Judge Mohamed Shahabuddeen, Presiding
Judge David Hunt
Judge Mehmet Güney
Judge Fausto Pocar
Judge Theodor Meron
Mr Hans Holthuis
30 September 2002
DECISION ON ADMISSIBILITY OF PROSECUTION INVESTIGATOR’S EVIDENCE
Counsel for the Prosecutor:
Ms Carla Del Ponte, Prosecutor
Mr Geoffrey Nice
Ms Hildegard Uertz-Retzlaff
Mr Dirk Reyneveld
Mr Slobodan Milosevic (unrepresented)
Mr Steven Kay QC
Mr Branislav Tapuskovic
Mr Mischa Wladimiroff
1. Pursuant to a certificate granted by the Trial Chamber in accordance with Rule 73(B) of the Rules of Procedure and Evidence (“Rules”),1 the prosecution has appealed against the decision of the Trial Chamber excluding evidence from Mr Barney Kelly, an investigator employed by the Office of the Prosecutor (“OTP”). The evidence in question consisted of his report (entitled “Assessment of Racak Indictment Site by Barney Kelly”), which was based upon a body of material which included a summary by him of a large number of written statements made to a number of OTP investigators by prospective witnesses relating to what the Trial Chamber has accepted as a significant incident at Racak, in Kosovo, and in which he expressed his conclusions based upon those statements.2 The prosecution did not tender the witness statements which he had summarised and upon which his conclusions were based.
2. The reasons expressed by the Trial Chamber for its decision were these:
(i) The investigator would be giving hearsay evidence as to events which he had concluded the prospective witnesses had seen or heard.3
(ii) Such conclusions were of little or no probative value,4 as they trespassed upon the function of the Trial Chamber itself, and it is for the Trial Chamber to decide which evidence it will accept and which it will reject , and what conclusions should be drawn from the evidence.5 Such evidence is normally excluded.6
(iii) The investigator’s summary was effectively no more than a repetition of the prosecution case opened by counsel, and as such was of no assistance to the Trial Chamber.7
(iv) Another exhibit which had been admitted in the case, a report of the Organisation for Security and Co-operation in Europe (“OSCE”) entitled “Kosovo: As Seen, As Told”, was distinguishable upon the bases that, unlike the material in the present case, it had not been prepared for the purposes of this particular trial, and it had been prepared by a body independent of the parties and thus had a quality of independence.8
(vi) Reliance could not be placed upon the use of reports by police and investigators in criminal proceedings in The Netherlands and in Spain because of the different , essentially adversarial, nature of the proceedings in this Tribunal.9
(vii) The admission into evidence over objection of an investigation dossier and the report of a “Committee on Enforced Disappearances” (“CONADEP”) in an Argentinean trial10 was distinguishable upon the basis that, unlike the present case, the information given by the persons interviewed was included in the CONADEP report.11
3. These reasons were given orally, following a short adjournment after the conclusion of the submissions which had been made. The reasons are expressed succinctly, without the elaboration which would usually have been provided in a reserved decision. In these circumstances, it is appropriate to consider also views expressed by the Trial Chamber during the course of the submissions as representing its intention in relation to those succinctly expressed reasons. The Trial Chamber made it clear that –
(a) there was no intention to impugn the professionalism of the OTP investigator ;12
(b) the concern of the Trial Chamber in relation to the proposed evidence of the OTP investigator summarising the statements of the witnesses and expressing his conclusions based upon them was that it would not appear to the public as an independent assessment of the evidence which the makers of those statements could give;13
(c) there is no probative value in a summary which is little more than an outline of the prosecution case, to which has been added the investigator’s own conclusions ;14
(d) the situation might be different if the OTP were to tender the statements themselves ;15 and
(e) if the statements were tendered, the OTP investigator’s summary of them would be unnecessary, and his conclusions could be expressed by counsel as submissions by the prosecution based upon the statements in evidence.16
4. Counsel for the prosecution had earlier declined to tender the statements of the prospective witnesses pursuant to Rule 92bis,17 upon the basis that, if the witnesses were cross-examined, the prosecution would have difficulties in meeting the time limits which the Trial Chamber had fixed for the presentation of its case in chief.18 The Trial Chamber made it clear once more that it was for the prosecution to reduce the scope of its case to fit within the time which it had been allowed for its presentation .19
5. The grounds of appeal are stated in the following terms:20
“(1) The Trial Chamber erroneously found that the evidence of the summarizing witness had little or no probative value and therefore erroneously excluded the summarizing evidence;
(2) The Trial Chamber erred in the exercise of its discretion by rejecting the admission of the summarizing witness and, at the same time, restricting the time available for the presentation of the Prosecution’s case-in-chief.”
