Tribunal Criminal Tribunal for the Former Yugoslavia

Page 7370

1 Friday, 12th September 1997

2 (10.00 am)

3 JUDGE KARIBI-WHYTE: Good morning, ladies and gentlemen.

4 Can we have the appearances, please?

5 MR. NIEMANN: If your Honours please, my name is grant nigh

6 man and I appear with my colleagues Mr. Turone and

7 Mr. Khan for the Prosecution.

8 MS. RESIDOVIC: Good morning, your Honours. I am Edina

9 Residovic, Defence counsel for Mr. Zejnil Delalic,

10 together with me is my colleague, Eugene O'Sullivan,

11 professor from Canada.

12 MR. OLUJIC: Good morning, your Honours. I am Zeljko Olujic,

13 I am Defence counsel for Mr. Zdravko Mucic, together with

14 me is my colleague, Michael Greaves.

15 MR. KARABDIC: Good morning, your Honours. I am Salih

16 Karabdic, attorney from Sarajevo, Defence counsel for

17 Mr. Hazim Delic. Together with me is Mr. Tom Moran,

18 attorney from Houston Texas.

19 MR. ACKERMAN: Good morning, your Honours. Seated next to me

20 is Ms. Cynthia McMurrey, my name is John Ackerman and

21 together we represent Mr. Esad Landzo who is excused from

22 his appearance here this morning. Thank you.

23 JUDGE KARIBI-WHYTE: Thank you very much. We were

24 continuing this morning with Mr. Niemann for the

25 Prosecution.

Page 7371

1 MR. NIEMANN: Thank you, your Honour.

2 JUDGE KARIBI-WHYTE: You may proceed.

3 MR. NIEMANN: Your Honours, there were a couple of matters

4 that I followed up from yesterday that perhaps I might

5 deal with first. In relation to the question asked by

6 Mr. Greaves about the signature being put on the

7 document, your Honours, this document is a --

8 MR. GREAVES: I am sorry to interrupt, and I do apologise,

9 I have no transcript coming up on my computer. I do

10 apologise to my learned friend. I not only wish to hear

11 what he says but see it as well.

12 JUDGE KARIBI-WHYTE: Someone is coming to fix it for you.

13 I think you will continue so that we establish this.

14 MR. NIEMANN: Thank you, your Honours. The first matter,

15 your Honour, that I wish to draw the court's attention

16 to is that this is a document prepared in relation to

17 the arrest and subsequent detention of Mr. Mucic, it is a

18 custody report, so in itself it is not directly related

19 to the search itself, but I have been instructed that

20 the way this would be dealt with in Austria is that if

21 the judge, in this case Judge Seda, was unhappy with the

22 fact that the police officer had put another police

23 officer's name on this document, the way that it is

24 handled in Austria is that the police officer can be

25 disciplined, and apparently for breaches of public duty

Page 7372

1 one can even face a criminal sanction. So the judge

2 does not exclude the evidence at trial, he simply deals

3 with the officer for any breaches of the law that could

4 follow.

5 So I am instructed, your Honours, that any

6 mistakes that occur like this are dealt with in this

7 way, and I understand that the reason why that is so is

8 because it is not looked upon as being a police search

9 at all. It is looked upon as being the judge's search.

10 The judge is the one that is in control, and the police

11 are merely his agents, so if the police do not perform

12 the task correctly he deals with them as his agents,

13 employees, come what may, but the police are not seen in

14 this sense as a separate entity. So the net result of

15 that would be that the judge would be excluding his own

16 evidence, and rather than do that the result is that he

17 deals with the police officers by other means, and he

18 has the capacity to do that.

19 So, your Honours, at the end of the day, it is our

20 submission that these documents would not be excluded on

21 this basis at all in an Austrian court, so we have the

22 situation where they would not be excluded there, but if

23 your Honours were persuaded to accept the arguments of

24 Mr. O'Sullivan, they would be excluded here, which is

25 somewhat of an anomaly. It is an anomaly, your Honours,

Page 7373

1 if the purpose and object of the exclusion so to ensure

2 that officers comply with the law, because it would not

3 achieve that objective.

4 JUDGE JAN: May I ask one question? This case never went to

5 Austrian court. Did Dr. Seda have an opportunity to

6 comment on this deficiency or mistake or irregularity,

7 whatever you like to call it?

8 MR. NIEMANN: My understanding of the position, your Honours,

9 is that it was handled according to Austrian law in the

10 same way as if it had been an Austrian investigation,

11 under the direction of a judge. I understand,

12 your Honours, that there are some minor offences

13 apparently, and I must emphasise always that I am no

14 expert in this, but I understand that there are some

15 minor offences which the police do of their own

16 initiative, but major matters are handled under the

17 direction of an investigative judge. I understand that

18 this matter was approached as if it was a major

19 investigation at the outset, as under the control of an

20 investigative judge.

21 Your Honour asked me -- your Honour Judge Jan

22 asked me yesterday -- I think you may have asked a

23 question yesterday, whether the compliance with the

24 provisions for witnesses and so forth was mandatory or

25 directory. Your Honours, I am instructed that it is

Page 7374

1 regarded as being directory, and it is -- if I can just

2 read what I have been given, my instructions:

3 "Any of these alleged mistakes concern only

4 formalities which are established to ensure the

5 efficient course of proceedings, for instance the

6 presence of court witnesses. Such provisions are called

7 in the German speaking countries "Ordnungsvorschrift",

8 which is an old German legal term which means provision,

9 which directs the authorities on how to proceed. The

10 fact that these Ordnungsvorschrift might not have been

11 followed in each case by the Austrian police authorities

12 does not make the searches, or rather the their results

13 illegal or invalid and does not affect the admissibility

14 as a result of the searches at trial."

