Case No. IT-03-68-T


Judge Carmel Agius, Presiding
Judge Hans Henrik Brydensholt
Judge Albin Eser

Mr. Hans Holthuis

Decision of:
7 February 2006







The Office of the Prosecutor:

Mr. Jan Wubben
Ms. Patricia Sellers Viseur
Mr. Gramsci di Fazio
Ms. JoAnne Richardson

Counsel for the Accused:

Ms. Vasvija Vidovic
Mr. John Jones


  1. 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”) is seized of the “Motion to Exclude the Alleged Record of Interview of the Accused Pursuant to Rules 89(D) and 95” (“Motion”), filed by counsel for Naser Oric (“Accused” and “Defence”, respectively) on 23 January 2006. On 31 January 2006, the Office of the Prosecutor (“Prosecution”) filed the “Prosecution Response to Defence Motion to Exclude the Alleged Record of Interview of the Accused Pursuant to Rules 89(D ) and 95” (“Response”) and on 3 February 2006, the Defence, with authorisation of the Trial Chamber, filed the “Reply to Prosecution Response to Motion to Exclude the Alleged Record of Interview of the Accused” (“Reply”).

  2. During the trial proceedings on 11 January 2005, the Office of the Prosecutor (“Prosecution”) tendered into evidence the video-recordings and transcripts of what appears to be a suspect interview with the Accused (“Interview”).1 This Interview was conducted from 2-6 April 2001 and from 14-24 May 2001 at the UN Field Office in Sarajevo.2 The record of the Interview consists of a total of 52 CDs and more than thousand pages of transcript both in the English and in the Bosnian language.3

  3. The Accused was not indicted by the Prosecution, and brought into the custody of the Tribunal, until the spring of 2003.4


    A. Defence

  4. The Defence contends that the Interview is a generally unreliable and misleading piece of evidence. As a consequence, the Defence requests that the Trial Chamber exclude the entire record of the Interview from evidence in this case, pursuant to Rules 89(D)5 and 956 of the Tribunal’s Rules of Procedure and Evidence (“Rules”). In support of its request, the Defence sets out six areas of defect, each of which allegedly renders the Interview unreliable: (i) flawed interpretation, (ii) incomplete or erroneous transcription, (iii) incompetent representation, (iv) consultation of other sources by the Accused, (v) aggressive questioning by Prosecution investigators and (vi) abuse of process on part of the Prosecution.

  5. Regarding the first issue, the Defence submits that the interpreter through whom the Interview was conducted was not a native speaker of the Bosnian language in which the Accused spoke. The Defence alleges that many of the questions posed to the Accused by the Prosecution investigators were incorrectly interpreted to him, resulting in frequent miscommunication and confusion between both sides.7

  6. Regarding the second issue, the Defence submits that the English transcript of the Interview does not accurately reflect the actual course of conversation during the Interview. Giving numerous examples of that supposition, the Defence alleges that numerous interventions made by Mr. Konjic, then counsel for the Accused, as well as comments made by the Accused, do not accurately appear in the English transcript which thus amount to an actively misleading record of the Interview.8 In addition, it is alleged that the Bosnian transcript suffers from the same defect, albeit to a lesser degree than the English version.9

  7. Regarding the third issue, the Defence asserts that Mr. Konjic, being the counsel of the Accused, behaved in an incompetent fashion.10 More specifically, the Defence claims that Mr. Konjic inappropriately suggested evidence to the Accused,11 posed questions to him12 or induced him to produce potentially self-incriminating evidence,13 all in an ostensible disregard to the interests of his client. The Defence further notes that Mr. Konjic has never been authorised to represent an accused in any proceedings before the Tribunal14 and that during the Interview, he never enquired which precise crimes his client was suspected of.15

  8. Regarding the fourth issue, the Defence submits that the Interview is contaminated by the fact that a number of times, the Accused consulted other persons as a basis for his answers to questions posed by the Prosecution investigators, rather than relying on his own experience and recollection of the relevant events. According to the Defence, Prosecution investigators were under a duty to advise the Accused to confine himself to his own experience or recollection.16

  9. Regarding the fifth issue, the Defence submits that the Interview is compromised by aggressive questioning on part of the Prosecution investigators.17