6. The prosecution says that the first ground raises an issue of law, and the second an error in the exercise of the Trial Chamber’s discretion.21
7. As to the characterisation of the evidence as having little or no probative value , the prosecution submits that the evidence was admissible as hearsay under Rule 89(C),22 and that it is relevant to the allegations contained in the indictment.23 Although it was hearsay evidence, the prosecution says, the Trial Chamber had “ a broad discretion to admit relevant hearsay if satisfied that the evidence is ‘ probative’, ie reliable for the purpose of proving the truth of its contents”, and that, for the purpose of assessing this, the Trial Chamber “may consider both the contents of the hearsay statement and the circumstances under which the evidence arose”.24 The OTP investigator had personally interviewed some of the witnesses, and the task he had undertaken was to assess all the statements for both consistency and any inconsistencies, and to determine whether they were confirmed or corroborated by independent forensic findings already in evidence.25 The prosecution concludes:
These indicia of reliability found in the underlying material for the summarizing evidence of Barney Kelly lend probative value to his hearsay testimony. The Trial Chamber apparently ignored these indicia when it made its decision to exclude this evidence.26
The prosecution asserts that any suggestion that summary evidence is ipso facto unreliable is clearly wrong,27 and it gives a number of instances where such evidence has already been admitted in the present case and where it has been given in other cases. The prosecution takes issue with what is said to be the suggestion of the Trial Chamber that the summarizing evidence of the OTP investigator lacks reliability because it was prepared for this litigation.28
8. As to the ground of appeal relating to the exercise of discretion, the prosecution says that the decision to exclude the evidence of the OTP investigator, “while at the same time imposing strict time limits on the presentation of the Prosecution’s case-in-chief”, will have the effect of placing Trial Chambers in “the untenable position of rendering Judgements without the fullest possible range of evidence available to them”,29 whereas “StChe use of summarizing evidence will provide a relatively rapid method for this Trial Chamber, and other Chambers, to ascertain the broadest possible scope of inculpatory and exculpatory evidence available to it”.30
9. The accused objected to the evidence at the trial,31 but he did not file any submissions in the appeal.
10. The Amici Curiae objected to the evidence at the trial,32 and they filed submissions opposing the prosecution’s appeal.33 They accepted the prosecution’s submission that Rule 89 provides a Trial Chamber with a discretion to admit hearsay evidence, but they point out that the exercise of such a discretion depends upon its probative value and relevance as determined by the Trial Chamber.34 That task of assessing and weighing the evidence must be left primarily to the Trial Chamber , they say, and the Trial Chamber’s decision is one which can be upset only in accordance with the judgment of the Appeals Chamber in the Prosecutor v Tadic Conviction Appeal.35 They interpret that judgment as saying that the only way in which the Trial Chamber’s determination of this issue can be challenged is if its decision is demonstrated to be unreasonable.36 Whatever the reliability of the summary prepared by the OTP investigator may be, they say, the reliability of the statements themselves can only be tested by cross -examination.37 And, they also say , even if there may be some indicia of reliability within the witness statements themselves, the conclusions which the OTP investigator has expressed in relation to what those statements say are for the Trial Chamber to determine for itself.38 As to the exercise of discretion generally, the Amici Curiae repeat that, as a witness of fact, the OTP investigator is not entitled to give evidence on the ultimate issue for the determination of the Trial Chamber.39
11. The prosecution, in its Reply, largely repeats the arguments which it made in its Interlocutory Appeal.40 It does , however, take issue with the description of the OTP investigator’s document as containing “conclusions”, which it says are “merely concise summaries of the information that Mr Kelly gathered about the events in Racak during his investigation”.41 It also argues that the evidence which the investigator would give does not relate to an ultimate issue in the case, because it “does not discuss the guilt or individual criminal responsibility of the accused Miloševic, nor any other legal issue”.42 The prosecution puts its investigator forward as an expert, as his proposed evidence is “the presentation of an overview of the complex Racak site, and the events that occurred there”.43 In the alternative , the prosecution concedes that, if the conclusions do trespass upon the Trial Chamber’s function, the Trial Chamber could admit only the summary and exclude the conclusions .44 It is said that no prejudice flows from the absence of cross-examination of the makers of the statements which the OTP investigator has summarised, because his evidence can be subjected to cross -examination as to the consistency of the accounts summarised and as to his methodology .45 In the absence of the fullest possible range of evidence available to the Tribunal, the prosecution asserts, none of its judgments, or those of any similar tribunal, “will ever withstand the test of historical scrutiny”.46
