Judge Richard May, Presiding
Judge Patrick Robinson
Judge O-Gon Kwon
Mr. Hans Holthuis
30 June 2003
The Office of the Prosecutor
Mr. Geoffrey Nice
Mr. Dermot Groome
Ms. Hildegard Uertz-Retzlaff
Mr. Steven Kay
Mr. Branislav Tapuskovic
Mr. Timothy McCormack
1. On 10 January 2003, the Prosecution filed a “Prosecution Motion for the Admission of Transcripts in Lieu of Viva Voce Testimony Pursuant to Rule 92 bis (D)” (“Motion”), in which it sought the admission of transcripts (and accompanying exhibits ) of evidence given by 11 witnesses who previously testified in the Krnojelac and Kunarac cases1 in lieu of viva voce evidence. Furthermore, the Prosecution sought an order that the transcripts be admitted without the provision for cross-examination, as allowed for under Rule 92 bis (E) of the Rules. The evidence deals exclusively with crime base events alleged to have occurred in the Foca municipality. It is said not to deal with the acts and conduct of the accused, nor to go to a critical element of the accused’s case, such that cross-examination by the accused would be appropriate.
2. On 3 February 2003, the amici curiae filed the “Amici Curiae Observations on the Prosecution Motion for the Admission of Transcripts in Lieu of Viva Voce Testimony Pursuant to Rule 92 bis (D), filed 10 January 2003” (“Observations ”), in which it is asserted that whilst the transcripts do not contain evidence properly characterised as going to the acts and conduct of the accused, the Trial Chamber should exercise its discretion not to admit the transcripts and to require all witnesses to attend to give all their evidence as viva voce evidence. It is further argued that, should the Chamber decide to admit the transcripts under Rule 92 bis (D), the witnesses should be required to attend for cross-examination.
3. On 10 February 2003, the Prosecution filed the “Prosecution’s Reply to Amici Curiae Observations on the Prosecution Motion for the Admission of Transcripts in Lieu of Viva Voce Testimony Pursuant to Rule 92 bis (D)” (“Reply”).
4. On 28 April 2003, the Chamber heard oral argument on the Motion. The Trial Chamber has considered all the arguments of the parties.
5. On 1 May 2003, the Prosecution filed a partly confidential “Addendum to Prosecution Motion for the Admission of Transcripts in Lieu of Viva Voce Testimony Pursuant to Rule 92 bis (D)” (“Addendum”), in which it sets out areas on which the witnesses were previously cross-examined of relevance to the cross-examination of the Accused in this case.
6. Finally, on 8 May 2003, the Trial Chamber rendered the following oral ruling on the Motion:
Th[is]…ruling concerns the Foca transcript evidence and the admissibility…of transcripts …under Rule 92 bis. All the…transcripts…are admissible under the Rule. The following witnesses must attend for cross-examination: B-1015, B-1533, B-1618, B -1120, B-1536. By a majority, Judge Robinson dissenting, the following are admitted without cross-examination: B-1542, B-1543, B-1121, B-1537, B-1538, B-1540. Written reasons for this ruling will follow.
The following is the reasoned decision of the majority of the Trial Chamber. Judge Robinson will append a partial dissenting opinion.
7. Rule 92bis relates to the proof of facts by means other than by oral evidence, the other permitted forms being evidence in the form of a written statement (Rule 92bis(A)), and transcripts of evidence provided by witnesses in other Tribunal proceedings (Rule 92bis(D)).
8. The relevant provisions of Rule 92bis are as follows:
Rule 92 bis
Proof of Facts other than by Oral Evidence
(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.
9. As a Trial Chamber has observed, Rule 92 bis (D) was intended to avoid the need for witnesses to reappear before the Tribunal to present similar testimony, thereby avoiding unnecessary expense and reducing the length of trials, in situations where this will not infringe upon the rights of an accused.2
10. As the Appeals Chamber in Galic3 made clear, there are three steps in any decision under Rule 92 bis:
(i) Whether the transcript is capable of admission under Rule 92 bis ( if it goes to proof of acts and conduct of the accused, as charged in the indictment, it is inadmissible);
(ii) If capable of admission, whether there are any other reasons why, in the exercise of the Trial Chamber’s discretion, the transcript ought not to be admitted; and
(iii) If the transcript is admissible, whether the witness whose evidence is contained in the transcript should be required to appear for cross-examination.
11. This Chamber held in a Decision earlier in this case4 that the phrase “acts and conduct of the accused” is a “plain expression and should be given its ordinary meaning: deeds and behaviour of the accused”.5 The Galic Decision provides that there is a distinction between (a) the acts and conduct of those others who commit the crimes for which the indictment alleges that the accused is individually responsible, which are capable of admission ; and, (b) the acts and conduct of the accused as charged in the indictment which establish his responsibility for the acts and conduct of those others, which are excluded from the procedure laid down in the Rule.6 The Galic Decision further provides7 that Rule 92bis(A) (and by analogy Rule 92bis(D)) excludes any written statement (or transcript) which goes to proof of any act or conduct of the accused upon which the prosecution relies to establish:
(a) that the accused committed (that is, personally physically perpetrated) any of the crimes charged himself or herself, or
(b) that he planned, instigated or ordered the crimes charged, or
(c) that he otherwise aided and abetted those who actually did commit the crimes in their planning, preparation or execution of those crimes, or
(d) that he was a superior to those who actually did commit the crimes, or
(e) that he knew or had reason to know that those crimes were about to be or had been committed by his subordinates, or
(f) that he failed to take reasonable steps to prevent such acts or to punish those who carried out those acts.
12. Where the Prosecution case is that an accused participated in a joint criminal enterprise (as it is in this case), and is therefore liable for the acts of others in that joint criminal enterprise, Rule 92bis also excludes any written statement or transcript which goes to proof of any act or conduct of the accused upon which the prosecution relies to establish:
(a) that he had participated in that joint criminal enterprise, or
(b) that he shared with the person who actually did commit the crimes charged the requisite intent for those crimes.8
13. Furthermore, the Decision provides that the “conduct” of an accused includes his or her relevant state of mind, so that a written statement which goes to proof of any act or conduct of the accused upon which the Prosecution relies to establish that state of mind, is excluded under Rule 92 bis. In order to establish that state of mind, however, the Prosecution may rely upon the acts and conduct of others which have been proved by Rule 92bis statements. The “conduct” of an accused person may also in the appropriate case include his omission to act.9
14. As noted, if a statement is capable of admission under Rule 92 bis, the Trial Chamber must still exercise its discretion as to whether to exclude it. Rule 92bis (A) provides a non-exhaustive set of factors in favour and against admission of the statement in lieu of viva voce testimony. The relevant factor in favour of admitting the evidence in this case is contained in paragraph (A)(i)(a) of the Rule, which concerns circumstances in which the evidence “is of a cumulative nature, in that other witnesses will give or have given oral testimony of similar facts”.
