DECISION ON MOTION BY DARIO KORDIC FOR ACCESS TO UNREDACTED PORTIONS OF OCTOBER 2002 INTERVIEWS WITH WITNESS "AT"
- The appellant Dario Kordic ("Kordic") has sought an order directing
the Office of the Prosecutor (the "Prosecution") to disclose, in
unredacted form, the transcript of an interview conducted over four days with
Witness "AT", after judgment had been given by the Trial Chamber.
Witness "AT" had been called by the prosecution as a witness
at the trial.1 Kordic claims that the lack of
corroboration of this witness’s evidence at the trial, and the contradictions
within that evidence, are crucial issues raised in his appeal, and that a
full disclosure of the contents of this interview would constitute exculpatory
material within the meaning of Rule 68 of the Rules of Procedure and
Evidence (" Rules").2
BACKGROUND
- On 28 February 2003, the Prosecution disclosed to Kordic a redacted version
of the transcript of the post trial interview conducted with Witness "AT"
(the " first disclosure").3
- By letter of 3 March 2003, Counsel for Kordic requested the Prosecution
to provide the full, unredacted, version of the witness interviews and an
explanation for the redactions and the late disclosure.4
- By letter of 7 March 2003, the Prosecution responded to Kordic that it would
review the redacted material further in the light of his request and consider
whether an unredacted version could be disclosed. The Prosecution also responded
that, since October 2002, it has been undertaking a review of all material
in its possession pursuant to Rule 68.5
- On 7 March 2003, Kordic filed his Motion under seal.
- On 20 March 2003, the Prosecution filed its confidential "Prosecution’s
Response to the Appellant Dario Kordic’s Motion for Access to Unredacted Portions
of Interviews with Witness ‘AT’" (the "Response").
- On the same day, the Prosecution provided Kordic with a further version
of the interviews of October 2002 with some redactions removed (the "second
disclosure ").
- On 21 March 2003, the Prosecution filed confidentially and ex parte its
"Prosecution’s Ex-Parte Filing Regarding Motion by Kordic for Disclosure
of Unredacted Interviews with Witness ‘AT’" and its Annexes (respectively,
the "Prosecution’s Filing" and the "Annexes"). One such
Annex was an unredacted version of the interviews with Witness "AT".
The Prosecution stated its reasons for the redactions which had been made,
and it invited the Appeals Chamber to consider whether further redactions
should be removed.
- On 25 March 2003, Kordic filed confidentially his "Dario Kordic’s Reply
in Support of his Motion for Access to Unredacted Portions of the Most Recent
Prosecution Interviews of Witness ‘AT’" (the "Reply"),
in which Kordic further requests disclosure of (1) all recent psychiatric
evaluations of Witness "AT", and (2) any materials relating to the
four days of interviews given to the prosecution’s investigators by Witness
"AT" from 12-15 October 2002 or prior interviews given to the Prosecution
, its attorneys or investigators by Witness "AT".6
- On 31 March 2003, the Pre-Appeal Judge issued an "Order to Prosecution
to Refile its Ex Parte Filing in Response to Motion by Kordic for Disclosure
in Relation to Witness ‘AT’", in which it ordered the Prosecution (1)
to re-file inter partes a redacted version of the Prosecution Ex
Parte Filing, other than the annexes, within five days of the date of
that order; and (2) to provide the Appeals Chamber with a copy of the final
version of the interviews disclosed to the Applicant , as described in paragraphs
8, 16 and 20 of the Prosecution’s Response, together with (upon an ex parte
basis) an unredacted version of that document which indicated the passages
which have remained redacted.
- By letter of 3 April 2003, the Senior Legal Officer informed Counsel that,
although the Reply inappropriately (without leave) included the two new above-mentioned
requests, the Appeals Chamber would in the circumstances consider the relief
sought , and the Prosecution was invited to respond to the application by
filing a further response on or before 10 April 2003. In the event that
the Prosecution accepted that invitation, Kordic was ordered to file any reply
to that response on or before 14 April 2003. Kordic was nevertheless
ordered to restrict his reply to matters raised in the prosecution’s further
response.
