1 Thursday, 11th September 1997
2 (10.00 am)
3 JUDGE KARIBI-WHYTE: Good morning ladies and gentlemen. Can
4 we have the appearances, please.
5 MR. NIEMANN: If your Honours please, my name is Grant
6 Niemann and I appear with my colleagues, Ms. McHenry,
7 Mr. Turone and Mr. Khan for the Prosecution.
8 JUDGE KARIBI-WHYTE: Can we have the appearances for the
9 Defence, please?
10 MS. RESIDOVIC: Good morning, your Honours. My name is
11 Edina Residovic, I am Defence counsel for Mr. Zejnil
12 Delalic. My co-counsel is my colleague, Eugene
13 O'Sullivan, a professor from Canada. Thank you.
14 JUDGE KARIBI-WHYTE: Thank you very much.
15 MR. OLUJIC: Good morning, your Honour. My name is Zeljko
16 Olujic, attorney from Croatia. I am Defence counsel for
17 Mr. Zdravko Mucic. My co-counsel is Michael Greaves, an
18 attorney from England.
19 MR. KARABDIC: Good morning, your Honours, my name is Salih
20 Karabdic, attorney from Sarajevo, Defence counsel for
21 Mr. Hazim Delic. My co-counsel is Mr. Tom Moran, attorney
22 from Houston Texas.
23 MR. ACKERMAN: Good morning, your Honours, I am John
24 Ackerman, I appear here this morning with Cynthia
25 McMurrey on behalf of Mr. Esad Landzo. Thank you.
1 JUDGE KARIBI-WHYTE: As you would recollect, the programme
2 for this morning has been in a flux. We are not too
3 sure of what happened but I have just been informed that
4 the witness intended to be called this morning has not
5 appeared so we appear to have -- we will carry on with
6 the argument as we intended.
7 MR. NIEMANN: That is correct, your Honour. The Prosecution
8 will not be calling this witness. We wanted him to
9 authenticate a particular document which he is unable to
10 do so we cannot take the matter any further.
11 JUDGE KARIBI-WHYTE: To follow the sequence which we want to
12 adopt here, we would like to start with the motion by
13 the Prosecution of 8th July. It is on the production of
14 a handwriting sample. Could we have the argument?
15 MR. NIEMANN: If your Honours please. Your Honours, the
16 Prosecution, as you know, has filed a written motion in
17 relation to this matter which originally was raised by
18 Ms. McHenry when she sought to produce a document during
19 the course of the evidence of a witness. Your Honours,
20 the issues that are covered in the written motion deal
21 with three main points; firstly the question of
22 admissibility generally, and in particular admissibility
23 of documents; and secondly, in relation to this specific
24 motion the admissibility of the letter that Ms. McHenry
25 sought to tender; and finally, the question of the
1 Chamber's power to order an accused person to provide a
2 handwriting sample.
3 To some extent, to a large extent, your Honour,
4 the first issue relating to admissibility will also --
5 the submissions I make will also, to a large extent, be
6 similar to the submissions that I would make in relation
7 to the documents that were seized by the Austrian
8 police. There are other issues obviously that arise in
9 relation to those documents seized by the Austrian
10 police, but the question of admissibility, the matters
11 of law that I will touch upon will, to some extent, go
12 to those.
13 JUDGE KARIBI-WHYTE: Please, I would like you to separate
14 the arguments.
15 MR. NIEMANN: Certainly I will do that, your Honour.
16 JUDGE KARIBI-WHYTE: We are not taking the two motions
18 MR. NIEMANN: I understand that, your Honour. I do
19 understand. Your Honours, in relation to the question
20 of the direction to the accused person to provide a
21 handwriting sample, I will rely largely upon what has
22 been set out in the written motion, but should there be
23 matters that arise that your Honours would seek
24 assistance upon in that, I have asked my colleague
25 Ms. McHenry to research that area and hopefully she may
1 be able to assist your Honours on any issues arising in
2 relation to that, but by a large, we will rely upon what
3 we say in the written motion itself.
4 Your Honours, in our submission, the common law in
5 relation to the admissibility of documents, and indeed
6 the admissibility of evidence generally in proceedings
7 before this Tribunal is by and large a very
8 inappropriate and unsatisfactory vehicle by which to
9 seek to -- upon which to rely when seeking to tender
10 documents. I will seek to expand upon that later in
11 terms of why I say the common law is very unsatisfactory
12 in this regard, but I say this at the outset; that the
13 strict common law as it would be applied in common law
14 countries has, in our submission, been significantly
15 modified by those common law countries, especially when
16 it comes to the tendering of documents.
17 We can see in an examination, if your Honours
18 please, of the various jurisdictions around the world
19 that substantial modification has taken place in terms
20 of business records, with creating statutory exceptions
21 to the hearsay principle, with dealing with public
22 documents, and matters of that sort. Indeed, in
23 Australia, and I do not quote that simply because I come
24 from there, but because I think it is illustrative of
25 the whole issue of admissibility when it comes to
1 documents, in the High Court of that country the whole
2 question of the common law has been commented upon by
3 the bench from time to time, particularly in relation to
4 hearsay, and found to be unsatisfactory.
5 As a consequence of that, in the Evidence Act of
6 1995, there was substantial and significant modification
7 in the law that relates to the admissibility of
8 documents, such that I think it is fair to say that
9 common law principles no longer have any significant
10 application; and indeed, section 51 of the Evidence Act
11 1995 particularly provides that the principles and rules
12 of the common law that relates to the means of proving
13 the contents of documents are abolished.
14 Why is that so, your Honours? In my submission,
15 the reason for that is that with the development of
16 modern communication, with much greater reliance on
17 written material, and the fact that, in a normal general
18 everyday community, we place reliance upon documents to
19 a much greater extent, perhaps, than we did in the past
20 when the common law was conceived, and it is somewhat
21 artificial, in my submission, to then say, when it comes
22 to a court dealing with documents, that it has to take a
23 much stricter approach than that which is acceptable in
24 the ordinary community for all sorts of decisions that
25 are there made.
1 I deal with this on the issue of admissibility.
2 Of course, a document that is admitted into evidence may
3 prima facie appear to be reliable, may prima facie be
4 relevant and acceptable; subsequently, when compared
5 with other pieces of evidence, it may be found to be
6 unreliable. These are issues of weight. In my
7 submission, the modern tendency in many jurisdictions is
8 to move away from the issue of blocking documents from
9 being admitted at the outset, but more to rely upon the
10 court and the finders of fact to receive the evidence,
11 to evaluate it, to consider it, and if the court comes
12 to a conclusion that it is inherently unreliable, or
13 that it does not prove the facts, or that it is
14 irrelevant, at that stage to then say "the court will
15 not rely on this document", and even to go so far,
16 perhaps, to exclude it at that stage.
17 This Tribunal, your Honours, operates in the
18 environment of international law. In operating in that
19 environment, there are no legislatures that one can go
20 to in order to receive modification or modernisation, as
21 it were, of the law. It is also very difficult for this
22 Tribunal to pick up and apply statutory variations, for
23 example in the common law, and apply those statutory
24 variations. The consequence of this is that when the
25 common law is modernised, if I can call it that, this
1 Tribunal to some extent, if it were locked into applying
2 a particular brand of law, if I can call it that, could
3 not pick up those modifications. The Tribunal would be
4 in fact locked in to a type of law, for example the
5 common law, as it was originally conceived, and would
6 have to disregard modern changes in the community which
7 would make it sensible to perhaps not apply old
8 principles of law as they were originally conceived.
9 So I submit, your Honours, that it is for this
10 reason that I would urge your Honours to be slow to
11 simply say a particular type of law, whether it be
12 common law or civil law, is the one that we should pick
13 up and apply, but I say this particularly so with the
14 common law. The reason I say it is particularly the
15 case with common law is because one really does need to
16 look at the basis, at the historical basis of which this
17 evolved. It evolved in an environment where the finders
18 of fact were juries. It evolved in an environment where
19 the finders of fact were not trained in the law. It was
20 evolved in an environment where the finders of fact did
21 genuinely lack the ability to be able to sift through
22 the evidence and determine complicated questions of
23 relevance, of reliability, and so therefore, in my
24 submission, the procedure evolved that before the jury
25 was given this complicated task, before it was expected
1 to give this complicated task, and their task is
2 complicated enough as it is, the judge, the presiding
3 judge, the trial judge, would act as a filter, as it
4 were, and would examine it, examine the documents that
5 the parties were seeking to tender. Upon that
6 examination a primary filtering process would occur, and
7 so that this burdensome task, which was by and large
8 considered to be beyond the jury, was relieved from the
9 jury and rested upon the shoulders of the trial judge
10 who had the training and skill to deal with these
12 So it is, your Honours, that the voir dire process
13 emerged. At a voir dire, as your Honours know, the
14 issues of admissibility do not arise. One does not
15 object to the admissibility of the document before the
16 judge. Clearly the trial judge must see the document,
17 and upon an examination of the document the trial judge
18 makes the decision. What he decides is either "yes,
19 this is a document that is (a) sufficiently reliable or
20 (b) it is relevant or (c) it has probative value and
21 that that probative value is not outweighed by any
22 prejudicial effect that it may have". It is after the
23 trial judge makes these determinations that the document
24 then passes to the tribunal of fact, namely the jury.
25 Of course, we do not have that here. It does not happen
1 here, because your Honours are the tribunal of law and
2 the tribunal of fact.
3 In my submission, your Honours, it is absolute
4 nonsense to suggest that you should not see the material
5 in order to make a determination of it. It is absolute
6 nonsense to suggest that it should not be admitted to
7 you in the same way as it may be admitted to a trial
8 judge at a voir dire in order for you to make a
9 decision. Of course you must see it, otherwise you are
10 left in a total vacuum. You have arguments from one
11 side of the courtroom and arguments from the other side
12 of the courtroom, but you are left there trying to
13 determine the issue without any reference or proper and
14 detailed examination of the document itself.
15 Of course, some documents may be so totally
16 irrelevant that the decision becomes very simple, it
17 becomes excluded within seconds because of that. The
18 document may be so inherently unreliable that the
19 decision may also be easy too. So the whole issue of
20 admissibility may be very quickly disposed. But in my
21 submission, your Honours, the test for admissibility
22 should, having regard to the fact that you perform both
23 tasks, should be so low that it is only in the most
24 extreme circumstance, such as total irrelevance, total
25 unreliability, that your Honours should exclude it.
1 Your Honours can exclude a document at any stage
2 in the proceedings. A document that comes in at this
3 stage might -- you may think, "how could this be
4 relevant? How could this assist the Prosecution case?
5 How could it assist the Defence case?" You might think
6 that, you might ask that. But something might happen
7 later on in the trial which raises its level of
8 reliability, which raises its level of relevance to the
9 point where it then changes its face significantly.
10 It is similar, and there is not much difference,
11 in my submission, your Honours, to oral testimony. Why
12 is oral testimony that much different? The witness
13 comes along, enters the witness box, and gives a version
14 of the facts. Upon hearing those facts, your Honours
15 may say, "I am not sure that we can accept that, having
16 regard to what we know", but it is not ruled
17 inadmissable as such, except in extreme circumstances.
18 Generally the evidence comes in.
19 Alternatively, a witness may come along and give a
20 very credible story, a totally believable story, a story
21 which you accept, and then something may happen later in
22 the trial which convinces you that that evidence cannot
23 be relied upon. The decision that your Honours make is
24 not based on whether or not he should say anything at
25 all and whether there should be some means by which this
1 evidence can be excluded before he opens his mouth; not
2 at all. The witness gives the testimony, and then
3 your Honours compare it with other pieces of evidence,
4 but at the end of the day you may say, "we disregard
5 that evidence. We do not accept it. We do not rely on
6 it". You may go further, you might say "we think the
7 witness was not truthful". But it is not dealt with at
8 an admissibility stage.
9 JUDGE JAN: What you are suggesting is first determine the
10 probative value and then hold whether it is admissible
11 or not.
12 MR. NIEMANN: I am submitting, your Honours, that the
13 document should go to your Honour.
14 JUDGE JAN: Determine the value and then determine whether
15 it is admissible or not. Is that not just putting it
16 the other way.
17 MR. NIEMANN: In my submission, your Honour, it is no
18 different to what happens in a voir dire. Your Honours
19 receive the document as a trial judge and you make the
21 JUDGE KARIBI-WHYTE: That is a special case. It is not a
22 normal -- if you look through our Rule 89 of our rules
23 of evidence and procedure, it sums up all the various
24 systems. In fact, it tells you what to do when none of
25 the matters before you are covered under this rule. It
1 tells you the types of evidence that should be
2 admissible. It talks about relevance, it talks about
3 probative value. Those are the indicia.
4 MR. NIEMANN: I am not trying to move away from those indicia
5 at all, your Honours. What I am saying is I am arguing
6 the basis upon which they should be interpreted, not in
7 any way am I suggesting that they --
8 JUDGE KARIBI-WHYTE: As a general rule, general principle,
9 not in specific cases. The burden is different, because
10 there might be cases where there is a burden on the
11 Prosecution to ensure that somebody else has done a
12 particular thing. It is only when you have shown that
13 the burden will shift.
14 MR. NIEMANN: I really was not speaking of shifting burdens,
15 your Honour.
16 JUDGE KARIBI-WHYTE: It is all related to the evidence and
17 probative value.
18 MR. NIEMANN: The point I was trying to make, your Honours,
19 is this: there is very good reason in the common law why
20 the barrier, as it were, to admissibility may be higher
21 or is higher. There is no question about it, it is
22 higher. That is because of the structure that one is
23 dealing with there. An example I might give,
24 your Honours, is that in common law countries when
25 tribunals are created, or where there are judge alone
1 trials, it is often the case that the statutory
2 provisions that deal with these tribunals, who are
3 performing a task not dissimilar to what your Honours
4 are performing, it is specifically provided for that,
5 for example, the ordinary rules of admissibility at
6 common law are not to apply --
7 JUDGE KARIBI-WHYTE: There are so many national systems,
8 legal systems which operate the same way as we do here.
9 The judge is one of fact and law. They have their own
10 rules, almost identical to what we have in these rules.
11 MR. NIEMANN: I apprehend that it will be urged upon you that
12 the standards and principles that apply should be those
13 that apply according to the traditional common law of
14 England. If that is what is urged upon you -- this is
15 the basis of my argument.
16 JUDGE KARIBI-WHYTE: Our rules do not say that.
17 MR. NIEMANN: That is what I am trying to counter in my
18 submission, your Honours.
19 JUDGE JAN: I thought in the common law there were three
20 stages as far as documentary evidence was concerned.
21 First it had to be relevant, then admissibility had to
22 be considered, and then probative value had to be taken
23 into account. You are saying that first consider what
24 is its probative value, and then decide whether it is
25 admissible or not.
1 MR. NIEMANN: I was not saying that, your Honour. If that
2 was what I appeared to convey, I am sorry, I did not
3 mean that. I am not saying that. I am saying that the
4 documents should be admissible and that the barrier
5 should be low, and the reason why it should be low is
6 because your Honours have the skill and ability not to
7 be affected by material that you may be presented with
8 which you ultimately reject on the basis of relevance,
9 probative value or reliability.
10 It is very hard, and it has always struck me as
11 being very hard --
12 JUDGE KARIBI-WHYTE: My difficulty with your argument is
13 that you are proceeding from the point of view of a
14 national system instead of proceeding from the point of
15 view of our own rules.
16 MR. NIEMANN: I am hoping to get to that, your Honour,
17 because I am at the moment endeavouring to persuade you
18 not to place reliance upon the common law. That is the
19 first branch of my submission.
20 JUDGE KARIBI-WHYTE: It should be the other way round. You
21 should tell us why from our rules we should proceed the
22 way you are suggesting.
23 MR. NIEMANN: I promise I will come to that, your Honours.
24 If your Honours will permit me, I do wish to go through
25 the various stages, because it is very natural, it is
1 very natural if we are trained in a particular
2 jurisdiction for us to automatically almost go back to
3 the basis of our training and say, "that does not fit,
4 that is not right", and we make definitive decisions
5 based on the fact that that is the way we understand it
6 to be correct. It is difficult when you come into this
7 jurisdiction to say, "no, that is not the way you
8 approach it at all. There are good reasons why you do
9 not approach it that way".
10 I will move on, your Honours, but the point that
11 I did want to emphasise is that the common law is
12 probably the least helpful system that your Honours can
13 turn to for guidance in this area, and I emphasise again
14 that not only is it the least helpful in this
15 jurisdiction, even in common law jurisdictions, it is
16 being found that the traditional common law is not
17 helpful either and is being changed. Your Honours will
18 be well aware that in large fraud cases, where people
19 are dealing with thousands and thousands of documents
20 and the cases go for many months, that the documents are
21 admitted de bene esse and it is only at the end of the
22 day the final determination is made because there is an
23 interlinking between them. You really cannot tell just
24 how reliable this document is, just how relevant or
25 probative this document is until you have gone through
1 that process of examining the totality of the material.
2 Even at common law, the common law itself is evolving
3 away from strict rigid principles with such procedures
4 as admissibility de bene esse.
5 So, your Honours, I will move from the common law
6 to the civil law, and I will say that it does not help
7 much either, except that a totally different approach is
8 taken, and indeed, an approach much closer to what, in
9 my submission, should be applied in this jurisdiction.
10 Under the civil law codes, of course, admissibility
11 itself does not become a major issue. There are reasons
12 for that. One of the reasons, your Honours, is the fact
13 that there is an investigating judge for example.
14 Investigating judges deal with these questions often
15 before the trial, and sets up the dossier containing the
16 material. So it is a very different process to what we
17 have here which blends the adversarial with perhaps
18 civil, but basically it is an international jurisdiction
19 which is different.
20 So for example in most jurisdictions, and I could
21 take your Honours to them, but I apprehend that it may
22 not assist much if I do, but if I can generally
23 summarise it, the emphasis is not on admissibility
24 alone. There are occasions, I understand, I am no --
25 I profess to be no expert in this, but there are
1 occasions where documents are not put in and are
2 excluded, but by and large the emphasis is on weight and
3 not on admissibility. The documents tend to be received
4 and once they are received it is then at that stage that
5 the totality of the evidence is considered.
6 Your Honours, neither common law nor civil law
7 helps us much on this question, and indeed, I found it
8 interesting to see the remarks of Judge Jorda recently
9 in the Blaskic case when he almost in frustration was
10 saying that this contest between civil law and common
11 law was of little help to anybody, and that really the
12 whole issue should be looked at on the basis, as
13 your Honours put, of the Rules of the Tribunal and
14 indeed, questions of admissibility as have at least been
15 examined to some extent in the international law
16 jurisdiction. I am searching, your Honours, for His
17 Honour Judge Jorda's comments. I cannot find them. If
18 I can, I will come back to them, because it is a very
19 short passage and very instructive, in my view, of this
21 Turning, your Honours, to international law, as
22 your Honours are aware, the international law, the most
23 active area of international law has not been in the
24 criminal jurisdiction. The most active area has been in
25 disputes between states or even, at best, quasi judicial
1 jurisdictions. That is apart from Nuremberg. I do not
2 think that in my submission one should just ignore the
3 international law in its other manifestations, and
4 simply say that only where international law has spoken
5 in a criminal law jurisdiction, that is the only basis
6 that the Tribunal should be concerned about. In my
7 submission, it is appropriate to look at what happens,
8 for example, in the International Court of Justice in
9 the inter-American system, in the European system and in
10 the International Court of Arbitration, and so forth.
11 Before I move on into that part of my submission,
12 I have now found the comment that His Honour Judge Jorda
13 made in the Blaskic case. He said, on 25th June 1997,
14 page 86 of their transcript:
15 "I think what separates us is a conceptual problem
16 and a legal culture. We cannot throughout this trial
17 keep opposing one system against the other. As I said
18 to you yesterday, the Tribunal guarantees an equitable
19 just trial for the accused, and also allows the
20 Prosecution to prove what is charged."
21 In my submission, that is an expression of the
22 concern about trying to deal with these issues on that
23 basis. Certainly there is some assistance that can from
24 time to time be obtained from looking at common law,
25 looking at civil law. As your Honours know you are not
1 bound by the common law, your Honours are not bound by
2 the civil law. Your Honours are probably not bound by
3 international law, and your Honours are probably not
4 bound by decisions of other chambers in this Tribunal,
5 but if there was to be a hierarchy of persuasive value,
6 if I might call it that, on my submission, the lowest
7 persuasive source of law on this issue, and I do
8 emphasise on this issue, is the common law; the next up
9 the ladder would be the civil law; then in my submission
10 one would look to international law in the civil
11 jurisdiction; and then what little there is in
12 international law in the criminal jurisdiction; and then
13 rise to decisions of your brothers or sisters in this
14 Tribunal, and ultimately one would look to what has
15 fallen from the Appeal Court of this Tribunal. In my
16 submission, that is the appropriate line of authority to
17 assist your Honours, and I emphasise on this point.
18 Sometimes it may change, but essentially by and large,
19 that in my submission is the source of authoritative
20 reference which is open to your Honours.
21 In the International Court of Justice,
22 your Honours, the evidence is rarely excluded. States
23 are encouraged to put before the court as much material
24 as they consider is useful for the presentation of their
25 case. In practice, while the court would place few
1 restrictions on the rights of parties to produce
2 whatever evidence they see fit, it has only rarely on
3 occasions exercised discretionary authority to refuse or
4 accept evidence that is offered. So by and large there
5 is a very low level or low level test of admissibility
6 before the International Court.
7 The Tribunal established under the Inter-American
8 Convention on Human Rights, which was by the American
9 Human Rights Commission in proceedings before the
10 Inter-American Commission and the Inter-American court,
11 interested parties may offer all pertinent verbal and
12 written information in order to clarify the acts under
13 consideration. Again there is not a criminal
14 jurisdiction as such.
15 In proceedings before the International Court of
16 Arbitration, the court shall hear all evidence that is
17 relevant to the particular dispute at hand. Indeed,
18 traditionally evidence is seldom excluded in
19 international arbitration proceedings.
20 Turning now, your Honours, to Nuremberg. In my
21 submission the Nuremberg principles are in terms of
22 historic and probative value, probably the best source
23 that your Honours can go to outside of decisions of this
24 Tribunal. In the Nuremberg trials it was emphasised
25 that the trials were of international character. The
1 Tribunal emphasised that they were not bound by
2 technical rules of evidence as recognised in any
3 jurisdiction, in the case that I am looking at, in the
4 case of the United States or of any other country. The
5 Tribunal tried cases and there were no juries. The main
6 test of admissibility of evidence was established by the
7 requirement that the tribunals must admit any evidence
8 which they deemed to have probative value.
