Judge Claude Jorda, Presiding
Judge Fouad Riad
Judge Mohamed Shahabuddeen

Mrs. Dorothee de Sampayo Garrido-Nijgh

Decision of:
30 January 1998







The Office of the Prosecutor:

Mr. Mark Harmon
Mr. Andrew Cayley
Mr. Gregory Kehoe

Defence Counsel:

Mr. Anto Nobilo
Mr. Russell Hayman

1. On 17 September 1997, Defence counsel for General Bla{ki} (hereinafter "the Defence") submitted to the Trial Chamber a Motion "for reconsideration of the ruling to exclude from evidence authentic and exculpatory documentary evidence" (hereinafter "the Motion"). The Prosecution expressed its objections to the Motion on 5 November 1997 (hereinafter "the Response"). The Defence objected to the Response in a brief filed on 21 November 1997 (hereinafter "the Reply"). The Trial Chamber heard the parties during a hearing on 28 November 1997.

The Trial Chamber will first analyse the claims of the parties and then discuss all the disputed points of fact and law.


2. On 17 September 1997, the Defence submitted two requests to the Trial Chamber. It asked that the Trial Chamber review its oral decision of 30 July 1997 in respect of the admissibility of exculpatory documentary evidence.

According to the Motion, during the cross-examination of [efkija Djidi} on 30 July 1997, the Prosecution objected to the document, which had previously been identified by the witness and which was marked D16, being admitted as evidence unless its "source was known". The Defence interpreted the Prosecutor’s objection not so much as a challenge to the authenticity of the document but as an attempt to learn how the Defence had obtained it. According to the Motion, the Trial Chamber sustained the objection because it considered that the Prosecution was entitled to know the source of the document. Furthermore, in the opinion of the Defence also, the Trial Chamber had ruled that it might draw negative conclusions from the Defence refusal to disclose the source of the document which had been presented.

Following the Defence refusal to specify the source of the document, the Trial Chamber decided that unless its source was disclosed, it would not consider the document marked D16 as an exhibit until the completion of the trial.

According to the Defence, the Trial Chamber extended the scope of its decision of 30 July 1997 to include the documents which the Prosecution disclosed to the Defence pursuant to Sub-rule 66(A) and Rule 68 of the Rules of Procedure and Evidence (hereinafter "the Rules"). Further to the Motion, on 27 August 1997, the Defence attempted to catch out the witness Sulejman Kavazovi} on the basis of a document disclosed by the Prosecution. The Trial Chamber refused to admit the said document into evidence because, when asked to specify its source by the Trial Chamber, the Prosecution was unable to do so.

2) The Defence therefore also requested that the Trial Chamber order the Prosecution to disclose to it the information relating to the "source" of the exculpatory documents which had been transmitted with no reservations as to their authenticity pursuant to the disclosure obligations stipulated in Rules 66 and 68 of the Rule so that it might make full use of the information thus disclosed.

3. The Defence, which argued that the Trial Chamber should select as criteria for admissibility of evidence only 1) the authenticity and 2) the relevance of the documents, offered the following arguments in support of its Motion.

A - No legal foundation is to be found in the Statute or the Rules of the International Tribunal which would allow the Trial Chamber to require that the Defence disclose the source of a relevant document authenticated by a witness.

B- The information in respect of the source of a document is not relevant in so far as its admissibility and probative value are concerned, and authentication is sufficient.

C- The Defence cannot disclose information about the source of the documents relating to its investigation and preparation of its case which is confidential and privileged. Moreover, should the document have been disclosed to Defence counsel by the accused, the obligation to disclose the source would constitute a violation of the fundamental principle according to which, as stipulated in Article 21(4)(g) of the Statute, the accused cannot be compelled to testify against himself.

D- The Defence argues that the Decision of the Trial Chamber prejudices the accused’s ability to obtain exculpatory evidence.

E- Lastly, as regards the second request, the Defence asserts that the Decision of the Trial Chamber results in the Prosecutor’s violation of Rule 68 of the Rules. The Defence emphasises that the exculpatory evidence disclosed pursuant to Rule 68 of the Rules must be "provided in its most usable form", which means that the Prosecution should disclose sufficient information as to its source.

The Defence therefore requests that the Trial Chamber, whatever decision it may take, order the Prosecutor to provide, within fifteen days, the following information regarding the documents transmitted pursuant to Sub-rule 66(A) and Rule 68 of the Rules (excluding the statements of the witnesses taken by the Office of the Prosecutor and those of the accused): author or provider, organisation or unit of the author or the provider, date and title of the document.

4. In its Response of 5 November 1997, the Prosecution contests all the Defence arguments and objects to the two requests.

