Judge Fausto Pocar, Presiding
Judge Claude Jorda
Judge Mohamed Shahabuddeen
Judge David Hunt
Judge Mehmet Güney
Mr Hans Holthuis
21 October 2003
DISSENTING OPINION OF JUDGE DAVID HUNT ON ADMISSIBILITY OF EVIDENCE
IN CHIEF IN THE FORM OF WRITTEN STATEMENT
(Majority Decision given 30 September 2003)
Counsel for the Prosecutor:
Mr Geoffrey Nice
Ms Hildegard Uertz-Retzlaff
Mr Dermott Groome
Mr Slobodan Milosevic (unrepresented)
Mr Steven Kay QC
Mr Branislav Tapuskovic
Mr Timothy McCormack
1. The Appeals Chamber has been asked by the prosecution, for the third time, to consider the admissibility of statements taken by prosecution investigators from witnesses for the purposes of a trial, and thus the relationship between Rule 89 (F) and Rule 92bis of the Rules of Procedure and Evidence (“Rules”). These two provisions were adopted in the Rules as a result of an earlier decision of the Appeals Chamber on the same subject in Prosecutor v Kordic & Cerkez.1
2. At the time of the Kordic & Cerkez Decision, the statement at issue in that appeal (which had been taken by a prosecution investigator from a witness who had subsequently died before trial) was tendered in accordance with Rule 89(C). That rule has to be seen in its current context at that time:
Section 3 : Rules of Evidence
(A) A Chamber shall apply the rules of evidence set forth in this Section, and shall not be bound by national rules of evidence.
(B) In cases not otherwise provided for in this Section, a Chamber shall apply rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law.
(C) A Chamber may admit any relevant evidence which it deems to have probative value.
(D) A Chamber may exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial.
(E) A Chamber may request verification of the authenticity of evidence obtained out of court.
Testimony of Witnesses
(A) Subject to Rules 71 and 71bis, witnesses shall, in principle, be heard directly by the Chambers.
(Rule 71 permits depositions to be taken for use at the trial where it is in the interests of justice to do so; Rule 71bis permits testimony to be received via video-conference link in the interests of justice.)
3. In the Kordic & Cerkez Decision, the Appeals Chamber held that the broad discretion given by Rule 89(C) is limited by the requirement in Rule 89(B) that the rules of evidence applied by a Chamber must be those which best favour a fair determination of the matter before the Chamber and which are consonant with the spirit of the Tribunal’s Statute and with general principles of law; the discretion contained in Rule 89(C) ought, therefore, to be exercised in harmony with the Statute and the other Rules to the greatest extent possible.2 The Appeals Chamber also held that Rule 89(C) must be interpreted so that safeguards are provided to ensure that the Chamber can be satisfied that the evidence is reliable ; where the evidence does not satisfy the requirements of the other Rules which permit a departure from the particular evidence being given orally, there must be other, compensating evidence of reliability.3 The reliability of a hearsay statement is therefore relevant to its admissibility, and not just to its weight.4 It was acknowledged that the decision was to some extent dependent on the preference in Rule 90(A) for “live, in court” testimony.5 The Appeals Chamber accordingly upheld the appeal against the admission of the witness statement taken by the prosecution investigator, and directed the Trial Chamber to exclude it.6
4. In December 2000, the preference for “live, in court” testimony was qualified by the deletion of Rule 90(A), and both Rule 89(F) and Rule 92bis were added. The new rules are in the following terms:
Section 3 : Rules of Evidence
(F) A Chamber may receive the evidence of a witness orally or, where the interests of justice allow, in written form.
Proof of Facts other than by Oral Evidence
(A) A Trial Chamber may admit, in whole or in part, the evidence of a witness in the form of a written statement in lieu of oral testimony which goes to proof of a matter other than the acts and conduct of the accused as charged in the indictment.
