The Prosecutor v. Blagojevic et al. - Case No. IT-02-60-AR73/AR73.2/AR73.3

“Decision”

8 April 2003
Appeals Chamber (Judges Pocar [Presiding], Jorda, Shahabuddeen, Güney and Gunawardana)

Procedural Background

· On 21 January 2003, Trial Chamber II rendered its “Decision on Joint Defence Motions for Reconsideration of Trial Chamber’s Decision to Review all Discovery Materials Provided to the Accused by the Prosecution” (“Impugned Decision”). The Impugned Decision ordered that the Prosecution deliver to the Trial Chamber copies of statements of all witnesses the Prosecution intends to call at trial and copies of all exhibits the Prosecution intends to tender at trial (“Disclosure materials”). It also requested that the disclosure materials be provided on CD-ROM in addition to paper copies “when possible”.

· On 10 February 2003, on receiving motions from the three Accused to appeal the Impugned Decision¹, the Trial Chamber granted them a certificate to appeal under Rule 73.²

· On 14, 17 and 18 February 2003, respectively, Nikolic, Jokic and Blagojevic filed their appeal against the Impugned Decision.³

· On 27 February 2003, the President of the Tribunal assigned the case to the Appeals Chamber.⁴

· On 28 February 2003, the Prosecution filed its consolidated response to the three appeals.⁵

The Decision

The Appeals Chamber dismissed all three appeals.

The Reasoning

Nikolic’s appeal

Nikolic took no position on the question of the two other Accused as to whether the Trial Chamber is entitled to receive the disclosure materials. He only submitted that those materials should be filed in both English and Bosnian/Croatian/Serbian (“BCS”) and provided on paper copies and on identical CD-ROMs to the Trial Chamber and all four Accused.

The Prosecution did not object to providing a CD-ROM of the disclosure materials to Nikolic but objected to the request that paper copies be filed with the Registry as it considers that the paper copies would be too voluminous.

The Appeals Chamber held that the way how the delivery of disclosure materials should be effected is a matter within the discretion of the Trial Chamber. It found that Nikolic’s Appeal did not need to be answered as his Defence had already received the said materials in paper copies and as the Prosecution had agreed to provide the requested CD-ROMs. The Appeals Chamber rejected Nikolic’s argument that the disclosure materials should be filed with the Registry before they are delivered to the Trial Chamber as it found that the disclosure materials are only expected to form part of the trial record to the extent that they are subsequently given in evidence.

Jokic’s and Blagojevic’s Appeals

The argument that neither the Statute nor the Rules allow the Trial Chamber to receive the disclosure materials

Jokic alleged that the Impugned Decision was in error because neither the Statute nor the Rules of the International Tribunal confer any power on the Trial Chamber to require the pre-trial delivery of documents disclosed by the Prosecution to the Accused pursuant to Rules 66-68 of the Rules. In Jokic’s view, since the orders of the Trial Chamber for the disclosure of the materials were made outside the ambit of the Rules, the Appeals Chamber should take the opportunity to overrule these orders.

Blagojevic argued that the Rules do not authorise the pre-trial Judge or a Trial Chamber to review the entire Prosecution case in non-testimonial form months in advance of trial. In his view, pursuant to Rule 65 ter(E)(ii)(b), a pre-trial Judge receives only a “summary of the facts on which each witness will testify” and not the statements of witnesses. In Blagojevic’s view, the fundamental question is whether a Trial Chamber is duty-bound to follow the Rules or whether it can, on an ad hoc basis and as it considers fit, interpret the Rules beyond their plain and ordinary meaning.

The Prosecution expressed its view that by reviewing the disclosure materials, the Trial Chamber will be better prepared to manage the case.

Interpretation and application of the Rules⁶

The Appeals Chamber observed that the Rules are not exhaustive as to the detailed steps or measures that Chambers may take in fulfilling the mandate of the Tribunal . It held that “the fundamental principles of justice set out in the Statute and international law […] set the parameters for the interpretation and application of the Rules” and, in the words of the Appeals Chamber in Aleksovski, that “[t]he purpose of the Rules is to promote a fair and expeditious trial,⁷ and Trial Chambers must have the flexibility to achieve this goal”.⁸ It noted that “it is plain from the successive amendments of the Rules⁹ that the Rules have been refined over the years through the practice of the Chambers in applying them”, provided that such new practice “serves the mandate of the Tribunal and conforms to internationally recognised standards”. The Appeals Chamber held that “[t]o claim that the power to order the delivery of the Disclosure materials is non-existent because neither the Statute nor the Rules expressly provide for it, is not sufficient to establish that there was an error in the Impugned Decision ” and that an error is something that “will prejudice the interests of a party to the case”. In other words, it held that “[a] decision which is in conformity with the principles of justice, even though not based on a written rule, does not prejudice the interests of the party”. Indeed it found that the Impugned Decision was “aimed at ensuring a fair and expeditious trial, […] a right of the Accused as recognised in Article 20(1) and Article 21(4)(c) of the Statute” and, in keeping with the finding of the Trial Chamber, that the disclosure materials will “assist 1) the pre-trial Judge in fulfilling his obligations under Rule 65 ter, 2) the Trial Chamber in fulfilling its obligations under Rule 73 bis (such as shortening the length of examination-in-chief, deciding on the number of witnesses the Prosecution may call, and determining the amount of time available to the Prosecution to present evidence), 3) the Trial Chamber in fulfilling its obligations under Rule 71 to order depositions, and 4) the Trial Chamber in determining whether to apply Rule 98 in ordering the production of additional evidence by the parties”.

