IN THE TRIAL CHAMBER
Before: Judge Adolphus G. Karibi-Whyte, Presiding
Judge Elizabeth Odio Benito
Judge Saad Saood Jan
Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh
Decision of: 1 May 1997
ZDRAVKO MUCIC also known as "PAVO"
ESAD LANDZO also known as "ZENGA"
DECISION ON THE MOTION ON PRESENTATION OF EVIDENCE BY THE ACCUSED, ESAD LANDZO
The Office of the Prosecutor
Mr. Eric Ostberg Mr. Guiliano Turone
Ms. Teresa McHenry Ms. Elles van Duschotten
Counsel for the Accused
Ms. Edina Residovic, Mr Ekrem Galiatovic, Mr. Eugene OSullivan, for Zejnil Delalic
Mr. Branislav Tapuskovic, Mr. Micheal Greaves for Zdravko Mucic
Mr. Salih Karabdic, Mr. Thomas Moran, for Hazim Delic
Mr. Mustafa Brackovic, Ms. Cynthia McMurrey, for Esad Landzo
I. INTRODUCTION AND PROCEDURAL BACKGROUND
The trial of the four accused persons, Zejnil Delalic, Zdravko Mucic, Hazim Delic and Esad Landzo commenced before this Trial 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 ("International Tribunal") on 10 March 1997.
On 17 March 1997, in open session, the Trial Chamber heard the evidence, elicited on re-examination, of the second witness called by the Office of the Prosecutor ("Prosecution"), Mr. Mirko Babic. Thereafter, Defence Counsel for the accused, Esad Landzo, expressed her intention to present further evidence to the Trial Chamber by re-cross examining Mr. Babic. The Trial Chamber ruled that the relevant provisions of the International Tribunals Rules of Procedure and Evidence ("Rules") do not envisage re-cross-examination and refused to permit it ("Ruling").
On 24 March 1997, the Defence on behalf of Esad Landzo ("Defence") filed a Motion for Decision on Presentation of Evidence ("Motion") (Official Record at Registry Page ("RP") D3151 - D3155). The Office of the Prosecutor ("Prosecution") filed a response to the Motion ("Response") on 26 March 1997 (RP D3180 - D3183).
On 26 March 1997, both the Prosecution and the Defence (the "Parties") argued their positions orally before the Trial Chamber. The Trial Chamber also heard Defence Counsel for the other accused persons, Zejnil Delalic, Zdravko Mucic and Hazim Delic. On the same date, the Trial Chamber delivered an oral decision, denying the Motion, reserving a written decision to a later date.
THE TRIAL CHAMBER, HAVING CONSIDERED the written submissions and oral arguments of the parties,
HEREBY ISSUES ITS WRITTEN DECISION.
A. APPLICABLE PROVISIONS
1. The Defence brings this Motion for determination by the Trial Chamber pursuant to Rule 85 and Article 21(4)(e) of the Statute of the International Tribunal ("Statute"). These provisions and other provisions relevant to the matter are set out in full below.
Presentation of Evidence
(A) Each party is entitled to call witnesses and present evidence. Unless otherwise directed by the Trial Chamber in the interests of justice, evidence at the trial shall be presented in the following sequence:
(i) evidence for the prosecution;
(ii) evidence for the defence;
(iii) prosecution evidence in rebuttal;
(iv) defence evidence in rejoinder;
(v) evidence ordered by the Trial Chamber pursuant to
(B) Examination-in-chief, cross-examination and re-examination shall be allowed in each case. It shall be for the party calling a witness to examine him in chief, but a Judge may at any stage put any question to the witness.
(C) The accused may, if he so desires, appear as a witness in his own defence.
Rules of Procedure and Evidence
The judges of the International Tribunal shall adopt rules of procedure and evidence for the conduct of the pre-trial phase of the proceedings, trials and appeals, the admission of evidence, the protection of victims and witnesses and other appropriate matters.
Commencement and Conduct of Trial Proceedings
1. The Trial Chambers shall ensure that a trial is fair and expeditious and 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 witnesses.
Rights of the Accused
4. In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality:
. . .
(e) to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.
After the presentation of all the evidence, the Prosecutor may present an initial argument, to which the defence may reply. The Prosecutor may, if he wishes, present a rebuttal argument, to which the defence may present a rejoinder.
A) The rules of evidence set forth in this Section shall govern the proceedings before the Chambers. The Chambers shall not be bound by national rules of evidence.