15 We are directed to a German legal author,

16 Mayerhofer/Rieder, in a publication called

17 Strafprozessordnung, and I do apologise, your Honour.

18 I can give these words to the --

19 JUDGE JAN: Difficult to pronounce.

20 MR. NIEMANN: Paragraph 140, Enr 5, thus even if there were

21 mistakes, violations of the provisions on the way

22 searches are carried out do not result in nullification

23 of the act itself. There is a further reference, legal

24 comment Wedrac page 218. I undertake to provide those

25 references to the court reporters.

Page 7375

1 So, your Honours, the issue of control and chain

2 of custody is slightly different to the way we

3 understand it in a common law setting, because it

4 appears, and I am instructed that this is the case, that

5 the documents, although in possession of the police

6 after search, are not really regarded as being in police

7 possession as such. They are regarded as being under

8 the control and possession of the judge, so the police

9 in fact have physical custody of them, but it is the

10 judge and only the judge that can make determinations

11 about them, so they are in effect -- the police are

12 again in this capacity acting under his direction and

13 control.

14 Finally, your Honours, on this point, and picking

15 up what I had said yesterday, even if there are failures

16 to comply with the law, there has not been demonstrated,

17 in my submission,, especially in relation to the

18 searches, any mala fides. Having regard to the fact

19 that even if one was to strictly apply common law

20 principles to illegally obtained evidence, then in the

21 exercise of discretion, it is our submission that they,

22 even in that setting, ought properly be admitted.

23 Your Honours, another issue that was raised by

24 Defence counsel was the fact that there was no link

25 between Mr. Delalic and the premises in Austria or that

Page 7376

1 Judge Seda had sufficient information in order to enable

2 him to form his reasonable suspicion that there was

3 material on the premises. Dealing firstly with what

4 Judge Seda had or did not have, we are not -- we do not

5 know exactly what he was told or what he relied upon,

6 and in my submission, your Honours, there is no evidence

7 to suggest that he did not perform his judicial duties

8 properly and that he did not properly act upon material

9 that was given to him by whatever source.

10 Your Honours are familiar with the fact that often

11 it is the case in search warrant cases that the judge

12 issuing the warrant receives information from a variety

13 of sources, whether they be documents, whether they be

14 oral testimony of the informant, or whatever. So in my

15 submission, your Honours, one cannot just make a bold

16 assertion in a vacuum that his Honour erred in the

17 performance of his judicial duty unless something can

18 positively be pointed to and there is no, in my

19 submission, obligation on the Prosecution to prove

20 that. One presumes the validity of a judicial act

21 unless something emerges to suggest it is otherwise, and

22 there is nothing in the material that we have been given

23 access to that would lead us to that conclusion.

24 Dealing with the question of whether or not there

25 is a link between Mr. Delalic and the premises, I remind

Page 7377

1 your Honours that in the evidence of Mr. Moerbauer, at

2 page 3542 of the transcript at page 12, he says that at

3 7.00 they spotted this vehicle and there was a suspicion

4 that this was the vehicle of Zejnil Delalic. In the

5 course of the afternoon, at 2.15 in the afternoon,

6 Delalic left the house through the entrance at

7 Taubergasse 15, and he came through the exit of the club

8 rooms, went to the vehicle with the German licence

9 plates and drove to Koppstrasse. There he went into the

10 premises of the INDA-Bau company, came back into the

11 street, accompanied by a 30 year old woman

12 approximately, with dark hair, and put files into his

13 vehicle. So he was in the company premises for about

14 half an hour or so, and then alone he drove towards the

15 border, crossing at Walzberg and he left Austria at

16 about 6.00 that afternoon. This was reportedly on March

17 16th . I am told line 12.

18 Further, your Honours, it is our submission that a

19 suggestion that there is no link between Mr. Delalic and

20 the premises in Austria and the documents that were

21 seized, does not sit well in the mouth of counsel for

22 Mr. Delalic in view of the motions that they have filed.

23 They have filed, your Honours, two motions in relation

24 to this matter, one on 26th May 1996, and one on

25 5th June 1996. In the motion of 28th May 1996, in

Page 7378

1 paragraph 5 of their motion they say as follows, and

2 I shall read it out to your Honours, this is on page 3

3 of the English translation:

4 "Carrying out the Prosecutor's orders, the

5 authorities of the Federal Republic of Germany and the

6 republic of Austria searched Zejnil Delalic's flats and

7 business premises in Munich and Vienna. On this

8 occasion they seized a large quantity of evidence which

9 belonged to Mr. Delalic and to third persons entirely

10 unconnected with the matter under investigation. More

11 than 80 videotapes were seized, most of them the

12 property of BH Society of Vienna, as well as the

13 business documents, the archives of business firms

14 co-owned or managed by Zejnil Delalic; the personal

15 files of the employees of these firms and other

16 documents."

17 In the motion that they filed on 5th June 1996,

18 they say in the sixth to last paragraph of the motion:

19 "In accordance with Rule 73, paragraph (A)

20 sub-paragraph (iii) of the rules of procedure and

21 evidence, in my capacity as the Defence counsel of the

22 accused, Mr. Zejnil Delalic, I would like to supplement

23 my motion of 28th May 1996 with a proposal to exclude

24 all the evidence obtained from and having belonged to

25 the accused and to determine that it cannot be used to

Page 7379

1 the disadvantage of the accused. At the arrest on

2 18th March 1996, the relevant authorities of the

3 republic of Austria seized from the apartment and the

4 office of the accused, Mr. Zejnil Delalic, a number of

5 videotapes, documents, personal files et cetera, and

6 similar things were also taken from his office in

7 Munich."

8 So in our submission, your Honours, not only on

9 the face of the evidence is there a clear link between

10 Mr. Delalic and these premises in Austria, not only do

11 the documents speak for themselves in that regard, but

12 Defence counsel for Mr. Delalic themselves do not seem to

13 be coy about the fact that he is directly linked to

14 these premises; otherwise what entitlement would they

15 have to have these documents handed back?