(i) Factors in favour of admitting evidence in the form of a written statement include but are not limited to circumstances in which the evidence in question:
(a) is of a cumulative nature, in that other witnesses will give or have given oral testimony of similar facts;
(b) relates to relevant historical, political or military background;
(c) consists of a general or statistical analysis of the ethnic composition of the population in the places to which the indictment relates;
(d) concerns the impact of crimes upon victims;
(e) relates to issues of the character of the accused; or
(f) relates to factors to be taken into account in determining sentence.
(ii) Factors against admitting evidence in the form of a written statement include whether:
(a) there is an overriding public interest in the evidence in question being presented orally;
(b) a party objecting can demonstrate that its nature and source renders it unreliable, or that its prejudicial effect outweighs its probative value; or
(c) there are any other factors which make it appropriate for the witness to attend for cross-examination.
(B) A written statement under this Rule shall be admissible if it attaches a declaration by the person making the written statement that the contents of the statement are true and correct to the best of that person’s knowledge and belief and
(i) the declaration is witnessed by:
(a) a person authorised to witness such a declaration in accordance with the law and procedure of a State; or
(b) a Presiding Officer appointed by the Registrar of the Tribunal for that purpose ; and
(ii) the person witnessing the declaration verifies in writing:
(a) that the person making the statement is the person identified in the said statement;
(b) that the person making the statement stated that the contents of the written statement are, to the best of that person’s knowledge and belief, true and correct ;
(c) that the person making the statement was informed that if the content of the written statement is not true then he or she may be subject to proceedings for giving false testimony; and
(d) the date and place of the declaration.
The declaration shall be attached to the written statement presented to the Trial Chamber.
(C) A written statement not in the form prescribed by paragraph (B) may nevertheless be admissible if made by a person who has subsequently died, or by a person who can no longer with reasonable diligence be traced, or by a person who is by reason of bodily or mental condition unable to testify orally, if the Trial Chamber:
(i) is so satisfied on a balance of probabilities; and
(ii) finds from the circumstances in which the statement was made and recorded that there are satisfactory indicia of its reliability.
(D) A Chamber may admit a transcript of evidence given by a witness in proceedings before the Tribunal which goes to proof of a matter other than the acts and conduct of the accused.
(E) Subject to Rule 127 or any order to the contrary, a party seeking to adduce a written statement or transcript shall give fourteen days notice to the opposing party, who may within seven days object. The Trial Chamber shall decide, after hearing the parties, whether to admit the statement or transcript in whole or in part and whether to require the witness to appear for cross-examination.
5. All these alterations were made to the Rules as part of the same package of amendments. The Appeals Chamber has twice accepted that their effect was to qualify the previous preference for “live, in court” testimony and to permit evidence to be given in written form where the interests of justice allow, provided that such evidence is probative and reliable.7 It has twice held that Rule 92bis identifies a particular situation in which, once the provisions of the Rule are satisfied and where the material has probative value within the meaning of Rule 89(C), it is, in principle, in the interests of justice (within the meaning of Rule 89(F)) to admit the evidence in written form.8 It has also twice held that Rule 92bis(A) was intended to emphasise the need to ensure reliability, and that it was directed to written statements prepared for the purposes of legal proceedings which would previously have been admissible under Rule 89(C).9 The Appeals Chamber has twice recognised that this was particularly necessary in relation to written statements taken by prosecution investigators from prospective witnesses.10 Specifically, it was twice stated that the prosecution cannot be permitted to tender such a written statement under Rule 89(C) in order to avoid the stringency of Rule 92bis, but that Rule 92bis has no effect on hearsay material which was not prepared for the purposes of legal proceedings.11
6. The Appeals Chamber explained the need for restrictions on the admissibility of written statements prepared by a party to the proceedings for the purpose of those proceedings in the first of its two decisions discussing the relationship between Rules 89(F) and 92bis.12 Before turning to that explanation, however, it is necessary to emphasise that this Tribunal has not adopted the system found in many civil law countries of having a dossier for use in the trial prepared by a judicial officer, who is required to seek out exculpatory and inculpatory evidence with equal determination, and who is expected not to favour either the prosecution or the defence. As already indicated, the statements to which Rule 92bis is directed are those prepared by a party for the purposes of the legal proceedings in which they are to be tendered, not by an