IN THE TRIAL CHAMBER
Before: Judge Adolphus Karibi-Whyte, Presiding
Judge Elizabeth Odio Benito
Judge Saad Saood Jan
Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh
Decision of: 28 May 1997
ZDRAVKO MUCIC, also known as "Pavo"
ESAD LANDZO, also known as "Zenga"
DECISION ON THE MOTION TO ALLOW WITNESSES
K, L AND M TO GIVE THEIR TESTIMONY BY MEANS
OF VIDEO-LINK CONFERENCE
The Office of the Prosecutor:
Mr. Eric Ostberg Mr. Giuliano Turone
Ms. Teresa McHenry Ms. Elles van Dusschoten
Counsel for the Accused:
Ms. Edina Residovic, Mr. Ekrem Galijatovic, Mr. Eugene OSullivan, for Zejnil Delalic
Mr. Zeljko Olujic, Mr. Michael Greaves, for Zdravko Mucic
Mr. Salih Karabdic, Mr. Thomas Moran, for Hazim Delic
Mr. John Ackerman, Ms. Cynthia McMurrey, for Esad Landzo
On 3 April 1997, the Office of the Prosecutor ("the Prosecution") filed a Motion to Allow Witnesses K, L and M to give their Testimony by means of Video-Link Conference (Official Record at Registry Page ("RP") D3216-D3219) ("the Motion") for consideration by this Trial Chamber of the International Criminal 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"). The Defence for the accused Hazim Delic filed its Response to Motion to Allow Witnesses K, L and M to Testify by Video-Link Conference ("the Response") on 21 April 1997 (RP D3408-D3410).
having considered the written submissions of the Prosecution and the Defence for the accused Hazim Delic, and after hearing the Prosecution and the Defence for all four accused persons in oral argument on 22 April 1997, the Trial Chamber delivered an oral decision on that date, granting the Motion, and reserved the written decision for a later date.
THE TRIAL CHAMBER HEREBY ISSUES ITS WRITTEN DECISION.
1. The Prosecution
1. In the Motion, the Prosecution requests that three of its witnesses, designated the pseudonyms K, L and M, be permitted to give their testimony by means of a video-link in order that they may testify away from the seat of the International Tribunal in The Hague. During oral argument on the Motion, the Prosecution withdrew its request in respect of witness M on the basis that he was no longer unable to appear. This does not affect the Motion in relation to witnesses K and L, who, the Prosecution states, fear potentially serious consequences to themselves and their families if they are required to testify at the seat of the International Tribunal. They have indicated that, due to personal circumstances, they would be able to testify only by means of such video-link.
2. The Prosecution contends that the two conditions for the granting of leave to testify by video-link conference, established in the case of Prosecutor v. Dusko Tadic (IT-94-1-T), Decision on the Defence Motions to Summon and Protect Defence Witnesses, and on the Giving of Evidence by Video-Link, 25 June 1996 (RP D9148-D9162) ("Tadic Decision"), are satisfied in the present case. The first of these conditions is that the testimony of these particular witnesses is sufficiently important to make it unfair to the Prosecution to proceed without it. The second condition is that the witnesses are unable or unwilling to come to the seat of the International Tribunal. Indeed, the Prosecution asserts that the testimony of witnesses K and L is essential to its case, and that for medical reasons these witnesses are unable and unwilling to travel to The Hague. During oral argument, the Prosecution asserted that the medical conditions are serious and would not substantially improve even with treatment over a period of time. Thus the inability of the witnesses to appear would not disappear even if they were not called until the end of the Prosecutions case.
2. The Defence
3. In its Response, the Defence for the accused Hazim Delic does not object to the Motion, provided that the conditions set out in the Tadic Decision are satisfied. It reiterated its position during oral argument on 22 April 1997. Defence Counsel for the other accused persons, however, registered their oral objection to the Motion on that date. Counsel for Esad Landzo stated that Article 21(4)(e) of the Statute of the International Tribunal ("Statute") and Rule 89 of its Rules of Procedure and Evidence ("Rules") protect the right of an accused to have the witnesses present in the courtroom to testify. Counsel argued that the right of the accused to confront his accusers in person would be violated if the Motion was granted. Further, Counsel asserted that the Prosecution has not presented sufficient evidence of the medical reasons why the witnesses should not be present in the courtroom when giving their testimony. Counsel for Zdravko Mucic concurred with these arguments. Counsel for Zejnil Delalic also concurred but did accept that in certain circumstances there could be exceptions to the general rule, on the provision of detailed reasons and under strict conditions, such as in the Tadic Decision.