16 Your Honours, counsel spent a great deal of time

17 expounding the irregularities in using Sanda Mucic as a

18 witness because she was not an adult and in drawing the

19 court's attention to the fact that somehow the

20 Prosecution's case is found wanting because Unger and

21 Winkelmann were not called to give evidence concerning

22 the seizure of documents at the premises Taubergasse 14,

23 Door 15, being the premises in which the Prosecution

24 says and the Defence say materials belonging to

25 Mr. Delalic were seized. Your Honours, this may be an

Page 7380

1 interesting submission by the Defence, but in our

2 submission, it is totally irrelevant; the reason being

3 that the Prosecution has no intention of seeking to

4 tender any material received or seized by the police at

5 the premises Taubergasse 14, Door 15.

6 So, your Honours, any talk of employing Sanda

7 Mucic as a witness, of failing to call Unger and

8 Winkelmann, of multiplicity of sports bags, be they one,

9 two or other, of the 30 video cassettes, of the fact the

10 plastic bags were used to cart the material and placed

11 in miscellaneous boxes, the green folders could not be

12 located as subsequent occasions all may be interesting,

13 but in our submission is totally irrelevant.

14 There was also a suggestion, it would seem, that

15 the placing of the stickers on the files on 18th March

16 1996 was incorrectly carried out because on that night

17 not every document or item had stickers placed on them.

18 This took place over a period of days. Your Honours,

19 I am sure we have all been involved in large fraud cases

20 where thousands upon thousands of documents are seized

21 and where the itemisation and classification of them can

22 take, in one case in which I was involved, up to 12

23 months. So in my submission, your Honour, the period of

24 time is also irrelevant, how long it takes.

25 Yesterday, your Honour, we heard from Mr. Ackerman

Page 7381

1 that your Honours should not be unduly swayed by the

2 determinations of the Nuremberg courts, and he said this

3 because of the length of time. No doubt there is a

4 point in that. But, your Honours, if Mr. Ackerman had

5 had the privilege in appearing before the Appeal Chamber

6 of this Tribunal, he would discover that the Appeal

7 Chamber places a great deal of weight on what is said

8 and what had been said at Nuremberg and it is not

9 dismissed lightly. When I suggested to you yesterday

10 that the rules for procedure and evidence of this

11 Tribunal and the decisions of this Tribunal come first

12 in terms of relying upon authority, but that next down

13 the list from that was Nuremberg, I said so because that

14 in our submission has been basically the approach that

15 has been adopted by the court, by the Appeal Chamber of

16 this Tribunal in examining issues of law. Certainly

17 that Chamber does not dismiss lightly the principles

18 that emerged at Nuremberg. In my submission, one would

19 need some guidance or comment from the Appeal Chamber

20 that no longer were the Nuremberg principles to be given

21 a great deal of weight before it would be safe to

22 disregard them.

23 So, your Honours, when I referred your Honours to

24 the Krupp case, I did so having regard to the fact that

25 on the present practice of the Court of Appeal,

Page 7382

1 your Honours may well be assisted by having regard to

2 what is said at Nuremberg, considering that is the

3 approach that they take. In relation to the issue of

4 captured documents, the Krupp case which I referred to

5 part of, but dealing especially with captured documents,

6 said the following:

7 "The Tribunal's feeling is that this goes to a

8 matter of weight rather than to admissibility. As long

9 as it is conceded that this is a captured document and

10 that gets also to the question of probative value."

11 That is at page 648 of the judgment.

12 Your Honours, in the Nuremberg situation, and I am

13 speaking now more of general principle, but I think it

14 is very helpful, in the Nuremberg situation, the allied

15 powers captured vast quantities of documents which were

16 relied upon by the Tribunal in its pursuit of the

17 truth. Maybe not in this case, but certainly in cases

18 that come before this Tribunal, the opportunity will be

19 presented to the Tribunal to consider documents captured

20 by one side or other to the combatants in Yugoslavia; in

21 other words, when an army captures a particular piece of

22 territory, they take documents that they capture in the

23 process. Often those documents find their way here to

24 the Tribunal.

25 The Office of the Prosecutor or the Tribunal have

Page 7383

1 no control at all over those armies and over the

2 procedures that they adopt in securing documents or

3 capturing documents when they win territory. In exactly

4 the same way as the allied powers had no control over

5 what the Nazis were doing with their documents prior to

6 their capture in 1944 and 1945. So, your Honours, it

7 seems illogical, in my respectful submission, to impose

8 conditions on admissibility, especially in respect to

9 chain evidence, in circumstances that operate in times

10 of war and in times of conflict. The primary objective

11 that confronts your Honours is the search for the truth

12 and in that pursuit, ensuring that the accused receives

13 a fair trial. Strict adherence to principles which work

14 well, perhaps, in peaceful settings cannot readily be

15 applied or adapted in a Tribunal that operates in the

16 environment in which we operate.

17 So, your Honours, if securing a fair trial, the

18 pursuit of the truth is the principal objective, then,

19 your Honours, that objective may be frustrated if

20 restrictive rules of admissibility are thrown up to

21 prevent your Honours from having access to material that

22 may otherwise assist you.

23 Your Honours, with respect to some of the

24 documents that were captured at these premises, I would

25 like to make two short points. Firstly, some of the

Page 7384

1 captured documents have already been authenticated by

2 Mr. Delalic in the record of interview, so it is not true

3 to say that none of the documents -- not one of the

4 documents have been authenticated. He himself has

5 authenticated some of the documents that were captured

6 at his premises. In relation to this whole question of

7 the legality of the search and otherwise, your Honours

8 dealing with exhibits 105 to 108, which documents were

9 recovered as a consequence of the search of these

10 premises, said, and if I can quote from the transcript

11 at page 3927, line 6 and following. This is your Honour

12 Judge Karibi-Whyte, addressing these exhibits at the

13 time that were sought to be tendered through

14 Mr. Moerbauer:

15 "The Defence also has objected on the grounds of

16 non-compliance with the procedural laws of Austria,

17 thereby rendering it inadmissable. We refer to the

18 position adopted by this Trial Chamber, we are not bound

19 by the rules of evidence. We consider evidence which is

20 relevant and probative of the evidence accompanying it.

21 We are satisfied that the passports and ID cards were

22 recovered by the witness. They are therefore relevant

23 to the trial and this witness is therefore in a position

24 to tender them. We therefore admit them into evidence

25 as Exhibits 105 through 108."

Page 7385

1 Much has been said, your Honours, about this

2 question of beyond reasonable doubt in terms of the

3 admissibility of documents. The Prosecution has never

4 shied away from its responsibility to prove the case

5 beyond a reasonable doubt and to prove the guilt of the

6 accused beyond a reasonable doubt. What we say,

7 however, is that this does not occur at the time of

8 admissibility of documents. I seek to gain further

9 support for this proposition from the decision of the

10 Tadic Appeal Chamber in the Defence motion on hearsay of

11 5th August 1996, when at paragraph 18, page 8, their

12 Honours McDonald and Vohrah said:

13 "Moreover, sub-rule 89(D) provides further

14 protection against prejudice to the Defence, for if

15 evidence has been admitted as relevant and having

16 probative value, it may later be excluded. Pursuant to

17 this sub-rule, the trial judge has the opportunity to

18 consider evidence, place it in the context of the trial,

19 and then exclude it if it is substantially outweighed by

20 the need to ensure a fair trial."

21 Judge Stephen said, at page 4 of his judgment, of

22 his separate opinion:

23 "It is to be noted that sub-rule (D) [89(D)] while

24 it may be applicable to some instances of hearsay

25 evidence, is by no means confined to such evidence. It

Page 7386

1 will obviously also have a role to play where, for

2 example, highly prejudicial first hand testimony is for

3 any of a multitude of reasons to be accorded very little

4 weight because of the low probative value, and should

5 therefore be excluded from the evidence."

6 In my submission, your Honours, the judges in the

7 Tadic decision on hearsay both speak of the

8 admissibility of evidence, whether it be documents or

9 testimony, and then its subsequent exclusion. In my

10 submission, that opportunity would not be readily

11 available at all to the judges if the evidence was

12 proved beyond a reasonable doubt, and in my submission,

13 that clearly demonstrates that proof beyond a reasonable

14 doubt is not a matter that occurs at the admission

15 stage. Proof beyond a reasonable doubt occurs, as

16 Rule 87 says, at the time of the Tribunal's

17 deliberation, and if your Honours wish to rely upon a

18 document at that stage in order to determine the guilt

19 of an accused, you must be satisfied that that document

20 has been proved beyond a reasonable doubt before you can

21 do so, but it does not happen, in my submission, at the

22 admission stage and I respectfully rely upon the

23 decision in Tadic for that purpose.

24 Unless I can assist your Honours, that is all

25 I wish to say.

Page 7387

1 JUDGE KARIBI-WHYTE: I think there are no further questions

2 to ask. Does the professor --

3 JUDGE JAN: Have you seen the contents of your own motion of

4 28th May, where you said these were your documents that

5 had been seized? Do you have anything to say in that

6 regard?

7 MS. RESIDOVIC: Your Honour, the basic arguments regarding

8 what Mr. Niemann said will be given by my colleague

9 O'Sullivan, but as for the questions, I would like to

10 give responses since the submissions were filed when

11 I was the only Defence counsel for Mr. Delalic.

12 Regarding this particular issue, I have to say first of

13 all that these were submissions filed with the court

14 after Mr. Delalic had been brought to The Hague. At the

15 time the Defence counsel was informed that many things

16 were seized from Mr. Delalic, and that was the

17 information that at the time we received from the

18 Prosecutor, and with the indictment we only received

19 statements of 22 witnesses. Using our right and the

20 fact that we knew that the search was carried out in the

21 apartment of Mr. Delalic in Munich and in his offices in

22 his vehicle, and himself, for reasons of caution, our

23 request referred to the overall space. We never talked

24 about the apartment in Vienna or any other space in

25 Vienna.

Page 7388

1 I would like to quote this entire passage that was

2 also quoted by Mr. Niemann. Item 5 says:

3 "Carrying out the warrant of the Prosecutor, the

4 relevant bodies of the Federal Republic of Germany and

5 the republic of Austria carried out a search of the

6 apartment and offices of Zejnil Delalic in Munich and

7 Vienna and on that occasion, they seized a considerable

8 number of evidence that had belonged to him in Munich."

9 Now I am adding, since this is the entire

10 evidence, and we are already emphasising that this is

11 numerous evidence that has nothing to do with him, which

12 means third parties as well, who are in no way related

13 to the case or the subject of the indictment:

14 "Over 80 videotapes were seized, of which most

15 belonged to the BH Association in Vienna, business

16 files, documents of companies that were co-owned by

17 Delalic or where he had authorisations."

18 This is Munich:

19 "Personnel files for the companies and other

20 files", so this passage is general.

