IN THE APPEALS CHAMBER

Before:
Judge David Hunt, Presiding
Judge Fouad Riad
Judge Rafael Nieto-Navia
Judge Mohamed Bennouna
Judge Fausto Pocar

Registrar:
Mrs Dorothee de Sampayo Garrido-Nijgh

Order of:
31 May 2000

PROSECUTOR

v

Zejnil DELALIC, Zdravko MUCIC (aka "PAVO"), Hazim DELIC
and Esad LANDZO (aka "ZENGA")

__________________________________________________________________

ORDER ON MOTION OF APPELLANT, ESAD LANDZO, TO ADMIT EVIDENCE ON APPEAL, AND FOR TAKING OF JUDICIAL NOTICE

__________________________________________________________________

Counsel for the Office of the Prosecutor:

Mr Upawansa Yapa
Mr Christopher Staker
Mr Norman Farrell

Counsel for the Defence:

Mr John Ackerman for Zejnil Delalic
Mr Tomislav Kuzmanovic and Mr Howard Morrison for Zdravko Mucic
Mr Salih Karabdic and Mr Tom Moran for Hazim Delic
Mrs Cynthia Sinatra and Mr Peter Murphy for Esad Landzo

 

THE APPEALS 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 ("International Tribunal");

NOTING the "Motion of Appellant, Esad Landzo, to Admit Evidence on Appeal, and for Taking of Judicial Notice", filed by counsel for Esad Landzo ("Landzo") on 22 May 2000 ("Motion") which seeks to have a number of items of evidence in various categories (referred to as "categories of proposed evidence" and numbered as in the Motion ) admitted for the purposes of this appeal and to have the Appeals Chamber take judicial notice of certain of those items;

NOTING the "Prosecution Response to the Motion of Esad Landzo to Admit Evidence on Appeal and for Taking of Judicial Notice" filed by the Office of the Prosecutor ("prosecution") on 29 May 2000 ("Response");

CONSIDERING generally that, while Rule 115 of the Rules of Procedure and Evidence ("Rules") limits the extent to which evidence upon matters relating to the guilt or innocence of the accused may be given before the Appeals Chamber (being the issue litigated in the Trial Chamber), when the Appeals Chamber is hearing evidence which relates to matters other than the issues litigated in the Trial Chamber, the Appeals Chamber is in the same position as a Trial Chamber, so that Rule 107 applies to permit the Appeals Chamber to admit any relevant and probative evidence pursuant to Rule 89 (C);

NOTING category of proposed evidence (1), which refers to the "evidence to be called pursuant to Appellant’s List of Witnesses and Submission of Witness Statements dated 15 May 2000";

NOTING the "Defendant Esad Landzo’s Notice of Appeal", filed on 1 December 1998, ("Landzo’s Notice of Appeal") and the "Brief of Appellant, Esad Landzo, on Appeal Against Conviction and Sentence", filed on 2 July 1999, ("Landzo’s Brief") wherein he sets out his grounds of appeal, which include, inter alia, that his right to a fair and expeditious trial pursuant to Articles 20 and 21 of the Statute of the International Tribunal "were violated when verdict and sentence were rendered by a Trial Chamber whose presiding Judge was permitted to sleep through much of the proceedings" ("Fourth Ground of Appeal");

NOTING that the documents referred to in category of proposed evidence (1) were submitted with the "Appellant Esad Landzo’s List of Witnesses on Appeal, Submission of Witness Statements and Motion for the Issuance of Subpoena Ad Testificandum" filed on behalf of Landzo on 15 May 2000 ("Witness List" and "Witness Statements" respectively), which proposed that four witnesses give oral evidence in relation to the Fourth Ground of Appeal;

NOTING the "Order in Relation to Witnesses on Appeal" issued by the Appeals Chamber on 19 May 2000 in which the Appeals Chamber ordered, inter alia, that the evidence of three of the proposed witnesses nominated in the Witness List was rejected, and that the evidence of the remaining proposed witness, Mrs Cynthia McMurrey Sinatra, was rejected insofar as it describes the conduct of the Presiding Judge of the Trial Chamber in these proceedings;

