BRDJANIN and TALIC - IT-99-36

• "DECISION ON 'OBJECTION TO RULE 92 BIS PROCEDURE AND MOTION TO QUASH AND EXCLUDE ALL RULE 92 BIS STATEMENTS' FILED BY RADOSLAV BRDJANIN ON 13 DECEMBER 2001" 18 JANUARY 2002
• "ORDER ON THE STANDARDS GOVERNING THE ADMISSION OF EVIDENCE" 15 FEBRUARY 2002
• "DECISION ON JOINT MOTION BY MOMCILO KRAJISNIK AND BILJANA PLAVSIC FOR ACCESS TO TRIAL TRANSCRIPTS OF BOTH OPEN AND CLOSED SESSIONS AND DOCUMENTS AND THINGS FILED UNDER SEAL" 13 MARCH 2002

"Decision on 'Objection to Rule 92 bis Procedure
and Motion to Quash and Exclude all Rule 92 bis Statements'
filed by Radoslav Brdjanin on 13 December 2001"

18 January 2002
Trial Chamber II Section A (Judges Schomburg [Presiding], Mumba and Agius)

Procedural Background

· On 13 December 2001, Radoslav Brdjanin filed the Objection to Rule 92 bis Procedure and Motion to Quash and Exclude all Rule 92 bis1 Statements in which he requested an opportunity to cross-examine the witness in question, sought to exclude the entire Rule 92 bis statement and also all other Rule 92 bis statements and insisted that all the witnesses be called to give evidence viva voce.

· The Prosecution responded on 18 December 2001 and referred to the Practice Direction on Procedure for the Implementation of Rule 92 bis(B) of the Rules of Procedure and Evidence (the Presiding Officer)2.

The Decision

The Trial Chamber ordered that the witness will be called for cross-examination if it admits the Rule 92 bis statement to which the Motion referred.

The Reasoning

The Trial Chamber considered that if Radoslav Brdjanin fears that the contents of the statement were influenced by the investigator who took it, his remedy is calling the witness for cross-examination. It added that the accused may then question the witness "about the circumstances under which the statement was prepared in order to determine whether any pressure was brought to bear." The Trial Chamber stated that it was "willing to accede" to the request of Radoslav Brdjanin for an opportunity to cross-examine the witness in question. However, it noted that the remedy sought of excluding the entire Rule 92 bis statement and also all other Rule 92 bis statements and requiring that all the witnesses be called to give evidence viva voce was "not warranted."

In rejecting the Motion, the Trial Chamber emphasised that it was "not, thereby, admitting the Rule 92 bis statements produced by the Prosecution." It reiterated that "Rule 92 bis(A)(i) and (ii) set forth various criteria that the Trial Chamber must consider prior to admitting the statements." It also reiterated that the Trial Chamber had "not yet been provided with copies of the statements" and was therefore "not in a position to make a final decision about their admissibility." It made it clear however that the purported procedural irregularity argued by Radoslav Brdjanin in the Motion did "not constitute a bar to the admission of the statements."3

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1. "(A) A Trial Chamber may admit, in whole or in part, the evidence of a witness in the form of a written statement in lieu of oral testimony which goes to proof of a matter other than the acts and conduct of the accused as charged in the indictment.

(i) Factors in favour of admitting evidence in the form of a written statement include but are not limited to circumstances in which the evidence in question:

(a) is of a cumulative nature, in that other witnesses will give or have given oral testimony of similar facts;
(b) relates to relevant historical, political or military background;
(c) consists of a general or statistical analysis of the ethnic composition of the population in the places to which the indictment relates;
(d) concerns the impact of crimes upon victims;
(e) relates to issues of the character of the accused; or
(f) relates to factors to be taken into account in determining sentence.

(ii) Factors against admitting evidence in the form of a written statement include whether:

(a) there is an overriding public interest in the evidence in question being presented orally;
(b) a party objecting can demonstrate that its nature and source renders it unreliable, or that its prejudicial effect outweighs its probative value; or
(c) there are any other factors which make it appropriate for the witness to attend for cross-examination.