The Prosecution first notes that the Defence has chosen not to opt for reciprocal disclosure provided in Sub-rules 66(B) and 67(C) of the Rules. It then points out that both parties are confronted with difficulties in respect of obtaining documents held by States or entities.

A- The Prosecution claims that Sub-rule 89(E) of the Rules constitutes a sufficient legal foundation to authorise the Trial Chamber to request that the parties produce additional evidence or information relating to a document.

B- In respect of the irrelevance of the source, the Prosecution alleges inter alia that the Defence position is contradictory because, supposedly, it has, at times, asked that information of this type be specified. Furthermore, because of the charges based on command responsibility which have been brought against General Bla{ki}, the presentation of documentary evidence would be of particular significance, and it should be possible to identify the source of each document tendered.

C- The Prosecution argues that the privilege of not being compelled to testify against oneself does not apply to the case at hand.

D- In respect of the argument based on the confidentiality of the Defence investigation, the Prosecution emphasises that some aspects of the Defence investigation and strategy will inevitably be revealed at trial, for instance, by the manner in which the cross-examination is conducted.

E- In respect of the possible deterrent effect of the Trial Chamber’s Decision on the availability for in-court testimony of potential witnesses, the Prosecution asserts that it too is confronted with problems of this sort (reluctance and refusal of potential witnesses to testify). It argues that the Defence may seek to obtain protective measures which will minimise the effects of the sources having been disclosed.

F- As regards the second Defence request, the Prosecution states that it is prepared to provide the Defence with the information about the source of certain specific documents disclosed insofar as it might be requested to do so by the Defence. However, the Prosecution objects to the overall request of the Defence.

5. In its Reply of 21 November 1997, the Defence asserts that the Prosecution is confusing the notions of "source" and "authenticity" and that it uses them interchangeably. The Defence considers that authenticity refers back to the fact that a document is nothing more than what it claims to be and that it has not been produced or fraudulently altered. According to the Defence, the source refers to the location where the document was obtained or to the intermediary provider who provided the document, neither of which affect the authenticity of a document.

The Defence emphasises that it is not contesting the authority of the Trial Chamber to refuse to admit a document whose authenticity has been challenged. It claims, however, that the disclosure of the source of a document is not one of the ways to authenticate it and that the way a document is obtained is only rarely relevant to its being admitted. Authenticity should be established either by witness testimony or by stipulation between the parties.

In respect of its second request, the Defence states that its objective is not to obtain information on the source-informer but to be able to identify the documents transmitted and to evaluate their authenticity so as to be in a position to use them.

The Defence objects to the Prosecution’s proposal to provide information only about the documents previously identified by the Defence which the latter might intend to use because this would give the Prosecutor advance knowledge of the content of the cross-examination and would constitute a disclosure obligation not found in the Statute or the Rules. In addition, the Defence asserts that it does not know in advance all the documents it intends to use. The Prosecution therefore should provide the information requested for all the documents.

6. At the hearing of 28 November 1997, the parties repeated their arguments. The Defence reiterated its Motion and emphasised that the documents transmitted pursuant to Rule 68 of the Rules were frequently redacted and that it was difficult to know their source and to evaluate their content. The Prosecution, in turn, emphasised that the purpose of the Defence Motion was to restrict the powers of the Trial Chamber.


7. The Trial Chamber would first note that it will refer to the neutral terms "evidence" or "documents" which are applicable to both parties instead of "exculpatory" evidence mentioned in the Motion which concerns only the Defence.

In respect of the first request:

A) Background

8. The question raised in the Defence Motion is part of the debate on the admissibility of evidence which has been at issue ever since the commencement of the Bla{ki} trial. As early as 25 June 1997, the Trial Chamber considered that the question of the source was relevant and asked the witness to specify the source of the document presented. In the case at hand, the Decision of the Trial Chamber specifically referred to the source in the sense of "author".

On 30 July 1997, the Trial Chamber requested that the Defence indicate the source of the document marked D16 (and, subsequently, of other documents) after its "authentication" by the witness so that it might be considered as an exhibit. The Trial Chamber specified that the said document would not be admitted as evidence if, by the end of the trial, it had still not been identified.

On 27 August 1997, the Trial Chamber requested that "the identification/source" of a document submitted by the Prosecution to the Defence be specified before being admitted as evidence.

B) Analysis

9. The mission of the Tribunal is to ascertain the truth. It must do so in accordance with rules that are fair to the Defence without being oppressive to the Prosecution. The rules regulate the basis on which evidence is admissible and, where evidence is admitted, what weight will be accorded to it.

10. Admissibility is governed by Sub-rule 89(C) of the Rules which reads: "A Chamber may admit any relevant evidence which it deems to have probative value". The word "admit" is stressed here. Only two elements, namely, relevance and probative value, are specified in the Rule as governing the admissibility of any particular piece of evidence. There is no third element relating, for example, to authenticity. If the witness declares he recognises a document, in so doing, he acknowledges the document as evidence within the limits of such recognition. If the Trial Chamber considers that the document is relevant and has probative value, it is admissible. Any challenge to its authenticity goes to the weight to be given to the document.

