IN THE TRIAL CHAMBER
Judge Almiro Rodrigues, Presiding
Judge Fouad Riad
Judge Patricia Wald
Mrs. de Sampayo Garrido-Nijgh, Registrar
27 November 2000
MLADEN NALETILIC aka TUTA
VINKO MARTINOVIC aka STELA
DECISION ON PROSECUTION MOTION FOR ADMISSION OF TRANSCRIPTS AND EXHIBITS TENDERED DURING TESTIMONY OF CERTAIN BLASKIC AND KORDIC WITNESSES
The Office of the Prosecutor:
Mr. Kenneth Scott
Counsel for the Accused:
Mr. Kresimir Krsnik, for Mladen NALETILIC
Mr. Branko Seric, for Vinko MARTINOVIC
TRIAL CHAMBER I (hereafter Chamber) of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (hereafter Tribunal) is seised of the Prosecutors Motion for Admission of Transcripts and Exhibits Tendered During Testimony of Certain Blaskic and Kordic Witnesses, dated 11 October 2000, (hereafter the Motion).
Martinovic and Naletilic are charged in a 22 count indictment, dated 18 December 1998, (hereafter Indictment), with crimes against humanity, grave breaches of the Geneva Conventions of 1949, and violations of the laws and customs of war, for their role in acts alleged to have taken place in and around the city of Mostar in Bosnia-Herzegovina between 1993 and 1994. Naletilic is alleged, as the commander of a unit known as the Kanjenicka Bojna (KB), to have been acting in connection with the authorities for the Republic of Croatia, and participating in joint actions with the Army of the Republic of Croatia. Martinovic is alleged to have been commander of the Mrmak or Vinko Skrobo sub-unit of the KB. The Indictment charges that , in early May of 1993, the Army of the Republic of Croatia, and the Croatian Defence Counsel, including the KB, launched a large military offensive, and that up until March 1994, a broad campaign of violence and ethnic cleansing was directed against the Bosnian Muslim population in the area of Mostar.
In the Motion, the Prosecutor is seeking to admit transcripts and exhibits of five witnesses who testified in the Blaskic case,1 and two witnesses who testified in the Kordic case.2 The Prosecutor argues that the transcripts and exhibits are relevant to general allegations made in the present Indictment about the existence of an international armed conflict, the applicability of the Geneva Conventions of 1949 to the Article 2 counts in the Indictment, and the existence of a widespread or systematic attack directed against the civilian population for the purposes of the Article 5 counts .3 The admission of the transcripts and exhibits would eliminate the need for the witnesses in question to be brought back to the Tribunal to repeat their evidence, and would expedite the current proceedings . The Motion is opposed in written replies filed by counsel for the accused Naletilic ,4 and Martinovic,5 who argue that admission of the transcripts and exhibits would infringe the right of the accused to a fair trial.
I. ARGUMENTS OF THE PARTIES
In support of the Motion, the Prosecutor relies upon Rule 89 (C) (which gives the Trial Chamber a broad discretion to admit any relevant evidence of probative value ), and
Rule 94 (B) (pursuant to which the Trial Chamber may take judicial notice of adjudicated facts or documentary evidence from other proceedings of the Tribunal), of the Rules of Procedure and Evidence of the Tribunal (hereafter Rules). The Prosecutor argues that the relevant transcripts and exhibits contain no direct reference to either the accused Martinovic or Naletilic. The Prosecutor contends that, after evaluating the evidence contained in the transcripts and exhibits, it is open to the Trial Chamber to make findings about the existence of general requirements for the alleged offences, such as whether there was an international armed conflict, and/or the occurrence of a widespread or systematic attack against the Muslim population, since this would in no way pre-determine the culpability of the accused for the crimes charged in the Indictment.
The Prosecutor further argues that there is no reason to doubt the reliability of the transcript and exhibits, given that it has been tested by cross-examination by other defendants having an identical interest in opposing this evidence.6 However, the Prosecutor acknowledges that the evidence may not be admissible if the defendants in the present case can demonstrate a line of relevant cross-examination that was not previously pursued.7
The accused Naletilic argues that admission of the transcripts and exhibits would violate
Rule 89 (B), which stipulates that the Trial Chamber must apply rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law, and that the Trial Chamber should have the opportunity to assess the evidence directly. The accused Naletilic also argues that it is inappropriate to admit the transcripts because both the Blaskic case and the Kordic case are ongoing.8 The accused Naletilic emphasises that pursuant to Article 21 (1) of the Statute of the Tribunal, all persons should be equal before the Tribunal, and argues that , accordingly, his case should not be influenced by proceedings against other accused before the Tribunal. Finally the accused Naletilic claims that, subsequent to the witnesses appearing in the Blaskic and Kordic cases, additional documentation has become available that sheds new light on the testimony given by those witnesses .