9 Your Honours, Article 7 provided that evidence
10 would be admissible if it appears to the Tribunal to
11 contain information of probative value relating to the
12 charges, and the types of evidence contemplated as being
13 admissible before that Tribunal, under that test, were
14 affidavits, depositions, interrogations and other
15 statements; diaries, letters, the records of findings,
16 statements and judgments of the military tribunals and
17 the reviewing and confirming authorities of any of the
18 United Nations and so on and so on. I will not trouble
19 your Honour by reading through it in detail, but indeed
20 it was very expansive.
21 Your Honours, there are a number of examples that
22 one can turn to in relation to Nuremberg. I will say
23 more on captured German documents and so forth and how
24 they were dealt with -- I apprehend I might say so at a
25 later stage, but for example, the sorts of documents
1 that were admitted in Nuremberg included, over
2 objection, included such things as a photostatic copy of
3 an unsigned carbon copy of a memorandum listing the
4 membership and positions of the defendant Alfred Krupp
5 Von Bohlem in more than 30 enterprises and
6 organisations. The memorandum had been found on the
7 files of the defendant at the headquarters of Krupp, a
8 company in Essen in Germany. The document was offered
9 on the first day of the Prosecution presentation of
10 evidence. The Defence objected to its admission on the
11 grounds that it bore no signature, and that no evidence
12 had been submitted as to the author or where it had come
13 from. After discussion, the Tribunal admitted the
14 evidence, the exhibit as evidence, stating that any
15 objection went rather to weight than to admissibility of
16 the document.
17 There are other cases and other documents which
18 I could refer your Honours to and will do when dealing
19 specifically with the other motion.
20 So your Honours, in my submission, you can see
21 that from Nuremberg there is a very low barrier to cross
22 when it comes to admissibility; always preserving the
23 right of the Tribunal to subsequently reject the
24 material on the basis of its inadmissibility because it
25 lacks probative value, it is either unreliable or it is
2 Your Honours, if I may, the next level up the
3 ladder, if I can call it that, of authority which may
4 have been of assistance to you is decisions of this
5 Tribunal. Regrettably, at this stage, there are only a
6 few of those, but indeed there are some decisions.
7 Primarily, the decisions come from the Tadic case, but
8 in the Tadic case, the Trial Chamber drafted a standard
9 of admissibility that promotes the spirit of the statute
10 while following the letters of the rules of procedure
11 and evidence. The tryers of fact and law in those
12 proceedings, it was acknowledged that they were not
13 juries but professional judges, who by virtue of their
14 training and experience had the ability to hear the
15 context in which the evidence was obtaining and to
16 accord it its appropriate weight. In the Tadic decision
17 in the Defence motion on hearsay the court said that
18 some component of reliability was required. In our
19 submission, the component of reliability standard is
20 significantly lower than what is traditionally
21 understood as being the standard that has been applied
22 in common law jurisdictions in the traditional sense.
23 Your Honours, there are a number of times during
24 the Tadic case when material was sought to be tendered
25 which the Defence argued was either unreliable or should
1 have been excluded, and time and time again there was
2 debate on this issue, and these arguments led to the
3 motion that was filed upon which the decision was made.
4 But I think it is instructive, if your Honours will bear
5 with me, to perhaps take you to some instances of it,
6 because it is easy to speak of these things in general
7 terms, but when one sees it in the context of what
8 actually occurred and to see how that court dealt with
9 it, it may be of some assistance to your Honours.
10 I again emphasise that none of what happened, especially
11 during the course of the trial, has any binding effect
12 upon your Honours at all. I am not suggesting it is
13 binding, I am just suggesting it may be of assistance to
14 your Honours.
15 One example, your Honour: there was Witness Q
16 whose evidence was taken on 11th June in 1996. The
17 witness was testifying, and he said at line 12 on
18 page 1496 of the transcript in the Tadic case, and
19 I will quote, if I may, what the witness actually was
20 saying at the time. The witness said:
21 "The story that the guards who were down there
22 told us was more or less as follows. As they were
23 sitting at that guarding post near the church", and then
24 it goes on.
25 Mr. Kay for the Defence immediately rose to his
1 feet, raised an objection. Mr. Kay said he objected to
2 it and he said:
3 "It is an important matter because it is concerned
4 with hearsay. We are dealing now with an account given
5 to this witness by other people making an allegation
6 against the defendant Tadic. There are levels of
7 hearsay that perhaps the court might well accept and
8 admission in evidence to enable the flow of proceedings
9 and because we are now bound by the usual form of rules,
10 but our submission is that there comes a stage when
11 evidence is important relating to the determination of
12 issues in this case, when there must be some security
13 for the Defence as to the substantial prejudice to be
14 caused by using hearsay from other people. We are not
15 now for the first time dealing with perhaps evidence
16 that directly concerns allegations within the indictment
17 against the defendant. The Prosecution have chosen to
18 rely upon evidence through this witness, that is given
19 by him, because he was told by others as to what took
20 place. This, as the court will appreciate, is a matter
21 of great concern to us."
22 I will not trouble your Honours with the response
23 by the Prosecution to that. Mr. Tieger was arguing. But
24 your Honours, I will take you to what the presiding
25 judge said at line 14, page 1497. She said:
1 "We have said before, I suppose, that we do not
2 have a hearsay rule. For your information it might be
3 helpful to you lawyers, I do not think that I am
4 speaking out of school and I ask my fellow judges to
5 correct me if I am wrong; as you know the judges drafted
6 these rules and in the drafting process there was much
7 discussion about the evidence rules, and we have ten
8 rules of evidence. I come from a jurisdiction where
9 hearsay is a factor in trials. Judge Stephen and Judge
10 Vohrah also come from a system where hearsay is a factor
11 in trials. In my system, we have 24 or 28 exceptions to
12 hearsay, so that although hearsay is not admissible, it
13 becomes admissible, even though it is hearsay, if it
14 fits within these exceptions. I do not know about Judge
15 Vohrah or Judge Stephen.
16 "The whole point though of the exceptions relates
17 to our system in that evidence regarding statements that
18 are made other than while the declarer is testifying by
19 the court comes in if the court considers it is reliable
20 if it is probative. So that our rule, even though the
21 rule does not specifically deal with hearsay, we have
22 this probative requirement so that in drafting the rules
23 we will admit evidence that has probative value,
24 probative meaning tending to support the fact for which
25 it is admitted. During our discussions, judges
1 expressed different views about how evidence should come
2 in. We have looked at those views expressed,
3 particularly by us three judges, so I will overrule your
4 objection, and I am overruling it again, because we are
5 a special Tribunal, and we have ten rules of evidence.
6 We are focusing on probative value."
7 Your Honours, there are numerous instances of this
8 throughout the case. The objections were raised from
9 time to time by the Defence, but in, if I can remember,
10 all instances when it was a hearsay objection -- and
11 hearsay is relevant because obviously one of the factors
12 about a document is that it is a form of hearsay. It is
13 not the declarer, not the person who wrote it who comes
14 to testify, it is hearsay. So underlying objections to
15 a document is that factor.
16 I could take your Honours to other such examples
17 because they are numerous indeed. It worked both
18 sides. At one stage, I might say, we had the temerity
19 to object to a Defence exhibit on a similar basis. Her
20 Honour was more swift in dealing with us, I might add,
21 she said she did not want to hear our objection.
22 Your Honours, this is the basis in my submission
23 that these documents should be admitted. Your Honours
24 are dealing in a very special jurisdiction --
25 JUDGE KARIBI-WHYTE: Which document are you referring to?
1 MR. NIEMANN: As a matter of general principle, but I am
2 dealing with the one document, if your Honour pleases.
3 That is the basis of this motion.
4 JUDGE KARIBI-WHYTE: Which document is it?
5 MR. NIEMANN: It is a letter. Ms. McHenry sought to tender
6 the letter -- I do not know whether --
7 JUDGE KARIBI-WHYTE: I know where you are.
8 JUDGE JAN: A letter written by Pavo Mucic to one of the
10 JUDGE KARIBI-WHYTE: Allegedly written by.
11 MR. NIEMANN: Yes, your Honour, which we say contains issues
12 of liability, which we say is relevant, and which we say
13 has probative value. Ms. McHenry addressed you at the
14 time on those issues. I can take your Honours back over
15 it again if that would assist, but in my submission
16 clearly that is the case with respect to this document.
17 The problem related to admissibility, because the author
18 had not been produced, the person that wrote the
19 document had not and could not be produced in our
20 submission, because it is our submission that it was
21 written by Mr. Mucic.
22 So in our submission, your Honours, this document
23 satisfied all criteria and should be admitted.
24 JUDGE KARIBI-WHYTE: Are you abandoning the other
1 MR. NIEMANN: No, your Honours. I thought I preserved all my
2 arguments --
3 MR. NIEMANN: Mr. Niemann, you still have an obstacle. You
4 still have to prove it is written by him. If you can
5 prove it is written by him, it will be admissible,
6 without all that argument.
7 MR. NIEMANN: Your Honours, I do not want to have to go back
8 over those issues again --
9 JUDGE JAN: But it has to be proved first it is written by
10 him. Then, of course, it will be admissible.
11 MR. NIEMANN: Yes. Your Honours, in our submission we prove
12 it to the standard of admissibility based on the
13 contents of the document. We do it on the basis that it
14 is written by a person who calls himself Pavo, and Pavo
15 is a person who -- excuse me (Pause). I have been given
16 something which has been reduced so I can read it out:
17 "The letter contains a number of components that
18 indicate its reliability and authenticity as a document
19 written by the defendant Mucic. The letter was hand
20 delivered" --
21 JUDGE KARIBI-WHYTE: You do not need to read the written
22 answers. I know the written submissions contain a lot
23 of internal evidence which you could so determine, but
24 my anxiety is you suggested applying Rule 54 and the
25 handwriting sample -- if you are abandoning it, you can
1 do so.
2 MR. NIEMANN: I am not abandoning it, that is the next test.
3 That goes to weight in my submission. The issue is
4 admissibility. What is the point of having the document
5 analysed if it is not admitted? It seems to me, your
6 Honour, that is putting the cart before the horse.
7 One admits the document into evidence, and if we
8 argue that it has weight, your Honours may quite rightly
9 say to us, "We cannot afford this document much weight
10 because we are not content that it is reliable. If you
11 are asserting it is something the accused Mucic has
12 said, we are uncomfortable about that". Your Honours
13 could either express that or we could perceive that as a
14 position. We would perhaps try and increase the weight
15 of the document by obtaining handwriting samples. It
16 was the very point I was making, your Honour --
17 JUDGE KARIBI-WHYTE: If actually you have established that,
18 then it becomes conclusive there will be no question of
19 discussing any other thing, if you can establish from
20 the handwriting examination that it was written by the
21 person alleged to have done so.
22 MR. NIEMANN: But my submission, your Honour, is: why does it
23 affect its admissibility? In my submission it does
24 not. It cannot affect admissibility. It may affect
25 what weight you give to it, what reliance you place upon
1 it, but surely it cannot affect admissibility. The
2 indicia of reliability, the relevance and its probative
3 value, it is clear the document speaks for itself,
4 your Honours. One admits it, but if the Prosecution is
5 content with it only being given light weight, it may
6 not take it any further, but if the Prosecution wishes
7 to urge your Honours to give it great weight then the
8 Prosecution may well have to do more, but that is no
9 different to any document, any document --
10 JUDGE KARIBI-WHYTE: That is your submission.
11 MR. NIEMANN: That is our submission. I am certainly not
12 abandoning any aspect of it. I submit that the issue of
13 admissibility comes first and that I have dealt with.
14 JUDGE KARIBI-WHYTE: Usually you do not give weight to
15 something which is not in evidence.
16 MR. NIEMANN: That is true. The next question is on what
17 basis can it be afforded greater weight and that
18 basis -- one of the ways it can be is by having
19 handwriting analysis. It is not the only way, but it is
20 one way. Then one proceeds to do that if one feels that
21 the document should be given greater weight. It may be
22 that the Prosecution's case is that it does not mind
23 that it is not going to be given the greatest weight, it
24 is not the determining factor. I have heard some
25 submissions from the Defence about proving something
1 beyond reasonable doubt which I still fail to
2 understand, but I accept my ignorance perhaps of this,
3 but it seems to me that if one was putting before
4 your Honours one document, and the Prosecution said
5 "this proves, this document proves that the accused
6 murdered X, beat X, was inhumane", whatever, it proves
7 an element of the offence, then if the Prosecution had
8 not proved it beyond reasonable doubt I think the
9 Prosecution would have a lot of problems. But in terms
10 of admitting the document and collectively taking them
11 altogether and looking at them, at the totality of the
12 evidence, it is only then, especially with documents, it
13 is only then that you can really make the final
14 determination. So it has to come in if the court
15 expresses disquiet or if the Prosecution perceives it,
16 it then may take the other steps, but your Honours, I am
17 not abandoning anything in our motion, as I said at the
18 outset. Ms. McHenry will assist me, should
19 your Honours have concerns about directing handwriting
20 samples. She has kindly researched it for me and she
21 will take your Honours to that.
22 JUDGE JAN: You do not have to take a handwriting sample.
23 You can produce a witness who is familiar with his
24 handwriting and he can say it is his handwriting.
25 MR. NIEMANN: Yes, your Honour. There are numerous ways of
1 doing it. Often the greatest difficulty that the
2 Prosecution has is finding those very people who are
3 willing to come along and testify. We inside have
4 enough trouble getting witnesses to events to come along
5 to testify, let alone perhaps those. There are
6 complications in that. It is because of these very
7 complications that different approaches have to be
8 taken. It is because of these very complications that
9 modifications have been made to the common law, business
10 records provisions, traditionally saying -- indeed not
11 only business records, ordinary records, on the other
12 hand documents say "if the person who wrote the document
13 is not available or is outside of the country, then
14 there are means by which those documents can be admitted
15 at common law".
16 JUDGE JAN: The source from which a document comes; that, of
17 course, has a bearing --
18 THE INTERPRETER: Microphone, your Honour, please.
19 JUDGE JAN: -- because business records and whole files,
20 correspondence, when the document comes in, you say well
21 fair enough, we can presume that it is a genuine
22 document. It depends upon facts about each document.
23 MR. NIEMANN: That is true. Indeed, your Honour is quite
24 right. The source of the document is very, very germane
25 to the issue, but it is not the only issue when it comes
1 to admissibility. It is just as germane, the location
2 of where it was found, it is just as germane to the
3 question of its weight.
4 JUDGE KARIBI-WHYTE: I still have some difficulties. Your
5 argument that it should be admissible, ought to be
6 admissible on the evidence as it is, this is your
8 MR. NIEMANN: Yes.
9 JUDGE KARIBI-WHYTE: You have made a certain allegation.
10 Should you not establish that allegation?
11 MR. NIEMANN: And indeed if we do not and your Honours are
12 not satisfied, your Honours should reject the document.
13 The question, your Honour, is why exclude it from being
14 admissible? The reason why it is traditionally
15 excluded, your Honours, is as I explained earlier.
16 You do not want to give this to the jury. The
17 Prosecution makes an allegation, gives it to the jury,
18 and says "Here, this is a letter from X, and look what
19 it does, it says 'I admit all these offences'". The
20 courts are very careful about that, because it is
21 pointless saying to a jury after you have shown them
22 that, "Ladies and gentlemen, disregard that, because we
23 have now discovered that it is not going to be evidence
24 in these proceedings". So the common law has crafted
25 this process to deal with it. That does not apply
1 here. If your Honours at the end of the day say "we are
2 not satisfied this comes from Mr. Mucic, we are not going
3 to accept it, we do not rely on it" --
4 JUDGE KARIBI-WHYTE: An important aspect is that Mr. Mucic
5 has said nothing.
6 MR. NIEMANN: That can go both ways, your Honour.
7 JUDGE KARIBI-WHYTE: He has said nothing about the letter,
8 so it lies entirely on you to establish what it is.
9 JUDGE JAN: There are three stages, proof of a document,
10 admissibility and probative value. They come in that
11 order. If you show it has been written by him, of
12 course, it will be admitted.
13 MR. NIEMANN: I am not sure one has to show it has been
14 written by him first.
15 JUDGE JAN: Proof of the document.
16 MR. NIEMANN: The document is the document itself.
17 JUDGE JAN: That this document belongs to such and such
18 person, or such and such person's authorship.
19 MR. NIEMANN: For the sake of admissibility your Honour is
20 quite right.
21 JUDGE JAN: The second stage is, is it admissible. The
22 third step, if it is admissible, what is its value? The
23 first step comes first.
24 MR. NIEMANN: It is a very low test, at that stage. At that
25 stage, it is right at the bottom, because, your Honour,
1 it is not --
2 JUDGE JAN: It is not part of a business record, this
3 letter. This is a one time letter sent to a person
4 supposed to be Pavo. You have to show that it is Pavo's
5 letter and then of course the other questions of
6 consideration will follow.
7 MR. NIEMANN: Under the common law, your Honour is quite
8 right. I would have to call Mr. Mucic --
9 JUDGE JAN: Not necessarily, someone who is acquainted to
10 his handwriting, somebody who knows that this letter has
11 been written by him. You do not have to call Mr. Mucic
12 for that.
13 MR. NIEMANN: But your Honour, the best evidence rule. I am
14 talking of traditional common law. The best evidence
15 rule of traditional common law is you call the author.
16 JUDGE JAN: If it is part of a business record or some
17 register or something like that, of course you will take
18 it, but here you suggest an isolated document alleged to
19 be written by him, so you have to show it is written by
21 MR. NIEMANN: That is done by its contents, what it says and
22 the fact that it is signed by the person, the fact that
23 it is addressed to a person that the person knows, and
24 all of these factors go to prove that.
25 JUDGE JAN: That person has also said that he is not
1 acquainted with his handwriting. I think that was one
2 of the questions you asked of him. The person who
3 received it said he was not acquainted with the
5 MR. NIEMANN: But he is acquainted with the person who wrote
7 JUDGE KARIBI-WHYTE: The person, yes, but not even with the
9 MR. NIEMANN: Your Honours will, no doubt in your own
10 experience, receive letters from people all the time,
11 signed by somebody --
12 JUDGE JAN: I regularly receive letters from someone. I can
13 say, "I have seen letters from him, this is his
14 handwriting", but this is a one time letter, and the
15 person who received it was not acquainted with his
16 handwriting, so maybe those tests are not satisfied at
17 all. If that person had said, "Yes, I am aware of his
18 writing, I have received letters from him, I have seen
19 him writing", fair enough, that is by itself a proof of
20 the document.
21 MR. NIEMANN: May I be permitted --
22 JUDGE KARIBI-WHYTE: I suppose Mr.s McHenry might be able to
23 deal with that.
24 MR. NIEMANN: May I be permitted to give you an example, your
25 Honours? If I receive a letter from somebody who I may
1 not have known of before, but it speaks of things I may
2 know of, I may know this person, and there are all these
3 indicia that this is a general letter from a person,
4 I might respond to that letter. I might do a number of
5 things with that letter, but I do not immediately say "I
6 cannot have anything to do with this because it has not
7 been proved to me that this is a letter from X". In the
8 ordinary way of life one goes to the contents, who it is
9 addressed to, the relevance of it, things which may be
10 peculiar to the knowledge of that person, all of these
11 issues. One looks at that and one gives it an indicia
12 of reliability. You may say, "am I prepared to give
13 somebody 200,000 guilders based on what is said in this
14 letter", no, I may not, I may want further proof of the
15 authorship or things of that nature, I may, because that
16 is the next standard, but in my submission it works in a
17 similar way before this Tribunal. What happens is the
18 document is received, your Honours are entitled to have
19 your suspicions and probably quite rightly you should
20 have about them, and then the next stage comes -- there
21 are two stages. It is the comparison of the document
22 with the totality of the evidence is the first stage.
23 The second stage is other matters such as bringing along
24 a witness who says "Mr. Pavo, I knew him very well. Yes,
25 I would recognise his handwriting anywhere. I do,
1 I recognise this, this is his handwriting". That is
2 good evidence. The accused himself could perhaps do it,
3 it is unlikely, but he could. Or alternatively, a
4 handwriting expert might come along and say "yes, I have
5 examined this and I have compared it with other pieces
6 of writing and I am satisfied, yes, that this is written
7 by the same person". There are probably other ways
8 which I cannot think of now, but they are ways of doing
10 But that does not go to admissibility,
11 your Honours. What goes to admissibility is what the
12 document says, in this jurisdiction, what it says on its
13 face and is it something which one could say bears an
14 indicia of reliability. It does, in my submission. So
15 that should be the basis upon which it is admitted.
16 Unless I can help your Honours with any other
17 matters, Ms. McHenry may assist you with the
18 handwriting aspect, otherwise your Honours may be
19 satisfied base on --
20 JUDGE KARIBI-WHYTE: I still have some difficulties with
21 observing Rule 89 and the specific protection made to
22 ensure a fair trial, because this is a matter for
23 evidence. One does not prejudice the position of the
24 accused by admitting this. If you look at (D), you have
25 to think of other ways of ensuring that the evidence so
1 admitted does not affect --
2 MR. NIEMANN: Your Honours, the determination of what amounts
3 to a fair trial is a matter inherently resting with
4 your Honours. It is not, in my submission,
5 appropriately determined by your Honours being fearful
6 that you yourselves will be so prejudiced that you
7 cannot disregard the evidence.
8 JUDGE KARIBI-WHYTE: It enables exercise of a discretion to
9 exclude if it becomes necessary.
10 MR. NIEMANN: Your Honours, if I may, the reason why you
11 would exclude it is because of its prejudicial effect.
12 Most evidence that the Prosecution adduces as
13 prejudicial --
14 JUDGE KARIBI-WHYTE: If you find that the nature of a
15 document itself, if you find that it can be produced by
16 anybody and there was no real signature other than the
17 fact that an assumed name was used in writing it, unless
18 you can establish something higher like its probative
19 value, it might be difficult for anybody to accept it as
20 authentic, as coming from the accused.
21 MR. NIEMANN: It may indeed be difficult to give it the sort
22 of weight that your Honours may otherwise wish to give
23 it. In my submission, it is instructive to look at
24 Rule 89(E). It is instructive to look at that, because
25 in my submission, that contemplates, by the use of the
1 word "evidence" in 89(E), that contemplates that
2 something has come before your Honours in the course of
3 the proceeding, that during the course of your
4 evaluation of it throughout the trial, your Honours have
5 some disquiet as to its reliability. So your Honours
6 are specifically given a power to request verification.
7 All of this contemplates that the document or whatever
8 it is, is admitted, that it is evidence. It says
10 JUDGE KARIBI-WHYTE: It is not in the circumstance.
11 MR. NIEMANN: But it says, your Honour, "may request
12 verification of the authenticity of evidence".