15. On the other hand, the Appeals Chamber stated in Galic that
…the proximity to the accused of the acts and conduct which are described in the written statement” is “relevant to the exercise of the Trial Chamber’s discretion in deciding whether the evidence should be admitted in written form at all. 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 that it would not be fair to the accused to permit the evidence to be given in written form.10
1. The admissibility of the transcripts
16. The evidence contained in the transcripts of the eleven witnesses who are the subject of this Motion may be conveniently divided into three categories. The first category concerns the witnesses identified as B-1542 and B-1543. These witnesses testified about the takeover of Foca, as well as the rape and mistreatment of themselves and others. The Prosecution asserts that “there can be no reasonable view that the evidence of these two women is proximate in any way to the direct acts of the accused”.11
17. The second category of evidence concerns the witnesses identified as B-1015, B-1533, B-1618, B-1120 and B-1536. The testimony of these witnesses concerns the circumstances surrounding the takeover of Foca and conditions in the KP Dom detention facility. Again, it is asserted by the Prosecution that none of their testimony is sufficiently proximate to the acts and conduct of the Accused to render it inadmissible under Rule 92 bis (D).12
18. The third and final category of evidence concerns the witnesses identified as B -1121, B-1537, B-1538 and B-1540. These witnesses testified about the outbreak of conflict in Foca, as well as conditions in the KP Dom detention facility. The Prosecution again argues that none of their testimony is sufficiently proximate to the acts and conduct of the Accused to render it inadmissible under Rule 92 bis (D ).13
19. It has not been argued that any of the evidence contained in the transcripts goes to the acts and conduct of the accused, such that it would be inadmissible under Rule 92 bis (D).
20. The Accused has, however, stated in oral argument his opposition to the admission of any kind of transcript and submits that “everything is of substance, because everything that took place on the territory of the former Yugoslavia you link to Serbia, its institutions, and to myself personally”.14
21. The amici curiae argue that, whilst the contents of the transcripts do not contain material that is properly characterised as going to the acts and conduct of the Accused,15 the Trial Chamber should exercise its discretion not to admit these transcripts into evidence. The arguments offered to support this are ostensibly as follows: that to do so would violate Article 21(2) of the Tribunal’s Statute, in the sense that the witnesses would not have been heard publicly in the context of this Accused’s trial; and, that there is no evidence before this Trial Chamber that the testimony of the witnesses was accepted as reliable evidence of probative value by the previous Trial Chambers.16
22. During oral argument, Mr. Kay stated that Rule 92 bis is “a rule of discretion that we submit should be used sparingly”, noted “the Rule itself was not a founding rule of this Tribunal” and claimed that “the principle of the statute that gives birth to the Tribunal in the first place may become obscured for reasons of expediency and thereby deprive an accused of that important right which underwrites the whole process of the fair trial.”17
23. The Trial Chamber does not accept the validity of this argument. Whether or not a Rule was created at the first plenary session of this Tribunal, or whether it was inserted into the Rules of Procedure and Evidence later, it is equally valid, so long as it is consistent with the Statute of the Tribunal and not contrary to any laws that bind the Tribunal in the proper exercise of its jurisdiction. Article 15 of the Statute sets out the rule-making powers of the Judges, whilst Rule 6 of the Rules further regulates the procedures to be followed in the amendment and creation of the Rules. There is nothing to suggest that Rule 92 bis, as a Rule created recently, has any less validity.
24. Furthermore, the right to examine, or have examined, witnesses against him, is not an absolute one, as recognised by the Appeals Chamber. In the Galic Decision, the Appeals Chamber stated:
[T]he intention of Rule 92 bis…(together with concurrent amendments to Rules 89 and 90) was to qualify the previous preference in the Rules 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….Far from being an “exception” to Rule 89…, Rule 92 bis identifies the particular situation in which, once the provisions of Rule 92 bis 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.18
25. This is not the first time the Appeals Chamber has concluded that in this jurisdiction there are circumstances in which evidence may be presented in written form instead of requiring it to be presented viva voce.19 Whilst it may be that the founders drafting the Tribunal’s Rules had in mind that all evidence would be presented orally, the experience of the trials has necessitated revision of that view. The introduction of Rule 94 ter (a Rule that preceded Rule 92 bis) allowed for the admission of affidavits or formal statements in lieu of oral evidence as long ago as 1998. The length of the trials, the amount of evidence, and the complexity of the proceedings in this jurisdiction, has made it necessary for Trial Chambers to consider expeditious methods for the presentation of evidence, whilst at all times ensuring that the trial is fair – both to the accused and Prosecution. The proper application of Rule 92 bis is one such method by which this may be achieved.
26. The Trial Chamber holds that the transcripts are admissible under Rule 92 bis . The evidence contained therein does not go to the acts and conduct of the Accused. It is rather “crime base” evidence, as it is called, and, as the Appeals Chamber in Galic20 said, Rule 92 bis was primarily introduced for such evidence. It is evidence of a cumulative nature, dealing with the takeover of a municipality in Bosnia and Herzegovina by Serb forces: much oral evidence has already been given on this topic, i.e. the takeover of municipalities in Bosnia and Herzegovina. Furthermore, the evidence is not so pivotal to the Prosecution case, or so proximate to the Accused (or “linked” to him, as he argued), that the Trial Chamber should consider exercising its discretion to exclude the transcripts from admission. Whether the earlier Trial Chamber accepted the evidence is irrelevant.
