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: 19 January 1998
ZDRAVKO MUCIC also known as "PAVO"
ESAD LANDZO also known as "ZENGA"
DECISION ON THE MOTION OF THE PROSECUTION FOR THE ADMISSIBILITY OF EVIDENCE
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
1. Pending 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") is a motion requesting the admission of a number of documents and videotapes into evidence ("Motion") which the Office of the Prosecutor ("Prosecution") orally presented on 31 October 1997. Oral arguments continued on 3, 5 and 6 November 1997. The background to the Motion is the following.
2. On 18 March 1996 members of the Austrian police, in response to a request for co-operation from the Prosecution, carried out searches in a number of locations in Vienna, Austria. Among the localities searched were the premises of the company "Inda-Bau", a firm with which the accused Zejnil Delalic ("Delalic") is alleged by the Prosecution to have close links, and the apartment of the accused Zdravko Mucic ("Mucic"). In the course of this operation a large number of videotapes and twelve folders containing documents were seized at the premises of Inda-Bau. A further four videotapes and certain documents were seized in Mucics apartment.
3. After having heard the testimony of four officers of the Austrian police appearing as witnesses for the Prosecution on matters relating to this operation, the Trial Chamber, in an oral decision of 12 September 1997, admitted the twelve folders found at the premises of the Inda-Bau company into evidence. In this decision, the Trial Chamber was satisfied that the chain of custody had been established, and admitted the folders but not their contents. In a subsequent decision on 22 October 1997, the Trial Chamber admitted into evidence two of the documents allegedly originally contained in these folders, together with portions of a video-recording allegedly seized at Inda-Bau (exhibits 137, 141 and portions 00.00 - 02. 41 and 11.49 - 16.26 of exhibit 114). These exhibits were admitted on the basis of the evidence given by the Prosecution witness General Pasalic, who in his testimony was able to authenticate the documents and who recognised the contents of the videotape as a recording of an interview given by himself in December 1992.
4. Among the four members of the Austrian police who appeared before the Trial Chamber was District Inspector Thomas Moerbauer, who in his evidence described how he, subsequent to the seizures, had examined and prepared an index of the documents contained in the twelve folders found at Inda-Bau. In the course of his testimony Moerbauer was presented by the Prosecution with a number of documents and asked to verify them as documents originally contained in the twelve folders seized at Inda-Bau.
5. The Prosecution now moves to have the documents presented to Moerbauer, together with a number of videotapes allegedly seized at Inda-Bau and the accused Mucics apartment, admitted into evidence. These are exhibit numbers 110, 111, 112, 115, 116, 117, 118, 119, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 135, 143, 144, 145, 146 and 147 A-C ("the exhibits").
THE TRIAL CHAMBER, HAVING CONSIDERED the oral arguments of the parties,
HEREBY ISSUES ITS DECISION.
A. Applicable Provisions
6. It is appropriate to set out in full certain provisions of the Rules of Procedure and Evidence of the International Tribunal ("Rules") which were cited to the Trial Chamber during oral argument.
(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.
Exclusion of certain evidence
No evidence shall be admissible if obtained by methods which cast substantial doubt on its reliability or if its admission is antithetical to, and would seriously damage the integrity of the proceedings.
1. The Prosecution
7. The Prosecution asserts that the exhibits should be admitted into evidence since they are relevant to the charges set out in the Indictment and have probative value. According to the Prosecution, the oral decision of 12 September 1997 confirmed that the chain of custody of the exhibits has been established. Moreover, the Prosecution argues that the exhibits have been recognised by the witness Moerbauer during his testimony as documents and tapes seized in Vienna by the Austrian police.
