Case No. IT-01-48-T

Before:
Judge Liu Daqun, Presiding
Judge Florence Ndepele Mwachande Mumba
Judge Amin El Mahdi

Registrar:
Mr. Hans Holthuis

Decision of:
20 June 2005

The Office of the Prosecutor:

Mr. Philip Weiner
Ms. Sureta Chana
Mr. David Re
Mr. Manoj Sachdeva

Counsel for the Accused:

Mr. Peter Morrissey
Mr. Guénaël Mettraux

1. TRIAL CHAMBER I, SECTION A (“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 (“Tribunal”) is seised of the Defence “Response to Prosecution Motion to Tender Record of Interview Obtained in Violation of Statute and Rules”, filed on 9 May 2005 with confidential annexes (“Objection”), whereby the Defence objects to the tendering and admission of the record of an interview of Sefer Halilovic (“the Accused ”) with representatives of the Office of the Prosecutor (“Prosecution”). The Prosecution filed its “Response to Defence Motion Opposing the Introduction into Evidence of the Record of Interview with the Accused Obtained in Accordance with the Statute and Rules” on 19 May 2005 (“Response”).

2. After his surrender to the custody of the Tribunal and his transfer to the Detention Unit, the Accused was interviewed by representatives of the Prosecution from 11 October 2001 to 12 December 2001 (“interview”). During the Status Conference on 28 April 2005, the Prosecution sought to tender from the bar table the record of the interview.¹

3. The arguments of the Defence in support of the Objection are, inter alia , that:

   The record of interview is not tendered in a permissible manner. Such a record should be tendered through a witness who could give evidence upon the circumstances in which the interview was taken, and cannot be tendered before the Accused testifies himself, if he decides to do so,²

   The interview was not obtained voluntarily as required by the Rules of Procedure and Evidence (“Rules”). The Accused agreed to give this interview under the inducement offered by the Prosecution of a promise that cooperation would promote his chance of provisional release and/or withdrawal of the indictment,³

   The “voluntariness” of the interview was also affected by the length of the interview and the fact that the Accused was in detention at the time.⁴ Moreover, it is alleged that the Accused was not “effectively represented” at the time of the interview.⁵ The admission of evidence obtained in such circumstances would be in breach of the Accused’s privilege against self-incrimination, his right to remain silent and generally his right to a fair trial,⁶

4. The Defence therefore submits that the record of the interview should be excluded by the Trial Chamber pursuant to Rules 89(D) and 95 of the Rules.⁷

5. The Defence further submits that should the Trial Chamber consider that a prima facie case of voluntariness has been established by the Prosecution, the Defence would request that a voir dire hearing take place concerning the admissibility of the record of the interview.⁸

6. Finally the Defence requests the Trial Chamber that the Prosecution be ordered to disclose to the Defence all records of the meetings between representatives of the Prosecution, including Ms Del Ponte, and former counsel for the Accused, Mr. Balijagic, “in particular records of meetings during which the provisional release , withdrawing of charges and interviewing of Mr. Halilovic were discussed”, or, should such records not exist, “the Prosecution should be ordered to provide an explanation for its failure to keep such records.”⁹

7. The Prosecution’s arguments in its Response in support of tendering the interview into evidence are, inter alia, that:

   The manner of tendering the record of interview of an accused from the bar table is by no means “novel” or “impermissible”, but, on the contrary, it has been used in other trials before the Tribunal,¹⁰

   The record of interview of the Accused is admissible as it is in compliance with Rules 42, 43 and 63 of the Rules and does not infringe upon either Rule 89(D) or Rule 95 of the Rules.¹¹ Once the Prosecution has established beyond reasonable doubt that the interview was given voluntarily , it is the Defence that must bear a shifting evidentiary burden to demonstrate otherwise.¹² In the present case, the Prosecution has provided all available and relevant information showing that : (1) “?agt its highest it is that 'a full cooperation' could have a positive influence on her ?the Prosecutor’sg position in relation to ?the Accused’sg provisional release” and “?tghis cannot amount at law to an impermissible inducement to an Accused person to incriminate himself”;¹³ and (2) the Prosecutor has repeatedly made clear to the Defence Counsel that no promise or agreement was made to Defence Counsel to withdraw the indictment in exchange for an agreement by the Accused to be interviewed.¹⁴ The Defence did not produce any evidence to support the suggestion of the existence of any threat, promise or inducement,¹⁵

   The manner in which the interview was conducted and the duration of the interview cannot be viewed as oppressing or violating any safeguards afforded to the Accused under the Statute or the Rules. ¹⁶

