"Decision on Prosecutor's Appeal on Admissibility of Evidence"

16 February 1999
Judges May [Presiding], Wang, Hunt, Bennouna and Robinson

Introduction

After the presentation of Prosecution evidence in rebuttal in the Aleksovski case, on 22 October 1999, Trial Chamber I admitted the transcript and video-recording of the evidence given by a witness in the trial of General Tihomir Blaskic (IT-95-14-T) as Defence evidence in rejoinder. The evidence was admitted pursuant to Sub-rule 89(C) of the Rules of Procedure and Evidence. The Prosecution had opposed this and had meanwhile sought leave to tender in rebuttal to the Defence evidence the transcript of evidence given by a confidential witness in the Blaskic trial. The Defence objected and, on 3 November 1999, the Trial Chamber rejected the Prosecution Motion. Having been granted leave to do so, the Prosecution appealed the two Decisions of the Trial Chamber to admit the Defence but not the Prosecution evidence.

In its Ruling of 4 February 1999, the majority of the Appeals Chamber with Judge Robinson dissenting denied the appeal against the first Decision but allowed the second one insofar as the Aleksovski Trial Chamber found that the confidential evidence from the Blaskic trial has probative value as stated in Sub-rule 89(C). The Trial Chamber was ordered to instruct the Prosecution to seek from the Blaskic Trial Chamber a waiver or amendment of its protective measures and to order such protective measures as required by the review and eventual admission of the confidential evidence1.

The majority’s written Decision of 16 February 1999 (hereinafter "the Majority Decision") giving reasons for these conclusions is summarised and followed by a summary of Judge Robinson’s Dissenting Opinion of that same date (hereinafter "the Dissenting Opinion").

The Majority Decision

The First Trial Chamber Decision

The majority of the Appeals Chamber first noted that the Defence evidence admitted by the Trial Chamber was hearsay, being a "statement of a person made otherwise than in the proceedings in which it is being tendered, but nevertheless being tendered in those proceedings in order to establish the truth of what that person says." Considering the Trial Chamber jurisprudence in the Tadic (IT-94-1-T) and the Blaskic cases, hearsay evidence was found to be admissible under Sub-rule 89(C) whereas its probative value would depend on the circumstances surrounding it.

The majority of the Appeals Chamber dismissed the Appellant’s claim that, in order to be admissible, all evidence must fall within the terms of Sub-rule 90(A), i.e. that it must be witness testimony given directly in court or, exceptionally, by deposition or via video-conference link. The majority further found that the Sub-rule does not limit the Trial Chamber’s freedom to admit evidence under Sub-rule 89(C).

The Majority of the Appeals Chamber found that the Trial Chamber had not erred in its not requiring that the Defence explain why the evidence was not called during the presentation of its case since the matter was not contentious at the trial stage. The Appeals Chamber’s majority also dismissed the Appellant’s argument that the test should be whether, after the close of the case, the Defence knew of the potential testimony (as opposed to the actual evidence) as this test would place too great a burden on a party seeking to re-open its case. Nonetheless, the Majority Decision stressed the Defence counsel’s duty to investigate the available Defence evidence properly.

In the opinion of the Appeals Chamber’s majority, the rules of evidence of some national jurisdictions requiring an adequate explanation of the reason why the witness was unavailable to testify have not been incorporated into the practice of the Tribunal. The majority held that the Trial Chambers must have flexibility to ensure a fair and expeditious trial as required by Article 20(1) of the Tribunal’s Statute. According to the Majority Decision, the Trial Chamber did not err in this respect.

Finally, the majority of the Appeals Chamber affirmed the Trial Chamber’s finding that the Prosecution’s cross-examination of the witness in the Blaskic trial satisfied its right to cross-examine this witness in the Aleksovski case. The decision was reached on the basis of the finding that the two cases have very common legal and factual aspects and the fact that the Prosecution had not demonstrated any lines of cross-examination relevant and significant to the Aleksovski case but not to the Blaskic case. The majority also considered that the Appellant had not argued before the Aleksovski Trial Chamber that the Blaskic Trial Chamber had wrongfully curtailed the right to cross-examine.