8. The Prosecution states that in order to establish the relevance and probative value of the exhibits, some showing of reliability is required. In this respect the Prosecution asserts that the contents of the exhibits, together with the place and circumstances in which they were found, provide sufficient indicia of reliability. In the opinion of the Prosecution, the fact that some of the other items which were seized at the Inda-Bau premises have been admitted into evidence already, after authentication by the witness General Pasalic, further adds to the reliability of the exhibits. It is further argued that there exists an inter-relationship between the exhibits, and that the showing of this inter-relationship proceeds to demonstrate the authenticity and reliability of the documents and tapes now sought to be admitted.
9. The exhibits are, according to the Prosecution, relevant and of probative value to the charges since they directly or indirectly relate to the position held by Delalic, and to a lesser extent Mucic, in the Konjic area in 1992. This is essential to the question of command responsibility with which Delalic and Mucic are charged in the Indictment. Moreover, the Prosecution is of the opinion that all the exhibits corroborate the evidence already received by the Trial Chamber relating to the situation in the Konjic area at the time of the alleged offences.
2. The Defence
10. Counsel for all four accused ("Defence") object to the admission of the exhibits. The Defence argues that the documents and videotapes sought to be admitted are both irrelevant and lack probative value as they are completely unreliable. Moreover, Counsel for Delalic insists that the Prosecution has been unable to demonstrate the origins of the exhibits. Counsel submits that although the witness Moerbauer in his testimony stated that he, in the process of preparing an index of the documents seized at Inda-Bau, put a mark on every individual document, he was during the course of his testimony unable to identify any such mark on the documents now sought to be admitted. Counsel therefore submits that there is no proof that the documents presented to the Trial Chamber are the same as those seized at Inda-Bau. Concerning those videotapes allegedly seized at Inda-Bau which the Prosecution now presents to the Trial Chamber (exhibits 115 and 116), Counsel argues that it is not proven that they were indeed found at the Inda-Bau company. According to the Defence the Prosecution has not explained a discrepancy which exists between the number of tapes initially reported seized and the number subsequently counted in the process of indexing and filing of the tapes.
11. The Defence suggests that the Trial Chamber adopts a clear procedure for the admission of evidence. According to the Defence, what needs to be established is first the authenticity and reliability of the documents. The Defence adopts the view that proof of the authorship of the documents is crucial in this respect, and divides the documents now before the Trial Chamber into three categories. First, there are those which purport to be written by a third person who is not a party to the present proceedings and who has not been called to testify and authenticate the documents. According to the Defence, these documents are in effect hearsay evidence and it is submitted that their admission would be contrary to the right of the accused to have the witnesses against themselves examined. The Defence asserts that since the Prosecution has failed to call the alleged authors of these documents to give evidence in court so that they could be cross-examined, there is no way by which the reliability of the contents of this category of documents can be tested. A second set of documents is those that are purported to be written by one of the accused. The Defence emphasises that the Prosecution never has made any attempt to have the relevant accused authenticate any of these documents, and concludes that there is no proof whatsoever that they were in fact written by the accused. A third type of document presented is those which bear no signature and where there is no clear indication of who the author might be. According to the Defence it is, in view of this lack of evidence of authorship, simply impossible to demonstrate reliability and trustworthiness in relation to this category of documents.
12. The Defence rejects the approach taken by the Prosecution whereby one document, the reliability of which has not been established and which is not in evidence, is used to corroborate another document. In the opinion of the Defence it is an improper procedure when one unreliable document is used to corroborate another, and it is submitted that the alleged links between the documents are tenuous and consist of suppositions by the Prosecution. The Defence maintains that the authenticity and reliability of the documents sought to be admitted has not been established and therefore objects to their admission.
13. According to the Defence, it is only as a second step in the process of deciding the admissibility of evidence that the Trial Chamber can move on to consider the relevance and probative value of the exhibits. In this respect the Defence contends that the evidence sought to be admitted by the Prosecution is completely irrelevant and should for that reason not be admitted. The Defence argues that the documents do not refer to the Celebici camp and often only give an account of events which are wholly unrelated to the charges in the Indictment and which go beyond the time-frame with which the Indictment is concerned.