4. The contentions of the Defence which are the issues outstanding for determination are as follows. The argument of counsel for Esad Landzo, to which counsel for Zdravko Mucic concurred, is that both Article 21(4)(e) of the Statute of the Tribunal and Rule 89 of the Rules require the physical presence in the courtroom of the witness during testimony, to protect the rights of the accused. It was argued that granting the Motion to give evidence by video-link would violate the right of the accused to confront his accusers in person, protected under Article 21(4)(e). It was further contended that the Prosecution has not presented sufficient evidence of the medical conditions which prevent the witnesses from being present in the Trial Chamber to give their testimony.
5. Whilst concurring with the others, counsel for Zejnil Delalic conceded that there are circumstances exceptional to the general rule requiring the physical presence of witnesses in the Trial Chamber during testimony. Counsel submitted that they will not oppose the granting of the Motion if the guidelines in the Tadic Decision are satisfied.
6. The provisions governing rules of evidence are to be found in Part Six, Section Three, of the Rules (Rules 89-98). Particularly applicable to the issues before the Trial Chamber are Rules 4 and 54, and Sub-rules 89(A), 89(B), and 90(A). These are subject to the statutory provisions of Article 21(4)(e).
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;
Meetings away from the Seat of the Tribunal
A Chamber may exercise its functions at a place other than the seat of the Tribunal, if so authorised by the President in the interests of justice.
At the request of either party or proprio motu, a Judge or a Trial Chamber may issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial.
Testimony of Witnesses
(A) Witnesses shall, in principle, be heard directly by the Chambers unless a Chamber has ordered that the witness be heard by means of a deposition as provided for in Rule 71.
. . .
Sub-rules 89(A) and (B) provide as follows:
(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.
. . .
7. A combined reading of these latter two Sub-rules clearly demonstrates that the rules of evidence in Rules 89-98 govern proceedings before the Chambers, although they are not exhaustive. Whilst not being bound by national rules of evidence, it seems to the Trial Chamber that the Chambers can, where appropriate, be guided by such national rules. Hence, the Chambers may in their discretion apply rules of evidence which will best favour the determination of the matter before them. In any case, such laws must be consistent with the spirit of the Statute and general principles of law.
8. The expression "general principles of law" in Sub-rule 89(B) is similar to the expression in Article 38(1)(c) of the Statute of the International Court of Justice, without the last four words, "recognised by civilised nations", which make no substantive difference. Article 38(1)(c) of the ICJ Statute has been construed to mean rules accepted in the domestic laws of all civilised States. (See Guggenheim, 94 Hague Recueil (1958, II), 78). Oppenheim has also expressed the view that "The intention is to authorise the Court to apply the general principles of municipal jurisprudence, in particular of private law, in so far as they are applicable to relations of States." (See Oppenheim - International Law: A Treatise, Volume I, 8th ed. 1955, 29)
9. The Judges of the International Tribunal, in drafting the Rules, were cognisant of their paucity and the evident fact that they cannot conceivably provide for many of the situations that could arise in an international tribunal of this nature. They have, therefore, deliberately kept the door open for the application of domestic laws, where such laws will favour the determination of the matter before the Trial Chamber. This is predicated on the provisions of Sub-rule 89(B) that "in cases not otherwise provided in this section..." It is obvious that evidence by video-link is not provided for by the Rules. It is therefore appropriate to rely on the jurisprudence of major legal systems, where applicable.
10. It seems to the Trial Chamber indisputable, therefore, that the unqualified intention of Sub-rule 89(B) is to enable the Chambers to apply the general principles of municipal jurisprudence in so far as they are applicable to the matter before it and are consonant with the Statute. Accordingly, the Trial Chamber is free to apply such provisions of the law of evidence of major legal systems not inconsistent with the Statute.
