The Prosecutor v. Mladen Naletilic and Vinko Martinovic - Case No. IT-98-34-PT
"Decisions on Prosecution Amended Motion for Approval of Rule 94 ter Procedure (Formal Statements) and on Prosecutor's Motion to take Depositions for Use at Trial (Rule 71)"
10 November 2000
Trial Chamber I (Judges Rodrigues [Presiding], Riad and Wald)
Rules 71 and 94 ter of the Rules of Procedure and Evidence - Depositions - Affidavit Evidence.
On 22 June 2000, Trial Chamber I decided to deny the Prosecution Motion for Approval of Rule 94 ter Procedure (Formal Statements) in the present case and noted "that Article 230 of the Law on Criminal Proceedings" of the Federation of Bosnia and Herzegovina (hereinafter "BiH") "does allow witnesses to take an oath before an investigating judge during the pre-trial stage of a case in certain circumstances" (page 2).
On 11 October 2000, the Prosecutor filed both the Amended Motion for Approval of Rule 94 ter Procedure (Formal Statements, hereinafter "the first Motion") and the Motion to Take Depositions for Use at Trial (Rule 71, hereinafter "the second Motion") in which the Prosecution sought authorisation to take depositions for 23 witnesses in Sarajevo in closed session pursuant to Rule 71 of the Rules1. In the first Motion the Prosecutor proposed that:
(1) the procedure take place before an investigating judge from the Republic of BiH;
(2) witnesses be transported to Sarajevo by the Tribunal's Victims and Witnesses Section instead of being called through domestic channels;
(3) the procedure may take place in the Tribunal's Sarajevo field office if the identity of the witness and the confidentiality of their statements cannot be guaranteed in Sarajevo court facilities.
On 23 and 24 October 2000 respectively, Defence for the Accused Vinko Martinovic and Mladen Naletilic replied and both Defence Counsel addressed the objections of the two accused to the two Prosecution Motions.
The Trial Chamber granted the first Motion and, in respect of the second Motion, ordered that:
(1) depositions of the persons identified in Confidential Annex A to the Motion may be taken prior to the commencement of the trial for use at trial pursuant to Rule 71;
(2) the question of location for the deposition procedure, whether the sessions are in open or closed session and in the presence of the accused, be the subject of further discussions between the parties, the Presiding Officer and representatives of the Registry and that, should agreement not be reached, the matter be referred back to the Pre-Trial Judge.
I - Decision on Prosecution Amended Motion for Approval of Rule 94 ter Procedure (Formal Statements)
Trial Chamber I first considered "that the procedure proposed by the Prosecutor does provide for the statements to be taken before a BiH investigating judge, and that it thereby meets the fundamental concerns" that it had expressed in its Decision of 22 June 2000.
The Trial Chamber further noted "that the purpose of Rule 94 ter2 is 'to contribute to the expedition of cases before the International Tribunal, by providing a mechanism whereby affidavit evidence could be brought before a Trial Chamber in certain circumstances, avoiding the need to call every witness relied upon in relation to a fact in dispute especially when the testimony is cumulative' but that 'the desire for expedition is however, constrained by the need to protect the rights of an accused'"3.
Trial Chamber I found "that the proposal made by the Prosecutor in the Motion represents an acceptable compromise between the technical requirements of Rule 94 ter, and the need to ensure the safety and security of witnesses, and does not infringe the rights of the accused".
II - Decision on Prosecutor's Motion to Take Depositions for Use at Trial (Rule 71)
The Judges first noted "that Rule 71 is an exception to the general principle expressed in Rule 90(A)4 that a witness should testify directly before the Trial Chamber".
Trial Chamber reiterated that the Prosecutor had considered the witnesses for whom depositions were proposed to be less "significant and important" than witnesses who would testify directly before the Trial Chamber and proposed that the depositions ought to "be taken prior to the commencement of the trial".
Trial Chamber I further noted "that Rule 71 contains no requirement that a witness be unable to travel to the Tribunal" and that it specifically envisages that deposition evidence be "taken at a location away from the seat of the Tribunal".
The Trial Chamber also considered that Rule 71 was amended at the 21st Plenary Session on 15-17 November 2000 and that the requirement of "exceptional circumstances" was removed "in order to make deposition evidence more widely available as a tool for expediting proceedings, so long as there is no reason why that would be contrary to justice in the particular case".