  10. Regarding the sixth issue, the Defence alleges that the non-responsiveness by the Prosecution to rectify the above errors which have been pointed out by the Defence on earlier occasions, and the fact that the Prosecution continues to rely on the Interview, amounts to an abuse of process.18

    B. Prosecution

  11. In its Response, the Prosecution submits that the defects alleged by the Defence cast no substantial doubt on the overall reliability of the Interview, which the Prosecution claims to be relevant and of probative value. Any flaws alleged by the Defence, it is stated, do not meet the threshold as to justify exclusion of the entire Interview.19 As a consequence, the Motion should be denied.20

  12. According to the Prosecution, the Interview was conducted in accordance with the relevant Rules of the Tribunal’s Rules of Procedure and Evidence,21 and it was subsequently reflected in an English and a Bosnian transcript prepared by the Tribunal’s Conference and Language Service Section (“CLSS”). In the course of the transcription process, CLSS reviewed the interpretation given by the interpreter during the Interview, and made corrections whenever necessary.22 Short exchanges between Mr. Konjic and the Accused are usually not reflected in the English transcript as they weren’t interpreted into English; however, the Prosecution says, any such interaction was recorded and can be ultimately traced in the video recordings and in the Bosnian transcript.23

  13. Regarding the alleged incompetence of the Accused’s counsel, the Prosecution states that the fact that Mr. Konjic has never represented an accused before the Tribunal does not provide a valid basis for the Defence to challenge his competence as counsel during questioning of a suspect.24 On the contrary, the Prosecution contends that Mr. Konjic’s conduct was competent, that he was well-prepared and actively pursuing the interests of his client in the course of the Interview.25 Moreover, at no time during the Interview did the Accused disagree with Mr. Konjic’s handling of business.26

  14. Furthermore, the Prosecution submits that there is no legal basis for the Defence contention that the Interview is contaminated by the Accused’s consultation of external sources, nor is such a practice necessarily to the detriment of the interviewee.27 It is likewise denied that the Accused was questioned aggressively during the Interview, or that the continuing reliance on the Interview constitutes an abuse of process.28


    A. The law

  15. Article 18(3) of the Tribunal’s Statute29 provides that

    If questioned, the suspect shall be entitled to be assisted by counsel of his own choice [...] as well as [...] necessary translation into and from a language he speaks and understands.

  16. The rights of suspects during investigations by the Prosecution are set out in detail in Rule 42 of the Rules. The provision reads as follows:

    (A) A suspect who is to be questioned by the Prosecutor shall have the following rights, of which the Prosecutor shall inform the suspect prior to questioning, in a language the suspect understands:

    (i) the right to be assisted by counsel of the suspect’s choice or to be assigned legal assistance without payment if the suspect does not have sufficient means to pay for it;

    (ii) the right to have the free assistance of an interpreter if the suspect cannot understand or speak the language to be used for questioning; and

    (iii) the right to remain silent, and to be cautioned that any statement the suspect makes shall be recorded and may be used in evidence.

    (B) Questioning of a suspect shall not proceed without the presence of counsel unless the suspect has voluntarily waived the right to counsel. In case of waiver, if the suspect subsequently expresses a desire to have counsel, questioning shall thereupon cease, and shall only resume when the suspect has obtained or has been assigned counsel.

  17. Rule 43 of the Rules regulates the recording of questioning of suspects. It provides, as far as relevant:

    Whenever the Prosecutor questions a suspect, the questioning shall be audio-recorded or video-recorded [...]


    (vi) the tape shall be transcribed if the suspect becomes an accused.

  18. Pursuant to Rule 89(B) of the Rules, the Trial Chamber shall, in cases not otherwise provided for, apply rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law. The admission of evidence is governed by Rule 89(C) of the Rules, which provides that a Trial Chamber may admit any relevant evidence which it deems to have probative value. Pursuant to Rule 89(D) of the Rules, a Trial Chamber may exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial.

  19. Rule 95 of the Rules does not allow the admission of evidence obtained by methods which cast substantial doubt on its reliability or where admission is antithetical to and would seriously damage the integrity of the proceedings.

    B. Analysis

  20. While the Defence initially stated it had no objection to the admission of the Interview,30 it is true that Defence has made objections throughout the proceedings regarding translation and transcription of the Interview.31 However, the Trial Chamber notes that the remaining complaints were raised by the Defence for the first time only now in the Motion.