(B) A written statement under this Rule shall be admissible if it attaches a declaration by the person making the written statement that the contents of the statement are true and correct to the best of that person's knowledge and belief and

(i) the declaration is witnessed by:

(a) a person authorised to witness such a declaration in accordance with the law and procedure of a State; or
(b) a Presiding Officer appointed by the Registrar of the Tribunal for that purpose; and

(ii) the person witnessing the declaration verifies in writing:

(a) that the person making the statement is the person identified in the said statement;
(b) that the person making the statement stated that the contents of the written statement are, to the best of that person's knowledge and belief, true and correct;
(c) that the person making the statement was informed that if the content of the written statement is not true then he or she may be subject to proceedings for giving false testimony; and
(d) the date and place of the declaration.

The declaration shall be attached to the written statement presented to the Trial Chamber.

(C) A written statement not in the form prescribed by paragraph (B) may nevertheless be admissible if made by a person who has subsequently died, or by a person who can no longer with reasonable diligence be traced, or by a person who is by reason of bodily or mental condition unable to testify orally, if the Trial Chamber:

(i) is so satisfied on a balance of probabilities; and
(ii) finds from the circumstances in which the statement was made and recorded that there are satisfactory indicia of its reliability.

(D) A Chamber may admit a transcript of evidence given by a witness in proceedings before the Tribunal which goes to proof of a matter other than the acts and conduct of the accused.
(E) Subject to Rule 127 or any order to the contrary, a party seeking to adduce a written statement or transcript shall give fourteen days notice to the opposing party, who may within seven days object. The Trial Chamber shall decide, after hearing the parties, whether to admit the statement or transcript in whole or in part and whether to require the witness to appear for cross-examination."
2. IT/192 of 20 July 2001.
3. Regarding applications of Rule 92 bis of the Rules, see The Prosecutor v. Dusko Sikirica et al. ("Keraterm Camp"), Case No. IT-95-8-T, Trial Chamber III, Decision on Prosecution's Application to Admit Transcripts under Rule 92 bis, 23 May 2001 (summarised in Judicial Supplement No. 24); The Prosecutor v. Mladen Naletilic and Vinko Martinovic ("Tuta" & "Stela"), Case No. IT-98-34-T, Trial Chamber I Section A, Decision on the Admission of Witness Statements into Evidence, 14 November 2001 (summarised in Judicial Supplement No. 29).

"Order on the Standards Governing
the Admission of Evidence"

15 February 2002
Trial Chamber II Section A (Judges Agius [Presiding], Janu and Taya)

Procedural Background

· On 25 January 2002, the Prosecution and the Defence disagreed during a hearing on various issues concerning the admission into evidence of documents and the rules to be applied by the Trial Chamber in admitting or excluding evidence, particularly documentary evidence.

· On 28 January 2002 at the request of the Prosecution, the Trial Chamber heard the parties on the admission of documentary evidence. Both Defence counsel and the Prosecution provided written outlines to the Trial Chamber which issued an oral ruling that same day setting out ten guidelines governing the proceedings in the case.

The Reasoning

In respect of documentary evidence other than hearsay, the Trial Chamber did "not agree that the determination of the issue of reliability, when it arises, should be seen as a separate, first step in assessing a piece of evidence offered for admission."1 It considered that "the notion of establishing indicia of reliability ought not to be confused with having admissibility predicated on proof of reliability"2 (guideline no. 9).

The Trial Chamber found that the Prosecution was correct in submitting that (1) it "must establish relevance and probative value" so that a document can be admitted into evidence and that (2) "it need not establish authenticity or authorship or even the source of a document for such admission." However, the Trial Chamber underscored that "it should be always be kept in mind that the Prosecution may be called upon by the Trial Chamber to provide a minimum of proof that would be sufficient to constitute a prima facie indicia of reliability if the document so warrants"3 (guideline no. 10).

