Case No. IT-01-48-T
IN TRIAL CHAMBER I, SECTION A
Before:
Judge Liu Daqun, Presiding
Judge Florence Ndepele Mwachande Mumba
Judge Amin El Mahdi
Registrar:
Mr. Hans Holthuis
Decision of:
8 July 2005
PROSECUTOR
v.
SEFER HALILOVIC
________________________________________
DECISION ON MOTION FOR EXCLUSION OF STATEMENT
OF ACCUSED
________________________________________
The Office of the Prosecutor:
Mr Phillip Weiner
Ms Sureta Chana
Mr. David Re
Mr. Manoj Sachdeva
Counsel for the Accused:
Mr. Peter Morrissey
Mr. Guénaël Mettraux
I. INTRODUCTION
- 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 seized of the “Motion for Exclusion of Statement
of Accused”, filed
by the Defence on 6 June 2005 (“Motion”), in which
the Defence requests the Trial Chamber not to admit
the record of the interview of Sefer Halilovic taken
by investigators of the Office of the Prosecutor (“Prosecution”)
on 6 May 1996 and tendered by the Prosecution on 28
April 2005.1 The
Prosecution filed its “Prosecution Response to Defence
Motion to Exclude the Statement of the Accused” on
17 June 2005 (“Response”), with confidential annexes.
- On his own initiative, Sefer Halilovic (“Accused”)
was interviewed by the Prosecution on 23 and 24
February 1996, on 30 and 31 March 1996, on 15 April
1996 and on 5 and 6 May 1996.2 His statement was written
down in a 25 page statement (“Statement”).3
The interviews were conducted in French and Bosnian.
During the interviews an interpreter was present.
The Prosecution did not keep notes of the interviews
in its records and the interviews were not audio-
or video recorded.
II. ARGUMENTS OF THE PARTIES
A. Arguments of the Defence
- The Defence objects o the procedure of tendering
the Statement from the bar table and to the admission
of the Statement.
Tendering the Statement from the bar table
- The Defence raises a general objection to tendering
statements of the Accused from the bar table, and
submits that “SaCdmitting unproved statements of
the Accused into evidence as proposed is contrary
to and undermines basic principles of the Tribunal – inter
alia, the best evidence rule, the principle that
evidence is oral, live and public, the principle
that the Accused has a right to test Prosecution
evidence in cross-examination, and that he generally
has a –statutory – right to
confrontation as well as the right to a fair and public
trial.”4
- The Defence argues that “normally, (admitting
the statement of an accused into evidence( is not
permitted unless and until the Accused gives evidence
and only where the Prosecution has established to
the Court’s satisfaction special circumstances
that justify its admission, in addition to the evidence
given at trial.”5
The Defence submits that admitting “a document that
purports to represent the view of the accused” from
the bar table would “gravely undermine, if not totally
obliterate, the right of the Accused to remain silent,
his right to confrontation and ultimately his right
to a fair trial” and that this would also be prejudicial
to the Defence as this practice would deprive the
Defence of its chance to test the accuracy of the
statement.6
Statement taken in accordance with the Rules?
- The Defence further submits that the Statement
was not taken in accordance with the relevant provisions
of the Statute of the Tribunal (“Statute”) and the
Rules of Procedure and Evidence (“Rules”) in particular
Rules 42, 43, 63, 89 and 95. The Defence argues
that the reliability, accuracy or legality of the
Statement was not proven by the Prosecution;7
that Sefer Halilovic was not informed that he was regarded
as a suspect; that “the
Prosecution should have applied to Mr Halilovic the
safeguards and guarantees provided for in the Rules
for individuals regarded as suspects, out of an abundance
of caution [ …]”;8 and
that Sefer Halilovic was not advised that his statement
could be used in evidence against
him, which
is in violation of the right of an accused not to incriminate
himself.9
- Furthermore, the Defence argues that the statement
should be excluded from evidence pursuant to Rule
89 (D) of the Rules, as an unfairness arises “not
only because the conduct of the Prosecution has
produced a record/statement which is unreliable
and would create an unfairness for the Accused, but
also, in the alternative, because no such statement/interview
might have been made if the investigation had been
properly conducted [ …].”10
B. Arguments of the Prosecution
- The Prosecution requests that the Trial Chamber
carefully considers why the Defence now moves to
have the Statement of the Accused excluded, arguing
that the principal objection to the statement has
nothing to do with procedural fairness, but that
the statement is incriminating and contradictory
to the Defence case.11
The Prosecution submits that the statement has been
on the Prosecution exhibit list since 17 June 200212 and
that the very late Defence objection “is a trial tactic,
aimed at an ultimate submission to the effect that
the document is inadmissible because the Prosecution
has no[t] called any live testimony as to how Mr.