21 We learned that searches were carried out, that

22 1,730 documents were seized in Munich alone. At the

23 time we did not know that, but while disclosing evidence

24 towards the end of the year the Prosecutor gave us the

25 entire file of over 3,000 pages. Therefore,

Page 7389

1 your Honours, we do not know at all for about 40

2 indictments in this file whether they have anything to

3 do with the location where Zejnil Delalic had been the

4 owner, co-owner, or tenant, so in this multitude of

5 documents, with all the illegalities we have found out

6 from the statements of witnesses and the interruption of

7 chain of custody of evidence from one location to the

8 other, this motion does not indicate that those

9 locations and those objects could be related to Zejnil

10 Delalic.

11 I just wish to say something else, a fact that my

12 colleague would be unable to speak about. That is the

13 fact that Mr. Niemann emphasised in the letter forwarded

14 to the Defence counsel on 28th August, which he repeated

15 before the Trial Chamber, claiming that some of the

16 documents allegedly originating from the INDA-Bau

17 company, Zejnil Delalic has already identified and

18 confirmed them during his interview in Scheveningen on

19 22nd and 23rd August. In the interview, accepted by

20 this Trial Chamber as evidence 99, there is something

21 that is not identical to what Mr. Niemann was speaking

22 about before this Chamber. For that reason, I expressed

23 doubt that some of the documents in this file are not

24 originating just from Vienna but perhaps from Munich as

25 well, and perhaps even from Bosnia, because if we look

Page 7390

1 at this evidence indicated as Exhibit 99, you will see

2 that on that occasion, Mr. Delalic was presented with one

3 of the documents; however, this document, presented at

4 the time, described in detail in the interview

5 Mr. Delalic had given, is not a document contained in

6 this file. That is a document with identifications easy

7 to recognise, a document that could have been found in

8 any location or brought to that location which

9 Mr. Delalic did identify, but the use of it could be

10 based on its identification on the basis of the

11 interview and not because the document was allegedly

12 found in Vienna.

13 I do say, and this can be confirmed easily, that

14 the document presented during the interview with easily

15 recognised identifications is not in this file, and if

16 the Prosecutor claims that this document is in this

17 file then I have to say that the identifications that

18 were discussed during the interview were removed from

19 the document; also one of the four documents presented

20 at the time to Mr. Delalic, according to the Prosecutor

21 is in this file, since there is a video recording,

22 transcript in the Bosnian language and a transcript in

23 the English language of this interview, we can see that

24 when the investigator presented this document to

25 Mr. Delalic at the time, I took a document of two

Page 7391

1 pages and not one, as it is stated in the file, and

2 I said that this was a document that I had submitted

3 together with a submission to this court. Therefore,

4 another of the four documents that could be used before

5 this court because it was identified by Mr. Delalic

6 expresses even more the doubt regarding how some of the

7 documents came into this file. That is why I wanted to

8 explain these facts and once again, through the evidence

9 that my defendant confirmed as evidence he could

10 identify, we cannot confirm the legality or illegality

11 of the document and tendering these documents in this

12 way to this court. Thank you.

13 MR. NIEMANN: Your Honours, I rise to my feet because, when

14 quoting from the motion, Madam Residovic said, and

15 I really have to draw this to your Honours' attention,

16 she was reading it, and she said:

17 "On this occasion, they seized a large quantity of

18 evidence which belonged to Mr. Delalic", and then she

19 inserted "at Munich". I invite her to go back and read

20 it again, and see whether the words "at Munich" appear

21 after the words "Mr. Delalic". I invite your Honours to

22 look at the motion itself.

23 JUDGE KARIBI-WHYTE: I suppose the motions themselves are

24 available, are they? We can consult them, instead of

25 relying on what counsel said. Actually, the real issue

Page 7392

1 is not what happened around the motion, but what was

2 said in the motion. I think that is the issue: what

3 counsel claimed in the motion, because it was quite easy

4 to have disputed the premises on which the warrants were

5 executed in that motion. Maybe anything following from

6 it should not have concerned Delalic, but since counsel

7 has actually admitted that the premises was anything

8 concerning Delalic, and the documents and videos seized

9 there belonged to him, I do not see any need for

10 considerable argument on what happened -- at least this

11 argument was brought in as a reference to admissions, so

12 it is not what is in dispute now. Can we hear

13 Mr. O'Sullivan?

14 MS. RESIDOVIC: I could have answered, it does not say

15 Munich, it says in front of the name "in Munich and

16 Vienna belongs to third parties" and I believe the court

17 will have an insight into the submission as well. Thank

18 you.

19 JUDGE KARIBI-WHYTE: What I have just said, those motions

20 are records of the court, so we can go to it and see

21 what really was said. We do not depend entirely on what

22 counsel has said. Can we hear Professor O'Sullivan?

23 MR. O'SULLIVAN: Your Honours, I would like to respond to

24 some of the submissions made by my learned friend

25 Mr. Niemann. I begin by pointing out that this Trial

Page 7393

1 Chamber has ruled that beyond reasonable doubt is the

2 standard of proof. It is untenable to say that a lesser

3 standard of proof applies when we are talking about the

4 admission of evidence or the determination of guilt.

5 I do not need to remind you of your own decision of

6 September 1st 1997, when you ruled inadmissable the

7 statement made by Mr. Mucic to the Vienna police.

8 Moreover, the prosecution during this hearing, or the

9 evidence on this evidence, has acknowledged that they

10 have been put to strict proof, as Mr. Niemann himself,

11 when he was questioning one of his witnesses --

12 THE INTERPRETER: Could the counsel please slow down.

13 MR. O'SULLIVAN: -- chain of custody.

14 JUDGE KARIBI-WHYTE: We return to our problem yesterday.

15 MR. O'SULLIVAN: My apologies to all concerned. Now

16 I understand the problem Madam Residovic has when she

17 questions witnesses in a common language. I will slow

18 down.

19 Aside from the issue of the burden of proof, this

20 Chamber, your Honours, you are very mindful of Rule 95

21 of the rules. With your indulgence, I will read it

22 again. Rule 95:

23 "Evidence obtained by means contrary to

24 internationally protected human rights. No evidence

25 shall be admissible if obtained by methods which cast

Page 7394

1 substantial doubt on its reliability or if its admission

2 is antithetical to and would seriously damage the

3 integrity of the proceedings."