The accused Martinovic disputes the Prosecutors assertion that he can, in any way , be linked to the existence of an international armed conflict in Bosnia and Herzegovina (hereafter BiH) during the relevant time, and states that his case has no connection with those of Blaskic and Kordic. Martinovic argues that his case must be viewed in isolation from the cases against other accused before the Tribunal, and that he should be given an opportunity to directly hear the accusations against him. He also argues that additional documentation is now available that should be put to the Blaskic and Kordic witnesses. Finally, the accused Martinovic argues that the interests of the Defence are different in each case, so that cross-examination of a witness in one case cannot be substituted for cross-examination of that same witness in another.
At the outset the Chamber emphasises that the transcripts and exhibits cannot be admitted as affidavit evidence, since the requirements of Rule 94 ter have not been met.9 The question for consideration by the Chamber is whether this evidence can be admitted pursuant to Rule 89 (C).
It is well established that a Trial Chamber has a broad discretion under Rule 89 (C) to admit relevant hearsay evidence. However, because such evidence is admitted to prove the truth of its contents, a Trial Chamber must first be satisfied that the evidence is reliable.10 The reliability of a statement is a matter that goes to the admissibility of the evidence, and not just to the weight accorded to it by the Trial Chamber.11 In assessing reliability, the Chamber must consider whether the statement is voluntary , truthful and trustworthy and may consider both the content of the hearsay statement and the circumstances under which the evidence arose.12 Reliability should be assessed by reference to factors such as whether there has been an opportunity to cross-examine the person who made the statement and whether the hearsay is first-hand or further removed.13
The question of whether hearsay in the form of transcripts and exhibits from one case before the Tribunal are admissible in another case before the Tribunal was considered by the Appeals Chamber in the Aleksovski case, where the admission of transcripts and exhibits relating to testimony given in the Blaskic case was upheld .14 The Appeals Chamber rejected the Defence argument that the Prosecutor in Aleksovski should not be able to tender a transcript from the Blaskic case because the Defence in Aleksovski did not have an opportunity to cross-examine the witness. The Appeals Chamber emphasised that this is the case with the admission of any hearsay evidence,15 and was persuaded that the reliability of the transcript evidence was established in light of the extensive cross-examination that occurred in the Blaskic trial, and the fact that there was a common interest between the Defence in the two cases .16
The present case is similar to Aleksovski in that the original evidence was presented in court, under oath, and was subject to extensive cross-examination by defence counsel having a similar interest in opposing the evidence as the accused Naletilic and Martinovic.17 However, in contrast to Aleksovski, counsel for the accused in the present case argue they would pursue additional lines of cross examination that were put forth by the Defence in Blaskic and Kordic.18 Specifically, both accused claim that additional documentation has subsequently become available that was not put to the witnesses at the time their evidence was presented to the Trial Chamber in the Blaskic and Kordic cases. However, neither accused provides any indication as to the substantive nature of this new evidence, or the additional lines of cross-examination that they would pursue on the basis of it. In the absence of such information, the Trial Chamber is not persuaded that the reliability of the transcript evidence has been called into question. Furthermore, it is open to the Defence to introduce rebuttal evidence, which would allow any further relevant documentation to be presented to the Trial Chamber.
In the present case, the Prosecutor has not claimed that the witnesses in question would be unable to attend at the Tribunal to give evidence, but rather argues that the rationale for admitting the transcript evidence is to expedite the proceedings , and to avoid the expense associated with repeatedly bringing witnesses back to the Tribunal to give the same testimony.19 The Chamber is of the view that, given the great interest the Tribunal has in expediting the proceedings before it, this is also a relevant factor in the exercise of its discretion to admit evidence under Rule 89 (C).
In addition to being reliable, hearsay evidence must be probative in order to be admitted.20 The transcript from the Blaskic and Kordic cases is relevant to material facts in dispute in the present case, namely the existence of an international armed conflict, the applicability of the Geneva Conventions of 1949, and whether there was a widespread or systematic attack against the civilian population. The existence of these factors may vary depending upon the time period and the location under consideration in each case .21 However, the present case and the Blaskic and Kordic cases all relate to the armed conflict in BiH in the proclaimed region of Herceg-Bosna. All the cases concern alleged military offensives by the forces of the Croatian Defence Council of the Croatian Community of Herceg-Bosna /Croatian Republic of Herceg-Bosna against the Bosnian Muslim population as part of a widespread campaign. Further, the relevant time period in the present case overlaps with the relevant time period in the Blaskic and Kordic cases. The Chamber is therefore satisfied that the transcripts and exhibits from Blaskic and Kordic are of sufficient probative value to warrant admission in the present case.
