(Exclusively for the use of the media. Not an official document)
The Hague, 8 September 1997
TRIAL CHAMBER ISSUED TWO WRITTEN DECISIONS
ON DEFENCE MOTIONS OF ZDRAVKO MUCIC
On 1 and 2 September 1997, Trial Chamber II (consisting of Judge Karibi-Whyte, presiding, Judge Odio Benito and Judge Jan) issued two written decisions regarding two motions filed on 8 May 1997 by the Defence.
These two Defence motions were filed pursuant to Rule 73(C) of the Rules of Procedure and Evidence: the first motion sought leave to file an out-of-time application to exclude from evidence the transcripts of certain pre-trial interviews of the accused. On that same day, the Trial Chamber heard the oral arguments of the Parties and delivered an oral decision granting the requested
In their second motion, the Defence filed a substansive application to exclude the Statements (i.e the above interviews). On 12 June 1997, the Trial Chamber heard the Parties and delivered an oral ruling partly granting the application.
1. Decision granting the leave to file an out-of-time application of Rule 73(C):
The question submitted before the Chamber is the "relief from waiver of the right" to apply to exclude evidence, "where good cause is shown why an application [...] was not made" within sixty days after the initial appearance of the accused.
The Defence first asserted that the final form of the Statements was served only on 3 April 1997, and therefore argues that "the failure of the Prosecution to serve these documents expeditiously is the first reason why an application to exclude them could not be made within the period prescribed". This ground was dismissed by the Chamber because the "material for the
preparation of the defence of the accused [...] was made available to the Defence before 3 April 1997" and "the conduct of the Defence amounts to a conscious refusal to exercise a right available to it."
The Defence further deemed that "the Statements were obtained by methods which cast susbtantial doubts on their reliability and that their admission would seriously damage the integrity of these proceedings". According to the Chamber, "such an issue is consistent with the voluntariness or not of the Statements" and "it will be injust to deprive the accused of the
right to challenge the admission of the Statements which are claimed to have been obtained in oppressive circumstances".
2. Decision on the substantive Motion for the exclusion of evidence:
The Defence challenged the admissibility as evidence of the interviews held by the Austrian police on 18 March 1996 and by the investigators of the Prosecution between 19 and 21 March 1996, on the ground that they violated the human rights of the suspect, as protected by Rule 42 of
the Rules of Procedure and Evidence. The above rights are namely the right to Counsel (with consideration being taken of the "cross-cultural element" of the procedures in Austria and within the Tribunal, which might have confused the suspect) and the right to remain silent. According to the Defence, the interviews constitute "a prima facie oppressive conduct" of the
The Prosecution, in its response, pointed out that "the possible confusing distinction between the Austrian approach and the Prosecution approach cannot be regarded as oppression". According to the Prosecution, "the two interviews were treated separately and the Accused understood this. [...] The procedure for each was clearly explained to the Accused [...]. He clearly
understood what was told to him of his rights". Furthermore, the standards on the admissibility of the interviews are different whether they are conducted by "non-Tribunals, that is persons other than the Office of the Prosecutor" (Rule 95), or by the Prosecution (Rule 42).
The Trial Chamber's Decision:
The Trial Chamber firstly considered "that there were two independent and separate interviews of the suspect [...whose] purposes [were] distinct and different". The Chamber then addressed the required burden of proof in respect of the admissibility of evidence sought to be excluded, and concluded that "the Prosecution claiming voluntariness on the part of the
Accused/suspect, or absence of oppressive conduct, is required to prove it convincingly and beyond reasonnable doubt". The Chamber further deemed that the standard for evaluating statements takes into consideration both Rules 42 and 95 together, since it would be "extremely difficult for a statement taken in violation of Rule 42 to fall within Rule 95 which protects the
integrity of the proceedings".
In this prospective, the Trial Chamber considered the admissibility of the two interviews separately:
- Concerning the Austrian police interview, the Chamber deemed that the right of the suspect to remain silent had not been violated, and that the suspect had not been induced to confession. However, relating to the right to counsel, the Chamber was "satisfied that the Austrian rights of the suspect are so fundamentally different from the rights under the International Tribunal's
Statute and Rules as to render the statement made under it inadmissible".
- However, in its review of the interview by the Prosecution, the Trial Chamber denied the argument that the cultural differences prevented the suspect to "appreciate the scope and meaning of his right to counsel", and therefore concluded that the suspect "voluntarily waived the exercise of the right to counsel". Furthermore, the Chamber deemed that considering the
suspect's "mental and physical fitness, age, experience and his comportment and surrounding circumstances, there was no evidence that the interview was oppressive of the Accused".
For the above mentionned reasons, the Chamber excluded the statements made on 18 March 1996 by the Accused to the Austrian police from evidence, but admitted the statements made on 19, 20 and 21 March 1996 to the Prosecution.