- On 7 April 2003, the Prosecution filed its "Redacted Confidential Inter
Partes Version of Prosecution’s Ex Parte Filing Regarding Motion
by Kordic for Disclosure of Unredacted Interviews with Witness ‘AT’"
filed on 21 March 2003 ." It also filed confidentially on the same day
its "Prosecution’s Filing in Compliance with Appeals Chamber’s Order
of 31 March 2003" and its Inter Partes Annex A and Ex Parte
Annex B.
- On 7 April 2003, Kordic filed confidentially his "Appellant and Respondent
Dario Kordic’s Notice to Appeals Chamber of his Decision not to Seek the Admission
of ‘Additional Evidence’ under Rule 115 at this Time", whereby Kordic
reserved his right to make an application under Rule 115 promptly after,
inter alia, the disclosure to him of previously redacted portions of
the October 2002 interviews of Witness "AT".
- On 9 April 2003, the Prosecution disclosed to Kordic redacted copies of
the notes taken by its investigators Mr Costello and Mr Zia over two days
prior to the formal taped interviews of Witness "AT" on 12-15 October
2002 ("investigators’ notes "), as well as unredacted handwritten
notes taken by one of the investigators in connection with the interview.
- On 10 April 2003, the Prosecution filed confidentially and Ex Parte its
"Prosecution Response to New Issues Raised in the Appellant Kordic’s
Reply Regarding Access to unredacted Portions of Recent Interview of Witness
‘AT’" and its inter partes7 and
ex parte Annexes. One of the Ex parte Annexes (D1) consisted
of transcripts from testimony in the Blaskic trial, provided to Witness
"AT" by Blaskic. Ex parte Annex D2 was a handwritten B/C/S
version of an excerpt of the transcripts in question , plus a draft English
translation of the excerpt. The Prosecution invited the Appeals Chamber to
consider whether these Annexes should be disclosed or not in the light of
the reasons given by the Prosecution for the first category of redactions
it made as part of the first disclosure.8
- On 11 April 2003, the Prosecution filed confidentially its "Inter
Partes Redacted Version of Prosecution Response to New Issues Raised in
the Appellant Kordic’s Reply Regarding Access to Unredacted Portions of Recent
Interview of Witness ‘AT’, filed on 10 April 2003" and its Inter Partes
Annexes. Annex A was a letter from the Senior Appeals Counsel of 9 April
2003 disclosing the above-mentioned investigators’ notes to Counsel for Kordic.
Annex B was an order appointing Witness "AT" to the military position
which he had held.
- On 14 April 2003, Kordic filed confidentially his "Dario Kordic’s Response
to the Prosecution’s Redacted Ex Parte Filing Dated 7 April 2003",
in which he submits that Ex Parte proceedings are generally inappropriate
in the adversarial system, and that the Prosecution had failed to advance
any specific or articulated reasons for the redactions it made.9
- On 15 April 2003, Kordic filed confidentially his "Dario Kordic’s Reply
to Prosecution’s Partially ‘Inter Partes Redacted Version of Prosecution
Response to New Issues Raised in the Appellant Kordic’s Reply Regarding Access
to Unredacted Portions of Recent Interview of Witness ‘AT’, filed on
10 April 2003’" as well as his "Dario Kordic’s Response to Prosecution’s
Partially Ex Parte ‘Filing in Compliance with Appeals Chamber’s Order
of 31 March 2003’".
THE MOTION
- Kordic submits that there is no excuse for what he calls the belated and
heavily redacted disclosure of the transcripts of the four days interviews
of Witness "AT " conducted by the Prosecution in October 2002. He
submits that the Prosecution should be ordered to provide him expeditiously
with complete and unredacted versions of the material in question.