2. Whether the witnesses should appear for cross-examination
27. The Prosecution submits that the appropriate test for determining whether a witness should attend for cross-examination in these circumstances is whether “renewed cross -examination can reasonably be believed to assist the Chamber in its determination of a significant issue in this case”.21
28. The Prosecution concedes,22 quite properly, that witnesses B-1015, B-1533, B-1618, B-1120 and B-1536 should attend for cross-examination on the ground that, although thoroughly cross-examined, they gave evidence of the participation of the JNA (or Serb paramilitaries) in the takeover of Foca, which relates to a live issue between the parties, i.e. the role of the JNA and Serb paramilitaries in the takeover of municipalities and villages in Croatia and Bosnia and Herzegovina. These witnesses will be required to attend for cross -examination.
29. The Prosecution submitted that cross-examination should be limited to the areas of evidence the Accused has shown to be in issue. However, the Trial Chamber, in the interests of justice and securing a fair trial, holds that the cross-examination should not to be so limited. Accordingly, the Accused may cross-examine these witnesses on the evidence they gave in the previous proceedings, limited as always by the requirement to avoid repetition and the constraints of time imposed by the Trial Chamber.
30. The remainder of this Decision, therefore, is concerned with the six witnesses, B-1542, B-1543, B-1121, B-1537, B-1538 and B-1540, who the Prosecution do not concede should be required to attend for cross-examination. The following is the Decision of the majority, Judge Robinson dissenting.
31. The amici submit that the Accused has a right to examine all the witnesses against him under Article 21 (4)(d) of the Statute and that since the case against the Accused is different to that against the accused in the earlier proceedings and earlier counsel were not instructed by him, all the remaining six witnesses should appear for cross-examination.23 The Accused for his part, stated that he might wish to cross-examine the witnesses, including rape victims, on a range of issues, if “his information” suggests that their evidence might be called into question.24
32. On the other hand, the Prosecution submits that the witnesses were subjected to extensive cross-examination by counsel for the accused in Krnojelac who, as commander of the KP Dom detention facility, had substantially the same interests as this Accused in opposing and contesting the evidence of the witnesses.25 (Four of the remaining six witnesses gave evidence in Krnojelac.) Similarly, the witnesses who gave evidence in Kunarac were also subjected to exhaustive and effective cross-examination.26 (Two of the remaining six witnesses gave evidence in Kunarac.)
33. They all deal with events during the conflict in Foca. Dealing with the individual witnesses, the Prosecution submits as follows. Two of them, B-1542 and B-1543, were victims of multiple rapes and the Prosecution submits that they should not be required to attend for cross-examination because of the impact of having to reappear.27 The others, B-1121, B-1537, B-1538 and B-1540, all deal with the outbreak of hostilities in Foca and conditions in the KP Dom, and were subjected to thorough cross-examination : they do not give evidence about important issues raised by the Accused and should therefore not be required to attend for cross-examination.28
34. The Prosecution submits that analysis of the cross-examination of the witnesses in the previous cases, as set out in Annex A of the Motion, was extensive:29 all were asked questions about their previous statements to the Prosecution or public security section.30 They were thus cross-examined about inconsistencies in their previous statements and the credibility of their evidence (matters about which the Accused has consistently cross-examined other witnesses in this trial). Those who were detained in the KP Dom were cross -examined about conditions there.31 Witnesses were also cross-examined about such matters as the distribution of weapons to Muslims, the Muslim crisis staff and the SDA rally in Foca before the conflict 32 (again matters similar to those raised by this Accused with other witnesses).
35. In considering the test to be applied, the Trial Chamber in Sikirica stated that among the matters for consideration were whether the transcript went to proof of a critical element of the Prosecution’s case against the accused and whether the cross-examination in the other proceedings dealt adequately with the issues relevant to the defence in the current proceedings.33 The Trial Chamber in the present case added a further matter for consideration. When dealing with a request to have written statements admitted under Rule 92 bis, the Trial Chamber ordered that the witnesses be subject to cross-examination since the evidence related to “live and important issue between the parties, as opposed to a peripheral or marginally relevant issue” 34
36. Furthermore, in Galic, the Appeals Chamber said that the proximity to the accused of the acts and conduct described in the evidence is relevant to the question of whether the witness should be required to attend for cross-examination.35
37. The ratio for admitting transcripts without cross-examination was expressed by the Appeals Chamber in Aleksovski (a Decision taken before the introduction of Rule 92 bis). The issue was whether a transcript of the evidence of a witness in the Blaskic case should be admitted without cross-examination in Aleksovski . The Chamber stated:
In fact…the witness was extensively cross-examined in the Blaskic trial, and there is a common interest between the Defence in the two cases. Nonetheless, the fact remains that, if the evidence is admitted upon a hearsay basis, this accused will be denied the opportunity of cross-examining the witness. However, this is the case with the admission of any hearsay evidence: the opposing party loses the opportunity to cross-examine the witness. The disadvantage is tempered in this case by the cross-examination in Blaskic…36
38. Thus the Appeals Chamber found that a ground for admitting the transcript without cross-examination was extensive cross-examination by an accused with a common interest.
39. Therefore, the Trial Chamber must first consider the nature of the evidence and whether it relates to a critical element in the Prosecution case or a live and important issue between the parties. The Trial Chamber accepts that this is purely “crime base” evidence relating to the takeover of a municipality and, as such, not involving such a critical element or important issue as to require further cross-examination. In so far as it relates to an issue between the parties, it is not of such a nature that it cannot be adequately covered by cross-examination in the earlier proceedings.
40. The Trial Chamber is satisfied that the evidence is not in any way proximate to the Accused and therefore cross-examination is not required on that score.
41. The Trial Chamber, next, finds that the cross-examinations in the earlier proceedings were undertaken on behalf of an accused with a substantially common interest to serve as this Accused, namely to oppose and contest the evidence about the takeover of Foca and to question the credibility of the witnesses. Neither the Accused, nor the amici, have identified any specific matters as to which the interests of this and the other accused differ such that the witnesses should be required to attend for cross-examination in this trial. (the difference in the Prosecution cases relates to the responsibility of the accused and not the crime-based evidence concerning Foca).
42. Finally, the Trial Chamber accepts the Prosecution submission that the cross-examination in the previous cases was adequate. It was certainly extensive, as the comparative assessment above shows.37 While quantity is not a measure of the quality of cross-examination, the measurement of adequacy cannot be calculated to a nicety. Suffice it to say that in the present case, the length and subject-matter indicates that cross-examination was adequate.