14. The Defence concludes that these irrelevant and unreliable documents clearly cannot have any probative value. The Defence, therefore, submits that the exhibits should not be admitted.
15. The question before the Trial Chamber is that of the admissibility of evidence, a matter where the national legal systems of the world have adopted diverging approaches. The procedure of the International Tribunal, with its unique mixture of common and civil law features, does not conform to any one tradition in this respect. In contrast to the common law, where questions of admissibility and exclusion of evidence occupy a prominent place in criminal procedure, the ten provisions of the Rules which regulate all evidentiary matters in the proceedings before the International Tribunal do not contain a detailed set of technical rules relating to this issue.
16. The question of admissibility of evidence before the International Tribunal is governed by Section 3 of the Rules which is entitled "Rules of evidence". The approach adopted by the Rules is clearly one in favour of admissibility as long as the evidence is relevant and is deemed to have probative value (Sub-rule 89(C)), and its probative value is not substantially outweighed by the need to ensure a fair trial (Sub-rule 89(D)). Evidence may further be excluded on the grounds given in Rules 95 and 96. Sub-Rule 89(E) relates to the authentication of evidence out of Court. Finally, Sub-rule 89(B) contains a provision of a residual nature which, in cases not otherwise provided for in the Rules, permits the application of such rules of evidence as will best favour a fair determination of the matter in question and which are consistent with the Statute and general principles of law.
17. Of these provisions, Sub-rule 89(C) is of particular pertinence to the issue before the Trial Chamber. According to the plain text of this provision, the two requirements for the admissibility of evidence are those of relevance and probative value. In relation to the question of the substantive meaning of these requirements, the Trial Chamber notes that evidence which is of probative value within the common law tradition has been defined as "evidence that tends to prove an issue"1 . As concerns relevance, it is often said that this concept in itself contains an implicit requirement of probative value. Thus it has been remarked by one prominent commentator on the subject that:
[t]here are two components to relevant evidence: materiality and probative value. Materiality looks to the relation between the propositions for which the evidence is offered and the issues in the case....The second aspect of relevance is probative value, the tendency of evidence to establish the proposition that it is offered to prove2.
Similarly the Supreme Court of Canada, in R. v. Cloutier (2 S.C.R. 709, 731) has endorsed the following statement by Sir Rupert Cross3:
For one fact to be relevant to another, there must be a connection or nexus between the two which makes it possible to infer the existence of one from the existence of the other. One fact is not relevant to another if it does not have real probative value with respect to the latter.
As the Trial Chamber noted in its Decision on the Prosecutions Oral Request for the Admission of Exhibit 155 into Evidence and For an Order to Compel the Accused, Zdravko Mucic, to Provide a Handwriting Sample (19 January 1998) ("Mucic Handwriting Decision") it is, however, obvious that these are concepts that beg of a clear and easy definition in abstracto. Their application calls for evaluations based on human experience as well as logic4, and will depend upon the particular circumstances of the case and the nature of the evidence sought to be admitted.
18. In its decision on the admissibility of hearsay evidence in the case of Prosecutor v. Dusko Tadic (Decision on the Defence Motion on Hearsay, 5 August 1996, IT-94-1-T, 5 August 1996, ), Official Record at Registry page ("RP") D 11597 - D 11588) ("Hearsay Decision") a majority of Trial Chamber II (Judges McDonald, presiding and Vohrah, separate opinion by Judge Stephen) found that the Rules implicitly require that reliability be a component of admissibility. The Trial Chamber agrees with the reasoning of that decision, and considers reliability to be an inherent and implicit component of each element of admissibility in the sense described below. It is clear that if evidence offered is unreliable, it cannot be either relevant or of probative value. As such, it is inadmissible under Sub-rule 89(C).
