The Prosecutor v. Radoslav Brdjanin and Momir Talic - Case No. IT-99-36-PT

"Public Version of the Confidential Decision on
the Alleged Illegality of Rule 70 of 6 May 2002"

23 May 2002
Trial Chamber II (Judges Agius [Presiding], Janu and Taya)

Procedural Background

· On 19 March 2002, Radoslav Brdjanin filed a confidential amended Motion regarding Rule 70 of the Rules of Procedure and Evidence1, its use, and disclosure pursuant thereto as well as confidential annex A.

· On 2 April 2002, Momir Talic filed Rule 70 submissions and a confidential annex thereto.

· On 6 May 2002, the Trial Chamber rendered a confidential Decision on the alleged illegality of Rule 70 of the Rules.

· On 13 May 2002, Radoslav Brdjanin filed a confidential Motion for the issuance of a redacted version of the Decision.

The Decision

The Trial Chamber dismissed the Motion of Radoslav Brdjanin and the submissions of Momir Talic.

The Reasoning

The Trial Chamber referred to the Decision of Trial Chamber I on the Prosecutor's Motion for Video Deposition and Protective Measures dated 11 November 1997 in the case The Prosecutor v. Tihomir Blaskic2 and compared "[t]he function of Rule 70 in proceedings before the Tribunal […] to the concept of public interest immunity available in some systems of law" which was "used to protect the identity of informers for their own safety as well as to ensure that the authorities have a continuous supply of information from these sources." The Trial Chamber added that "such immunity is regularly extended when disclosing certain information to the defence might jeopardise the security of police or military operations." It expressed the belief that "only such measures restricting the rights of the accused, which are strictly necessary, ought to be adopted." The Trial Chamber emphasised that "the exception to disclose found in paragraphs 70(B) to (E) applies only to information provided on a confidential basis which has been used solely for the purpose of generating new evidence and, in any event, does not relieve the Prosecution of the obligation, pursuant to Rule 68, to disclose to the Defence 'the existence of material 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 It noted that "[p]ursuant to Rule 70(C) and (D), a party to proceedings may seek to introduce the initial information in evidence during trial." The Trial Chamber stated that "[u]nder those circumstances, Rule 70(B) requires the party seeking to introduce the initial information in evidence to disclose it."

In addition, it considered that "the initial information may have generated new evidence" and found that such new evidence "does not come within the purview of Rule 70." It underscored that "[n]ew evidence so obtained does not enjoy confidential treatment pursuant to Rule 70(B)", that "the party in its possession must comply with the obligation to disclose contained in Rules 664 and 675" and that "[t]he limitations posed by Rule 70(B) to (E) on the powers of the Trial Chamber do not apply in the case of such new evidence." Consequently, the Trial Chamber held (1) that "if the Prosecution seeks to introduce the initial information into evidence, it will need to disclose it"; and that (2) "[i]f the Prosecutor does not seek to present it as evidence, given that Rule 70 does not affect the Prosecution's duty to disclose material that is subject of Rule 68, the Prosecution will have to disclose to the Defence such exculpatory material if it exists within the initial information obtained pursuant to Rule 70."

The Trial Chamber considered it "important and inherent in the concept of equality of arms that each party be afforded a reasonable opportunity to present his or her case under conditions that do not place him at an appreciable disadvantage vis-à-vis his opponent." It specified that "the concept of equality of arms could be exemplified having regard to the right to call witnesses as between the Prosecution and the Defence, as well as the duty of the Prosecution to disclose relevant material to the Defence." However the Trial Chamber noted that the principle that the admissibility of evidence is a matter for the courts to assess themselves generally limits this duty. It concluded that "the overall 'fairness' test applies keeping in mind the very special and unique nature of the provisions of Rule 70 and the ultimate remedy that is always at the disposal of the Trial Chamber pursuant to paragraph G of the Rule." As a result, the Trial Chamber, basing itself on the internationally accepted application of the principle of equality of arms did "not perceive any conflict between what is contained in Rule 70(B) to (E) and the said principle." It stated that "[g]iven the special need for a provision like that of Rule 70 in the context of the unique situation of this Tribunal and the type of entities that there may be, apart from the equal applicability of Rule 70(C) between the parties, Rule 70(G) provides the ultimate remedy should the need arise for its application."

In view of the above, the Trial Chamber concluded that "it would appear that the only difference in treatment stems from the requirement in Rule 70(F) that the accused is required to apply to the Trial Chamber to obtain confidential treatment pursuant to Rule 70 of specific information, whilst the Prosecution need not apply." It did "not find that this disparity of treatment amounts to an infringement of the equality of arms principle" since the Trial Chamber considered that "it logically corresponds to the different roles of the Prosecution and of the Defence and their respective duties to disclose material to the opposing party." The Trial Chamber held that the Office of the Prosecutor must "be able to guarantee confidentiality pursuant to Rule 70 of information provided to it as a matter of course, as part and parcel of the mandate bestowed upon it6, and so as to enable it to properly carry out its mandate." It reiterated "the exceptional and limited type of information Rule 70(B) applies to, which makes more sense considering the special investigative role of the Prosecutor than that of the accused, who in addition does not have the same duty to disclose material to the Prosecution except in the case contemplated under Rule 67(C)." Moreover, the Trial Chamber found that the requirement that the Defence apply to it "does not place the Defence at a 'distinct disadvantage'." It specified that "[t]he application to the Trial Chamber can be made confidentially and ex parte, to ensure that there is no prejudice to the Defence." Last, it held that "the requirement that the information must already be 'in the possession of the accused' is not to be interpreted literally, but should allow the Defence to make an application in advance of material that they may seek to receive confidentially pursuant to Rule 70(B)."