43. These reasons lead the majority of the Trial Chamber to allow this evidence to be admitted without cross-examination. However, there is a further consideration in respect of the two victims of multiple rape, B-1542 and B-1543.
44. An argument raised by the Prosecution with respect to recalling these two witnesses is the impact of requiring them to attend again for cross-examination. It is submitted that, consistent with Article 22 of the Statute, where the Accused’s right to face his accuser would not be violated, the Trial Chamber should take into consideration the traumatic effect of requiring witnesses to re-attend for cross-examination.38
45. In respect of the contention that these two witnesses should not be called because of the traumatic effect upon them, the amici argued that any witness who suffered a crime may be traumatised by the experience in a courtroom, whether they be victims of rape or other crimes. It was submitted that whilst these issues are important, the Accused has a right to cross-examine these witnesses in this trial and this right outweighs such considerations. 39
46. The Trial Chamber recalls that the protection and privacy of witnesses appearing before it is an affirmative one.40 In determining the appropriate protective measures in a case the Trial Chamber must balance the right of the accused to a fair and public trial and the protection of victims and witnesses.41 These propositions are uncontroversial. What is clear from the Statute and Rules of the Tribunal is that while the rights of the accused are given primary consideration, the need to protect victims and witnesses is important. The case law of the Tribunal bears out this proposition.42 The reasoning for this may, in part, be explained by the complexities of the Tribunal’s jurisdiction, the particular dangers that attach to those who give evidence in proceedings before it and the lack of a comprehensive witness protection programme at the Tribunal’s disposal. The provisions of the Tribunal’s Statute and Rules, as well as its jurisprudence, thus show that the Tribunal attaches weight to the importance of striking an appropriate balance between the sometimes competing interests of an accused and victims and witnesses.
47. These considerations are equally applicable to a determination of whether a witness should be recalled for cross-examination in the circumstances of this Motion. The Trial Chamber has considered these issues in coming to its Decision. The trauma suffered by rape victims in giving evidence is now well recognised. In this case we are dealing with victims of multiple rapes who have been significantly traumatised by their experiences. They have given evidence once and have been cross-examined (in one case for much longer than direct examination).
48. In the view of the majority it would be unreasonable to insist on their returning for further cross-examination and thereby to run the risk of further traumatisation. Cross-examination should not be permitted mechanically and as a matter of course. Where the rights of the accused are protected, as in this case, by earlier cross -examinations, the balance, as here, should be struck on the side of the victims and witnesses. In the case of these two witnesses, B-1542 and B-1543, this is a further reason for not requiring them to return for cross-examination.
49. One final observation is worth making. In circumstances where issues arise later in the trial that call into question aspects of the testimony given in prior proceedings, the witness can be called and subjected to cross-examination. This is a discretion that always resides with the Trial Chamber.
50. These constitute the reasons of the Trial Chamber for its ruling. The dissenting opinion of Judge Robinson on this point is appended to this Decision.
Done in English and French, the English text being authoritative.
Richard May Presiding
Dated this thirtieth day of June 2003
At The Hague
[Seal of the Tribunal]
1. The structure established by Rule 92 bis for the proof of written statements (Rule 92 bis (A)) and transcripts (Rule 92 bis (D)) other than by oral evidence is that a determination is first made as to their admissibility, leaving the Trial Chamber thereafter with a discretionary power to decide whether the witness should attend for cross-examination. In the instant case, I joined the Chamber’s decision that all the transcripts were admissible under Rule 92 bis (D). In contradistinction to the Chamber, however, I was of the view that all the witnesses whose evidence in previous proceedings was being introduced into this trial should be subject to cross-examination. The Chamber, on the other hand, decided that the transcripts of witnesses B-1542, B-1543, B-1121, B-1537, B-1538, and B-1540 would be admitted without cross-examination.
2. In this Opinion, I explain why the discretionary power given to the Chamber by Rule 92 bis (E) should be exercised in favour of cross-examination in the vast majority of Motions for the admission of transcripts. The explanation is all the more necessary because the dissent is largely inspired by a position of principle that I have now, after a long period of disquiet about the application of Rule 92 bis (D), reached about the requirement for cross-examination of transcript witnesses – a position that is admittedly different from earlier decisions of this Chamber that I have supported.43
3. Quite apart from the position of principle, the dissent is also explained by some specific factors that highlight the need for cross-examination of these six transcript witnesses.
4. There is a difference between the failure to allow cross-examination of a witness whose statement is admitted under Rule 92 bis (C) and the failure to allow cross-examination of a witness whose transcript evidence is admitted under Rule 92 bis (D). Whereas in the first situation, there is no cross-examination simpliciter, in the second, not only is there no cross-examination by the accused in the ongoing trial of the testimony given in examination-in-chief in the previous trial (that situation being somewhat similar to the lack of an opportunity to cross-examine the maker of a statement admitted under Rule 92 bis (C)), but cross -examination of the witness in the previous trial becomes the cross-examination of the accused in the current case; the result is that the case of the accused in relation to the issues raised in the previous case, and which are also issues in the current case, is assessed, not on the basis of his own challenge to the witness’s evidence, but on the basis of a cross-examination in which he has had no input; certainly, counsel for the accused in the previous case would have received no instructions from the accused in the ongoing case. The case of the accused in the ongoing trial becomes encumbered by cross-examination from a previous case, in the preparation of which he has had no role.
5. In my view, this process of transmutation by which the cross-examination of a witness on behalf of an accused in a previous trial becomes the cross-examination of that witness in a subsequent trial interferes with the statutory right of an accused in the latter trial to defend himself in person or through counsel of his choice. That right necessarily involves the consequential right of an accused to determine his defence, how to respond to the Prosecution’s case through cross-examination of its witnesses. That consequential right is interfered with by foisting on him cross-examination from a previous trial so that it becomes part of his case. When the Trial Chamber comes to assess the Prosecution’s case relating to the transcript evidence, it will do so not on the basis of a line of defence that has been determined by the accused in the ongoing case, but rather, on the basis of a line of defence of an accused in a previous trial.