The accused Naletilic argues that it is inappropriate to admit the transcripts because both the Blaskic and Kordic cases are still ongoing. However, given that the transcripts would be admitted as evidence, and not as adjudicated facts under Rule 94, the ongoing nature of the proceedings presents no hurdle to their admission.22
Both the accused Naletilic and Martinovic have argued that their cases must be viewed in isolation from the cases against other accused before the Tribunal, and that each should be given an opportunity to directly hear the accusations against him . While the Trial Chamber agrees that the guilt of an accused can never be pre- determined by reference to other proceedings before the Tribunal, there are nonetheless common issues in many of the cases. Pre-requisite elements of offences charged in the indictments issued by the Prosecutor, such as the existence of an international armed conflict (a pre-condition for grave breach charges under Article 2 of the Statute), or the existence of a widespread or systematic attack (a pre-condition for crimes against humanity charges under Article 5 of the Statute), fall within this category. These pre-requisite elements determine the category of crimes within the jurisdiction of the Tribunal that the alleged actions of an accused person are to be placed, and not whether an individual accused has in fact committed the acts alleged. Therefore, admitting evidence of such pre-requisite elements from other proceedings also covering a similar location and time period, in no way infringes the rights of the accused.
Finally, as regards the argument made by the accused Martinovic that he can in no way be linked to the existence of an international armed conflict in BiH during the relevant time, the Chamber finds that this is a matter to be determined at trial in light of all the evidence presented by both parties.
FOR THE FOREGOING REASONS
TRIAL CHAMBER I
HEREBY GRANTS the Prosecutors Motion
Done in French and English, the English version being authoritative.
Dated this 27th day of November 2000,
At The Hague,
(Seal of the Tribunal)
1- Prosecutor v Blaskic, Case No. IT-95-14.
2- Prosecutor v Kordic, Case No. IT-95-14/2.
3- The Motion, para. 2.
4- Prosecutor v Naletilic and Martinovic, Case No. IT-98-34-PT, Statement of the Defence Mladen Naletilic to the Prosecutors Statement in Respect of Pre-Trial Filings of 11 October 2000, dated 24 October 2000, (hereafter Naletilic Reply)
5- Prosecutor v Naletilic and Martinovic, Case No. IT-98-34-PT, Declaration of the Defence for the Accused Vinko Martinovic to the Pre-Trial Documents Submitted by the Prosecutor, dated 23 October 2000, (hereafter Martinovic Reply).
6- The Motion, para. 13.
7- The Motion, paras. 13-15.
8- Appeals are pending in the Blaskic case, and the judgment of the Trial Chamber in the Kordic case is yet to be delivered.
9- See The Prosecutor v Kvocka and Others, Case No. IT-98-30/1-T, Decision on Prosecution Notice of Affidavit Evidence, dated 30 October 2000, where the Trial Chamber refused to admit transcripts as affidavit evidence on the grounds that the requirements of Rule 94 ter were not met.
10- Prosecutor v Aleksovski, Case No. IT-95-14/1, Decision on Prosecutors Appeal on Admissibility of Evidence, 16 February 1999 (hereafter Aleksovski Decision on Transcripts); and Prosecutor v Kordic, Case No IT-95-14/2, Decision on Appeal Regarding Statement of a Deceased Witness, 21 July 2000 (hereafter Kordic Decision).
11- Kordic Decision at 7.
12- Aleksovski Decision on Transcripts at 8.
13- Aleksovski Decision on Transcripts at 8.
14- There were two questions before the Appeals Chamber in the Aleksovski Case. First, whether the Defence could tender the transcript and exhibits relating to testimony of an expert witness called by the Defence in the Blaskic trial, and second, whether the Prosecutor could tender a transcript of evidence given in rebuttal to the Defence expert witness in the Blaskic trial.
15- Aleksovski Decision on Transcripts at 12-13.
16- Aleksovski Decision on Transcripts at 12.
17- By contrast, in the Kordic case, the statement of a deceased witness was held to be inadmissible on the grounds that the reliability of the statement had not been established. In particular, it was not given under oath, it was never subject to cross-examination by anyone, the truth of the matter asserted in the statement did not appear to be corroborated by any other evidence, it was not first-hand hearsay, had undergone a prolonged and informal process of translation, and was not made contemporaneously with the events in question. See Kordic Decision at 8.
18- In reaching its decision to grant the Prosecutors motion to admit the transcript, the Appeals Chamber noted that the Defence in Aleksovski had not claimed there was any line of relevant cross-examination that had not been exhausted in the Blaskic trial. Aleksovski Decision on Transcripts at 10.
19- C.f. the Aleksovski case where the Trial Chamber found that the witness was not immediately available to attend the Tribunal to give evidence in person. See Aleksovski Decision on Transcripts at 10.
20- Aleksovski Decision on Transcripts at 13.
21- For example, in Prosecutor v Tadic, Case No. IT-94-1-A, Judgment of 15 July 1999, at 37-38, the Appeals Chamber recognised that the nature of a conflict may change throughout the war, so that an internal armed conflict may become international, (or vice versa).
22- Although the Motion refers to Rule 94 as well as Rule 89 (C), the Prosecutor accepts that only after evaluating the evidence in the transcripts and exhibits, could the Trial Chamber determine the relevant issues of fact.