(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.
(D) A Chamber may exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial.
(E) A Chamber may request verification of the authenticity of evidence obtained out of court.
1. 2. The Defence contends that the Ruling, following on the Trial Chambers interpretation of Rules 85(A) & (B), constitutes a denial to the Defence of the right to further cross-examine Prosecution witnesses after re-examination of the witnesses by the Prosecution. This is in contravention of the guarantee under Article 21(4)(e) of the Statute that the accused shall be entitled "to examine, or have examined, the witnesses against him".
3. The Defence construction of the Rules is that, after the Prosecution has examined its witness-in-chief, the Defence will cross-examine the witness, the Prosecution may or may not continue with re-direct-examination and subsequently, the Defence joins in re-cross-examination. When the Defence presents its case, the positions are reversed, until all questions are exhausted.
4. The Defence contends that the practice outlined in paragraph 3 is the general rule adopted in many judicial cultures, including the United States of America, Canada and Scotland. The procedure results in judicial economy, and eliminates the necessity of recalling a witness.
5. Relying on Article 21(4)(e), the Defence submits that Rule 85(A) which prescribes the procedure for the presentation of evidence, should be construed to include re-cross-examination in each case where evidence is presented as follows:
(i) evidence for the Prosecution
(ii) evidence for the Defence
(iii) Prosecution evidence in rebuttal
(iv) defence evidence in rejoinder
(v) evidence ordered by the Trial Chamber pursuant to Rule 98
This follows on the interpretation of Rule 85(B) which provides that "examination-in-chief, cross-examination and re-examination shall be allowed in each case". The contention is that the language of Rule 85(B) allows re-examination in each case. The Defence therefore argues that if the direct-examiner re-examines, then the cross-examiner should be allowed re-cross-examination.
6. The Defence alleges that because of the Ruling, a conflict now exists between the procedure for presentation of evidence before this Trial Chamber and the differently composed Trial Chamber II in the case of The Prosecutor v Dusko Tadic, T.Ch II. IT-94-1-T, ("Tadic Trial"). Whereas, in the Tadic Trial, re-cross-examination was permitted in the case of each witness, before this Trial Chamber the Defence has been denied re-cross-examination of the first three Prosecution witnesses.
7. The Defence asserts that the Ruling has effects far greater than just the prejudice to the accused in this trial. Because of the said conflict, the four accused persons before this Trial Chamber have fewer privileges than Mr. Dusko Tadic was allowed during his own trial. The Defence contends that this renders the perception of justice within the International Tribunal suspect because the "rules of the game" of the Trial Chambers are not equal.
8. The Prosecution, construing the provisions of Rule 85(B) argues to the contrary. It submits that the Rule clearly contemplates a three part process. It is very clear from the Rule, other Rules of the International Tribunal and it is consistent with the practice of most, if not all national systems, as well as the rationale for examination of witnesses that there is no right to re-cross-examination. The Prosecution declares that re-direct-examination (re-examination) is only meant to clarify matters raised during cross-examination. Generally, therefore, re-cross-examination is hardly necessary. In the exceptional circumstances where important new issues have been raised during re-direct-examination (re-examination), the Trial Chamber may permit re-cross-examination.
9. The Prosecution refers to the obligation on the Trial Chamber, especially in multiple-defendant and multiple-counsel cases, to ensure that the trial proceeds in a fair, expeditious and orderly manner and to ensure that witnesses are treated fairly and humanely. The Trial Chamber has a duty to protect witnesses from unwarranted harassment or intimidation of counsel.
10. The Prosecution submits that the Trial Chamber has generally not permitted re-cross-examination, but it has done so on occasions deemed appropriate under the Rules. The circumstances in the Tadic Trial where re-cross-examination was permitted are different. The Rules are being differently applied. The Prosecution maintains that the Defence has been given wide ambit in their cross-examination. Counsel for Esad Landzo has sometimes exercised the right of cross-examination in violation of Rule 85 and the need to proceed in an expeditious manner. The Prosecution has not considered it necessary to engage in re-direct-examination of witnesses. Re-cross-examination is neither appropriate nor necessary in those situations suggested by the Defence.
11. The Prosecution urges the Trial Chamber not to vacate its Ruling and to continue its practice of not permitting re-cross-examination absent those rare and exceptional circumstances where new and important issues were raised during re-direct-examination. This is in accordance with the Rules and the need to ensure a fair and expeditious trial.
