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Lasva Valley, Prosecutor v. Kordic et al, Decision on the Prosecution Application to Admit the Tulica Report and Dossier into Evidence, IT-95-14/2 (ICTY TC, Jul. 29, 1999)

IN THE TRIAL CHAMBER

Before:
Judge Richard May, Presiding
Judge Mohamed Bennouna
Judge Patrick Robinson

Registrar:
Mrs. Dorothee de Sampayo Garrido-Nijgh

Decision of:
29 July 1999

 

PROSECUTOR

v.

DARIO KORDIC

MARIO CERKEZ

________________________________________________________

DECISION ON THE PROSECUTION APPLICATION TO ADMIT
THE TULICA REPORT AND DOSSIER INTO EVIDENCE

________________________________________________________

The Office of the Prosecutor:

Mr. Geoffrey Nice
Mr. Kenneth Scott
Ms. Susan Somers
Mr. Patrick Lopez-Terres

Counsel for the Accused:

Mr. Mitko Naumovski, Mr. Leo Andreis, Mr. David F. Geneson, Mr. Turner T. Smith, Jr., and Ms. Ksenija Turkovic, for Dario Kordic
Mr. Bozidar Kovacic and Mr. Goran Mikulicic, for Mario Cerkez

 

I. INTRODUCTION

1.    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 ("the International Tribunal") is seized of an application to from the Office of the Prosecutor ("Prosecution") to admit into evidence the Tulica Dossier ("Dossier") and the Investigator’s Report ("Report"), as described in oral argument before the Trial Chamber. On 3 June 1999, the Prosecution first proposed to the Trial Chamber the submission of the Report and the Dossier. The Prosecution submitted its "Arguments for Procedural Possibilities" to the Trial Chamber on 3 June 1999, in which it made submissions in relation to case management. The Trial Chamber decided to hear the parties on the matter and the initial arguments of the parties were heard on 17 June 1999. On 18 June 1999, the Trial Chamber issued a Scheduling Order requiring written responses of the Kordic Defence and Cerkez Defence ("the Defence") by 5 July 1999, detailing what material in the Dossier and the Report were in dispute, and what material therein was not in dispute.

2.    On 3 July 1999, the Cerkez Defence filed the "Defendant Mario Cerkez’s Response to the Prosecutor’s ‘Tulica Dossier and Report’ in Accordance with the Trial Chamber Order from 18 June 1999" ("Cerkez Response"). On 5 July 1999, the Kordic Defence filed the "Accused Mr. Kordic’s Written Response to the ‘Tulica Report’ and ‘Investigator’s Report’ Assembled by the Prosecution" ("Kordic Response"). The final arguments of the parties were heard on 17 and 19 July 1999.

     

THE TRIAL CHAMBER HAVING CONSIDERED the written and oral submissions of the parties,

     

HEREBY ISSUES ITS WRITTEN DECISION.

     

II. BACKGROUND

A. Relevant Parts of the Indictment

3.    Broadly speaking, the Indictment alleges that the accused Dario Kordic, as a political leader, and Mario Cerkez, as a military commander, were responsible for serious violations of international humanitarian law against the Bosnian Muslim population in central Bosnia in 1993.

4.    Counts 7 – 13 of the Indictment allege that the accused Dario Kordic is criminally responsible for wilful killing and murder, causing serious injury and inhumane treatment against Bosnian Muslims in a number of cities, towns and villages, including the village of Tulica in June 1993. Counts 37 – 39 of the Indictment allege that the accused Dario Kordic is criminally responsible for the wanton and extensive destruction of property and plunder in 28 locations, including the village of Tulica in June 1993. The accused Mario Cerkez is not charged with any specific counts in the Indictment relating to the village of Tulica, except for the general allegation of persecution under Count 2 of the Indictment, which covers the municipality in which Tulica is located. The accused Dario Kordic is also alleged to be responsible for persecutions in the municipality in which Tulica is located under Count 1 of the Indictment.