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1. Regarding the relevance of the reliability of a statement to its admissibility, see The Prosecutor v. Dario Kordic and Mario Cerkez ("Lasva River Valley"), Case No. IT-95-14/2-AR73.5, Appeals Chamber, Decision on Appeal regarding Statement of a Deceased Witness, 21 July 2000 (summarised in Judicial Supplement No. 18).
2. Regarding the distinction between the notions of admissibility and reliability of evidence, see the text-box in Judicial Supplement No. 18.
3. Regarding the application of this finding to both parties, see The Prosecutor v. Milomir Stakic ("Prijedor"), Case No. IT-97-24-PT, Pre-Trial Judge Wolfgang Schomburg, Provisional Order on the Standards Governing the Admission of Evidence and Identification, 25 February 2002 (summarised in this issue of the Judicial Supplement).

"Decision on Joint Motion by Momcilo Krajisnik and Biljana Plavsic for Access to Trial Transcripts of Both Open and Closed Sessions and Documents and Things filed under Seal"

13 March 2002
Trial Chamber II Section A (Judges Agius [Presiding], Janu and Taya)

Procedural Background

· On 8 February 2002, Defence counsel for the two co-accused Momcilo Krajisnik and Biljana Plavsic whose case was assigned to Trial Chamber III filed a joint Motion with Trial Chamber II in which they sought an order (1) allowing them access to trial transcripts of both open and closed sessions, documents and things filed under seal in the instant case and (2) directing the Registry to provide them access to the materials subject to the Motion in a prompt and timely manner.

· The Prosecution responded on 25 February 2002.

The Decision

The Trial Chamber partially granted the Motion with regard to trial transcripts and exhibits so long as certain protective measures are respected1.

The Reasoning

· First, the Trial Chamber referred to the Decision on the Appellant's Motions for the Production of Material, Suspension or Extension of the Briefing Schedule, and Additional Filings rendered by the Appeals Chamber on 26 September 2000 in the case The Prosecutor v. Tihomir Blaskic and held that "the Defence does not have the onus of identifying exactly what material it seeks"2. It added that "[i]t is sufficient to require the party to identify as clearly as possible the documents or the nature of the documents to which he seeks access."

· Second, "a party must show a legitimate forensic purpose for seeking access3, […] that such access would be likely to assist his case materially or that there is at least a good chance that it will give that assistance."4 The Trial Chamber noted that "[t]he Defence is rarely in the same position as the Prosecution in gathering information and it is only fair that the Defence should be able to take advantage of the work that the Prosecution had already done, even if that is in another case."5

· Third, the Trial Chamber referred to the Second Decision on Motions by Radoslav Brdjanin and Momir Talic for Access to Confidential Documents rendered by Trial Chamber II on 15 November 20006 and found that "the same general procedure might be applied with respect to copies of confidential trial exhibits", i.e. "after review of the redacted confidential exhibits, the Applicants may apply for access to the exhibits in their original form, under the same test and conditions required for access to a protected witness."

The Trial Chamber reiterated that "[i]n order to be granted access, the Applicants have to identify the documents sought or describe them by their general nature and need to show a legitimate forensic purpose for such access." In this case, it found that Momcilo Krajisnik and Biljana Plavsic had not fulfilled the "requirements with regard to documents other than trial transcripts and exhibits." In order to grant access to eventual other filings, the Trial Chamber specified that it "must be provided with some additional information regarding those other things filed under seal, which would describe their general nature."

The Trial Chamber stated that it was "satisfied that Rule 70(B)7 constitutes an exception to the general obligation of disclosure, which applies also in the present case." It further noted that the case-law of the Tribunal had not yet dealt with the issue of whether a Trial Chamber is allowed to grant leave to have access to the trial transcripts of closed sessions, documents and things filed under seal after the date of the decision. The Trial Chamber held that the wording of Rule 75(D)8 "leaves no doubt that a Chamber can vary or rescind protective measures or authorise their release to another Chamber only ex post, which means after having issued the protective measures." Therefore, pursuant to the wording of this Rule, it refused "to allow the Applicant to access protected material that will be filed after the date of the relevant order." The Trial Chamber underscored that "[s]hould a Chamber grant such a motion, this would mean that the Prosecution would not be given any opportunity to be heard on the merits concerning the documents sought in the particular case9. It concluded that "[i]t is obvious that this requirement can not be met ex ante, i.e. before the confidential transcript or other documents or things under seal are filed."