independent judicial officer. In the Galic Decision, the Appeals Chamber explained that the first type of hearsay evidence permitted in common law legal systems in order to prove the truth of what was stated were written records kept by a business. Invariably, however, any documents made in relation to pending or anticipated legal proceedings involving a dispute as to any fact which the documents might tend to establish were excluded. This reflected the fact that such documents are not made in the ordinary course by persons who have no interest other than to record as accurately as possible matters relating to the business with which they are concerned. It also rested on the recognised potential for fabrication and misrepresentation by the makers of such documents and for them to be carefully devised by lawyers or others to ensure that they contain only the most favourable version of the facts stated.13 The decision to encourage the admission of written statements prepared by a party for the purposes of the proceedings in this Tribunal, in lieu of oral evidence from the makers of the statements, was nevertheless taken by the Tribunal because it was seen as an appropriate mixture of the two legal systems. It was, however, done with an awareness that any evidentiary provision specifically relating to that material had to emphasise the need to ensure its reliability.14
7. Moreover, proof of the acts and conduct of the accused was regarded as a matter of particular sensitivity when the decision to adopt Rule 92bis was taken, and, for the reasons stated in the previous paragraph, the Rule specifically provided that such matters cannot be proved by written statements. The proximity to the accused of the person engaging in the acts and conduct described in the written statement was also said by the Appeals Chamber to be relevant to two other issues which arise under Rule 92bis:15
(i) whether the maker of the statement would appear for cross-examination in accordance with Rule 92bis(E); and
(ii) whether the Trial Chamber should exercise its discretion to admit the evidence in written form at all.
The Appeals Chamber made it clear that, where the evidence is so pivotal to the prosecution case, and where the person whose acts and conduct the written statement describes is so proximate to the accused, the Trial Chamber may decide to reject the statement on the basis that it would not be fair to the accused to permit the evidence to be given in written form.16 The exercise of this discretion was said by the Appeals Chamber to become more difficult in the special and sensitive situation posed by a charge of superior responsibility under Article 7.3 of the Tribunal’s Statute.17 The Appeals Chamber did, however, recognise that this decision did limit the advantages to be gained with respect to the expeditious disposal of trials which the Rule was designed to achieve.18
8. The restriction in Rule 92bis excluding written statements which relate to the acts and conduct of the accused (or, as a discretionary matter, to the acts or conduct of those in close proximity to the accused) is therefore an important one. Its importance is made all the greater by the emphasis placed on the relevance of this issue to the exercise of discretion. The emphasis given in the decisions of the Appeals Chamber to the exclusion of written statements which dealt with such acts or conduct demonstrates that the restriction imposed is not a mere formality. Anyone who has had experience of trials in which evidence is required to be given viva voce knows that that evidence will often depart from the version in the statement taken by the party calling the witness – not only from the actual words used in the statement but also from the substance of the statement. All that has been said by the Appeals Chamber before this present appeal concerning the relationship between Rule 89(F) and Rule 92bis clearly demonstrates that its view that written statements prepared for use in the proceedings are admissible only where they fall within Rule 92bis is based on important matters of principle and the fairness of the proceedings, and not merely on utilitarian practical considerations such as a desire to complete cases as quickly as possible.
9. Although every Chamber of the Tribunal has an inherent power (deriving from its judicial function) to receive relevant and probative evidence,19 Rule 89(A) requires the Chamber to apply the appropriate parts of that Rule, and of Rules 90-98, when exercising its inherent power. Rule 89 states, as its title indicates, the general provisions which apply to every case where the admissibility of evidence is in issue. Each of those provisions is necessarily restrictive by nature, in that it imposes limits on potentially relevant evidence. Thus, when considering Rule 92bis in previous cases, the Appeals Chamber has made it clear that evidence which fell within the terms of that Rule still had to be probative (as required by Rule 89(C)).20 Similarly, the Kordic & Cerkez Decision, based on Rule 89(B), stated that, in order to be admissible, hearsay evidence must be in harmony with the Statute and the other Rules to the greatest extent possible.21 It follows that, where evidence is sought to be admitted in the form of written statements prepared by a party for use in the proceedings, the interests of justice referred to in Rule 89(F) cannot allow such evidence to be admitted where it is inconsistent with the provisions of Rule 92bis or where it would not meet the minimum requirements set by other Rules where relevant.