B. The Prosecution Case Regarding Tulica

5. The Prosecution case involving these offences is that the village of Tulica was attacked on the morning of 12 June 1993, beginning with intensive shelling which lasted three hours. It is alleged that an HVO infantry attack followed. HVO soldiers are alleged to have rounded up and detained a large number of Bosnian Muslim residents, expelling them from their homes. It is alleged that the men were separated from the women and children, and that the men were taken to a location near to the Bosnian Muslim cemetery, where HVO troops executed eight of them by shooting them in the back. It is alleged that HVO troops incinerated and looted many houses in the village: the remaining men were sent to the military barracks in Kiseljak where they were detained for 11-12 days and were forced to dig trenches on the front lines. It is also alleged that by the end of 1993, all Bosnian Muslim residents had been expelled from Tulica by the HVO1. It follows that evidence relating to this attack is relevant to the above counts of the Indictment.

C. The Defence Case Regarding Tulica

6. As the Trial Chamber understands the Defence case, it is to put all these matters in dispute. The Defence admit that there was an armed conflict in Tulica, but nothing more. Accordingly, the evidence involves material issues which the Trial Chamber must determine.

D. Prosecution Proposal

7. The Prosecution have produced two items which they submit should be admitted into evidence:

1. A Dossier of evidence relating to the attack on Tulica in June 1993. The Dossier itself contains seven categories of documents which the Prosecution proposes be admitted into evidence:

(i) Five maps relevant to the Presentation (tabs 1 – 5);

(ii) One video containing footage relevant to the Presentation (tab 6);

(iii) Eight Witness Statements (tabs 7 – 14);

(iv) Four Court Transcripts (tabs 15 – 18);

(v) Exhumation documents, including an on-site report, photographs and death certificates (tabs 19 – 41);

(vi) Photographs, a schematic diagram and a map relating to destruction of property (tabs 42 – 44); and

(vii) Thirteen photographic "stills" taken from the video footage (tabs 45 – 57).

2. A report prepared by Matti Raatikainen, Investigations Team Leader, Office of the Prosecutor ("Investigator"). This Report summarises the information in the Dossier relating to the attack.

8. The Prosecution proposes that the Dossier form part of the record of proceedings and that the Investigator who has prepared the Report should be called as a summary witness to explain the scope and result of the investigation. It is proposed that the Investigator be cross-examined by the Defence on relevant matters arising from the evidence contained in the Dossier, including the statements of persons not to be called as witnesses. In this way the issues will be clarified, enabling the Trial Chamber, having heard submissions to determine which witnesses will be heard in oral evidence. The Prosecution rely on Rule 90 (G) which provides that the Trial Chamber may determine and control the presentation of evidence and therefore, the Prosecution submit, is empowered to admit the statements and/or prior testimony contained in the Dossier as hearsay evidence under Rule 89 (C). The Prosecution also refers to Article 281(1) of the Yugoslav Law on Criminal Procedure, which provides to the court discretion in deciding those witnesses who are required to attend for examination2. The Prosecution states that, subject to the discretion of the Trial Chamber under Rule 89(C), material of all kinds are admissible3.

E. Defence Response – General Arguments

9. The specific arguments of the Defence are dealt with below under each category of evidence. The general arguments of the Defence as to the admission of the Report and Dossier are that admission of the material would amount to a violation of Article 21(4)(e) of the Statute of the International Tribunal, which provides the accused with the right "to examine, or have examined, the witnesses against him". The Cerkez Defence refers specifically to Rules 85(B), 90(A) and 90(B) to further establish the claim that admission of the Report and aspects of the Dossier would breach the accused’s right to cross-examine Prosecution witnesses. Furthermore, it is argued that the evidence of the Investigator would constitute second or third hand hearsay evidence. The Defence is willing to agree to the admission into evidence of some of the material in the Dossier, which is dealt with below.