19. The Defence contends, however, that a determination of reliability should be seen as a separate, first step in assessing a piece of evidence offered for admission, and argues that it is only if this first hurdle has been passed that the Trial Chamber can proceed to consider the relevance and probative value of the evidence. This view of reliability as a separate requirement, independent of those provided for by Sub-rule 89(C), has been rejected by the Trial Chamber in the Mucic Handwriting Decision. As the Trial Chamber there noted, it is a cardinal rule of construction of legislation that where the words of a provision are clear and unambiguous, the task of interpretation does not arise. So it is with Sub-rule 89(C) and it is, therefore, neither necessary nor desirable to add to that provision a condition of admissibility which is not expressly prescribed for by that provision.
20. While the importance of the rules on admissibility in common law follows from the effect which the admission of a certain piece of evidence might have on a group of lay jurors, the trials before the International Tribunal are conducted before professional judges, who by virtue of their training and experience are able to consider each piece of evidence which has been admitted and determine its appropriate weight. As noted above, it is an implicit requirement of the Rules that the Trial Chamber give due considerations to indicia of reliability when assessing the relevance and probative value of evidence at the stage of determining its admissibility. However, this terminology may leave some room for misunderstanding, and could possibly be misperceived as demanding that a binding determination be made at this stage as to the genuineness, authorship or credibility of evidence. For this reason the Trial Chamber wishes to make clear that the mere admission of a document into evidence does not in and of itself signify that the statements contained therein will necessarily be deemed to be an accurate portrayal of the facts. Factors such as authenticity and proof of authorship will naturally assume the greatest importance in the Trial Chambers assessment of the weight to be attached to individual pieces of evidence. The threshold standard for the admission of evidence, however, should not be set excessively high, as often documents are sought to be admitted into evidence, not as ultimate proof of guilt or innocence, but to provide a context and complete the picture presented by the evidence gathered.
21. The Defence argues that the admission of documents whose alleged authors are not appearing as witnesses in the present proceeding amounts to a deprivation of the right of the accused under Article 21(4)(e) of the Statute of the International Tribunal ("Statute") to have the witnesses brought against them examined, and that as such it is incompatible with the Trial Chambers obligation under Article 20(1) of the Statute to ensure a fair trial. For this reason, and with reference to Rules 89(D) and 95, it is asserted that the Trial Chamber should refuse admission of such documents into evidence.
22. It is clear from the relevant provisions of the Rules that there is no blanket prohibition on the admission of documents simply on the ground that their purported author has not been called to testify in the proceedings. Instead the conditions for admissibility are those contained in Sub-rule 89(C) which have been discussed above. Furthermore, should the Trial Chamber consider the probative value of any particular exhibit of this character to be substantively outweighed by the need to ensure a fair trial, it may be excluded in accordance with Sub-Rule 89(D). There is, however, no ground for a general finding to the effect that the probative value of documents of this category is so outweighed by any prejudicial effects that they should be considered generally inadmissible. It is a different matter that the probative value of such evidence by necessity will be affected by the fact that it has not received the scrutiny involved in the cross-examination of a witness. This is an important factor to which the Trial Chamber will give due consideration at the stage of assessing the weight to be attached to exhibits of this nature.
23. The Trial Chamber will now proceed to consider the admissibility of the exhibits at issue. In its discussion the Trial Chamber will distinguish between the documents on the one hand and the videotapes on the other. The Trial Chamber does not consider it necessary to treat each exhibit separately, but will rather group them into appropriate categories.
24. In considering the documents which allegedly form part of material seized at the Inda-Bau premises in Vienna, the Trial Chamber will first address the objection of the Defence that the Prosecution has not proven where the documents come from. Secondly, the documents will be grouped into three categories and discussed per group.
