IN THE TRIAL CHAMBER
Judge Adolphus G. Karibi-Whyte, Presiding
Judge Elizabeth Odio Benito
Judge Saad Saood Jan
Mrs. Dorothee de Sampayo Garrido-Nijgh
1 September 1997
ZDRAVKO MUCIC also known as "PAVO"
ESAD LANDZO also known as "ZENGA"
DECISION ON MOTION BY ESAD LANDZO PURSUANT TO RULE 73
The Office of the Prosecutor
Mr. Grant Niemann
Ms. Teresa McHenry
Mr. Giuliano Turone
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
I. INTRODUCTION AND PROCEDURAL BACKGROUND
On 18 July 1996, the accused, Esad Landzo, made a statement regarding the allegations against him in the indictment upon which the present proceedings are based at the United Nations Detention Unit in Scheveningen, The Hague ("Statement"). The Statement was made during an interview conducted by a team of officers from the Office of the Prosecutor ("Prosecution"), consisting of Ms. Teresa McHenry - a Prosecutor, Mr. Bart dHooge - an investigator ("Investigating Team"), and an interpreter. Also present was Defence Counsel for Esad Landzo - Mr. Mustafa Brackovic, a Bosnian attorney.
On 7 May 1997, the Defence for the accused, Esad Landzo, ("Defence") filed a "Motion for Extension of Time in Which to File Motions Pursuant to Sub-rule 73(A)(iii) and Relief from Waiver Provided in Sub-rule 73(C)" (Official Record at Registry Page ("RP") D3575 -D3577) ("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"). In reply, the Office of the Prosecutor ("Prosecution") filed its "Opposition to Landzos Motion for Relief from Waiver from Rule 73" ("the Response") on 12 May 1997 (RP D3621-D3623).
having considered the written submissions of the Defence for the accused Esad Landzo ("Defence"), and the Prosecution and after hearing the oral argument of the Prosecution and the Defence on 14 May 1997, the Trial Chamber delivered an oral decision, denying the Motion and reserving the written decision for a later date.
THE TRIAL CHAMBER HEREBY ISSUES ITS WRITTEN DECISION.
A. Applicable Provisions
1. The Motion is brought pursuant to Rule 73, the relevant parts of which are the following.
(A) Preliminary motions by the accused shall include:
. . .
(iii) applications for the exclusion of evidence obtained from the accused or having belonged to him;
. . .
(B) Any of the motions by the accused referred to in Sub-rule (A) shall be brought within sixty days after his initial appearance, and in any case before the hearing on the merits.
(C) Failure to apply within the time-limit prescribed shall constitute a waiver of the right. Upon a showing of good cause, the Trial Chamber may grant relief from the waiver.
2. On 7 May 1997, when the Motion was presented, it was more than sixty days after the initial appearance of Esad Landzo which was on 18 June 1996 and the hearing on the merits had begun. The Defence had violated the enabling provisions of Sub-rule 73(B) and waived its rights under Sub-rule 73(C). The Motion seeks to obtain relief from Esad Landzos waiver of his right to bring a motion to exclude the Statement from evidence under Sub-rule 73(A)(iii).
(i) The Defence
3. The Defence relies on the grounds stated below in support of the Motion. Esad Landzo was represented during the interview by a Bosnian Attorney who had no experience of the Anglo-American common law, which the Defence alleges governs the proceedings in the International Tribunal. On the Investigating Team was an American Attorney familiar with the common law system. However, she failed to inform the Bosnian Attorney and Esad Landzo "in a sufficiently full and complete manner" (Motion at para. 4) so that the Bosnian Attorney could consult with his client in an informed manner, to enable Esad Landzo to make an informed decision about the waiver of his right to remain silent.
4. The American Attorney in the Investigating Team, Ms. Teresa McHenry, is quite familiar with the common law system and that at common law a defendant represented by counsel is unlikely to make a statement unless there is a pre-existing plea agreement or an arrangement which would lead to a plea agreement. Esad Landzos Bosnian Attorney lacked this knowledge and should have been advised by the American Attorney to consult with a common law lawyer before advising Esad Landzo to make a Statement. Under the system which existed in the former Yugoslavia, an accuseds statements could not be used against him at trial without his permission.
5. The Statements were taken under improper conditions in that at the outset, the interpreter was instructed "not to interpret every single word especially when we are talking about background matters." As a result, Esad Landzo was not informed of each word which was part of the questions being asked and the Statement does not contain each word of his answer. This is entirely improper.
6. Referring to Rule 73, it was submitted it is internally inconsistent. This is because if a statement is taken more than sixty days after the initial appearance of an accused, the time to challenge it would have expired before the statement is taken.
7. The lateness of the Motion is because of the change of lead counsel and the very recent arrival on the Defence team of Lead Counsel, John Ackerman, who decided to bring the Motion.