 

III. ANALYSIS

10. The Report and Dossier are part of the Prosecution’s response to the express concern of the Trial Chamber to expedite these proceedings as much as possible without compromising the right of the accused to a fair trial. The Report and Dossier are proposed as an experiment with one sample area and, if it works, to develop it for other similar areas. The Prosecution state that "if successful as a technique, its significance would not stop at this trial"4.

11. The Trial Chamber is mindful of its obligation to the international community to expedite these proceedings whilst strictly adhering to the right of the accused to a fair trial, as guaranteed under the Statute of the International Tribunal5, and enshrined in international law6. As the Appeals Chamber of the International Tribunal has said: "The purpose of the Rules is to promote a fair and expeditious trial, and Trial Chambers must have the flexibility to achieve this goal".7

12. The Trial Chamber has heard the arguments of the parties with regard to these matters. Furthermore, the Trial Chamber has heard the parties regarding the applicability of both common and civil law evidentiary procedures. Whilst the International Tribunal may look to municipal criminal law and procedure for assistance in its work, it is bound first and foremost by its own Statute and Rules, and to international law as it applies to its particular mandate to try persons alleged to have committed serious violations of international humanitarian law8.

13. The Trial Chamber might adopt one of three approaches:

(a) to admit the Report and Dossier in their entirety;
(b) to reject them in their entirety; or
(c) to consider each category of material submitted by the Prosecution for admission into evidence9.

14. The Trial Chamber believes that the third approach is the most efficacious way of determining this matter for the following reasons. The first approach is inconsistent with the Rules of the International Tribunal, and would be particularly inappropriate to adopt in the middle of a trial. The second approach would be inappropriate because some of the items in the Dossier are admissible.

15. With these matters in mind, the Trial Chamber will now consider the admissibility of the Report and each category of material contained in the Dossier.

A. The Report

1. Arguments of the Parties

16. The Prosecution argues that the admission of the Report would be consistent with international law and with practice in common and civil law jurisdictions11. It argues that the witness who may be cross-examined pursuant to Article 21(4)(e) of the Statute is the person who comes to the witness box and produces the statements, written or verbal, in the same way as he or she does with other material, and that the exclusion of that material is within the discretion of the Trial Chamber12. Therefore, the Report should be admitted pursuant to Rule 89(C) of the Rules on the basis that it is relevant hearsay evidence of probative value.

17.    The Kordic Defence objects to the admission of the Report into evidence because it is based upon second-hand and third-hand accounts related to the Investigator by others13. It argues that the use of the Investigator’s summary as evidence, and the Investigator testifying to the summary and sponsoring the entire Dossier as an exhibit, would be a violation of the Statute and the Rules14.

18. The Cerkez Defence objects to the admission of the Report into evidence on the basis that it is in contravention of Article 21(4)(e) of the Statute and of Rules 85(B), 90(A) and 90(B) of the Rules. It is argued that all of the Prosecutor’s evidence against the accused must be presented in court, and the Defence must be given the opportunity to cross-examine witnesses; to do otherwise will involve a violation of the general principles of international law and the Rules15.

2. Decision of the Trial Chamber

19. The International Tribunal is not bound to reject hearsay evidence. The position has been stated by the Appeals Chamber in the Aleksovski Decision:

It is well settled in the practice of the Tribunal that hearsay evidence is admissible. Thus relevant out of court statements which a Trial Chamber considers probative are admissible under Rule 89(C). This was established in 1996 by the decision of Trial Chamber II in Prosecutor v. Tadic and followed by Trial Chamber I in Prosecutor v. Blaskic. Neither Decision was the subject of appeal and it is not now submitted that they were wrongly decided. Accordingly, Trial Chambers have a broad discretion under Rule 89(C) to admit relevant hearsay evidence16.

20. In the view of the Trial Chamber, the position with regard to the Report is somewhat different17. The Investigator is not reporting as a contemporary witness of fact, he has only recently collated statements and other materials for the purpose of this Application. He could, in reality, only give evidence that material was or was not in the Dossier. The Report therefore is of little or no probative value and will not be admitted into evidence.