25. The Defence alleges that the witness, Moerbauer who was brought before the International Tribunal to authenticate the documents, was unable to retrieve the marks he had put on the documents subsequent to their seizure. The Prosecution, on the other hand, correctly points to the testimony of this witness who, on the basis of the inventory he prepared, was able to confirm that each of the documents now sought to be admitted was seized at the premises of the Inda-Bau company and put in one of the binders admitted into evidence by the Trial Chamber by its decision of 12 September 1997. Moreover, in his testimony Moerbauer was able to identify from which particular binder the individual documents presented to him were taken. There can be, therefore, no doubt that the witness Moerbauer positively identified every document now before the Trial Chamber as being a document found at the Inda-Bau premises.
26. For the admissibility of each individual exhibit it needs to be shown that the offered evidence is both relevant and of probative value. In view of their common origin and context, however, the Trial Chamber considers it appropriate to evaluate the admissibility of the documents grouped into the following three categories. The first group consists of documents which have already been admitted. Secondly, there are a number of documents which are particularly relevant to the case. A third, larger group of documents are suggested to be of more general relevance only.
(a) Documents already admitted.
27. Of the documents seized at Inda-Bau, the Trial Chamber has already admitted the documents numbered as exhibits 137 and 141. These exhibits have been admitted through the testimony of General Pasalic who was able to authenticate the documents on 22 October 1997. The Defence has not presented any additional information which could give rise to the exclusion of these documents at this stage. It is, therefore, unnecessary to consider those documents again. The exhibits 137 and 141 remain admitted into evidence.
28. Exhibit 118 consists of the order for appointment of Zejnil Delalic as commander of Tactical Group 1 and was recognised by the accused Delalic during an interview with the Prosecution on 22 and 23 August 1996 at Scheveningen. A copy of the document was consequently annexed to the record of interview which has been admitted as exhibit 99 by the Trial Chambers Decision on the Motion for the Exclusion of Evidence by the Accused Zejnil Delalic, dated 25 September 1997 (RP D 5162- D 5180). The exhibit is further identical to the document which was admitted through the testimony of Dr Marie-Janine Calic as exhibit 71 by the Trial Chambers decision of 24 March 1997. The Defence has not presented any information which could give rise to the exclusion of exhibits 71 and 99, and they remain admitted into evidence. It is not necessary to reconsider the admissibility of this document. On the Prosecutors motion it is admitted as exhibit 118.
(b) Documents of particular relevance.
29. The second group of documents presented to the Trial Chamber for admission consists of document of particular relevance to the charges of command responsibility against the accused Delalic. The documents numbered as exhibits 117, 130, 131, 132, 144 and 147A all refer in some way to the position of Delalic as commander of Tactical Group 1. It is clear that these documents fulfil the first requirement for admissibility under Sub-rule 89(C) since they are directly relevant to certain of the charges set out in the Indictment.
30. Exhibit 144 is a report allegedly written by Delalic which gives an account of the incidents which occurred in the Konjic area in 1992. The letter produced as exhibit 117 contains very similar information, as does exhibit 130 which is a report allegedly written by Mucic giving a rather detailed account of the incidents which occurred in Konjic in 1992, and the role played by certain persons including Delalic. Similarly exhibit 147 A, which is a registration card for the United Association of War Veterans of the Republic of Bosnia and Herzegovina, contains a description of Delalic as co-ordinator and later commander of Tactical Group 1. Exhibits 131 and 132 are purportedly written by the Deputy Commander of Tactical Group 1, Edib Saric. This account of the events and the position held by Saric corresponds to the information contained in the document previously admitted as exhibit 137. The information provided by these documents is further consistent with that given by the witness General Pasalic, and that contained in other documents now presented to the Trial Chamber.
31. The documents now at issue were all found at the premises of Inda-Bau, a company with which Delalic had some form of association and where he was observed by the Austrian Police a few days before the seizure. The pattern of events described in the documents is, to an extent, consistent between the documents themselves, and generally corresponds to witness statements and documents already admitted into evidence. It is therefore warranted to conclude, at this stage, that sufficient indicia of reliability have been established for the documents presented to the Trial Chamber to be deemed both relevant and prima facie of probative value. As such they are admissible. It should again be emphasised that this decision does not in any way constitute a binding determination as to the authenticity or trustworthiness of the documents sought to be admitted. These are matters to be assessed by the Trial Chamber at a later stage in the course of determining the weight to attached to these exhibits.
