Appeals Chambers

The Prosecutor v. Tihomir Blaskic - Case No. IT-95-14-A

"Decision on the Appellant's Motions for the Production of Material, Suspension or Extension of the Briefing Schedule, and Additional Filings "

blue bullet 26 September 2000
Judges Vohrah [Presiding], Nieto-Navia, Wald, Pocar and Liu

Rules 66, 67, 68, 75(D), 89, 107, 111, 115, 119 and 127(B) of the Rules of Procedure and Evidence - Definition of a witness statement - Continuing obligation for the Prosecution to disclose exculpatory evidence at the post-trial stage - Definition of the close of trial proceedings.

(1) Only if a witness is intended to be called to testify in subsequent proceedings in relation to the subject-matter of the testimony will this testimony constitute a witness statement within the meaning of Rule 66(A)(ii) and therefore be subject to disclosure;

(2) Once a witness has given evidence in court, the Prosecution can no longer intend to call that witness to testify, and there is therefore no obligation to make available any subsequent statements from the witness, unless he or she will be recalled as an additional Prosecution witness in the sense of Rule 66(A)(ii);

(3) Under Rule 68, which continues to be applicable at the appellate stage of a case before the Tribunal, the Prosecution has a continual legal obligation to disclose to the Defence the existence of exculpatory evidence in proceedings before the Appeals Chamber;

(4) Following the conviction of an accused, there are three ways of bringing new information before the Appeals Chamber: by way of Rule 115 to introduce additional evidence; by way of Rule 89 to present evidence in respect of issues not litigated at trial; by way of Rule 119 to present a new fact for the purpose of review;

(5) Under Rule 68, the initial decision as to whether evidence is exculpatory has to be made by the Prosecution in the exercise of its discretion;

(6) A request for production of documents based on Rule 68 must be sufficiently specific as to the nature of the evidence sought and its being in the possession of the addressee of the request.

Procedural Background

On 3 March 2000, Trial Chamber I convicted Tihomir Blaskic of crimes against humanity, violations of the laws or customs of war and grave breaches of the Geneva Conventions of 1949, under the Statute of the Tribunal and sentenced him to a term of 45 years'imprisonment.

On 17 March 2000, Tihomir Blaskic filed a Notice of Appeal against the Judgement. On 4 April 2000, the Appellant filed two motions:

(1) The Appellant's Motion for the Production by the Office of the Prosecutor of Improperly Withheld Discovery Material, and Production by the Registrar of Trial Transcript and Exhibits from other Lasva Valley Cases (confidential) (hereinafter "the Production Motion");

Tihomir Blaskic sought an Order directing the Prosecution to produce to him:

(a) all statements of witnesses who testified in his trial and in other Lasva River Valley cases in the form of trial transcripts as well as accompanying exhibits as required under Rule 66(A)(ii) (hereinafter "the first Request");
(b) all exculpatory material and/or evidence which affects the credibility of Prosecution witnesses, including trial transcripts, witness statements, notes and the substance of all other verbal information (hereinafter "the second Request");
(c) a signed certificate, within 14 days of the issuance of an Order on the first and second Requests, that the Prosecution has complied with the First and Second Requests and is furthermore aware of its continuing obligations under Rules 661 and 682 (hereinafter "the third Request");

The Appellant also sought an Order directing the Registrar to produce to him any and all public transcripts and exhibits from the other Lasva River Valley cases as such transcripts become available in unofficial form, and to disclose all non-public transcript and exhibits from those cases to him subject to any protective measures required by the Tribunal (hereinafter "the Fourth Request").

(2) The Appellant's Motion to Suspend Briefing Schedule, or Alternatively, Extension of Time to File Appellate Brief, in which Tihomir Blaskic sought an Order, pursuant to Rule 127(B)3 , to suspend temporarily the time-limit imposed by Rule 1114 , until such time as the Prosecution complies with any order granting the Production Motion, and/or pending the translation of the Judgement into English and into Bosnian/Croatian/Serbian, whichever is later. In the alternative, the Appellant requested that he be granted an additional 90 days to submit his Brief, allowing him a total of 180 days, due to the need for the disposition of the Production Motion, translation of the Judgement, and the trial record and the complexities of the case.