B. The seven witness statements (category (iii) of the Dossier)

1. Arguments of the Parties

21. The arguments of the Prosecution with regard to the witness statements are linked with the admission of the Report discussed above. The Prosecution argues that the witness statements are simply documentary hearsay and that there is no difference in principle in admitting them through the evidence of the Investigator18.

22. The arguments of the Defence with regard to the admission of the witness statements are based on the contention that this would constitute a breach of international law and the Rules. It is argued by the Kordic Defence that the Prosecution has demonstrated a highly selective approach to the presentation of statements taken from witnesses in these proceedings, and further that there are examples of factual inaccuracies in previous statements as presented by the Prosecution. It argues that this means the witness statements which the Prosecution seeks to have admitted through the Investigator could not be properly tested by the Defence19. The Cerkez Defence argue that in effect the Prosecution was offering a substitute for the testimony of witnesses and that this is not acceptable because the Investigator is not an unbiased and independent authority20. Thus the Defence objects to the admission of the witness statements on the basis that the accused will not be given the opportunity to cross-examine the witnesses directly.

2. Decision of the Trial Chamber

23. It is proposed that the witness statements should be produced by the Investigator, and would not be subject to cross-examination by the accused unless the Defence could justify the need to do so. The Trial Chamber is of the view that whilst it could admit the witness statements under Rule 89(C), this is not an appropriate case for the exercise of its discretion under that provision, as it would amount to the wholesale admission of hearsay untested by cross-examination, namely the attack on Tulica, and would be of no probative value. The Trial Chamber therefore declines to admit the witness statements into evidence, however, draws attention to Rule 94 ter of the Rules.

C. Transcripts (category (iv) of the Report)

1. Arguments of the Parties

24. The transcripts contained in the Dossier are of four witnesses, NN, OO and PP, who all gave evidence in the trial of Prosecutor v. Blaskic21 ("Blaskic"), which the Prosecution argues are admissible pursuant to Rule 89(C) and in accordance with the decision of the Appeal Chamber in Aleksovski22. These are transcripts of evidence given in Blaskic which involve attacks in central Bosnia by Croats on Muslims, including Tulica.

25. The Defence objects to the admission of the transcripts on the basis that the admission of transcripts of another case violates the fundamental right of the accused to confrontation and cross-examination guaranteed by the Statute and Rules. The admission of the transcripts, it is argued, would violate the right of the accused to a fair tria23. The transcript of witness N is objected to on the basis that the witness has already testified in this case, and that it is unnecessary and cumulative24.

2. Decision of the Trial Chamber

26. The Trial Chamber cannot see any justification for admitting the transcript of witness testimony of a witness who has already given evidence and been subject to cross-examination in this trial. The inclusion of this material is unnecessarily repetitious as it already forms part of the record of this trial, and the transcript of witness N (Tab 18) as part of the Dossier is accordingly not admitted.

27. As to the transcripts of the remaining three witnesses, the argument of the Kordic Defence that there are no "exceptional circumstances" that would justify their admission under Aleksovski is noted. The Appeals Chamber Decision lays down a clear principle with respect to the admission of transcripts from other trials. The Appeals Chamber, in overturning the decision of the Trial Chamber in not admitting a transcript of evidence from the Blaskic case on the grounds that it would deprive the accused of the right to cross-examine the witness, stated:

In fact, as the Prosecution has pointed out, the witness was extensively cross-examined in the Blaskic trial, and there is a common interest between the Defence in the two cases. Nonetheless, the fact remains that, if the evidence is admitted upon a hearsay basis, this accused will be denied the opportunity of cross-examining the witness. However, this is the case with the admission of any hearsay evidence: the opposing party loses the opportunity to cross-examine the witness. The disadvantage is tempered in this case by the cross-examination in Blaskic, and, in any event, any residual disadvantage to the accused is outweighed by the disadvantage which would be occasioned to the Prosecution by the exclusion of the evidence in the circumstances of this case.25

28. Accordingly, the Trial Chamber holds that the transcripts of witnesses NN, OO and PP (Tabs 15, 16 and 17) are admissible since the witnesses have been cross-examined in Blaskic, a case in which the Defence have a common interest with the Defence in this case. However, this ruling will not preclude the application by the Defence to cross-examine the witnesses on the ground that there are significant relevant matters not covered by cross-examination in Blaskic which ought to be raised in this case.

