Judicial Supplement 18 - The Prosecutor v. Dario Kordic and Mario Cerkez

In 1995, a Prosecution investigator who did not speak Croatian used an interpreter to take the statement of Mr. Midhat Haskic. The investigator, a Dutch native speaker, then wrote the statement in English, which was translated back into Croatian for the witness to sign. In the statement, Mr. Midhat Haskic claimed to have seen the accused Dario Kordic in the village of Donja Vecerska in the company of soldiers from the Croatian Defence Council (hereinafter "HVO") along with members of the "Jokers", one of the units most closely associated with alleged wrongdoing in the area, on the night before an HVO attack on the village.

On 20 May 1999, the Prosecution indicated that it would try to introduce the statement. Mr. Midhat Haskic subsequently died and the Prosecution contended that it was in the interest of justice to admit the statement into evidence.

On 21 February 2000, Trial Chamber III consisting of Judges May (Presiding), Bennouna and Robinson rendered an oral ruling in which they held that Rule 89(C) of the Rules of Procedure and Evidence1 gave the Trial Chamber discretion to admit the statement and that the fact that it had not been subjected to cross-examination and not given under oath were factors going to the weight to be given to the statement, and not its admissibility. The Judges therefore decided to admit it.

On 28 March 2000, a Bench of three Appeals Chamber Judges granted leave to pursue the interlocutory appeal.

The Appeals Chamber allowed the appeal and directed the Trial Chamber to exclude the statement at issue.

The Judges identified the issue as one of whether the unsworn, uncross-examined, out-of-court statement of a deceased witness should have been admitted into evidence as the only proof of Dario Kordic’s presence in a particular place at a particular time.

Before the Decision of the Appeals Chamber summarised and analysed here, the issue of the distinction between the admissibility and the reliability of a witness's evidence had been examined twice by Trial Chamber II in two Decisions both rendered on 19 January 1998 in the same case The Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic and Esad Landzo ("Celebici"), Case No. IT-96-21-T.

In the 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 (hereinafter "Mucic Handwriting Decision"), the Trial Chamber, then composed of Judges Karibi-Whyte (Presiding), Odio Benito and Jan stated inter alia that "reliability is the invisible golden thread which runs through all the components of admissibility. Yet, it is a cardinal rule of construction of legislation, that where the words of a provision are clear and unambiguous, the task of interpretation does not arise. So it is with Sub-rule 89(C). Thus, it is neither necessary nor desirable to add to the provisions of Sub-rule 89(C) a condition of admissibility which is not expressly prescribed by that provision." (emphasis added, para. 32)

In their Decision on the Motion of the Prosecution for the Admissibility of Evidence, the Judges reiterated that "[t]his view of reliability as a separate requirement, independent of those provided for by Sub-rule 89(C), has been rejected by the Trial Chamber in the Mucic Handwriting Decision" (para. 19). There is no mention of reliability in the Rules, but "it is an implicit requirement of the Rules that the Trial Chamber give due consideration to indicia of reliability when assessing the relevance and probative value of evidence at the stage of admissibility" (para. 20). Trial Chamber II thus ruled that whilst evidence may be excluded because it is unreliable, that evidence must not be shown to be reliable before being admitted. The evidence need only be shown relevant and probative in order for it to be admissible.

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1. "A Chamber may admit any relevant evidence which it deems to have probative value".
2. The Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-A, Appeals Chamber, Judgement, 24 March 2000 (summarised in Judicial Supplement No. 13).
3. On the definition of the reliability of a witness's evidence and on the distinction to be drawn between that reliability and that witness's credibility, see The Prosecutor v. Dragoljub Kunarac, Radomir Kovac & Zoran Vukovic ("Foca"), Case No. IT-96-23-T, Trial Chamber II, Decision on Motion for Acquittal, 3 July 2000 (summarised in this issue of the Judicial Supplement).
4. In respect of the distinction which has to be drawn between admissibility and reliability, see the text box on page 2 of this issue of the Judicial Supplement.

"Decision on Appeal regarding the Admission into Evidence of seven Affidavits and one formal Statement"

With reference to Rule 89(B), the Judges insisted on the importance of the general principle that "interpretation of the Rules of Evidence should ‘best favour a fair determination of the matter’ and be ‘consonant with the spirit of the Statute and the general principles of law.’" The Appeals Chamber stated that the Tribunal is guided by the general principles set forth in the Vienna Convention on the Law of Treaties of 1969 and that "[i]n interpreting a particular Rule, a Trial Chamber should ensure that it is interpreted in accordance with its ‘ordinary meaning’ and ‘in the light of [the] object and purpose’ of the Statute and Rules."