Trial Chamber I pointed out "that in the exercise of its discretion pursuant to Rule 71", the Trial Chamber had been "guided by the fact that the witnesses proposed for deposition" would not present "eyewitness evidence directly implicating the accused in the crimes charges", or alternatively, their evidence would be of a repetitive nature in the sense that many witnesses would give evidence of similar facts.
The Trial Chamber then found "that the subsidiary nature of the witnesses identified by the Prosecutor for deposition mitigates any disadvantage to the Trial Chamber of being unable to directly observe the demeanour of the witness or to ask questions".
The Judges noted "that, as with other forms of indirect evidence, deposition evidence may be accorded less weight than evidence given directly in the courtroom". Trial Chamber I based this finding on the Decision on the Defence Motions to summon and protect Defence Witnesses, and on the giving of Evidence by Video-Link rendered by Trial Chamber II on 25 June 1996 in the case The Prosecutor v. Dusko Tadic5 and on the Decision on the Motion to allow Witnesses K, L and M to give their Testimony by Means of Video-Link Conference rendered by Trial Chamber II quater on 28 May 1997 in the case The Prosecutor v. Zejnil Delalic et al.6
1. "(A) Where it is in the interests of justice to do so, a Trial Chamber may order, proprio motu or at the request of a party, that a deposition be taken for use at trial, whether or not the person whose deposition is sought is able physically to appear before the Tribunal to give evidence. The Trial Chamber shall appoint a Presiding Officer for that purpose.
(B) The motion for the taking of a deposition shall indicate the name and whereabouts of the person whose deposition is sought, the date and place at which the deposition is to be taken, a statement of the matters on which the person is to be examined, and of the circumstances justifying the taking of the deposition.
(C) If the motion is granted, the party at whose request the deposition is to be taken shall give reasonable notice to the other party, who shall have the right to attend the taking of the deposition and cross-examine the person whose deposition is being taken.
(D) Deposition evidence may be taken either at or away from the seat of the Tribunal, and it may also be given by means of a video-conference.
(E) The Presiding Officer shall ensure that the deposition is taken in accordance with the Rules and that a record is made of the deposition, including cross-examination and objections raised by either party for decision by the Trial Chamber. The Presiding Officer shall transmit the record to the Trial Chamber."
2. "To prove a fact in dispute, a party may propose to call a witness and to submit in corroboration of his or her testimony on that fact affidavits or formal statements signed by other witnesses in accordance with the law and procedure of the State in which such affidavits or statements are signed. These affidavits or statements are admissible provided they are filed prior to the giving of testimony by the witness to be called and the other party does not object within seven days after completion of the testimony of the witness through whom the affidavits are tendered. If the party objects and the Trial Chamber so rules, or if the Trial Chamber so orders, the witnesses shall be called for cross-examination."
3. The Prosecutor v. Dario Kordic and Mario Cerkez ("Lasva River Valley"), Case No. IT-95-14/2-AR73.6, Appeals Chamber, Decision on Appeal regarding the Admission into Evidence of seven Affidavits and one formal Statement, 18 September 2000 (summarised and analysed in Judicial SupplementNo. 18).
4. "Subject to Rules 71 and 71 bis, witnesses shall, in principle, be heard directly by the Chambers."
5. The Prosecutor v. Dusko Tadic ("Prijedor"), Case No. IT-94-1-T, Trial Chamber II, Decision on the Defence Motions to summon and protect Defence Witnesses, and on the giving of Evidence by Video-Link, 25 June 1996 (hereinafter "Tadic Decision"), in which the Judges considered that the "evidentiary value of testimony provided by video-link, although weightier than that of testimony given by deposition, is not as weighty as testimony given in the courtroom." (para. 21)
6. The Prosecutor v. Zejnil Delalic et al. ("Celebici"), Case No. IT-96-21-T, Trial Chamber II quater, Decision on the Motion to allow Witnesses K, L and M to give their Testimony by Means of Video-Link Conference, 28 May 1997, in which the Judges noted "that the Tadic Decision sets forth the view that the evidentiary value of testimony provided by video-link is not as weighty as testimony given in the courtroom" (para. 18).