6. The right of an accused to defend himself and the consequential right to determine the nature of his defence and to put his case assumes special significance against the background of the essentially adversarial character of the proceedings before the Tribunal. The process whereby cross-examination by an accused or his counsel in a previous trial becomes cross-examination by an accused in a subsequent trial comes close to imposing counsel on the accused in a subsequent trial. In Milosevic ,44 this Trial Chamber has stressed the essentially adversarial character of the proceedings before the Tribunal and advanced this as a ground for its decision not to impose counsel on the Accused who had elected to represent himself.45
7. The right of an accused to representation is personal and individualised; it is a right either to defend himself in person or to be represented by counsel of his choice.46 The personal character of the right was stressed by the United States Supreme Court in Faretta,47 which clarified that historically the right to defend oneself in person was anterior to the right to be defended by counsel. The personal character of the right is maintained even in cases of the representation of an accused by counsel, because this is “legal assistance of his own choosing” (my emphasis). The personal character of the right to representation gives it a peculiar and idiosyncratic nature that renders it not amenable to substitution by the wholesale lifting of large chunks 48 of evidence from other cases, and treating the cross-examination in those cases as the cross-examination by an accused in an ongoing trial.
8. This attribution to the accused of the cross-examination in a previous case interferes with his right to determine his defence and to conduct that defence. It is an interference which, in my view, is so fundamental that it is not counter-balanced or neutralized either by the fact that Rule 92 bis covers evidence that does not relate to the acts and conduct of the accused, or that a Trial Chamber will usually allow cross-examination where it determines that the transcript evidence covers issues critical to the Prosecution’s case, or by the consideration that, ultimately, the Chamber’s determination of the weight to be attached to the evidence may be a corrective to any prejudice the accused might suffer from lack of cross-examination. Moreover, the general power to admit hearsay evidence (transcripts could be treated as hearsay evidence) as long as it is relevant and probative is not a sufficient answer. Rule 89(C) vests a Chamber with a discretionary power which should in most cases not be exercised in favour of the admission of transcripts without cross-examination for the reasons advanced in this Opinion.
9. In view of the conclusion that foisting cross-examination from a previous case on an accused in a subsequent case so that it becomes his cross-examination, interferes with the statutory right of the accused to determine his defence and to conduct his case either in person or through counsel, in my view, the admission of this kind of evidence should be approached with a disposition to allow cross-examination by an accused, except, perhaps, in the case of transcript evidence dealing with historical, background or statistical matters.
10. A regrettable result of the distinction made by Rule 92 bis between evidence that, on the one hand, does not relate to the acts and conduct of the accused (crime base evidence) and evidence that, on the other, does (the former being admissible by proof other than by oral evidence) is the tendency to undervalue crime base evidence, to treat it as though it does not form an important part of the Prosecution’s case. Crime base evidence, whether in the form of witness statements or transcripts, although not relating to the acts and conduct of the accused in the sense explained in Galic,49 is nonetheless evidence on which the Prosecution relies to establish the guilt of the accused.
11. Another regrettable result of Rule 92 bis is that it appears to be the basis of submissions which, in my opinion, reflect the wrong approach to the burden of proof in these matters. The Prosecution submitted in its Motion50 that it is for the accused to convince the Trial Chamber that there are issues relevant to his case that justify cross-examination.51 If Rule 92 bis results in a burden being placed on an accused to convince a Chamber that cross-examination of a transcript witness is necessary, it would, in my opinion, be ultra vires Article 21, paragraphs (d) and (e) of the Statute which gives an accused the right to determine and conduct his defence, either personally or through counsel, and to cross-examine the Prosecution’s witnesses. That would not be a correct reading of the Rule, which has to be interpreted consistently with the provisions of Article 21 of the Statute. In my opinion, the decision of the Chamber should not be read as supporting such an interpretation.
a. In Some Cases, the Transcript Evidence is the Sole or Main Evidence of the Incident to Which it Relates
12. One of the factors identified by Rule 92 bis (A) in favour of admitting evidence in the form of a written statement or transcript is that the evidence “is of a cumulative nature, in that other witnesses will give or have given oral testimony of similar facts”.
13. I am not aware of any decision of a Trial Chamber or the Appeals Chamber that has considered the meaning to be given to the term “similar facts”. Is it confined to the specific incident in a municipality to which the transcript relates, or does it cover, more broadly, evidence of other crimes in the country or the municipality, not necessarily connected to the specific incident to which the transcript relates ? In any event, this Chamber has given the term a broad construction. In holding that the transcripts were admissible, the Chamber concluded that the “evidence is of a cumulative nature, dealing with the takeover of a municipality in Bosnia and Herzegovina by Serb forces; much oral evidence has already been given on this topic, i.e. the takeover of municipalities in Bosnia and Herzegovina”.52 Notice here that the evidence is cumulative in the broad sense, that is, evidence of other crimes not in the specific municipality of Foca, but in other municipalities of Bosnia and Herzegovina as a whole.
14. I joined in that decision. However, where the transcript evidence is cumulative in the broad sense, but not cumulative as to the incident to which it relates, and it is the only or main evidence of that incident, a cogent case is made for allowing cross-examination. For absent cross-examination, the Trial Chamber will be required to determine whether the Prosecution has proved its case with regard to that incident on the basis of a piece of evidence not tested by cross-examination in the ongoing trial of an accused, when it is the sole or main evidence of that incident. The odd result is that an accused becomes liable to a determination by the Trial Chamber that the Prosecution has proved its case in relation to that incident when he has not had the opportunity to cross-examine on the single or main piece of evidence that constitutes the basis for that determination. Such a determination, either by itself, or taken together with other evidence, could form the basis for a finding of guilt.
15. Some jurisdictions sanction a conviction on the basis of evidence that includes testimony or statements not subject to cross-examination. But where that is done, the uncrossexamined statement is not the only or main basis for the conviction. Thus the European Court of Human Rights (“ECHR”) held that there was a breach of the right to fair trial and cross-examination under Article 6, paragraph (1) and Article 6, paragraph (3) (d) (e) of the Convention in circumstances where there was no cross-examination at the trial of statements, taken in earlier proceedings, and which constituted the sole or decisive basis for the conviction.53 This principle is evident in some of the ten cases cited in Galic,54 and to which reference is made in the Decision;55 in eight of those cases the Court decided in favour of the Applicants, i.e. it concluded that the right to fair trial under Article 6(1) and the right to cross-examine under Article 6(3)(d) were breached because the accused did not have an adequate and proper opportunity to challenge and question the maker of the statement, either at the time the witness was making his statement or at some later stage of the proceedings.56 Generally, the cases are significant, because they all indicate the importance the ECHR attaches to the need to ensure that the accused has an adequate and proper opportunity to challenge the evidence of the Prosecution. In the instant case, the Accused may be said to have had no adequate and proper opportunity to challenge the makers of the transcript evidence.