13 JUDGE KARIBI-WHYTE: "Obtained out of court".
14 MR. NIEMANN: Exactly. That is what a document is. But
15 your Honours could, very unlikely in my submission, say
16 "we require verification of something before it ever
17 becomes evidence" because there would be no point,
18 your Honours would not know about it. It is only when
19 it becomes admitted then your Honours become concerned
20 about it that the rules vest you with the power to
21 require verification of its authenticity. If the
22 Prosecution chooses to ignore that, it does it at its
23 peril. Your Honours will then obviously either
24 disregard it in totality or give it very, very little
1 But in my submission, paragraph (E) of 89 lends
2 weight to my argument that it is admitted first and it
3 is after its admission that your Honours make an
4 assessment and then you have the power to say "we
5 require it", and if we do not, there is two consequences
6 made for that. Your Honours may just reject it, that
7 one does not deal with it as an issue of admissibility.
8 Your Honours are not going to be prejudiced by looking
9 at the letter. I am confident that your Honours are
10 going to afford these accused a fair trial. I am
11 confident that your Honours are not going to say, "well,
12 this document does not appear to us to be very
13 reliable. Nevertheless we are going to use it as a
14 basis for conviction, notwithstanding the fact that we
15 are not satisfied and we do not find it reliable".
16 Your Honours are not going to do that. Your Honours are
17 going to discharge the duties that have befallen you and
18 you are going to give these accused a fair trial.
19 JUDGE KARIBI-WHYTE: I am drawing attention to these
20 provisions so you might know the limitation of whatever
21 the Prosecution has produced.
22 MR. NIEMANN: And in my submission, your Honours, 89(A)
23 through to (E) completely encapsulate the very
24 submissions I have been making. Firstly, national rules
25 do not apply, so let us not be confused by that.
1 JUDGE KARIBI-WHYTE: They will apply if it becomes
2 necessary. They may. They are not ruled out.
3 MR. NIEMANN: They cannot be binding. They may be of some
4 value --
5 JUDGE JAN: Technical rules, but not as rules of --
6 JUDGE KARIBI-WHYTE: Because it says:
7 "Any rule of evidence which will best favour a
8 fair determination of the matter before it".
9 MR. NIEMANN: "And is consonant with the spirit of the
11 JUDGE JAN: Rules of prudence.
12 MR. NIEMANN: And indeed rules of prudence, your Honour, in
13 our submission suggest that a letter written by a person
14 who has signed it -- a letter that is received, I will
15 put it precisely as it is -- a letter that is received
16 by a witness in these proceedings dealing with issues
17 that arise in these proceedings, endeavouring to
18 befriend that witness and do other things, and I will
19 not go into detail, doing all those matters, and signed
20 by a person who has a nickname, which has been -- in my
21 submission, has to have been established in these
22 proceedings, carries a great deal of the indicia of
24 JUDGE KARIBI-WHYTE: Would we not say "ought to carry a
25 great deal"? That as well established, that it ought to
1 carry a great deal. Not before then.
2 MR. NIEMANN: I am content to use your Honour's terms. They
3 ought to, and if they ought to, they ought to be
4 admitted, because they ought to carry it based on that.
5 I am happy to use that term, yes, your Honour.
6 JUDGE KARIBI-WHYTE: That is the right word, it should be.
7 Until that has been established, until that.
8 MR. NIEMANN: They ought to carry it, your Honour. If they
9 ought to carry it, they ought to be admitted. There may
10 be other issues to increase the reliability, such as
11 authenticity, such as proving the author, which is what
12 authenticity is, proving the author. It may be that
13 your Honours feel that is necessary, but it is not dealt
14 with by admissibility, because I am confident that
15 your Honours are not going to exclude these accused from
16 a fair trial based on that. Just as the Tadic case, the
17 quote that I gave your Honours, we had hearsay based
18 upon hearsay there, and the Defence were saying, "this
19 affects us because we cannot have a fair trial". That
20 is not true. The court can give it whatever weight it
21 thinks is appropriate. If the court relies on it to
22 reach a determination and it is unreliable, then yes,
23 the court may have done that, the court may have erred,
24 but that is not, in my submission, what occurs. The
25 evidence comes in and then those assessments are made.
1 Then 89(E) is an opportunity for your Honours to say to
2 the Prosecution or the Defence, "this has not reached a
3 level of authenticity, of reliability that satisfies us
4 that we can either rely on it or place much weight on
6 Do your Honours wish to be addressed on the
7 question of handwriting?
8 JUDGE KARIBI-WHYTE: If you are still relying on it, you
10 MR. NIEMANN: Yes, we are.
11 JUDGE KARIBI-WHYTE: Ms. McHenry, I think we might take a
12 break so that you will start at 12.00.
13 (11.25 am)
14 (A short break)
15 (12.00 pm)
16 JUDGE KARIBI-WHYTE: We will continue with Mr.s McHenry.
17 MS. McHENRY: Thank you, your Honours. I will be very
18 brief, your Honours, and will generally rely on what is
19 stated in our brief. Let me first just a little bit try
20 to clarify the matter, especially because it may have
21 been my initial request for the handwriting sample that
22 has caused some confusion about exactly what the
23 Prosecution is and is not arguing here.
24 The Prosecution has not abandoned, in any way, its
25 argument that this court has the authority to order an
1 accused to provide a handwriting sample. I am going to
2 briefly speak to that matter. What the Prosecution has
3 been arguing, both initially in our brief and then here
4 today is that the handwriting sample is not and cannot
5 be necessary for the question of admissibility of the
6 document. In particular, the Prosecution believes that
7 under Rule 89 and under rulings of this court and the
8 Tadic decision, the Prosecution does not have to prove
9 the authenticity of a piece of evidence, be it a
10 document or a hearsay statement or even direct evidence,
11 in order for it to be admitted. The Prosecution has to
12 establish that there is some indicia of reliability and
13 in this case it would be some indicia of reliability
14 that the document is what it purports to be, i.e. a
15 letter from the accused Mr. Mucic.
16 Again, I will not go over what is already in our
17 brief, but in this case, here in addition to it being
18 signed with the name Pavo, the author mentions specific
19 documents known to him and the accused, he mentions
20 specifically the statement the witness has provided, not
21 publicly available. He gives his own address here in
22 the Hague, and this is sufficient for it to be admitted.
23 The Prosecution will certainly agree that this
24 indicia of reliability is not proof in the sense of
25 proof beyond a reasonable doubt, that this letter was
1 written by the accused. What we argue is that such
2 proof is not necessary or even appropriate under the
3 Tribunal's rules that such proof cannot be required,
4 either of the Prosecution or in similar cases such as
5 happened yesterday with some documents which were
6 ultimately admitted by the Defence, were ultimately
7 admitted by your Honours at the request of the Defence.
8 It is the case that proof beyond a reasonable
9 doubt or close to that may be relevant to the weight,
10 and after this document, the letter from Mr. Mucic, at
11 such time as it has been admitted, if it is, but not
12 until such time, the Prosecution or this Chamber may,
13 under Rule 54 or Rule 89(E), direct the accused to
14 provide a handwriting sample. For sake of economy,
15 I will discuss that argument now, although we believe
16 that this argument must come after the document has been
18 Under Rule 54 this Chamber has the authority to
19 order an accused to provide a handwriting sample. In
20 particular, Rule 54 provides that this Chamber has the
21 authority to make such orders as are necessary for the
22 proper conduct of an investigation or trial. There are
23 only a few things that this Court is not authorised to
24 do under this very broad Rule 54, and in particular,
25 this court may not compel an accused to testify against
1 himself or to confess guilt. Your Honours, in all
2 systems, and there has been much discussions about how
3 different systems work and in some systems allow certain
4 things, some systems allow it if there is a statute;
5 some systems allow it without anything further than
6 required, but none of these systems find that ordering
7 an accused to provide a handwriting sample is requiring
8 the defendant to testify against himself or guilt. The
9 handwriting sample is a pure identification issue, and
10 just as this court would have the authority to order an
11 accused to provide fingerprints; to stand in a line-up,
12 to allow his photo to be taken, because all those are
13 identification issues, rather than compelling an accused
14 to testify against himself or to confess guilt. Under
15 all those examples, this court has the authority under
16 Rule 54 and that applies also to identification issues
17 such as handwriting.
18 Your Honour, I --
19 JUDGE JAN: There is some doubt in my mind, because Rule 54
20 is very widely worded, but cannot be construed in a
21 manner which affects the rights of the accused.
22 I believe the accused has a right to remain silent. Is
23 not when the court asks the accused to provide his
24 handwriting sample, is that right not being violated,
25 the right to remain silent? I am just doing a little
1 thinking out loud.
2 MS. McHENRY: No, your Honour. It would be the case if
3 your Honour ordered the accused to write down what
4 happened on a particular day; in other words if it was
5 his own words that he is being asked -- if it was the
6 substance of the words that your Honours were requiring
7 the defendant to provide, but in this case he has been
8 asked to provide certain words which will be directed to
9 him only for the purposes of identification. In such
10 cases, just as your Honours could, for instance, in a
11 line-up, it is very common in many systems that the
12 judges order the accused to stand in a line-up and that
13 is found to be being compelled to testify against
15 JUDGE JAN: It is not a question of testifying against
16 himself. The right to remain silent.
17 MS. McHENRY: First of all, your Honour, let me say that
18 our statute refers to the defendant's right not to be
19 compelled to testify against himself or to confess
20 guilt. That is what this Tribunal's statute refers to.
21 It is the case that in some other places an accused may
22 have rights that are worded and in fact are broader than
23 what this Tribunal has said. There are some that say
24 self-incrimination, but the words of this statute, which
25 control this Tribunal, are that the accused cannot be
1 compelled to testify against himself or to confess
2 guilt, and we believe the plain words of the statute and
3 their plain meaning must control, and certainly there is
4 nothing about this Tribunal's statute that violates
5 international law in any way. In fact, as stated in our
6 brief, there are numerous cases, including in the
7 European Court of Human Rights, where it has been found
8 that requiring an accused to provide things, including
9 handwriting samples, is not a violation of the accused's
10 fundamental rights.
11 JUDGE KARIBI-WHYTE: Actually, is it your submission that he
12 could be compelled to produce evidence which could be
13 used against him if he does not wish to do so?
14 MS. McHENRY: It is certainly the case that the Prosecution
15 contends that the accused can be ordered by this court
16 to provide -- to co-operate in providing identification
17 material, for instance, just as if an accused wanted to
18 put a paper bag over his head so that a witness could
19 not see him, your Honours would be entitled to let the
20 witness, if it was relevant for identification purposes,
21 to let the witness see them. Your Honours could also
22 require the accused --
23 JUDGE KARIBI-WHYTE: It does look like a proposition;
24 whether the Tribunal can compel an accused person to
25 produce evidence which could be used against him,
1 because his right is to remain silent and allow you to
2 prove the allegations made against him.
3 MS. McHENRY: Your Honour, if you want a direct answer, if
4 I understand your question, this Chamber does have
5 authority under the expressed words of our statute to
6 order an accused to provide -- let me correct that. It
7 is not under the express, but there is nothing in the
8 statute or in international law which would prevent this
9 court from ordering an accused to co-operate in
10 providing identification evidence even though that
11 evidence may be used against him. The fundamental right
12 of the accused is to not be compelled to testify against
13 himself. The substance of the words, he cannot be made
14 to confess, but it is the case that an accused can be
15 made to stand in a line-up, to allow a witness to look
16 at him, to allow his fingerprints to be taken, to allow
17 his photograph to be taken and to provide handwriting
18 issues because all those are identification issues, and
19 the core of the right of the accused is that you do not
20 want to force someone to testify, to give words, to
21 confess. That is the core of what the accused's right
22 is and it is made very clear in our statute with its
24 So yes, the Prosecution absolutely believes this
25 Chamber can require an accused to provide a handwriting
1 sample, even though it may be that that handwriting
2 sample ultimately, after being viewed by an expert, is
3 used as evidence against him.
4 JUDGE KARIBI-WHYTE: Thank you very much.
5 MS. McHENRY: Thank you, your Honour.
6 MR. GREAVES: May it please your Honours, I am hoping to be
7 rather shorter than the Prosecution in addressing you
8 this morning. Can I first of all thank Mr. Niemann for
9 his tour de force and wide ranging trawl through the
10 national and international jurisdictions, some of which
11 will be familiar to us, some of which have come as
12 interesting news. Fascinating as it is, and one must be
13 grateful to him for the academic exercise that he went
14 through, my submission is that there is a completely
15 different approach that this Tribunal must take to this
16 issue. I am going to disappoint Mr. Niemann, though not,
17 I hope, your Honours, because I am not going to ask you
18 to follow the common law. I am not going to ask you to
19 follow the law of England and Wales, which is the common
20 law, plus all the statutory legislation that has been
21 passed over the many years. I am not going to ask you
22 to follow Australian law; I am not going to ask you to
23 follow the laws of the International Court of Justice.
24 I am not going to ask you to follow the laws of the
25 Nuremberg war crimes Tribunal.
1 I am going to ask you to follow the laws of this
2 Tribunal. Those laws, the rules of procedure and
3 evidence and decided cases, are, in my respectful
4 submission, a distillation of all the experiences of the
5 various judicial systems which exist all around the
6 world. That includes not just national and
7 international jurisdictions but the experience of, for
8 example, the Nuremberg trials. It may well be, although
9 I did not have the privilege of being present at
10 your Honours' deliberations about what rules to apply,
11 it may well be that all of those jurisdictions were
12 looked at and some parts of them found to be wanting and
13 some parts of them found to be useful. As I say, a
14 distillation of past experience, and one anticipates
15 that the rules of procedure and evidence and, indeed,
16 the decisions made under it are effectively what this
17 Tribunal believes to be a culling of the very best
18 features of all the systems that we have been talking
20 Can I please deal with one particular issue, and
21 that is what I respectfully submit is a cavalier
22 approach to the burden of proof in this case and the
23 standard of proof. Can I respectfully remind
24 your Honours of the existence of Rule 87? I will come
25 to what the terms of that are in a moment. My learned
1 friend Mr. Niemann seeks to suggest to your Honours that
2 some lesser standard of proof exists in this Tribunal.
3 Can I very quickly say this? The Prosecution say that
4 this letter which they allege to be written by Mr. Mucic
5 is a letter which proves his guilt. That is what they
6 say, and I am going to address your Honours at some
7 length about that issue in a moment. What they say is
8 that the letter proves his guilt.
9 Can I remind your Honours and I will read it out
10 so everybody, not just your Honours, knows what is said
11 in Rule 87; so the public outside knows what is said in
12 Rule 87. Rule 87(A):
13 "When both parties have completed their
14 presentation of the case, the presiding judge shall
15 declare the hearing closed and the Trial Chamber shall
16 deliberate in private."
17 This is the important passage:
18 "A finding of guilt may be reached only when a
19 majority of the Trial Chamber is satisfied that guilt
20 has been proved beyond reasonable doubt."
21 I give a quick example of why I say the
22 Prosecution say that this proves his guilt, and it is at
23 page 6 of their brief, about a third of the way down,
24 they say:
25 "The contents of this letter are material to
1 several important issues of this case that pertain to
2 the guilt or innocence of the defendant Mucic."
3 In my respectful submission, that standard of
4 proof is one which applies to everything which the
5 Prosecution seek to prove, and in particular to guilt.
6 I respectfully invite your Honours to reject the
7 Prosecution assertion that some lesser standard of proof
8 applies to documents which they seek to prove. I would
9 respectfully invite your Honours to reject out of hand
10 that assertion. Your Honours may feel that the
11 Prosecution are uneasy with the idea of having to prove
12 things beyond reasonable doubt, and your Honours may
13 reflect on that for a moment. It may be that they find
14 proving things beyond reasonable doubt inconvenient.
15 Sadly, the law is otherwise.
16 In urging your Honours to follow the laws of this
17 Tribunal, I come now to the Tadic decision. It is
18 commonly referred to as the Tadic decision on hearsay,
19 but in my respectful submission, that is actually a
20 misnomer, because it is in fact, we submit, sound law on
21 the admissibility of all evidence. Can I take the
22 trouble to quote what His Honour Judge Stephen, a
23 distinguished Australian jurist, said about this
24 particular issue. He said at page 4 of his separate
25 judgment in that case, this, about Rule 89(D):
1 "It is to be noted that sub-rule (D), while it may
2 be applicable to some instances of hearsay evidence, is
3 by no means confined to such evidence."
4 In my submission, that makes it plain that the
5 submissions that the Prosecution make in relation to
6 documentary evidence are relevant not just to this
7 instant case that we are discussing here today but to
8 the whole of these proceedings and beyond that, to all
9 cases which are tried before the International
10 Tribunal. It having such a general application, it may
11 well be that there are other Defence counsel who would
12 want to have something to say about the general
13 application of the law, not just the specific matter to
15 I hope this is not going over old ground, but
16 I think it is important that we should remind ourselves
17 of what the Tadic decision, the so-called Tadic decision
18 on hearsay, has to say. In my submission, it deals with
19 Rule 89. If I can just briefly remind your Honours of
20 the terminology of that, and again I am going to read it
21 out. I hope that your Honours will forgive me for doing
22 that. They are general provisions and the important
23 ones are rules 89(C), 89(D) and 89(E). 89(E) says this:
24 "A Chamber may admit any relevant evidence which
25 it deems to have probative value."
2 "A Chamber may exclude evidence if its probative
3 value is substantially outweighed by the need to ensure
4 a fair trial."
6 "A Chamber may request verification of the
7 authenticity of evidence obtained out of court."
8 In my respectful submission, there is a four stage
9 process which has to be gone through in relation to all
10 evidence. There is much evidence, of course, which
11 everybody knows is properly admissible, is properly
12 relevant, is properly potentially probative and for
13 which there is no basis for exclusion, and I suspect
14 nine tenths and more than nine tenths of all evidence is
15 admitted into this court without objection from the
16 Defence, or indeed one anticipates during Defence cases
17 from the Prosecution, but there is some evidence which
18 is challenged and the tests in my submission are these.
19 Question number one: is the evidence which it is
20 sought to admit reliable? If the answer to that is no,
21 the evidence must be excluded. If the answer is yes, it
22 is reliable, then you can go to the second stage.
23 The next question, question two, is this: if the
24 evidence is reliable, is it relevant? If it is not
25 relevant, it cannot be admitted under Rule 89(C) and
1 therefore it must be excluded, but if the answer to it
2 is yes, it is relevant, then the next question is this:
3 if relevant, does it bear probative value? If it has no
4 probative value, then again, it cannot be admitted,
5 because the rule requires your Honours to deem it to
6 have probative value before it can be admitted. If it
7 does have probative value, then it is potentially
8 admissible but, and this is the fourth stage, there has
9 to be the question: should it in any event be excluded
10 as a result of Rule 89(D) or Rule 95?
11 So in my submission, those are the criteria for
12 the admissibility of evidence. As I say, most evidence
13 gets past the first three hurdles without any problem.
14 JUDGE KARIBI-WHYTE: You tend to put reliability before
16 MR. GREAVES: I respectfully submit it has to pass that
17 test --
18 JUDGE KARIBI-WHYTE: Before relevance.
19 MR. GREAVES: Yes, because if it is not reliable then in my
20 submission it cannot even begin to attain the status of
21 admissibility. I am going to come, if I may, to the
22 paragraphs of the decision which I submit support that
24 Once it is admitted, it is then and only then that
25 your Honours, as the fact finders, can determine what
1 appropriate weight to attach to the evidence, and so, if
2 you like, that is the fifth stage that is involved in
3 assessment of evidence.
4 Can I remind you of what paragraphs 15, 16 and 19
5 of the principal judgment in the Tadic decision say?
6 Paragraph 15:
7 "The Trial Chamber is bound by the rules, which
8 implicitly require that reliability be a component of
9 admissibility. That is, if evidence offered is
10 unreliable, it certainly would not have probative value
11 and would be excluded under sub-rule 89(C)."
12 So there, your Honours, the learned judges in that
13 decision are saying the first place that you have to go
14 to is reliability. If you cannot get beyond
15 reliability, it has to be excluded. It goes on:
16 "Therefore, even without a specific rule
17 precluding the admission of hearsay, the Trial Chamber
18 may exclude evidence that lacks probative value because
19 it is unreliable. Thus the focus in determining whether
20 evidence is probative within the meaning of sub-rule
21 89(C) should be at a minimum that the evidence is
23 There is a note, a footnote at that point which
24 says this. Footnote 1 -- I wonder whether we can make
25 sure the radio does not go off because it is terribly
1 distracting, your Honour:
2 "Rule 95, while concerned with the methods by
3 which evidence is obtained also allows for its exclusion
4 if it is unreliable."
5 Can I remind your Honours that the decision you
6 issued in relation to the admissibility of interviews
7 dealt with Rule 95 in a particular way, that it is
8 another way in which exclusion can take place, and
9 I think your Honours referred to it as a, as it were, a
10 residual rule encapsulating a number of ways in which
11 exclusion can take place.
12 Paragraph 16 of the judgment:
13 "In evaluating the probative value of hearsay
14 evidence, the Trial Chamber is compelled to special
15 attention to indicia of its reliability. In reaching
16 this determination the Trial Chamber may consider
17 whether the statement is voluntary", that plainly
18 relates to oral statements, "truthful and trustworthy as
20 Again I say the very first component is
21 reliability. If that cannot be demonstrated, then the
22 evidence cannot be admitted.
23 Paragraph 19 says this:
24 "Accordingly, in deciding whether or not hearsay
25 evidence that has been objected to will be excluded, the
1 Trial Chamber will determine whether the proffered
2 evidence is relevant and has probative value focusing on
3 its reliability. In doing so, the Trial Chamber will
4 hear both the circumstances under which the evidence
5 arose, as well as the content of the statement. The
6 Trial Chamber may be guided by, but not bound to,
7 hearsay exceptions generally recognised by some national
8 legal systems; as well as the truthfulness,
9 voluntariness and trustworthiness of the evidence as
11 Your Honour, those three paragraphs are the basis
12 for which I have extrapolated the five stages that
13 I have enumerated before you as being the process by
14 which evidence can be admitted.
15 I say that, and it is particularly important
16 because reliability was the feature, I think, that His
17 Honour Judge Jan referred to when saying "you have to
18 prove it is his document". It was only a moment or two
19 before his Honour intervened in that way that I had made
20 a note to myself which read "reliability, prove it is
21 his document".
22 I give an example of that. The Prosecution were
23 going to call a witness today and they have indicated
24 that it was to deal with a particular document. They
25 have had to withdraw him because that witness apparently
1 cannot prove the document. In my submission, that is an
2 admission by the Prosecution that they have to go
3 through the very exercise that I have adumbrated to
4 your Honours. They know it full well, we submit.
5 So that, in our submission, is the test. We say
6 the Prosecution has to go through the exercise in the
7 first instance of proving that it is his document. I am
8 going to deal with the three ways in which that might
9 happen. The Prosecution, if they were in a position to,
10 could prove it by handwriting samples. They say that
11 they can prove it by the contents, and as your Honour
12 observed, it may be possible to call somebody who knows
13 his handwriting. I am going to deal with each of those
14 in turn.