NOTING that the remaining evidence encompassed by category of proposed evidence (1) is the evidence of Mrs Cynthia McMurrey Sinatra in her Witness Statement insofar as it relates to matters other than a description of the conduct of the Presiding Judge of the Trial Chamber in these proceedings ("Non-Excluded Evidence of Mrs McMurrey Sinatra");

NOTING that the prosecution in its Response acknowledges the Order in Relation to Witnesses on Appeal, and interprets the evidence of Mrs McMurrey Sinatra excluded by that order to be that contained in the first and second paragraphs, the first sentence of the fourth paragraph, and the last two paragraphs of her Witness Statement,1 and indicates in relation to the remaining portions of Mrs McMurrey Sinatra’s Witness Statement that although it has no knowledge of the facts stated therein, it is willing to "proceed in this appeal on the basis that they are correct" if the Witness Statement is accepted as the evidence in the case;2

CONSIDERING that the Non-Excluded Evidence of Mrs McMurrey Sinatra is all of the evidence in her Witness Statement other than that describing the conduct of the Presiding Judge of the Trial Chamber in these proceedings, and that as the first paragraph and the first sentence of the fourth paragraph of her Witness Statement do not describe the conduct of the Presiding Judge of the Trial Chamber, it is part of the Non-Excluded Evidence of Mrs McMurrey Sinatra;

CONSIDERING HOWEVER that notwithstanding that the prosecution’s acceptance of the Non-Excluded Evidence of Mrs McMurrey Sinatra does not extend to the first paragraph or the first sentence of the fourth paragraph of her Witness Statement it essentially accepts the correctness of the substantive part of her Non-Excluded Evidence subject to certain qualifications set out in paragraph 12 of the Response, which relate to the relevance and weight to be given to the evidence ("Prosecution Concession");

CONSIDERING that the Non-Excluded Evidence of Mrs McMurrey Sinatra consists of all of her Witness Statement dated 20 April 2000 with the exception of the second paragraph and the last two paragraphs (the first sentence of the fourth paragraph being a matter of interpretation);

CONSIDERING that the Non-Excluded Evidence of Mrs McMurrey Sinatra should be admitted, subject to the Appeals Chamber’s determination of the relevance of this evidence to the issues raised by the Fourth Ground of Appeal and without prejudice to the weight to be accorded by the Appeals Chamber to that evidence;

CONSIDERING, having regard to the Prosecution Concession, that it is unnecessary for Mrs McMurrey Sinatra to give oral evidence;

NOTING that Rule 90 (G) of the Rules, in conjunction with Rule 107, permits the Appeals Chamber to exercise control over the mode of presenting evidence to avoid needless consumption of time;

CONSIDERING THEREFORE that to prevent the needless consumption of time in the hearing of this appeal the Appeals Chamber will not hear oral evidence from Mrs McMurrey Sinatra;

NOTING category of proposed evidence (2), which refers to the "facts set forth in the agreement as to evidence between the Prosecution and Appellant, Esad Landzo, dated 19 May 2000", which the Appeals Chamber understands to be the "Agreement between the Prosecution and Appellant, Esad Landzo, Regarding Evidence for the Purposes of the Appeal", filed on behalf of the prosecution and Landzo on 19 May 2000 ("Agreement on Evidence");

NOTING Landzo’s Notice of Appeal and Landzo’s Brief, wherein he sets out his grounds of appeal, which include, inter alia, that "[t]he participation at trial as a member of the Trial Chamber of a Judge ineligible to sit as a Judge of the Tribunal violated Articles 13 and 21 of the Statute of the ICTY, the rules of natural justice, and international law and rendered the trial a nullity" ("Second Ground of Appeal");

NOTING that the Agreement on Evidence advises that the prosecution and Landzo have agreed, for the purposes of the Appeal, that four categories of facts set out therein ("Agreed Facts") are true and may be regarded as established without further proof;

NOTING that the Agreed Facts are raised in relation to the Second Ground of Appeal;

