14 at 17-18.
6. I acknowledge that those authorities are inconsistent with the practice permitted in civil proceedings in the United States: see, for example, Hickman v Taylor 329 US 495 (1947) and Rio Tinto Zinc Corp v Westinghouse Electric Corp  AC 547 at 609. I do not, with respect, believe that the American model provides any assistance in relation to the fair and expeditious trial of international criminal litigation.
7. Prosecutor v Blakic, Case IT-95-14-AR-108bis, Judgment on Request of Republic of Croatia for Review of Decision of Trial Chamber II of 18 July 1997, 29 Oct 1997, para 23.
8. Prosecutor v Blakic, Case IT-95-14-AR-108bis, Judgment on Request of Republic of Croatia for Review of Decision of Trial Chamber II of 18 July 1997, 29 Oct 1997.
9. Ibid, para 40.
10. There is a limited acceptance by this Appeals Chamber of the concept of legitimate forensic purpose, although not by that name, in the Blakic Subpoena Decision, at para 32.
11. Prosecutor v Aleksovski, Case IT-95-14/1-AR73, Decision on Prosecutors Appeal on Admissibility of Evidence, 16 Feb 1999, para 15.