8. During the trial hearing on 2 June 2005, the Trial Chamber requested the Prosecution “to indicate the parts of the interview which are relevant to the present case ? andg which they seek to have admitted into evidence”; and, “to the extent possible , to indicate which paragraphs of the Indictment those parts are in support of.” ¹⁷ The Prosecution was requested to submit the above-mentioned information by 9 June 2005.¹⁸

9. On 10 June 2005, the Prosecution filed the “Most Relevant Portions of Prosecution Interview with Sefer Halilovic in 2001”, wherein, while emphasising that the interview has to be read and considered in its entirety, the Prosecution indicated those parts of the interview which it considers most relevant to the case against the Accused .¹⁹
   II. DISCUSSION

10. According to the jurisprudence of the Tribunal “a pre-requisite for admission of evidence must be compliance by the moving party with any relevant safeguards and procedural protections and that it must be shown that the relevant evidence is reliable.”²⁰ In light of this, the Trial Chamber finds that there is no prohibition for a record of an interview with an accused to be tendered from the bar table and subsequently admitted into evidence if the Trial Chamber establishes that the interview was obtained voluntarily , that it was conducted in compliance with the requirements set out in the Rules and that is relevant and has probative value.²¹

11. As for the voluntariness, the Trial Chamber finds that there is no evidence in support of the Defence’s allegations that any promises in relation to the Accused’s application for provisional release and/or as to a withdrawal of the indictment were offered by the Prosecution to induce the Accused to give the interview.

12. Both the Accused and his counsel repeatedly stated that the Accused agreed to be interviewed in order to establish the truth. From the time of his initial appearance on 27 September 2001 the Accused expressed his intention to “fully co -operate with the Tribunal”, because, as Mr. Balijagic explained, “?both him and his client attachedg the greatest importance to the establishment of the truth, whatever it ?would turng out to be”.²² In this respect, the Trial Chamber also notes the counsel’s comment during the interview : “?wge would like to know the truth to reach the truth whatever it is even if it would lead to life sentence for Sefer Halilovic”.²³

13. Concerning the Prosecution’s alleged promise of favourable consideration of the Accused’s application for provisional release, the Trial Chamber notes that the position of the Prosecution at the time was, as indicated in the letter from the Prosecutor to the Defence counsel dated 12 January 2004, that “a full cooperation of Mr. Halilovic could have a positive influence on the Prosecution’s position in respect to a potential application for provisional release”.²⁴ The Trial Chamber notes that the Prosecution did not offer any “promise of provisional release”, but only indicated to the Accused that in case of full cooperation the Prosecution would favourably support a potential application for provisional release , which may ultimately be granted only by a Trial Chamber, pursuant to Rule 65 of the Rules. In this respect, the Trial Chamber notes that amongst the factors that a Trial Chamber must take into account before granting provisional release, the Appeals Chamber in the Šainovic and Ojdanic case listed the fact that the accused had provisionally accepted to be interviewed by the Office of the Prosecutor , thereby showing some degree of cooperation with the Prosecution.²⁵ However, the Appeals Chamber also stated that “an accused person may, if he decides to do so, cooperate with the Office of the Prosecutor, inter alia, by accepting to be interviewed by the Prosecution, but he does not have to do so and his provisional release is not conditioned, all other conditions being met, upon his giving such an interview while still in custody.”²⁶ The Trial Chamber notes that the Accused was represented by a defence counsel, who must have been aware of the requirements and the procedure to obtain provisional release according to Rule 65 of the Rules.

14. The Trial Chamber also notes that the position of the Prosecution was not such as to induce the Accused to make an admission or, in other words, to incriminate himself in return for the Prosecution’ support for his application for provisional release. As mentioned above, the Accused from the very beginning voluntarily agreed to “fully cooperate with the Tribunal”, in order for the truth to be established . Furthermore, the Trial Chamber notes that at the end of the interview the Accused stated that no “threat, promise or inducement” had been made to him in order to convince him to give the answers and that the interview had been “fair and correct ”.²⁷ The Trial Chamber therefore finds that the position of the Prosecution at the time in relation to the Accused’s application for provisional release did not amount to an inducement that affected the voluntariness of the interview.