(c) Documents of general relevance
32. The third group of documents which the Prosecution seeks to admit are numbered exhibits 119, 121, 122, 123, 124, 125, 126, 127, 128, 129, 133, 135, 143, 145, 146 and 147 B - C. The general focus of these exhibits is again to show that Zejnil Delalic was appointed commander of Tactical Group 1, that he regarded himself as such and was so regarded by others. Similarly, Mucic appears as commander of the Celebici prison. Altogether these exhibits tell a story of the activity of Delalic and Mucic in the Konjic area in 1992. As such, they corroborate the exhibits 118, 137, 141, 144 and 147A which have been properly admitted into evidence. They are documents which were found in the Inda-Bau premises, and which were not obtained under circumstances which render reliance upon them objectionable. Specifically relating to exhibit 125, the Trial Chamber notes that the Defences challenge to the authenticity and reliability of this document must be seen in the light of the fact that an identical document was submitted by Counsel for Delalic on 27 October 1997 and was marked but not tendered as Defence (Delalic) exhibit D82/1.
33. In English law, according to the doctrine of res gestae, a fact may be held relevant to a fact in issue on account of its contemporaneity with the matter under investigation. This may be so if it throws light on the matter under investigation by reason of the proximity in time, place or circumstance in such a manner as to constitute part of the event being investigated. Hence, when a statement is made contemporaneously with the occurrence of the act or event being inquired, such a statement is admissible for the purposes of explaining the existence of the act or event. Such evidence is therefore, as an exception to the hearsay rule, admissible as part of the res gestae.
34. It is a correct proposition of law that the proper person to justify or explain the circumstances of an act or event is the person who acted. However, it is difficult in certain circumstances to have direct evidence of the act or statement of the actor. Hence, statements are admissible if made roughly contemporaneously with the subject matter under enquiry by the actor related to the issue, and having connections with it. This is, in the opinion of the Trial Chamber, the position of this third category of the exhibits. That the statement was made by the actor or another participant can be determined from circumstantial evidence unequivocally pointing towards the fact. For instance, exhibits 124 and 125 are statements relating to the escape of Delalic from Konjic. Statements which acknowledge the escape, statements that Zejnil Delalic had donated 2000 uniforms to soldiers and had worked without rest for twenty-four hours, can only be referable to Delalic as the maker. Similarly, other exhibits contain spontaneous statements relating to the events in which the accused Delalic was involved. This is the case for instance with his assertion of innocence of accusations of dishonesty or flight from the region. It is not necessary in the situation to prove that the statements are true. It is sufficient that they were made: that in the circumstances it is part of the res gestae.
35. The Trial Chamber is of the opinion that the exhibits tendered contain statements made contemporaneously with the issue of the position of Delalic and Mucic in the period of hostilities under enquiry. They shed light on the role played and positions occupied by them. Being part of the entire transaction, they are admissible as evidence in these proceedings.
36. In addition to the documents discussed above, the Trial Chamber was also asked to consider the admissibility of five videotapes. Of these five, three tapes had been seized at the premises of the accused Zdravko Mucic in Vienna, and the other two are alleged to have been found at the Inda-Bau premises.
37. The first set of tapes was recovered by the witness Wolfgang Panzer, District Inspector at the Vienna Police Department, who testified before the Trial Chamber and recognised the tapes. The videotapes, exhibits 110 to 112, show different scenes at the Celebici camp. The tapes are relevant since they relate to the accused Mucic and his activities at the Celebici camp. The tapes were found at the apartment of Mucic, who is easily recognisable on the tapes. The tapes, therefore, demonstrate indicia of reliability and are deemed to have probative value. Exhibits 110, 111 and 112 are admitted into evidence.