The Judges noted that Trial Chamber III had "relied on the principle of effectiveness (interprétation par la méthode de l’effet utile or ut res magis valeat quam pereat)" and found that the question arose as to whether or not the Trial Chamber’s interpretation had achieved this, "without contravening the rights of the Appellant and the need to ensure a fair trial both of which requirements underline the object and purpose of the Statute and the Rules."

The Appeals Chamber referred to its recent Decision of 21 July 2000 in the same case4 and re-confirmed that there was "a general preference for live, in-court testimony before the International Tribunal, to which rule 94 ter constitutes one of four exceptions." The Judges therefore concluded that there was "no absolute right to confront a witness." The Appeals Chamber nevertheless noted that the three other exceptions, namely deposition evidence (Rule 71), the receipt of testimony via video-conference link (Rule 90(A)) and expert witness statement (Rule 94 bis), "envisage a right of cross-examination in some form." The Judges added that "[t]estimony other than live testimony, may fall within one of these four exceptions, or alternatively, as is also firmly established, hearsay evidence can be admissible if it satisfies Rule 89(C) and presents sufficient indicia of reliability".

The Judges went on to hold that "[t]he purpose behind Rule 94 ter was the desire to contribute to the expedition of cases before the International Tribunal, by providing a mechanism whereby affidavit evidence could be brought before a Trial Chamber in certain circumstances, avoiding the need to call every witness relied upon in relation to a fact in dispute especially when the testimony is cumulative. This desire for expedition is however constrained by the need to protect the rights of an accused." Alternatively, if Rule 94 ter is invoked by the Defence, the need for expedition is "constrained by the need to protect the interests of the Prosecution."

The Appeals Chamber stressed that "‘proper protection of the rights of the accused’, is overriding and the Rule must not be interpreted so that this protection is lost". The Judges referred again to their Decision of 21 July 2000, which clarified "this need for protection" and determined that Rule 94 ter, which provides "strict procedural protections", "allows for departure from the principle of hearing live, in court testimony, only if certain safeguards are provided".

Going back to the instant case, the Appeals Chamber noted that Trial Chamber III had "stated that the Rule must be interpreted to give it ‘useful effect’". Most importantly, the Judges held that this is "only achieved if a satisfactory balance is struck between protection of the rights of the accused preserved by the safeguards in the provision and the need to ensure that trial proceedings are properly and expeditiously conducted."

Rule 94 ter, as an exception to the general rule for direct evidence, "must be construed in such a way that the intent of the Rule to admit affidavit evidence under prescribed conditions is not defeated, while at the same time ensuring ‘full respect for the rights of the accused’". The Appeals Chamber also held that affidavit evidence under Rule 94 ter was therefore "admissible only in support or corroboration of live testimony" and added that it was "not intended that it should substitute for the live testimony."

The Judges noted that the affidavits "were submitted at the end of the Prosecution case, and in some cases months after the live testimony which they were supposed to corroborate had concluded." The Appeals Chamber challenged the interpretation of Trial Chamber III that the timing requirement is "a technical procedural requirement" and found that "this is an integral and fundamental part of the Rule" which "also upholds the rights of the opposing party."

The Judges reiterated "that the Rules must be interpreted with some degree of flexibility" and that it had already "accepted non-compliance with the precise terms of a Rule, provided it has no adverse effect upon the integrity of the proceedings or the rights of the accused. But departure from the precise terms of Rule 94 ter in this case was more than of a technical procedural nature. The Appellant was deprived of the opportunity to challenge and cross-examine a live witness on the facts alleged in the seven affidavits."

The Appeals Chamber identified the risk to avoid and pointed out that "[t]he terms of Rule 94 ter should not be extended so that it becomes a general mechanism by which a party may file unchallenged affidavit evidence to support oral testimony which has already concluded. Departure from the terms of the Rule deprived the Appellant of the right to consider the affidavit evidence before the testimony of the live witness, to cross-examine that witness on the issues raised and thereafter to make his submissions as to whether or not he needed to cross-examine the makers of the supporting affidavits."

The Judges consequently found that Trial Chamber III had "erred in its interpretation of the timing requirement in Rule 94 ter as being merely a ‘technical procedural requirement’ and that on the contrary this requirement is an integral part of the Rule protecting the rights of the accused." The Appeals Chamber concluded that this departure "caused the Appellant material prejudice and on this basis this appeal should be granted and the seven affidavits excluded from evidence."