10. In the present case, the prosecution asked the Trial Chamber for permission to submit the evidence-in-chief of its witnesses in writing, in a procedure whereby the maker of each statement would be called as a witness in order to adopt his or her signed statement (or a summary of that statement) as being true, and the witness would thereafter be available for cross-examination.22 The suggested procedure was put forward as one which would save substantial court time without prejudice to the accused.23 It necessarily follows that the written statement would be tendered as an exhibit in order to achieve that saving of time. By majority, the Trial Chamber rejected the application on the basis that such written statements were admissible only pursuant to Rule 92bis and that these statements did not comply with the requirements of that Rule.24 Judge Kwon dissented, on the basis that Rule 92bis should be interpreted as being applicable only where the maker of the statement will not be subject to cross-examination.25 He did, however, propose that the statements should be admitted only so far as they did not go to the acts and conduct of the accused.26
11. My own view is that – insofar as they do not deal with the acts and conduct of the accused, and subject to the discretionary exclusion of the acts or conduct of those in close proximity to the accused – these statements were admissible under Rule 92bis, notwithstanding that the formal requirements of par (B) of that Rule will have been complied with orally rather than by way of a written declaration. This formality is of no consequence, as exactly the same protection with respect to reliability is achieved. The requirement of Rule 92bis(B)(ii)(c), that the maker of the statement be informed that he or she may be prosecuted if the content of the statement is not true, is sufficiently complied with by the requirement that the witness make a solemn declaration. I am conscious of the point made by the Trial Chamber that Rule 92bis requires the statement to be attested to by the witness before he or she comes to court, and that any alterations to the statement will have been made before that is done.27 I have no doubt that, if the prosecution really does wish to save time through the procedure which it has proposed, it will ensure that each witness has carefully read his or her statement before coming to court and that all alterations which need to be made to the statement (a very usual occurrence) will be effected before the witness enters the witness box. But even if this is not done, and if time is wasted while the witness reads and corrects the statement in the witness box before it is tendered, there is no breach of Rule 92bis.
12. There is no basis on which a mere summary of the statement could be admitted pursuant to Rule 92bis, unless by consent. The Rule does, however, permit part of a written statement to be admitted. This was one of the issues dealt with by the Appeals Chamber in the Galic Decision.28 If, as is usual in statements taken by prosecution investigators at an early stage of their investigations, the statement contains much material which is irrelevant to the issues in the particular trial, the prosecution may tender what it regards as the relevant part of the statement – as expressly provided for in Rule 92bis (A) – and, where this is disputed, it is for the Trial Chamber to determine whether other parts should also be tendered in the particular circumstances of the case.29 Summary evidence was one of the issues dealt with by the Appeals Chamber in the Milosevic 2002 Decision,30 but that was in relation to evidence which summarised material provided by other persons and which was not itself in evidence. The Appeals Chamber stated that, in every such case, the basic issue is whether the material being summarised would itself be admissible.31
13. The better course to be pursued by the prosecution would be to prepare a new statement by the witness to be tendered pursuant to Rule 92bis which includes only the specific matters which the prosecution seeks to prove through that witness, and then to have the witness attest to the truth of the new statement to enable it to be tendered pursuant to Rule 92bis. It can then be left to the accused to cross-examine the witness on, inter alia, any other material which is available from the earlier statement (which must also, of course, be supplied to the accused). This is not an issue which the majority has thought it necessary to discuss in its decision,32 and therefore nothing further need be said about it in this Dissenting Opinion.
