Case No. IT-02-54-T
IN THE TRIAL CHAMBER
Before:
Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy
Registrar:
Mr. Hans Holthuis
Decision:
20 June 2005
PROSECUTOR
v.
SLOBODAN MILOSEVIC
______________________________________________
DECISION ON PROSECUTION MOTION FOR CERTIFICATION OF TRIAL CHAMBER DECISION
ON PROSECUTION MOTION FOR VOIR DIRE PROCEEDING
______________________________________________
Office of the Prosecutor:
Ms. Carla Del Ponte
Mr. Geoffrey Nice
The Accused:
Mr. Slobodan Milosevic
Court Assigned Counsel:
Mr. Steven Kay, QC
Ms. Gillian Higgins
Amicus Curiae:
Prof. Timothy McCormack
THIS TRIAL CHAMBER of the International Tribunal
for the Prosecution of Persons Responsible for Serious
Violations of International Humanitarian Law Committed
in the Territory of the Former Yugoslavia since 1991
(“Tribunal”), is seised of a “
Prosecution’s Request for Certification Pursuant to Rule 73(B)”, filed 15 June 2005
(“Motion”), and hereby renders its decision thereon.
- In the Motion, the Prosecution requests the
Trial Chamber to certify an interlocutory appeal
of its “Decision on Prosecution Motion for Voir Dire Proceeding”, issued
9 June 2005 (“Decision”), in which the Trial Chamber denied the Prosecution’s request
to conduct a voir dire proceeding (or “trial within a trial”) in order to determine
whether evidence prepared by Defence witness Dragan Jasovic (“witness”) should be
excluded pursuant to Rule 95 of the Rules of Procedure and Evidence of the Tribunal
(“Rules”).
- Rule 73(B) provides the following:
Decisions on all motions are without interlocutory
appeal save with certification by the Trial Chamber,
which may grant such certification if the decision
involves an issue that would significantly affect
the fair and expeditious conduct of the proceedings
or the outcome of the trial, and for which, in the
opinion of the Trial Chamber, an immediate resolution
by the Appeals Chamber may materially advance the
proceedings.
This provision sets forth two cumulative criteria
that must be satisfied by the Prosecution before
the Trial Chamber may certify an interlocutory appeal
of a decision it has made.1
- The Trial Chamber has recently stated that “a
request for certification is not a further opportunity
for the Prosecution to inform the Trial Chamber that
it disagrees with a decision it has made”.2 In
its Motion, the Prosecution argues that the Decision “illogically
and unfairly links the determination of exclusion
of evidence under Rule 95 to possible Prosecution
considerations of prejudice to its case”,3 utilises “inapposite reasoning”,4 “
effectively sanctioned [an] illogical approach”,5 “ignores the purpose of Rule 95”,6 “effectively circumvents Rule 95’s impact on the issue
of the admissibility of the hearsay material produced
by” the witness,7 and “creates confusion”.8 The
Prosecution also comments, in advance of the Trial
Chamber’s rulings on admission of the Jasovic
material, that “the Chamber has abdicated [its] responsibility” “to
ensure that every piece of evidence admitted passes
the test of Rule 95” and that this abdication
“casts a shadow of unfairness over the proceedings.”9
- The Prosecution takes issue with the reasoning
underpinning the Decision and argues that it
is this reasoning, in and of itself, that “leads
to unfairness in these proceedings.”10 This
is a good example of the Prosecution’s misunderstanding
of Rule 73(B). A request for certification is
not concerned with whether a decision was correctly
reasoned or not. That is a matter for appeal,
be it an interlocutory appeal or one after final
Judgement has been rendered. Rule 73(B) concerns
the fulfilment of two criteria, after which the
Trial Chamber may decide to certify an interlocutory
appeal. If it does, then the reasoning of the
appealed decision immediately will be assessed
by the Appeals Chamber. If it does not, the reasoning
may be challenged by the Prosecution after the
rendering of the final Judgement, and the Appeals
Chamber, at that time, will assess the reasoning
of the decision.
- The Trial Chamber also notes that the Prosecution
argues that the Decision raises important issues
relating to the use of voir dire proceedings
in proceedings before the Tribunal, as well as
practice generally under Rules 89 and 95.11 The
Trial Chamber has recently stated that “even
when an important point of law is raised... the
effect of Rule 73(B) is to preclude certification
unless the party seeking certification establishes
that both conditions are satisfied.”12
- In light of all the above, the Trial Chamber
will focus on the legal test to be applied under
Rule 73(B) and will cull from the Motion the
arguments of the Prosecution that relate to this
legal test.