A. Material which may affect the credibility of Prosecution’s
evidence
- Kordic argues firstly that the lack of corroboration of the evidence of
Witness "AT" at trial,10 and the contradictions
within that evidence,11 are crucial issues raised
in his appeal and that fairness dictates a full disclosure of the contents
of this interview, which would clearly constitute "exculpatory"
material within the meaning of Rule 68 in that it "may affect the credibility
of Prosecution evidence".12
- The Prosecution responds that the Motion is premature,13
that it is unwarranted and should be dismissed.14
The Prosecution submits that it has met its obligations under Rule 68 in regard
to the recent interviews with Witness "AT", as it has provided the
portions of the interviews which clearly contain exculpatory information to
Kordic, while redacting the remaining portions.15
The Prosecution says that Kordic has not demonstrated any legal basis for
demanding unredacted versions of the interviews in question, and that, absent
a showing in this instance of an abuse of its discretion to review for Rule
68 purposes, Kordic’s Motion should be dismissed.16
The Prosecution submits that, if the Appeals Chamber is of the view that any
of the redacted portions should be disclosed, it may require time to seek
further protective measures, if necessary .17
- Kordic replies that, given the key position of the testimony of Witness
"AT " in the "planning, instigating and ordering" convictions
against him, all material relating to this witness is potentially exculpatory
as it goes to the witness credibility , which is a matter which he has raised
on appeal.18 Kordic stresses in particular that
the Rule 68 obligation to disclose as soon as practicable material "that
may affect the credibility of Prosecution evidence" is interpreted broadly
by the jurisprudence of the Tribunal.19 He further
submits that any versions of events given by Witness "AT" to
the Prosecution’s investigators which bear materially in any way upon the
versions told by this witness in interviews, and at the Kordic trial, may
affect the credibility of his evidence .
- Kordic argues that the following example of material disclosed by the Prosecution
by its second disclosure on 20 March 2003 confirms his claim that
the transcripts of the October 2002 interviews of Witness "AT" are
exculpatory:20
WZ: Just one, one question. How many people appeared confirming
your alibi in the same case?
AT: Two.
JC: Did all those witnesses give false testimony?
AT: Well, I admitted to my false alibi.
JC: Did you or your defence counsel personally recruit
these witnesses, or did you receive assistance from some other source in
recruiting them? If answering the question interferes with your notion of
client-lawyer privilege, state that.
AT: I will answer this question in this way. One of the
witnesses who testified , who confirmed my alibi was recruited on my own
initiative, or at my proposal.
Kordic recalls that one of the issues raised in his appellate Brief is whether
Witness "AT" had lied to the Appeals Chamber when submitting a brief
on appeal challenging the judgement of the Trial Chamber having rejected his
defence of alibi,21 and he stresses that Witness
"AT" admitted at trial that the two witnesses who testified to his
"defence" of alibi had committed perjury. He contends that the Trial
Chamber appears to have considered that it was free to accept Witness "AT"
as a reliable witness because the "lying alibi defence" had been
constructed by unscrupulous lawyers rather than by their truth-telling client.22
Kordic argues that the admission by Witness "AT" that he was a party
to the falsehood told to the Appeals Chamber, and that the fraud he attempted
to perpetrate was his own idea, are clearly exculpatory.23
If this material represents, as Kordic contends, what the Prosecution chose
to redact from these transcripts in its first disclosure, then similarly exculpatory
material may also have been redacted and is still not disclosed.
- The issue raised by the Motion is whether the Prosecution met its obligations
under Rule 68 of the Rules, which provides:
The prosecutor shall, as soon as practicable, disclose
to the defence the existence of material known to the Prosecutor which
in any way tends to suggest the innocence or mitigate the guilt of the
accused or may affect the credibility of prosecution evidence.