11. The meaning of Sub-rule 89(B) has been explained in the Separate Opinion of Judge Stephen on Prosecution Motion for Production of Defence Witness Statements in the case of Prosecutor v. Dusko Tadic (IT-94-1-T), of 27 November 1996, (RP D15331-D15341) at page 6, where he said:
where a substantial number of well recognised legal systems adopt a particular solution to a problem it is appropriate to regard that solution as involving some quite general principles of law such as is referred to in Sub-rule 89(B).
12. A critical contention of the Defence is that the principle of the physical presence of a witness in the Trial Chamber is essential to the validity of their testimony. Accordingly, a violation of this principle is a violation of the right of the accused under Article 21(4)(e). It is also the contention of the defence that the accused is deprived of his right to confront an accuser who is not physically present in the Trial Chamber to testify.
13. It is axiomatic that the principles articulated in Article 21(4)(e) of the Statute require that all witnesses should be physically present in the Trial Chamber whilst testifying. It is for this purpose relevant to reproduce the provisions of Sub-rule 90(A), which states:
(A) Witnesses shall, in principle, be heard directly by the Chambers unless a Chamber has ordered that the witness be heard by means of a deposition as provided for in Rule 71. [Emphasis addedC
14. Although Sub-rule 90(A) is unequivocal as to the requirement of the physical presence of the witness in the Trial Chamber when he is testifying, it permits the situation where a witness may be heard by means of deposition under Rule 71. This is not the only exception. Under Sub-rule 75(B)(iii), where the Trial Chamber grants measures to facilitate the testimony of vulnerable victims and witnesses, such measures may involve the use of a one-way closed circuit television. Accordingly, there are exceptions to the general rule where the right of the accused under Article 21(4)(e) is not prejudicially affected.
15. It is important to re-emphasise the general rule requiring the physical presence of the witness. This is intended to ensure confrontation between the witness and the accused and to enable the Judges to observe the demeanour of the witness when giving evidence. It is, however, well known that video-conferences not only allow the Chambers to hear the testimony of a witness who is unable or unwilling to present their evidence before the Trial Chamber at The Hague, but also allows the Judges to observe the demeanour of the witness whilst giving evidence. Furthermore, and importantly, counsel for the accused can cross-examine the witness and the Judges can put questions to clarify evidence given during testimony. Video-conferencing is, in actual fact, merely an extension of the Trial Chamber to the location of the witness. The accused is therefore neither denied his right to confront the witness, nor does he lose materially from the fact of the physical absence of the witness. It cannot, therefore, be said with any justification that testimony given by video-link conferencing is a violation of the right of the accused to confront the witness. Article 21(4)(e) is in no sense violated.
16. Prior decisions of a Trial Chamber in another case, have no binding force per se in the case before us. The International Tribunal meets the tasks assigned to it with a spirit of innovation and awareness that each case and situation which it is called to assess presents a unique set of circumstances with its own considerations. It is, however, the case that, where a decision has been rendered on a request, a Trial Chamber called to examine a similar request may look to that previous decision for guidance. If there are reasons to support departures from a previous decision in whole or in part then the Trial Chamber will do so. If, however, no such reasons exist, the Trial Chamber may find it useful to take the same approach as in the prior decision. In this case the Trial Chamber considers it appropriate to have regard to the Tadic Decision and the conditions and guidelines which it establishes.
17. Testimony by video-link conference is an exception to the general rule. Accordingly, the Trial Chamber will protect against abuse of the grant of the expedient. The Trial Chamber (composed of Judge McDonald, Presiding, with Judges Stephen and Vohrah) has, in the Tadic Decision, stated that testimony by video-link will be allowed only if (a) the testimony of the witness is shown to be sufficiently important to make it unfair to proceed without it, and (b) the witness is unable or unwilling for good reasons to come to the International Tribunal at The Hague (at para. 19). The present Trial Chamber agrees with the findings of that decision and reiterates the position that, because of the particular circumstances of the International Tribunal, "it is in the interest of justice for the Trial Chamber to be flexible and endeavour to provide the Parties with the opportunity to give evidence by video-link." (Tadic Decision, at para. 18) The Trial Chamber considers it appropriate to add the additional condition, (c) that the accused will not thereby be prejudiced in the exercise of his right to confront the witness.