- With respect to the first criterion of Rule
73(B), the Prosecution argues that the Decision – in combination with a prior decision of the Trial Chamber – has
hindered its ability to demonstrate the unreliability
of Defence materials by precluding application
of Rule 95, and that the proceedings, as a result,
will be unfair and the outcome adversely affected.13
- The Prosecution’s argument fails because it
erroneously assumes that the only method by which
Rule 95 can operate is through the procedural
mechanism of the proposed voir proceeding.14 Rule
95 does not prescribe a mechanism by which it
is to be applied, and a voir dire proceeding
is only one of these possible mechanisms; cross-examination
is another example that may assist the Prosecution
in its efforts to challenge admission of such
material. Finally, the Prosecution’s reliance
upon a prior decision15 of
the Trial Chamber and its effect upon the present
situation does not bolster its argument that
the Decision fulfils the first criterion of Rule
73(B).
- The Prosecution argues that the Trial Chamber,
as a result of its Decision, will only have a
minimum of evidence with which to assess the
reliability of the witness’ evidence because he will deny the
veracity of Prosecution documents put to him in
cross-examination and thus they will not be admitted
into evidence. The Prosecution then reasons that
the “Chamber’s intention... to base its determination
of the admissibility of [the witness’] evidence
on only a portion of the
material available to it, ignores the purpose of
Rule 95 and thereby creates unfairness to the
proceedings.”16
- This argument employs the logical fallacy
of denying the antecedent:17 the
Prosecution argues that a voir dire proceeding
will enhance the fairness of the trial, and then
reasons that, if the Chamber does not conduct
a voir dire proceeding, the trial will be unfair.
The position of the Prosecution leaves no room
for the fact that trials can be conducted in
a fair manner without the use of voir dire proceedings.
The Chamber, for example, will take into account
the cross-examination of the witness during its
deliberations regarding admission of the Jasovic
material and for purposes of the final Judgement
in this case. The Prosecution’s argument
thus fails on its own terms.
- The Prosecution argues that the Decision “potentially
obstructs the expeditious completion of these proceedings” because
if the Trial Chamber admits “the hearsay
statements produced by Dragan Jasovic, all the admitted
evidence must be evaluated by the Trial Chamber
and therefore becomes the subject of argument by
the parties”, thus delaying the completion of the trial. The
Prosecution also comments that
“[t]ime spent on the review of irrelevant and unreliable
evidence could be better used to address the important
issues and evidence in this case.” Finally, the Prosecution
argues that “the prospective admission of unreliable
material would signal the Accused that material
obtained through methods that do not fulfil the
highest ethical standards are acceptable before
this Court. A voir dire proceeding at this stage,
where the hearsay statements produced by Dragan
Jasovic would be exposed for what they are, would
send a clear message that only reliable material
should be tendered, thereby streamlining the completion
of the trial.”18
- The Prosecution’s argument on this point is predicated upon the premise that
evidence will be admitted that is irrelevant and unreliable. Such a contention
misunderstands Rule 89(C), which provides that a Chamber may admit any relevant
evidence that it deems to have probative value. Thus, the Trial Chamber is bound
by the Rules of Procedure and Evidence only to admit material into evidence that
is relevant. The weight that the Trial Chamber attributes to the evidence is another
matter entirely. The Prosecution’s fears that the parties will be forced to waste
their resources in dealing with “irrelevant evidence” is thus unfounded. And this
leads to the second reason why the Prosecution’s argument fails: it is not enough
to predict that a decision may potentially affect the fair and expeditious conduct
of the proceedings; rather, the Prosecution must demonstrate that the decision “ involves
an issue that would significantly affect
the fair and expeditious conduct of the proceedings
or the outcome of the trial” (emphasis added). Finally, the Chamber passes on the Prosecution’s invitation to “send a clear message” to
the Accused that he should only tender as evidence
reliable materials in order to streamline completion
of the trial. The admission of evidence is regulated
by the Rules of Procedure and Evidence and the
jurisprudence of the Tribunal; and, it is for the
Accused to tender evidence he deems appropriate,
and for the Chamber to continue to make decisions
as to the admissibility of that evidence accordingly.