    1. The circumstances of the Interview

  21. The Trial Chamber notes that, upon commencement of the Interview, the Accused was advised that he was a suspect and that anything he would be saying could be used as evidence in a possible trial. The Accused was further instructed that he should seek clarification if any of the questions posed by the Prosecution investigators appeared unclear to him. He was then advised of his right to remain silent and that he was entitled to counsel of his own choosing. In fact, Mr. Konjic, his counsel, was present throughout the Interview, including the introductory stage.32

  22. Turning to the substance of the Defence complaints, the Trial Chamber emphasises that the Interview is not equivalent to testimony given by an accused at trial. The Interview is the record of what appears to be a suspect interview with the now Accused, and as with all other exhibits adduced by the Prosecution in these proceedings, it is the Prosecution which must discharge its burden of proof regarding all factors affecting reliability.

  23. Rather than asserting the breach of any particular Rule in the course of the Interview, the Defence bases its objection on the alleged overall lack of reliability of the Interview. The Trial Chamber acknowledges that circumstances may arise warranting the exclusion of a suspect interview from evidence in spite of it having been conducted in accordance with the formal requirements of Rules 42 and 43 of the Rules. As the Appeals Chamber of the Tribunal has held,

    [...] a pre-requisite for admission of evidence must be compliance by the moving party with any relevant safeguards and procedural protections and [...] it must be shown that the relevant evidence is reliable.33

    2. The individual complaints made by the Defence

  24. Regarding the Defence complaint of defective interpretation, the Trial Chamber accepts that the entire Interview was reviewed by neutral services within the Tribunal when it was transcribed with a view to expunge translation errors.34 The Trial Chamber is satisfied that this review also resulted in a designation of the instances in the English transcript in which deviant interpretation was provided to the Accused. Accordingly, the Trial Chamber has no grounds to believe that defective interpretation has rendered the Interview unreliable. Rather, the Trial Chamber will give due consideration to the parts where the Accused appears to have received incorrect translation.

  25. With respect to the Defence complaint regarding incomplete transcription, the Trial Chamber acknowledges that there are various instances in which the current English transcript does not completely reflect what was being said during the Interview. The Prosecution, on the other hand, has not denied that the examples of corrected English transcript provided in the Motion are an accurate reflection of what was said during the Interview. Against this background, the Trial Chamber sees no reason to exclude the Interview from evidence due to deficient transcription; instead, it will rely on the English transcript taking into account what has been submitted in the Motion.

  26. Next, the Trial Chamber turns to the Defence submission that the Accused was represented by incompetent counsel during the Interview. In national criminal proceedings, allegations about ineffective legal representation must reach a high threshold in order to lead to reversal. The benchmark is whether conduct of counsel was so deficient that he didn’t act as ‘counsel’,35 or that he provided ‘flagrant incompetent advocacy’.36 In the case at hand, the Trial Chamber is unable to observe such a situation. The Trial Chamber recalls that the Accused participated in the Interview voluntarily, that he chose Mr. Konjic to be his counsel, and that the Accused did not express concerns regarding Mr. Konjic’s conduct, or request his substitution, at any point in time during the Interview. The Trial Chamber, having examined in full Mr. Konjic’s performance, finds no grounds for arguing that it could be described as flagrantly incompetent. In addition, the fact that Mr. Konjic has never been an authorised counsel before the Tribunal does not diminish in any way his professional capacities.37 Consequently, the Trial Chamber does not find that the Accused during the Interview was represented by incompetent counsel.

  27. Furthermore, the Trial Chamber is not persuaded that the Interview is rendered unreliable by the fact that the Accused consulted outside sources as a basis for the answers he gave to the Prosecution investigators. In most of these cases, the Accused appears to have indicated that he had done so on the record, and the Trial Chamber will, as a matter of course, attribute the appropriate weight to such statements when assessing the evidence.

  28. Regarding the Defence contention that the Accused was aggressively questioned during his Interview, the Trial Chamber is unable to agree and further concludes that, even if the concrete manner of questioning by the Prosecution investigators was to be characterised as somewhat ‘aggressive’, this was within the limits of normality and in no way affects the integrity of the Interview rendering it unreliable.