15 Let me deal first of all with the question of
16 someone who knows his writing. It is entirely right
17 that in former days, there used to be a process by which
18 someone who knew someone's writing could be called to
19 give evidence.
20 I am now going to descend into the law of England
21 and Wales, because that is the one that I am most
22 familiar with, but there are some comments that I make
23 about it because it seems to me that some comments are
24 helpful. The present law of England and Wales is this:
25 handwriting can still be proved by the admission of the
1 author, for example, in an interview or because he was
2 specifically asked through his counsel to make an
3 admission, or by any person who saw the author write it
4 or sign the document in question. In addition, it can
5 be proved by any witness who will at least swear that he
6 believes the writing to be that of the party, and has
7 either seen the person write or corresponded regularly
8 with him, or acted upon such correspondence.
9 The comment which is made and which I respectfully
10 invite your Honours to take, is this: those propositions
11 and I take this from the current edition of Archbold,
12 business the standard textbook used in English courts,
13 the comment is this, and my submission is that this is
14 not just applicable to English law, but is applicable to
15 this as a general proposition:
16 "Many of the above cases derive from a period when
17 communications and business documents were written by
18 hand and literacy was infrequent. These authorities
19 should be viewed with caution. It is submitted that
20 identification of handwriting by a lay witness based
21 upon a single or even a few previous observations of the
22 act of writing, is of such poor quality that, save in
23 exceptional circumstances, it should not be adduced.
24 What is required is a familiarity with the party's
1 It then goes on to deal with the various ways in
2 which it can be done. The practical effect of all this
3 is this: in the 20 years that I have been at the Bar in
4 England, I have never heard of a case where evidence has
5 been adduced by the Crown which is someone saying
6 "I recognise the writing" and he is called only for
7 that purpose.
8 The only way in which it is now done, as a matter
9 of practice and custom, is by handwriting analysis. The
10 reason for that is that it is now recognised that
11 calling someone to recognise handwriting can be a most
12 dangerous business, and of such potential poor quality
13 as to render it an unreliable exercise. My submission
14 is that calling someone in this court to say
15 "I recognise the writing" would be a very
16 unsatisfactory way to proceed, and one notes the
17 Prosecution have not sought to call anybody who thinks
18 they can do that, so I suspect that we will need to hear
19 no more of that.
20 I turn now to the issue of contents. It is said
21 that those contents are matters which are exclusively
22 within the knowledge of the defendant. If your Honours
23 look at the document, that is hardly so. Each and every
24 matter set out in that document are matters, many of
25 them well into the public domain, but more importantly,
1 they are matters which would be known to a large number
2 of employees, for example, of the Office of the
3 Prosecution. I make no accusation by doing that, and
4 I make that absolutely plain, but it is not the case
5 that these facts contained in this letter are
6 exclusively within the knowledge of the defendant.
7 There are others who could compile such a document.
8 For those reasons, I respectfully submit to
9 your Honours, that using the contents to say this is his
10 document is a dangerous exercise, and one which is
11 wholly unreliable.
12 The third manner by which the Prosecution seek to
13 prove the document is by inviting your Honours to have
14 an order requiring him to provide handwriting samples.
15 My learned friend Ms. McHenry blithely says, "Rule 54
16 gives you sweeping powers and you can do just as you
17 like". It is important, in my respectful submission,
18 for you to look and see and analyse what it is in fact
19 the Prosecution is trying to do by getting your Honours
20 to order a handwriting sample. Can I remind
21 your Honours of this and I am going to re-read part of
22 the paragraph I read out earlier, but it is important to
23 remember what it is the Prosecution say they are trying
24 to do.
25 Page 6 of their written submission:
1 "The text of defendant Mucic's letter to Witness P
2 contains Mucic's own opinion and admissions about his
3 conduct at the Celebici prison camp, and about specific
4 dates of such conduct. Thus the contents of this letter
5 are material to several important issues of this case
6 that pertain to the guilt or innocence of the defendant
7 Mucic. Additionally, the letter has probative value
8 because it contains certain admissions, such as Mucic's
9 actions in early June, and a statement that he was in
10 charge of the Celebici camp by at least the beginning of
11 August 1992. Thus to at least some degree, this
12 evidence advances the enquiry at hand."
13 Page 7:
14 "A handwriting sample from Mucic will conclusively
15 establish the authorship of Exhibit 155. Prosecution
16 Exhibit 155 is relevant to the investigation and conduct
17 of the trial, because the text of the letter is
18 probative to the Prosecution's case. Relevancy of this
19 letter is based on admissions by the defendant,
20 including that he was present at the time the prisoners
21 were moved from the 3rd March school to Celebici."
22 We say that what the Prosecution are seeking to
23 use this document for and it is disclosed by their
24 submissions in writing, they wish to use it as a piece
25 of evidence, not just to provide a piece of general
1 evidence, but proof of specific elements of individual
2 counts on the indictment. Those are therefore matters
3 which are absolutely central to what must be proved in
4 this case in order to convict the defendant, and its
5 importance is perceived by them as no less than that.
6 So what the Prosecution are seeking to do is use
7 it to prove his guilt, and so they say this:
8 "The handwriting sample will prove conclusively it
9 is his document. The document itself will prove
10 essential components of offences that are set out in the
11 indictment. It will have assisted the Prosecution to
12 prove its case against the defendant, and he will have
13 been compelled by your Honour's order to provide that
14 very piece of evidence."
15 "That very piece of evidence", they perceive,
16 will help to convict him. That is what they are asking
17 your Honours to do. We respectfully submit that the
18 order, if you were to make it, would have the effect of
19 compelling the defendant to contribute to the process of
20 him incriminating himself on counts on the indictment.
21 We respectfully submit this, that to do so would
22 offend against the principles which are set out in
23 Articles 20 and 21, and indeed the rules of procedure
24 and evidence. Again, I hope not to waste time by
25 reading out and reminding your Honours of the text, the
1 relevant text of those articles. Article 20(1):
2 "The Trial Chamber shall ensure that a trial is
3 fair and expeditious and that proceedings are conducted
4 in accordance with the rules of procedure and evidence
5 with full respect for the rights of the accused."
6 It then goes on to deal with protection of victims
7 and witnesses. Article 21(2):
8 "In determination of charges against him, the
9 accused shall be entitled to a fair and public hearing,
10 subject to Article 22 of the statute."
11 Article 21, of course, is headed "Rights of the
12 Accused". Article 21(4)(g):
13 "In determination of any charge against the
14 accused pursuant to the present statute, the accused
15 shall be entitled to the following minimum guarantees in
16 full equality, not to be compelled to testify against
17 himself or to confess guilt."
18 Those articles are there in order to ensure that a
19 fair trial is given to him and we respectfully submit
20 one aspect of that is that no person should be forced to
21 do any act which would contribute to incriminating
22 himself, because that cannot properly be described as
23 being fair. I have read out previously to your Honours
24 part of Rule 89, but Rule 89(B) requires your Honours to
25 do this:
1 "The Chamber shall apply rules of evidence which
2 will best favour a fair determination of the matter
3 before it, and are consonant with the spirit of the
4 statute and general principles of law."
5 I hope it is not being arrogant to suggest that
6 the spirit of the statute is designed to ensure a fair
7 trial by not forcing people to do acts which incriminate
8 themselves. An example of that, your Honours, is the
9 series of rules that exist concerning interviews.
10 Your Honours will recall what those rules are. Rule
12 "A suspect who is to be questioned by the
13 Prosecutor shall have the following rights, of which he
14 shall be informed by the Prosecutor prior to questioning
15 in a language he speaks and understands."
16 The first part is the right to be assisted by
17 counsel, the second part deals with interpreters.
18 Sub-rule (iii):
19 "The right to remain silent and to be cautioned
20 that any statement he makes may be recorded and may be
21 used in evidence."
22 That is a rule that is adopted by Rule 63(B) for
23 persons who are accused. The comparison is this, and
24 spirit of the rules is this: an interview is conducted.
25 Why is an interview conducted? The interviewer hopes
1 that he will get one of three things. He hopes he may
2 get a confession, but if he does not get a confession,
3 he hopes at least that he will get admissions, and I use
4 that word in a different context from the word
5 confession, admissions as to particular facts or as to
6 particular components of offences contained in an
8 The third thing that someone who interviews hopes
9 to get is lies, lies which can be demonstrated by
10 evidence to be lies, because as any Prosecutor knows,
11 good quality lies which can be demonstrated to be lies
12 are potent pieces of evidence. A defendant is protected
13 against having to speak by cautions which are
14 administered, I suspect, in every jurisdiction that can
15 be called civilised and certainly in all the
16 jurisdictions that are represented by counsel and
17 your Honours in this court. The purpose of that is to
18 give effect to the principle that people should not be
19 forced into doing some act which incriminates
20 themselves. That is why the rule exists concerning
21 interviews, but it is no less important concerning other
22 things, being forced to stand on identification parades,
23 being forced to give handwriting samples, being forced
24 to give blood samples, being forced to do anything which
25 my learned friend refers to as "items of
1 identification". People cannot be forced to incriminate
2 themselves. This case is no different and we
3 respectfully submit that this Tribunal should now set
4 its face against doing anything which compels people to
5 assist in the process of convicting themselves.
6 I remind your Honours of Article 6 of the European
7 Convention on Human Rights. That is an article which
8 finds many echos in the statute of this Tribunal. One
9 anticipates that the persons who drafted the statute at
10 the United Nations spent a long time looking at various
11 similar documents. One thinks of this convention, the
12 European Convention, but also the American convention of
13 a similar nature, and other bill of rights acts that
14 exist all around the world, for example, in New Zealand
15 and Canada.
16 Article 6 says this:
17 "In the determination of his civil rights and
18 obligations, or of any criminal charge against him,
19 everyone is entitled to a fair and public hearing within
20 a reasonable time by an independent and impartial
21 Tribunal established by law."
22 One could almost be reading out Articles 20 and 21
23 as one speaks. There are very clear similarities
24 between those two things. I rely on the European
25 Convention because of its international character and
1 because it is so similar in many ways to the statute
2 which governs this Tribunal, because your Honours may
3 feel that the experience that has been found there is
4 one which is readily applicable to the laws of this
6 Your Honour, I have attached to the reply that
7 I made in this case, to the back of that, a case from
8 the European court called Funke v France. The
9 proposition of that case is quite simple. Would
10 your Honours give me a moment, please? (Pause).
11 "The right to a fair trial includes the right of
12 anyone charged with a criminal offence to remain silent
13 and not to contribute to incriminating himself."
14 In my respectful submission, that is something
15 which encapsulates the spirit of our statute, and is a
16 decision which, whilst not binding upon this court, is
17 of immensely strong and persuasive authority. We
18 respectfully submit that it is a proper thing for
19 your Honours to apply and to say that however attractive
20 at a superficial level the Prosecution's submissions may
21 be, the fact of the matter is what they are trying to do
22 is to get this man to provide evidence, give evidence to
23 them which will help to convict him. That is what
24 your Honours are being asked to do, and in my
25 submission, it is something which your Honours should
1 not countenance.
2 I go on to say this: the statute provides no
3 express power entitling you to make such an order.
4 I anticipate that as modern scientific techniques have
5 changed and the courts of various national jurisdictions
6 have found a need for expert evidence, it has required
7 primary legislation explicitly and expressly allowing
8 police officers and courts to make such orders. There
9 is no such primary legislation in the statute or in the
10 rules of procedure and evidence. One must anticipate,
11 we submit, that the framers of the rules of procedure
12 and evidence were well aware of the various national
13 jurisdictions which have passed primary legislation
14 permitting such orders to be made. It is a reasonable
15 inference that the absence of such a power is quite
16 deliberate, and its absence is there because the
17 Tribunal set its face against such orders.
18 We respectfully submit that there is no power, no
19 lawful power, whether by Rule 54 or any other rule,
20 which permits you to force a defendant to give a sample
21 of anything.
22 JUDGE JAN: You were reading the European Convention just
23 now, Article 6. The expression used was "contributing
24 to incriminate himself".
25 MR. GREAVES: I was quoting in fact from the decision in
1 Funke v France that is not contained within the --
2 JUDGE JAN: Contribute to incriminate himself.
3 MR. GREAVES: The phrase is, "Not to contribute to
4 incriminating himself".
5 JUDGE JAN: That is much wider.
6 MR. GREAVES: Your Honours will find that in the text of
7 Funke v France, which is attached to my reply. I hope
8 your Honours will find that a useful decision.
9 Your Honours, there is one matter I pass on to, of
10 course inviting your Honours to take into account the
11 written submissions I have made. In proving the
12 document, because the Defence say the Prosecution have
13 to prove the document in the ordinary way, and I have
14 already addressed you about the burden of proof, but
15 part of the evidence which my learned friend
16 Ms. McHenry sought to adduce involved somebody at the
17 Victims and Witnesses Unit providing evidence to the
18 Prosecution and we say that that is an essential element
19 of proving the document, and that there is a reason why
20 you should first of all exclude the evidence provided by
21 the Victims and Witnesses Unit, and secondly say that
22 because it is to be excluded they cannot prove the
23 document in any event. The reason is this: the Victims
24 and Witnesses Unit works for all of us. The Prosecution
25 has to trust it and the Defence has to trust it, because
1 all of us avail ourselves of its assistance. It must
2 therefore be seen to be an independent organisation, an
3 independent organisation which does not take part in the
4 process of prosecuting people, and by providing evidence
5 to the Prosecution, there is a danger that they will be
6 seen to be taking part in the process of Prosecution.
7 It is a public policy matter. If your Honours permit
8 that evidence to be adduced, you are forever going to
9 tarnish the reputation of the Victims and Witnesses Unit
10 as an independent organisation, and people on this side
11 of the Bar will cease to trust it and will cease to use
12 it if it is seen to be being partial, and we
13 respectfully submit that that component of reliability
14 which is sought to be adduced from victims', witnesses',
15 procured evidence should be excluded as a matter of
16 public policy. That is, we submit, very important and
17 I know that there are other Defence counsel who wish to
18 address the court about that public policy issue, if
19 called upon to do so.
20 We conclude by this: we have addressed you in this
21 way, inviting your Honours to look at what the
22 Prosecution are actually trying to do under the veil of
23 saying this is all about admissibility of documents.
24 They are asking this man to contribute to incriminating
25 himself. They are asking him to help them prove he is
1 guilty. That is objectionable and ought to be refused.
2 Is there any other matter upon which I can assist
3 your Honours?
4 JUDGE KARIBI-WHYTE: That is the end of your submissions?
5 MR. GREAVES: Those are my submissions. Impeccable timing as
7 MR. ACKERMAN: Your Honour, I would seek leave to address you
8 for a few minutes, I think, probably no longer than ten
9 minutes. I do not know whether you would want to do
10 that now or wait until after we come back at 2.30, but
11 I think the things I need to say would take about ten
13 JUDGE KARIBI-WHYTE: Actually, I am not too familiar with
14 this approach, because I think this was an objection by
15 the team of Mucic. Are you joining in making the
17 MR. ACKERMAN: Your Honour --
18 JUDGE KARIBI-WHYTE: Or is this a general one for all
20 MR. ACKERMAN: Your Honour, Mr. Niemann in his arguments to
21 you this morning went significantly beyond the issue
22 regarding this particular document, urging you to adopt
23 a view of evidence that had global significance, and
24 that is what I seek to respond to. In fact, Mr. Niemann
25 talked very little about the actual document before the
1 court. He spoke mostly about issues of global
2 significance regarding the evidence to be admitted in
3 this Trial Chamber, and that is the issue to which
4 I wish to address you for a very short period of time.
5 JUDGE KARIBI-WHYTE: To that extent perhaps all those
6 involved could make submissions, but generally I think
7 we could limit it to the real issue, which is
8 admissibility of that letter which is alleged to have
9 been written by Pavo. So when we come back at 2.30, you
10 will have an opportunity of replying.
11 MR. ACKERMAN: Thank you, your Honour.
12 (1.00 pm)
13 (Adjourned until 2.30 pm)
1 (2.30 pm)
2 JUDGE KARIBI-WHYTE: With the order of the speeches, I would
3 expect the originator of the motion to make his answer
4 before others contribute.
5 MR. NIEMANN: As your Honours please. Your Honours, there
6 are just a couple of matters that I wish to respond to,
7 if I may. Firstly, with respect to what Mr. Greaves said
8 about Rule 87, it is to be seen, your Honour, that it is
9 headed "deliberations". Clearly, in my submission, it
10 is contemplated that the deliberations will take place
11 at the conclusion of the presentation of the case, as
12 the rule specifically says, "when both parties have
13 completed their presentation, the presiding judge shall
14 declare the hearing closed and the Trial Chamber shall
15 deliberate in private", and then it goes on to say:
16 "A finding of guilt may be reached only when the
17 majority of the Trial Chamber is satisfied that the
18 guilt has been proved beyond reasonable doubt."
19 In my submission, your Honours, this fits entirely
20 with the argument that I was presenting to your Honours,
21 in the sense that if your Honours are to make a
22 determination of the guilt or innocence of the accused,
23 and in making that determination you place reliance upon
24 a piece of evidence or pieces of evidence, then that
25 evidence must satisfy you beyond a reasonable doubt
1 before your Honours are permitted by the statute and the
2 rules to come to that conclusion.
3 But this, your Honours, has absolutely nothing to
4 do with the admissibility of the document, or the
5 admissibility of the piece of evidence at all. It is
6 what may happen at the conclusion of the case, after the
7 parties have completed their presentation, and it is the
8 way -- it is instructive of the way that your Honours
9 should then proceed to deal with the evidence, so in my
10 submission, your Honours, to say that before it can be
11 admitted, the Prosecution must prove it beyond
12 reasonable doubt, and then to say that support for that
13 proposition is to be derived from Rule 87, specifically
14 headed as it is "deliberations", is a misconstruction of
15 that rule.
16 The other matter, your Honours, that I might
17 briefly go to relate to the Funke v France case. It is
18 to be noted, your Honours, that that decision has been
19 considered, in a more recent case of John Murray v
20 United Kingdom and in John Murray v United Kingdom, the
21 same court held that the accused's right to silence is
22 not absolute.
23 Moreover, in circumstances which clearly -- the
24 court held that moreover, in circumstances which clearly
25 call for an explanation from the accused, it was decided
1 in Murray v United Kingdom that courts may draw natural
2 and common sense inferences from the defendant's failure
3 to respond.
4 If that may assist your Honours.
5 JUDGE KARIBI-WHYTE: Thank you very much. Which are the
6 other discussions on general principles?
7 MR. ACKERMAN: Good afternoon, your Honours. I want to first
8 of all thank you for permitting me to address you for
9 just a moment regarding these issues.
10 I want to tell this Tribunal, this Trial Chamber,
11 how privileged I feel to be able to appear as counsel
12 before this International Tribunal. It is an unique
13 experience for a lawyer to have this kind of a privilege
14 and it is one that I appreciate a great deal. I feel
15 privileged to be here because I believe in many ways
16 this Tribunal is a precursor of things to come in this
17 world, and that this Tribunal is breaking new ground
18 with every decision that is made here. We all know that
19 negotiations are underway for the creation of a
20 permanent international criminal court. Our own
21 Judge McDonald is playing a significant role, I believe,
22 in that process.
23 In connection with that process, of course, this
24 court, this Tribunal and everything it does is being
25 watched very closely by those who are considering the
1 establishment of a permanent international criminal
2 court. So I think that this Trial Chamber and the
3 International Tribunal as a whole must keep very clearly
4 in mind that what we might very well be doing here is
5 setting a precedent for what will govern the future role
6 of not just this Tribunal but a possible successor
7 Tribunal with much widened jurisdiction.
8 We must therefore be careful that the expediency
9 of a particular situation or a particular case does not
10 override that we keep a view on the world watching us
11 and the world judging what it is we do in terms of human
12 rights and the kinds of decisions we make in this court
13 in terms of human rights.
14 I want to talk about Rule 89. I think that is the
15 specific rule that primarily governs this Tribunal with
16 regard to the admission of all evidence before the
17 Tribunal, and I think it is important that we take care
18 in how we interpret the meaning of Rule 89. I want to
19 give to your Honours a quote from a case that was
20 decided several years ago by the United States Supreme
21 court, not that it has any precedential significance at
22 all, but I think the language is good and compelling
23 regarding what we are doing here. In a case called Trop
24 v Dulles, the court was considering the application of
25 the 8th Amendment to the US constitution which deals
1 with cruel and unusual punishment, and what its meaning
2 was. The court said:
3 "We must interpret the provisions of that
4 amendment in light of the evolving standards of decency
5 that mark the progress of a maturing society."
6 The evolving standards of decency that mark the
7 progress of a maturing society. Mr. Niemann has told you
8 this morning that he believes the most important source
9 of law for you to consider, other than the decisions
10 reached by other chambers and the appellate Chamber of
11 this Tribunal, is the law that came out of the Nuremberg
12 tribunals. I will remind your Honours that much has
13 happened in the 50 years since Nuremberg which I think
14 makes most of what was done at that time largely
15 irrelevant to what we are doing here.
16 In 1948, the United Nations adopted the Universal
17 Declaration of Human Rights. In 1950, the European
18 Convention of Human Rights was adopted. In the 1960s,
19 the Warren court in the United States reached many far
20 reaching decisions regarding the rights of accused which
21 had impact far beyond the borders of the United States.
22 In 1966, the United Nations adopted the international
23 covenant on civil and political rights. In 1969, the
24 Inter-American Convention on Human Rights was adopted.
25 I suspect that Judge Odio Benito may have played some
1 role in that and may have had some role in that being
3 JUDGE ODIO BENITO: I was too young at that time.
4 MR. ACKERMAN: I am glad to hear that. I hope your Honour
5 did not hear me suggesting that your age was beyond what
6 it appears, but it may be that you have had something to
7 do with some of the protocols that have been dealt with
8 since that time with regard to the Inter-American
9 convention at least, and certainly you are well aware of
11 Finally, I will just mention that what I am trying
12 to suggest to you is there has been a worldwide growth
13 since 50 years ago, and awareness of concern for and
14 enforcement of human rights. In 1982, for instance,
15 Canada adopted the charter of rights and freedoms which
16 is very similar to the American Bill of Rights, so I do
17 not think that this Tribunal can say the law regarding
18 International Humanitarian Law ended with the Nuremberg
19 Tribunal. I think it has progressed dramatically over
20 that time and I think you must consider that progress.
21 For instance, in 1945, when those courts were
22 sitting, 1946 and 1947, when those courts were sitting,
23 the death penalty existed in virtually every country in
24 the world. It now exists in a very minor number of
25 countries in the world. Those are the kinds of things
1 that have happened in the last 50 years. To ignore
2 those would be a tragic mistake.
3 I think if this Tribunal were to adopt the
4 suggestions of Mr. Niemann with regard to how this
5 Tribunal should handle evidence, I think it would give a
6 great deal of comfort to some of those who are opposing
7 the creation of a permanent international court,
8 permanent international criminal court.