The scope of Article 65 ter¹⁰

The Appeals Chamber found that, by alleging that Rule 65ter allows a pre -trial Judge only to receive a summary of the facts on which each witness will testify and not the statements of witnesses, the Appellant has overlooked Rule 65ter (B), which provides that “the pre-trial Judge shall ensure that the proceedings are not unduly delayed and shall take any measure necessary to prepare the case for a fair and expeditious trial”. It held that “the terms of Rule 65 ter may be clear but not intended to be exhaustive” and that the “pre-trial Judge’s powers are not confined to what is specified in the rule, as long as his powers are exercised consistently with the provision of Rule 65 ter(B)”.¹¹ As to the necessary character of the measures the pre-trial Judge shall take under Rule 65 ter(B), the Appeals Chamber held that “[w]hether the Disclosure materials are ‘necessary’ to the Trial Chamber in fulfilling its function under the Statute and the Rules is a matter within the discretion of the Trial Chamber”.¹²

The argument that the Trial Chamber improperly assumed the investigative role of the Prosecution

Jokic argued that the Trial Chamber improperly assumed an investigative role not provided for in the Statute by searching for the truth in the pre-trial phase of the case. Blagojevic shared the same concerns and argued that the Trial Chamber’s reference to Rule 54¹³ and 85(B)¹⁴ implies that it could assume the task of filling the gaps in the Prosecution’s case and that the Trial Chamber would be sharing the burden of proof with the Prosecution . The Prosecution argued that there was no suggestion to support this assertion which is no more than speculation.

The Appeals Chamber referred to the 19 July 2002 Status Conference, during which the pre-trial Judge reminded the parties that “the general concept of this Tribunal […] is the necessity to come as close as possible to the truth” and referred to the mandate of the Judges to “find the truth or to search for the truth”.¹⁵ The Appeals Chamber held that “nothing in this statement visualised that it was the duty of the Chamber to engage in the prosecutorial investigation of the case ” and that the pre-trial Judge was “correctly concerned with the duty of the Chamber to discover the truth but only from the evidence as presented to the Chamber”.¹⁶ The Appeals Chamber clarified the role of Trial Chambers, which are in nature both triers of fact and arbiters of questions of law, authorised to make factual findings on the basis of the evidence presented by the parties, and rely on the factual findings to determine the guilt or innocence of the accused. It held that it “does not, however , follow that the Trial Chamber, by assessing evidence presented by the parties, will be discharging some of the prosecutorial responsibilities”.¹⁷

The argument that by reviewing the disclosure materials, the Trial Chamber improperly considered the merits of the case

Jokic submitted that the Trial Chamber improperly considered the merits of the case privately and before trial, in violation of an accused’s right to a public hearing guaranteed by Article 21(2) of the Statute and the right to be tried in his presence guaranteed by Article 21(4)(d) of the Statute. Blagojevic similarly submitted that exposure to material as requested by the Trial Chamber may influence the Judges and improperly affect the impartiality of the Trial Chamber, i.e. that by reviewing the disclosure materials prior to the trial, the Trial Chamber will foster a perception of bias against the accused.

Exposure to materials yet to be presented in evidence

The Appeals Chamber found no basis for suggesting that the Trial Chamber would consider the merits of the case without a public hearing of evidence and noted that “the Impugned Decision clearly states that the Disclosure materials are not evidence unless and until submitted and admitted in the course of trial in accordance with the Rules”.¹⁸ It referred to Rule 98 ter(C) which requires that a judgement be accompanied by a reasoned opinion in writing, which will explain the factual findings with reference to admitted evidence. In its opinion “a consideration of the merits of the case to the detriment of the Accused was simply not on the mind of the Judges of the Trial Chamber”. The Appeals Chamber found that “to be exposed to materials yet to be presented in evidence does not necessarily lead to pre-judgment or partiality” and that “[t]he professionalism of the Judges is a guarantee that the presumption of innocence will be respected”.¹⁹ It held that the parties failed to show that there is an appearance of partiality or that actual partiality exists in terms of the Furundzija test.²⁰

The argument that the Impugned Decision deprives the Accused of certain rights in violation of Article 21(3) and (4) of the Statute

Jokic alleged that the Impugned Decision would deprive the Accused of basic rights guaranteed by Article 21(3) and (4) of the Statute, namely, the right to be considered innocent until proven guilty, the right to counsel, the right to examine or have examined the witnesses against him, and the right to defend himself, including the right to object to the authenticity, relevance and admissibility of evidence. Blagojevic’s appeal contains similar submissions. The Prosecution argued that the timing of the review by the Trial Chamber of the disclosure materials does not affect the rights of the accused and indeed will promote efficiency and expeditiousness in the conduct of the trial proceedings.