NOTING that the second, third and fourth categories of Agreed Facts consist of decrees issued by the President of the Republic of Costa Rica in the Spanish language, which documents are annexed to the Agreement on Evidence ("Decrees");

CONSIDERING that the Agreed Facts should be admitted without further proof, subject to the Appeals Chamber’s determination of the relevance of this evidence and to the requirement that if either party will require the Appeals Chamber to consider the terms of the Decrees, an English translation of them which is acceptable to both parties should be filed;

NOTING category of proposed evidence (3), described as "Statement of the Prosecutor CC/PIU/314-E, The Hague, 8 May 1998, giving the Prosecutor’s reasons for the dismissal of certain indictments, set forth in Section IV of the Appellate Brief";

NOTING that the statement is quoted only in part in the section of Landzo’s Brief referred to, but that the full text of the statement is available from the archived press releases on the public website of the International Tribunal in document CC/PIU/314-E, titled "Statement by the Prosecutor Following the Withdrawal of the Charges Against 14 Accused" and dated 8 May 1998 ("Prosecutor’s Statement");

NOTING Landzo’s Notice of Appeal and Landzo’s Brief, wherein he sets out his grounds of appeal, which include, inter alia, that "[t]he Prosecutor’s practice of selective prosecution violated Article 21 of the Statute of the ICTY, the rules of natural justice and international law" ("First Ground of Appeal");

NOTING from the context in which the Prosecutor’s Statement is quoted in Landzo’s Brief that counsel for Landzo seeks to adduce it in relation to the First Ground of Appeal;

NOTING that the prosecution, in its Response, indicates that it has no objection to the authenticity of the Prosecutor’s Statement;3

CONSIDERING that it is inappropriate to admit only the portion of the Prosecutor’s Statement referred to in the Motion but that the full text of the Prosecutor’s Statement should be admitted subject to the Appeals Chamber’s determination of its relevance to the issues raised by the First Ground of Appeal;

NOTING category of proposed evidence (4) which refers to the "press reports regarding Vice President Odio Benito’s activities as such, referred to at para.6.13 and Exhibit C in Appellant’s Reply Brief";4

NOTING that the prosecution indicates in its Response that, while not conceding the completeness, accuracy or truthfulness of the facts stated in the press reports in this category of proposed evidence, it does not oppose the admission of these press reports as evidence of their existence;5

NOTING that two of the Press Reports referred to, one dated 28 April 1998 and the other dated 1 June 1998, are in the Spanish language ("Spanish Press Reports") and that no translation of those documents was provided with the Appellant’s Reply Brief or with the Motion;

CONSIDERING that there is no indication that the remaining press reports ("English Press Reports") refer to any information relevant to the issues raised by the Second Ground of Appeal or any other issue in this appeal which would advance the appellants’ case beyond those Agreed Facts referred to in paragraphs (2), (3) and (4) of the Agreement on Evidence;

CONSIDERING that the English Press Reports will therefore not be admitted into evidence;

BUT CONSIDERING that, should there be material in the Spanish Press Reports which Landzo considers to be both relevant to the Second Ground of Appeal and to advance his case beyond the Agreed Facts, a translation of those documents which is acceptable to both parties may be filed to enable the Appeals Chamber to consider their admissibility;

NOTING category of proposed evidence (5) which refers to "U.N. Security Council resolution 1126, 27 August 1997 (U.N. Doc S/Res 1126(1997)) with attached letters from the Secretary-General of the U.N. to the Security Council and from Judge Cassese to the Secretary-General, extending the terms of office of the members of the Trial Chamber for the duration of the Celebici trial, referred to at para. 6.04 and Exhibit E of the Reply Brief";

NOTING the supplementary brief contained in the "Prosecution Response to the Motion by Hazim Delic and Zdravko Mucic to File a Supplemental Brief and Prosecution Motion to File a Supplemental Brief", filed by the prosecution on 28 February 2000, ("Prosecution Supplementary Brief") in which the prosecution relies on the text of Security Council Resolution 1126 and the related letters, identified as U.N. Doc S/1997/605 of 1 August 1997, copies of which are annexed to the Prosecution Supplementary Brief ("Resolution 1126 and Related Correspondence");