    3. Conclusion

  29. The Trial Chamber finds that none of the Defence complaints examined above, whether considered individually or cumulatively, carry sufficient weight to render the entire Interview unreliable or shake its prima facie probative value. This conclusion also affects the Defence contention that the continued use of the Interview by the Prosecution amounts to an abuse of process.

  30. Consequently, the Trial Chamber cannot exclude the Interview from evidence, but will assess the relative weight to give to it at the appropriate time and give all due consideration to the various submissions made in regard.38


  31. For the foregoing reasons, the Trial Chamber hereby

    DENIES the Motion.

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

Dated this seventh day of February 2006
At The Hague
The Netherlands

Carmel Agius
Presiding Judge

[Seal of the Tribunal]

1 - Racine Manas, T. 3460-3475; Motion, para. 3.
2 - Response, para. 5.
3 - Exhibits P328 and P329.
4 - Prosecutor v. Naser Oric, Case No. IT-03-68-PT, Initial Indictment, 13 March 2003; Ibid., Scheduling Order for Initial Appearance, 14 April 2003.
5 - Rule 89(D) of the Rules reads: “A Chamber may exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial.”
6 - Rule 95 reads: “No evidence shall be admissible if obtained by methods which cast substantial doubt on its reliability or if its admission is antithetical to, and would seriously damage, the integrity of the proceedings.”
7 - Motion, paras 10-12; Reply, paras 15-21.
8 - Motion, examples nos 1-98.
9 - Reply, para. 9 and Annex A to the Reply.
10 - Motion, paras 13-17.
11 - Motion, para. 18; see, e.g., examples 1, 4, 9, 20, 28, 41, 59.
12 - Motion, paras 19-20, 27-28, 31; see, e.g., examples 2, 3, 4, 10, 12, 45, 46, 56.
13 - Motion, para. 23.
14 - Motion, para. 13; Reply, para. 29.
15 - Reply, para. 30.
16 - Motion, paras 25, 33-34; see, e.g., examples 8, 9, 70-79; Reply, paras 36-37.
17 - Motion, paras 41-42; example 80.
18 - Motion, paras 43-45.
19 - Response, para. 14.
20 - Response, para. 4.
21 - Response, paras 6-8.
22 - Response, para. 9, 29.
23 - Response, para. 10.
24 - Response, para. 18.
25 - Response, paras 19-22.
26 - Response, paras 23-24.
27 - Response, para. 31.
28 - Response, paras 28, 30.
29 - Statute of the International Criminal Tribunal for the former Yugoslavia, adopted 25 May 1993 by S/RES 827 (1993) and last amended by S/RES 1481 (2003).
30 - “MR. JONES: [...] We do not object to P316 to P329”, hearing of 11 January 2005, T. 3476.
31 - Motion, paras 4-6.
32 - Ex. P328, tape 1, pp. 1-4; ex. P329, tape 1, pp. 4-5.
33 - Prosecutor v. Delalic et al., Case No. IT-96-21-T, Appeal Judgment, 20 February 2001, para. 533 (emphasis added). See already the Trial Chamber’s “Order Concerning Guidelines on Evidence and the Conduct of Parties During Trial Proceedings” (“Guidelines”) issued in this case on 21 October 2004, guideline (xi), p. 8.
34 - Beyond that, the Defence has not sought – as has been done in other cases – that CLSS re-translate allegedly defective parts of the Interview; see Prosecutor v. Sefer Halilovic, Case No. IT-01-48-T, Decision on Defence Motion for Disclosure of Circumstances of Translation and Replacing of Flawed Exhibit and Failure of Prosecution to Give Notice Thereof, 25 May 2005.
35 - For the US, see Strickland v. Washington, 466 U.S. 668, 694 (1984); for Germany, see BGH 4 StR 202/92 (NStZ 1992, 503).
36 - For the UK, see Regina v. Clinton, [1993] 1 W.L.R. 1181 (CA (Crim. Div.)).
37 - This case thus differs fundamentally from the one in Halilovi}, where the Registrar had removed counsel from proceedings (Prosecutor v. Sefer Halilovic, Case No. IT-01-48-T-AR73.2, Decision on Interlocutory Appeal Concerning Admission of Record of Interview of the Accused from the Bar Table”, 19 August 2005, paras 55-62).
38 - Guidelines, para. 10.