12. In its Reply, the prosecution requested an oral hearing of the appeal.47 It has not identified any particular issues upon which it wishes to put oral arguments or explained why it was unable effectively to put its arguments upon those issues in writing. Having regard to the very extensive written submissions already received from the prosecution (and the inordinate degree of repetition which they already contain), and to the practical difficulties in arranging a courtroom in which to hear oral submissions, the Appeals Chamber sees no reason to depart from its usual practice of determining interlocutory appeals on the written submissions filed by the parties.48
13. The prosecution relies upon the terms of Rule 89(C) in support of its argument that the evidence of its investigator was admissible. It is important to consider Rule 89(C) in its proper context:
(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.
(F) A Chamber may receive the evidence of a witness orally or, where the interests of justice allow, in written form.
14. At the outset, a distinction must be made between the two issues which arise in relation to the evidence sought to be given by the OTP investigator (Mr Kelly ) – one in relation to the content of that evidence, and the other in relation to the method by which he proposed to give it.
15. The content of his evidence consisted, first, of his summary of the contents of the written statements made to various OTP investigators by prospective witnesses for the purposes of these proceedings. That summary was being tendered by the prosecution to put into evidence the contents of those written statements in order to establish the truth of the statements which had been summarised. The prosecution did not wish to tender the statements themselves pursuant to Rule 92bis.49 Except in relation to the statements which had been taken by Mr Kelly himself, his evidence was not hearsay evidence of what those prospective witnesses had said to Mr Kelly; rather, it was hearsay evidence of the contents of those written statements (which are themselves hearsay).
16. The content of the evidence of the OTP investigator consisted also of the conclusions which he had himself drawn from the written statements which he had summarised. The Trial Chamber’s rejection of this evidence may be dealt with immediately. A passage from his “Assessment” quoted by the Amici Curiae is in these terms :
Based upon my investigations, professional experience, training and knowledge, the documents and material that I have read and assessed and according to witness statements , I have concluded that,
1) Serbian Forces on several occasions looted, ransacked and burned property in the village of Racak from June 1998.
2) Although there is no report of anyone being killed, Serbian Forces harassed and injured many Kosovar Albanian villagers during this period.
3) Serbian Forces surrounded Racak in the early hours on 15th January 1999 and attacked it in a horseshoe shaped operation. Over forty (40) unarmed Kosovar Albanian civilians were killed, most while trying to escape the attack. The killings occurred in six (6) locations comprising thirteen (13) scenes.
4) The attack is alleged to have been in retaliation for the recent killings by the KLA of Serbian Policeman in Dulije and Silvovo.
5) The KLA were present in Racak and had nine (9) soldiers killed that day with many others wounded.
17. The argument by the prosecution that these are not conclusions but “merely concise summaries of the information that Mr Kelly gathered about the events in Racak during his investigation” is rejected. Not only are they expressed to be conclusions, but they clearly are conclusions, based in large part upon events which Mr Kelly had accepted that the prospective witnesses had seen or heard. It is true , as the prosecution argues, that those conclusions do not bear directly upon the involvement of the accused in those events, but they are nevertheless facts which the Trial Chamber is obliged to consider and in relation to which it must make its own findings before coming to the issue of the accused’s guilt in relation to them . That task does not require expertise beyond that which is within the capacity of any tribunal of fact, that of analysing the factual material put forward by the witnesses. Whatever expertise the OTP investigator may claim to have in relation to such a task, the Trial Chamber was entitled to decline his assistance in the very task which it had to perform for itself.
