Case No. IT-01-47-T

IN TRIAL CHAMBER II

Before:
Judge Jean-Claude Antonetti

Judge Vonimbolana Rasoazanany
Judge Albertus Swart

Registrar:
Mr Hans Holthuis

Decision of:
19 December 2003

THE PROSECUTOR

v.

ENVER HADZIHASANOVIC
AMIR KUBURA

____________________________________________________

DECISION ON THE REFRESHMENT OF A WITNESS’S MEMORY AND ON A MOTION FOR CERTIFICATION TO APPEAL

____________________________________________________

The Office of the Prosecutor:

Mr Ekkehard Withopf
Mr David Re
Mr Daryl Mundis
Mr Chester Stamp

Defence Counsel:

Ms Edina Residovic and Mr Stéphane Bourgon for Enver Hadzihasanovic
Mr Fahrudin Ibrisimovic and Mr Rodney Dixon for Amir Kubura

Trial Chamber II (“Trial Chamber”) of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (“Tribunal”), being seised of a motion filed by the Prosecution on 10 December 2003 regarding the Trial Chamber’s oral decision of 4 December 2003 disallowing the refreshment of a witness’s memory (“Prosecutor’s Motion for Reconsideration of Decision of 4 December 2003 Regarding Refreshing Recollection or Alternatively Certification under Rule 73(B)”),

NOTING the purpose of the motion submitted by the Prosecution which calls upon the Trial Chamber to consider additional legal arguments and revisit its oral ruling of 4 December 2003 in which it barred the Prosecution from showing Franjo Batinic written extracts from the statement he gave to a Prosecution investigator on 11 November 1999 during the examination-in-chief in order to refresh his memory,1

NOTING that, in its motion, the Prosecution submits that refreshing a witness’s memory is an accepted practice in the case-law of the Tribunal,2 as is evidenced in particular by the Appeals Chamber’s decision of 23 May 2003 in the case The Prosecutor v. Blagoje Simic et al. (“Simic Decision”),3

NOTING that the Prosecution contends that such a practice is also authorised in many national and international jurisdictions,4

NOTING that the Prosecution adds that, in requesting leave to show the written extracts to Mr Batinic, it does not mean to influence his testimony or tender those extracts into evidence, but simply wishes to assist in establishing the truth by refreshing the witness’s memory,5

NOTING that the Prosecution asks that its request to file an interlocutory appeal be certified if the Trial Chamber elects not to set aside its oral ruling of 4 December 2003,6

NOTING that, in its response of 18 December 2003 (“Joint Defence Response to Prosecutor’s Motion of 10 December 2003 for Reconsideration of Decision of 4 December 2003 Regarding Refreshing of Recollection or Alternatively Certification under Rule 73(B)”), the Defence objects to the Trial Chamber’s reconsidering its oral ruling, arguing that (i) the Prosecution’s line of reasoning does not meet the test laid down by the Appeals Chamber for a Trial Chamber to reconsider one of its decisions,7 (ii) the Tribunal case-law cited by the Prosecution regarding the use of a witness’s written statements may not apply in this case,8 (iii) the fact that other national and international jurisdictions allow the practice of refreshing a witness’s memory does not bind this Trial Chamber,9 (iv) the Prosecution did not show that the ruling of 4 December 2003 involves an issue which would significantly affect the fair conduct of the proceedings and, moreover, did not prove that the ruling caused it prejudice,10 and (v) the Trial Chamber should not certify the interlocutory appeal sought by the Prosecution,11

CONSIDERING that the Prosecution sought leave from the Trial Chamber to refresh Mr Batinic’s memory by asking him questions on the basis of extracts from written statements taken by a Prosecution investigator, to which request the Defence objected in court,12

CONSIDERING that the Trial Chamber made the oral ruling on 4 December 2003 that, in keeping with the principle that proceedings must be oral, the mode for interrogating a witness prohibits such a practice,13

CONSIDERING that it should be noted that the Tribunal’s Rules of Procedure and Evidence (“Rules”) are silent on this issue,

CONSIDERING that the Simic Decision cited by the Prosecution concerned the use made of a Rule 92 bis statement that did not involve its being tendered into evidence14 and that the decision cannot apply to the present instance since the Prosecution is conducting its examination -in-chief,

CONSIDERING that, in view of this decision, a number of observations must be set out, including the fact that, in its Simic Decision, the Appeals Chamber referred to another of its decisions dated 30 September 2002,15 in which it stated that a written statement could be admitted even if it did not meet the test set out in Rule 92 bis (i) where there has been no objection taken to it, or (ii) where it has otherwise become admissible (where, for example, the written statement is asserted to contain a prior statement inconsistent with the witness’s evidence),16

CONSIDERING that, in this instance, it should be noted that the Defence formally objected to the admission of Mr Batinic’s written statement,

CONSIDERING that the Trial Chamber notes that other of the Tribunal’s Trial Chambers17 as well as some national jurisdictions allow a witness to be shown a prior written statement during his testimony so that his memory may be refreshed,18

