Press Release . Communiqué de presse
(Exclusively for the use of the media. Not an official document)
The Hague, 17 March 1998
A BENCH OF THE APPEALS CHAMBER DENIES DEFENDANT DELALIC LEAVE TO APPEAL DECISIONS OF THE TRIAL CHAMBER
On 3 March 1998 a Bench of the Appeals Chamber, consisting of Judge Vohrah, presiding, Judge Wang and Judge Nieto-Navia, denied a motion by the accused Delalic for leave to appeal a decision of the Trial Chamber requiring advance disclosure of the Defence’s witness list. On 4 March 1998 the same Bench of the Appeals Chamber rejected a motion by the Defendant for leave to appeal a
decision of the Trial Chamber admitting documentary and videotape evidence.
The two Delalic applications were filed on 28 January 1998, challenging decisions of the Celebici Trial Chamber. In the oral decision of the 12 January 1998, which was followed by a written decision on 4 February, the Trial Chamber granted a motion by the Prosecutor requesting disclosure by the Defence of the lists of witnesses it intends to call seven days prior to the
hearing of those witnesses. In the second decision, rendered on 21 January 1998, the Trial Chamber granted a motion by the Prosecutor for admissibility of documentary seized on the premises of the company "Inda-bau" and for admissibility of three videotapes seized from the apartment of the accused Zdravko Mucic, and two videotapes seized from the premises of "Inda-Bau".
The Defendant’s two applications are governed by Rule 73 ("Other Motions") of the Tribunal’s Rules of Procedure and Evidence. Sub-rule 73 (C) requires that application for leave to appeal be filed within seven days of the filing of the impugned decision. Sub-rule 73 (B) consists of two exceptions to a general bar on interlocutory appeal of all Rule 73 motions.
1. Decision denying leave to appeal decision of Trial Chamber requiring advance disclosure of witness list
The oral decision challenged was given by the Trial Chamber on 12 January 1998 and the Delalic application was filed on 28 January 1998. Therefore the Bench concluded that the application was filed out of time.
Notwithstanding the above finding, the Bench briefly examined the application in the light of the criteria provided in Sub-rule 73 (B) as well. It stated that
"no substantial reason has been offered [...] to establish that the impugned oral Decision of the
Trial Chamber would cause such prejudice to the Defence case as could not be cured by the final disposal of the trial including post-judgement appeal. Therefore the Bench finds that the Delalic Application fails to meet the requirements of Sub-rule 73 (B)(i)".
As far as the substantive issues raised by the Delalic application are concerned, namely the alleged obligation on the Defence to disclose lists of witnesses to the Prosecution in the course of trial, the Bench held that these "are indeed [issues] of general importance for the proceedings before the International Tribunal". However, it found that "the
[Trial-Chamber’s] written Decision is well-reasoned" and that "the interpretation of these two Rules [Rules 54 and 67] has achieved sufficient consistency in the practice of the International Tribunal, to the extent that no further question arises as to the interpretation of the scope of Rule 54 and Rule 67 (A) or the obligation of the Defence to disclose witness
lists during trial, and that the Delalic Application has therefore failed to meet the conditions of Sub-rule 73(B)(ii)".
The Bench concluded by remarking that it was "fully conscious of the purpose of Articles 20 and 21 of the Statute of the International Tribunal. A fair and expeditious trial in accordance with the Rules, as required under Article 20, shall be ensured by every Trial Chamber in the cases that come before it. Given that trial hearings in the Celebici case have been ongoing for
almost a year, there is every reason to consider the adoption of useful but legitimate ways of making the trial expeditious, taking full account of the guarantees laid down in Article 21. The disclosure of the list of Defence witnesses, in the absence of any protective measures having been granted, does not infringe such guarantees. If anything, it will make the trial more effective
2. Decision denying leave to appeal decision of Trial Chamber admitting documentary and videotape evidence
The challenged decision was rendered by the Trial Chamber on 21 January 1998 and the Delalic application was filed on 28 January 1998. Therefore the Bench concluded that the application was filed in time.
The Bench of Appeal examined the application, first, in the light of the criteria provided in Sub-rule 73 (B)(i). Relating to the authenticity of the documentary evidence, it stated that "at this stage of admission of evidence, the implicit requirement of reliability means no more than that there must be sufficient indicia of reliability to make out a prima facie case. [...]
To require absolute proof of a document’s authenticity before it could be admitted would be to require a far more stringent test than the standard envisioned by Sub-rule 89 (C)." Furthermore, "as for the assertion that the Decision deprives the Applicant of his right to a fair trial as provided for by Article 20, paragraph 1, of the Statute, no reasons have been furnished to
support the claim that this provision should be interpreted to require a cross-examination of a document’s author before it could be admitted into evidence." Therefore, the Applicant failed to show any prejudicial effect caused to his case and, accordingly, failed to meet the requirements of Sub-rule 73 (B)(i).
The Bench considered then the question of the admissibility of the entire videotapes instead of the video segments. It founds that "the [Trial] Chamber stressed that this ruling - to admit the entire videotape - was by no means determinative of the weight it will attach later to this evidence, if any. [...] to assess the weight of the relevant videotape
segment, [the Chamber] must have access to the entire videotapes so that it can evaluate the significance of the segments." Consequently, "[...] the Applicant has failed to show that the ruling has in any way prejudiced its case and, accordingly, finds that the Delalic Application has failed to meet the requirements of Sub-rule 73 (B)(i) with regard to the
admission of the videotapes."
Finally, the Bench considered whether the Applicant has made out a case for leave to appeal under Sub-rule 73 (B)(ii). It noticed that "sub-rule 89 (E), whereby ‘[a] Chamber may request verification of the authenticity of evidence obtained out of court’, cited by the Applicant, does not operate as a pre-condition to bar the admissibility of evidences under Sub-rule 89 (C)."
The Bench concluded by stating that "there is no legal basis for the Applicants argument that proof of authenticity is a separate threshold requirement for the admissibility of documentary evidence. [...] the Applicant’s motion does not raise any issue of general importance to proceedings [...] as required by Sub-rule 73 (B)(ii) for considerations by the full Appeals