18. The substantial issue in the appeal concerns the admissibility of the summary prepared by the OTP investigator as hearsay evidence of the contents of the written statements given to the OTP investigators by prospective witnesses. Hearsay evidence has been given detailed consideration by the Appeals Chamber on three occasions. The first two were decided before the adoption of Rule 92bis.
(1) In Prosecutor v Aleksovski,50 the Appeals Chamber stated –
(a) that Rule 89(C) gives to the Chamber a broad discretion to admit relevant hearsay evidence,51
(b) that it is admitted to prove the truth of its contents,
(c) that it should be admitted if it has been shown to be reliable,
(d) that for this purpose the Chamber may consider both the content of the hearsay statement and the circumstances under which the evidence arose, and
(e) that the probative value of a hearsay statement will depend upon the context and character of the evidence in question.
The Appeals Chamber also stated that the absence of the opportunity to cross-examine the person who made the statements, and whether the hearsay is “first-hand” or more removed, are relevant to the probative value of the evidence.52 It also acknowledged that, although it depends upon the infinitely variable circumstances of the particular case, the weight or probative value to be afforded to hearsay evidence will usually be less than that given to the testimony of a witness who has given it under a form of oath and who has been cross-examined.53
(2) In Prosecutor v Kordic & Cerkez,54 the Appeals Chamber stated that the broad discretion given by Rule 89(C) is nevertheless 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 the general principles of law; the exercise of discretion under Rule 89(C) ought therefore to be in harmony with the Statute and the other Rules to the greatest extent possible.55 The Appeals Chamber also stated 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; if the evidence meets none of 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.56 The reliability of the hearsay statement is therefore relevant to its admissibility, and not just to its weight.57 To some extent, the Kordic & Cerkez Decision was dependent upon the preference in the Rules at the time for “live, in court” testimony.58
(3) The decision of the Appeals Chamber in Prosecutor v Galic,59 given after the Trial Chamber’s decision in the present case, is also relevant to the present appeal. In December 2001, the preference for “live, in court” testimony was qualified, and evidence is now permitted by Rule 89(F) to be given in written form “where the interests of justice allow”.60 The qualification of that preference was accompanied by the introduction of Rule 92bis, which permits the admission into evidence of witness statements in lieu of oral testimony where they go to proof of a matter other than the acts and conduct of the accused as charged in the indictment, provided that certain conditions as to form are complied with; however, after hearing the parties, the Trial Chamber may nevertheless require the witness to appear for cross-examination. Rule 92bis was introduced as a result of the Kordic & Cerkez Decision,61 and it identifies a particular situation in which, once the provisions of Rule 92bis 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.62 Rule 92bis as a whole is concerned with one very special type of hearsay evidence which would previously have been admissible under Rule 89(C), written statements given by prospective witnesses for the purposes of legal proceedings.63
Because very serious issues are raised as to the reliability of such statements (which are discussed in detail in the Galic Decision),64 the Appeals Chamber held that a party cannot be permitted to tender such a statement under Rule 89(C) in order to avoid the stringency of Rule 92bis, and that the purpose of Rule 92bis was to restrict the admissibility of this very special type of hearsay to that which falls within its terms.65 If the hearsay evidence sought to be admitted consists of written statements given by prospective witnesses for the purposes of legal proceedings, then it is admissible only if it complies with Rule 92bis, including the availability of the witnesses for cross-examination if the Trial Chamber so orders. By analogy, the Appeals Chamber said, Rule 92bis is the lex specialis which takes the admissibility of such written statements of prospective witnesses and transcripts of evidence out of the scope of the lex generalis of Rule 89(C),66 although the general propositions which are implicit in Rule 89(C) – that evidence is admissible only if it is relevant and that it is relevant only if it has probative value – remain applicable to Rule 92bis.67
To avoid any misunderstanding, however, it is perhaps necessary to add that there is nothing in the Galic Decision which prevents a written statement given by prospective witnesses to OTP investigators or others for the purposes of legal proceedings being received in evidence notwithstanding its non-compliance with Rule 92bis – (i) where there has been no objection taken to it, or (ii) where it has otherwise become admissible – where, for example, the written statement is asserted to contain a prior statement inconsistent with the witness’s evidence.68
19. Following the principles laid down in both the Kordic & Cerkez Decision and the Galic Decision to the OTP investigator’s summary of the contents of the written statements made to OTP investigators by prospective witnesses, it appears that the prosecution was indeed seeking to avoid the stringency of the requirement under Rule 92bis that the witnesses must be produced for cross-examination if the Trial Chamber so orders.69 Were the Appeals Chamber therefore to reconsider the admissibility of the OTP investigator’s proposed evidence, it would rule that the contents of the written statements which the OTP investigator had summarised, and which had not been admitted into evidence under Rule 92bis, were inadmissible under Rule 89(C).70
20. In those circumstances, it would be unnecessary for the Appeals Chamber to consider whether the prosecution has demonstrated any error in the ruling which the Trial Chamber gave excluding the proposed evidence by the OTP investigator. However, as the issues have been fully debated, the Appeals Chamber considers it appropriate to state that it is not satisfied that the Trial Chamber erred in the ruling which it made. The reasons for that conclusion follow.