In conclusion, according to the Majority Decision, the Trial Chamber had properly used its discretion to admit in the Aleksovski trial the record of the witness testimony from the Blaskic case as hearsay evidence pursuant to Sub-rule 89(C).

The Second Trial Chamber Decision

Like the Defence rejoinder evidence, the confidential evidence the Prosecution sought to have admitted in rebuttal was hearsay. The Appellant had submitted that excluding this evidence violated the principles of equality of arms and a fair trial which are enshrined in Articles 20 and 21 of the Statute. Affirming the jurisprudence of the Delalic et al. case (IT-96-21-T) and in line with jurisprudence of the European Court of Human Rights, the majority of the Appeals Chamber found that the principle of equality should be interpreted in favour of both parties and not only in favour of the accused. Against this background, the majority of the Appeals Chamber found it unfair of the Trial Chamber to deny the Prosecution the right to rebut the evidence it had allowed the Defence to adduce.

The Appeals Chamber’s majority overruled the Trial Chamber’s finding that the Prosecution evidence should have been called during trial on the ground that the Prosecution did not know that the Defence would present its evidence until it had been granted leave to do so. The Trial Chamber’s further finding that the protective orders issued by the Blaskic Trial Chamber could not be altered was also considered by the majority of the Appeals Chamber to be incorrect since the Prosecution could have applied to that Trial Chamber for a waiver or an amendment of the orders.

The Appeals Chamber’s majority noted the fact that the Defence would not have the chance to cross-examine the witness from the Blaskic case whose testimony had been admitted in the Aleksovski case applies to all hearsay evidence. The majority also found that the Defence already had had the opportunity to cross-examine the witness in the Blaskic case and that any residual disadvantage was outweighed by the one the Prosecution would suffer should its rebuttal evidence not be admitted.

Having found that just as Sub-rule 89(D) does not deny the admissibility of the Defence rejoinder evidence and also does not exclude the Prosecution rebuttal evidence, the Appeals Chamber’s majority decided that the Trial Chamber had erred in not admitting the Prosecution evidence. The second appeal was, therefore, granted.

The Dissenting Opinion

Judge Robinson dissented with the Majority Decision which dismissed the Prosecution’s appeal in respect of the first Decision by the Aleksovski Trial Chamber and found that the Trial Chamber had wrongly exercised its discretion under Sub-rule 89(C) to admit relevant evidence of probative value. Further to an analysis of the relevant Rules, in his opinion, the Rules of Procedure and Evidence do not provide for the admission of transcript evidence.

In Judge Robinson’s view, Sub-rule 89(C) does not mandate the Trial Chamber to admit all evidence with probative power. The discretionary power to admit such evidence according to that Sub-rule may not be used contrary to the general scheme for the admission and presentation of evidence and the relevant provisions in the Statute and the Rules of Procedure and Evidence. Such Rules take precedence particularly when they establish special regimes.

Further to an analysis of the relevant provisions, the dissenting Judge drew the following conclusions: Sub-rule 90(A) establishes that direct evidence is the rule (the principle of orality of evidence), subject to the exceptions of a deposition and a video-conference link. Sub-rule 90(A) does not provide for the admission of transcript evidence, but a prohibition of the admission of such evidence cannot be construed on the basis of this Sub-rule. Sub-rule 94(B) regarding judicial notice of adjudicated facts and documentary evidence is inapplicable since the Blaskic case is still pending. This Rule could, however, be interpreted a contrario as requiring proof of facts and documentary evidence from other proceedings in respect of which no final judicial adjudication has been made.

According to Rule 94 bis, expert evidence must be rendered in person unless the opposing party accepts the admission of a statement. According to Judge Robinson, the Rule is applicable in the present case since it concerns the admission in the Aleksovski proceedings of a transcript of an expert witness’ testimony before the Blaskic Trial Chamber. In Judge Robinson’s opinion, the admission of the transcript in the Aleksovski case violated the procedural safeguards of Rule 94 bis which establishes a lex specialis regime in relation to Sub-rule 90(A) and to which this Sub-rule should have yielded.