38. The two other tapes now presented by the Prosecution for admission are exhibits 115 and 116. The Prosecution submits that both tapes formed part of a larger number of fifty-four tapes recovered from the Inda-Bau premises in Vienna. The Defence points out that in the initial record of the seizure (the "Niederschrift") prepared at the time of the search by the witness Wolfgang Navrat of the Vienna Police Department, the number of tapes seized at Inda-Bau was given as fifty-one. It was only one month after the seizure that the witness Moerbauer, when making an inventory of all the documents and videotapes recovered, counted fifty-four tapes. In the opinion of the Defence this discrepancy makes it impossible to conclude with certainty that the tapes sought to be admitted were in fact found at the premises of Inda-Bau in Vienna.
39. Exhibit 115 is a video of an interview with the witness General Divjak and Delalic, together with another man. The second tape submitted as exhibit 116 consists of two parts of which the Prosecution seeks to admit the first, being a recording of the Zagreb television program "Slikom na Sliku" of May 1992 which contains an interview with Delalic. Both videotapes contain information concerning the general situation in the Konjic area and the activities of the accused Delalic in 1992 and are therefore relevant.
40. The nature of the contents of the two exhibits - that is recordings of recognisable persons conducting interviews - is further such that their probative value is not necessarily excluded by a certain remaining uncertainty concerning the source of these exhibits. The Trial Chamber notes that it has earlier admitted portions of another videotape alleged by the Prosecution to have been seized at Inda-Bau on the same occasion. This is Exhibit 114 which shows an interview with General Pasalic, who testified before the Trial Chamber that he remembered the interview. On this basis portions of the tape were admitted into evidence on 22 October 1997. As concerns the two videotapes now sought to be admitted, the witness General Divjak has testified before the Trial Chamber and recognised the portion of exhibit 115 showing the interview given by himself and Delalic. Although not shown exhibit 116 as such, Delalic has, when asked about it by the Prosecution in the interview conducted in Scheveningen on 23 August 1996, acknowledged that he did participate in such an interview for the television program "Slikom na Sliku" at the relevant time. In this context it should further be noted that parts of this latter tape were shown to the witness Branko Gotovac by Counsel for the accused Esad Landzo on 25 March 1997, upon which it was subsequently admitted as Defence (Landzo) exhibit D5/4. On this occasion Counsel informed the Trial Chamber that this tape, which had been given to the Defence by the Prosecution, was one of the tapes that had been seized from Delalic. An excerpt from the tape has also been used by Counsel for Delalic and has been admitted as Defence exhibit (Delalic) D11 6/1. As the Prosecution correctly has pointed out this would seem to indicate that also members of the Defence are placing some credibility on this exhibit.
41. The Trial Chamber is accordingly satisfied that sufficient indicia of reliability have been shown for the tapes to be deemed both relevant and of probative value. Exhibits 115 and 116 are therefore admissible. The portions of exhibit 114 earlier admitted remains admitted into evidence.
For the foregoing reasons, THE TRIAL CHAMBER, being seized of the motion of the Prosecution and
PURSUANT TO RULE 54,
IN ACCORDANCE WITH RULE 89,
HEREBY ADMITS exhibits 110, 111, 112, 115, 116, 117, 118, 119, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 135, 143, 144, 145, 146 and
147A - C into evidence.
Done in both English and French, the English text being authoritative.
Adolphus Godwin Karibi-Whyte
Dated this nineteenth day of January 1998
At The Hague,
[Seal of the Tribunal]
1. Henry C. Black, Blacks Law Dictionary 1203 (6th ed. 1991).
2. Charles T. McCormick, McCormick on Evidence, pp. 338-339 (4th ed. 1992).
3. Cross on Evidence, p. 16 (4th ed. 1974).
4. Cf. Halsburys Laws of England, Volume 17, para 5 (4th ed. 1976).