(1) the date that the Prosecution certified that it had produced to the Appellant all witness statements and exculpatory evidence as required by Rule 66(A)(ii) and 68, or;
(2) the date of the completion of the translation of certain new documents turned over by the Croatian authorities to Tihomir Blaskic since the suspension of the briefing schedule by the Appeals Chamber on 19 May 2000, whichever was later.

The Decision

The Appeals Chamber

1) granted the Production Motion to the extent that the Prosecution is under continuing obligations of disclosure as required by Rule 66(A)(ii), Rule 68 and Rule 1075 ;

2) ordered the Appellant to indicate by Motion to the Appeals Chamber, within seven days of his receipt of all the translated documents, as to whether he intends to rely on Rule 1156 to seek the admission of some or all of the documents as additional evidence; and, if so, to specify, within 14 days of the Motion, which documents he would submit under Rule 115 and why the documents were admissible under the rule;

3) ordered the Prosecution to respond within 14 days of the filing of any such Motion by the Appellant and the documents attached thereto; and

4) allowed the Appellant to reply to any such Prosecution response within 10 days of the filing of the response.

The Reasoning

1. The First Request

The Judges first considered whether the testimony given by a witness in a case could "constitute a 'witness statement'" within the meaning of Rule 66(A)(ii). The Appeals Chamber noted that the Rules do not contain any definition of a witness statement. The Judges further held that the "usual meaning of a witness statement in trial proceedings is an account of a person's knowledge of a crime, which is recorded through due procedure in the course of an investigation into the crime." The Appeals Chamber expressed the opinion "that when a witness testifies during the course of a trial before the Tribunal, the witness's verbal assertions recorded by the Registry's technical staff through contemporaneous transcription, are capable of constituting a witness statement" within the meaning of Rule 66(A)(ii). "The testimony will constitute such a witness statement and therefore be subject to disclosure, only if the witness is intended to be called", in accordance with the Rule, "to testify in subsequent proceedings in relation to the subject-matter of the testimony. In other words, the testimony is a witness statement for the subsequent proceedings."

"It follows that the Prosecution does have a duty to disclose such witness statements to the Defence under certain conditions. Whether or not they should be 'made available'" pursuant to Rule 66(A)(ii) depends on "the stage of the proceedings that a case has reached." The Judges agreed with the Prosecution's argument that the Rule "should be given its plain meaning that, once a witness has given evidence in court, the Prosecution can no longer intend to call that witness to testify, and that there is therefore no obligation to make available any subsequent statements from the witness, unless the witness will be recalled as an additional Prosecution witness" in the sense of the Rule. The Appeals Chamber considered that in the instant case, "the witnesses that the Appellant refers to had concluded providing testimony" before Trial Chamber I in the present case before giving evidence before Trial Chamber III in The Prosecutor v. Dario Kordic and Mario Cerkez. The Judges further distinguished the phases before and after "the giving of their testimony" in the former case, and held that after this event "the witnesses ceased to be 'witnesses whom the Prosecutor intends to call to testify at trial' in that case" within the meaning of Rule 66(A)(ii). The Judges also held that "there was no obligation on the part of the Prosecution to disclose to the Appellant transcripts of their subsequent testimony provided in the course of a different case." The Appeals Chamber added that had "the testimony in the other case or cases been given prior to the tendering of it by those same witnesses in the Blaskic trial, the Prosecution would have been obliged" under the Rule to disclose that testimony in the latter trial.

The Judges also expressed the opinion that Rule 66(A)(ii) can be applied mutatis mutandis in appeals, pursuant to Rule 107. "Additional evidence may be admitted on appeal by way of Rule 115, and prior to the presentation of such evidence through witnesses under the rule, the presenting party shall follow the procedure" of Rule 66(A)(ii) to disclose witness statements to the other party7 .

2. The Second Request

The Appeals Chamber identified the issue "of general importance" raised by the Second Request as being one of "whether there is a continuing obligation for the Prosecution to disclose exculpatory evidence at the post-trial stage."

The Judges first defined "the close of trial proceedings" as "the close of all proceedings before a Trial Chamber, ending with the delivery of the Judgement." As a result, "the obligation continues until the Trial Chamber delivers its Judgement in the case"8 . The Appeals Chamber concluded "that the duty of the Prosecution to disclose to the Defence the existence of such evidence pursuant to Rule 68 continues at least until the date when the Trial Chamber delivers its judgement."

The Judges emphasised "that the Prosecution is under a legal obligation to continually disclose exculpatory evidence" in proceedings before the Appeals Chamber under Rule 68, the application of which "is not confined to the trial process." Rule 107 enables "the Appeals Chamber to import rules for trial proceedings to fill a lacuna in appellate proceedings, subject to appropriate modifications."

The Judges considered "that the admission of evidence on the appellate level is a necessarily limited exercise due to the corrective nature of the appellate proceedings. [...] Following the conviction of an accused, there are three ways of bringing new information before the Appeals Chamber: by way of Rule 115 to introduce additional evidence; by way of Rule 899 to present evidence in respect of issues which were not litigated at trial; or by way of Rule 11910 to present a new fact for the purpose of review."

The Judges held that under Rule 68, which "continues to be applicable at the appellate stage of a case before the Tribunal", "the initial decision as to whether evidence is exculpatory has to be made by the Prosecutor. Without further proof that the Prosecution abused its judgement, the Appeals Chamber is not inclined to intervene in the exercise of this discretion by the Prosecution. It is for the Appellant to seek out the transcript of the testimony of the several witnesses referred to in the Production Motion to show" the Appeals Chamber "that the evidence is exculpatory."

The Judges pointed out that a "request for production of documents has to be sufficiently specific as to the nature of the evidence sought and its being in the possession of the addressee of the request." The Appeals Chamber however noted "that a request based on Rule 68 is not required to be as specific as to precisely identify which documents shall be disclosed."11

3. The Third Request

With reference to the Standards of Professional Conduct for Prosecution Counsel12 , the Judges stressed that the "Prosecution is expected to fulfil its duties in good faith."13 The Appeals Chamber considered that the Defence had not demonstrated to its satisfaction that the Prosecution had "failed to discharge its obligations" under Rules 66(A)(ii) and 68.

4. The Fourth Request

The Judges held that there were "two aspects":

(1) The production by the Registrar to the Appellant of testimony given by witnesses during the course of open session hearings before the Tribunal

The Appeals Chamber "emphasised that only the Prosecution and the Defence (through the requirement of reciprocal disclosure under Rule 6714 of the Rules) are required to disclose evidence or material in connection with proceedings before the Tribunal." On the basis of Article 21(2)15 and (4)(b)16 of the Statute, the Registry has a duty "to make available to the public and in particular, the accused or appellant, Tribunal materials, subject to appropriate protective measures indicated by Chambers, to facilitate the preparation of defence or appeal"and "to assist counsel who seek access to testimony given in open session."

The Judges noted that the Registry provides "assistance in two ways."

First, "it maintains a computer web-site for the Tribunal that can be assessed by the public, including Defence counsel. On the web-site, the Registry normally posts an electronic version of the official transcript of testimony given by witnesses in cases before the Tribunal. There is a time-delay between a witness giving testimony in a case and the transcript of the testimony appearing on the web-site. A party wishing to obtain access to the testimony of a certain witness in a particular case may have to wait some while from the date the testimony was given until it can be read on the web-site."

Second, the Appeals Chamber stressed that there "is an arrangement whereby counsel may contact the Registry and request certain public documents such as transcripts and the Registrar may, where possible, grant the request."