I. General Considerations
12. Recognising the dearth, and indeed, absence of international criminal procedure and aware of the limitations in and shortcomings of the Nürnburg Charter and Rules of Procedure, the Security Council provided in the Statute that the Judges "shall adopt rules of procedure and evidence for the conduct of the pre-trial phase of the proceedings, trials and appeals, the admission of evidence, the protection of victims and witnesses and other appropriate matters" (see Article 15 of the Statute and The Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808, U.N. Doc. S/25704, 3 May 1993 ("Report") at paragraph 83). Thus, the Judges were entrusted with the special responsibility of formulating and elaborating the details of the rules of procedure and evidence to govern every aspect of criminal proceedings conducted by the Trial and Appeals Chambers. This invariably includes enforcement of judgements.
13. Despite this general delegation of legislative power to the Judges, by the Statute, to promulgate rules of procedure and evidence, the exercise of the power was circumscribed and subject to certain obvious limitations. The International Tribunal being a subsidiary organ of the Security Council, the rules of procedure and evidence had to be formulated in conformity with the relevant provisions of the United Nations Charter and be consistent with the principles of justice and international law, the guiding principles of the United Nations. In paragraph 106 of the Report, the Secretary-General emphasised the importance of the International Tribunal respecting internationally recognised standards regarding the rights of the accused, particularly those prescribed in Article 14 of the International Covenant on Civil and Political Rights ("ICCPR"). The rules must therefore be consistent with the provisions of the enabling statute.
14. The desire of the Security Council to ensure that all the civilised legal systems were taken into account in the formulation of the rules of procedure and evidence is implicit in the requirement of Article 13(2)(e) relating to the appointment of Judges of the International Tribunal which states that "the Secretary-General shall forward nominations received to the Security Council. From the nominations received the Security Council shall establish a list of not less than twenty-two and not more than thirty-three candidates, taking due account of the adequate representation of the principal legal systems of the world." This provision envisages inputs from all the principal legal systems of the world in the administration of justice before the International Tribunal.
15. Governments and several organisations, reflecting both the civilian and common law legal systems were generous in submitting memoranda which were of considerable assistance. Finally, the Judges adopted a largely adversarial, instead of the inquisitorial, approach in the Rules. However, in formulating the rules, elements of both the civil and the common law systems capable of promoting justice were considered and adopted. Hence, it is more appropriate in the interpretation of the provisions of a rule to rely essentially on the words of the rule as promulgated, rather than to assume an a priori position as to the origin of the rule. A Rule may have a common law or civilian origin but the final product may be an amalgam of both common law and civilian elements, so as to render it sui generis (see generally, Rule 47: Submission of Indictment; Rule 61: Procedure in Case of Failure to Execute a Warrant; and Rules 66-68 on the disclosure of evidence). Hence, it is possible to discern both adversarial and inquisitorial features in a rule.
16. Rule 85(A) without doubt belongs to the adversarial legal system. It is clearly not inquisitorial. It is, therefore, useful to rely on the practice of common law legal systems for interpretation of its scope and meaning if there is any ambiguity.
II. Interpretation of the Rules - General
17. The fundamental rule for the construction of the provision of a statute, to which all others are subordinate, is that a statute is to be expounded according to the intent of the law maker. In an effort to discover the intention of the law maker many rules to aid interpretation have been formulated. Of the many rules, one of the most familiar and commonly used is the literal or golden rule of construction. By this rule, the interpreter is expected to rely on the words used in the Statute, and to give such words their plain natural import in the order in which they are placed. The rationale is that the law maker should be taken to mean what is plainly expressed. The underlying principle which is also consistent with common sense is that the meaning and intention of a statutory provision should be discerned from the plain and unambiguous expression used therein rather than from any notions which may be entertained as just and expedient.
18. Hence, where the language of a provision is clear and plain, admitting only of one meaning there is no need for construction. The clear, unambiguous meaning so understood should be applied. When the meaning of a provision is plain, it is scarcely the province of the reader to scan its wisdom or policy. The duty is to expound the law as it stands according to the real sense of the words. Vattel, in his Law of Nations or the Principles of Natural Law (trans. Fenwick, Classics of International Law, 1916 Bk. II at s. 263) observed that it is not allowable to interpret what has no need of interpretation. It is difficult to disagree with this view. The Trial Chamber entirely agrees.