9 Finally, let me say this to you. Mr. Niemann has
10 suggested to you that with regard to documents as
11 evidence, there is no difference between a document as
12 evidence and the testimony of a witness. I suggest to
13 you the difference is profound and important in our
14 legal tradition. This Tribunal has adopted what is
15 often called the adversary system of justice. That
16 system is designed to get at the truth, primarily
17 through the engine of cross-examination, so that when a
18 witness comes before you, rather than having a
19 preliminary investigating judge deal with those kinds of
20 issues, the witness comes before you, gives evidence and
21 that evidence is tested, I think you have observed in
22 the course of this trial sometimes very severely tested
23 by cross-examination.
24 A document cannot be cross-examined. A document
25 brought into this courtroom cannot be put in that
1 witness chair and cannot be asked questions regarding
2 who it is, where it came from, who wrote it, is what is
3 in that document true. We cannot ask the document any
4 of those questions, so until you can consider a
5 document, you have to accomplish basically what is
6 accomplished with a witness by cross-examination, and
7 that is why documents are required by the rules of this
8 court, under Rule 89(E) to be authenticated.
9 Authenticated means that the document is what the
10 Prosecution claims that it is. Until the Prosecution
11 can authenticate it, no further step can be taken with
12 regard to that document, so I suggest to you there is a
13 profound difference between the admission of documents
14 and the testimony of witnesses.
15 I think the decisions that this court is being
16 called upon to make today with regard to both of the
17 issues that are before you today are decisions of
18 profound significance, not just for the defendants in
19 this case but for this Tribunal as a whole and for
20 perhaps matters beyond the life of this Tribunal, so
21 I would ask you to consider these decisions very, very
23 Thank you very much for permitting me to address
25 JUDGE KARIBI-WHYTE: Thank you very much.
1 MR. GREAVES: Your Honour, could I just add one thing arising
2 out of what my learned friend Mr. Niemann said about the
3 case of Murray, please? It is just this, and I am sure
4 that he meant to draw it to your attention, but no doubt
5 forgot to do so, paragraph 49 of the decision, which
6 says this:
7 "The facts of the present case accordingly fall to
8 be distinguished from those in Funke, see paragraph 41
10 The point is this: the case of Murray deals with
11 some very specific anti-terrorist legislation which
12 applies only in Northern Ireland and was designed to
13 deal with professional Sinn Fein IRA terrorists.
14 Accordingly it is a case which turns on its own
15 particular facts and the very particular primary
16 legislation which was the subject of that decision.
17 JUDGE KARIBI-WHYTE: Thank you very much. I think this
18 concludes the arguments on the first motion. We can as
19 well proceed to the second motion, a motion which is
20 concerned with the final determination of the issue of
21 admissibility, filed on 8th September, affecting the
22 Delalic case. I think this is by Residovic and her
23 team. Can we have the arguments on that subject?
24 MS. RESIDOVIC: Your Honours, the arguments will be
25 submitted by my colleague, Eugene O'Sullivan, professor
1 from Canada.
2 MR. O'SULLIVAN: May it please your Honours. Your Honours,
3 I rise to make submissions on the facts and on the law
4 in order to assist you in determining whether or not the
5 items allegedly seized from the premises of Taubergasse
6 15, Door 14, and from the premises of the company
7 INDA-Bau in Vienna Austria on 18th March 1996 should be
8 suppressed as illegally obtained, unauthenticated and
9 unreliable evidence. I address you on the issue,
10 therefore, of the legality of the search and seizure at
11 those two premises.
12 The Defence of Zejnil Delalic claims two bases for
13 this suppression of the allegedly seized items. The
14 first is a motion for the exclusion of evidence, filed
15 back on 28th May 1996, on behalf of the accused Zejnil
16 Delalic, and further supplemented by a filing on
17 5th June 1996 of a preliminary motion for the exclusion
18 of evidence, both of which were made in a timely fashion
19 pursuant to sub-rule 73(A)(iii) relating to an
20 application for the exclusion of evidence obtained from
21 the accused or having belonged to him.
22 In this Chamber's decision of October 9th 1996,
23 decision on the motion on the exclusion and restitution
24 of evidence and other materials seized from the accused
25 Zejnil Delalic, her Honour Judge Gabrielle Kirk McDonald
1 confined her decision to whether the allegedly seized
2 items were material to the preparation of the
3 Prosecution case. The Trial Chamber did not reach any
4 decision regarding admissibility and suppression of the
5 allegedly seized items; nor were any of those issues
6 argued before this Chamber. It is submitted that the
7 appropriate time to try the issue of suppression is at
8 trial, as can be implied by the decision of
9 Judge McDonald, and we submit that we are now at the
10 appropriate stage for final determination on the issue
11 of suppression based upon our sub-rule 73 motion.
12 Second, and in the alternative, we submit that the
13 circumstances which surround the seizure, the handling
14 and the processing of the allegedly seized material
15 offend against Article 20, paragraph 1, and Article 21,
16 paragraph 3 of the statute of this Tribunal, as well as
17 Rule 89(B), 89(D) and Rule 95 of our rules. We submit
18 that these items may be suppressed on the basis of these
19 provisions. Your Honours are familiar with these
20 provisions and I do not propose to read them at this
21 time. I shall return to this later in my submissions.
22 The events which give rise to the alleged searches
23 and seizures in Vienna on 18th March 1996 was the arrest
24 of Mr. Zdravko Mucic in that city on that day. This same
25 day, my client, Mr. Delalic, was arrested in Munich
1 Germany where he lived and worked. Your Honours have
2 heard testimony from four police officers of the
3 Viennese police, and from one OTP investigator on this
4 matter. The first testimony you heard, from Lieutenant
5 Gschwendt and Officer Moerbaur, was in early June and at
6 different times over the next three months, you heard
7 testimony from Mr. D'Hooge, the OTP investigator, Officer
8 Navrat and Officer Panzer. This testimony has filled
9 over 900 pages of transcript. I shall endeavour, and
10 I assure you I shall endeavour, to be as succinct and as
11 clear as possible regarding the facts in this matter,
12 but some detail is required to present to you the
13 reasons why we submit that the allegedly seized items
14 from Taubergasse 14 and from INDA-Bau should be
16 Your Honours, the Prosecution has been put to
17 strict proof of showing both that proper procedures were
18 followed by the police in Vienna in conducting the
19 alleged search and seizures and that the chain of
20 custody can be established, beginning at the premises
21 from which the items were allegedly confiscated to their
22 arrival at this Tribunal in The Hague. We submit that
23 the burden of proof which the Prosecution must meet is
24 that of beyond reasonable doubt. We find support for
25 this proposition both in Rule 87 of our rules, and in
1 the written decision of this Chamber on 1st September
2 1997, when it ruled inadmissable the statement made to
3 the police in Vienna by the defendant Mucic, and therein
4 at paragraph 40, we read and I quote:
5 "It is universally accepted that the burden of
6 proof lies on the Prosecution, the standard of proof on
7 the Prosecution is proof beyond reasonable doubt."
8 Before making submissions on the law,
9 your Honours, I propose to review the evidence with you
10 by looking primarily at two aspects of it which I submit
11 are relevant to determining the issue of suppression.
12 They are first the procedures followed by the police in
13 Vienna in carrying out the searches and seizures, and
14 second, the issue of the proof of the chain of custody
15 from the time the allege -- the items were allegedly
16 seized to their ultimate transfer to the Office of the
18 I propose to begin by looking at the search
19 warrant, which was issued in connection with Taubergasse
20 15 and INDA-Bau. This search warrant is Prosecution
21 Exhibit 163. This search warrant indicates that it is
22 based on Article 139 of the Austrian code of criminal
23 procedure. During the testimony of Lieutenant
24 Gschwendt, your Honours heard that pursuant to
25 Article 139 of the Austrian code, a search warrant may
1 only be issued if a well-founded suspicion exists that
2 either the person sought or his belongings are found to
3 be in the premises which are the object of the search.
4 While being cross-examined by my learned colleague
5 Mr. Moran, Lieutenant Gschwendt told your Honours that
6 the police had no facts to support the suspicion to have
7 the search warrant issued.
8 Furthermore, the testimony of officers Moerbauer
9 and Panzer showed that the well-founded suspicion did
10 not exist, because Zejnil Delalic was known to live in
11 Munich and he had not been registered at apartment 14
12 since November 1995; that is to say five months prior to
13 the search of those premises. It was further shown
14 through Officer Panzer that two adults and two children,
15 with the family name Halilhodzic were registered as
16 living at apartment 14 in March 1996.
17 It is submitted, your Honours, that when the facts
18 show that Zejnil Delalic has not been living -- has not
19 been registered as living at apartment 14 for five
20 months, and what appears to be a family of four is
21 registered as living in that apartment, it cannot be
22 said that there is such grounds to issue a search
23 warrant against Zejnil Delalic for those premises.
24 Moreover, your Honours, in regards to the search
25 warrant for INDA-Bau, we submit that the issuing of the
1 search warrant for that premises under Article 139 is
2 not well-founded. As your Honours know from the
3 evidence, Mr. Delalic lived and worked in Munich,
4 Germany. You also heard in the testimony of Officer
5 Panzer that following a company search of INDA-Bau,
6 through the public documents, the public registration on
7 that company, the police knew that Zejnil Delalic was
8 not and had never been a director or shareholder or in
9 any way connected with that company. Furthermore,
10 your Honours have heard no evidence connecting Mr. Mucic
11 to INDA-Bau. It is submitted that, as in the case of
12 apartment 14, there was insufficient grounds to issue a
13 search warrant either against Mr. Delalic or against
14 Mr. Mucic in connection with INDA-Bau.
15 JUDGE JAN: Just a minute. The searches were carried out in
16 pursuance of a warrant issued by Dr. Seda.
17 MR. O'SULLIVAN: That is correct.
18 JUDGE JAN: Do we have his entire record before us, Dr. Seda,
19 the material that was before him?
20 MR. O'SULLIVAN: I do not believe that is in evidence, your
22 JUDGE JAN: Is it not premature to raise this matter at this
24 MR. O'SULLIVAN: Based on the evidence of Lieutenant
25 Gschwendt who was involved --
1 JUDGE JAN: But this search warrant was issued by a court, a
2 competent court and we do not have the record of that
3 court before us, so how can we say there was no ground
4 for issuing the search warrant. We do not have the
5 order of Dr. Seda in this regard, we do not have the
6 material Dr. Seda had before him. Is it not premature?
7 Why do you not wait until the entire Prosecution
8 evidence is over.
9 MR. O'SULLIVAN: Very well. To respond, based on the
10 evidence of Lieutenant Gschwendt who was responsible, by
11 his own admission --
12 JUDGE JAN: Merely executing a warrant issued by a court, a
13 competent court.
14 MR. O'SULLIVAN: I move on and I leave it to the Prosecution,
15 who has the burden, to prove that the warrant was
16 effectively legally issued.
17 In addition to the problems with the search
18 warrant, your Honours, it is submitted that the
19 following breach and procedure under Austrian law exists
20 in connection with apartment 14. It is submitted that
21 the police in Vienna knowingly had Sanda Mucic, a girl
22 of 16 years, act as a witness to the search in apartment
23 14 in violation of Article 142, paragraph 2.
24 Your Honours will recall that this provision, which was
25 reviewed with Officer Panzer at page 6591 of the
1 transcript, states that if the owner of the premises is
2 not present an adult member of his family should be
3 present, failing which, a fellow lodger neighbour should
4 be present. In all cases, we were told the witness must
5 be an adult. Sanda Mucic signed the Niederschrift for
6 apartment 14 as a witness to the search. The
7 Niederschrift for apartment 14 is Exhibit D65/1.
8 Your Honours will also recall that on the question
9 of the age of Sanda Mucic, the document which listed the
10 individuals registered and no longer registered as
11 living at Taubergasse 15 was reviewed with two
12 Prosecution witnesses. This document is marked as
13 Defence Exhibit D62/1, a document which Officer
14 Moerbauer admits to having prepared. Both Officer
15 Moerbauer and Officer Panzer acknowledged, when looking
16 at Exhibit D62/1, that Sanda Mucic, born on 27th April
17 1979, was only 16 years old on 18th March 1996.
18 It is submitted that during the testimony before
19 this Tribunal, Officer Moerbauer tried to mislead
20 your Honours regarding the fact that he knew Sanda Mucic
21 was 16 years old. Beginning on page 3677 of the
22 transcript, while being cross-examined by my learned
23 colleague Madam Residovic, the following exchange took
24 place. Officer Moerbauer is being questioned about the
25 presence of Sanda Mucic in apartment 10 at Taubergasse
2 "Question: At that moment, you knew that Sanda
3 Mucic was a minor and that she was only 16?
4 Answer: I did not note that fact because I did
5 not go into any details about Sanda Mucic, but on the
6 basis of her experience, her appearance, one could
7 readily take her for 18 or 19 years of age."
8 Your Honours, Officer Moerbauer is not to be
9 believed in answering this question, and I say this for
10 two reasons. First, Sanda Mucic's date of birth is
11 indicated in the registration information, marked as
12 62/1, which was prepared by Moerbauer. The second
13 reason can be found in a report which is marked as
14 D63/1. The report is dated 14th March 1996. It is
15 signed by officers Moerbauer and Borlak. It is a report
16 prepared in anticipation of the events of 18th March.
17 In the second paragraph of that report, it clearly
18 states that the date of birth of Sanda Mucic is
19 27th April 1979. I hasten to add that officer Borlak
20 was also at apartment 10, Taubergasse 15, on 18th March,
21 along with officers Panzer and Moerbauer during the
22 search of that premises.
23 Your Honours, it is submitted that based on this
24 report, both Moerbauer and Borlak knew that Sanda Mucic
25 was only 16 years old. Finally on the question of
1 Sanda's age, both Officer Moerbauer and Officer Panzer
2 told your Honours that Sanda Mucic was left in the care
3 of an adult. It is indeed submitted that this happened
4 because they knew she was only 16 years old.
5 There is also a question about whether or not
6 Sanda Mucic was present during the whole time the search
7 took place in apartment 14. Beginning at the bottom of
8 page 3689 of the transcript, on cross-examination by
9 Madam Residovic, Officer Moerbauer was asked about going
10 up to apartment 14 while the alleged search was being
12 "Question: At the time you entered the apartment
13 of Mr. Delalic, you only had contact with your colleagues
14 Unger and Winkelmann in that premises; is that correct?
15 Answer: I only had contact with those two
17 Question: At that time in the apartment of
18 Mr. Delalic, there were no third persons present; is that
20 Answer: I did not see any third person."
21 These questions and answer indicate that Sanda
22 Mucic was not present in apartment 14 some of the time,
23 if she was there at all, while the alleged search took
24 place in this premises and this is consistent, I submit,
25 with the evidence that puts Sanda Mucic one floor down,
1 in apartment 10, during this period on the afternoon of
2 18th March 1996. One must ask why, then, a 16 year old
3 girl was knowingly selected to witness the search of
4 apartment 14, in clear breach of the Austrian code, when
5 other adults were available to act as witnesses in
6 compliance with the Austrian law on 18th March 1996 at
7 Taubergasse 15.
8 Before leaving this point, let me add this
9 your Honours. Aside from the reasons your Honours have
10 just heard which show that Article 142, paragraph 2 of
11 the Austrian code was violated, the fact that the
12 Viennese police would knowingly have a 16 year old girl,
13 who undoubtedly was very distraught when she came home
14 to find her father in handcuffs and to be handed his
15 arrest warrant to translate to him, the fact the
16 Viennese police would have this girl witness the search
17 is not only a clear violation of the law, but is nothing
18 short of disgraceful.
19 JUDGE JAN: Just a minute, the provision in the Austrian law
20 regarding the presence of witnesses is of mandatory
21 nature or merely directory? The provision in the
22 Austrian law that witnesses must be present, is it of a
23 mandatory nature or only directory?
24 MR. O'SULLIVAN: It is mandatory and is in fact reflected in
25 the Niederschrift where the witness to the search must
2 For now, your Honours, I put to one side
3 submissions regarding breaches of the Austrian code of
4 procedure and I turn to the issue of chain of custody.
5 Your Honours will recall --
6 JUDGE KARIBI-WHYTE: Before you go further, actually the
7 provision about presence of witnesses is what should be
8 complied with. What should be complied with after the
9 execution of the warrant, these conditions about the
10 presence of witnesses ought to be complied with.
11 MR. O'SULLIVAN: Yes, and the Niederschrift provides for
12 the -- the Niederschrift being the document prepared --
13 JUDGE KARIBI-WHYTE: The Austrian provisions, which wants
14 the police to comply with those conditions.
15 MR. O'SULLIVAN: That is correct, your Honour, yes.
16 JUDGE JAN: Is there any precedent from the Austrian
17 jurisdiction with regard to the interpretation of this
19 MR. O'SULLIVAN: No, we have the testimony of a couple of
20 police officers --
21 JUDGE JAN: I am talking about precedent, decisions given by
22 the Austrian courts with regard to the nature of this
23 provision, is it directory or mandatory. I just want to
24 find out.
25 MR. O'SULLIVAN: I cannot answer that question. I do not
1 know, your Honour.
2 I propose now to turn to the issue of chain of
3 custody. Your Honours will recall that during the
4 testimony of Officer Moerbauer in June, your Honours
5 made proof of the chain of custody of the allegedly
6 seized items a condition precedent to their
7 admissibility. I remind the Tribunal that on Monday,
8 9th June, at page 3645 of the transcript, the
9 Prosecution made an offer of proof to establish the
10 chain of custody. I quote my learned friend Mr. Turone,
11 who had this to say to your Honours during the testimony
12 of Officer Moerbauer. I quote:
13 "Your Honours have indicated already that they
14 wish to hear from several officers who actually seized
15 the material and then gave it to Mr. Moerbauer, but we
16 are going to do that, but it is still the case, however,
17 that in addition, this witness [Mr. Moerbauer] be allowed
18 to recognise every single document he might have
19 received from Unger, either Unger or Navrat, because he
20 is the only person who did a specific detailed inventory
21 of those documents. So I repeat, we will call
22 Mr. Navrat, we will call Mr. Unger, we might even call
23 back Mr. Moerbauer after that, in order to recognise at
24 that time, one by one, the documents he received from
25 Navrat and from Unger."
1 The Prosecution said that Unger and Navrat could
2 prove that they seized the items from number 10 and
3 INDA-Bau respectively, and that since Moerbauer was
4 handed the materials by Unger and Navrat, and thereafter
5 analysed it, the chain of custody is complete. It is
6 our submission that the Prosecution has failed to do so,
7 either as they said they would prove it, or in any other
9 Your Honours, before fully developing my
10 submissions on the issue of chain of custody, allow me
11 to remind your Honours briefly how and why this issue
12 arises in this case. First, in regard to apartment 14,
13 I direct your Honours to the Niederschrift which is
14 Exhibit D65/1. That is the Niederschrift for apartment
15 14. In this Niederschrift, among the items allegedly
16 seized from apartment 14, it is indicated that 30 video
17 cassettes were confiscated. Let me emphasise the
18 importance of this point in relation to the issue of
19 chain of custody. I do so by referring your Honours to
20 the Bericht for apartment 14, Exhibit D66/1. The
21 Bericht is the document that follows the Niederschrift.
22 This is the Bericht dated 18th March 1996,
23 prepared in connection with apartment 14, the English
24 word for Bericht is report. In this Bericht, it states
25 that 28, not 30 video cassettes, were confiscated from
1 apartment 14. There are two points to be made
2 immediately in regard to this Niederschrift and this
3 Bericht. The Niederschrift was prepared in its entirety
4 on the premises of apartment 14. To answer your
5 question, Judge Karibi-Whyte, it is the document
6 prepared on the spot, on the premises, which records
7 events such as the witnesses, items seized.
8 The Bericht was prepared at police headquarters
9 after the allegedly seized items returned to police
10 headquarters. It is at this point that a discrepancy is
11 noted concerning the allegedly seized items from
12 apartment 14. They had changed. These documents point
13 out the beginning of what becomes a serious problem in
14 the chain of custody. As for INDA-Bau, allow me to make
15 these preliminary observations. Here too, on the face
16 of the documents, there are discrepancies between the
17 allegedly seized items which are recorded on the
18 premises and the documents prepared later back at police
19 headquarters. Here too, one must begin with the
20 Niederschrift for INDA-Bau, which is Prosecution
21 Exhibit 165.
22 Among the items listed as confiscated in the
23 Niederschrift are 51 video cassettes. The Niederschrift
24 must be compared with two reports, two Bericht, two
25 reports, subsequently prepared at the Viennese police
1 headquarters in relation to INDA-Bau. The first is the
2 Bericht which is Exhibit D56/1. This Bericht was
3 prepared by Officer Navrat on 18th March 1996, after he
4 returned to police headquarters with the allegedly
5 seized items from INDA-Bau. This report indicates, once
6 again, that there are 51 video cassettes.
7 The second relevant document to look at, at this
8 stage, is the subsequent Bericht, which is D57/1, and
9 this Bericht is dated 22nd April 1996, and was prepared
10 by Bychek and Panzer. This document indicates that 54,
11 not 51 videos were seized at INDA-Bau during the search
12 of those premises.
13 Your Honours, I have just reviewed for you the
14 basis which gives rise to the issue of the chain of
15 custody in this matter. Your Honours have seen
16 discrepancies in regard to the allegedly seized items
17 both from Door 14 and from INDA-Bau. I pause here to
18 remind your Honours that during the testimony of Officer
19 Navrat, a police officer with 18 years experience, he
20 explained the purpose and importance of the documents
21 prepared in connection with the search to which I have
22 been making reference. We heard from Officer Navrat
23 that the Niederschrift is the only document prepared on
24 the premises during the search. By its very name, it is
25 the record of the search. Officer Navrat confirmed that
1 the Niederschrift is the only official document which is
2 signed by the person concerned, or his representative,
3 on the premises. A copy of the Niederschrift is left at
4 the premises. The Niederschrift is thus the best proof
5 of such things as the names of the people present, the
6 officers who conducted the search, and the objects
8 The connection between these documents and the
9 issue of the chain of custody is this: the
10 Niederschrift, prepared and completed in its entirety,
11 both at 14 and INDA-Bau, lists items which are different
12 from the items prepared in reports later at police
13 headquarters, and in the case of INDA-Bau, these
14 discrepancies are noted for the first time in a report
15 dated 22nd April 1996, more than one month after the
16 alleged search and seizure. There is no witness, no
17 representative of the person concerned when these
18 reports or all other subsequent documents are prepared
19 following the Niederschrift.
20 It is submitted that aside from all other
21 irregularities and illegalities associated with Door 14
22 and INDA-Bau, it is clear from these documents
23 themselves that some, if not all of the items allegedly
24 seized at 14 and INDA-Bau, change from the time that
25 these Niederschrift are prepared on the premises to the
1 time when these items are itemised and recorded in
2 records or reports, Bericht, which are prepared later at
3 police headquarters.