This obligation is not confined to the trial proceedings, and it continues
in relation to proceedings before the Appeals Chamber.24
The initial decision as to whether material has to be disclosed under Rule
68 has to be made by the Prosecutor. Without demonstration that the Prosecution
abused its judgement, the Appeals Chamber is not inclined to intervene in
the exercise of this discretion by the Prosecution.25
The material to be disclosed is not restricted to material which is in a form
which would be admissible in evidence. It includes all information which in
any way tends to suggest the innocence or mitigate the guilt of Kordic or
may affect the credibility of prosecution evidence, as well as material which
may put Kordic on notice that such material exists.26
- Although Kordic submits that the lack of corroboration of the evidence of
Witness "AT" at the trial, and the contradictions within his evidence,
are crucial issues raised in his appeal, the Appeals Chamber notes that, given
the legal basis upon which the Motion is made, the issue at stake is not whether
the redacted portions of the transcripts of the interview of Witness "AT"
are merely material to the preparation of the Defence on appeal, but rather
whether it (or part of it) constitutes material which falls within Rule 68
of the Rules in the way outlined in the previous paragraph of this Decision.
- The Appeals Chamber accordingly does not accept the contention by Kordic
that , given the key position of the testimony of Witness "AT" in
the "planning, instigating and ordering" convictions against him,
all material relating to this witness falls within Rule 68. The Appeals Chamber
does, however, accept the contention by Kordic that the second disclosure
made on 20 March 2003, after the filing of his Motion , contains material
which falls within Rule 68. The Appeals Chamber notes that the "lack
of credibility of Witness ‘AT’" is one argument raised by Kordic on appeal
, based inter alia upon the fact that Witness "AT" had
lied and run a false alibi defence during his own trial.27
The Appeals Chamber notes further that the Prosecution responded in its Reply
to Appellant Kordic’s Brief that the argument in question would be somewhat
inaccurate and an overstatement of the case, in that the lies to which it
refers were made by the Defence of "AT" in his own trial and not
by Witness "AT" himself.28 In
this context, the Appeals Chamber considers that material by which Witness
"AT " admits that one of the witnesses who testified and confirmed
his alibi was recruited on his own initiative, or at his suggestion, falls
within Rule 68, and therefore should have been be disclosed as soon as practicable.
The Appeals Chamber notes that the material in question was not disclosed
to Kordic until the second disclosure on 20 March 2003.
- In order to ascertain whether the redacted transcripts still contain material
falling within Rule 68, the Appeals Chambers has reviewed the "Confidential
Ex Parte Annex B". The Appeals Chamber notes that file pages 7277-7259
and file pages 7227-7199 of the "Confidential Ex Parte Annex B"
contain material which specifies the overall context in which Witness "AT"
obtained his false alibi, the particular role he played in that respect, as
well as a possible link between the assistance which he received in providing
a false alibi in his own case and the fact that he was asked to testify at
trial to a certain version of events in the Kordic and Cerkez case
and refused to do so, as mentioned at paragraph 627 of the Trial Chamber’s
judgement. The Appeals Chamber finds that such material falls within the Prosecution’s
Rule 68 obligation of disclosure, and that it has not yet been disclosed.
- The Appeals Chamber turns next the Prosecution’s submission that, if the
Appeals Chamber is of the view that the above-mentioned material is to be
disclosed, it may wish to order that the Prosecution also disclose Annex B
to the Prosecution’s Filing. The Prosecution contends that the Annex in question,
which corresponds to the transcripts of another witness’s interview, essentially
confirms the testimony of Witness "AT" relating to the issue at
stake.29 The Appeals Chamber is satisfied that
this material should also be disclosed.
B. Material necessary to an understanding of the material
already disclosed
- Kordic secondly argues that the redacted material is "occasionally"
central to an understanding of the additional version of events given by Witness "AT"
in October 2002, a version which conflicts with the version he related to
the investigators in 2000, as well as with the one he gave at trial.30
He illustrates this argument by giving five examples which, he asserts, demonstrate
that, due to the redactions of the material disclosed, he cannot ascertain
either the context of the statements made by Witness "AT" or what
the witness may have said on subjects which are clearly material to the issues
Kordic raised on appeal .
- The Appeals Chamber has examined the five examples given by Kordic to support
this argument,31 in the light of Inter Partes
Annex B to the "Prosecution’s Filing in Compliance with Appeals Chamber’s
Order of 31 March 2003". The Appeals Chamber is satisfied that the second
disclosure to Kordic of portions of the transcripts already made by the Prosecution
following the filing of the Motion renders moot this part of his submission,
but it is satisfied that this material should have been disclosed as soon
as practicable , and that it should not have been redacted in the first disclosure.