NOTING the "Order on Motion of Hazim Delic and Zdravko Mucic for Leave to File Supplementary Brief and on Motion of the Prosecution to File Supplementary Brief" which ordered, inter alia, that the prosecution be granted leave to file the Prosecution Supplementary Brief;

CONSIDERING THEREFORE that, as the prosecution and Landzo both rely on the text of Resolution 1126 and Related Correspondence in relation to the issues raised by the Second Ground of Appeal, these documents should be admitted into evidence subject to the Appeals Chamber’s determination of their relevance to the issues raised by that ground of appeal;

CONSIDERING HOWEVER that the admission of Resolution 1126 and Related Correspondence is not to be taken as implying any acceptance by the Appeals Chamber of the characterisation of those documents in the Motion as "extending the terms of office of the members of the Trial Chamber for the duration of the Celebici trial", which is one of the issues which is contested by the parties in their arguments on this ground of appeal;

NOTING category of proposed evidence (6) which refers to "[t]he expert opinions of Francisco Villalobos Brenes and Alejandro Batalla, together with the Provisions of the Constitution of the Republic of Costa Rica referred to therein";

NOTING the "Order on Motion of Esad Landzo to Admit as Additional Evidence the Opinion of Francisco Villalobos Brenes" issued by the Appeals Chamber on 14 February 2000 which ordered, inter alia, that an expert opinion of Mr Francisco Villalobos Brenes, submitted on behalf of Landzo in relation to the Second Ground of Appeal, be admitted into evidence;

NOTING the "Order in Relation to Witnesses on Appeal" issued by the Appeals Chamber on 19 May 2000 which ordered, inter alia, that an expert opinion of Mr Alejandro Batalla, submitted by the prosecution in relation to the Second Ground of Appeal, be admitted into evidence;

NOTING that the prosecution in its Response submits that the provisions of the Constitution of Costa Rica are matters to be proved by evidence but that "[t]o the extent that the two expert opinions indicate what were the relevant provisions of the Constitution of Costa Rica in force at the relevant time, these may be accepted as evidence for this purpose";6

CONSIDERING that this submission of the prosecution should be understood as an acceptance of the text of those provisions of the Constitution of Costa Rica referred to in the expert opinions which are annexed to or quoted in those expert opinions;

CONSIDERING that, as the expert opinions of both Mr Francisco Villalobos Brenes and Mr Alejandro Batalla, including the provisions of the Constitution of the Republic of Costa Rica referred to in or annexed to those documents, have already been admitted into evidence by the Appeals Chamber, there is no need for any further order in relation to this category of evidence;

NOTING category of proposed evidence (7) which refers to "two Dutch press reports relating to the conduct of the trial, including the fact of Judge Karibi-Whyte sleeping (referred to in Section I and Exhibit A to Appellants’ Supplemental Brief in Support of the Fourth Ground of Appeal)7";

NOTING that the prosecution submits in its Response that in light of considerations expressed in the Appeals Chamber’s Order in Relation to Witnesses on Appeal of 19 May 2000, this category of evidence should be rejected;8

CONSIDERING that a large proportion of the Dutch Press Reports consists of statements by way of subjective commentary of the writers of those reports or conclusions drawn by them as to the mental and physical state of the Presiding Judge and is therefore of no probative value in relation to the issues raised by the Fourth Ground of Appeal or any other issue in the appeal;

NOTING that Extracts Tapes have been compiled, containing the portions of the videotapes of proceedings produced by Camera 3 in Courtroom I and Camera 3 in Courtroom III upon which both parties rely in relation to the Fourth Ground of Appeal, for the use of the Appeals Chamber as a convenient way for it to view the material which is relevant to the Fourth Ground of Appeal;

CONSIDERING that there is no indication that any remaining material in the Dutch Press Reports which may be relevant to the issues raised by the Fourth Ground of Appeal would advance the appellants’ case beyond what is already shown in the Extracts Tapes;