15. As far as the alleged promise to withdraw the indictment is concerned, the Trial Chamber notes that at one point during the time period of the interview, the Accused and his Defence counsel asked for a break in order to clarify with representatives from the Prosecution, or the Prosecutor herself, whether the so-called “reached agreements”, the nature and content of which the Defence did not specify, were still valid and why they were not respected.²⁸ After the break, the interview continued with no mention from the Defence counsel or the Accused of whether any meeting took place or whether any clarification in relation to the alleged agreements had been offered. The Trial Chamber also notes that, during the Status Conference on 10 February 2003, Mr. Caglar, the then-Defence counsel of Mr. Halilovic, stated in open court that Mr. Balijagic had informed him that he had not objected to the indictment because of the existence of an agreement between the Prosecutor herself and the Defence, according to which the indictment would be withdrawn at a given moment in time.²⁹ On that occasion, the Prosecution counsel, Mr. Withopf, replied that the Prosecution “never intended” to withdraw the indictment against the Accused.³⁰ The Trial Chamber further notes that the Prosecutor herself, in her letter to the Defence dated 12 January 2004, stated that at the meeting with Mr. Balijagic which took place on 11 October 2001, “?tghe issue of a potential withdrawal of the indictment against Mr. Halilovic was not even touched upon.”³¹ The Prosecutor also concurred with Mr. Withopf’ statement in his letter to the Defence dated 22 October 2003, that “at no point in time has any agreement between the Prosecutor and Mr. Balijagic to withdraw the indictment against Mr. Halilovic been made. The Prosecution emphasises again that it never intended nor does it intend to withdraw the indictment.”³²

16. With regard to the meaning of the above-mentioned “agreements”, the Trial Chamber notes that the Defence stated in its Objection that “promises were made to Mr. Halilovic that, should he fully cooperate with the prosecution, ?…g and ?…g should he be able to convince the prosecution of his innocence, the indictment would be withdrawn .”³³ Moreover in a letter to the Disciplinary Panel of the Tribunal, Mr. Balijagic wrote that: “?tghe representatives of the prosecution ?had informed himg that ?…g if Mr. Halilovic proves that he was not the commanding officer of Operation “Neretva 93” the prosecution shall withdraw the indictment.”³⁴ The Trial Chamber finds that the alleged statements made by the Prosecution could not in any case amount to “agreements” that could induce the Accused to give information that might contain self-incriminating evidence, but merely indicate the Prosecution’s intent to conditionally withdraw the indictment should the evidence appear insufficient to support its case.³⁵

17. In light of the evidence discussed above, the Trial Chamber does not deem a voir dire hearing necessary and finds that the interview was given voluntarily .

18. The Trial Chamber finds that the Accused’s interview was conducted in accordance with Rules 42,³⁶ 43 ³⁷ and 63³⁸ of the Rules. In particular , the Trial Chamber notes that the Accused was assisted by a defence counsel, Mr . Balijagic, chosen by the Accused and assigned by the Registrar,³⁹ during the entirety of the interview. The Accused was questioned and could answer in his own language, through the presence of an interpreter. He was clearly informed of his rights in the presence of his Defence counsel, at the very beginning of the interview as well as on several occasions throughout the interview,⁴⁰ in full respect of the voluntariness of the interview, of his right to remain silent , and with the Accused’s understanding that any statements he makes shall be recorded and may be used in evidence.⁴¹ The Trial Chamber further notes that the interview was audio-recorded, in accordance with the procedure set out in Rule 43. The record of the interview shows that the Accused was effectively represented by his Defence counsel, and that there were regular breaks throughout the interview. At any time the Accused or his Defence counsel could ask, if need be, for further suspensions or for interruptions of the interview, and the record shows that they occasionally did so.

19. In light of the circumstances in which the interview was conducted, and after having examined the content of the interview, the Trial Chamber finds that the admission into evidence of the record of the interview cannot be considered contrary to the demands of a fair trial. The Trial Chamber further finds that the record of the interview is relevant and has probative value. Although the record contains portions of the interview which are not strictly relevant to the case against the Accused , the Trial Chamber finds that in order to best assess the portions of the interview relevant to the present case, the interview needs to be considered in its entirety . The Trial Chamber also notes that the record of the interview contains portions in which the word “inaudible” is very recurrent and that a clearer version of the record of those portions would facilitate the Trial Chamber’s assessment of the information included therein. The Prosecution might, at a later stage, be requested to provide, if possible, the Trial Chamber and the Defence with a clearer version of those portions of the interview. The Trial Chamber will assess the weight to give to this evidence at the appropriate time, as indicated in the Guidelines on the Standards Governing the Admission of Evidence, issued by the Trial Chamber on 16 February 2005.
    III. DISPOSITION

20. For the foregoing reasons, pursuant to Rule 42, 43, 63 and 54 of the Rules, this Trial Chamber DISMISSES the Objection, and ADMITS the record of the interview of the Accused into evidence in its entirety.

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

_______________
Judge Liu Daqun
Presiding Judge

Dated this twentieth day of June 2005
At The Hague
The Netherlands

[Seal of the Tribunal]