16. The following principles may be extracted from the case-law of the ECHR on the right of the accused “to examine or have examined witnesses against him” under Article 6, paragraph 3(d) of the European Convention on Human Rights:
(i) the right of an accused to examine or have examined witnesses against him is but an element of the general right of the accused to a fair trial under Article 6, paragraph 1;
(ii) in principle, all evidence must be produced in the presence of the accused at a public hearing with a view to adversarial argument;57
(iii) use of statements in absence of oral testimony is not per se incompatible with the Article 6, paragraphs 1 and 3(d) but must be compatible with the rights of the defence;58
(iv) it is generally not compatible with those rights, when there has been no opportunity to challenge the evidence given by witnesses, for a conviction to be based solely or to a decisive extent on such statements.59
17. Count 3 of the Indictment charges the accused with persecutions on political, racial or religious grounds, a crime against humanity, punishable under Articles 5(h), 7(1) and 7(3) of the Statute. Paragraph 33 of the Indictment alleges that the persecutions took place in forty-six named territories, one of which is Foca. Paragraph 35 sets out, in a non-exhaustive manner, eleven means by which the persecutions were committed ; subparagraph (e) provides: “the cruel and inhumane treatment of Bosnian Muslims, Bosnian Croats and other non-Serb civilians during and after the take-over of the municipalities specified above. Such inhumane treatment included, but was not limited to, sexual violence, torture, physical and psychological abuse and forced existence under inhumane living conditions.”
18. Witnesses B-1542 and B-1543 gave evidence in the Kunarac case.60 They had been subjected to multiple sexual abuses. In that case, Kunarac and two others were charged with the rape of the two witnesses as a crime against humanity and as a violation of the laws or customs of war. The municipality was Foca. However, the only evidence of sexual violence in relation to that municipality comes from the transcripts of B-1542 and B-1543.
19. It is, of course, perfectly possible for the Trial Chamber to find the accused guilty of the crime of persecutions as charged in Count 3 without relying on the evidence of sexual violence against the witnesses B-1542 and B-1543. Guilt could be established on the basis of evidence relating to the other means set out in paragraph 35 of the Indictment, by which the persecutions are alleged to have been committed, including evidence relating to municipalities other than Foca. In fact, the Chamber could even find that the Prosecution’s case of cruel and inhumane treatment under paragraph 35 (e) has been made out without having to rely on the evidence relating to sexual violence. But to the extent that the Chamber will have to consider whether the Prosecution’s case has been made out in respect of sexual violence in Foca as an element of inhumane treatment, one of the means by which the crime of persecutions was allegedly committed, it would have to do so solely or mainly on the basis of the evidence of B-1542 and B-1543, in circumstances where that evidence has not been subjected to cross-examination in the trial of the accused. In other words, the accused is liable to be convicted of persecutions as a crime against humanity on several bases, including inhumane treatment in the form of sexual violence in Foca when the only or main evidence of sexual violence is that of the two rape victims, which evidence has not been tested in his trial by cross-examination.
20. It would, in my view, be unsafe in those circumstances to conclude that the Prosecution has proved its case against the accused in respect of the allegation of sexual violence in Foca, because the Chamber would in effect be relying on the transcript including cross-examination in the previous cases as the sole or main basis for guilt; if that is so, it must be questioned whether the transcripts should have been admitted in the first place without giving the Accused the right to cross-examine the transcript witnesses.
21. It must be clarified that the point being made has nothing to do with the question of corroboration in cases of sexual violence. Rule 96 provides that in cases of sexual assault, corroboration of the victims’ testimony is not required. The point is not that the evidence of B-1542 and B-1543 needs corroboration, but that it should, since it is the sole or main evidence of sexual violence in Foca, be subject to cross-examination by the accused. On the persuasive basis of the ECHR case-law,61 there would be a breach of the statutory right of the accused to a fair trial and to cross-examine the Prosecution’s witnesses, were the Chamber to conclude that the Prosecution had made out its case of sexual violence in Foca, since such a finding would be based, if not solely, then a to decisive extent on the transcript evidence in circumstances where the accused has not had an opportunity to cross-examine the transcript witnesses.
22. I turn now to the issue of the trauma to which the two rape victims would experience, were they to be subjected to cross-examination for a second time. The solution to this problem is not to call the witnesses at all in this trial, since if they are called, in the interest of fairness to the accused, he would have to be allowed to cross-examine them if he so wishes.
23. The case of sexual violence against these witnesses has already been litigated in Kunarac, ending in the conviction of Kunarac and two others,62 who were charged with personally raping them. Would this not be an appropriate case for the exercise of prosecutorial discretion by not subjecting them to the trauma of a second trial? In my view, it would be.
24. All decent and reasonable persons must be sensitive to the trauma experienced by victims of sexual assaults in testifying in court about their ordeals. But in striking the balance between the interests of the accused and those of victims, the Statute establishes a hierarchical structure that ensures that the protection of victims and witnesses is not achieved at the expense of the rights of the accused. Article 20, paragraph 1 of the Statute provides that “the Trial Chambers shall ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with the rules of procedure and evidence, with full respect for the rights of the accused and due regard for the protection of victims and witnesses ” (my emphasis). The emphasized words, which have been commented on by Judge Hunt,63 make it clear that measures to protect victims and witnesses must not compromise the rights of the accused.