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1. See also The Prosecutor v. Radoslav Brdjanin and Momir Talic ("Krajina"), Case No. IT-99-36-PT, Trial Chamber II, Order concerning the Redaction of Trial Transcripts of Closed Sessions and Documents filed Under, 19 March 2002.
2. The Prosecutor v. Tihomir Blaskic ("Lasva River Valley"), Case No. IT-95-14-A, Appeals Chamber, Decision on the Appellant's Motions for the Production of Material, Suspension or Extension of the Briefing Schedule, and Additional Filings, 26 September 2000 (hereinafter the "Blaskic Decision", summarised in Judicial Supplement No. 19), para. 55.
3. See The Prosecutor v. Zejnil Delalic et al. ("Celebici Camp"), Case No. IT-96-21-A, Appeals Chamber, Decision on Motion to Preserve and Provide Evidence, 22 April 1999 (summarised in Judicial Supplement No. 4), Separate Opinion of Judge Hunt, para. 4; The Prosecutor v. Enver Hadzihasanovic et al. ("Central Bosnia"), Case No. IT-01-47-PT, Trial Chamber II, Decision on Motion by Mario Cerkez for Access to Confidential Supporting Material, 10 October 2001, para. 11; The Prosecutor v. Tihomir Blaskic, ("Lasva River Valley"), Case No. IT-95-14-A, Judge Florence Mumba, Decision Granting Access to non-Public Materials, 20 February 2002, para. 7; The Prosecutor v. Momcilo Krajisnik ("Bosnia and Herzegovina"), Case No. IT-00-39 & 40-AR73.3, Appeals Chamber, Decision on Interlocutory Appeal by Momcilo Krajisnik, 14 February 2002 (summarised in this issue of the Judicial Supplement).
4. The Prosecutor v. Radoslav Brdjanin and Momir Talic ("Krajina"), Case No. IT-99-36-PT, Trial Chamber II, Decision on Motion by Momir Talic for Disclosure of Evidence, 27 July 2000, paras. 5 to 8.
5. See The Prosecutor v. Dusko Tadic ("Prijedor"), Case No. IT-94-1-A, Appeals Chamber, Judgement, 15 July 1999 (summarised in Judicial Supplement No. 6), para. 52.
6. The Prosecutor v. Radoslav Brdjanin and Momir Talic ("Krajina"), Case No. IT-99-36-PT, Trial Chamber II, Second Decision on Motions by Radoslav Brdjanin and Momir Talic for Access to Confidential Documents, 15 November 2000 (summarised in Judicial Supplement No. 20), paras. 10, 12 and 13.
7. "If the Prosecutor is in possession of information which has been provided to the Prosecutor on a confidential basis and which has been used solely for the purpose of generating new evidence, that initial information and its origin shall not be disclosed by the Prosecutor without the consent of the person or entity providing the initial information and shall in any event not be given in evidence without prior disclosure to the accused."
8. "Once protective measures have been ordered in respect of a victim or witness, a party seeking to vary or rescind such an order must:

(i) apply to the Chamber that granted such measures to vary or rescind them or to authorise the release of protected material to another Chamber for use in other proceedings; or
(ii) if, at the time of the request for variation or release, the original Chamber can no longer be constituted by the same Judges, apply to the President to authorise such variation or release who, after consulting with any Judge of the original Chamber who remains a Judge of the Tribunal and after giving due consideration to matters relating to witness protection, shall determine the matter.

During appellate proceedings from proceedings before a Trial Chamber in which an order has been made for protective measures, the Appeals Chamber is in the same position as the Trial Chamber to vary or rescind the order made by the Trial Chamber."
9. The Prosecutor v. Radoslav Brdjanin and Momir Talic ("Krajina"), Case No. IT-99-36-PT, Trial Chamber II, Decision on Second Motion by Radoslav Brdjanin for Access to Confidential Documents, 20 June 2000, para. 5.

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