11. Elaborating on the above, the Trial Chamber will explain that before considering the relevance and probative value of the documents tendered to it, the documents must first constitute evidence. This means that the documents must be said or adopted by the witness. Where the witness recognises a document, he may be regarded as having adopted it to the extent of the recognition. The document then becomes evidence. Thereupon, the Trial Chamber determines whether this evidence is relevant and probative in order to determine whether it is admissible evidence. Moreover, where the witness does not recognise the document, the contents of the document are not adopted by the witness and do not form part of his evidence. It is, accordingly, excluded without need to consider whether it is relevant and probative.

12. The previous decisions of the Trial Chamber are accordingly revised in the sense above-mentioned. Any requirement for authentication will therefore be understood as going to weight and not to admissibility. It is emphasised, however, that the Trial Chamber, pursuant to Sub-rule 89(E) of the Rules, always retains the competence to request verification of the authenticity. At the same time, the Trial Chamber holds that authentication refers to matters concerning the genuineness of a document, in the sense of whether the document is indeed what it purports to be, and not in the sense of the method by which it came to be in the possession of a party.

In respect of the second request:

13. In respect of the Defence request concerning the documents which the Prosecution provided to it pursuant to Sub-rule 66(A) and Rule 68 of the Rules, the Trial Chamber notes an evolution in the Defence submissions. In its most recent form, the Motion refers only to the source in the meaning of "informer".

The Trial Chamber also notes that the parties concur that the Prosecution has provided to the Defence a large number of documents and that the Defence has indicated its intention not to use all of them. In addition, the Defence has emphasised that some of the documents provided had been redacted and that it was therefore difficult to know their source and to evaluate their content.

14. In view of the responsibility of the Trial Chamber to ensure that the rights of the accused are respected, as stipulated in Articles 20 and 21 of the Statute, while, at the same time, it ensures that the proceedings are conducted fairly and inter alia that the parties are on an equal footing, the Trial Chamber considers it legitimate for the Defence to be concerned about receiving information about the source-author (initial Motion) so that it will be in a position to analyse the documents provided with full knowledge of the facts. Nonetheless, the Trial Chamber considers that requiring the Prosecution to identify all the documents disclosed to the Defence would constitute a disproportionate burden which might cause considerable delays in the proceedings without, however, appearing to be justified by the necessary respect for the rights of the Defence.

15. In this regard, the Trial Chamber would draw a distinction between general "statements" of the kind visualised in Sub-rule 66(A) of the Rules and exculpatory evidence of the kind contemplated by Rule 68.

In respect of Sub-rule 66(A) of the Rules, subject to what follows, the reference in that rule to "statements" cannot reasonably extend to include material outside a particular document concerning its authenticity.

Nonetheless, in respect of Rule 68 regarding exculpatory evidence, it is reasonable to hold that in transmitting material of this kind the Prosecution must also include any information going to the authenticity of a document so as to enable the Defence to make full use of it. Indeed, if there is other material which tends to establish the authenticity of the document, such other material itself becomes an integral part of the exculpatory evidence as being beneficial to the accused. Moreover, if the Prosecution possesses evidence which tends to suggest that some specific material being ruled on by it may not be authentic, the Prosecutor would, of course, be obliged to transmit such evidence as exculpatory evidence.


Trial Chamber I

RULING inter partes and unanimously,

DECIDES that any documentary evidence produced by a party and identified by a witness shall be admitted,

DECIDES that, should a challenge to the authenticity of such a document arise, the document will be admitted but that the weight to be ascribed to it will depend on the additional elements which will have, if necessary, been provided and which permit attesting to its authenticity,

DECIDES therefore that the documents marked D16, D17, D18, D19, D20, D22, D49, D51, D52, and D58 are admitted and that it is the responsibility of the party concerned to present those elements likely to attest to their authenticity if it so wishes,

CONFIRMS that because the document submitted by the Defence to the Trial Chamber under reference D73 was not recognised by the witness, it is not admitted.

DECIDES that the Prosecution shall transmit to the Defence any material relevant to the authenticity of any document forming part of exculpatory evidence which the Prosecution is required by Rule 68 of the Rules to transmit to the Defence.

DECIDES that within eight days of this Decision, the Defence shall inform the Prosecution which witnesses it might wish to call in application of this Decision; that the Prosecutor shall take the necessary measures to this end; and that the Trial Chamber will rule on any challenges which might arise.


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

Done this thirtieth day of January 1998
At The Hague
The Netherlands

Claude Jorda
Presiding Judge Trial Chamber I