Press Release . Communiqué de presse
(Exclusively for the use of the media. Not an official document)
CHAMBRE DE 1ERE INSTANCE
The Hague, 27 January 1998
TRIAL CHAMBER RULES ON VARIOUS EVIDENTIARY MATTERS
By a Decision rendered on 19 January 1998, Trial Chamber II (consisting of Judge Karibi-Whyte, presiding, Judge Odio Benito and Judge Jan) admitted into evidence a letter allegedly written to a Prosecution witness by Defendant Mucic.
The Trial Chamber rejected, however, the Prosecution motion to compel Mr. Mucic to provide a handwriting sample.
In a separate decision, it also admitted into evidence documents and video-tapes seized at the time of the arrest of two of the Accused.
The facts leading to the decision
During the trial proceedings on 8 July 1997, Ms Teresa McHenry, Trial Attorney for the Prosecution, led a witness designated by the pseudonym "P" through examination-in-chief. During the course of this examination, witness "P" testified that an unidentified lady had delivered a letter allegedly written by the accused to him about a month prior to the time of his testimony.
Ms McHenry sought the admission in evidence of the letter ("Exhibit 155"). Defence counsel for Mucic raised objection on the ground that no proper evidence had been led in support of the allegation that the letter had been written by his client.
The Prosecution responded by contending that the letter had been written by Mucic because the writer had signed it as "Pavo", the nickname by which Mucic, according to the Prosecution, is very well known and identified. Further, Ms McHenry stated that the letter contained references to several pieces of information of non-public nature, peculiarly within the knowledge of both
witness "P" and Mucic, including the latter’s current address in detention and information regarding his role in the Celebici camp.
The Prosecution also submitted that, in the event that the Trial Chamber considered these inferences insufficient to link the accused to the letter for purposes of admissibility, the court should direct Mucic to provide a sample of his handwriting for analysis and identification.
On 6 November 1997, the Trial Chamber issued an oral decision admitting Exhibit 155 in evidence. However, it denied the Prosecutor’s second request to issue an order compelling the accused to provide a sample of his handwriting.
On 19 January 1998 the Trial Chamber rendered its written Decision.
The admissibility of Exhibit 155
In the view of the Trial Chamber, Sub-Rule 89(C) "is specifically relevant to this discussion" and its "plain words ( ...) require for the admissibility of evidence the essential elements of relevancy and probative value". In their written and oral arguments, both the Prosecution and Defence Counsel had relied on the "Hearsay Decision" rendered in the Tadic
Trial on 5 August 1996 (See Press Release 102 of 7 August 1996). The Hearsay Decision had considered reliability to be an implicit requirement of admissibility. Trial Chamber II "accepts and agrees with the reasoning that reliability is an inherent and implicit component of each element of admissibility. It is clear that for evidence to be relevant, and to have a nexus between it
and the subject matter, such evidence must be reliable".
As far as the points of fact are concerned, the Trial Chamber considered that it remained to be demonstrated that Mucic is the author of the letter. "The Prosecution has not shown that Mucic usually signs his letters as "Pavo" and Mucic has remained silent, asserting a right under the provisions of the Article 21 sub-paragraphs 3 and 4(g) and Rule 63. The contents of the letter
that relate to him, such as his current address, are not facts peculiarly known only to Mucic and Witness P, but are matters of public knowledge. The Trial Chamber is, therefore, not convinced that these factors inexorably link Mucic to the letter. All that can be stated with any certainty at this stage is, thus, that sufficient indicia of reliability have been established of the
letter as a document received by Witness P from an unknown third person.
The letter contains references to Mucic and his role at the Celebici camp and has, on its own, sufficient relevance and probative value for admissibility. However, the assertion made by the Prosecution that the contents of the letter tend to prove certain elements of the Indictment by virtue of it being written by Mucic, remains in issue".
No order for the production of a handwriting sample
The Defence opposed the request of the Prosecution for an order for Mucic to provide a sample of his handwriting against his will, submitting that such an order would have the effect of compelling him to contribute to the process of incriminating himself. It would be a violation of his protection against self-incrimination under Article 21, sub-paragraph 4(g) of the Statute, which
is an essential element of fair trial.
The Trial Chamber substantially shared this submission by the Defence. Under Rule 54 "at the request of either party or proprio motu, a Judge or a Trial Chamber may issue such orders, subpoenas, warrants and transfer orders as may be necessary for ( ...) conduct of the trial". However, as the Trial Chamber points out, "the exercise of the power of the Trial Chamber under
Rule 54 must be consistent with the rights of the accused guaranteed under the Statute".
The Trial Chamber rejected the Prosecution’s contention that the handwriting sample did not seek a statement involving an admission of guilt and was in full compliance with the Statute, international conventions and domestic jurisprudence. "The reason for requiring the handwriting sample is admittedly to ascertain conclusively the authorship of Exhibit 155. If authenticated, the
letter will act as sufficient admission of its contents in respect of certain counts in the indictment against the author. The obvious implication is that the accused would have been compelled by an Order of the Trial Chamber to assist the Prosecution in its investigation, and probably provide the evidence to incriminate himself. The fact that the handwriting sample per se is
neutral evidence is not the issue. If the handwriting sample taken together with other evidence will constitute material evidence to prove the charges against the accused, then the Order of the Trial Chamber would have compelled the production of self-incriminating evidence.
There is no duty in law or morals for the accused to fill a vacuum created by the investigative procedural gap by the Prosecution. Self-preservation is the first principle of life. It is an elementary principle of proof, that he who alleges must prove the subject matter of his allegation. Since the Prosecution alleges the authorship of Exhibit 155, it has to discharge the burden of
proof unaided by the Defence".
Decision on admissibility in evidence of certain documents and video-tapes
On 19 January 1998, Trial Chamber II rendered another decision relating to the admissibility of evidence. It admitted into evidence twelve folders with documents and several video-tapes seized by the Austrian police at the premises in Vienna of Inda-Bau, a firm with which the accused Delalic allegedly entertained close links, as well as in Mucic’s apartment in the Austrian
In this decision Trial Chamber II set forth in greater detail the interpretation of Sub-rule 89(C) discussed above. It confirmed its rejection of reliability as a separate requirement for the admissibility of evidence, independent of relevance and probative value. It stressed, however, that "the mere admission of a document into evidence does not in and of itself signify that
the statements contained therein will necessarily be deemed to be an accurate portrayal of the facts. Factors such as authenticity and proof of authorship will naturally assume the greatest importance in the Trial Chamber’s assessment of the weight to be attached to individual pieces of evidence".
It rejected the Defence’s submission that the admission of documents whose alleged authors are not appearing as witnesses amounts to a deprivation of the right of the accused under Article 21(4)(e) of the Statute to have the witnesses brought against him examined: "It is clear from the relevant provisions of the Rules that there is no blanket prohibition on the admission of
documents simply on the ground that their purported author has not been called to testify in the proceedings. (...) Furthermore, should the Trial Chamber consider the probative value of any particular exhibit of this character to be substantively outweighed by the need to ensure a fair trial, it may be excluded in accordance with Sub-Rule 89(D). There is, however, no ground for a
general finding to the effect that the probative value of documents of this category is so outweighed by any prejudicial effects that they should be considered generally inadmissible".
On the contrary, "the Trial Chamber is of the opinion that the exhibits tendered contain statements made contemporaneously with the issue of the position of Delalic and Mucic in the period of hostilities under inquiry. They shed light on the role played and positions occupied by them. Being part of the entire transaction, they are admissible as evidence in these
The full text of the Decision is available upon request from the Press and Information Office