4 To ensure that the Trial Chamber carries out its

5 direction and duties under Rule 95, your Honours are

6 aware of Articles 20 and 21 of the statute. This rule

7 and these articles are designed to ensure that evidence

8 that is admitted is reliable. I refer to the annotated

9 publication prepared by Mr. Jones on the rules and on the

10 statute. I read the footnote to Rule 95 --

11 MR. NIEMANN: Your Honours, I do hesitate to interrupt

12 counsel, but there is a notation on the front of that

13 publication which I would you invite counsel to look at,

14 under the heading "notice".

15 JUDGE KARIBI-WHYTE: Perhaps you should not be citing it.

16 MR. O'SULLIVAN: Very well. What is the purpose of the rule

17 and what is the purpose of the Austrian code of

18 procedure? Your Honours know that Mr. Niemann takes the

19 position that a violation under Austrian law or an

20 illegal search and seizure, the consequence of which may

21 be the execution of evidence. He takes the position, my

22 learned friend takes the position that exclusion of

23 evidence is meant to punish or discipline the police for

24 their illegal activities. With all due respect, in my

25 respectful submission --

Page 7395

1 JUDGE JAN: Just a minute. (Pause). Sorry for interrupting

2 you.

3 MR. O'SULLIVAN: I was taking issue with the submission by my

4 learned friend Mr. Niemann on the reason why illegally

5 obtained evidence may be excluded by a court. The

6 thrust of his submission that it is to discipline or

7 punish the police, so they do not do it again, so they

8 are made more aware of following procedures under their

9 own criminal procedures. In my submission, I strongly

10 disagree with Mr. Niemann's submissions. Rather, the

11 reason for excluding evidence which is illegally

12 obtained is twofold, and they are connected.

13 The first is to ensure a fair trial for the

14 accused. Applications under our statutes, our rules,

15 under public international law conventions, is to ensure

16 and protect the accused, not to punish the police in a

17 country. Tied to that and the notion of a fair trial is

18 that we have rules of procedure, criminal procedures in

19 states that are meant -- are designed to ensure that

20 evidence is trustworthy or reliable; in other words, it

21 is to ensure, your Honours, that a court of law can rely

22 on the trustworthiness, the authenticity, the

23 reliability of evidence. We ask police to perform their

24 duties; we ask them to record their duties; we ask them

25 to follow the law when they do it, and when they do not

Page 7396

1 that evidence becomes unreliable. It affects a fair

2 trial. That is why the Prosecution is put to strict

3 proof of showing a court, your Honours, such things that

4 warrants are properly issued, that the Austrian law is

5 complied with, that witnesses are present as according

6 to their own documents, their own Niederschrift, there

7 is a place for witnesses to sign; that under the

8 Austrian code in particular, there is a provision for

9 sealing items before leaving a premises. The

10 Prosecution must prove beyond a reasonable doubt that

11 the chain of custody is established; again, to ensure

12 reliability for your Honours. Those are the reasons why

13 courts may exclude evidence, to ensure a fair trial, the

14 rights of the defendant, to ensure that the evidence is

15 trustworthy and reliable.

16 For Mr. Niemann to say yesterday that countries

17 like Austria would ignore a decision of this Tribunal,

18 because you have no teeth, because there would be no

19 consequence in what you did here, there would be no

20 punishment of police officers in Austria, is not only an

21 insult to this Tribunal but it is also saying that this

22 Tribunal should give its stamp of approval to something

23 which Mr. Niemann is on the point of agreeing that the

24 procedures were illegal; that police officers went out

25 of their way to choose a 16 year old girl, that there is

Page 7397

1 a mala fides, there is admittedly a forged document,

2 meant to mislead.

3 There is so much contradictory evidence that the

4 Prosecution is now saying, "We abandon apartment 14".

5 We have two bags, not one bag, cassettes change; "We

6 abandon apartment 14". What about all the co-mingling

7 of the evidence back at police headquarters on 18th

8 March? That is the chain that I was discussing with you

9 yesterday. That is why I tried to break it down into

10 time periods. There are considerable problems with the

11 period where the seizure begins at 14 and takes us back

12 to police headquarters. There are considerable problems

13 when we go from INDA-Bau to police headquarters, and

14 then in police headquarters we have all the co-mingling

15 of evidence, documents moving, nothing marked, not one

16 document is marked or identified before 8.00 pm on

17 18th March. That is the evidence. So now they are

18 abandoning a set of documents and tapes from apartment

19 14, because there the violations are flagrant, are they

20 not?

21 What about the events of the evening of the 18th?

22 We have conflicting evidence that according to the OTP

23 investigator D'Hooge, Dr. Seda, this investigating

24 magistrate, who is in charge, could not be contacted to

25 give his approval. He was not on the premises. You

Page 7398

1 remember my friend's argument, he was the man in

2 control. The OTP investigators were told he was not

3 available, it was after working hours. Yet Moerbauer

4 says, I gave out documents on his approval. The

5 co-mingling of evidence from 14 and INDA-Bau on the

6 night of the 18th. With all due respect to my friend

7 Mr. Niemann, he is incorrect when he says that in regard

8 to when items were marked -- I will just find the notes

9 I took when he was speaking.

10 Regarding the point at which stickers were put on

11 the files, the evidence of Mr. Panzer is that he put

12 stickers on all the files from INDA-Bau on 19th March,

13 the exterior. We have made a distinction in this

14 courtroom between the file folders and their contents.

15 Panzer's evidence is that he put stickers on them on

16 19th March.

17 JUDGE KARIBI-WHYTE: You appear to be repeating your

18 submissions yesterday.

19 MR. O'SULLIVAN: I am responding to Mr. Niemann's submissions

20 this morning. He was incorrect when he said that, your

21 Honour. If you just bear with me, I think it is

22 important.

23 The interior of those folders from INDA-Bau, the

24 file folders themselves, and this is the whole key to

25 chain of evidence, according to Moerbauer, the documents

Page 7399

1 are marked on 22nd April during a ten day period. He

2 comes to this courtroom and he cannot identify his mark

3 on all but one document. That is conclusive proof,

4 your Honours. There is no explanation as to what

5 happened to those documents. He was not able to tell

6 your Honours that the documents he was shown are the

7 documents that he marked. His marks have disappeared.