21. No question arises in this appeal as to the admissibility, in principle, of what has been called summarising evidence – the summarising of material which is relevant to the issues of the case. It has been admitted on many occasions in appropriate cases. Whether it is appropriate in the particular case for the evidence to be admitted will depend upon the circumstances of that case. If the material being summarised is uncontroversial, there will clearly be a considerable saving of time if that material is summarised either in a document or by one witness rather than given by many witnesses. In every case, the basic issue is whether the material being summarised would itself be admissible. A summary made by one person of material provided by another person is necessarily hearsay evidence in character. The admissibility of hearsay evidence pursuant to Rule 89(C) should not permit the introduction into evidence of material which would not be admissible by itself. As Rule 92bis requires the witness statements to be admitted into evidence and the witness to be available for cross-examination if the Trial Chamber so orders, the material summarised in the present case was not admissible as hearsay evidence.
22. Where the material summarised consists of statements made by others (other than written statements by prospective factual witnesses for the purposes of legal proceedings ), so that the material summarised would be admissible pursuant to Rule 89(C), the summary still consists of hearsay evidence of those statements made by others, and the reliability of the statements made by those other persons (which are themselves hearsay) is relevant to the admissibility of the summary. As stated in the Aleksovski Decision (in a passage upon which the prosecution did not rely),71 the Trial Chamber must consider whether the summary is “first-hand” hearsay (that is, whether the persons who made the statements summarised personally saw or heard the events recorded in their statements), and whether the absence of the opportunity to cross-examine those persons affects the reliability of their statements. Contrary to the submission of the prosecution, the opportunity to cross-examine the person who summarised those statements does not overcome the absence of the opportunity to cross-examine the persons who made them. In different cases, of course, the statements may contain their own indicia of reliability which does overcome the absence of that opportunity.
23. The Trial Chamber must also be satisfied as to the reliability of the method by which those statements have been summarised. This is an issue which can be tested by the cross-examination of the person who made the summary. The fact that the summary has been prepared for the purposes of the particular litigation may be relevant to whether it should be admitted, but, as the prosecution submits , it would be quite wrong to suggest that such a summary is ipso facto unreliable . The Trial Chamber, however, did not make any such suggestion. What the Trial Chamber in effect said was that, where the summary of material is prepared by an employee of the party who seeks to rely upon the summary (particularly where the accused is unrepresented by counsel):
(i) a summary of that material should not be regarded as reliable unless the material itself is in evidence so that the Trial Chamber may make its own assessment of the material;
(ii) were the Trial Chamber to rely upon the summary without having the opportunity to make its own assessment of its reliability, the public perception of a verdict based upon that summary would be that the verdict was unsafe; and
(iii) if the statements were admitted, the summary would become unnecessary.