NOTING that Rule 90 (G) of the Rules, in conjunction with Rule 107, permits the Appeals Chamber to exercise control over the mode of presenting evidence to avoid needless consumption of time;

CONSIDERING that in accordance with these considerations and pursuant to Rule 90 (G), the Appeals Chamber will not admit the Dutch Press Reports into evidence;

NOTING category of proposed evidence (8) which refers to "[t]he letter from Appellant Landzo to Judge Cassese dated 18 August 1997, and Judge Cassese’s reply dated 3 September 1997, made part of Landzo’s Motion for Permission to Obtain and Adduce Further Evidence9 (Exhibit C to Supplemental Brief)10";

NOTING that in its Response the prosecution reiterates its indication, made in the "Prosecution Response to the Motion of Appellant Esad Landzo for Permission to Obtain and Adduce Further Evidence on Appeal" filed on 7 December 1999 ("Prosecution Response to Motion for Further Evidence") and in the "Respondent’s Brief of the Prosecution in Relation to Esad Landzo’s Fourth Ground of Appeal" filed on 28 January 2000 ("Prosecution Fourth Ground Brief"), that it "will not seek to dispute that a letter dated 18 August 1997 was sent to President Cassese by Esad Landzo in which he complained that Judge Karibi-Whyte was sleeping during the trial" and "would not seek to dispute that Judge Cassese replied to this letter on 3 September 1997 stating in his letter that a meeting of the Bureau was held to discuss this matter during which Judge Karibi-Whyte was requested to state his views" ("Prosecution Undertakings");11

CONSIDERING that the prosecution does not contest that the copies of letters between Landzo and President Cassese and the English translations thereof contained in both Exhibit B of the Motion for Further Evidence and Exhibit C of the Fourth Ground Supplementary Brief ("Letters and Translations") are accurate copies of the letters described in category of proposed evidence (8);

CONSIDERING that the Prosecution Undertakings were noted as a relevant consideration in the disposition of the Motion for Further Evidence in the "Order on Motion of the Appellant, Esad Landzo, for Permission to Obtain and Adduce Further Evidence on Appeal" issued by the Appeals Chamber on 7 December 1999;

CONSIDERING THEREFORE that the Letters and Translations should be admitted into evidence subject to the Appeals Chamber’s determination of the relevance of this evidence to the issues raised by the Fourth Ground of Appeal and without prejudice to the weight to be accorded by the Appeals Chamber to that evidence;

NOTING category of proposed evidence (9), which refers to "Draft Motion of Appellant Esad Landzo for Mistrial and Draft Motion of Cynthia McMurrey Sinatra for permission to resign as Counsel under protest, included in the Motion to Obtain and Adduce Further Evidence of 27 September 1999" ("Draft Motions");

NOTING that the prosecution in its Response reiterates its position, as stated in the Prosecution Response to Motion for Further Evidence and Prosecution Fourth Ground Brief, that it is not in dispute that Mrs McMurrey Sinatra "prepared these Motions outlining the alleged inappropriate behaviour of the presiding Judge, but never filed these motions";12

CONSIDERING that the Draft Motions should be admitted into evidence subject to the Appeals Chamber’s determination of the relevance of this evidence to the issues raised by the Fourth Ground of Appeal and without prejudice to the weight to be accorded by the Appeals Chamber to that evidence;

NOTING that, in addition to seeking the admission in evidence of the documents referred to in categories of proposed evidence (3) and (5), the Motion invites the Appeals Chamber to take judicial notice of those documents, and the prosecution in its Response submits that the Appeals Chamber should take judicial notice of Resolution 1126 and Related Correspondence;

NOTING that the prosecution in its Response submits that the Appeals Chamber "may take judicial notice" of Resolution 1126 and Related Correspondence as official United Nations documents;

CONSIDERING that, having regard to the Appeals Chamber’s determination, set out above, that it will admit into evidence the Prosecutor’s Statement and Resolution 1126 and Related Correspondence, it is unnecessary also to take judicial notice of those documents;