- With respect to the second criterion of Rule
73(B), the Prosecution argues (1) that, “[i]f this
issue is not resolved immediately and the hearsay
statements of Dragan Jasovic are admitted into evidence..., the parties... and the Chamber will have
to review and argue the relative weight to be given
to each hearsay statement prior to Judgement” and
(2) that this “will be a wasteful use of time and
resources, and may result in an unfair verdict,
which will be subject to appeal.”19
- The Prosecution’s argument on this point again is premised upon the assumption
that the evidence is irrelevant. The evidence has not been admitted yet; if it
is ultimately admitted, it will have been determined to be relevant. Moreover,
the weighing of evidence is a perfectly normal task in which the Chamber engages, for purposes of deliberating upon the final Judgement in a case. The Prosecution
thus fails to demonstrate how the Decision will result in an unfair verdict. Finally, the Decision has done nothing more than deny the Prosecution’s efforts to conduct
a trial within a trial; the Prosecution’s ability
to impeach the credibility of the witness and challenge
the reliability of his documentary evidence is
left intact and indeed is proceeding apace. As
such, an immediate resolution of this issue on
interlocutory appeal would not materially advance
the proceedings, but rather impede them.
- In conclusion, the Trial Chamber hereby finds
that the criteria of Rule 73( B) have not been
satisfied because the Prosecution has failed
to demonstrate that the Decision involves issues
that significantly affect the fair and expeditious
conduct of the proceedings or the outcome of
the trial and for which, in the opinion of the
Trial Chamber, an immediate resolution may materially
advance the proceedings.
- Pursuant to Rules 54 and 73(B) of the Rules,
the Trial Chamber hereby DENIES the Motion.
Done in both English and French, the English text being authoritative.
_____________
Judge Robinson
Presiding
Dated this twentieth day of June 2005
At The Hague
The Netherlands
[Seal of the Tribunal]
.
1 - See Prosecutor v. Brdjanin
and Talic, Case No. IT-99-36-T, Decision on Radoslav
Brdanin’s Motion for the Issuance of Rule 73(B) Certification
Regarding the Chamber’s Rule 70 Confidential Decision,
24 May 2002, para. 3 (“While the old version of Rule
73(C) states that ‘[t]he Trial Chamber may certify
that an interlocutory appeal during trial from a
decision involving evidence or procedure is appropriate
for the continuation of the trial’, the new version
of Rule 73(B) sets a much higher threshold for the
Chamber regarding certification to appeal a decision.”).
Trial Chamber II also added emphasis to the word “and” in
a subsequent quotation of the new, present version
of the Rule, thereby indicating the cumulative nature
of the criteria. The Trial Chamber agrees with this
interpretation of the Rule.
2 - Decision on Prosecution Motion
for Certification Regarding Evidence of Defence Witness
Barry Lituchy, issued 17 May 2005, at 5.
3 - Motion, para. 3.
4 -
Motion, para. 9.
5 - Motion, para.
10.
6 - Motion, para. 11.
7 -
Motion, para. 13.
8 - Motion,
paras. 13-14.
9 - Motion, para.
13.
10 - Motion, para. 9.
11 -
Motion, paras. 3, 15.
12 - Prosecutor
v. Halilovic, Case No. IT-01-48-PT, Decision on
Prosecution Request for Certification for Interlocutory
Appeal of “Decision on Prosecutor’s Motion Seeking Leave to
Amend the Indictment”, 12 January 2005, at 2.
13 - Motion, para. 6.
14 - The Prosecution argues that “Rule
95 itself, as well as the factors warranting exclusion
of evidence under the rule, demand consideration of
all evidence proposed by a party which suggest that
material offered by another party should be excluded,
prior to any decision as to admissibility” and that
the Trial Chamber, by denying the motion for a voir
dire proceeding, “has effectively sanctioned [an]
illogical approach.” Motion, para. 10 (emphasis in
original). The Prosecution here seems to be advancing
the extraordinary position that a voir dire proceeding
would have to be conducted in each and every case where
the Prosecution is in possession of information going
to the credibility of a witness or the unreliability
of documents sought to be tendered through him.
15 - Decision on Prosecution Motion
for Reconsideration Regarding Evidence of Defence Witnesses
Mitar Balevic, Vladislav Jovanovic, Vukasin Andric,
and Dobre Aleksovski and Decision Propio Motu Reconsidering
Admission of Exhibits 837 and 838 Regarding Evidence
of Defence Witness Barry Lituchy, issued 17 May 2005.
16 - Motion, para. 11 (emphasis
in original); see also Motion, paras. 12-14 (advancing
a similar argument with respect to rebuttal, i.e.,
if the Chamber denies leave for the Prosecution to
call its proposed evidence during rebuttal, “then no
meaningful mechanism to challenge the admissibility
of [the Jasovic material] pursuant to Rule 95 would
be available to the Prosecution”).
17 - See Irving M. Copi, Introduction
to Logic, 5th ed. (MacMillan Publishing Inc., 1978)
at 295; Stephen F. Barker, The Elements of Logic, (McGraw-Hill
Inc., 1965), at 95.
18 - Motion, para. 16.
19 -
Motion, para. 17.