14. Although the conclusion stated in par 11 is to the same effect as that reached by Judge Kwon, I do not agree with his Honour’s reasons for his conclusion. I do not agree that Rule 92bis should be interpreted as being applicable only where the maker of the statement will not be subject to cross-examination. Rule 92bis by its terms applies whether or not the witness is cross-examined. A written statement prepared by a party for the purposes of the proceedings must comply with the requirements of the Rule before it becomes admissible, and whether or not the witness must attend for cross-examination is a decision made at the time of its admission.
15. The Appeals Chamber has upheld the appeal against the Trial Chamber’s Decision.33 The Majority Appeals Chamber Decision accepts the previously stated law that, where Rule 92bis applies, its requirements must be met for a written statement prepared by a party for the purposes of the proceedings to be admitted.34 It goes on, however, to hold;35
16. […] Where the witness is present before the Court and orally attests to the accuracy of the statement, the evidence entered into the record cannot be considered to be exclusively written within the meaning of Rule 92bis. The testimony of the witness constitutes a mixture of oral and written evidence. […]
18. In effect, the fact that a written statement has been prepared for the purposes of legal proceedings does not by itself suffice to make it admissible only under Rule 92bis unless the statement is also intended to be in lieu of oral evidence. In this case, the latter is not so.
What the majority of the Appeals Chamber has held, therefore, is that Rule 92bis applies only where the written statement prepared by a party for the purposes of the hearing is the sole evidence which is to be admitted from the witness (his evidence is “exclusively written”) and is intended to be in lieu of oral testimony. The Rule does not apply where the evidence of the witness is partly oral (even just to attest the truth of the written statement) and partly in writing (“a mixture of oral and written evidence”).
16. Rule 92bis does not suggest that, in order to fall within its terms, the written statement must be the sole evidence to be given by the witness. Moreover, in the situation contemplated by the Majority Appeals Chamber Decision, the written statement is still being tendered in evidence in lieu of oral testimony from the witness concerning the facts of the case so far as they are dealt with in that statement. The suggestion that the witness could be allowed to read verbatim from the statement, so that the evidence would then become oral, seriously departs from reality in two ways. First, the whole purpose of the proposed procedure is to save time, and this would entirely defeat that purpose. Secondly, where a witness is required to give his or her evidence viva voce, this requirement is not satisfied by permitting the witness to read from his or her statement if that evidence is in issue in the case. What the majority is effectively saying is that a written statement tendered in lieu of oral testimony on the facts of the case is not “the evidence of a witness in the form of a written statement in lieu of oral testimony ” because the witness also gives an oral declaration instead of a written one that the contents of that written statement are true.
17. In my opinion, there are two alarming consequences of the interpretation accepted by the majority. First, whereas Rule 92bis prevents evidence being given in a written form where it goes to proof of the acts and conduct of the accused or (as a discretionary matter) to the acts or conduct of those in close proximity to the accused, the Majority Appeals Chamber Decision will permit evidence to be given in written form which does go to such acts and conduct without restriction – unless the Trial Chamber is prepared to exclude it in the exercise of its discretion under Rule 89(F) on the basis that it would be unfair to the accused to admit it.36 The Majority Appeals Chamber Decision does not address this issue of discretion. Secondly, the evidence relating to the particularly sensitive issue of the acts or conduct of the accused, or of those in close proximity to the accused, will be in a document formulated by the party which calls the witnesses. Again, this is not merely a matter of formality. The prohibition in Rule 92bis against the use of written statements in relation to this particularly sensitive issue was designed to ensure the reliability of the evidence in relation to it, and to prevent the possibility of the statement placing the best gloss on the evidence which suits that party. It is no answer to such a possibility to say that the witness may be cross-examined on that statement. By that time, the material is already in evidence in an inadmissible and possibly unreliable form, in a way which is clearly directly inconsistent with the policy of Rule 92bis.