8 By no stretch has the Prosecution proven that those

9 documents --

10 JUDGE KARIBI-WHYTE: Do you know the content of those

11 folders?

12 MR. O'SULLIVAN: No, I do not. Mr. Moerbauer does not either.

13 JUDGE KARIBI-WHYTE: Then what are we trying to admit?

14 MR. O'SULLIVAN: The Prosecution is trying to say that what

15 is being admitted are those documents. There is no

16 proof of the provenance of those documents. There is no

17 proof that the documents in these binders are the ones

18 that Moerbauer marked because his marks are no longer on

19 those documents. Those may not even be the documents

20 that he saw. That is the obvious conclusion.

21 My friend also talked about chain of custody in

22 time of war. We were in Vienna Austria, your Honours,

23 in March 1996. We were in a western country that is not

24 at war. I think that goes without saying, with an elite

25 police force who sent experienced police officers to

Page 7400

1 handle things.

2 THE INTERPRETER: Microphone, your Honour.

3 JUDGE JAN: They all disclaim they belong to an elite

4 portion of Vienna's police.

5 MR. O'SULLIVAN: They were in charge of state security and

6 things like that, so in fact they may not have been an

7 elite branch of the Austrian police.

8 JUDGE KARIBI-WHYTE: In pursuit of this chain of custody

9 argument, who do you think is in possession at any one

10 time? The Vienna police, or the commander who took

11 charge of the investigation?

12 MR. O'SULLIVAN: With all due respect to your request,

13 I think that is a question for the Prosecution to prove.

14 JUDGE KARIBI-WHYTE: When you are challenging the chain

15 of -- at least you have to establish where the

16 possession lies.

17 MR. O'SULLIVAN: That is precisely the point. There is no

18 proof beyond a reasonable doubt of the provenance of

19 these items, because of the way they are handled, coming

20 to police headquarters. There is no proof of who

21 handled, took or moved articles around on the evening of

22 the 18th and when Moerbauer is the first person,

23 beginning on March 22nd, who says "I opened folders and

24 I put marks on the documents, my mark was on those

25 documents", he comes to this court in June 1997, he is

Page 7401

1 asked by yourself, Judge Karibi-Whyte, "Are your marks

2 on these documents?" He says no.

3 He cannot say whether those are his documents, the

4 ones he looked at a year and a half earlier or not.

5 There is no proof. He does not understand the language,

6 and it would not be fair to ask a man, a year and a half

7 later, "Could you look through these and tell me whether

8 these are the exact documents you looked at at the end

9 of March 1996?" That is what the chain of custody is

10 all about, proving continuity, and Mr. Moerbauer's

11 evidence is fatal on that. He says he looked at

12 INDA-Bau documents, he put his sticker. He comes here,

13 there are no stickers on the documents. So what

14 happened to them, who knows? There is no way of

15 knowing, your Honour. That is the fatal flaw that

16 determines this issue, in our submission. We cannot

17 know. Moerbauer came here and said, "I do not know", in

18 response to your question. You spotted the issue, your

19 Honour.

20 JUDGE KARIBI-WHYTE: Actually perhaps I might have been

21 misunderstood now from the question I posed to you.

22 What I am trying to find out is strictly

23 jurisprudential, where does the custody lie in respect

24 of all those things recovered on search? Is it on the

25 individual policemen or in the team which actually went

Page 7402

1 for the search?

2 MR. O'SULLIVAN: We talk about the chain of custody, we talk

3 about all police officers who had handling --

4 JUDGE KARIBI-WHYTE: All of them as a group or individually

5 in respect of what they --

6 MR. O'SULLIVAN: Individually, your Honour. Each police

7 officer has custody and control at a certain point and

8 he passes it on to a colleague.

9 JUDGE KARIBI-WHYTE: This is what I am trying to get at.

10 MR. O'SULLIVAN: That is the fatal aspect of this whole issue

11 on having proved these documents having regard to their

12 authenticity and reliability. It has not been done and

13 it cannot be done because Officer Moerbauer, the central

14 man in this, the only man who marked things

15 individually, came here and said "I do not see my mark",

16 which suggests --

17 JUDGE KARIBI-WHYTE: I return again to whatever is asked,

18 what were being tendered were folders containing

19 documents. I do not know if any document was being

20 tendered.

21 MR. O'SULLIVAN: I would agree with you on that, your

22 Honour. That there is no way of proving the documents.

23 The documents have not been proven and not been

24 tendered.

25 JUDGE KARIBI-WHYTE: What is excluded?

Page 7403

1 MR. O'SULLIVAN: My understanding is Mr. Niemann wants the

2 contents tendered and I am saying he cannot prove the

3 contents. If he only wants the folders, the 12 coloured

4 folders with no contents, I would not oppose that as

5 strenuously, but even those are not proven.

6 So the submissions are that there is mala fides,

7 there is no proof of the contents of these folders at

8 all, I assume that is what my friend wants to admit. On

9 that basis, on the basis of all these witnesses

10 individually who handled these items and who marked them

11 and Moerbauer in particular could not identify a single

12 document from those folders and those are the exhibits

13 in fact between 104 and 147 which are Prosecution

14 exhibits, which they are attempting to tender and that

15 is why I raised the point that Moerbauer, the man who

16 says he marked them, analysed them in that chair said he

17 could not identify them because his marking was no

18 longer there.

19 Are there any further questions from

20 your Honours? Can I be of any further assistance to

21 you?

22 JUDGE KARIBI-WHYTE: You can continue with your submission.

23 If that is all you have, I think that is all for the

24 argument of both sides.