(b) The Accused Has Made a Case for Cross-Examination on Several Bases
25. The jurisprudence of the Tribunal is that cross-examination of a transcript witness should be allowed where the transcript evidence relates to matters that are in issue between the parties. In Sikirica, this Trial Chamber held that cross-examination should be allowed where the evidence relates to a critical element of the Prosecution’s case,64 and in this case itself, the Chamber has held that cross-examination should be allowed where the evidence relates to a live issue between the parties. 65
26. Where an accused has himself said that a particular matter is in issue, he should, unless it is plainly unreasonable to do so, be taken at his word, because it is his right to determine his line of defence in response to the Prosecution’s case – a right which, as we have seen, is essentially a personal one.66 In my view, the threshold for a determination as to whether a matter is in issue such as to warrant cross-examination of a transcript witness should not be unduly high, because the accused has the right to determine his line of defence and to conduct his own defence; to put the threshold at an unduly high level would result in an infringement of his right, with the consequence that a burden would be imposed on an accused to convince the Chamber that cross-examination was justified. This was in fact the submission of the Prosecution67 which I have already rejected.
27. The Accused has, from the commencement of this trial, said that everything is in issue. Even if it is reasonable to find this position implausible or improbable, there is a substantial basis for concluding that, in the particular circumstances of this Motion, he has made a case for the cross-examination of the transcript witnesses.
28. In the following statements, the Accused challenges the submission that there is an identity of interest between the accused in previous cases and himself, argues that cross-examination in the previous trial were not adequate, and generally puts in issue the transcript evidence:
(i) “The question is not whether cross-examination has been conducted or not, it’s a reversal of thesis. The question is how it was conducted and done and what one wishes to prove in each individual case…”,68
(ii) “…there is a complete difference of interest of persons who were judged here and the transcript of which you wish to introduce because it was not in their interests to deal in any depth with certain issues…”,69
(iii) “Now, whether something is essential or not essential, you must allow me to assess that. And everything is essential. Everything is of substance, because everything that took place on the territory of the former Yugoslavia you link to Serbia, its institutions, and to myself personally. So you cannot exclude something because it is not relevant…”,70
(iv) “Everything is relevant because everything is linked together. And you link it together, even the rapes. Any drunken fool can carry out rapes in London or your own Jamaica, Mr. Robinson, or anywhere else. And I’m sure you’re not going to bring the head of state to court because a criminal perpetrated a crime or raped somebody..”,71
(v) “…neither Serbia nor I have anything to do with Sthe accusationsC”,72
(vi) “I might even question the facts Sof the rapesC. If my information tells me that a witness statement and testimony is false, Mr. Robinson. Because here there have been a large number of false witnesses…”.73
29. In passage (ii), he argues that there is a difference between himself and the accused in the other cases and suggests that the cross-examination might not have been sufficiently detailed. In passages (iii) and (iv), he is in effect saying that everything is in issue, and, in particular, in passages (iv) and (v), he is saying, as he has maintained in relation to other rape victims,74 that the perpetrators were criminals for whom he had no responsibility. It would be wrong to reject this as an issue between the parties on the ground that this line of defence is not plausible or credible. Cross-examination by the accused would allow the Chamber to make a determination about that defence, which is relevant to the issue of command responsibility under Article 7(3) of the Statute, with which the Accused is charged in paragraphs 27 to 31 of the Indictment. As indicated earlier,75 the threshold for determining whether the accused has put a matter in issue such as to warrant cross-examination cannot be very high; otherwise, a burden would be placed on the accused to convince the Chamber that there is an issue for cross-examination. That would be in breach of his right to defend himself, to determine and put his case. In passage (vi), he clarifies that he might want to question both the fact of the rape and the identity or status of the perpetrators.
30. A comment is warranted on the Accused’s argument in the second passage that there was a difference of interest between himself and the other accused.
31. A problematic feature of the regime of the admission of transcripts is that the Trial Chamber makes a finding of the adequacy of the cross-examination in the previous trial as the basis for denying cross-examination. This is usually done by a determination that there is a common interest between the accused in the previous case and the accused in the ongoing trial, followed by an examination of the cross-examination in the previous case. In the instance case, it is said that the accused Milosevic and the accused in the six transcript cases had a common interest to serve, namely to oppose and contest the evidence about the takeover of Foca and to question the credibility of the witnesses.76
32. In the first place, the circumstances must be rare indeed when there is an absolute identity or community of interests between co-accused in a trial, charged with the same offences committed in similar circumstances, or between an accused in a particular trial and another accused in a subsequent trial charged with a similar offence committed in the same circumstances as the first. There is a speciality and uniqueness about the case for one accused that makes it difficult to conclude that there are common interests between an accused in one case and another accused in another, or at any rate to conclude that there is an identity of interests such that cross-examination on behalf of an accused in one case is adequate, so that cross-examination on behalf of another accused in a subsequent case may be dispensed with.
33. Moreover, in the instant case, so far as the rape victims are concerned, it is difficult to see the commonality of interest between the accused Milosevic, a Head of State and Commander-in-Chief of his country’s army on the one hand, and the accused Kunarac, a local commander who was charged, along with others, with personally raping the victims during the takeover of Foca; Kunarac was also charged with command responsibility, but was acquitted of that charge.77 Note that the charges against Kunarac were all related to sexual violence, including the rapes of the transcript witnesses – rape and torture as crimes against humanity and violations of the laws or customs of war; Kunarac was also charged and convicted of enslavement as a crime against humanity.78 On the other hand, Milosevic is not charged with personally raping the two witnesses. He is charged with individual criminal responsibility under Article 7(1) of the Statute,79 and under Article 7(3) with command responsibility80 in respect of these crimes. The fact that Kunarac was charged with personally raping the witnesses constitutes a significant difference between his case and that of Milosevic, and refutes the argument that there is an identity of interest between the two. This difference necessarily means that in both cases, Kunarac and Milosevic , the case for the Prosecution and the case for the Defence will be different, or that it would be reasonable to expect differences in the two cases. The Prosecution’s case against Kunarac as a rapist will be different from its case against Milosevic charged with individual responsibility and command responsibility. Whereas Kunarac would have been concerned in his defence to challenge the evidence that he personally committed the rapes,81 Milosevic will be concerned with establishing that he played no role in the planning and execution of the alleged joint criminal enterprise including the planning and execution of the rapes, and that he neither knew nor had he any reason to know that the rapes would be committed, and that he had not failed to take the necessary measures to prevent or punish the perpetrators of those acts.
