Decision on "Motion to Declare Rule 90(H)(ii) Void to the Extent it is in Violation of Article 21 of the Statute of the International Tribunal" by the Accused Radoslav Brdjanin and on "Rule 90(H)(ii) Submissions" by the Accused Momir Talic

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

Procedural Background

· On 21 February 2002 during trial proceedings, a discussion took place on the application of Rule 90(H)(ii) of the Rules of Procedure and Evidence1.

· On 27 February 2002, Radoslav Brdjanin filed a Motion in which he argued that a literal application of Rule 90(H)(ii) of the Rules violates the accused's right to remain silent.

· On 4 March 2002 during trial proceedings, Defence counsel for Momir Talic submitted that Rule 90(H)(ii) infringes on Rule 972 and the confidentiality of communications between the accused and counsel. That same day, counsel for Momir Talic filed a Motion in which he asserted an inconsistency between the French and English versions of Rule 90(H)(ii) and contended that the English version violates Articles 21(2)3 and (4)(b)4 of the Statute.

· On 8 March 2002, the Prosecution responded and submitted that the Motion should be denied and requested that the Trial Chamber issue written guidelines on what is required from the Prosecution and the Defence in the application of Rule 90(H)(ii).

· Defence counsel for Radoslav Brdjanin replied on 14 March 2002.

The Decision

The Trial Chamber rejected the Motions of the two co-accused.

The Reasoning

The Trial Chamber first noted that the case-law of the Tribunal had "so far not dealt with the alleged inconsistency" of Rule 90(H)(ii) with Articles 20 and 21 of the Statute and Rule 97. It stated that the origins of Rule 90(H) must "be traced back to a corresponding or analogous rule of evidence in several common law jurisdictions" such as England, Australia and Canada. The Trial Chamber stressed that "Rule 90(H)(ii) was adopted to serve fairness in the conduct of trial proceedings" in the Tribunal. It characterised it as "a rule of fairness not only because it serves to enable the witness to comment upon the contradictory version, but also to give the trier of the fact (in this case the Trial Chamber) the opportunity to more accurately judge the credibility of the contradictory version."

The Trial Chamber held that "[t]here is no inconsistency between the application of Rule 90(H)(ii) and Articles 20 and 21 of the Statute." Moreover, it found that Rule 90(H)(ii) does not violate "Rule 97 and the confidentiality of communications between the accused and his counsel, as the Trial Chamber will not be able to distinguish between what the accused may have revealed to counsel and what counsel may heave learned from independent sources."

The Trial Chamber admitted that "there is an apparent discrepancy between the English and French versions" but ruled that "the variance in the expressions used in the two texts is of little significance and therefore de minimis for the purpose of the decision." It held that "the principle expressed in the Rule is of common law origin and that the English language version more clearly reflects the true meaning of the Rule."

The Trial Chamber did "not think it appropriate to set out guidelines" on the application of Rule 90(H)(ii). It stated that it would evaluate the circumstances and decide on a case by case basis. The Trial Chamber concluded that it would provide proper guidelines "if and when the need arises."

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1."In the cross-examination of a witness who is able to give evidence relevant to the case for the cross-examining party, counsel shall put to that witness the nature of the case of the party for whom that counsel appears which is in contradiction of the evidence given by the witness."
2. "All communications between lawyer and client shall be regarded as privileged, and consequently not subject to disclosure at trial, unless:

(i) the client consents to such disclosure; or
(ii) the client has voluntarily disclosed the content of the communication to a third party, and that third party then gives evidence of that disclosure."

3. "In the determination of charges against him, the accused shall be entitled to a fair and public hearing, subject to article 22 of the Statute."
4. In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality […] to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing".