"Decision on Motion to Preserve and Provide Evidence"

22 April 1999
Judges Nieto-Navia [Presiding], Wang, Rodrigues, Hunt and Bennouna

On 16 November 1998, Esad Landzo was found guilty of several grave breaches of the Geneva Conventions and violations of the laws or customs of war and was sentenced to 15 years’ imprisonment. Mr Landzo appealed against the Judgement alleging inter alia that the Presiding Judge had slept through much of the trial and that his right to a fair and expeditious trial under Articles 20 and 21 of the Statute had thus been violated.

In a Motion filed on 4 February 1999, the appellant asserted that a daily video recording of court room proceedings contains evidence that the Judge was asleep during substantial portions of the trial. He requested first that the Appeals Chamber order that the video recording be preserved and second that a copy of the recording be provided to his Counsel.

The Submissions of the Parties

The appellant accepted the respondent’s submission that an order for the preservation of the evidence is not required since Sub-rule 81(A) of the Rules of Procedure and Evidence requires that the Registrar preserve the video recording as part of the trial record. The application was consequently withdrawn.

As to the second limb of the application, the respondent submitted that the appeal should be dismissed in limine since the matter should have been raised during the trial or, alternatively, that a decision on the Motion should be deferred until both appeal briefs have been filed. To the principal point the appellant replied that the Rules of Procedure and Evidence do not require such matters to be raised during trial and that the matter had, in any case, been brought to the attention of the Legal Officer and to the then President of the Tribunal. The appellant further argued that the issue is so fundamental that the Appeals Chamber should nevertheless take it into account in the interests of justice and that judicial notice should be taken of the Judge’s conduct.

The Decision

The Appeals Chamber dismissed the respondent’s submission that a decision on the motion be deferred and held that the validity of the ground of appeal will be decided in the appeal on the merits. The Appeals Chamber also ruled that the absence of any complaint of the alleged conduct during the trial raises no more than the issue of whether the appellant had waived his right to complain at the appeal. That issue, along with the question of whether evidence of the informal communications with the former President and the Legal Officer is admissible, are matters which must be decided in the appeal. In respect of the latter issue, the Appeals Chamber noted that those persons cannot be subpoenaed to testify as witnesses in the matter at issue since their work, which is integral to the operation of the Tribunal, must be protected by confidentiality.

Having found that the applicant’s request for access to the video record did not contain the evidence required, pursuant to Rule 54, the Appeals Chamber dismissed the Motion. However, it added that if such evidence were submitted with a fresh motion, relief would be granted.

Separate Opinion of Judge Hunt1

Judge Hunt agreed with the decisions of the Majority but set out his own reasoning. In respect of the refusal to issue an order for access to the video recording, the Judge considered the application against the background of the Tribunal’s obligation to ensure a fair and expeditious trial. He held that where the right to access is not conceded, as a common sense solution, a party must identify the legitimate forensic purpose for which access is sought. Although this need not be proved by establishing a prima facie case, the party seeking access must demonstrate that he has a case and "that it is likely - or at least ‘on the cards’- that the material produced will materially assist" his case.

In the present case, the evidence submitted would have to suggest that the Presiding Judge did in fact sleep during portions of the trial.

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1. Separate Opinion of Judge David Hunt on Motion by Esad Landzo to Preserve and Provide Evidence, 22 April 1999.