"Decision on the Request of the Accused to be Given the Opportunity to be Interrogated Under Application of a Polygraph"
27 November 2000
Trial Chamber I (Judges Rodrigues [Presiding], Riad and Wald)
Article 18(2) and (3) of the Statute - Rules 42, 43, 63, 84 bis and 85(C) of the Rules of Procedure and Evidence - Article 18(a) of the Directive on Assignment of Counsel - Polygraph examination - Reliability of evidence - Credibility of the witnesses and the accused.
On 12 October 2000, Mladen Naletilic filed a Request to be Given the Opportunity to be Interrogated Under Application of a Polygraph.
On 1 November 2000, the Prosecutor responded and stated her objections.
The Trial Chamber denied the Request.
Trial Chamber I first stated that the Rules of Procedure "do not address the use of polygraph examinations" in proceedings before the Tribunal.
The Trial Chamber further interpreted Article 18(2)1 and (3)2 of the Statute and Rules 42, 43 and 633 of the Rules "governing the rights of suspects and accused persons who are questioned by the Prosecutor" as leaving the Prosecutor with the discretion of questioning or not questioning these suspects and accused.
Trial Chamber I also took into account the specific circumstances of the case, i.e. that the accused is indigent and that, pursuant to Article 18(a) of the Directive on Assignment of Counsel4, the Tribunal is required to pay only the expenses of legal representation "necessarily and reasonably incurred".
The Trial Chamber referred to "the consensus in the scientific community" as well as to the case-law of the United States of America, Germany and the United Kingdom "that polygraph examinations are an unreliable indication of credibility" and that, accordingly, it is not a necessarily and reasonably incurred expense.
Trial Chamber I also noted "that the introduction of polygraph evidence is unlikely to expedite the proceedings" because, were it admitted, "the Trial Chamber would undoubtedly be confronted with collateral issues such as the reliability of the polygraph evidence, and the conditions under which the polygraph was administered".
The Judges emphasised that "it is for the Trial Chamber to determine the credibility of the witnesses5 and the accused, that in the present state of the law and technology, polygraph evidence would not be of material assistance to it" in performing their function, and that the appropriate course for an accused who wishes to address the Trial Chamber about the case against him/her is either to appear as a witness in his/her own case pursuant to Rule 85(C)6 or to make a statement pursuant to Rule 84 bis7.
1. "The Prosecutor shall have the power to question suspects, victims and witnesses, to collect evidence and to conduct on-site investigations. In carrying out these tasks, the Prosecutor may, as appropriate, seek the assistance of the State authorities concerned."
2. "If questioned, the suspect shall be entitled to be assisted by counsel of his own choice, including the right to have legal assistance assigned to him without payment by him in any such case if he does not have sufficient means to pay for it, as well as to necessary translation into and from a language he speaks and understands."
3. "(A) Questioning by the Prosecutor of an accused, including after the initial appearance, shall not proceed without the presence of counsel unless the accused has voluntarily and expressly agreed to proceed without counsel present. If the accused subsequently expresses a desire to have counsel, questioning shall thereupon cease, and shall only resume when the accused's counsel is present.
(B) The questioning, including any waiver of the right to counsel, shall be audio-recorded or video-recorded in accordance with the procedure provided for in Rule 43. The Prosecutor shall at the beginning of the questioning caution the accused in accordance with Rule 42 (A)(iii)."
4. "Where counsel has been assigned, the costs and expenses of legal representation of the suspect or accused necessarily and reasonably incurred shall be met by the Tribunal subject to the budgetary provisions, rules and regulations, and practice set by the United Nations."
5. On the definitions of the reliability and credibility of a witness' evidence and on the distinction to be drawn between the two notions, see The Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic ("Foca"), Case No. IT-96-23-T, Trial Chamber II, Decision on Motion for Acquittal, 3 July 2000 (summarised in Judicial Supplement No. 18).
6. "If the accused so desires, the accused may appear as a witness in his or her own defence."
7. "(A) After the opening statements of the parties or, if the defence elects to defer its opening statement pursuant to Rule 84, after the opening statement of the Prosecutor, if any, the accused may, if he or she so wishes, and the Trial Chamber so decides, make a statement under the control of the Trial Chamber. The accused shall not be compelled to make a solemn declaration and shall not be examined about the content of the statement.