As to the admission of affidavit evidence in accordance with Rule 94 ter, Judge Robinson noted that this Rule was adopted only after the Aleksovski Trial Chamber had ruled on the issue. Even if applicable, however, this Rule does not provide for the admission of transcript evidence from other proceedings. The dissenting Judge further considered Sub-rule 89(B) applicable only in cases where there is a lacuna in the Rules regarding the treatment of a matter. In his opinion, it would be incorrect to invoke this Rule when, as in the present case, a potential aspect or modality of an otherwise regulated issue is omitted.

In conclusion, Judge Robinson found that the Rules of Procedure and Evidence provide exhaustively for how evidence must be presented and that the admission of transcript evidence from another proceeding is not included therein. This is not different in the case of hearsay evidence which must also always be brought before the Trial Chamber by a witness through any of the proceedings established in the Rules analysed above. The decisions in the Tadic and Blaskic cases cited in the Majority Decision are not evidence to the contrary. Thus, in the dissenting Judge’s opinion, if the transcript of the testimony in the Blaskic proceedings were to have been admitted it should have been introduced through a witness.

In the section of the Dissenting Opinion entitled "Findings", the above mentioned conclusions are restated. As to the safeguards for evidence other than direct evidence pursuant to Sub-rule 90(A), such as expert witness evidence pursuant to Rule 94 bis, the right to cross-examination is also stressed in this section. In accordance with the International Covenant on Civil and Political Rights, Sub-rule 85(B) accords this right in all six phases of the presentation of evidence. In the opinion of the dissenting Judge, the right to cross-examine should be granted also in the present case where evidence would exceptionally be given out of the standard sequence established in Rule 85.

In Judge Robinson’s opinion, the Trial Chamber erred in its finding that the Prosecution’s right to cross-examination had been satisfied by the cross-examination of the same witness in the Blaskic case. He considered that the Prosecution may well have chosen a different line of cross-examination in the Aleksovski case and that the warrant of such a different approach could not condition the right to cross-examination. Furthermore, although the Blaskic and Aleksovski cases may be similar, the dissenting Judge stressed that they are legally distinct and that what applies to one does not necessarily apply to the other.

Judge Robinson also considered that finding evidence only admissible under Sub-rule 89(C) if it does not violate the general scheme for the admission and presentation of evidence enshrined in the Rules of Procedure and Evidence is even more applicable in the case of hearsay. Accordingly, since the Prosecution did not accept a statement of the expert witness, pursuant to Sub-rule 94 bis, the right to cross-examination of the witness should have been granted.

Finally, although the admission of a transcript from other proceedings would alleviate the heavy workload of the Tribunal, in the view of the dissenting Judge, this should be done only once the Rules of Procedure and Evidence so permit and provide safeguards for the reception of such evidence. According to the Dissenting Opinion, the granting of the Prosecution Motion by the Appeals Chamber’s majority served the expediency of the trial, required by Article 20 of the Statute, but not its fairness also required by that Article. In the view of the dissenting Judge, the Tribunal should always operate in accordance with its Statute and Rules of Procedure and Evidence to which it owes its powers and jurisdiction.

As an alternative to the Majority Decision, the Dissenting Judge would allow the Prosecution’s appeal with regard to the first Trial Chamber Decision. He would dismiss the appeal in respect of the second Decision of the Trial Chamber for the same reasons and remit the case to the Aleksovski Trial Chamber in order for the parties to apply for the appearance of their witnesses in person. Alternatively, in view of the importance of the nature of the conflict, the Dissenting Judge suggested that, pursuant to Rule 98, the Trial Chamber itself could order the appearance of the witnesses.

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1. In its Decision Regarding the Admission of Certain Documents as Evidence of 5 March 1999, the Aleksovski Trial Chamber ordered the admission under seal of the transcript of the confidential witness’ testimony, subject to various protective measures.