D. Exhumation Documents (category (v) of the Dossier)

29. These documents consist of:

(i) an "on-site report" carried out by an Investigating Judge for the Sarajevo Cantonal Court;

(ii) photograph documentation concerning exhumation autopsy and identification; and

(iii) death certificates of the exhumes bodies.

1. Arguments of the Parties

30. The Kordic Defence objects to the "on-site report" (including the photographic evidence) on the basis that the report constitutes expert testimony of persons who are not going to testify in this case, and who are not available for cross-examination26. The Cerkez Defence objects to pages 00600026 to 00600046 on the basis that although the material is ostensibly an official record of interview of expert witnesses performed by an Investigating Judge, the record does not meet all the requirements prescribed by the Yugoslav Law on Criminal Procedure. To the extent that the report contains any kind of assumptions or conclusions, it is objected to. The Cerkez Defence notes in particular page 00600048 of the report in which the Investigating Judge makes the statement: "The exhumation of ten people killed by the HVO"27.

31. The Defence does not object to the admission of the death certificates provided they can be authenticated28.

2. Decision of the Trial Chamber

32. The "on-site report" and accompanying material under Tabs 19 to 41 of the Dossier are purely documentary evidence of fact about what happened as part of the judicial investigative process undertaken by the Sarajevo Cantonal Court, and will be admitted pursuant to Rule 89(C) as evidence which the Trial Chamber deems to have probative value. Any assumptions or conclusions which are expressed in this material, such as that highlighted by the Cerkez Defence, will be disregarded by the Trial Chamber and will not form part of the record of evidence which it will consider in determining the innocence or guilt of the accused.

E. Documentary Evidence in Relation to Destruction of Property
(category (vi) of the Dossier)

1. Arguments of the Parties

33. The Cerkez Defence does not object to the admission of the material at Tabs 42 and 43 of the Dossier (photographs and schematic representations), however it does object to the admission of the map indicating locations of trench digging in tab 4429. The Kordic Defence objects to the use of the term "attack" in relation to the material referred to in this category, although it does not object to the admission of the photographs in Tab 42 of the Dossier, subject to authentication30.

2. Decision of the Trial Chamber

34. The Trial Chamber will admit the material contained in Tabs 42 – 44 pursuant to Rule 89(C) of the Rules, however the Defence may challenge the authenticity as to when, by whom and under what circumstances this material came into existence. Any assumptions or conclusions which are expressed in this material will be disregarded by the Trial Chamber and will not form part of the record of evidence which it will consider in determining the innocence or guilt of the accused.

F. Photographic "Stills" taken from the video footage (category (vii) of the Dossier);
Video Footage Relevant to the Presentation (category (ii) of the Dossier), and
Maps Relevant to the Presentation (category (i) of the Dossier)

1. Arguments of the Parties

35. The Kordic Defence does not object to the still photographs, however it does object to the statement that the soldiers photographed are said to have taken part in the attack on Tulica31. The Defence does not object to the admission of the maps32.

2. Decision of the Trial Chamber

36. The Trial Chamber will admit the material contained in Tabs 45 – 57, as well as the video footage referred to at tab 6 and the maps identified in Tabs 1 - 5, pursuant to Rule 89(C) of the Rules, however the Defence may challenge the authenticity as to when, by whom and under what circumstances this material came into existence. Any assumptions or conclusions which are expressed in this material will be disregarded by the Trial Chamber and will not form part of the record of evidence which it will consider in determining the innocence or guilt of the accused.

 

IV. DISPOSITION

For the foregoing reasons,

THE TRIAL CHAMBER

(1) REJECTS, on the grounds set out above, the Application of the Prosecution to admit into evidence the following material:

the Report of the Investigator,
the seven witness statements,
the transcript of the testimony of witness N.

