Appeals Chamber

The Prosecutor v. Zejnil Delalic, Zdravko Mucic (a/k/a "Pavo"), Hazim Delic, Esad Landzo (a/k/a "Zenga") -
Case No. IT-96-21-A

"Order on Motion of the Appellant, Esad Landzo, for Permission to Obtain and Adduce further Evidence on Appeal1"

7 December 1999
Judges Hunt (Presiding), Riad, Wang, Nieto-Navia and Bennouna


Articles 20, 21 and 30 of the Statute and Article 16 of the Code of Professional Conduct for Defence Counsel Appearing Before the International Tribunal - whether the UN Convention on Privileges and Immunities applies in respect to proceedings before the Tribunal; whether, if it does not apply, Judges of the Tribunal, and officers of the Tribunal who assist Judges in their judicial functions, may be compelled to give evidence before the Tribunal; whether the Registrar should be compelled to give evidence; whether such Judges, officers and the Registrar should be requested to waive their immunity and give evidence voluntarily; whether Judges may waive their immunity.

Judicial deliberations and observations in relation to matters upon which the Judges of the Tribunal are required to adjudicate may not be the subject of compelled evidence before the Tribunal.

Officers of the Tribunal who assist Judges in their judicial functions may not be compelled to give evidence in relation to their knowledge of those judicial functions or other confidential matters.

Matters falling within the scope of that privilege or immunity include:

(a) evidence as to the exercise by the President of the Tribunal of his powers in relation to the composition of a Chamber of the Tribunal; and
(b) the observations by an officer of the Tribunal of proceedings in open court.

The Registrar will not be compelled to give evidence before the Tribunal unless such evidence is not available from another source and is otherwise necessary2.

The Issue

In his Notice of Appeal, the Appellant, Esad Landzo, argued that his right to a fair and expeditious trial was violated because the Presiding Judge of the Trial Chamber had been permitted to sleep through much of the proceedings. The Prosecution raised the issue of whether, by failing to object to such conduct at the trial, the Appellant had waived his right to complain of that conduct on appeal. The Appellant alleged that counsel then appearing for him had informally brought the matter to the attention of the then President of the Tribunal (Judge Cassese) and the Senior Legal Officer of the Trial Chamber. The Registrar was subsequently added to this list.

The Appellant applied to the Appeals Chamber to order or request:

(a) the appropriate official to waive any privilege or immunity in respect of the former President, the Registrar and the Senior Legal Officer,
(b) the proposed witnesses to testify by deposition as to their discussions with counsel then appearing for the appellant, and the Senior Legal Officer to testify also as to whether the Presiding Judge was asleep at the trial, and
(c) the former President and the Registrar to produce documents.

The Prosecution opposed the Motion on the basis that it was prepared to accept certain undertakings from counsel in relation to her meetings with each of the proposed witnesses. In addition, the Prosecution did not dispute that certain correspondence had taken place between the former President and the appellant or that counsel had prepared certain documents during the trial complaining, inter alia, that the Judge had been asleep during the hearing. Consequently, the Prosecution contended that the evidence of the proposed witnesses was not necessary for disposing of the matter. The Prosecution also objected on the basis that the Appellant was seeking an anticipatory remedy because the parties had not yet filed their submissions on the issue of waiver3.

The Decision

The Motion was dismissed by the Appeals Chamber. It rejected the Defence's requests as the evidence sought was unnecessary in some cases and inadmissible in others.

The Reasoning

The Appeals Chamber considered that much of the testimony of the proposed witnesses was indeed rendered unnecessary by the Prosecution's concessions4. The Appeals Chamber also took into account the fact that there was no indication that the Appellant was unable to produce evidence as to any of the remaining matters other than by the testimony of the proposed witnesses and that counsel then appearing for the Appellant was able to give evidence of such remaining matters. It then turned to consider the nature of the relief to be given.

The application by the accused was made on the ground that the United Nations Convention on Privileges and Immunities5 applied in respect of proceedings before the Tribunal6.

The Appeals Chamber did not find it necessary to decide whether the UN Convention did so apply7 as it considered that the Motion would have to be dismissed whether or not it applied.

Based on the assumption that the UN Convention did apply to proceedings before this Tribunal, the Appeals Chamber held that, in the circumstances of this case, the immunities thereby provided to the proposed witnesses could not impede the course of justice and would thus not have been waived8.

Upon the basis that the UN Convention did not apply to such proceedings, the Appeals Chamber considered that:

(i) a survey of the relevant jurisprudence of municipal legal systems indicated that the general principles of law recognised an adjudicative privilege or judicial immunity from compulsion to testify in relation to judicial deliberation and certain other related matters;
(ii) (1) it is an inherent quality of an independent judicial institution such as the Tribunal to be able to maintain confidentiality in relation to its basic judicial functions, (2) the independence of Judges and other officers of the Tribunal exercising judicial functions should be safeguarded from being drawn into controversies by being compelled to testify on behalf of any of the parties to proceedings before it, and (3) judicial deliberations and observations in relation to matters on which the Judges are required to adjudicate should not be the subject of compelled evidence before the Tribunal or exposure in any forum other than the proper forum of published reasons for decision in a particular matter;
(iii) these fundamental considerations would be undermined if the officers who assist Judges in their judicial functions were compelled to give evidence about their knowledge of those judicial functions or other confidential judicial matters;
(iv) the discussions of counsel then appearing for the Appellant with the former President were in substance an application to him to exercise his powers in relation to the composition of a Chamber of the Tribunal. The Appeals Chamber considered that the above-mentioned powers required the complete independence and impartiality of the Judge exercising them, and that evidence as to these matters also fell within the scope of the privilege or immunity;
(v) the knowledge of an officer of the Tribunal (including a Senior Legal Officer) in relation to his observations of proceedings in open court was also a matter falling within the scope of this privilege or immunity;
(vi) in view of her official role at the Tribunal which includes assisting Chambers and certain functions of a judicial nature9, the Registrar should not be drawn into proceedings before the Tribunal to give evidence for either of the parties unless such evidence is not available from another source and is otherwise necessary. In the present instance, the Appeals Chamber declared that her evidence was not necessary to establish any of the matters sought to be established by the appellant10;
(vii) none of the proposed witnesses would therefore be ordered to give testimony.