4 Your Honours, with that background, I now propose
5 to look in greater detail at the events surrounding both
6 of these searches at 14 and at INDA-Bau. I remind
7 your Honours of the offer of proof made by the
8 Prosecution, namely that they would prove the chain of
9 custody as between Unger and Moerbauer for apartment
10 14. The first thing to point out is that officer Unger
11 was not called as a witness; nor was his colleague
12 Winkelmann. According to the Niederschrift for 14,
13 D65/1, they were the two police officers who conducted
14 the alleged search and seizure at apartment 14.
15 Your Honours have therefore heard no evidence from an
16 officer who participated in the alleged search at
17 apartment 14. The Prosecution has offered no evidence
18 to prove even the first link in the chain for these
20 Furthermore, your Honours, as between Officer
21 Moerbauer and Panzer, there is conflicting testimony
22 regarding the care and control of the allegedly seized
23 items from apartment 14, between their seizure and the
24 return to police headquarters. I am just talking about
25 that period between the seizure and the return to police
1 headquarters. Both Officer Moerbauer and Officer Panzer
2 had clear recollections of events and their accounts are
3 quite different. Beginning on page 3549 of the
4 transcript, during direct examination, Officer Moerbauer
5 said that at one point during the search of apartment 14
6 he was requested by either Unger or Winkelmann to go up
7 one flight to apartment 14. At that time, Officer
8 Moerbauer was one floor below in apartment 150.
9 On page 3549 of the transcript, Officer Moerbauer
10 states that in apartment 14 he was shown a bag on the
11 desk, videotapes and documents. In the apartment
12 Officer Moerbauer says he was with his colleagues Unger
13 and Winkelmann. Officer Moerbauer then testified that
14 in the hallway, after the door to apartment 14 had been
15 locked, he received the black sports bag from the
16 officers who conducted the search, the bag in which all
17 the allegedly seized items from 14 were placed.
18 At page 3550, at line 24, Officer Moerbauer gave
19 this account of having received the black sports bag
20 after the door to apartment 14 was locked. He said and
21 I quote:
22 "When it was locked, the seized objects and the
23 record, along with the keys, were handed to me."
24 Officer Moerbauer then testified that he brought
25 the black sports bag back to police headquarters, and at
1 police headquarters he handed the bag back to either
2 Unger or Winkelmann. At page 3551, beginning at line 4,
3 Moerbauer had this to say:
4 "Question: Did the colleagues who carried out the
5 search in Delalic's apartment join you after the search?
6 Answer: Yes.
7 Question: Where did they join you?
8 Answer: In the police headquarters in our office.
9 Question: Was the whole seized material carried
11 Answer: The seized material was brought there and
12 the two colleagues had gone ahead, because there is a
13 report. After a search, you have to draw up a report
14 about it.
15 Question: Did you personally see again in the
16 police premises the same day the material which was
17 seized in Delalic's apartment?
18 Answer: Yes, I did see it. I took it along to
19 headquarters as well. I took it to the colleagues who
20 wrote the report, because I was waiting for the report
21 on the search."
22 I invite your Honours to compare Moerbauer's
23 versions of events with the following account concerning
24 the alleged seizure in apartment 14, which was given to
25 this Tribunal recently by Officer Panzer, the last
1 witness we saw. At page 6450 of the transcript, Officer
2 Panzer said this:
3 "Mr. Moerbauer went up to Delalic's apartment, and
4 I went up to Delalic's apartment. They would ask, is
5 this relevant, should this be seized or not? After the
6 search in Delalic's apartment was over, I happened to
7 see a gym bag there. I took that along. I put all the
8 items seized in the apartment of Mr. Delalic in that.
9 That bag, I took that bag to the car as well."
10 It is said:
11 "I think Borlak carried the things upstairs at
12 police headquarters with me."
13 I pause and ask your Honours to consider the
14 difference in these two accounts with regard to the
15 chain of custody issue. Moerbauer says he is up in
16 apartment 14 with Unger and Winkelmann, no mention of
17 Panzer being there. After the search, Moerbauer
18 receives a black bag in the hall. It is given to him by
19 one of the two police officers who conducted the
20 search. Moerbauer says he transports the black bag back
21 to headquarters. At headquarters, Moerbaur says he
22 hands the bag to his colleagues who must prepare a
23 report. Panzer says he and Moerbauer were up in 14.
24 Panzer says at the conclusion of the search he happens
25 to see a gym bag in the apartment. He puts the items in
1 a gym bag. Panzer takes the bag to the car. Borlak
2 takes the bag from the car at police headquarters
4 Based on this testimony, your Honours, it would
5 appear we are talking about two sports bags. It is
6 clear from this testimony that the black sports bag over
7 which Moerbauer had care and control is not the same bag
8 over which Panzer and Borlak had care and control.
9 Furthermore, in regard to apartment 14, the evidence is
10 clear from all accounts of all the witnesses who came to
11 testify that none of the allegedly seized items was
12 marked before leaving. The bags in which these things
13 were transported was not marked and the bag was not
14 sealed. As I have already mentioned, the evidence
15 before you does allow you to be sure of one thing. The
16 items were Taubergasse 15, Door 14 change from the time
17 they are allegedly seized to the time that they are
18 examined at police headquarters. As your Honours have
19 already seen, a comparison of the Niederschrift, D65/1,
20 and the report, D66/1, make that clear. We go from 30
21 videos in the Niederschrift to 28 in the reports.
22 The immediate question is, are we talking about 2
23 less tapes, 28 different tapes or some variation
24 thereon? In fact we are not sure whether we are even
25 talking about the same sports bag. I hasten to add that
1 if the most tangible items, the video, the items which
2 are the easiest to count have changed, it is not
3 unreasonable to say that the other items have changed as
5 I wish to emphasise, your Honours, that the
6 timeframe which we are looking at is only from the time
7 that the allegedly seized items were taken from Door 14
8 until returning to police headquarters late in the
9 afternoon on 18th March 1996 around 5.00 pm. It is
10 submitted that there are other intervening events which
11 occur thereafter, after 5.00 on 18th March, and which
12 I shall discuss shortly with you which are relevant to
13 the issue of chain of custody which again compound the
14 problem, but before moving on let me draw your Honours'
15 attention to one more fact one can see by merely looking
16 at the documents.
17 In the Niederschrift for apartment 14, that is
18 Exhibit D65/1, in a rather short list of items allegedly
19 seized, we find, and I repeat, 30 cassettes, one black
20 sports bag. In the report, D66/1, not only has the
21 number of cassettes changed from 30 to 28, there is no
22 longer any reference to a black sports bag. The sports
23 bag only makes a reappearance in the report on
24 22nd April 1996. This is a report prepared by Bychek
25 and Panzer. Your Honours can find this April
1 22nd report in Prosecution Exhibit 104. 104 is the
2 lengthy document that has been admitted, and you will
3 find this April 22nd report for apartment 14 in the
4 English version at page 7, the English translation
5 page 7, or if you would prefer the stamp number is
6 00486348. Your Honours, I have just gone through the
7 events surrounding the alleged search and seizure at
8 Taubergasse 15, Door 14, and the period I have been
9 talking about is from the time that the alleged search
10 took place until approximately 5.00 in the afternoon,
11 when things were back at police headquarters.
12 I now propose to cover this same period for the
13 alleged search and seizure at INDA-Bau, the same period,
14 from the search until we return at police headquarters.
15 I remind you first, your Honours, of the offer of proof
16 made by the Prosecution in relation to the chain of
17 custody at INDA-Bau, namely that they would prove the
18 chain of custody as between Officer Navrat and Officer
19 Moerbauer. Your Honours heard testimony concerning this
20 matter from Moerbauer, Navrat and Panzer. The first
21 account your Honours heard with regard to the continuity
22 of evidence in relation to INDA-Bau was given by Officer
23 Moerbauer. He testified that at about 5.00 in the
24 afternoon, on 18th March 1996, in room 331 at police
25 headquarters, Officer Navrat handed him a cardboard box
1 containing documents and video cassettes from INDA-Bau.
2 Officer Navrat testified -- when Officer Navrat
3 testified, he gave a different account. Officer Navrat
4 said that at police headquarters he handed the items not
5 to Officer Moerbauer but to Officer Panzer. Not only
6 does Officer Navrat's testimony conflict with that of
7 Officer Moerbauer over who received the items at police
8 headquarters, but there are other significant
9 differences between their testimony. Officer Moerbauer
10 has said that all videos and folders from INDA-Bau were
11 in a cardboard box. Officer Navrat said that the
12 folders were in a plastic bag and that the video were in
13 a cardboard box. Officer Moerbauer said he received the
14 cardboard box from Officer Navrat in room 331 of police
15 headquarters. Officer Navrat said he handed the plastic
16 bag containing the folders and the cardboard box
17 containing tapes to Officer Panzer in room 326 of police
19 As for Officer Panzer's version, he confirms that
20 he received the items from Officer Navrat, contrary to
21 Moerbauer's account, but Officer Panzer makes no
22 reference to a plastic bag containing folders. At
23 page 6464, Officer Panzer says:
24 "Mr. Navrat brought me 12 folders with various
25 papers, newspaper cuttings were there, and there was
1 also a box with video cassettes."
2 Your Honours, based on the testimony of these
3 three police officers, we are left with this: we have
4 inconsistent testimony concerning who received the
5 allegedly confiscated items from Officer Navrat at
6 police headquarters. There are inconsistencies
7 regarding the container or containers, whichever version
8 one might accept, in which these items arrive at police
9 headquarters, and there are inconsistencies in relation
10 to the room in police headquarters where these items are
12 On this last point it is clear that room 331 and
13 room 326 are different offices in police headquarters,
14 which suggest perhaps that items allegedly coming from
15 INDA-Bau were brought both to Moerbauer and to Panzer by
16 Officer Navrat. There may have been two sets of items,
17 two cardboard boxes. Who knows?
18 As for the allegedly seized items from INDA-Bau
19 themselves, your Honours have already heard that as
20 between the Niederschrift and the report of 18th March,
21 the items do not change. Officer Navrat prepared both,
22 he signed the Niederschrift and he signed the first
23 report on 18th March. The items do not change. The
24 Niederschrift in question is Exhibit 165 and the report
25 is D56/1.
1 The Niederschrift was completed on the premises of
2 INDA-Bau, and the report of 18th March was completed at
3 police headquarters. On the face of this document, the
4 list of allegedly seized items is the same. I say on
5 the face of the documents, because during his testimony
6 Officer Navrat said that he did not check the items from
7 INDA-Bau when he returned to police headquarters. He
8 relied entirely on the contents of his Niederschrift in
9 preparing his reports. This is significant for the
10 following reasons, I submit. As we shall see shortly,
11 documents prepared in April 1996 in connection with
12 INDA-Bau indicate that the allegedly seized items
13 change. Whether they change from the time they left
14 INDA-Bau to the time they arrived at police
15 headquarters, or whether the items changed after
16 arriving at police headquarters, we will never know --
17 we may never know.
18 I raise this point because aside from the
19 conflicting testimony regarding delivery of these items
20 at police headquarters, the testimony of Officer Navrat
21 confirms that none of the items were marked before
22 leaving INDA-Bau. The container or containers in which
23 they were transported was not marked, nor was the
24 container sealed before leaving INDA-Bau. The document
25 which records a change in the allegedly seized items
1 from INDA-Bau is a report dated 22nd April 1996 to which
2 I made reference earlier. This report is part of
3 Prosecution Exhibit 104. I refer you to the English
4 version, the English translation of Exhibit 104,
5 page 7. It is the report prepared by Bychek and Panzer
6 in relation to INDA-Bau. It is submitted that the date
7 of this report, April 22nd 1996, is significant in
8 determining the issue of the chain of custody. It is
9 significant for this reason. So far, your Honours, we
10 have been following the allegedly seized items from
11 apartment 14 and from INDA-Bau, from those two premises,
12 to police headquarters on 18th March 1996. It is
13 submitted that your Honours have already seen evidence
14 which raises a reasonable doubt as to the continuity of
15 this evidence. However, once back at police
16 headquarters, beginning on the evening of 18th March
17 1996, there is further evidence which in our submission
18 compounds the problem of the chain of custody.
19 I now propose to take your Honours through the
20 evidence which we submit is relevant to the issue of
21 custody, from the time the items from Door 14 and
22 INDA-Bau arrive at police headquarters on 18th March to
23 the preparation of these reports on 22nd April 1996, and
24 its ultimate transfer to this court in The Hague. So
25 far we have gone from 14 and INDA-Bau to police
1 headquarters, 5.00 on 18th March. Now I want to go from
2 5.00 on 18th March to the other set of reports in April,
3 a month later approximately, and thereafter, because
4 they leave Vienna and end up here.
5 It is submitted that the evidence of three
6 Prosecution witnesses is relevant to this portion of the
7 chain of custody in connection with the events at police
8 headquarters on the evening of 18th March. I want to
9 talk about the evening of 18th March. Those three
10 witnesses are Officer Panzer, Officer Moerbauer and
11 officer D'Hooge, the OTP investigator.
12 Officer Panzer told this Tribunal that at about
13 5.00 on 18th March 1996, upon his arrival at police
14 headquarters, he went directly to room 331, where he put
15 the items allegedly seized from Door 10 and Door 14 at
16 Taubergasse 15, as well as the items from INDA-Bau, in a
17 cabinet which was in room 331. Officer Panzer testified
18 that only he, Bychek and Moerbauer had access to room
19 331 and to the cabinet in that room. He says this at
20 page 6462.
21 Officer Panzer told your Honours that he marked
22 the items from Door 10 in the evening of 18th March 1996
23 at around 8.00 pm, and that he marked the items from the
24 other two locations, apartment 14 and INDA-Bau, on the
25 next day, on 19th March 1996. At one point in his
1 testimony, on page 6555, Officer Panzer said that on the
2 evening of 18th March 1996, for the most part until
3 Mr. Mucic was handed over, taken to jail, nine people had
4 access to room 331: Mucic, Mr.s Supert, the German
5 interpreter, Borlak, Moerbauer, Bychek, Gschwendt,
6 Fammler, the legal advisor, Navrat and Panzer himself.
7 Your Honours, it is submitted that Officer Panzer
8 was attempting to say that room 331 and the cabinet in
9 that room containing the allegedly seized items from all
10 three locations was under the care and control of only a
11 few police officers, and that only a few authorised
12 people had access to room 331.
13 Indeed, on cross-examination, beginning at
14 page 6564, line 22, Officer Panzer gave the following
15 evidence concerning the items from Door 10, which he
16 says he put in the cabinet at around 5.00 pm on
17 18th March and which he removed from the cabinet to mark
18 at approximately 8.00 pm:
19 "Question: From the time you put these items in
20 the cabinet until you marked these items, did they
21 remain the whole time in the cabinet?
22 Answer: No, they stayed in the cabinet the whole
24 On page 6565, beginning at line 1, the questions
25 and answers continue concerning alleged items from
1 apartment 10:
2 "Question: From 5.00, when you put them there,
3 until you took them out to mark them, they stayed in the
5 Answer: All the seized items, once they were
6 handed over, were put in the cabinet and all the items
7 from the same locality were placed on the same shelf.
8 Perhaps Mr. Bychek, Mr. Moerbauer and myself in the
9 meantime took something out, had a look at it, put it
10 back in, but they were always in there. Put it this
11 way, I cannot really say whether they were under lock
12 and key at absolutely all times.
13 Question: When you were finished marking the
14 videos and items from Door 10, you put them back in the
16 Answer: I put them back in the box in the back of
17 the cabinet, yes."
18 Then moving down to line 19 on page 6565:
19 "Question: The other items that are in the
20 cabinet, other than Door 10, they remain in the cabinet
21 from the time you put them there about 5.00 on the
22 18th until some time the next day; is that correct?
23 Answer: They were in the cabinet, items were
24 always in the cabinet, put it that way."
25 Your Honours a little later in the same
1 cross-examination, Officer Panzer was asked if
2 representatives from the OTP were at police headquarters
3 on the evening of 18th March 1996. His version of
4 events changed, both in regards to the people who had
5 access to room 331 and in regards to the allegedly
6 seized items. On page 6569, beginning at line 11,
7 Officer Panzer says this:
8 "Question: The Office of the Prosecutor of this
9 Tribunal, their representatives were also in room 331?
10 Answer: People from the Tribunal looked in. As
11 to when that was and how long they were there, I cannot
12 say. They were not in room 331, they were rather in the
13 room next door."
14 Officer Panzer elaborates further on page 6570,
15 beginning at line 5:
16 "Question: You say that the representatives of
17 the Prosecutor's office of this Tribunal were never in
18 room 331; is that correct?
19 Answer: They did come into the room, but they
20 were staying, as it were, in the next room. That is
21 where they were located, as it were."
22 As for the allegedly seized material and the
23 access of the representatives of the OTP to those items
24 on the evening of 18th March 1996, Officer Panzer says
25 this at page 6573:
1 "Question: Is it not correct that in room 331,
2 the representatives of the Office of the Prosecutor were
3 allowed to look at allegedly seized items from doors 10,
4 14 and INDA-Bau?
5 Answer: That is right.
6 Question: These items were placed on a table, on
7 one of the times in room 331?
8 Answer: I think they were in the next room on the
9 table. The seized items, I took them out of the
10 cabinet, I and Moerbauer gave it to them, they had a
11 look at it, then I took it back and put it in the
13 Your Honours, I pause here for a moment. At this
14 point in his testimony, not only has Officer Panzer
15 seemed to recall the OTP being in room 331, when they
16 had a look at the allegedly seized items, now he
17 remembers taking these items out of the cabinet and in
18 fact out of room 331 to take them to room 329 where the
19 OTP representatives were located.
20 Furthermore, your Honours, in answering these
21 questions which I have just read to you, Officer Panzer
22 was not sure when and for how long the OTP was there on
23 the evening of 18th March 1996. That is where the
24 testimony of Officer Moerbauer and Officer D'Hooge, the
25 OTP investigator, is very helpful.
1 Both officers Moerbauer and D'Hooge say that the
2 OTP representatives were at police headquarters on
3 18th March 1996 from about 5.00 pm until 7.30 pm. On
4 page 3560, beginning at line 10, Officer Moerbauer says
6 "Question: Mr. Moerbauer, did you see on that same
7 day of March 18th any investigator or any officer of
9 Answer: Yes, there were people from the Tribunal
10 who were --
11 Question: Where?
12 Answer: In the office in room 331."
13 Further down on page 3560, line 24:
14 "Question: I did not get you exactly. At what
15 time did they arrive in room 331?
16 Answer: Between 5.00 and 7.30. They were present
17 during that time."
18 On page 3976 of the transcript, Officer D'Hooge
19 describes how the allegedly seized objects were placed
20 on different tables and desks in room 331 how he and the
21 OTP interpreter flipped through them and requested that
22 certain documents be photocopied. Officer D'Hooge
23 places himself in room 331 because that is the same room
24 in which Mr. Mucic was located. Officer Moerbauer
25 testified he made photocopies of documents selected by
1 the OTP representatives immediately; that is to say some
2 time between 5.00 pm and 7.30 pm on 18th March 1996. At
3 page 3563, Officer Moerbauer says this:
4 "Question: Mr. Moerbauer, my question was, did
5 this request concern a selected number of documents?
6 Answer: Well, the interpreter flipped through the
7 folders and wanted to have copies of certain documents.
8 Question: Approximately how many?
9 Answer: Well, about 30 to 50 pages."
10 Your Honours, it is at this point that what up
11 until now has been consistent testimony between officers
12 Moerbauer and D'Hooge changes. Officer Moerbauer says
13 that the access by the representatives of the OTP to the
14 allegedly seized material and the photocopies he made
15 for them on the evening of 18th March 1996 between 5.00
16 pm and 7.30 had been approved by the investigating
17 magistrate, Dr. Seda. During his testimony, Officer
18 Moerbauer also told your Honours that the copies he made
19 for the OTP that day were taken away by the
20 representatives of the OTP when they left police
21 headquarters that evening. On both counts, Officer
22 D'Hooge gave different testimony. Officer D'Hooge said
23 that no copies were made for the OTP on that evening of
24 18th March 1996, and no documents were taken away that
25 evening because Dr. Seda could not be contacted to give
1 his approval.
2 Let me remind your Honours of what Officer D'Hooge
3 said during his testimony at page 4001:
4 "Question: In room 331, there is no photocopying
5 machine; is that right?
6 Answer: That is not the reason why they were not
7 photocopied while we were there. The members of the
8 Vienna police wanted to have authorisation of Dr. Seda,
9 if they could, for the copying of the documents.
10 Question: Therefore while you were there between
11 5.00 and 7.30 pm on that day, no documents were
12 photocopied because there was no authorisation from
13 Dr. Seda; is that correct?
14 Answer: That is correct."
15 Further down on page 4001, line 22, Officer
16 D'Hooge says this:
17 "Question: Do you know at all when these
18 documents were photocopied?
19 Answer: I believe that they were photocopied the
20 moment that the Vienna police had authorisation from
21 Dr. Seda and I believe that they could not get
22 authorisation the same day because it was after working
23 hours and probably Dr. Seda was not in his office any
25 Officer Moerbauer has a different recollection of
1 events. He says that the OTP representatives left on
2 the evening of 18th March 1996 at about 7.30 with the
3 documents he had photocopied for them. Moerbauer told
4 this Tribunal on page 3565, line 10:
5 "Question: When did you give the ICTY officers
6 their copies?
7 Answer: Well, all was done right away. I got a
8 folder, made copies, went back and gave the copies to
9 the person in question."
10 Further down on page 3565 at line 19:
11 "Question: What did you personally do after these
12 photocopying operations?
13 Answer: After the copies were finished the people
14 from the Tribunal left.
15 Question: On 18th March was there permission from
16 the investigating magistrate Dr. Seda to allow officers
17 from the OTP to have access to the allegedly seized
18 items, to examine and handle them, to select items for
19 photocopying, to receive documents from the Viennese
20 police and to leave police headquarters with those
22 As I have just indicated to your Honours, Officer
23 D'Hooge says that there was not. Officer D'Hooge says
24 permission was only given by Dr. Seda on 20th March 1996
25 and this is at page 3997.
1 In fact, under cross-examination, when pressed
2 about the dates that Dr. Seda may have approved for the
3 copies, Officer Moerbauer recalls that perhaps it was
4 20th March 1996 that such approval was obtained. At
5 page 3716, Moerbauer says this:
6 "Question: You, Mr. Moerbauer, never saw a
7 document containing the approval of the magistrate
8 judge, investigating judge for such an operation?
9 Answer: There was no document, but notes were
10 made regarding this. This was on the 18th or maybe on
11 the latest the 20th. Mr. Bychek consulted the judge at
12 that time and this was confirmed by the judge and a note
13 on the record was made."
14 Your Honours, the events to which Officer
15 Moerbauer makes reference involving his colleague Bychek
16 involves the handing over of four video cassettes
17 allegedly seized from Door 10, which did occur on
18 20th March. Officer Moerbauer describes these events at
19 page 3841. Moerbauer says:
20 "It was on 20th March. Mr. Du Toit of the Tribunal
21 was at our office and he was given the videotapes that
22 had been seized. This was after consultation with
23 Dr. Seda, the investigating judge and that consultation
24 took place by calling Bychek over the phone. Mr. Du Toit
25 also spoke via the telephone with Dr. Seda. Bychek
1 wanted a written confirmation about the conversation
2 with the investigating judge. The latter declined for
3 reasons of time and in this regard, Mr. Bychek drew up a
4 note. He made an entry in the record, and as far as
5 I know, Mr. Du Toit was not a lawyer but an
7 Your Honours, there is an entry in the documents
8 prepared by the Viennese police concerning the approval
9 of the magistrate, Dr. Seda, for release of items to the
10 OTP and it is dated 20th March 1996. Your Honours will
11 find that document in Prosecution Exhibit 104, in the
12 English version it is page 4 of Prosecution
13 Exhibit 104. It is a report dated 22nd April 1996,
14 which was prepared in connection with Taubergasse 15,
15 Door 10. This report was prepared by Bychek, Moerbauer
16 and Panzer. It makes reference to, among other things,
17 four allegedly seized videotapes from apartment 10. The
18 entry in question relates to all four videotapes which
19 I read to you now:
20 "A copy was submitted to the UN Tribunal on
21 20th March 1996 after consulting the judge on duty,
22 Dr. Seda."
23 Nowhere in Prosecution Exhibit 104 is there any
24 reference concerning contact with the judge regarding
25 the release of evidence to the OTP before 20th March
2 Your Honours, it is submitted that the cumulative
3 effect of this evidence shows that no permission was
4 obtained from Dr. Seda on 18th March 1996. It is further
5 submitted that all access to the allegedly seized items
6 by the OTP, all handling, all photocopying, Officer
7 Moerbauer's clear recollection that documents were taken
8 away that evening by the OTP, all of this amounts to a
9 breach of Austrian law. I say this for this reason. It
10 was put to Officer Panzer during his testimony and he
11 agreed that it would be a violation of the law to allow
12 unauthorised individuals to have access to the allegedly
13 seized items, not to mention having those items leave
14 police headquarters, or copies of them, because there is
15 one point to clarify in this regard. During his
16 testimony Officer Moerbauer said that in the case of
17 three documents, the originals were given to an OTP
18 officer, and taken away with him on the evening of
19 18th March, and during his testimony, Officer D'Hooge
20 acknowledged that when he left police headquarters, he
21 left police headquarters with original documents,
22 although he says it was after 18th March.
23 It is respectfully submitted that this is the
24 situation at police headquarters on 18th March between
25 5.00 and 7.30. While documents are being examined and
1 selected for photocopy by OTP representatives, Moerbauer
2 is also off elsewhere in the police headquarters making
3 photocopies. There is no record keeping taking place.
4 There is no proof of that and, in fact, Moerbauer says
5 there was no record keeping. No one has any idea what
6 is being handled, moved, photocopied or taken away.
7 Moerbauer and D'Hooge say that up to 14 people had
8 access to room 331 that evening between 5.00 and 7.30
9 pm. Officer Panzer says that the OTP representatives
10 were in the room next door, 329, with the allegedly
11 seized items. He has these items changing rooms.
12 Finally, Moerbauer has the documents leaving
13 police headquarters along with the OTP representatives
14 including in one case three original documents and there
15 is doubt whether Dr. Seda approved of any such activities
16 at all on 18th March 1996.
17 Your Honours, the Prosecution's contention is that
18 Officer Moerbauer is the central link in the chain of
19 custody. Prosecution Exhibit 104, to which I have made
20 reference so far, is an analysis prepared by Officer
21 Moerbauer which was admitted into evidence, not for the
22 truth of its contents, you will recall, but as proof
23 that all the allegedly seized material from all three
24 seizures was analysed methodically and consistently by
25 Officer Moerbauer. It is submitted that not only is
1 Prosecution Exhibit 104 completely unreliable, with
2 Officer Moerbauer and the other Viennese police officers
3 who have testified, the Prosecution cannot prove a
4 single document or videotape.
5 Would it be convenient to stop here, perhaps?
6 JUDGE KARIBI-WHYTE: Is that your last observation or are
7 you continuing when we have resumed?
8 MR. O'SULLIVAN: I will resume after the break, if that is
9 all right, your Honour.
10 JUDGE KARIBI-WHYTE: You will.
11 (4.00 pm)
12 (A short break)
13 (4.30 pm)
14 JUDGE KARIBI-WHYTE: Good afternoon, ladies and gentlemen.
15 We hear the speed at which you are going in presenting
16 the case has made it impossible for the interpreters to
17 get to all other languages, so in fact, it is very
18 likely we might not have English translation this
19 afternoon. We might not also have the French
20 translation, so please, will counsel appreciate that
21 difficulty, and make sure that we have the
22 interpretation properly. All the problem is your
23 speed. I know you are anxious to complete what you are
25 MR. O'SULLIVAN: Your Honour, thank you. I will endeavour to
1 be aware of that fact. May I proceed?
2 JUDGE KARIBI-WHYTE: Yes, you may proceed.
3 MR. O'SULLIVAN: Your Honours, before the break I was
4 attempting to review the evidence with you on the issue
5 of the chain of custody by breaking down events into
6 certain time periods, and we had gone from the point of
7 seizure at both apartment 14 and INDA-Bau back to police
8 headquarters at approximately 5.00 on the afternoon of
9 18th March. The second period, which we have reviewed
10 together, relates to the evening of 18th March 1996 at
11 police headquarters.
12 Just before the break I was saying that the
13 Prosecution's contention is that Officer Moerbaur is the
14 central link in the chain of custody. Prosecution
15 Exhibit 104 is an analysis, prepared by Officer
16 Moerbaur, which was admitted into evidence, not for the
17 truth of its contents, but as proof that all the
18 allegedly seized materials from all three locations was
19 analysed methodically and consistently by Officer
20 Moerbaur. It is submitted that not only is Prosecution
21 Exhibit 104 unreliable, but through Officer Moerbaur and
22 the other Viennese police officers, it is submitted that
23 the Prosecution cannot prove the authenticity of a
24 single document or a single video.
25 During his testimony, Officer Moerbaur testified
1 that he analysed all the documents from the three
2 alleged seizures, and that he analysed some, but not
3 all, of the allegedly seized videos. Moerbaur analysed
4 all the documents, he and his colleagues analysed all
5 the videos.
6 Officer Moerbaur testified that the videos were
7 analysed for a period of between 10 to 15 days,
8 beginning on 19th March 1996, so from 19th March for ten
9 days, the videos were analysed. Moerbaur also testified
10 that from 22nd March until 2nd April, he marked the
11 individual documents for the first time, and he analysed
12 them. He says this at page 3574. So the documents are
13 marked for the first time, all the documents from all
14 the seizures are marked -- I am sorry, from INDA-Bau and
15 from 14 are marked for the first time by Moerbaur
16 beginning on 22nd March and concluding on 2nd April.
17 Let me remind your Honours of a few facts which
18 are submitted are pertinent to this portion of my
19 submissions. We know that none of these items were
20 marked before leaving the premises from which they were
21 allegedly seized. We know that none of the allegedly
22 seized items was in a container which was marked or
23 sealed when it left the premises. Furthermore, all
24 these items remained unmarked when they were handled,
25 examined, photocopied at police headquarters on
1 18th March 1996 from 5.00 pm until 7.30 pm. The
2 evidence of Officer Panzer is that he marked the
3 allegedly seized items from Door 10 at around 8.00 pm on
4 the evening of 18th March 1996, after the OTP
5 representatives had left that evening, and Panzer also
6 said that he marked the alleged seized items, that is to
7 say the videos and the folders, he claims, on
8 19th March, the next day.
9 It is respectfully submitted that the chain of
10 continuity by the time Officer Moerbaur begins his
11 analysis of videos on 19th March, and by the time he
12 begins his analysis of documents on 22nd March is
13 completely non-existent, if it ever existed in the first
14 place. It is the result of his analysis of these items
15 during that period --
16 JUDGE KARIBI-WHYTE: I wish I understood that conclusion.
17 What does not exist?
18 MR. O'SULLIVAN: There have been so many breaks over this
20 JUDGE KARIBI-WHYTE: That the exercise never existed or the
21 claim to have done that never existed?
22 MR. O'SULLIVAN: Perhaps Moerbaur did look at items, tapes
23 and videos, but Moerbaur cannot say which ones, because
24 they were never marked, never sealed, and they were
25 handled by all these people at police headquarters, and
1 photocopied. What Moerbaur looked at on the 19th with
2 the videos, starting on 19th March, and what he may have
3 looked at, beginning on 22nd March, he may have had
4 something, but there is no evidence to say that that has
5 been controlled and maintained, to know that things
6 change. In fact from the documents we know that things
7 did change, numbers changed, items off the Niederschrift
8 are different when we come to his final analysis in
9 Prosecution Exhibit 104 because by April 22nd, the
10 documents prepared by Moerbaur and others show that
11 different items were analysed and itemised. That is the
12 area I want to explore with your Honours right now,
13 through the evidence that is on the record.
14 Just to remind your Honours that Prosecution --
15 this Prosecution Exhibit 104 contains all the
16 Niederschrift and all the reports and all the
17 evaluations, and these were the items, many of the
18 exhibits that were shown to the Viennese police officers
19 who testified before you, and as I said, in many of
20 these documents, we know that allegedly seized items
21 change as reflected in those documents.
22 Officer Moerbaur also testified that he drew up a
23 final report at the end of April. He testified that his
24 final report was handed over to the judge at the
25 regional court of Vienna at the end of April, but
1 through his own testimony, Moerbaur does not know if the
2 seized material was handed over to the judge at the same
3 time as his final report. He says this at page 3580,
4 your Honours:
5 "Question: Was the original seized material
6 handed over to the judge on the same day when the final
7 report was handed over at the end of April?
8 Answer: I do not know, because my final report
9 with the seized items was handed over to police
10 headquarters in Vienna, which was then subsequently
11 transmitted to -- which then subsequently transmitted
12 things to the court, so the headquarters addressed these
13 documents and the seized items to the Vienna district
15 Officer Moerbaur does not know if these items he
16 analysed were handed over to the competent judge. All
17 he can say is that the final report, along with seized
18 items, was handed over to police headquarters in Vienna,
19 which was then subsequently transmitted to the court in
20 Vienna. Officer Moerbaur has doubts then about the
21 continuity of the evidence from the time it leaves
22 Moerbaur to the time it ends up in the district court of
23 Vienna. For all these reasons it is submitted that
24 Prosecution Exhibit 104 is an unreliable document. It
25 is based on analyses of allegedly seized material by
1 Moerbaur, and the provenance of this material is not
2 clearly proven beyond a reasonable doubt, given all the
3 intervening events, from the time they leave premises,
4 to the things that happened on the evening of the
5 18th in police headquarters. When Moerbaur looks at
6 these beginning on the 19th for the videos and the 22nd,
7 for the month of March. He may have looked at things
8 but there is no proof of what he looked at because
9 nothing is marked, nothing arrived sealed.
10 Your Honours, a moment ago I made the submission
11 that the Prosecution had not proven the authenticity of
12 a single document or video from either INDA-Bau or
13 apartment 14. Let us review the facts. Apartment 14:
14 no evidence was given by Unger or Winkelmann. They are
15 the officers who allegedly conducted the search in
16 apartment 14. We saw the inconsistent accounts given by
17 Moerbaur and Panzer concerning the way in which the
18 allegedly seized items from 14 returned to
19 headquarters. Moerbaur and Panzer each claimed they had
20 a bag. The evidence alleges, however, there was only
21 one bag from apartment 14. We saw that together.
22 The report of Unger and Winkelmann on 18th March
23 is different from their Niederschrift, the same police
24 officers prepared a Niederschrift and a first report.
25 We go from 30 to 28 videos. The black bag has
1 disappeared. The Prosecution is attempting to have one
2 document allegedly seized from apartment 14 admitted
3 into evidence. This document is identified in
4 Prosecution Exhibit 104 as coming from a green folder,
5 D-4. Moerbaur refers to this folder at page 3561.
6 Your Honours may recall that during the testimony of
7 Officer Panzer, I directed his attention to this green
8 folder, D-4. I did it to show one thing, your Honours.
9 As your Honours know, this Prosecution Exhibit 104 is
10 not admitted for the truth of its contents but its proof
11 that Officer Moerbaur had a reliable system of
12 analysis. The Prosecution sought to have it admitted so
13 your Honours could rely on Moerbaur's system of
15 My intention in having Officer Panzer follow the
16 green folder, D-4, through the Niederschrift and the
17 records and the evaluation was to show that certain
18 documents from the green folder, which allegedly comes
19 from apartment 14, disappeared and appear to show up in
20 an evaluation prepared for INDA-Bau, completely
21 different location. I was not seeking to have Officer
22 Panzer comment or say how that happened, I just wanted
23 to show your Honours with one more example that
24 Prosecution Exhibit 104 is not reliable for the purposes
25 that the Prosecution advances it.
1 I leave it to your Honours to review the
2 transcript beginning on page 6630, where Officer Panzer
3 is taken through the Niederschrift, through the report,
4 as well as through the documents in 104, in relation to
5 the green folder which comes from apartment --
6 THE INTERPRETER: Would counsel please slow down.
7 MR. O'SULLIVAN: 14.
8 JUDGE KARIBI-WHYTE: Would counsel kindly slow down for the
10 MR. O'SULLIVAN: Yes, your Honour, thank you. I do not
11 propose to go through that part of the transcript with
12 your Honours, it is on page 6630. I would like to
13 address your Honours on one aspect of the
14 cross-examination of Mr. Panzer in relation to this green
15 folder, D-4. I said I did not ask Officer Panzer to
16 comment or explain why certain documents in the green
17 folder disappeared in the final evaluation. This final
18 evaluation being the most detailed analysis of the
19 folder. Your Honours will recall that as we start with
20 the Niederschrift, the record of on the premises and as
21 we move through all of these reports and evaluations, we
22 are going into more and more and more detailed analysis
23 of the contents of the allegedly seized items.
24 As I said, I did not ask Panzer to comment why
25 certain things seemed to disappear or not mentioned in
1 the final analysis and why they end up in an INDA-Bau
2 evaluation, but Officer Moerbaur did offer an
3 explanation, he did give a comment. Beginning at
4 page 6634, Officer Panzer had this to say about the
5 green folder D-4. He said:
6 "I do not know what you expect me to say, because
7 in my opinion, as far as the green folder is concerned,
8 Moerbaur or myself brought it in, so that all these
9 different pieces of paper could be collected in a single
10 folder and be labelled in that way. I cannot really say
11 any more about this green folder."
12 Your Honours, if you look at the English version
13 of Prosecution Exhibit 104 at page 12, you will find the
14 final evaluation of this green folder.
15 JUDGE KARIBI-WHYTE: Let me get this clear. Actually, what
16 is your challenge of Exhibit 104, which is made as an
17 aide memoire to assist in correlation of documents which
18 were seized.
19 MR. O'SULLIVAN: It is admitted for those purposes. I am
20 saying that when it was prepared by Moerbaur based on
21 his analysis, he has no way of knowing, we have no way
22 of knowing, through whose hands the provenance of the
23 items he looked at because of all the intervening events
24 that have broken the chain of custody, from the moment
25 they were allegedly seized to the moment he gets them,
1 beginning either 19th March in the case of the videos,
2 or 22nd March in the case of the documents.
3 JUDGE KARIBI-WHYTE: Does that challenge go to the
4 authenticity of the documents themselves?
5 MR. O'SULLIVAN: Yes, because they have never been marked.
6 We do not know whose hands they have been through, we do
7 not know where they have been. We know that the
8 documents show us that the quantity of items has
9 changed. We do not know whether it is one thing, two
10 things, different bags -- they were put in generic
11 cardboard boxes, a generic gym bag, plastic bags, none
12 of which are sealed, none of which are marked. In some
13 cases, we have two gym bags from 14, we have items from
14 INDA-Bau coming back to two officers, given to different
15 people. We have photocopies which I submit were made in
16 violation of the law of Austria because Judge Seda did
17 not give his permission. We have original documents
18 apparently leaving with an OTP investigator.
19 JUDGE KARIBI-WHYTE: You regard that as a fairly good
20 speculation of what might have happened.
21 MR. O'SULLIVAN: It is all by juxtaposing the testimony of
22 the witnesses they have confirmed it. Why are there
23 problems with the documents? Their testimony is
24 bringing out the problems, your Honour, that is my
25 submission. We are getting conflicting versions on some
1 pretty fundamental aspects of care and control and
2 continuity. There must be a reason why the numbers
4 JUDGE KARIBI-WHYTE: It is your submission, I think you can
5 go on.
6 MR. O'SULLIVAN: Thank you. Return to the green folder, D-4,
7 Officer Panzer says that he and Moerbaur brought it in.
8 They are the ones who created the green folder. To
9 return to Exhibit 104 at page 12 of the English version,
10 you will see that across the top of that document at
11 page 12 in capital letters we have the word evaluation,
12 followed by this:
13 "Evaluation of the green folder entitled mail
14 which was seized in the flat of Zejnil Delalic in
15 Vienna, 17 Taubergasse 15/14."
16 That is the heading of the evaluation. Officer
17 Panzer says he and Moerbaur created this file to put
18 different pieces of paper in. That is the testimony
19 I just read to you. In the evaluation of the green
20 folder, the green folder is represented at "mail", the
21 correspondence, a correspondence folder which is seized
22 in apartment 14; in other words this green folder is not
23 represented as a folder which he and Moerbaur brought in
24 to put different pieces of paper in, it is represented
25 as a folder with the word "mail" on it, coming from
1 apartment 14.
2 In my respectful submission, this is an attempt --
3 in an attempt to explain to counsel why things have
4 disappeared from the green folder, Officer Panzer has
5 admitted to having created a folder putting the name
6 "mail" on it. It is submitted this is admitted
7 fabrication of this green folder and it is consistent
8 with Officer Panzer, his admission to my learned
9 colleague Mr. Moran at page 6662 where he agreed with
10 Mr. Moran that he was trying to mislead a judge into
11 thinking that Officer Moerbaur had signed the arrest
12 report, when in fact Officer Panzer had forged
13 Moerbaur's signature. That arrest report is D67/1.
14 Allow me to sum up on apartment 14. It is
15 respectfully submitted that the Prosecution has not
16 proven or authenticated the items allegedly seized from
17 apartment 14. No evidence was heard from the officer
18 who allegedly conducted the search. There is
19 conflicting testimony as between Moerbaur and Panzer
20 over care and control of the bag, they have two bags and
21 the documents say there was one. There are the events
22 which transpired on the evening of 18th March 1996 at
23 police headquarters which affects the continuity once
24 again. Finally, it is my submission that this proof of
25 fabrication involving evidence in apartment 14, the
1 green folder.
2 It is further submitted that the Prosecution has
3 failed to prove a single document or video from
4 INDA-Bau. Your Honours heard the testimony of Officer
5 Navrat, who collected the allegedly seized items from
6 INDA-Bau. He testified, Officer Panzer testified, that
7 he did not mark a single item among the seized material
8 before leaving the premises at INDA-Bau. Before
9 your Honours he did not identify, nor was he asked to
10 identify, any videos allegedly confiscated during that
12 Your Honours, the fact of the matter is this: that
13 in order to save himself and the Prosecution a lot of
14 embarrassment, Officer Navrat could not be shown the
15 videos. The Prosecution would have to have put 54
16 videos in front of Navrat and ask him to choose the 51
17 he said he seized according to his Niederschrift and
18 report. Officer Navrat was, however, shown 12 folders,
19 which he allegedly confiscated from INDA-Bau, which he
20 had testified to not having marked before leaving.
21 Before your Honours Mr. Niemann showed 12 folders to
22 Officer Navrat, and beginning at page 5649 of the
23 transcript we have this exchange between Mr. Niemann and
24 Mr. Navrat. Mr. Niemann asked the question:
25 "Mr. Navrat, would you please look at these
1 documents that you have just been shown, go through them
2 one by one and I will ask you some questions about
3 them. You do not need to open them at this stage if you
4 can tell me what they are just by looking at the
5 outside. Could you tell me what they are? Do you
6 recognise what those documents are?
7 Answer: I take it that these 12 folders are those
8 I provisionally seized.
9 Question: In order to satisfy yourself that they
10 are the documents that you seized, would you care to
11 inspect them in greater detail? You may look inside if
12 that assists you.
13 Answer: I think it might be helpful for me to
14 have a closer look, if I could have a closer look, that
15 might help.
16 Question: Please have a closer look. While you
17 are doing that, if it is at all possible to do both the
18 tasks together, could you attempt to sort them in the
19 same order as you set them out in the record of the
20 search document, the Niederschrift, Exhibit 136, which
21 I think is before you -- 165, sorry."
22 Then there is a pause. Your Honours will recall
23 Navrat opened a folder or two, looked in at a document
24 or two and made three piles. Mr. Niemann continues:
25 "Now that you have had a chance to look at them,
1 do you recognise those documents, Mr. Navrat.
2 Answer: Yes, I do recognise them. I have
3 striven to break them down according to what I put in
4 the search record.
5 Question: I think you have set them out in three
6 piles on the desk, is that right, in front of you?
7 Answer: Yes, that is right.
8 Question: I take it is the large pile the one
9 relating to the 8?
10 Answer: Yes, that is right, yes.
11 Question: Which one relates to the two Mucic
12 documents? Can you just point to it with your fingers?
13 Answer: These to my right (indicates).
14 Question: And the other two, are those two which
15 are referred to as containing newspaper articles?
16 Answer: Yes."
17 Your Honour, with all due respect, Officer Navrat
18 never put an identification mark on the folders he
19 allegedly seized at INDA-Bau. Before you he put 12
20 generic coloured folders in three piles of 8, 2 and 2,
21 according to what he said was in the Niederschrift. The
22 best Officer Navrat could say about the folders is:
23 "I take it that these are the folders. I have
24 striven to break them down."
25 The only thing Officer Navrat did not say, but one
1 got the impression he wanted to say after making the
2 three piles was "did I do it right?"
3 Your Honours, it is submitted that this exercise
4 with Officer Navrat and the 12 folders proved absolutely
5 nothing. The first link of the chain for INDA-Bau is
6 never proven.