(2) Non-public transcripts

The Judges reiterated that Rule 75(D)17 "specifically provides that once protective measures have been issued in respect of a victim or witness, only the Chamber granting such measures may vary or rescind them. [...] The onus however is on the requesting party to identify exactly what material it seeks and the purpose the material would be used for."

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1. "(A) Subject to the provisions of Rules 53 and 69, the Prosecutor shall make available to the defence in a language which the accused understands

(i) within thirty days of the initial appearance of the accused, copies of the supporting material which accompanied the indictment when confirmation was sought as well as all prior statements obtained by the Prosecutor from the accused; and
(ii) within the time-limit prescribed by the Trial Chamber or by the pre-trial Judge appointed pursuant to Rule 65 ter, copies of the statements of all witnesses whom the Prosecutor intends to call to testify at trial, and copies of all affidavits and formal statements referred to in Rule 94 ter; copies of the statements of additional prosecution witnesses shall be made available to the defence when a decision is made to call those witnesses.

(B) The Prosecutor shall, on request, permit the defence to inspect any books, documents, photographs and tangible objects in the Prosecutor’s custody or control, which are material to the preparation of the defence, or are intended for use by the Prosecutor as evidence at trial or were obtained from or belonged to the accused.
(C) Where information is in the possession of the Prosecutor, the disclosure of which may prejudice further or ongoing investigations, or for any other reasons may be contrary to the public interest or affect the security interests of any State, the Prosecutor may apply to the Trial Chamber sitting in camera to be relieved from an obligation under the Rules to disclose that information. When making such application the Prosecutor shall provide the Trial Chamber (but only the Trial Chamber) with the information that is sought to be kept confidential."
2. "The Prosecutor shall, as soon as practicable, disclose to the defence the existence of evidence known to the Prosecutor which in any way tends to suggest the innocence or mitigate the guilt of the accused or may affect the credibility of prosecution evidence."
3. "In relation to any step falling to be taken in connection with an appeal or application for leave to appeal, the Appeals Chamber or a bench of three Judges of that Chamber may exercise the like power as is conferred by Sub-rule (A) and in like manner and subject to the same conditions as are therein set out."
4. "An Appellant’s brief of argument setting out the grounds of appeal and authorities shall be filed within ninety days of filing of the notice of appeal pursuant to Rule 108."
5. "The rules of procedure and evidence that govern proceedings in the Trial Chambers shall apply mutatis mutandis to proceedings in the Appeals Chamber."
6. "(A) A party may apply by motion to present before the Appeals Chamber additional evidence which was not available to it at the trial. Such motion must be served on the other party and filed with the Registrar not less than fifteen days before the date of the hearing.
(B) The Appeals Chamber shall authorise the presentation of such evidence if it considers that the interests of justice so require."
7. See The Prosecutor v. Dusko Tadic ("Prijedor"), Case No. IT-94-1-A, Appeals Chamber, Decision on Appellant’s Motion for the Extension of the Time-Limit and Admission of Additional Evidence, 15 October 1998 (summarised in Judicial Supplement No. 1).
8. See The Prosecutor v. Zejnil Delalic et al. ("Celebici"), Case No. IT-96-21-T, Trial Chamber II, Decision on Motion by the Accused Zejnil Delalic for the Disclosure of Evidence (hereinafter the "Delalic Decision"), 26 September 1996, in which the Judges held that the Prosecution is required "to disclose all statements of the accused that it has in its possession. This is a continuing obligation." (emphasis added, para. 4)
9. "(A) The rules of evidence set forth in this Section shall govern the proceedings before the Chambers. The Chambers shall not be bound by national rules of evidence.
(B) In cases not otherwise provided for in this Section, a Chamber shall apply rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law.
(C) A Chamber may admit any relevant evidence which it deems to have probative value.
(D) A Chamber may exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial.
(E) A Chamber may request verification of the authenticity of evidence obtained out of court."
10. "Where a new fact has been discovered which was not known to the moving party at the time of the proceedings before a Trial Chamber or the Appeals Chamber, and could not have been discovered through the exercise of due diligence, the defence or, within one year after the final judgement has been pronounced, the Prosecutor, may make a motion to that Chamber for review of the judgement."
11. See the Delalic Decision (see footnote No. 8 above), in which Trial Chamber II ruled that the Defence in its Motion "must make a prima facie showing of materiality and that the requested evidence is in the custody or control of the Prosecution" (para. 9).
See also The Prosecutor v. Tihomir Blaskic ("Lasva River Valley"), Case No. IT-95-14-PT, Trial Chamber I, Decision on the Production of Discovery Materials, 27 January 1997 (hereinafter "Blaskic Decision"), in which the Judges, considering the test to be applied for discovery under Rule 68, held that "after having previously shown that they were in the possession of the Prosecutor, the Defence must present a prima facie case which would make probable the exculpatory nature of the materials sought." (para. 49)
See also The Prosecutor v. Hazim Delic. ("Celebici"), Case No. IT-96-21-T, Trial Chamber II, Decision on the Request of the Accused Pursuant to Rule 68 for Exculpatory Information, 24 June 1997, in which the Judges concluded "that the Defence has failed to show prima facie that the information it seeks to be disclosed is in fact exculpatory." (para. 18)
See also The Prosecutor v. Milorad Krnojelac ("Foca-KP-Dom"), Case No. IT-97-25-PT, Pre-Trial Judge Hunt, Decision on Motion by Prosecution to Modify Order for Compliance with Rule 68, 1 November 1999 (summarised in Judicial Supplement No. 9).
12. Prosecutor’s Regulation No. 2, 14 September 1999.
13. On the presumption of good faith on the part of the Prosecution, see The Prosecutor v. Tihomir Blaskic ("Lasva River Valley"), Case No. IT-95-14-PT, Trial Chamber I, Decision on the Defence Motion for Sanctions for Prosecutor’s repeated violations of Rule 68 of the Rules of Procedure and Evidence, 29 April 1998, in which it was held "that the Prosecutor’s obligation is, in part and of necessity, tinged with subjectivity, which also leads the Judges to presume that the Office of the Prosecutor has acted in good faith." (para. 21)
14. "(A) As early as reasonably practicable and in any event prior to the commencement of the trial:

(i) the Prosecutor shall notify the defence of the names of the witnesses that the Prosecutor intends to call in proof of the guilt of the accused and in rebuttal of any defence plea of which the Prosecutor has received notice in accordance with Sub-rule (ii) below;
(ii) the defence shall notify the Prosecutor of its intent to offer:
(a) the defence of alibi; in which case the notification shall specify the place or places at which the accused claims to have been present at the time of the alleged crime and the names and addresses of witnesses and any other evidence upon which the accused intends to rely to establish the alibi;
(b) any special defence, including that of diminished or lack of mental responsibility; in which case the notification shall specify the names and addresses of witnesses and any other evidence upon which the accused intends to rely to establish the special defence.

(B) Failure of the defence to provide notice under this Rule shall not limit the right of the accused to testify on the above defences.
(C) If the defence makes a request pursuant to Sub-rule 66 (B), the Prosecutor shall be entitled to inspect any books, documents, photographs and tangible objects, which are within the custody or control of the defence and which it intends to use as evidence at the trial.
(D) If either party discovers additional evidence or material which should have been produced earlier pursuant to the Rules, that party shall promptly notify the other party and the Trial Chamber of the existence of the additional evidence or material."
15. "In the determination of charges against him, the accused shall be entitled to a fair and public hearing, subject to article 22 of the Statute."
16. "In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality […] to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing".
17. "Once protective measures have been issued in respect of a victim or witness, only the Chamber granting such measures may vary or rescind them or authorise the release of protected material to another Chamber for use in other proceedings. If, at the time of the request for variation or release, the original Chamber is no longer constituted by the same Judges, the President may authorise such variation or release."