Case No.: IT-97-24-AR73.5


|Judge Asoka de Zoysa Gunawardana, Presiding
Judge Mohamed Shahabuddeen
Judge Mehmet Güney
Judge Fausto Pocar
Judge Theodor Meron

Mr. Hans Holthuis

Decision of:
10 October 2002





The Office of the Prosecutor:

Ms. Joanna Korner
Mr. Nicolas Koumjian

Counsel for the Appellant:

Mr. Branko Lukic
Mr. John Ostojic


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"),

BEING SEIZED OF "Defendant, Milomir Stakicís Notice of Appeal, Pursuant to Rule 73 (B)", filed on 8 August 2002, against the "Decision on the Defence Request to Exclude Evidence as Inadmissible" dated 31 July 2002 ("Impugned Decision"), wherein Trial Chamber II ("Trial Chamber") denied a Defence motion to exclude from evidence photocopies of papers that were, allegedly, illegally seized from the black bag of the Appellant, Milomir Stakic, upon his being taken into custody by the Tribunal ("Documents");

NOTING that, during the hearing of 1 August 2002, the Trial Chamber granted a certificate pursuant to Rule 73 (B) of the Rules of Procedure and Evidence of the International Tribunal ("Rules"), for the Defence to appeal from the Impugned Decision;

NOTING that the Appellant filed, on 8 August 2002, a motion to extend the time for filing his Appeal Brief to 26 August 2002, which was granted by a Duty Judge of the International Tribunal on 9 August 2002;

NOTING the "Appellant, Milomir Stakicís Brief in Support of His Notice of Appeal", filed on 28 August 2002 ("Appeal Brief"), which is two days later than the extension granted by the duty Judge on 9 August 2002;

NOTING the "Defendant, Milomir Stakicís Motion for Leave to File His Brief in Support of the Notice of Appeal, INSTANTER" filed on 28 August 2002, in which the Appellant asks for leave to file his Appeal Brief because, inter alia, his co-counsel was unable to prepare it before 26 August 2002 as a result of his many professional engagements;

CONSIDERING that the delay in the filing of the Appeal Brief did not prejudice the Prosecutionís right to respond to the Appeal Brief or the proceedings in this appeal;

FINDING that there is good cause in the terms of Rule 127 of the Rules1 and therefore RECOGNISING the filing of the Appeal Brief as validly done;

NOTING the "Prosecutionís Response to ĎAppellant, Milomir Stakicís Brief in Support of His Notice of Appealí", filed on 9 September 2002 ("Response");

NOTING that the Appellant has not filed any reply in these proceedings;

NOTING that the Appeal Brief asserts that the Trial Chamber erred by permitting to be admitted as evidence certain documents "illegally, improperly and unethically obtained by the Office of the Prosecutor", which the Prosecution intends to use as a sample of the Appellantís handwriting and that therefore the Appeals Chamber should reverse the Impugned Decision and exclude the documents admitted by that decision;2

CONSIDERING that the Appeal Brief raises the following issues:

a) Whether the documents at issue were illegally, improperly, and unethically seized from the Appellant after his arrest;

b) Whether the documents must be excluded because the proper chain of custody was not established, and therefore the authentication of the documents would not be possible;

c) Whether the procedure adopted in permitting the admission of the documents is contrary to the ruling in Prosecutor v. Delalic et al;3

d) Whether the admission of the documents in terms of the Impugned Decision would violate the provisions of Article 21(4)(g) of the Statute of the International Tribunal;

e) Whether the Appellantís right to have a fair trial is affected by the admission of the documents; and

f) Whether the admission of the documents violates Rule 95 of the Rules;4

CONSIDERING that, in its Response, the Prosecution submits that:

a) The search of the Appellantís bag and the temporary seizure of documents therein, after his arrest and whilst being transferred to the Detention Facility of the Tribunal ("search and seizure"), were lawful under the Rules and international law;

b) Even if the Appeals Chamber were to conclude that the search and seizure to be illegal, the exclusion of the documents from evidence would not be appropriate, as the circumstances of the search do not meet the standard for exclusion as contained in Rule 95 of the Rules;

c) The Prosecution has kept these documents in proper custody, and the documents are admissible under the Rules and established precedents; and

d) The Appellantís reliance on the Celebici Decision was misplaced, as the seizure of the documents in this case did not involve compulsion to testify and thus did not result in self-incrimination by the Appellant;5

CONSIDERING that the Prosecution submits that the Trial Chamber did not err in the exercise of its discretion in admitting the documents, and that the appeal should be rejected and the Impugned Decision affirmed;

CONSIDERING that the questions to be answered in this appeal are: 1) whether the search and seizure was lawful or unlawful; 2) if unlawful, whether the admission of the documents would violate Rule 95; and 3) whether the admission of the documents would violate the Appellantís rights under Article 21 (4) (g) of the Statute of the International Tribunal;6

NOTING that the Appellant relies partly on Rule 42 of the Rules entitled, "Rights of Suspects during Investigation", to establish the illegality of the search and seizure;

CONSIDERING however that Rule 39 of the Rules provides, inter alia, that in the conduct of investigation, the Prosecutor may collect evidence and conduct on-site investigations, or undertake such other matters as may appear necessary for completing the investigation and the preparation and conduct of the prosecution at the trial;

NOTING the arguments submitted with respect to practice in national courts on the issue of search and seizure;

FINDING that the Appellant has failed to establish that, in the circumstances of this case, the search and seizure was illegal in terms of the Rules or international law;

FINDING further that, the Appellant has failed to demonstrate that the admission of the documents would violate the provisions of Article 21(4)(g) of the Statute of the International Tribunal or Rule 95 of the Rules;




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

Asoka de Zoysa Gunawardana

Dated this tenth day of October 2002
At The Hague,
The Netherlands

[Seal of the Tribunal]

1 - Rule 127 of the Rule provides that "on good cause being shown by motion" the Appeals Chamber may "enlarge or reduce any time prescribed by or under the Rules".
2 - Appeal Brief, p.1.
3 - Prosecutor v. Zejnil Delalic et al., Decision on the Prosecution's Oral Requests for the Admission of Exhibit 155 into Evidence and for an Order to Compel the Accused, Zdravko Mucic, to Provide a Handwriting Sample, Trial Chamber II, 19 January 1998 ("Celebici Decision").
4 - Appeal Brief, p.2.
5 - Response, para.2.
6 - Rule 95 provides that 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. Article 21 (4) (g) guarantees that an accused shall not be compelled to testify against himself or to confess guilt.