2. Effect of an objection by a party if the affiant is not made available for cross-examination

The Judges stated that "in principle the Appeals Chamber finds no error in the exercise of the Trial Chamber’s discretion to deny a request that the affiants be made available for cross-examination in the instant case. [...] The intention behind Rule 94 ter was to assist in the expedition of proceedings and avoid the unnecessary duplication of evidence before a Trial Chamber. This is limited by the need to protect the rights of the accused", which "are protected by adherence to the ‘strict procedural protections’ contained within the Rule."

The Judges held that "the final sentence of Rule 94 ter should be interpreted to mean that, a party has the right to apply to the Trial Chamber for an order that the affiant shall be called for cross-examination. Although a Trial Chamber is obliged to consider the application it remains within its discretion to make a decision based on the merits. Such a decision will be made on a case by case basis."

The Appeals Chamber emphasised that "Rule 94 ter is in fact distinct from the other three so-called exceptions to the general principle in favour of direct testimony, each of which generally envisages cross-examination of a witness. In this case, the evidence is intended to add live testimony and not substitute for it."5 The Judges distinguished it from Rule 71 bis6, which in fact arguably does not constitute such a clear exception" to the general rule, "as the intention is still for the witness to give ‘primary’ evidence in person, but simply not in the formal environment of a Trial Chamber."

The Appeals Chamber noted that "Rule 94 ter provides for affidavit evidence to corroborate live evidence. As the live evidence is called to ‘prove a fact in dispute’, the fact in dispute must be clear, as the affidavit evidence is intended specifically to support ‘testimony on that fact’."

The Judges expressed their agreement with Trial Chamber III "generally that this phrase should not be interpreted too narrowly. But the affidavit evidence must support the testimony of some live witness on some fact in dispute and cannot simply be filed in a general way without such a reference." The Appeals Chamber therefore found that the standard endorsed by the Trial Chamber, "that all that is required is that there should be some confirmation or support of evidence in a very general sense and that the expression ‘facts in dispute’ should be given a very broad interpretation" was too open-ended.

The Judges noted that Colonel Morsink had given live evidence before Trial Chamber III in October 1999. On 19 January, Judge Bennouna had stated on behalf of the Trial Chamber, that with regard to a proposal to recall the witness to deal with the issue of a list of detainees in the cinema, Trial Chamber III had suggested that it was preferable to deal with the authentication of the list, or a statement regarding how the list had been obtained through a simple affidavit. Counsel for Mario Cerkez subsequently agreed but asked for the right to recall the witness, if necessary, after the affidavit had been submitted, to which the Trial Chamber replied: "we have in mind your application. In due course we’ll receive the affidavit, and then, if you’ve got submissions about it, of course we’ll hear them." The Judges therefore concluded "that the right to apply to cross-examine this witness was preserved until the affidavit had been submitted [...] as it was obtained, through agreement, pursuant to a suggestion by the Trial Chamber, to supplement live testimony."

The Appeals Chamber added that "[i]f the evidence contained within the Formal Statement is admitted [...] as an affidavit, it would have to fall within one of the other exceptions to the general principle of live, in court testimony [...]. Alternatively, it might be admitted under Rule 89(C)".

The Judges consequently found that Trial Chamber III had "failed to properly consider the admissibility of the Formal Statement under the relevant criteria" and had "improperly denied the Appellant’s request for cross-examination." In this case, the Appeals Chamber held that the only way the Trial Chamber could have "admitted the Formal Statement was under Rule 89(C), after considering the relevant criteria recently confirmed in the Decision of 21 July 2000."

The Judges accordingly concluded that Trial Chamber III had "erred in admitting the Formal Statement under Rule 94 ter."

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1. "To prove a fact in dispute, a party may propose to call a witness and to submit in corroboration of his or her testimony on that fact affidavits or formal statements signed by other witnesses in accordance with the law and procedure of the State in which such affidavits or statements are signed. These affidavits or statements are admissible provided they are filed prior to the giving of testimony by the witness to be called and the other party does not object within seven days after completion of the testimony of the witness through whom the affidavits are tendered. If the party objects and the Trial Chamber so rules, or if the Trial Chamber so orders, the witnesses shall be called for cross-examination."
2. "A Chamber may admit any relevant evidence which it deems to have probative value."
3. "In cases not otherwise provided for in this Section, a Chamber shall 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."
4. Summarised and analysed in this issue of the Judicial Supplement.
5. On the requirement to use affidavit evidence to corroborate witness testimony, see The Prosecutor v. Kupreskic et al, Case No. IT-95-16-T, Trial Chamber II, Decision on Evidence of the Good Character of the Accused and the Defence of tu quoque, 17 February 1999 (summarised in Judicial Supplement No. 2).
6. "At the request of either party, a Trial Chamber may, in the interests of justice, order that testimony be received via video-conference link."