NOTING that the Motion states that Landzo will also rely on the record of the trial, including, but not limited to the Extracts Tapes;

NOTING Rule 109(A) of the Rules which provides that the record on appeal shall consist of parts of the trial record, as certified by the Registrar, nominated by the parties;

NOTING the Order issued by the Appeals Chamber on 12 February 1999 in which it determined that the "entire trial record will constitute the record on appeal in accordance with Sub-rule 109(D)";

NOTING that pursuant to Rule 81 of the Rules the trial record includes any video recordings made;

NOTING the Registry Certificate dated 26 February 1999 in which the Deputy Registrar, considering the above Order of the Appeals Chamber, certified the record on appeal ("Registry Certificate") but did not designate any video recordings of the trial proceedings as part of that record;

NOTING that the prosecution in its Response submits that although under Rule 109(D) the Appeals Chamber remains free to call for the whole of the trial record, this does not mean that the parties are free, at any stage of the proceedings, to rely on any part of the trial record;

CONSIDERING that, in view of the Order of the Appeals Chamber of 12 February 1999, the record on appeal does consist of the entire trial record, including videotapes made of the trial proceedings, notwithstanding the Registry Certificate;

CONSIDERING HOWEVER that any party who wishes to base oral argument upon material other than that referred to in their written briefs already filed in relation to this appeal will have to demonstrate good cause before being permitted to do so;

HEREBY ORDERS AS FOLLOWS:

(1)    That the Non-Excluded Evidence of Mrs McMurrey Sinatra as defined in this order is admitted into evidence subject to the Appeals Chamber’s determination of the relevance of this evidence to the issues raised by the Fourth Ground of Appeal and without prejudice to the weight to be accorded to that evidence by the Appeals Chamber;

(2)    That it will not hear oral evidence from Mrs McMurrey Sinatra;

(3) That the Agreed Facts set out in the Agreement on Evidence are admitted into evidence;

(4) That an English translation, satisfactory to both parties, of those parts of the Decrees which the parties wish the Appeals Chamber to consider be filed by 4pm on Monday 5 June 2000;

(5) That the English Press Reports will not be admitted into evidence;

(6) That, should Landzo wish the Appeals Chamber to consider the admissibility of the Spanish Press Reports, an English translation of those documents which is acceptable to the prosecution be filed by 4pm on Monday 5 June 2000;

(7) That Resolution 1126 and Related Correspondence is admitted into evidence, subject to the Appeals Chamber’s determination of their relevance to the issues raised by the Second Ground of Appeal;

(8) That the Dutch Press Reports are not admitted into evidence;

(9) That the Letters and Translations are admitted into evidence subject to a determination of the relevance of this evidence to the issues raised by the Fourth Ground of Appeal and without prejudice to the weight to be accorded by the Appeals Chamber to that evidence;

(10) That the Draft Motions are admitted into evidence subject to a determination of the relevance of this evidence to the issues raised by the Fourth Ground of Appeal and without prejudice to the weight to be accorded by the Appeals Chamber to that evidence.

 

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

________________________
Judge David Hunt
Presiding Judge

Done this 31st day of May 2000
At The Hague,
The Netherlands.

[Seal of the Tribunal]


1. Response, par 6.
2. Response, par 10.
3. Response par 14(3).
4. Reply of Appellant, Esad Landzo, to Respondent’s Brief of the Prosecution, filed on 25 October 1999 ("Reply Brief").
5. Response, par 14(4).
6. Response, par 14(6).
7. Supplemental Brief of Appellant, Esad Landzo, for Permission to Obtain and Adduce Further Evidence on Appeal, filed on 27 September 1999.
8. Response, par 14(7).
9. "Motion of Appellant, Esad Landzo, for Permission to Obtain and Adduce Further Evidence on Appeal" filed 27 Sep 1999 ("Motion for Further Evidence").
10. Supplemental Brief of Appellant, Esad Landzo, in Support of the Fourth Ground of Appeal (The Sleeping Judge) filed 6 Dec 1999 ("Fourth Ground Supplementary Brief").
11. Response par 14(8).
12. Response, par 14(9).