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I. PROCEDURAL AND FACTUAL BACKGROUND

On 8 May 1997, the defence for the accused, Zdravko Mucic ("Defence") presented a motion ("Motion"), (Official Record at Registry Page ("RP") D 3956 - D 3958) pursuant to Sub-rule 73(C) of the Rules of Procedure and Evidence ("Rules") for determination by this Trial Chamber of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991 ("International Tribunal").

The Motion seeks the leave of the Trial Chamber to file an out-of time-application to exclude the transcripts of certain pre-trial interviews held between Zdravko Mucic and officials of the Austrian Police Force on 18 March 1996 and with officials of the Prosecution on 19, 20 and 21 March 1996 ("Statements") from evidence. Along with the Motion, the Defence filed a substantive application to exclude the Statements. The Prosecution did not file a written response to the Motion.

On the same date, having heard both the Prosecution and the Defence ("Parties") in oral argument, the Trial Chamber delivered an oral decision granting the Motion, reserving its written decision to a later date. In addition, the Trial Chamber deferred hearing oral arguments on the substantive application until after the examination of the witnesses through whom the Prosecution will seek to tender the Statements into evidence.

THE TRIAL CHAMBER HEREBY ISSUES ITS WRITTEN DECISION.

A. Applicable Provisions

1. The Defence seeks relief pursuant to Rule 73, the relevant provisions of which are set out below.

Rule 73

Preliminary Motions by Accused

B. Pleadings

(i) The Defence

2. The Defence requests that the Trial Chamber grant it leave to file an application to exclude the Statements after the expiration of the period prescribed by Sub-rule 73(B). The Defence asserts that there is now good cause why such an application should be entertained and that there exists good cause to be granted relief under Sub-rule 73(C).

3. Although Defence Counsel, Mr. Branislav Tapuskovic, conceded in oral argument that the Statements had been served on the Defence since April 1996, the Defence asserts that the final form of the Statements and other relevant out-of court statements were served only on 3 April 1997 and that up until the week in which it filed the Motion, further documents in relation thereto were still being served upon it. The Defence argues that the failure of the Prosecution to serve these documents expeditiously is the first reason why an application to exclude them could not be made within the period prescribed by Sub-rule 73(B).

4. The Defence argues that a prima facie case exists that the Statements were obtained by methods which cast substantial doubts on their reliability and that their admission would seriously damage the integrity of these proceedings and, furthermore, that their probative value is outweighed by the need to ensure a fair trial. As such, the Defence submits that a substantial and significant case for their exclusion exists.

5. The Defence contends that no fault lies with Zdravko Mucic himself for the fact that an application to exclude the Statements was not made within the usual time limits. That being so, it would be unjust to deprive him of the opportunity to challenge the admissibility of the Statements, which are important pieces of evidence, where the circumstances reveal a clear case of oppression and unfairness.

(ii) The Prosecution

6. The Prosecution asserts that the Defence has not shown good cause for a waiver of the requirements of Rule 73.

7. The Prosecution declares that although it gave the Defence copies of the Statements in April 1996, the Motion is its first notification from the Defence of any alleged oppression relating to the interviews. Thus, the Prosecution avers that there is no reason why an application to exclude the Statements could not have been made within sixty days of Zdravko Mucic’s initial appearance as it appears that the allegation of oppression comes from Zdravko Mucic himself. Given these circumstances, the Prosecution asserts that the application to exclude the Statements is untimely and unfair.

8. The Prosecution contends that there was no oppression during the interviews and that Zdravko Mucic voluntarily waived his right to counsel without any unfair pressure or coercion placed upon him.

C. Findings

9. The Motion is for relief from waiver of the right to apply under Sub-rule 73(A). The right to apply to exclude evidence is conferred on accused persons who do so within sixty days of their entering appearance as set out in Sub-rule 73(B). The failure to exercise the right within the prescribed period constitutes a waiver of the right to file a motion to exclude evidence. However, there is relief from waiver where good cause is shown why an application under Sub-rule 73(A) was not made within the period prescribed under Sub-rule 73(B).

10. The Trial Chamber is satisfied with the submission of the Defence that the Statements served on the Defence are necessary for the preparation of its case. The evidence sought to be excluded is material for the preparation of the defence of the accused which was made available to the Defence before 3 April 1997.

11. Accordingly, the Defence would appear to have been responsible for the lateness in bringing an application to exclude the Statements. The Prosecution discharged its obligation with respect to serving the Statements on the Defence. The Defence may be said to have waived the right having been given the opportunity to decide whether to exercise the right under Sub-rule 73(A). The conduct of the Defence amounts to a conscious refusal to exercise a right available to it. If this is all there is to the Motion, it could be dismissed in limine on this ground.

12. The Statements are challenged on the ground that they were obtained from the accused through methods which cast substantial doubts on their reliability, and if admitted would seriously damage the integrity of the proceedings. Counsel for the accused in his oral submission argued that the Statements were obtained in circumstances oppressive of the accused. The Prosecution denies the allegation. Such an issue is consistent with the voluntariness or not of the Statements. The Trial Chamber is of the opinion that further evidence is necessary to enable it to determine the issue.

13. Accordingly, the relief from waiver to exercise the right to bring an application to exclude evidence under Sub-rule 73(A) is the appropriate answer. We consider the cause alleged in paragraph 12 above to be good cause under Sub-rule 73(C). A good cause is a ground which enables the Trial Chamber to exercise its discretion to grant relief from waiver under Sub-rule 73(B). It will be unjust to deprive the accused of the right to challenge the admission of the Statements which are claimed to have been obtained in oppressive circumstances.

14. The Trial Chamber rejects the submission of the Prosecution that allegations of oppression per se are insufficient for the grant of relief from waiver to apply to exclude the evidence obtained thereby. The reason for granting the waiver is to enable the Prosecution to satisfy the Trial Chamber that there was no oppression in obtaining the Statements and that they were voluntarily offered by Zdravko Mucic. Voluntariness is a fundamental requirement of the admissibility of statements obtained from an accused person. It is a condition which, if alleged to be absent in the making of a statement, should be proved, otherwise, the statement will remain unreliable and therefore likely to be excluded. Consequently, if disputed, it must be established in a preliminary hearing.

15. For these reasons the Motion is granted and the Defence is granted leave under Sub-rule 73(C) to bring its application to exclude the Statements.

For the foregoing reasons, the Trial Chamber, being seised of the Motion filed by the Defence

HEREBY GRANTS the Motion.

Done in both English and French, the English text being authoritative.

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Adolphus Godwin Karibi-Whyte

Presiding Judge

Dated this first day of September 1997

At The Hague,

The Netherlands.

                                                                [Seal of the Tribunal]

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