7 The next attempt your Honours saw at proving the
8 folders allegedly seized at INDA-Bau was through
9 Panzer. His testimony was to the effect that he put
10 stickers on the previously unmarked folders on
11 19th March 1996. This is the day after events at police
12 headquarters in Vienna on the evening of 18th March, as
13 I pointed out earlier, where the unmarked folders were
14 examined, opened and photocopied. In relation to these
15 folders and the markings of officer -- that Officer
16 Panzer claims he put on them, I direct your Honours to
17 the Bericht prepared in connection with INDA-Bau, dated
18 22nd April 1996. This report is Prosecution -- is in
19 Prosecution Exhibit 104, at page 15 of the English
20 version. It is a short one page document. In this
21 report, folders are identified as I/1 to I/12 and the
22 videos are identified as I/13 to I/66. What is of
23 interest, and I will read this to you, is the last
24 paragraph of this report of April 22nd 19967:
25 "The objects secured have been stored in a
1 cardboard box. I is the first letter of the name of the
2 individual involved. The numbers allow for checking
3 against the inventory. Stickers have been put on some
4 of the objects."
5 Your Honour, this document, dated 22nd April 1996
6 states that stickers have been put on some of the
7 objects, which means obviously the stickers have not
8 been put on all of the objects from INDA-Bau, as Officer
9 Panzer said he did on 19th March 1996 and this report
10 I am quoting from is signed by Panzer. It is submitted
11 that on the basis of this report from April 22nd, there
12 is reasonable doubt as to whether Officer Panzer placed
13 stickers on the allegedly seized items from INDA-Bau on
14 19th March, as he said he did during his testimony, or
15 perhaps the stickers Officer Panzer affixed on
16 19th March have been removed, or perhaps this record
17 makes reference to folders without stickers which are
18 different from the ones that he did put stickers on on
19 19th March.
20 The folders, not their contents, were admitted
21 into evidence on the basis of Panzer's testimony. It is
22 submitted that this entry in this report of April
23 22nd raises a doubt as to whether the 12 folders were
24 marked on the 19th as Officer Panzer says they were.
25 Finally, your Honours, in regards to all the
1 documents from 14 and INDA-Bau, I deal with them
2 together to make this point. There is further testimony
3 given before you by Officer Moerbaur which it is
4 submitted is determinative in showing that the chain of
5 custody cannot be established. After all the breaks in
6 the chain of custody which we submit have already been
7 established, there was one more which your Honours
8 should consider. Officer Moerbaur testified that he put
9 his sticker on each individual document that he analysed
10 between 22nd March and 2nd April 1996; in other words
11 the contents of these folders, not the exterior. This
12 is the only evidence before your Honours that the
13 documents were marked or identified.
14 When, however, Officer Moerbaur testified before
15 this Tribunal, and was shown Prosecution Exhibits 104 to
16 147, those are the two binders, he could only see his
17 mark on one document. Officer Moerbaur's explanation
18 was that someone must have removed his mark from all but
19 one of the documents which are Exhibits 104 to 147. In
20 fact, it was your Honour Judge Karibi-Whyte who put this
21 question to Moerbaur at page 3755, line 22. Your Honour
23 "Now, is it your evidence that initially you put
24 marks on them but these marks were subsequently
1 Answer: The markings have been removed, that is
3 THE INTERPRETER: Could you please slow down a
5 MR. O'SULLIVAN: I will slow down, thank you.
6 Further on this point at page 3756, line 25, the
7 question was put point blank to Moerbaur by my learned
8 colleague Madam Residovic:
9 "Question: Mr. Moerbaur, in addition to the fact
10 that your marks do not exist on the documents, is it
11 also true that there is no mark on any of the documents
12 shown to you during the hearing showing where that
13 document comes from?
14 Answer: The individual documents had, except for
15 this exception. They did not have any of my references,
16 so none of the documents had my references."
17 To sum up, your Honours, it is respectfully
18 submitted that the Prosecution has not proven the
19 authenticity of the material seized from INDA-Bau.
20 Videos were not and could not be shown to Officer
21 Navrat, the officer who allegedly seized them from the
22 premises. Furthermore, it is respectfully submitted
23 that the Prosecution has not proven the documents
24 allegedly seized from INDA-Bau, neither Navrat nor
25 Panzer, in our submission, have identified the 12
1 folders beyond a reasonable doubt. Navrat cannot
2 identify the folders at all, your Honours. He never
3 marked the ones that he claims that he confiscated at
4 INDA-Bau, and his demonstration before you making three
5 piles proved nothing. The report prepared by Panzer on
6 22nd April 1996 stating that stickers had not been put
7 on some items from INDA-Bau conflicts with his testimony
8 that he had marked everything allegedly seized from
9 INDA-Bau on 19th March. And Moerbaur, the only person
10 who claims to have actually marked the individual
11 documents from INDA-Bau, testified in this court that
12 the marks he says he put on the documents were no longer
14 Furthermore, Moerbaur says he put his marks on the
15 INDA-Bau documents between 22nd March and 2nd April,
16 that is six days after the events which transpired on
17 the evening of 18th March 1996 at police headquarters,
18 involving all these items. The cumulative effect,
19 your Honours, of all this testimony clearly
20 demonstrates, in our submission, that the chain of
21 custody has been -- chain of custody regarding these
22 documents has been broken several times over and the
23 Prosecution has not proved the reliability of these
24 items from INDA-Bau.
25 Your Honours, that concludes my submissions on the
1 facts. I do have some submissions to make on the law
2 and with your indulgence, perhaps we only have 25
3 minutes, I could do that tomorrow morning, it may be
4 more appropriate. I do not think I will finish by 5.30.
5 JUDGE KARIBI-WHYTE: We still have sufficient time for you
6 to conclude the arguments.
7 MR. O'SULLIVAN: Your Honours, at the outset of my
8 submissions I stated that the defendant Delalic relies
9 on two bases for requesting that this Tribunal suppress
10 the allegedly seized items from apartment 14 and
11 INDA-Bau, first on the basis of the two preliminary
12 motions filed pursuant to sub-rule 73 and second, on the
13 basis of an objection based on Article 20(1) of the
14 statute, the fair trial provision, and Article 21(3) of
15 the statute, the right of the accused to be presumed
16 innocent, as well as rules 89(B) and Rule 95 of the
17 rules. We have heard submissions earlier today on both
18 these rules, but for completeness and with your
19 indulgence I would like to read in full both rules 89
20 and 95.
21 JUDGE KARIBI-WHYTE: Do you really have to read those
22 rules? They are very well known.
23 MR. O'SULLIVAN: All right. Specifically then in regard to
24 Rule 95, it is submitted that the evidence in this
25 matter shows that an illegal search and seizure occurred
1 which violates the basic human right to the right to
2 privacy. This right is enshrined in the international
3 human rights treaties, and I make reference to three
4 such instruments to guide your Honours.
5 First Article 17 of the international covenant on
6 civil and political rights from 1966, an international
7 convention of the UN which has been ratified by
8 Austria. Second, Article 8, paragraph 2 of the European
9 Convention on human rights of 1950, which has been
10 ratified by Austria. Third, Article 11 of the American
11 Convention on Human Rights 1969.
12 By way of example I would like to quote and read
13 into the record Article 8 of the European Convention on
14 human rights. Article 8, paragraph 1 states:
15 "Everyone has the right to respect for his private
16 and family life, his home and his correspondence."
17 Paragraph 2 of Article 8 says:
18 "There shall be no interference by a public
19 authority with the exercise of his right, except such as
20 in accordance with the law and is necessary in a
21 democratic society in the interests of national
22 security, public safety, or the economic well being of
23 the country for the prevention of disorder or crime for
24 the protection of health or morals or for the protection
25 of the rights and freedoms of others."
1 The right to privacy is subject therefore to
2 interference by a public authority in accordance with
3 the law. It is respectfully submitted that the breaches
4 of the Austrian law in this matter amount to an illegal
5 search and seizure having been conducted. It is
6 submitted that the breaches of the Austrian code are as
7 follows. I go back to Article 139 and the search
8 warrant. The evidence shows that there was no link
9 between Zejnil Delalic and apartment 14 and INDA-Bau.
10 There may be no question that Judge Seda issued the
11 search warrant; the question is, on what information
12 given to him by the authorities, and particularly
13 Gschwendt, did he base his issuance of the search
14 warrant? Zejnil Delalic was living in Munich Germany,
15 where he was arrested on 18th March. If I can just open
16 a parentheses for a moment by way of explanation, it may
17 be appropriate to point out to your Honours when looking
18 at the documentation filed in connection with the
19 Rule 73 preliminary motion that there is reference both
20 to seizures in Vienna and Munich. I raise this so
21 your Honours understand why both Munich and Vienna are
22 in those motions, so there is no confusion on your part.
23 Mr. Delalic was living in Munich and, as you know,
24 he was arrested there and there were seizures conducted
25 in Munich and over 1700 pages of documents were seized
1 from him in Munich. At this point in our argument on
2 the question of admissibility, there is no need to make
3 specific submissions concerning Munich. However, should
4 we go beyond the issue of suppression, your Honours may
5 hear more about the relationship between the Munich
6 documents and the Vienna documents. At this point,
7 I limit my submissions to violations based on the
8 issuance of the search warrant.
9 The second article referred to was Article 142(2),
10 having Sanda Mucic, a 14 year old girl, witness the
11 search, and the third article is Article 145,
12 paragraph 3. I have not mentioned this article so far
13 in my submissions, but you will recall that it was read
14 to Officer Navrat at page 6591. I will read only the
15 first sentence of this provision to you now, as I submit
16 it is the most relevant. The first sentence of this
17 section says:
18 "The documents which are to be used in judicial
19 proceedings and which cannot be properly recorded shall
20 be put in an envelope and sealed with an official seal."
21 The remainder of this paragraph describes that
22 both the police and the property owner may affix his or
23 her seal and it also provides for procedures on how and
24 when the seal may be broken.
25 Officer Panzer acknowledged that he was aware of
1 Article 145, paragraph 3, and that members of his police
2 in Vienna are made aware of this article through their
3 training. This provision was apparently ignored by the
4 police in Vienna on 18th March 1996.
5 Your Honours, the legislator in Austria, in his
6 wisdom, chose to put these articles that I have just
7 referred to in the Austrian code of criminal procedure.
8 It is submitted that they were included in the code to
9 protect the right to privacy. They are there to provide
10 protection to citizens against unwarranted intrusions by
11 the authorities into their private lives, which brings
12 Austria in line with its international obligations under
13 international human rights law.
14 It is submitted that these are also part of
15 Austrian law, out of a concern for obtaining and using
16 evidence in judicial proceedings, like this one. These
17 procedures are there so that courts can have confidence
18 in the work that the police does in conducting a search
19 and seizure. So the courts can have confidence
20 ultimately that if evidence adduced at trial is
21 admitted, the court can rely on it to determine guilt or
22 innocence while ensuring a fair trial and the
23 presumption of innocence and other fundamental
24 principles which underpin a criminal trial. When these
25 procedures are not followed, as it was in our case,
1 no one can have confidence in the evidence the
2 Prosecution is trying to have admitted. But it is
3 submitted that the illegalities go beyond breaches of
4 these three articles of the Austrian code of criminal
5 procedure. Not being able to establish the chain of
6 custody constitutes a fatal flaw in procedures which may
7 be seen, as well as a serious breach of the protection
8 that a person is entitled to under human rights law.
9 It is the same when police officers admit to
10 forging documents with the intention of misleading a
11 judge, as Officer Panzer admitted to. It is the same in
12 regards to the conduct of the investigator of the OTP,
13 Sabina Manke, in this matter. Sabina Manke was a
14 potential witness in this case because she transported
15 the allegedly seized material from the court in Vienna
16 to The Hague knowing that she could be called as a
17 witness. She followed proceedings in the public gallery
18 until spotted by Defence counsel. Thereafter she was
19 seen over the noon hour one day by Defence counsel with
20 Officer Navrat while he was on a break during his giving
21 of testimony. Sabina Manke failed to indicate to
22 Mr. Niemann, who was investigating this matter, that she
23 had already been a witness in this trial, for when he
24 reported back to the Tribunal he was unaware that she
25 had given testimony. In fairness to Mr. Niemann, who
1 joined this trial in mid July and who is involved in
2 other cases, it was incumbent on Sabina Manke to tell
3 him that.
4 Your Honours also know that when Sabina Manke was
5 a witness in this trial on 8th May, she was found to
6 have written incorrect, highly prejudicial information
7 about Mr. Delalic in internal documents prepared by her
8 for her superiors. The documents in which this
9 inaccurate and damaging information contained were
10 prepared by Ms. Manke in the same month of March 1996.
11 JUDGE KARIBI-WHYTE: Is this part of your argument about the
12 validity of the warrants?
13 MR. O'SULLIVAN: No, your Honour, it is the conduct of
14 Ms. Manke, like that of Officer Panzer, reflects
15 impropriety and bad faith.
16 JUDGE KARIBI-WHYTE: I thought you were arguing the
17 illegality of the warrants.
18 MR. O'SULLIVAN: I am arguing the full context, your Honour.
19 It casts doubt and suspicion on the motives of the
20 people who were involved. Your Honour, this is why the
21 law, and in particular our statute, our rules, have
22 international human rights safeguards built into it.
23 That is why the legal standards are set at beyond
24 reasonable doubt.
25 In this regard and with all due respect to
1 Mr. Niemann, I must strongly disagree with some of his
2 views regarding the way procedures were carried out by
3 police in Vienna. In the record, Mr. Niemann has said
4 this about police procedures on page 3763. In regard to
5 police procedures:
6 "There was regularity in the procedures that were
7 followed and that the police in Vienna had gone
8 according to law in the methods in which they sought to
9 seize these documents. There may be arguments that the
10 letter of the law was not complied with in every
11 particular aspect, but it is certainly evidence of the
12 fact that procedures were followed according to law."
13 Mr. Niemann also said this about Mr. Moerbaur and
14 the allegedly confiscated material:
15 "Moerbaur cannot talk about whether he knew where
16 precisely they came from, but he was able to give some
17 evidence of the provenance of these documents and his
18 ability to identify them."
19 Your Honour, it is my respectful submission that
20 before this International Criminal Tribunal, such
21 standards fall far short of what this institution is
22 intended to accomplish, particularly in the context of
23 this matter, where the OTP has collaborated with an
24 elite division of the Vienna police, whose duties
25 include national security and state protection. Let us
1 not forget that the problems associated with search and
2 seizure that I have been highlighting were caused by
3 Austrian police officers with 15, 18, 20 years
5 In this context, it is submitted that such police
6 officers by their own conduct have violated the
7 protections that are guaranteed to individuals under
8 international human rights law. We have heard said in
9 this courtroom that we are not bound by national rules
10 of law, but if as it is submitted here, criminal
11 procedure of Austria has been violated, such violations
12 cannot be ignored when they are scrutinised by this
13 Tribunal. Allow me to respond to one point made this
14 morning by Mr. Niemann before finishing, when he referred
15 generally to admissibility of documents. He referred to
16 a Nuremberg trial, Krupp. There he said the court
17 admitted seized documents from the office of the accused
18 with no proof of provenance.
19 I make three comments. In our case, the
20 Prosecution has not proven that there is a link between
21 Mr. Delalic and apartment 14 and INDA-Bau. Second, the
22 Prosecution has not proven that the allegedly seized
23 items came from apartment 14 and INDA-Bau. The
24 Nuremberg court did not have Rule 95, like this Tribunal
25 does, which directs the Tribunal to turn to
1 internationally protected human rights which have become
2 a part of the international law since Nuremberg.
3 Your Honours, I have addressed you at length on
4 this matter, at great length perhaps. Even though the
5 Prosecutor has the burden of proof, I feel I had to
6 explain it to you in detail. There is a lot of evidence
7 over a very long period with frequent interruptions.
8 All I have left to say is that I respectfully request
9 this Tribunal to suppress all the allegedly seized items
10 from Taubergasse 15, Door 14 and from INDA-Bau which the
11 Prosecution wishes to tender, for I submit that this is
12 illegally obtained, unauthenticated unreliable
13 evidence. Should, however, your Honours decide not to
14 suppress this evidence, the Defence, Mr. Delalic reserves
15 the right to object at the appropriate time to each and
16 every piece of evidence on the basis of hearsay,
17 reliability, relevance and probative value.
18 I thank you for your attention, your Honours.
19 That concludes my submissions.
20 JUDGE KARIBI-WHYTE: Thank you very much for your argument.
21 Actually, I thought it would not be right if I do not
22 mention that as interesting as your arguments have been,
23 forensic presentation of arguments are more decent and
24 tidier when they do not give offence. I do not see any
25 reason for referring to persons, who perhaps their
1 conduct need not be referred to for the purposes of this
2 argument. I leave it at that, but frankly, my
3 understanding of your argument is that you use your
4 words carefully, and not make undue reference which
5 would give offence.
6 I think we are almost at the end of the day, but
7 I think you might be allowed to start now.
8 MR. NIEMANN: I can start now if your Honours like.
9 JUDGE KARIBI-WHYTE: Yes, and continue tomorrow morning.
10 MR. NIEMANN: Your Honours, in the submissions of
11 Mr. O'Sullivan he placed a great deal of reliance in
12 terms of having the evidence suppressed on what he
13 termed broadly, I think, as illegality, illegality in
14 perhaps the warrant itself and then illegality in the
15 procedures that were followed. I think in all
16 jurisdictions it is true to say that illegally obtained
17 evidence, even if it is shown to be illegally obtained,
18 is not automatically excluded. In many jurisdictions,
19 illegally obtained evidence can be admitted at
20 discretion, and in some jurisdictions with perhaps
21 constitutional provisions, there generally is a good
22 faith rule that can be applied by the court, but by and
23 large, your Honours, the principle that illegally
24 obtained evidence can be excluded is based on the fact
25 of an examination of what it is that happened and the
1 extent of the illegality.
2 One of the principal factors that a court looks to
3 in a national jurisdiction in terms of illegality is the
4 conduct of the police in what they did. Your Honours,
5 the courts cannot join with the police in all instances
6 in condoning a total disregard of the law, an
7 illegality. Courts cannot be seen to be part of that.
8 The courts uphold and enforce the law. When police
9 officers disregard the law, the courts must do what they
10 can to try and rectify the situation, to try and prevent
11 it from happening again, to the extent of their power.
12 One of the most salient sanctions available to a court
13 to control improper behaviour by a police officer is to
14 exclude the evidence. The rationale is that police
15 officers will hopefully ultimately desist from illegal
16 conduct if they can see that the fruits of that illegal
17 conduct render their efforts worthless, because when
18 they come to the court to produce the evidence which
19 they have obtained in total disregard of the law, courts
20 reject it and will not accept it.
21 But, your Honours, can this Tribunal seriously
22 hope to discipline Austrian police? I mean, let us call
23 it country X. Let us not relate to a particular
24 country. There are some countries, your Honours, could
25 not care less whether your Honours admitted the evidence
1 or not. They could not care. They co-operate to the
2 extent that they feel it is necessary, or they do not
3 co-operate at all, and if your Honours do not admit the
4 evidence they do not care, so if one of the principal
5 objectives of excluding illegally obtained evidence is
6 to discipline the police, that has a very important
7 function in a national setting where the courts are
8 there to supervise the administration of the law and
9 particularly the behaviour of law enforcement officers
10 when they come before it. But in my submission, that
11 principle has no relevance here whatsoever.
12 That does not mean to say, your Honours, that you
13 should disregard entirely that. We have all seen from
14 time to time attempts in various places around the world
15 to extract evidence by not so much just technically
16 illegal means, but by means of torture, by means of
17 false imprisonment, incarceration, by means of
18 starvation, by means of subjecting the person to the
19 point where they either give up things or say things
20 which suits the people that wish to obtain that material
21 or evidence.
22 JUDGE KARIBI-WHYTE: If I might draw attention to the real
23 focus of these arguments, if my memory serves me right,
24 I think the main contention is that the warrant which
25 was executed on these premises was illegally obtained.
1 MR. NIEMANN: The warrant in the first place, your Honour?
2 JUDGE KARIBI-WHYTE: The warrant itself. Secondly, that
3 perhaps the procedure adopted in the execution of the
4 warrant and the obtaining of the evidence, the documents
5 and the like, did not comply with the procedure in
6 Austria, and also the chain of possession of the
7 property which was discovered in these premises has not
8 been complied with.
9 MR. NIEMANN: Those issues are tied up with the illegality
11 JUDGE JAN: May I add, if the evidence is not admissible --
12 THE INTERPRETER: Microphone, your Honour.
13 JUDGE JAN: If the evidence is not admissible in an Austrian
14 court because of irregularity in carrying out a search,
15 would it be proper for this Tribunal to accept that
17 MR. NIEMANN: It may or may not be, your Honours. I would
18 put it the other way round. In my submission, this
19 evidence is admissible in Austria and --
20 JUDGE JAN: Despite not falling within the provision.
21 THE INTERPRETER: Microphone, please, your Honour.
22 JUDGE JAN: That is why I asked Mr. O'Sullivan whether there
23 are any cases from the Austrian jurisdiction pursuing
24 this particular provision.
25 MR. NIEMANN: What I have been informed, your Honour --
1 I hasten to inform the court that I am no expert in
2 Austrian law, but what I have been told is that this
3 evidence would be admissible and the reason why it is
4 admissible is that it is done under the supervision of
5 the judge, the supervising judge, in this case Judge
6 Seda. The judge who is an investigating judge, would
7 take the material himself and make determinations on it
8 according to how it is that he is to frame the case.
9 I am instructed that under those circumstances
10 irregularities of this kind would not affect the
11 admissibility of the documents, should the judge
12 determine to use them.
13 JUDGE KARIBI-WHYTE: We will continue tomorrow morning with
14 this argument. We will know actually our bearing.
15 MR. GREAVES: Could I just interrupt and I hope it is not out
16 of order to do so. My learned friend has just given us
17 what he has been told about Austrian law. Perhaps he
18 might like to think overnight about this point: would
19 the judge have admitted the evidence if he knew that he
20 had been misled by Gschwendt as to the existence or not
21 of facts supporting the suspicion justifying the
22 warrant. If the judge has been misled by the police
23 officers as to existence of facts, would the evidence
24 still be admissible in those circumstances?
25 JUDGE KARIBI-WHYTE: These are matters for consideration --
1 MR. ACKERMAN: Your Honour, may I request that Mr. Landzo be
2 excused from appearance tomorrow? He has a medical
3 appointment, I think at 11.00 or 12.00 tomorrow. There
4 is nothing going on here tomorrow that is of any
5 interest to him. None of us object to that.
6 JUDGE KARIBI-WHYTE: I think he can be excused for purely
7 legal argument.
8 MR. MORAN: Your Honour, if I can make the same request for
9 Mr. Delic so he can rest his back for another day.
10 JUDGE KARIBI-WHYTE: I think they can stay away as long as
11 they are not involved in any disputation here.
12 MR. MORAN: Your Honour, on behalf of Mr. Delic, thank you
13 very much.
14 (5.30 pm)
15 (Court adjourned until 10.00 am the following day)