34. Additionally, the Accused’s challenge82 as to whether there is an identity of interests between the accused Krnojelac and himself is also not without merit. It is difficult to see the commonality of interest between the Accused and Krnojelac, a local commander of a prison (the Foca Kazneno -Popravni Dom, “KP DOM”) charged inter alia with imprisonment, inhumane acts, including allegations of his personal involvement in some of the crimes (e.g. beatings). Whereas Krnojelac would be concerned to rebut those crimes, including his personal involvement in beatings, the main interest of the Accused Milosevic would be to show that he had no responsibility under Article 7(3) of the Statute for those who committed the crimes in the KP DOM, and that he was not part of any joint criminal enterprise to commit those crimes. The mere fact that two persons are charged in relation to the same incident does not necessarily mean that they have an identity of interest such that cross-examination of one will suffice for the cross-examination of the other.
35. The validity of the conclusion that the cross-examination on behalf of Krnojelac is adequate for the cross-examination of Milosevic may be tested in this way: if Kronjelac and Milosevic were jointly charged with the crimes set out in their respective indictments and were being tried together, and if cross-examination of the transcript witnesses on behalf of Kronjelac were conducted first, would it be right to deprive the Accused Milosevic of the right to cross-examine those witnesses on the ground that the cross-examination on behalf of Krnojelac was adequate? The answer, in my view, is clearly in the negative.
36. A determination that cross-examination in a previous case is adequate for cross- examination in a subsequent one is not an easy exercise, and, in my opinion, it is not one that can be done with a high degree of assurance; if there is a doubt about this question, it should be settled by granting the Accused the right to cross -examine.
37. The slow pace of trials has made expeditiousness in proceedings the principal issue facing the Tribunal. In devising measures that expedite proceedings, the Tribunal has drawn more from the civil law inquisitorial than the common law adversarial system. The main reasons for this are that, generally, the judge has a more active role in the inquisitorial system, and the rules for the admission of evidence are more relaxed in that system.
38. Nonetheless, the system established by the Statute and the Rules for the presentation of evidence remains one that is essentially accusatorial and adversarial. Mainly, this results from the provision in Article 16 of the Statute for an independent Prosecutor, responsible for investigations and prosecutions, and from the provisions of Rule 84 (“Opening Statements”), Rule 85 (“Presentation of Evidence”), and Rule 86 (“Closing Arguments”), setting out distinct roles for the Prosecution and the Defence.
39. Rule 92 bis is the most ambitious and far reaching of the measures that have been adopted to expedite proceedings. Although the Rule as a whole is intra vires the Statute, there are circumstances in which, if care is not taken, its application may expose it to claims of inconsistency with the Statute. The instant case relating to the exercise of the discretionary power under Rule 92 bis (E) is an example.
40. The faculty for a Trial Chamber to determine that cross-examination in a previous trial is adequate such that cross-examination in an ongoing case may be dispensed with is, in my view, unduly intrusive in relation to the right of an accused person to determine his own defence in a system that, despite innovative procedures drawn from the civil law inquisitorial system, remains essentially adversarial. The intrusiveness of this role may upset the balance between the two legal systems on which the Tribunal’s sui generis legal system is built.
41. As far as I am aware, there is no precedent in any domestic jurisdiction for encumbering the case of an accused person with cross-examination from a previous trial, in the preparation of which he has had no role. Note that the European Court cases do not deal with this issue: they deal with the right of an accused to cross-examine on statements when the maker of those statements did not appear at the trial.
42. The international character of the Tribunal is often used as an explanation for the departure from procedures in domestic jurisdictions. But if the Accused before the Tribunal is not to become the poor cousin of his domestic counterpart, it is imperative that these departures or adjustments are only made when it is reasonable to do so; they must result from an interpretation of the Statute on the basis of the general rule of interpretation set out in Article 31 of the Vienna Convention on the Law of Treaties. That would, of course, include taking into account the context in which the Tribunal operates.
43. The standard of fairness in trials required by the International Covenant on Civil and Political Rights, the Statute of the Tribunal and the major human rights instruments is universal;83 the character of fairness in trials at the ICTY must be universal, not parochial.
44. In summary, I have dissented because:
(i) foisting cross-examination from a previous case on an accused in an ongoing case interferes with the statutory right of an accused to determine his defence; for that reason, applications for the admission of transcripts should be approached by Trial Chambers with a disposition to allow cross-examination, subject to the exceptions set out in paragraph 9 above;
(ii) it is generally not compatible with the rights of the defence, where there has been no opportunity to challenge the evidence given by witnesses, for a conviction to be based solely or to a decisive extent on such statements,84
(iii) in the specific circumstances relating to the rape victims, their transcript evidence is the only or the main evidence of sexual violence in the municipality of Foca. This raises the possibility, which must be unacceptable, that a conclusion could be reached by the Trial Chamber that the Prosecution’s case relating to that part of the Indictment has been made out when there has been no cross-examination by the Accused on that evidence. Although transcript evidence promotes expeditiousness, that could also be achieved by a decision of the Prosecutor not to reintroduce in a subsequent case evidence from witnesses in a previous case on the basis that the incident to which the transcript evidence relates has already been sufficiently litigated. While I do not say that this would be appropriate in all cases, I am quite convinced that it would be proper in some cases, for example, the transcripts of the two rapes victims whose cases have, in my view, already been sufficiently litigated, resulting in the conviction of those charged with personally raping them ;
(iv) in the particular circumstances of this case, cross-examination is warranted because there is no identity of interest between this Accused and other accused in the previous cases, particularly those relating to the rape victims; if that is so, the basis for concluding that cross-examination in the previous case was adequate is tenuous ; the Accused has put in issue the transcript evidence, in particular his liability under Article 7(3) in relation to charges of rape against Kunarac and his co-accused ;
(v) the counterbalancing factors: (a) the evidence does not relate to the acts and conduct of the Accused, (b) the fact that cross-examination of the same witnesses was conducted in earlier trials, and (c) the faculty for the Chamber to attach whatever weight it wishes to the evidence, are not sufficiently cogent to correct the unfairness to the Accused that results from his lack of opportunity to cross-examine the transcript witnesses.
(vi) in all the circumstances, a decision not to exercise the discretion under Rule 92 bis (E) by allowing cross-examination of the transcript witnesses results in a procedure that achieves expeditiousness at the expense of fairness, in breach of Articles 20 and 21 of the Statute.
Done in English and French, the English text being authoritative.
Dated this thirtieth day of June 2003
At The Hague
[Seal of the Tribunal]