CONSIDERING that, during the testimony, the Trial Chamber must evaluate the circumstances of the person making the solemn declaration in the context of one or more of the criminal offences specified in the indictment,

CONSIDERING that the case which gave rise to this dispute is that of a witness who claims to have been an HVO soldier who surrendered to ABiH soldiers on 26 January 1993,19

CONSIDERING that the witness testified that he and three other HVO soldiers had to carry a wounded HVO soldier after they surrendered and that the wounded soldier later died,20

CONSIDERING that the witness claimed that he was also taken to the Zenica Music School where he and other soldiers from the same army were subjected to mistreatment, 21

CONSIDERING that the Prosecution then requested the witness to state “who operated the Zenica Music School as a detention facility”,22 to which the witness responded “I'm not quite sure”,23

CONSIDERING that, following this response, the Prosecution asked the witness whether he remembered being interviewed by a representative of the Prosecution in 1999, to which the witness replied that he did,24

CONSIDERING that, without requesting the Trial Chamber for leave to do so, the Prosecution then showed the witness the written statement taken in 1999, bringing it up on the screen in the courtroom25 in order “to allow the witness to clarify who operated S…C the Zenica Music School Son 26 January 1993C”,26

CONSIDERING that, at the time, the Defence raised an objection to the written statement being shown to the witness,27

CONSIDERING that the Prosecution nevertheless asked the witness to read a passage from the statement and that the witness proceeded to do so aloud,28

FURTHER CONSIDERING that, during cross-examination by the Defence, the witness said that he had been questioned under oath by an examining judge from the Zenica cantonal court on 8 May 2002 in the course of criminal proceedings against one of his neighbours, Edin Hakanovic, regarding Mr Hakanovic’s presence in a field on 26 January 1993,29

CONSIDERING that, during the examination of 8 May 2002, the witness stated that he did not remember whether he had seen Mr Hakanovic in the said field on 26 January 1993,30 whereas witness Zeljko Cvijanovic testified viva voce on 2 December 2003 that Mr Hakanovic had negotiated with the HVO soldiers31 and, moreover, witness Batinic provided confirmation that Hakanovic had been in the field,32

CONSIDERING that, at the start of the hearing on 3 December 2003, the Defence drew the Trial Chamber’s attention to the fact that investigation proceedings had been conducted by a Zenica judge,33 that during these proceedings the witness had said that he did not remember what had happened on 26 January 1993, and that the Trial Chamber inferred from this that Mr Batinic was either an ordinary witness or a “witness-suspect”,

CONSIDERING that, following the tendering into evidence of the record of the examination conducted on 8 May 2002, the Trial Chamber was able to establish that Mr Batinic had been warned of the consequences of giving false testimony,34

CONSIDERING, therefore, that Mr Batinic is potentially a witness-suspect as he has previously been heard in the course of criminal proceedings in a national court,

CONSIDERING that, as is laid down by many jurisdictions35 and Rules 90(E) and 91(A) of the Rules, a witness-suspect has the right not to make any statement which might tend to incriminate him and must therefore be informed of his rights by investigators at the start of any proceedings, in particular when he is giving written evidence, if it is not inconceivable that he may later be prosecuted by the Prosecution or by the Prosecutor’s Department of his State of origin; where the witness-suspect has not been informed of his rights, leave to present any document during his oral testimony may not be granted as it might later be used to prosecute him,

CONSIDERING that the Prosecution requested the Trial Chamber for leave to question the witness using the written statement he gave in 1999,

CONSIDERING that, after learning on 3 December 2003 of the specific circumstances pertaining to Mr Batinic following his hearing on 8 May 2002, the Trial Chamber found that presenting the 1999 written statement in the usual form of a witness statement could cause prejudice to the witness and that the form of this witness statement did not provide the same legal guarantees as those provided under Rule 92 bis(B)(ii)(c) of the Rules,

CONSIDERING that, after deliberating, the Trial Chamber decided to refuse the Prosecution the right to present the witness’s 1999 written statement,

CONSIDERING that the fact that the oral and written testimonies are not identical is not anomalous given the time that has elapsed since the facts took place and the dates on which the written and oral testimonies were given (facts of 26 January 1993, written statement taken in 1999, oral testimony of 3 and 4 December 2003),

CONSIDERING that an examination conducted by the Prosecution using solely the written statement may result in discrepancies in the relation of the facts; that such discrepancies may be reduced or even eliminated by asking the witness specific questions under the direction of the Trial Chamber without making reference to his statement, which the Prosecution failed to do,

CONSIDERING, moreover, that the judges of the Trial Chamber may put questions to the defaulting witness in order to refresh his memory,

CONSIDERING that the Rules provide for the possibility of the Prosecution using a written statement in the form set down in Rule 92 bis; that it is worth noting that, in this case, the witness attached a written declaration stating that the contents of the statement were, to the best of his knowledge and belief, true and correct and, furthermore, that the declaration was witnessed by a person authorised to witness such a declaration in accordance with the law and procedure of a State or a presiding officer appointed by the Registrar pursuant to Rule 92  bis(B)(i) of the Rules,