The Appeals Chamber held that “[t]he review of the Disclosure materials by the Trial Chamber is to be distinguished from the presentation of evidence at the trial ” and recalled that the Trial Chamber made clear that the Disclosure materials are not evidence until submitted and admitted in the course of trial.²¹ It noted that in fact “the disclosure materials are not formally filed with the Registry as part of the trial record” and that “it would be incorrect to suggest that the Judges will reach a verdict on the basis of those materials without even hearing the witnesses or having the exhibits tested by the parties, and without hearing the Defence case”.²² It found that the review of the Disclosure materials does not affect either party in this case and does not impair the rights conferred on the Accused by Article 21(3) and (4).

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1. “Request of Dragan Jokic for Certification for Appeal of Decision on Joint Defence Motions for Reconsideration of Trial Chamber’s Decision to Review all Discovery Materials Provided to the Accused by the Prosecution, and Motion for Immediate Stay of Order for Delivery of Documents to Trial Chamber pending Judgement of Appeals Chamber”, 27 January 2003; “Vidoje Blagojevic’s Request for Certification to Appeal the Trial Chamber’s Decision on Joint Defence Motions for Reconsideration of Trial Chamber’s Decision to Review all Discovery Materials Provided to the Accused by the Prosecution and Request for a Stay of Execution of the Decision”, 28 January 2003. “Accused Nikolic’s Motion to Order the Prosecution to File Copies of All Witness Statements whom the Prosecution Intends to Call for Trial and Copies of All Exhibits the Prosecution Intends to Tender at Trial”, 28 January 2003.
2. “Decision on Joint Defence Motions for Certification of Decision on Joint Defence Motions for Reconsideration of Trial Chamber’s Decision to Review all Discovery Materials Provided to the Accused by the Prosecution, and Request for Stay of Execution of Decision”, 10 February 2003. “Decision on Accused Nikolic’s Motion to Order the Prosecution to File Copies of All Witness Statements whom the Prosecution Intends to Call for Trial and Copies of All Exhibits the Prosecution Intends to Tender at Trial”, 10 February 2003.
3. “Defendant Nikolic’s Appeal of the Trial Chamber’s Decision on Joint Defence Motions for Reconsideration of Trial Chamber’s Decision to Review all Discovery Materials Provided to the Accused by the Prosecution”, 14 February 2003; “Interlocutory Appeal of Dragan Jokic Pursuant to Certification under Rule 73 (B) and (C) against Decision on Joint Defence Motions for Reconsideration of Trial Chamber’s Decision to Review all Discovery Materials Provided to the Accused by the Prosecution”, 17 February 2003; “Vidoje Blagojevic’s Interlocutory Appeal of Trial Chamber’s Decision on Joint Defence Motions for Reconsideration of Trial Chamber’s Decision to Review all Discovery Materials Provided to the Accused by the Prosecution, and Request for Stay of Execution of Decision”, 18 February 2003.
4. Order of the Presiding Assigning Judges to the Appeals Chamber, 27 February 2003.
5. “Prosecution’s Response to the Defence’s Appeal of Trial Chamber’s Decision to Review Trial Materials”, 28 February 2003.
6. Para. 15.
7. Art. 20(1) of the Tribunal’s Statute.
8. Aleksovski, IT-95-14/1-AR73, Decision of Prosecutor’s Appeal on Admissibility of Evidence, 16 February 1999, Appeals Chamber, para. 19, Judicial Supplement No. 2.
9. Pursuant to Article 15 of the Statute, the Judges of the International Tribunal have the power to adopt and amend the Rules of Procedure and Evidence.
10. The Appeals Chamber noted that the Impugned Decision was not issued pursuant to Rule 65 ter but pursuant to Rules 54, 73 bis, 85(B) and 89(C), in addition to Article 20(1) and 21(4)(C) of the Statute.
11. Para. 17.
12. Para. 18.
13. Rule 54 (General Rule) At the request of either party or proprio motu, a Judge or a Trial Chamber may issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial.
14. Rule 85 (Presentation of Evidence) (B) Examination-in-chief, cross-examination and re-examination shall be allowed in each case. It shall be for the party calling a witness to examine such witness in chief, but a Judge may at any stage put any question to the witness.
15. Status Conference, 19 July 2002, Transcripts 6.
16. Para. 21.
17. Para. 22.
18. Para. 28, referring to page 4 of the Impugned Decision.
19. Para. 29.
20. Furundzija, IT-95-17/1-A, Judgment, 21 July 2000, para. 189, Judicial Supplement No. 18. On further developments on the impartiality of Judges, see Judicial Supplement No. 40.
21. Para. 33.
22. Ibid.