The Trial Chamber stated that it "retains control of proceedings" pursuant to Rule 70(G) and can "exercise its role as final arbiter between the parties."7 It added that "[t]he public interest served in ensuring that information given in confidence to one of the parties remains confidential finds its limitation in the obligation imposed on this Tribunal by Articles 208 and 219 of the Statute to ensure a fair trial." It specified that the decision on whether relevant evidence should nevertheless not be permitted rests on the Trial Chamber and "is part of its power to control its proceedings in such a way as to ensure that a trial is conducted fairly." It emphasised that "[t]he Trial Chamber has the ultimate responsibility to undertake a balancing exercise" and "the power under Rule 89(D)10 read in conjunction with Rule 70(G) to exclude evidence if its finds that its probative value is substantially outweighed by the need to ensure a fair trial."11 The Trial Chamber concluded that it "is empowered under Rule 70(G) to examine a piece of evidence also ex post, possibly in the ensemble of the case looking at the proceedings as a whole to determining fairness."

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1."(A) Notwithstanding the provisions of Rules 66 and 67, reports, memoranda, or other internal documents prepared by a party, its assistants or representatives in connection with the investigation or preparation of the case, are not subject to disclosure or notification under those Rules.
(B) If the Prosecutor is in possession of information which has been provided to the Prosecutor on a confidential basis and which has been used solely for the purpose of generating new evidence, that initial information and its origin shall not be disclosed by the Prosecutor without the consent of the person or entity providing the initial information and shall in any event not be given in evidence without prior disclosure to the accused.
(C) If, after obtaining the consent of the person or entity providing information under this Rule, the Prosecutor elects to present as evidence any testimony, document or other material so provided, the Trial Chamber, notwithstanding Rule 98, may not order either party to produce additional evidence received from the person or entity providing the initial information, nor may the Trial Chamber for the purpose of obtaining such additional evidence itself summon that person or a representative of that entity as a witness or order their attendance. A Trial Chamber may not use its power to order the attendance of witnesses or to require production of documents in order to compel the production of such additional evidence.
(D) If the Prosecutor calls a witness to introduce in evidence any information provided under this Rule, the Trial Chamber may not compel that witness to answer any question relating to the information or its origin, if the witness declines to answer on grounds of confidentiality.
(E) The right of the accused to challenge the evidence presented by the Prosecution shall remain unaffected subject only to the limitations contained in Sub-rules (C) and (D).
(F) The Trial Chamber may order upon an application by the accused or defence counsel that, in the interests of justice, the provisions of this Rule shall apply mutatis mutandis to specific information in the possession of the accused.
Nothing in Sub-rule (C) or (D) above shall affect a Trial Chamber's power under Rule 89(D) to exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial."
2. The Prosecutor v. Tihomir Blaskic ("Lasva River Valley"), Case No. IT-95-14-T, Trial Chamber I, Decision of Trial Chamber I on the Prosecutor's Motion for Video Deposition and Protective Measures, 11 November 1997, in which the Trial Chamber found that "the exceptions to the obligation to disclose contained in Sub-rules 70(B) to (E) were introduced into the Rules to permit the use, as and when appropriate, of certain information which, in the absence of explicit provisions, would either not have been provided to the Prosecutor or have been unusuable on account of its confidential nature or its origin." It referred to the exception to the obligation to disclose in terms of an "exceptional but strictly delineated right" which had "moreover been recognised mutatis mutandis for the accused by Sub-rule 70(F) when it was amended in July 1997" (para. 10).
3. See The Prosecutor v. Tihomir Blaskic ("Lasva River Valley"), Case No. IT-95-14-T, Trial Chamber I, Decision on the Prosecution and Defence Motions dated 25 January 1999 and 25 March 1999 respectively, 22 April 1999 (summarised in Judicial Supplement No. 4).
4. "(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 written statements taken in accordance with Rule 92 bis; 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."

5. "(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 paragraph (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 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 disclosed earlier pursuant to the Rules, that party shall immediately disclose that evidence or material to the other party and the Trial Chamber."
6. Article 16(1) of the Statute provides that "[t]he Prosecutor shall be responsible for the investigation and prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1 January 1991."
7. See The Prosecutor v. Zejnil Delalic et al. ("Celebici Camp"), Case No. IT-96-21-A, Appeals Chamber, Judgement, 20 February 2001 (summarised in Judicial Supplement No. 23), in which the Appeals Chamber characterised itself "as the final arbiter of the law of the Tribunal" in respect of errors of law (para. 35).
8. Article 20(1) of the Statute reads as follows: "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."
See The Prosecutor v. Dusko Tadic ("Prijedor"), Case No. IT-94-1-A, Appeals Chamber, Judgement, 15 July 1999 (summarised in Judicial Supplement No. 6).
9. Article 21(2) of the Statute provides inter alia:
"In the determination of charges against him, the accused shall be entitled to a fair and public hearing".
10. "A Chamber may exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial."
11. See The Prosecutor v. Tihomir Blaskic ("Lasva River Valley"), Case No. IT-95-14-T, Trial Chamber I, Decision of Trial Chamber I on Protective Measures for General Philippe Morillon, Witness of the Trial Chamber, 12 May 1999 (summarised in Judicial Supplement No. 5).