The Prosecutor v. Blagoje Simic et al. - Case No. IT-95-9-T

“Reasons for Decision on Prosecution’s Motion to Use Telephone Interviews”

11 March 2003
Trial Chamber II (Judges Mumba [Presiding], Williams and Lindholm)

Procedural Background

· On 11 September 2001, the Trial Chamber denied the request of the Prosecution to admit the transcripts of three telephone interviews given by Miroslav Tadic (“the Accused”) to the Prosecution on 26 and 29 April, and 22 May 1996 (“September 2001 Decision”).¹

· On 20 February 2003, Trial Chamber II rendered an oral decision (“Oral Decision”) denying the Prosecution’s oral motion seeking leave to cross-examine the Accused as to his credibility with regard to inconsistencies contained in the above-mentioned interviews.

Reasons for the Oral Decision

The effective service of the Indictment

The main issue, as explained by the Trial Chamber in its September 2001 Decision, is that the Trial Chamber was “not satisfied that effective service of the Indictment was made prior to any of the telephone interviews, and […] that the Accused did not fully appreciate the seriousness of the Indictment at the material time nor understand fully the nature of the Indictment and the proceedings”.²

The Trial Chamber explained that under the Statute and the Rules the Prosecution is under an obligation to validly serve the Indictment on the Accused and that there can be no derogation from this rule. The Prosecution “has to undertake every step to explain fully the Indictment to the indicted person prior to making an interview with him”.³ The Trial Chamber relied mainly on Article 21(4)(a) of the Statute according to which the Accused has “to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him”. The Trial Chamber held that “[t]his right not only means that he shall be informed about the legal qualification of the charge against him, but also about the facts underlying the charge, in order to prepare adequately his defence”.⁴

The Trial Chamber considered that, since the Indictment had not been served in full on the Accused prior to the said telephone interviews, his consent to conduct those interviews was not informed.

Furthermore, the Trial Chamber took into consideration that the free exercise of the right of the Accused under Rule 85(C) to appear as a witness in his Defence “would be fettered […] if it exposed him to risk that evidence obtained prior to the oral testimony given in court and in disregard of the minimum guarantees pursuant to Article 21(4) of the Statute may be considered for impeachment purposes to undermine the credibility of the Accused’s trial testimony”.⁵ Indeed it held that impeaching the credibility of the Accused in this way would in turn “affect issues of criminal responsibility”⁶ and that this “would not be in accordance with the principles of fundamental justice”.⁷

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1. Decision on Prosecutor’s Request to Add Further Exhibits to the Confidential Prosecution Exhibit List Filed on the 9th of April 2001, 11 September 2001.
2. September 2001Decision, page 3.
3. Para. 5.
4. Para. 6.
5. Para. 7.
6. Para. 8.
7. Ibid. Such principles include the fairness and integrity of the trial.