18. The interpretation which the Majority Appeals Chamber Decision has given to Rule 92bis – that a written statement tendered in lieu of oral testimony about the facts of the case does not fall within the terms of the phrase “the evidence of a witness in the form of a written statement in lieu of oral testimony” in that Rule – is certainly not a product of the natural and ordinary meaning of the words in the quoted phrase. Nor does it accord with the clear purpose of Rule 92bis as stated twice now by the Appeals Chamber. Nor, finally, does it comply with the guarantees provided by the Tribunal’s Statute and by customary international law.
19. No authority has been cited by the Majority Appeals Chamber Decision which would justify the interpretation which it gave to Rule 92bis. A greatly respected English judge, Lord Atkin, when – in the darkest days of World War II – his four colleagues in the House of Lords similarly sought to stand common sense on its head when interpreting a Defence Regulation in order to favour the Executive, said of the interpretation which they gave to the Regulation:37
I know of only one authority which might justify the suggested method of construction:38
“When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean, neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master – that’s all”.
The Appeals Chamber, although its decisions are not subject to further appeal, has no power to alter the ordinary meaning of words used in the Rules. The tender of the written statement of a witness to take the place of his oral testimony on the matters with which that statement deals, and notwithstanding that the witness has attested to its truth orally, necessarily falls within the phrase “the evidence of a witness in the form of a written statement in lieu of oral testimony” in Rule 92bis(A). Accordingly, it is admissible only insofar as it goes to proof of a matter other than the acts and conduct of the accused or (as a matter of discretion) the acts and conduct of those in close proximity to the accused.
20. The Majority Appeals Chamber Decision drives a horse and cart through the previous interpretation of Rule 92bis, and it seriously prejudices the accused in the ways already pointed out. I recently stated, in an appeal from the Rwanda Tribunal, that the very proper endorsement by the Security Council “in the strongest terms ” of the Completion Strategy of the Yugoslav Tribunal should not be interpreted as an encouragement by the Security Council to the Tribunal to conduct its trials so that they would be other than fair trials.39 It is necessary to repeat that statement in the present case in order to apply it directly to the Majority Appeals Chamber Decision. That Decision unfortunately follows the trend of other recent decisions of the Appeals Chamber which reverse or ignore its previously carefully considered interpretations of the law or of the procedural rules, with a consequential destruction of the rights of the accused enshrined in the Tribunal’s Statute and in customary international law. The only reasonable explanation for these decisions appears to be a desire to assist the prosecution to bring the Completion Strategy to a speedy conclusion. I have been unable to agree with those decisions because I do not believe that, in doing so, I would be performing my duties “honourably, faithfully, impartially and conscientiously ” as the solemn declaration which I took when I became a judge of the Tribunal requires me to do.40
21. The international community has entrusted the Tribunal with the task of trying persons charged with serious violations of international humanitarian law. It expects the Tribunal to do so in accordance with those rights of the accused to which reference is made in the previous paragraph. If the Tribunal is not given sufficient time and money to do so by the international community, then it should not attempt to try those persons in a way which does not accord with those rights. In my opinion, it is improper to take the Completion Strategy into account in departing from interpretations which had earlier been accepted by the Appeals Chamber where this is at the expense of those rights.
22. This Tribunal will not be judged by the number of convictions which it enters, or by the speed with which it concludes the Completion Strategy which the Security Council has endorsed, but by the fairness of its trials. The Majority Appeals Chamber Decision and others in which the Completion Strategy has been given priority over the rights of the accused will leave a spreading stain on this Tribunal’s reputation.
22. I would make the following orders:
1. The appeal is allowed.
2. The Trial Chamber is directed to consider the admission of each written statement – insofar as it does not deal with the acts and conduct of the accused, and subject to the discretionary exclusion of acts or conduct of those in close proximity to the accused – on the basis that the statement is admissible under Rule 92bis provided that the prosecution calls the witness to make a solemn declaration that he or she is the maker of the statement and that its contents are true and correct to the best of his or her belief.
Done in English and French, the English text being authoritative.
Dated this 21st day of October 2003,
At The Hague,
Judge David Hunt
[Seal of the Tribunal]