19. It is appropriate to correct an initial error of all counsel in the construction of the provisions of the Rules, particularly Rule 85(B). Even a cursory reading of Rule 85(B) shows that the expressions used therein are examination-in-chief, cross-examination, and re-examination in that order. These are the only expressions used to describe the nature of the examination of the witness. Counsel, instead of adhering to these expressions, have preferred to introduce the expressions, direct-examination for examination-in-chief, re-direct-examination for re-examination. In uniformity, they use the expression re-cross-examination for further cross-examination. These are not expressions used in Rule 85(B) which is the subject matter of construction.
20. It is an elementary but fundamental rule of interpretation of a statute that the expressions used in the provision must be adhered to. It is one of the ways of enabling the interpreter to discover the intention of the law maker. The expressions direct-examination, re-direct-examination and re-cross-examination not being words used in the Rule are exotic and aliunde, and they should not have been imported. The corollary to the literal rule of construction is that nothing should be added to or taken from a statute, unless there are adequate grounds to justify the inference that the legislator intended something which it omitted to express. In Thompson v Goold (1910) AC. 4089 at p. 420, Lord Mersey, speaking of English Law, stated that "[i]t is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity, it is a wrong thing to do."
21. The Trial Chamber accepts and adopts this view. We have not been shown that the law maker intended something in the nature of these expressions which were omitted. Counsel are obviously not entitled, and are wrong to have read into the Rule words which are not there, and which cannot by necessary implication be read into the Rule to give it sense and meaning. The expressions may belong to some common law jurisdiction where they are appropriate. The language of Rule 85, which is clear and unambiguous, can ill afford any modification, alteration or qualification without completely changing the intention of the law maker. It is a wrong thing to do.
22. It is pertinent and useful to state precisely the meanings of the expressions used in Rule 85(B), namely, examination-in-chief, cross-examination and re-examination. Examination-in-chief is the process whereby a party who has called a witness to give evidence in support of his case elicits from such witness through questions evidence relevant to the issues favourable to his case. In other words, examination-in-chief is always conducted by the party calling a witness to testify. Cross-examination, on the other hand, is the examination of a witness by questions by the adversary against whom the witness has testified. The object of cross-examination is twofold, first to elicit information concerning facts in issue, or relevant to the issue that is favourable to the party on whose behalf the cross-examination is conducted, and secondly, to cast doubt upon the accuracy of the evidence-in-chief given against such party. Re-examination is the process whereby the party who has examined a witness-in-chief is allowed to put questions to correct matters or new facts arising out of cross-examination.
23. Section 187 of the Evidence Act of Nigeria (1990), has defined the common law expressions concisely and with commendable simplicity in the following terms.
(1) the examination of a witness by the party who calls him shall be called his examination-in-chief.
(2) the examination of a witness by a party other than the party who calls him shall be called his cross-examination.
(3) Where a witness has been cross-examined, and is then examined by the party who called him, such examination shall be called his re-examination.
III. Interpretation of Rule 85
24. The view of the Defence is that, as a general rule, the right to examine-in-chief, cross-examine, re-examine and re-cross-examine exists, in each case where evidence is presented. The Prosecution disagrees, and submits that no such right can be gathered from Rule 85 and other rules of the International Tribunal. The right to re-examine is only meant to clarify matters raised during cross-examination. There is no further need for re-cross-examination. In exceptional circumstances, where important new issues have been raised during re-examination, the Trial Chamber may allow further cross-examination on such issues.
25. Rule 85 which is entitled "Presentation of Evidence", has three paragraphs, A, B and C. In construing the Rule, it is useful to consider all the paragraphs together. The meaning and scope of the Rule can be gathered from such a composite reading. It appears to the Trial Chamber that paragraph (A) deals with the order of presentation of evidence; (B) is concerned with the order for examining witnesses, and (C) enables the accused to give evidence in his own defence if he so wishes. By virtue of Rule 85(A), unless otherwise directed by the Trial Chamber, presentation of evidence at the trial shall begin with evidence for the Prosecution. On the close of the evidence for the Prosecution the Defence shall lead evidence. On the conclusion of the evidence for the defence, the Prosecution shall lead evidence in rebuttal. The Defence will follow by leading evidence in rejoinder. The above, in the main, is the evidence led by the Prosecution and the Defence. However, the Trial Chamber may, if it has any reasons, call upon either party to produce additional evidence, or summon witnesses and order their attendance. The words of Rule 85(A) are clear and unambiguous.