CONSIDERING that the written statement of Mr Batinic taken by the Prosecution representative does not present the legal guarantees laid down under Rules 92 bis(B)(i) and 92 bis(B)(ii)(c) of the Rules,

CONSIDERING that, in these circumstances, the Trial Chamber sees no reason why it should amend its oral ruling regarding the presentation of a prior written statement by the Prosecution to Mr Batinic in order to refresh his memory,

CONSIDERING that there is no need for the Trial Chamber to rule on any case other than that of the witness-suspect in which one of the parties might wish to refresh the memory of a witness by means of a prior written statement, as was the case for the Trial Chamber’s oral ruling of 4 December 2003,

CONSIDERING, however, that this decision of the Trial Chamber concerns a potential witness-suspect and therefore involves an issue which would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial and for which an immediate resolution by the Appeals Chamber may materially advance the proceedings,

PURSUANT to Rules 73(B), 89(B) and 90(F) of the Rules,

UPHOLDS its oral ruling of 4 December 2003 in part,

CERTIFIES the interlocutory appeal sought by the Prosecution.

Done in French and English, the French version being authoritative.

Done this nineteenth day of December 2003
At The Hague
The Netherlands

_______________
Judge Jean-Claude Antonetti
Presiding


1 - Prosecutor’s Motion for Reconsideration of Decision of 4 December 2003 regarding Refreshing Recollection or Alternatively Certification under Rule 73(B), paras. 1 and 4.
2 - Prosecutor’s Motion for Reconsideration of Decision of 4 December 2003 regarding Refreshing Recollection or Alternatively Certification under Rule 73(B), paras. 7-10.
3 - The Prosecutor v. Blagoje Simic et al., IT-95-9-AR73.6 and IT-95-9-AR73.7.
4 - Prosecutor’s Motion for Reconsideration of Decision of 4 December 2003 regarding Refreshing Recollection or Alternatively Certification under Rule 73(B), paras. 7-12.
5 - Prosecutor’s Motion for Reconsideration of Decision of 4 December 2003 regarding Refreshing Recollection or Alternatively Certification under Rule 73(B), paras. 17-18 and 22.
6 - Prosecutor’s Motion for Reconsideration of Decision of 4 December 2003 regarding Refreshing Recollection or Alternatively Certification under Rule 73(B), paras. 22-24.
7 - Joint Defence Response to Prosecutor's Motion of 10 December 2003 for Reconsideration of Decision of 4 December 2003 Regarding Refreshing Recollection or Alternatively Certification under Rule 73(B), paras. 2-6.
8 - Joint Defence Response to Prosecutor's Motion of 10 December 2003 for Reconsideration of Decision of 4 December 2003 Regarding Refreshing Recollection or Alternatively Certification under Rule 73(B), paras. 8-13.
9 - Joint Defence Response to Prosecutor's Motion of 10 December 2003 for Reconsideration of Decision of 4 December 2003 Regarding Refreshing Recollection or Alternatively Certification under Rule 73(B), paras. 14-15.
10 - Joint Defence Response to Prosecutor's Motion of 10 December 2003 for Reconsideration of Decision of 4 December 2003 Regarding Refreshing Recollection or Alternatively Certification under Rule 73(B), paras. 16-17 and 21.
11 - Joint Defence Response to Prosecutor's Motion of 10 December 2003 for Reconsideration of Decision of 4 December 2003 Regarding Refreshing Recollection or Alternatively Certification under Rule 73(B), paras. 20-21.
12 - T. 518-519.
13 - T. 530-532.
14 - The Prosecutor v. Blagoje Simic et al., IT-95-9-AR73.6 and IT-95-9-AR73.7, para. 18.
15 - The Prosecutor v. Slobodan Milosevic, IT-02-54-AR73.2.
16 - The Prosecutor v. Slobodan Milosevic, IT-02-54-AR73.2, para. 18.
17 - See The Prosecutor v. Vidoje Blagojevic et al., IT-02-60-T, T. 2748 and The Prosecutor v. Radoslav Brdjanin et al., IT-02-60-T, T. 677-678.
18 - For the United States legal system, see for instance Rule 612 of the American Federal Rules of Evidence. For the British legal system, see R. v. Richardson (1971) 2 Q.B. 484.
19 - Batinic, T. 495-496, 506 and 508-511.
20 - Batinic, T. 511-512.
21 - Batinic, T. 514-516.
22 - Batinic, T. 517.
23 - Batinic, T. 517.
24 - Batinic, T. 518.
25 - Batinic, T. 518.
26 - Batinic, T. 519.
27 - Batinic, T. 518-519.
28 - Batinic, T. 519.
29 - Batinic, T. 556-558. See also exhibit no. DH7/E.
30 - Batinic, T. 557.
31 - Cvijanovic, T. 423.
32 - Batinic, T. 508.
33 - T. 501-503
34 - Exhibit no. DH7/E.
35 - For Germany, see paragraphs 1 and 2 of article 55 of the Penal Code; for the United States see the fifth amendment of the constitution and Miranda v. Arizona 384 U.S. 436 (1966); and, for France, see articles 105 and 116 of the Code of Criminal Procedure.