The Appeals Chamber also considered that:

(viii) although this privilege or immunity operated principally to prevent Judges and other officers of the Tribunal from being compelled to testify11, it is also inappropriate to request the proposed witnesses to testify voluntarily12; and
(ix) that none of the proposed witnesses would therefore be requested to give testimony.

The Appeals Chamber also referred to the position of counsel who had appeared for the Appellant at the trial, and who had, at his request, been assigned as one of two counsel appearing for him in the appeal. Article 16 of the Code of Professional Conduct for Defence Counsel Appearing Before the International Tribunal provides that counsel must not act as advocate in a matter in which they are likely to be a witness except where the testimony relates to an uncontested issue or where substantial hardship would be caused to the client. The Appeals Chamber considered that the operation of that article in the present case would cause no hardship to the Appellant because the effects of Article 16 had been a necessary consideration ever since the Appellant had requested counsel who had appeared for him at the trial to be assigned to him for the appeal, and because co-counsel for the Appellant could present any argument on this particular ground of appeal13.

Accordingly, the Motion was unanimously dismissed.

Declaration of Judge Bennouna:

As mentioned above, the Prosecution also objected to the Applicant's Motion on the ground that the Appellant was seeking an anticipatory remedy as the parties had not yet filed their submissions on the issue of waiver. This objection was overruled by the majority14. Judge Bennouna appended a Declaration on that point expressing the view that it was premature for the Appeals Chamber to make the decision because the issue of waiver was not yet an issue in the appeal. However, he agreed with the reasoning of the Order itself.

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1. The Prosecutor v. Delalic et al., Decision on Motion by Esad Lanzo for Clarification of Order of 7 December 1999.
2. On the Registry's immunities and privileges, see The Prosecutor v. Simic et al., Order for Limited Access to Registry Files, 1 November 1999, summarised in Judicial Supplement No. 9.
3. The Appeals Chamber overruled this objection (see page 3 of the Order), but Judge Bennouna appended a Declaration on the issue (see further).
4. Page 3.
5. Convention on the Privileges and Immunities of the United Nations of 13 February 1946.
6. See, generally, Article 30 of the Tribunal's Statute.
7. In the above-quoted Simic Order of 1 November 1999 at page 3, Trial Chamber III declared that: "the principle of the inviolability of the archives of the United Nations (Article II, section 4, of the 1946 Convention, referred to in Article 30 of the Statute of the International Tribunal) is directed primarily at national authorities and other bodies external to the United Nations, and is not applicable to the International Tribunal in respect of information and material in the possession of the Registry relevant to the discharge of its fundamental purpose, as outlined in (i), this being without prejudice to the non-disclosure of information or material that is confidential in accordance with the general principles of international law."
8. The appropriate official to waive those immunities is the Secretary-General of the United Nations.
9. See The Prosecutor v. Simic et al., Order for Limited Access to Registry Files, 1 November 1999, (summarised in
Judicial Supplement No. 9), at page 2: "(ii) to assist in the discharge of [its] function [the International Tribunal] has been provided with a Registry whose task is, pursuant to Article 11 of the Statute of the International Tribunal, to service the Trial and Appeals Chambers, and that it fulfils that task by, inter alia, submitting to the Chambers such information and material as it may receive that is relevant to their work;"
10. The decision on that point was taken by majority. Judge Riad and Judge Nieto-Navia considered that, in view of her official role at the Tribunal, the Registrar should not be drawn into proceedings before the Tribunal to give evidence for either of the parties except in exceptional circumstances, and that no such circumstances had been established which would make it appropriate for the Registrar to give evidence in this case (see footnote 1 of the Order).
11. In view of the conclusion that the relevant evidence is available from other sources and consistent with the fundamental considerations already referred to by the Appeals Chamber.
12. The decision on that point was taken by majority. Judge Riad and Judge Nieto-Navia considered that, so far as the immunity for Judges of the Tribunal against giving evidence is concerned, it was not open to a Judge to waive that immunity in order to give evidence voluntarily, but they otherwise agreed that it was inappropriate to request the other two proposed witnesses to testify.
13. See paras. 5-9 of The Prosecutor v. Delalic et al., Decision on Motion by Esad Lanzo for Clarification of Order of 7 December 1999. More generally, on Article 16 of the Code of Professional Conduct for Defence Counsel Appearing Before the International Tribunal, see The Prosecutor v. Simic et al., Decision on the Prosecution Motion to Resolve Conflict of Interest Regarding Attorney Borislav Pisarevic, 25 March 1999, summarised in Judicial Supplement No. 3.
14. Page 3 of the Order.