(B) The Trial Chamber shall decide on the probative value, if any, of the statement."
"Decision on Prosecution Motion to amend Count 5 of the Indictment"
28 November 2000
Trial Chamber I (Judges Rodrigues [Presiding], Riad and Wald)
Rule 50 of the Rules of Procedure and Evidence - New count/charge - Definition - Article 52 of Geneva Convention III of 1949 - Interests of justice.
An amendment constitutes a new charge/count if it is based upon a type of offence different from those already contained in the Indictment.
In a 22-count indictment dated 18 December 1998, Vinko Martinovic and Mladen Naletilic were charged with crimes against humanity, grave breaches of the Geneva Conventions of 1949 and violations of the laws and customs of war for their role in acts alleged to have taken place in and around the city of Mostar in Bosnia-Herzegovina between 1993 and 1994. The indictment alleges that the two co-accused were responsible for forcing prisoners from various detention centres to perform dangerous military tasks such as carrying ammunition and explosives across the confrontation line and using prisoners to draw enemy fire. In count 5 of the Indictment, these acts are characterised as violations of the laws and customs of war under Article 3 of the Statute1, and recognised by Article 51 of Geneva Convention IV as well as Articles 49 and 50 of Geneva Convention III2.
On 11 October 2000, the Prosecutor filed a Motion to Amend count 5 of the Indictment seeking to add to count 5 of the Indictment pursuant to Rule 50(A)3 a reference to Article 52 of Geneva Convention III which prohibits dangerous and humiliating labour. The Prosecutor did not seek to add any new factual allegations in the proposed amendment and no additional witnesses would be required as a result.
On 23 and 24 October 2000 respectively, Defence Counsel for Vinko Martinovic and Mladen Naletilic addressed their objections to the Motion.
The Trial Chamber granted the Prosecutor's Motion and ordered that the accused enter a plea to the charge under Article 52 of Geneva Convention III.
Trial Chamber I identified the issue as follows: even though the Prosecutor proposes to include only the reference to Article 52 of Geneva Convention II in existing count 5, is the amendment a new count/charge given that the two words "counts" and "charges" are used interchangeably throughout the Rules.
The Trial Chamber considered that it would be possible for an accused to enter a plea to a charge under Article 52 of Geneva Convention III different from that made to the other sections of the Geneva Conventions mentioned in Count 5 of the Indictment.
Trial Chamber I found that Article 52 of Geneva Convention III constitutes a type of offence different from those already referred to in count 5 of the Indictment "and that the amendment proposed by the Prosecutor thereby constitutes a new charge/count"4.
The Trial Chamber held that the interests of justice require that the Prosecutor's proposed amendment "take the form of a new count, and that each of the accused be given an opportunity to enter a plea in relation to it".
Trial Chamber I also found that the amendment would "not result in any prejudice to the accused, as the Indictment has always contained the factual allegations to support a charge under Article 52 of Geneva Convention II and that it is not necessary to grant the Defence any additional time to prepare for trial".
1. "The International Tribunal shall have the power to prosecute persons violating the laws or customs of war. Such violations shall include, but not be limited to:
(a) employment of poisonous weapons or other weapons calculated to cause unnecessary suffering;
(b) wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
(c) attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings;
(d) seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science;
(e) plunder of public or private property."
(a) at any time before its confirmation, without leave;
(b) between its confirmation and the assignment of the case to a Trial Chamber, with the leave of the Judge who confirmed the indictment, or a Judge assigned by the President; and
(c) after the assignment of the case to a Trial Chamber, with the leave of that Trial Chamber or a Judge of that Chamber, after having heard the parties.
(ii) After the assignment of the case to a Trial Chamber
it shall not be necessary for the amended indictment to be confirmed.
(iii) Rule 47 (G) and Rule 53 bis apply mutatis mutandis to the amended indictment."
4. On the definition of a new charge, see also The Prosecutor v. Milorad Krnojelac ("Foca - KP-Dom Camp"), Case No. IT-97-25-PT, Trial Chamber II, Decision on Prosecutor's Response to Decision of 24 February 1999, 20 May 1999 (summarised in Judicial Supplement No. 5).