The Prosecutor v. Stanislav Galic - Case No. IT-98-29-AR73.2

"Decision on Interlocutary Appeal concerning Rule 92 bis (C)"

7 June 2002
Judges Hunt (Presiding), Güney, Gunawardana, Pocar and Meron

Procedural Background

· On 1 and 27 March 2002 respectively, the Prosecution filed Motions for the admission into evidence of the written statements of two witnesses, namely Mr. Hamdija Cavcic and Mr. Bajram Sopi, who have died before making their statements.

· On 12 and 18 April 2002 respectively, the Trial Chamber granted the Prosecution's Motions for the admission into evidence of the written statements and a Report of those two deceased witnesses.

· On 25 April 2002, the Trial Chamber granted a certificate pursuant to Rule 73(C) of the Rules of Procedure and Evidence.2 It allowed Stanislav Galic to file an interlocutory appeal against the admission into evidence of two written statements made by prospective witnesses who have died since making their statements.

· On 2 May 2002, the Defence Counsel of the accused filed the Appeal against the Decisions issued by the Trial Chamber on 12 and 18 April 2002 respectively.

The Decision

The Appeals Chamber granted the appeal against the Trial Chamber's Decision of 12 April 2002 regarding the written statement made by Mr. Hamdija Cavcic and dismissed the appeal against the Trial Chamber's Decision of 18 April 2002 regarding the written statement made by Mr. Bajram Sopi.

The Reasoning

The "acts and conduct of the accused as charged in the indictment"

Rule 92 bis(A) provides that a written statement of the evidence of a witness may be admitted in lieu of oral testimony where the statement "goes to proof of a matter other than the acts and conduct of the accused as charged in the indictment".

There is a clear distinction to be drawn between (a) the acts and conduct of those others who commit the crimes for which the indictment alleges that the accused is individually responsible, and (b) the acts and conduct of the accused as charged in the indictment which establish his responsibility for the acts and conduct of those others. It is only a written statement which goes to proof of the latter acts and conduct which Rule 92 bis(A) excludes from the procedure laid down in that Rule.3

Thus, Rule 92 bis(A) excludes any written statement which goes to proof of any act or conduct of the accused upon which the Prosecution relies to establish:

(a) that the accused committed (that is, that he personally physically perpetrated) any of the crimes charged himself, or
(b) that he planned, instigated or ordered the crimes charged, or
(c) that he otherwise aided and abetted those who actually did commit the crimes in their planning, preparation or execution of those crimes, or
(d) that he was a superior to those who actually did commit the crimes; or
(e) that he knew or had reason to know that those crimes were about to be or had been committed by his subordinates, or
(f) that he failed to take reasonable steps to prevent such acts or to punish those who carried out those acts.

Where the Prosecution case is that the accused participated in a joint criminal enterprise,4 and is therefore liable for the acts of others in that joint criminal enterprise, Rule 92 bis(A) excludes also any written statement which goes to proof of any act or conduct of the accused upon which the Prosecution relies to establish:

(g) that he had participated in that joint criminal enterprise, or
(h) that he shared with the person who actually did commit the crimes charged the requisite intent for those crimes.5

Those are the "acts and conduct of the accused as charged in the indictment",6 not the acts and conduct of others for which the accused is charged with responsibility in the Indictment.7

The "conduct" of an accused person necessarily includes his relevant state of mind, so that a written statement which goes to proof of any act or conduct of the accused upon which the Prosecution relies to establish that state of mind is not admissible under Rule 92 bis. In order to establish that state of mind, however, the Prosecution may rely upon the acts and conduct of others which have been proved by Rule 92 bis statements. The "conduct" of an accused person may also in the appropriate case include his omission to act.8

The fact that the written statement goes to proof of the acts and conduct of a subordinate of the accused or of some other person for whose acts and conduct the accused is charged with responsibility does, however, remain relevant to the Trial Chamber's decision under Rule 92 bis. That is because such a decision also involves a further determination as to whether the maker of the statement should appear for cross-examination. The proximity to the person accused of the acts and conduct which are described in the written statement is relevant to this further determination. Moreover, that proximity would also be relevant to the exercise of the Trial Chamber's discretion in deciding whether the evidence should be admitted in written form at all. Where the evidence is so pivotal to the Prosecution case, and where the person whose acts and conduct the written statement describes is so proximate to the accused, the Trial Chamber may decide that it would not be fair to the accused to permit the evidence to be given in written form.9

The exercise of the discretion as to whether the evidence should be admitted in written form at all becomes more difficult in the special and sensitive situation posed by a charge of command responsibility under Article 7.3 of the Tribunal's Statute.10 That is because, as jurisprudence demonstrates in cases where the crimes charged involve widespread criminal conduct by the subordinates of the accused (or those alleged to be his subordinates), there is often but a short step from a finding that the acts constituting the crimes charged were committed by such subordinates to a finding that the accused knew or had reason to know that those crimes were about to be or had been committed by them.11

In such cases, it may well be that the subordinates of the accused (or those alleged to be his subordinates) are so proximate to the accused that either (a) the evidence of their acts and conduct which the Prosecution seeks to prove by a Rule 92 bis statement becomes sufficiently pivotal to the Prosecution case that it would not be fair to the accused to permit the evidence to be given in written form, or (b) the absence of the opportunity to cross-examine the maker of the statement would in fairness preclude the use of the statement in any event.12

Whenever the Prosecution seeks to use Rule 92 bis in relation to a charge of command responsibility under Article 7.3, and where the evidence goes to proof of the acts and conduct of the accused's immediately proximate subordinates (that is, subordinates of the accused of whose conduct it would be easy to infer that he knew or had reason to know13), it is preferable that a Trial Chamber should always give consideration to the exercise of the discretion given by Rule 92 bis to exclude the use of a written statement.14

Rule 92 bis(C),15 which relates to written statements by persons who by reason of death or otherwise cannot give oral evidence, does not provide a separate and self-contained method of producing evidence in written form in lieu of oral testimony. Both in form and in substance, Rule 92 bis(C) merely excuses the necessary absence of the declaration required by Rule 92 bis(B) for written statements to become admissible under Rule 92 bis(A). Written statements by such witnesses are therefore also inadmissible if they go to proof of the acts or conduct of the accused.16

Admissibility under Rule 89(C) without Rule 92 bis restrictions

Rules 92 bis(A) and Rule 92 bis(C) are directed to written statements prepared for the purposes of legal proceedings.17 Although such evidence is hearsay18 which would otherwise have been admissible under Rule 89(C)19 if it was shown to have probative value, the purpose of Rule 92 bis is to restrict the admissibility of this very special type of hearsay to that which falls within its terms,20 and a party is not permitted to tender a written statement given by a prospective witness to an investigator of the Office of the Prosecutor under Rule 89(C) in order to avoid the stringency of Rule 92 bis.21

Application of Rule 92 bis to expert witnesses

There is nothing in either Rule 92 bis or Rule 94 bis22 which would bar the written statement of an expert witness, or the transcript of the expert's evidence in proceedings before the Tribunal, being accepted in lieu of his oral testimony where the interests of justice would allow that course in order to save time, with the rights of the other party to cross-examine the expert being determined in accordance with Rule 92 bis.23

Admissibility of part of a written statement

Rule 92 bis(C) makes specific provision for the admission of part only of a written statement of a witness, and that it is for the Trial Chamber to decide, after hearing the parties, whether to admit the statement in whole or in part. Where that part of the written statement not tendered by the P rosecution modifies or qualifies what is stated in the part tendered, or where it contains material relevant to the credit of the statement's maker, the absence of any opportunity to cross-examine the witness (which must be the case where Rule 92 bis(C) is concerned) would usually necessitate the admission of those parts of the statement as well.24

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1. Rule 92 bis(A) (Proof of Facts other than by Oral Evidence)
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.
2. Rule 73(C) (Other Motions) in the version in force before the Amendment of 1st May 2002 provided that:
"The Trial Chamber may certify that an interlocutory appeal during trial from a decision involving evidence or procedure is appropriate for the continuation of the trial. If such certification is given, a party may appeal to the Appeals Chamber without leave."
3. Para. 9.
4. In The Prosecutor v. Dusko Tadic ("Prijedor"), Case No. IT-94-1-A, Appeals Chamber, Judgement, 15 July 1999, this liability is described as that of an accomplice (para. 220). Summarised in Judicial Supplement No. 6.
5. See The Prosecutor v. Brdjanin & Talic ("Krajina"), Case No. IT-99-36-PT, Trial Chamber II, Decision on Form of Further Amended Indictment and Prosecution Application to Amend, 26 June 2001, in which the Trial Chamber stated that "the prosecution must establish that the accused shared with the person who personally perpetrated the crime the state of mind required for that crime" (para. 31). Summarised in Judicial Supplement No. 25.
6. Para. 10.
7. See The Prosecutor v. Slobodan Milosevic ("Kosovo", "Croatia" and "Bosnia and Herzegovina"), Case No. IT-02-54-T, Trial Chamber III, Decision on Prosecution's Request to Have Written Statement Admitted under Rule 92 bis", 21 March 2002: "[T]he phrase 'acts and conduct of the accused' in Rule 92 bis is a plain expression and should be given its ordinary meaning: deed and behaviour of the accused. It should not be extended by fanciful interpretation. No mention is made of acts and conduct by alleged co-perpetrators, subordinates or, indeed, of anybody else. Had the rule been intended to extend to acts and conduct of alleged co-perpetrators or subordinates it would have said so" (para. 22). Summarised in Judicial Supplement No. 31 bis.
8. Para. 11.
9. Para. 13.
10. Article 7.3 of the Statute of the Tribunal (Individual criminal responsibility)
The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.
11. Para. 14. See The Prosecutor v. Zejnil Delalic et al. ("Celebici Camp"), Case No. IT-96-21-A, Appeals Chamber, Judgement, 20 February 2001, in which the Appeals Chamber affirmed that "a superior will be criminally responsible through the principles of superior responsibility only if information was available to him which would have put him on notice of offences committed by subordinates. This is consistent with the customary law standard of mens rea as existing at the time of the offences charged in the Indictment" (para. 241). Summarised in Judicial Supplement No. 23.
12. Para. 15.
13. Para. 16.
14. Para. 19.
15. Rule 92 bis(C) (Proof of Facts other than by Oral Evidence)
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.
16. Paras. 24 and 25.
17. Para. 28.
18. Regarding the admission of hearsay evidence, see The Prosecutor v. Zlatko Aleksovski ("Lasva River Valley"), Case No. IT-95-14/1-AR73, Appeals Chamber, Decision on Prosecutor's Appeal on Admissibility of Evidence, 16 February 1999 (summarised in Judicial Supplement No. 2); The Prosecutor v. Dusko Tadic ("Prijedor"), Case No. IT-94-1-T, Trial Chamber II, Decision on Defence Motion on Hearsay, 5 August 1996 in which the Trial Chamber emphasised that hearsay evidence "is admitted to prove the truth of its content, a Trial Chamber must be satisfied that it is reliable for that purpose, in the sense of being voluntary, truthful and trustworthy" (para. 16). See also The Prosecutor v. Tihofil Blaskic ("Lasva River Valley"), Case No. IT-95-14-T, Trial Chamber I, Decision on Standing Objection of the Defence to the Admission of Hearsay with no Inquiry as to its Reliability, 21 January 1998 (para. 12).
19. Rule 89(C) (General Provisions)
A Chamber may admit any relevant evidence which it deems to have probative value.
20. The practise prior to the addiction of Rule 92 bis for written statements made by a witness who subsequently died was to admit them into evidence pursuant to Rule 89(C), see The Prosecutor v. Dario Kordic & Mario Cerkez ("Lasva River Valley"), Case IT-95-14/2-AR73.5, Appeals Chamber, Decision on Appeal Regarding Statement of a Deceased Witness, 21 July 2000, in which the Appeals Chamber stated "[a] Trial Chamber's exercise of discretion under Rule 89(C) ought, pursuant to Rule 89(B), to be in harmony with the Statute and the other Rules to the greatest extent possible" (para. 20). Summarised in Judicial Supplement No. 18.
21. Para. 31.
22. Rule 94 bis (Testimony of Expert Witnesses)
(A) The full statement of any expert witness to be called by a party shall be disclosed within the time-limit prescribed by the Trial Chamber or by the pre-trial Judge.
(B) Within thirty days of filing of the statement of the expert witness, or such other time prescribed by the Trial Chamber or pre-trial Judge, the opposing party shall file a notice indicating whether:
(i) it accepts the expert witness statement; or
(ii) it wishes to cross-examine the expert witness.
(C) If the opposing party accepts the statement of the expert witness, the statement may be admitted into evidence by the Trial Chamber without calling the witness to testify in person.
23. Para. 40.
24. Para. 46.