(2) GRANTS, on the grounds and conditions set out above, the Application of the Prosecution to admit into evidence the following material contained in the Dossier:

the transcript of the testimony of witnesses NN, OO and PP, subject to paragraph 28 of this Decision,
the exhumation documents ("on-site report", photographs and death certificates), subject to paragraph 32 of this Decision,
the documentary evidence in relation to the destruction of property, subject to paragraph 34 of this Decision,
photographic stills, video footage and maps, subject to paragraph 36 of this Decision.

 

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

_____________________________
Richard May
Presiding

Dated this twenty-ninth day of July 1999
At The Hague
The Netherlands

[Seal of the Tribunal]


1. See "Prosecutor’s Second Invitation to Admit Facts" located at IT-95-14/2-PT, Registry Page 5123.
2. Prosecution "Argument for Procedural Possibilities", submitted to the Trial Chamber on 3 June 1999, p. 3ff.
3. Unofficial Transcript, 19 June 1999, p. 4905.
4. Ibid, p. 3.
5. See Article 21 of the Statute of the International Tribunal.
6. See, for example, International Covenant on Civil and Political Rights Article 14), and European Convention on Human Rights (Article 6).
7. Prosecutor v. Zlatko Aleksovsk, "Decision on Prosecutor’s Appeal on Admissibility of Evidence" ("Aleksovski"), Case No. IT-95-14/1-AR73, 16 February 1999, para. 19.
8. Rule 89(A) of the Rules states in part "The Chambers shall not be bound by national rules of evidence".
9. Whilst initially the Prosecution Application was for the admission of the Dossier and Report in their entirety, during argument the Prosecution accepted that the Trial Chamber in dealing with the material under the Application could either reject the material entirely, accept it entirely, or "analyse what’s in the dossier and go through it item by item", Unofficial Transcript, 19 June 1999, p. 4911.
10. The categories are dealt with in order of importance, and not in the order they appear in the Dossier.
11. See Unofficial Transcript, 19 June 1999, pp. 4882 – 4918.
12. Ibid, pp. 4880-4881. See also Prosecution "Argument for Procedural Possibilities", supra. note 1.
13. Kordic Response, para. 1.
14. Unofficial Transcript, 17 June 1999, p. 4129.
15. Unofficial Transcript, 19 June 1999, p. 4871.
16. Aleksovski, supra note 7, para. 15. Citations are omitted.
17. The Prosecution argued that the admission of the Report was similar to the admission of the evidence of the expert, Hanna Sophie Gréve in the Prosecutor v. Milan Kovacevic, Case No. IT-97-24-T (oral ruling to be found in the Unofficial Transcript, 6 July 1998, p. 69ff). In that ruling, Judge May stated that her evidence as a judge was an analysis of events in Prijedor based on the statements of some 400 witnesses, as well as media reports and statements to foreign visitors. The report was admitted, but as a report of someone who has made a study of the material concerning the events: "The position is analogous to that of a historian who gives evidence about some period using the source material" (p. 61 of the transcript). The position is distinguishable from the Report in this case.
18. Ibid, p. 4880.
19. Kordic Response, pp. 2-3.
20. Unofficial Transcript, 19 June 1999, p. 4868.
21. Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-T.
22. Supra note 7.
23.
Kordic Response, pp. 54-56; Cerkez Response, pp. 2-4.
24. Kordic
Response, p. 56.
25. Aleksovski, para. 27.
26. Kordic Response, p. 56.
27. Cerkez Response, Exhibit "A".
28. Kordic Response, p. 57ff.
29. Cerkez Response, Annex "A".
30. Kordic Response, p. 63ff.
31. Kordic Response, pp. 64-67. The Cerkez Defence indicate that the photographs are not clear enough to review.
32. Cerkez Response, Annex “A”; Unofficial Transcript, 17 June 1999, p. 4155 for position of Kordic Defence.

   

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