Halilovic came to sign the statement he gave to the
OTP in 1996.”13
- The Prosecution response to the arguments of
the Defence is as follows.
Tendering the Statement from the bar table
- The Prosecution submits that “there is no difference
in principle between the admissibility of a statement
of a person taken by an OTP investigator (or anyone
else for that matter) and any other document containing
a representation which is sought to be led in evidence.
Each is a hearsay document to which the normal rules
of admissibility apply and each document must be
assessed on its own merits.”14
It further submits that “the fact that an investigator
has typed the words of the Accused into statement
form (and that he has signed it) does not put it into
any special category requiring additional or special
scrutiny.”15
- The Prosecution argues that tendering documents
from the bar table is permissible and a normal occurrence
in proceedings before the Tribunal, as several precedents
show.16 The
Prosecution finally submits that the procedure
of tendering documents from the bar table is entirely
consistent with the Guidelines adopted by the Trial
Chamber.17
Statement taken in accordance with the Rules?
- The Prosecution submits that Sefer Halilovic,
at the time of the interviews, was not a suspect
in any Prosecution investigation.18
In May 1996, the Prosecution “had almost no documentation
in relation to Grabovica and Uzdol.”19 The Prosecution did
not obtain a dossier from the Bosnian Federation Prosecutors
relating to its investigations into the events in
Grabovica until 25 February 1998 and “in October 2000
the Prosecution obtained much of the documentation
necessary to properly analyse a case against Mr. Halilovic.”20
- The Prosecution further submits that, in April
1996, it was conducting an investigation into crimes
allegedly committed by the ABiH and the Bosnian Government
during the war, including crimes committed in the
Neretva Valley between March and November 1993.21 This investigation into crimes
committed in the Neretva Valley included investigating
alleged killings of civilians in Grabovica and other
villages, as well as illegal detentions and attacks
on detainees in military camps and plunder.22 The
Prosecution submits that in 1996, the main suspect
in relation to the alleged crimes in Grabovica was
Zulfikar Alispago.23
It argues that the mere fact that a superior’s subordinates
are suspected of having committed crimes "does not
itself turn the superior into a suspect." For the Prosecution
to have regarded the Accused as a suspect it would
have had to have information that Sefer Halilovic
had failed to prevent the massacres in Grabovica and
Uzdol or failed to punish the perpetrators.24
- The Prosecution also argues that Sefer Halilovic
by signing the statement acknowledged that “the
investigation may subsequently bring out facts which
might involve my own responsibility” and “ce que
je vais (dire( pourra etre retenu comme prevue.”25
According to the Prosecution, this “could only have
indicated to him that [the statement] could be used
against him in evidence, or at the very least signalled
that he should seek legal advice, if he feared self-incrimination.”26
Sefer Halilovic received this warning even though “the
OTP did not consider then him responsible for [the]
events.”27
- The Prosecution also submits that the statement
was taken with the assistance of a competent United
Nations interpreter, with good knowledge of military
terms, who read the statement, as written by the
investigator, to Sefer Halilovic before he signed
it.28 Having
been informed that he may be assisted by an attorney,
Sefer Halilovic “unequivocally waived his
right to have a lawyer present during the interviews
at their very commencement”.29
The Prosecution argues that there is no strict requirement
to keep records of any notes of the investigator,
nor is there a requirement to keep a list of questions.30
- With regard to the recording of the interview,
the Prosecution submits that the Rules do not require
the Prosecution to audio or video record the taking
of witness statements.31 Rule 43 requires
the recording of interviews with suspects, but as Sefer
Halilovic was not a suspect at the time of the interview,
there was no legal requirement to audio or video
record the interview.32
III. DISCUSSION
- The Trial Chamber shall, as prescribed in Rule
89 (B), in cases not otherwise provided for in the
provisions of Rules 89 to 98 of the Rules, apply
rules of evidence which will best favour a fair
determination of the matter before it and are consonant
with the spirit of the Statute and the general principles
of law.
