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:
5 July 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

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”),

BEING SEISED of the “Response to Prosecution Application to Tender Statement of Witness”, filed on 6 June 2005 (“Objection”), whereby the Defence objects to the tendering and admission of the record of an interview between Mr. Vehbija Karic (“Witness”) and representatives from the Office of the Prosecutor (“Prosecution”), which took place on 17 December 2002 (“prior statement”),

NOTING the “Prosecutor’s Supplemental Argument as to the Admissibility of Vehbija Karic’s Prior Statement”, filed on 10 June 2005 (“Response”), in which the Prosecution stresses that there are inconsistencies on important matters between the deposition evidence taken on 8-10 July 2003 (“deposition”) and the prior statement and that therefore “the prior statemen[t] should be admitted to aid the Chamber in assessing the validity of the testimony and the weight that [the Witness’] evidence can be given on these important matters”,¹

NOTING that pursuant to a decision of the Trial Chamber,² the Witness gave further testimony via video-conference link on 2 June 2005, “for the purposes of questioning by the Judges, limited to the allegations in paragraph 10 of the Indictment”³ and that the parties had the possibility to ask questions arising out of the Judges’ questions,

NOTING that the Prosecution, both during the deposition in July 2003 and on 2 June 2005, tendered into evidence the Witness’ prior statement,

NOTING that the main Defence arguments in support of its Objection are that :

1. The Prosecution chose not to impeach the Witness when he was available to testify, nor did they ask permission of the Trial Chamber to confront him with specific passages of the record now sought to be tendered; the reasons for this choice are irrelevant and must be rejected,⁴

2. The Prosecution failed to put any passage from the prior statement to the Witness,⁵

3. The admission of the prior statement would create: (1) a “novel and dangerous precedent ”⁶ and the practice that could follow “would be contrary to the best evidence rule insofar at least as the credibility of a witness is concerned”,⁷ and (2 ) “substantial injustice, denying both the witness and the Defence the ability to test, explain or deny any alleged inconsistency”,⁸ which would be “contrary to the right of the Accused to a fair trial and to his right to confront evidence that may be prejudicial to his case”,⁹

4. Since the prior statement has never appeared on the Prosecution’s Rule 65ter list, it is an unauthenticated document, tendered in an unacceptable way,¹⁰

NOTING that the main Prosecution arguments in its oral submissions on 2 June 2005 and in its Response in support of tendering the prior statement into evidence can be summarised as follows:

1. The Prosecution’s intention to impeach the Witness was clear from the fact that during the deposition the Prosecution at some point explained to the Witness that some of the questions put to him were due to “the obvious discrepancy” between the Witness’s prior statement and what he was testifying during the deposition, and the fact that, after that, the Prosecution tendered the prior statement into evidence.¹¹ In this respect, the Prosecution explained that “rather than impeach ?the Witnessg at that time to save time and rather than use him as an adverse witness”,¹² it decided to introduce his prior statement; according to the Prosecution, this choice “was a matter to save time and it was also a matter related to this witness's health”,¹³

2. Although prior statements are not generally admissible at trial when the witness gives oral testimony, exceptions have been made in the Tribunal and written prior statements have been admitted into evidence,¹⁴

3. The prior statement should be admitted into evidence, pursuant to Rule 89 (C) of the Rules of Procedure and Evidence (“Rules”) since between the prior statement and the deposition evidence there are “inconsistencies on important matters”,¹⁵ and as the existence of a command post in Jablanica and the knowledge possessed by the Accused at the time that the crimes were committed,¹⁶ as well as the Accused’s role as a commander,¹⁷ together with the credibility of Mr. Karic’s testimony, “are significant issues in this case”,¹⁸ and evidence necessary to assess testimony on these matters, such as the prior inconsistent statement, is “highly relevant”,¹⁹

4. The admission of the prior statement would not affect the Accused’s right to a fair trial and to confront evidence since Defence counsel was aware of the inconsistencies and had the chance to examine the witness on these matters,²⁰