18. The Trial Chamber also notes that the Tadic Decision sets forth the view that the evidentiary value of testimony provided by video-link is not as weighty as testimony given in the courtroom (see para. 21). The distance of the witness from the solemnity of the courtroom proceedings and the fact that the witness is not able to see all those present in the courtroom at the same time, but only those on whom the video camera is focused, may detract from the reliance placed upon his or her evidence. The Trial Chamber agrees with this general principle, whilst also considering that it is a matter for the assessment of the Chamber when evaluating the evidence as a whole, to determine how credible each witness is.
19. It is necessary to explain in amplification that the provisions of Article 21(4)(e), derived from Article 14 of the International Covenant on Civil and Political Rights of 1966, did not envisage the giving of evidence by video-link conference. But Sub-rule 89(B), in its wisdom, has provided for the extension of the rules of evidence to cover new situations not contemplated.
20. The Trial Chamber is satisfied that the testimony of witnesses K and L is sufficiently crucial to the Prosecution and that it will be unfair to omit it merely because of the difficulties of bringing the witnesses to The Hague to give evidence. Witnesses K and L are described as former detainees of ^elebici camp. They are to give direct evidence of many of the acts alleged in the various counts of the indictment. The Trial Chamber is satisfied with the submission of the Prosecution that the medical conditions which are alleged to render it impracticable for them to travel are those of one of the witnesses and their son. These critical conditions and circumstances make them unwilling to travel to the International Tribunal.
21. Guidelines have been prescribed in the Tadic Decision, to ensure that testimony given by video-link conference is practicable and reliable. The relevant paragraph of that decision reads:
22. The Trial Chamber acknowledges the need to provide for guidelines to be followed in order to ensure the orderly conduct of the proceedings when testimony is given by video-link. First, the party making the application for video-link testimony should make arrangements for an appropriate location from which to conduct the proceedings. The venue must be conducive to the giving of truthful and open testimony. Furthermore, the safety and solemnity of the proceedings at the location must be guaranteed. The non-moving party and the Registry must be informed at every stage of the efforts of the moving party and they must be in agreement with the proposed location. Where no agreement is reached on an appropriate location, the Trial Chamber shall hear the parties and the Registry, and make a final decision. The following locations should preferably be used: (i) an embassy or consulate, (ii) offices of the International Tribunal in Zagreb or Sarajevo, or, (iii) a court facility. Second, the Trial Chamber will appoint a Presiding Officer to ensure that the testimony is given freely and voluntarily. The Presiding Officer will identify the witnesses and explain the nature of the proceedings and the obligation to speak the truth. He will inform the witnesses that they are liable to prosecution for perjury in case of false testimony, will administer the taking of the oath and will keep the Trial Chamber informed at all times of the conditions at the location. Third, unless the Trial Chamber decides otherwise, the testimony shall be given in the physical presence only of the Presiding Officer and, if necessary, of a member of the Registry technical staff. Fourth, the witnesses must, by means of a monitor, be able to see, at various times, the Judges, the accused and the questioner; similarly the Judges, the accused and the questioner must each be able to observe the witness on their monitor. Fifth, a statement made under solemn declaration by a witness shall be treated as having been made in the courtroom and the witness shall be liable to prosecution for perjury in exactly the same way as if he had given evidence at the seat of the International Tribunal.
The Trial Chamber will ensure that these guidelines are scrupulously followed in the present case.
THE TRIAL CHAMBER,
FOR THE FOREGOING REASONS,
PURSUANT TO RULE 54,
HEREBY GRANTS the Motion of the Prosecution insofar as it relates to witnesses K and L, provided that the necessary equipment can be made available to the International Tribunal;
HEREBY DIRECTS the Registrar to take all reasonable steps in the circumstances of the present case to ensure that the guidelines established in the Tadic Decision, referred to herein, are followed.
Done in both English and French, the English text being authoritative,
Adolphus G. Karibi-Whyte
Dated this twenty-eighth day of May 1997
At The Hague
[ Seal of the Tribunal ]