Case No. IT-03-68-T
IN TRIAL CHAMBER II
Before:
Judge Carmel Agius, Presiding
Judge Hans Henrik Brydensholt
Judge Albin Eser
Registrar:
Mr. Hans Holthuis
Decision of:
7 February 2006
PROSECUTOR
v.
NASER ORIC
__________________________________________
DECISION ON DEFENCE MOTION TO EXCLUDE INTERVIEW
OF THE ACCUSEDPURSUANT TO RULES 89(D) AND 95
__________________________________________
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
I. BACKGROUND
- 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”).
- 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
- The Accused was not indicted by the Prosecution,
and brought into the custody of the Tribunal, until
the spring of 2003.4
II. SUBMISSIONS BY THE PARTIES
A. Defence
- 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.
- 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
- 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
- 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
- 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
- Regarding the fifth issue, the Defence submits
that the Interview is compromised by aggressive
questioning on part of the Prosecution investigators.17
- 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
- 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
- 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
- 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
- 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
III. DISCUSSION
A. The law
- 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.
- 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.
- 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.
- 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.
- 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
- 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
- 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
- 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.
- 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
- 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.
- 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.
- 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.
- 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.
- 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
- 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.
- 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
IV. DISPOSITION
- 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.