(ii) The Prosecution
8. The Defence admits the truth that Esad Landzo was interviewed in the presence of counsel on 18 July 1996, and the requirements prescribed by Rules 42 and 43 were complied with.
9. The allegation that the American Attorney on the Investigating Team took unfair advantage of the lack of knowledge of the applicable common law rules of Esad Landzos Defence Counsel, a Bosnian lawyer, is unfair merely because accused persons in common law jurisdictions usually do not give interviews. It is also unusual that different procedures must be followed when Defence Counsel is from a civil law background. It is unusual to expect Prosecuting Counsel, who is not obliged to do so, to provide Defence Counsel with unsolicited legal advice about the conduct of the Defence.
10. The interpretation of the interview was complete and correct. Defence Counsel, who speaks both English and Bosnian, was present throughout the interviews and could have raised objections about inaccurate translations. The interview was recorded in full and thus any questions or issues disputed can be resolved by a review of the question and answer in the accuseds language. However, the issue ought to have been raised before.
11. The arrival of new counsel on the Defence team may not serve as a good cause to be excused from the requirements of Rule 73. If such a consideration were to be accepted, every accused could resort to relief from all requirements by a mere change of counsel.
12. The Motion is brought under Sub-rule 73(C) for relief from waiver to bring a motion under Sub-rule 73(A). It is relevant to analyse the legal position.
13. Sub-rule 73(A) vests the accused with the right to bring preliminary motions where the application is brought within the period prescribed in Sub-rule 73(B). By the provisions of Sub-rule 73(B), this right must be exercised within sixty days after his initial appearance and in any case before the hearing on the merits. It has been suggested and the Trial Chamber accepts the criticism that the provision is internally inconsistent. This is because an interview conducted more than sixty days after the initial appearance of an accused person cannot be challenged except of course if the hearing on the merits, which is the alternative, has not begun. The provision, by the use of the word shall, is mandatory. The right to bring the Motion must be exercised within sixty days of the initial appearance or hearing on the merits. The failure to apply within the prescribed period constitutes a waiver of the right.
14. Sub-rule 73(C) provides a safety valve to an accused who has failed to exercise his right under Sub-rule 73(B). Sub-rule 73(C) states that "[f]ailure to apply within the time-limit prescribed shall constitute a waiver of the right. Upon a showing of good cause, the Trial Chamber may grant relief from the waiver". The relevant and dominant expression is "upon a showing of good cause". The question to be answered is what constitutes the showing of good cause? The use of the word "may" in Sub-rule 73(C) clearly indicates the discretionary nature of the power vested in the Trial Chamber to grant relief from waiver. The good cause to be shown by the accused is with respect to the reason why the relief from waiver should be granted. The exercise of the right to grant the application was lost by the failure to bring the application within the prescribed time. This constitutes the waiver.
15. It would seem reasonable to expect that the good cause which the accused should show why there should be relief from waiver, should relate to why an accused was unable to bring the application within the prescribed period. In all the circumstances, the accused should show that there are good and substantive reasons why his application for the exclusion of the Statements should be granted.
16. It is clear from the argument of Defence Counsel that the only cause why the Motion was not brought within the prescribed period was because counsel acting for the accused before now was not aware that the Motion was necessary. It was only after a change of counsel who considered that the Motion was necessary did the Defence consider bringing an application under Sub-rule 73(A)(iii) to exclude the Statement made by Esad Landzo.
17. The Trial Chamber agrees with the submission of the Prosecution that a mere change of counsel cannot constitute good cause why relief should be granted from waiver of the right. It cannot be argued that change of counsel per se is not related to the issue of compliance with the requirements of Sub-rule 73(B). It is not disputed that it may be related to change of counsel. Where there is a change of counsel during the prescribed period and no counsel is assigned till after the expiration of the period, the relevant factual situation may constitute sufficient good cause why an application was not brought within the relevant period. This is a question of fact to be determined in accordance with the facts of each case.
18. Further, where the Defence relies on a good ground of law for the exclusion of the Statements, it would be inequitable to frustrate such a ground of law by relying on the procedural argument that the application was not brought within the prescribed period. A substantive argument founded on the ground that the Statements were obtained by fraud, coercion, force or inducement may constitute good cause. The Trial Chamber is entitled under Sub-rule 73(C), in such circumstances, to exercise its discretion to grant relief from waiver of the right of the accused to bring the application to exclude the Statements.
19. The Defence has not brought its case within the provisions of Sub-rule 73(C). As we have stated, change of counsel per se does not constitute good cause. The Trial Chamber is not satisfied that any of the other reasons relied upon in the Motion falls within the purview of the showing of good cause.
For the foregoing reasons the TRIAL CHAMBER, being seised of the Motion
PURSUANT TO RULE 73,
HEREBY DENIES the Motion.
Done in both English and French, the English text being authoritative.
Adolphus G. Karibi-Whyte
Dated this first day of September 1997
At The Hague,
[Seal of the Tribunal]