24. The Appeals Chamber is not satisfied that, in the particular circumstances of this case, the Trial Chamber erred in taking that approach in relation to the summary which the OTP investigator had made.72 Contrary again to the submission of the prosecution,73 in the circumstances of this case it is not an answer to the concern expressed by the Trial Chamber that the witness statements being summarised were available to the accused and to the Trial Chamber itself to check the reliability of the summary . The Trial Chamber was entitled to take the view that it could not safely rely upon the Defence to follow up these issues, where the accused is unrepresented by counsel and the Amici Curiae have no instructions from the accused, despite the fact that all of them have participated in the cross-examination of witnesses . It would of course be quite wrong for the Trial Chamber, in determining the issues in the trial, to refer to material which may be available to it but which is not in evidence, and it was entitled to take the view that, in the circumstances of this case, it was inappropriate for the Trial Chamber itself to cross-examine upon such material when that material was not in evidence.74 It is in relation to these deficiencies that the Trial Chamber’s rejection of the summary as having little or no probative value was in part intended. The first ground of appeal is rejected.
25. The arguments put forward by the prosecution in support of its second ground of appeal – that the Trial Chamber erred in the exercise of its discretion by rejecting the summary prepared by the OTP investigator and, at the same time, restricting the time available for the presentation of its case-in-chief – constitute a further , albeit indirect, attempt to argue that the Trial Chamber had erred in the exercise of its decision to impose a time limit within which the prosecution had to complete its case-in-chief. It is clear, from the repeated references which the prosecution has made in its submissions to the need for “the fullest possible range” and “the broadest possible scope” of evidence available to be admitted, that it is again disputing the right of the Trial Chamber to require it to reduce the scope of its case as it did by the decision under appeal.
26. The time limitation and the scope of the prosecution case were issues debated earlier in the trial. The time limit of fourteen months was imposed on 7 April last, and was the subject of an unsuccessful application for leave to appeal.75 The view which the Trial Chamber had expressed was that – subject to its power to reconsider its decision –
(a) it was necessary for the anticipated length of the prosecution case to be reduced so as to make the trial manageable;
(b) this was not the case in which it was appropriate to establish every serious violation for which evidence was available;
(c) the prosecution would have fourteen months in which to present its case; and
(d) as a consequence, it had to reduce the number of incidents to be proved to those which it could prove within that period.76
When refusing leave to appeal from that decision, the Bench of the Appeals Chamber held that, in the circumstances of this case, which were exceptional, the Trial Chamber was entitled to take the course it did, and that no error in the exercise of its discretion had been established.77 It was emphasised that a Trial Chamber could always reconsider a decision it had previously made, and not only because of unforeseen circumstances,78 but that whether or not a Trial Chamber does reconsider a decision is itself a discretionary matter.79
27. When the Trial Chamber decided to impose a time limit on the prosecution case , it had already determined that – because the accused was vigorously contesting the prosecution case in relation to the Kosovo indictment that the deportations and killings there were a result of attacks by the Serb forces and not (as he asserted ) the result of terrorism attacks by the Kosovo Liberation Army and bombing by the NATO forces – the evidence of the “crime base” witnesses in the present case related to a critical element of the prosecution case and therefore that a fair trial required those witnesses to attend for cross-examination if their Rule 92bis statements were tendered.80 At that time, the Trial Chamber had well in mind the effect which the need for Rule 92bis witnesses to be cross-examined would have on the time which the prosecution case would take .81 It could not be suggested that the Trial Chamber overlooked the connection between the two issues to which it had earlier drawn attention. Indeed, the Trial Chamber stated expressly at the time it rejected the OTP investigator’s evidence that it was conscious of the constraints placed upon the prosecution by the time limitation.82
28. In these circumstances, the prosecution has not demonstrated that the Trial Chamber misdirected itself either as to the principle to be applied, or as to the law which is relevant to the exercise of the discretion, or that it has given weight to extraneous or irrelevant considerations, or that it has failed to give weight or sufficient weight to relevant considerations, or that it has made an error as to the facts upon which it has exercised its discretion.83 No error in the exercise of that discretion has been established. The second ground of appeal is also rejected.
29. The Appeal is dismissed, Judge Shahabuddeen dissenting in part.
Done in English and French, the English text being authoritative.
Dated this 30th day of September 2002,
At The Hague,
Judge Mohamed Shahabuddeen
Judge David Hunt
Judge Mehmet Güney
Judge Fausto Pocar
Judge Theodor Meron
Judge Shahabuddeen appends a partial dissenting opinion to this Decision
[Seal of the Tribunal]