5. No real questions can arise about the authenticity of the prior statement. The statement was tape-recorded, provided to counsel and reviewed by the Witness for accuracy,²¹

NOTING that Rule 89(C) of the Rules provides that “[a] Chamber may admit any relevant evidence which it deems to have probative value”,

CONSIDERING that the practice before the Tribunal is not to admit prior statements of a witness when the witness has given oral testimony before a Trial Chamber; however, the party who did not call the witness is allowed, during cross-examination, to refer to the witness’ prior statements to attempt to impeach the witness’ credibility by challenging the consistency and reliability of his or her testimony,

CONSIDERING that prior statements of witnesses who have testified before the Tribunal may exceptionally be admitted in cases such as when the party calling the witness intends to impeach his or her credibility,²² or when a Trial Chamber deems their admission into evidence proper in the interests of justice,

CONSIDERING in particular that, on the basis of a procedure which reflects a traditional common-law position, a party calling a witness, once it appears that the witness is testifying in contradiction with his previous statements, may turn him or her into a “hostile” witness, by seeking leave from the Trial Chamber, and may be allowed to cross-examine the witness on the previous inconsistent statements ;²³

CONSIDERING that Rule 89(A) provides that “?ag Chamber […] shall not be bound by national rules of evidence” and that therefore the Tribunal is not bound by the common law rule and procedure concerning “hostile” witnesses,²⁴

CONSIDERING that the party calling the witness may challenge the witness’ credibility on portions of his or her testimony, without necessarily following the above mentioned procedure, by confronting the witness with specific passages of his or her prior statement, so that explanations can be given for the alleged discrepancies and these explanations can be tested by cross-examination,²⁵

CONSIDERING that confronting a witness with material passages of his or her prior statement allows the witness to explain, comment or elucidate on the existence of the alleged inconsistencies and therefore is respectful of the witness’s integrity and enhances the reliability of the testimony;

CONSIDERING that in the present case the Prosecution neither sought leave from the Trial Chamber, or the Presiding Officer who represented the Trial Chamber during the taking of the deposition, to be allowed to cross-examine the Witness on his prior statement, nor confronted the Witness with the material passages of his prior statement that were allegedly in contradiction with his testimony,

CONSIDERING that the Prosecution, had the possibility, especially during the three-day deposition on 8-10 July 2003, to put to the Witness the material passages of his prior statement, and that the reasons provided by the Prosecution for its failure to do so, namely, the “?wgitness’s health” and the need “to save time”, do not constitute a valid justification,

CONSIDERING that during the deposition the Prosecution only indicated to the Witness that his testimony was contradictory in light of his prior statement on certain points, namely, the existence of a command post in Jablanica and the role of the Accused as a commander,²⁶ and that it did not even indicate the alleged inconsistency concerning the knowledge of the Accused of Croat villagers living in Grabovica,

CONSIDERING therefore that the Witness, by not being confronted with the material passages of his prior statement, was not given the opportunity to explain or deny the alleged inconsistencies with full awareness of what he had previously stated;

CONSIDERING that the Witness was nonetheless able to explain, even if only in general terms, the alleged inconsistencies in relation to the existence of a command post in Jablanica and the role of the Accused as a commander,

CONSIDERING that the challenged part of the Witness’ testimony and the Witness’ explanation of the alleged inconsistencies are reflected, even if only in general terms, in the transcript of the deposition,²⁷ and that they will be considered, within the context of the trial record as a whole, by the Trial Chamber when assessing the weight to be given to this evidence,

FOR THE FOREGOING REASONS,

PURSUANT to Rule 54 of the Rules,

HEREBY GRANTS the Objection and DECIDES NOT TO ADMIT into evidence the prior statement of the Witness.

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

__________________
Judge Liu Daqun
Presiding Judge

Dated this fifth day of July 2005
At The Hague
The Netherlands

[Seal of the Tribunal]