26. Rule 85(B) is also plain, clear and unambiguous as to the nature of the questioning of the witnesses. It is true that Rule 85(B) only describes the meaning of examination-in-chief, when it states, "it shall be for the party calling a witness to examine him in chief". Nothing is stated therein about "cross-examination" and "re-examination". Finally, there is the discretion vested in the Judges of the Trial Chamber by Rule 85(B) to put questions to a witness at any stage of his examination. Accordingly, a Judge, as an impartial arbiter, may put questions to a witness, during examination-in-chief, cross-examination or re-examination, to clarify issues which remain unclear after an answer by the witness.
27. The gravamen of the Defence contention is that there is re-cross-examination as of right after re-examination by the Prosecution or the Defence as the case may be. The contention is founded on the use of the expression in each case in Rule 85(B). The Defence also contends that Article 21(4)(e) of the International Tribunals Statute which enables the accused "to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him." is violated by the Ruling.
28. The Defence appears to the Trial Chamber to have misunderstood and misconceived the provision construed. The Trial Chamber has already pointed out that Rule 85(A) deals with the order of presentation of evidence simpliciter, and does not concern the order and scope of examinations of witnesses. Rule 85(B) is concerned with examination of witnesses and proprio vigore relates to Rule 85(A). The expression in each case in Rule 85(B) refers to the examination of witnesses during the presentation of evidence. If so construed and understood, the relationship between the order of presentation of evidence and the order of examination of witnesses becomes clear. The expression in each case, as we have observed, appropriately refers to the presentation of evidence and does not confer an additional right to examine witnesses. Thus there shall be examination-in-chief, cross-examination, and re-examination in each case of the presentation of evidence by the Prosecution or the Defence. This is without doubt the correct interpretation of the expression in each case in Rule 85(B).
29. The Defence contention that refusing further cross-examination after re-examination violates Article 21(4)(e) appears to the Trial Chamber a misconception about the operations of the practice. Rule 85(A) illustrates a clear equality of arms in the presentation of evidence. This is because the Defence is entitled to present its case in an identical manner to the Prosecution. The Defence is entitled to examine-in-chief, and re-examine its own witnesses, as the Prosecution. There is therefore no limitation in the exercise of the rights of accused persons because they were refused exercise of rights not available to them, in the rules of procedure. There is, therefore, in our considered opinion, no violation of Article 21(4)(e).
30. The Trial Chamber does not hold the view and has never stated, that a party can never be allowed to further cross-examine a witness after the re-examination of the witness. It is important to reiterate the principle that as a general rule the testimony of a witness ends with his re-examination, absent any new matter during re-examination. See Alford v United States, 282 U.S. 687, 694 (1931) and the English case of Prince v Samo (1838) 7 Ad. & E. 627. Thus, without something new, a party has the last word with his own witness. However, where during re-examination new material is introduced, the opposing party is entitled to further cross-examine the witness on such new material. Similarly, where questions put to a witness by the Trial Chamber after cross-examination raise entirely new matters, the opponent is entitled to further cross-examine the witness on such new matters. The rationale is clear in the sense that further cross-examination is to re-examination what cross-examination is to examination-in-chief. Hence, to deny further cross-examination when new material is raised in re-examination is tantamount to a denial of the right to cross-examination on such new material.
31. We have not found any conflicts between the procedure for presentation of evidence before this Trial Chamber and the procedure adopted during the Tadic Trial. The Trial Chamber has, indeed, permitted further cross-examination, in the exercise of its discretion, in those cases where new matters have been raised during re-examination or where questioning by the Trial Chamber has given rise to further cross-examination. These are accepted exceptions to the general rule.
32. The Trial Chamber has read Rule 85 according to its plain common sense meanings which are clear and unambiguous. The Trial Chamber does not consider that the words require any qualification to disclose their meanings. It is satisfied that the drafting of Rule 85 has attained the degree of precision which a person reading in good faith can easily understand. Indeed, in this case, even a person reading in bad faith cannot misunderstand.
For the foregoing reasons, THE TRIAL CHAMBER, being seised of a Motion filed by the Defence, and
PURSUANT TO RULES 54 and 85,
HEREBY DENIES the Motion.
Done in both English and French, the English text being authoritative.
Adolphus Godwin Karibi-Whyte
Dated this first day of May 1997
At The Hague
[Seal of the Tribunal]