- The jurisprudence of the Tribunal provides
that “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.”33 In light of this,
as has already been held by the Trial Chamber in its “Decision
on Admission into Evidence of Interview of the Accused”,
filed on 20 June 2005, the Trial Chamber finds that
there is no prohibition for a record of an interview
with the 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 it is
relevant and has probative value.34
- The principal question at issue is what safeguards
should have been applied by the Prosecution in order
for a former statement of a now accused person to
be admissible into evidence.
- The jurisprudence of the Tribunal shows that
there is a fundamental difference between an accused,
who might testify if he so chooses, and a witness.
The Statute and the Rules provide for safeguards
for suspects and accused, which are not enjoyed
by witnesses. As provided for in Rule 42, which is
based on the rights of a suspect enshrined in Article
18 of the Statute, a suspect has the right to be
assisted by counsel and an interpreter, he has the
right to remain silent, and he has to be warned
that his statement may be used in evidence.35
A witness, when questioned, does not enjoy the specific
rights of a suspect, and therefore does not have to
be advised of these rights.
- The Trial Chamber endorses the finding of the Celebici Trial
Chamber that “Rule 42 embodies the essential provisions
of the right to a fair hearing as enshrined in Article
14(3) of the International Covenant on Civil and
Political Rights and Article 6(3)(c) of the European
Convention of Human Rights. These are the internationally
accepted basic and fundamental rights accorded to
the individual to enable the enjoyment of a right
to a fair hearing during trial.”36
The Trial Chamber notes that where a now accused person
has been interviewed as a witness, the admission of
that statement during trial could violate the rights
of the accused to a fair trial, in particular his
right to remain silent. The fundamental difference
between an accused and a witness may result in an inadmissibility
of a statement of an accused taken at the time when
he was still considered to be a witness, insofar as
the statement was not taken in accordance with Rule
42, 43 and 63 of the Rules. The Trial Chamber finds
that in order to protect the right of the Accused
to a fair trial, in accordance with Article 21 of the
Statute, it should be taken into account whether the
safeguards of Rules 42, 43 and 63 of the Rules have
been fully respected when deciding on the admission
of any former statement
of an accused irrespective of the status of the accused
at the time of taking the statement.
- The Trial Chamber notes that in the present
case the Accused was advised of the rights provided
for in Rule 42 of the Rules prior to his being questioned,
in a language that he understood and that he subsequently
waived his right to have counsel present during
the interview, as permitted under Rule 42 (B).
- The Defence submission that Sefer Halilovic
did not understand that the evidence he gave at
that time could be used against him, cannot
hold. Sefer Halilovic was informed that he had the
right to remain silent and that any statement he
made may be used in evidence, as provided for in
Rule 42 of the Rules.37
This was sufficient to inform the Accused that any
statement given may be used in evidence against
himself. The investigator in the current case was
under no obligation to go any further.
- Rule 43 provides for audio and video-recording
of the interview of suspects and aims at ensuring
the integrity of the proceedings, inter alia, by
providing for an instrument to ascertain the voluntariness
of a statement and the adherence to other relevant
safeguards as provided for in Rule 42 and Rule 95.38
The Trial Chamber finds that Rule 43 is a fundamental
provision to protect the rights of a suspect and an
accused. Moreover, it is a safeguard for a full and
accurate reflection of the questions and answers during
the interview and thus enables the parties and the
Trial Chamber to verify the exact wording of what was
said during the interview.
- The Trial Chamber notes that the Statement
was read out to Sefer Halilovic in his own language
before he signed each page of the document. The Trial
Chamber finds that the content of the Statement
is a general reflection of what Sefer Halilovic
said during the interview. However, the fact is that
the Statement is but a summary of seven days of
interviews, taken over a period of four months. Considering
that according to the interpreter Sefer Halilovic
gave “very detailed answers to the
questions,”39 the
Trial Chamber is not satisfied that the Statement
represents a full and complete record of what Sefer
Halilovic said. It is more probable than not that
not every detail or nuance of the interview was included
in the Statement, which affects its reliability. Because
the Statement was not audio or video recorded, the
Defence at present is incapable to verify the accuracy
of the Statement. The only effective way to challenge
the content of the statement at this moment in time
would be for Sefer Halilovic to waive his right to
remain silent and testify before this Tribunal.