25 MR. O'SULLIVAN: Thank you.

Page 7404

1 MR. OLUJIC: With your permission, your Honours, I would like

2 to reply to what my learned colleague said yesterday and

3 stressed today again in his response as regards the

4 manner of gathering evidence, and the entirety of the

5 matter. I will not be overlong, so if you will allow

6 me, it does affect my client, so please allow me to

7 present my argument.

8 MR. NIEMANN: Your Honours, this is a little unfair. I think

9 that this is the motion that was put on by counsel for

10 Mr. Delalic and counsel has had an exhaustive opportunity

11 to address on both sides. In relation to that, are we

12 to be confronted with a whole range of different

13 arguments that will be put forward? We have no idea --

14 there has been no motion filed by this counsel in

15 relation to the matter. I submit, your Honours, it is a

16 little unfair to allow all counsel to pop up at will and

17 say whatever they think might be useful about these

18 things. It is the motion of Mr. Delalic that

19 your Honours are dealing with.

20 JUDGE KARIBI-WHYTE: Actually this is not a general issue in

21 which perhaps most counsel might be helpful in making

22 contributions. It is a specific motion under the name

23 of Delalic. I do not think you need to assist, except

24 perhaps if the court wants assistance. But I do not

25 think it is necessary. We have had exhaustive arguments

Page 7405

1 since yesterday. Have I made myself understood?

2 MR. OLUJIC: Thank you, your Honours. I will respect your

3 decision. This was my request, but if it is your

4 position that the rest of the Defence should not join

5 in, but since I thought that there was a number of

6 questions of principle, but anyway, I do respect your

7 decision.

8 JUDGE KARIBI-WHYTE: Thank you very much. I think that is

9 the end of the arguments.

10 MR. NIEMANN: That is correct, your Honour, yes.

11 JUDGE KARIBI-WHYTE: We will rise now and come back at

12 12.00. Perhaps we would want to have a short status

13 conference at that time, to organise the affairs. As

14 you know, we will soon be having a break from the

15 15th and we are not likely to resume for some time. We

16 want to know exactly how things are organised for

17 possibly the last lap of the Prosecution case

18 presentation, so we will know how everybody stands, how

19 the Defence also. We will organise the affairs

20 following how you schedule your arrangements. We will

21 rise now. Possibly the accused -- it is not necessary

22 the accused be present because in a status conference,

23 it might be helpful to counsel, but normally I do not

24 think they need be there.

25 MR. ACKERMAN: Your Honour, I do not think there is any

Page 7406

1 problem with regard to that. I do not foresee any.

2 MR. MORAN: Your Honour, I do not see a problem. Of course,

3 my client is not here in any case. I do not foresee a

4 problem with that.

5 MR. OLUJIC: Your Honours, if you allow me, if possible, my

6 client has requested to attend the status conference.

7 JUDGE KARIBI-WHYTE: Thank you. We will be back at that

8 time.

9 (11.20 am)

10 (A short break)

11 (12.00 pm)

12 JUDGE KARIBI-WHYTE: We are giving a very short ruling on

13 the last of the arguments, because of the nature of the

14 decision we are handing down.

15 The Trial Chamber has considered the contentions

16 of counsel for Delalic and for the Prosecution, with

17 respect to the admissibility of evidence consisting of

18 documents and video cassettes recovered during the

19 search of premises designated as occupied by Delalic in

20 those proceedings. We have considered the contention

21 that the warrant relied upon for the search of the

22 premises is illegal. The Trial Chamber has no evidence

23 of the breach of any condition predicating its issue.

24 We rely on the principle of omnia presumatorite esse

25 acta to hold the warrant valid. The effect of

Page 7407

1 non-compliance with the procedure requirements of such

2 we do not consider the situation so reprehensible as to

3 render the acts illegal. We therefore consider it in

4 the interests of the trial to admit the materials

5 recovered during the search --

6 THE INTERPRETER: Could his Honour please slow down. Thank

7 you.

8 JUDGE KARIBI-WHYTE: We therefore consider it in the

9 interests of the trial to admit the materials recovered

10 during the search and tendered in evidence.

11 We however observe that the Defence is entitled to

12 address the Trial Chamber on those materials, and will

13 be entitled to challenge the admissibility of any

14 documents sought to be tendered as arising from the

15 search or discrepancies from evidence of witnesses.

16 This is because the Prosecution is seeking to tender 12

17 folders containing documents, but not the documents

18 contained therein.

19 To adopt another approach would be tantamount to

20 reviewing a considerable portion of the case, an

21 exercise clearly undesirable in the overall

22 determination of the case, which should not be decided

23 piecemeal. The Defence is entitled to challenge any of

24 the evidence when tendered. They still reserve the

25 right to challenge any other issues which are not

Page 7408

1 involved in this decision.

2 I think this is our decision. We will carry on in

3 this way. We will deliver our ruling on the Mucic

4 admissibility letter later on, not now. We can now go

5 into the status conference.

6 MS. RESIDOVIC: Your Honour, with your permission, to make

7 sure that it is clear to me in this phase, this was your

8 decision regarding the documents and 12 folders.

9 However, in the proposal of the Prosecution -- in the

10 motion of the Prosecution, there were three videotapes

11 that Mr. Navrat, the only witness from the location,

12 could neither identify nor recognise, nor did the

13 Prosecutor propose that to the witness, and in your

14 decision I did not hear whether you decided -- whether

15 you have already ruled on the three videotapes whose

16 number changed from the time of the seizure to the time

17 they departed from the police station, so I would like

18 to ask you if I misunderstood, because I thought the

19 ruling referred only to the documents. I would like to

20 have a clarification at this point. Thank you very

21 much.

22 JUDGE KARIBI-WHYTE: What I said was consisting of documents

23 and video cassettes. That was what I said. Perhaps the

24 transcript will show that.

25 (In closed session)






Pages 7409 to 7417 in closed session


(12.30 pm)

(Court adjourned until 10.00 am

on Monday, 6th October 1997)