- In the present case, Rule 43 was not applied
at the time of taking the Statement. Sefer Halilovic
has not chosen to waive his right to remain silent
during trial. Thus, the Trial Chamber finds that
the admission of the Statement would infringe upon
the Accused’s right to a fair trial.
IV. DISPOSITION
- For the foregoing reasons, pursuant to Rule
89 (D), the Trial Chamber GRANTS
the Motion and DECIDES not to admit the
Statement into evidence.
Done in English and French, the English version being
authoritative.
________________
Judge Liu Daqun
Presiding
Dated this eighth day of July 2005
At The Hague
The Netherlands
[Seal of the Tribunal]
1 - Motion, para. 39
2 - Motion,
para. 2.
3 - Response,
para. 1.
4 - Motion,
para. 14.
5 - Motion,
para. 15.
6 - Motion,
para. 16.
7 - Motion,
para 21. The Defence argues that the statement “may
well be inaccurate and/or unreliable” because, inter
alia, there are no notes of the 7 interviews resulting
in the statement; there is no evidence that the content
of the statement accurately and fairly [reflects]
the statements made by Sefer Halilovic during the interviews;
the familiarity of the interpreter with military terms
is unproved; the translation is not proved to be accurate
and Mr. Halilovic may well have been a suspect and
if so, he was not accorded all the relevant rights;
Motion, para. 23.
8 - Motion,
paras 29-30.
9 - Motion,
paras 34-36, emphasis added.
10 - Motion,
para. 38.
11 - Response,
paras. 4, 7 and 9.
12 - Response,
para. 12.
13 - Response,
para. 13.
14 - Response,
para. 40.
15 - Response,
para. 40.
16 - Response,
para. 41. The Prosecution refers to the following cases:
Prosecutor v. Hadzihasanovic and Kubura, Case No. IT-47-T;
Prosecutor v. Strugar, Case No. IT-01-42-T; Prosecutor
v. Galic, Case No. IT -98-29-T; Prosecutor v. Limaj
et al., Case No. IT-03-66-T; Prosecutor v. Krajisnik,
Case No. IT-00-39-T; and Prosecutor v. Milosevic, Case
No. IT-02-54-T.
17 - Response,
para 41.
18 - Response,
para. 2.
19 - Response,
para. 17.
20 - Response,
para. 16.
21 - Response,
para. 18.
22 - Response,
para. 19.
23 - Response,
paras 20-21.
24 - Response,
para. 22.
25 - Response,
para. 23.
26 - Response,
para. 23.
27 - Response,
para. 24.
28 - Response,
paras 27-30.
29 - Response,
paras 33-35.
30 - Response,
paras 36-37.
31 - Response,
para. 32.
32 - Response,
para. 32.
33 - Kvocka Appeal Judgement,
para. 128; Prosecutor v. Mucic et al, IT-96-21-A, Appeal
Judgement, 20 February 2001, (Celebici Appeal
Judgement) para. 533.
34 - The
Trial Chamber notes that the submission of the Prosecution
as to why the Defence "does not want [Sefer Halilovic’s]
statement admitted" is irrelevant as to the admissibility
of the statement.
35 - The
Trial Chamber also notes Rule 63 providing for the
specific rights of an accused.
36 - Prosecutor
v. Mucic et al, IT-96-21-T, Decision on Zdravko
Mucic’s
Motion for Exclusion of Evidence, 2 September 1997,
para. 43.
37 - The
Trial Chamber notes that Rule 42 A (iii) reads in its
relevant part: "to be cautioned that any statement
the suspect makes shall be recorded and may be used
in evidence."
38 - See
also Prosecutor v. Mucic et al, Decision on the Motion
on the Exclusion and Restitution of Evidence and Other
Material Seized from the Accused Zejnil Delalic, 9
October 1996 where it was held that a violation of
Rule 43 may lead to exclusion of a statement, if, as
a result of that violation, an irregularity occurred,
which has led to a violation of the rights of the accused.
The Defence for Zejnil Delalic argued that because
of difficulties with the recordings unrecorded information
was obtained and that such information formed the basis
of further questioning.
39 - See
Annex I to the Response.