THE REQUEST FOR DISCLOSURE OF PSYCHIATRIC EVALUATIONS
- Kordic submits that the following excerpts of Exhibit C,32
which was disclosed in the second disclosure, as well as examples of statements
Witness "AT" made throughout the last three years,33
strongly suggest that the latter is suffering from serious memory problems,
and from health problems which potentially could be psychiatric in nature.
Kordic quotes the following excerpt of Exhibit C:
I ["AT"] would like to take my pill now, if
you don’t mind. […]
It is very painful for me ["AT"] to go back
and revisit these events, and I have lapses of memory of this period.
[…]
There is a blank in my memory in this, I can’t remember.
[…]
It was very difficult and painful to go back and revisit
these events, this /unintelligible / is painful that I could /unintelligible/
think without crying.
Kordic also refers to the following statement by Mr Zia, later in the interview
that :
Mr "AT" is not feeling very well /unintelligible/
he wants to take a short break .
And, immediately after the break, the clarification by Mr Zia that:
[…] Witness "AT" was not feeling well emotionally,
and we stopped the interview.
followed by the concession by Witness "AT", after the break, that:
[…] I cannot really say with certainty about this, because
my memory is really uncertain /unintelligible/.
Kordic requests further disclosure of all recent psychiatric evaluations
of Witness "AT".34 The Prosecution
opposes this request as being based on unsupported inference, and it notes
that the witness mentioned at trial that he was suffering from a kidney problem
which may be the reason why he needed to take a pill during the interview.
It says further that it is not in possession of any psychiatric evaluations
of Witness "AT".35 Kordic replies (without
indicating any basis for his claim) that, even if the Prosecution does not
have copies of such evaluations, the Tribunal certainly has access to these
materials and that they should be disclosed to him.36
- The Appeals Chamber is not satisfied that Kordic has demonstrated that the
Prosecution has in its possession the material which he seeks to have disclosed.
There is therefore no basis for ordering such disclosure.
THE REQUEST FOR DISCLOSURE OF RELATED MATERIALS
- Kordic stresses that the second disclosure was made only "two weeks"
after the filing of his Motion. Kordic claims that it appears that Witness
"AT" had been interviewed by the Prosecution, its attorneys or investigators
on occasions other than May and October 2000, at trial and 12-15 October
2002. He accordingly requests unredacted copies of any material related to
these other interviews.37 The Prosecution stresses
that it received no written request for any of these materials prior to this
assertion made by Kordic in his filing.
- The Appeals Chamber considers first the request by Kordic for the investigators’
notes. The purpose of these notes was to recite back to the witness their
content in order to obtain his acknowledgment that the notes were accurate.
Kordic submits that, in view of the fact that most of the Prosecution’s submissions
in connection with the obligation to disclose these notes are made ex parte,
he is not in a position to make any intelligent arguments as to whether the
non-disclosed portions contain exculpatory material or not.38
The Prosecution responds that, on 9 April 2003, it disclosed to Kordic redacted
copies of the typed investigators notes as well as handwritten investigators
notes made during the interview of Witness "AT" by one investigator.
It claims that the typed notes are slightly redacted to correspond to that
information redacted in the original interview transcripts disclosed to Kordic.39
Having reviewed Ex Parte Annexes F2 and F3, the Appeals Chamber is
satisfied that the Prosecution did not abuse its discretion in determining
that the redacted portions of the investigators notes do not contain material
falling within Rule 68.
- Secondly, as far as material originating from documents given to the Prosecution
by Witness "AT" during the four day interview in October 2002
is concerned, the Appeals Chamber notes that the Prosecution has disclosed
to Kordic as Annex B40 the order appointing Witness
"AT" to the military position which he held. Kordic claims that
this document is highly exculpatory both as to the chain of command issues
and as to the credibility of Witness "AT". It should therefore have
been disclosed by the Prosecution "as soon as practicable".41
The Prosecution states that the document in question does not fall within
the parameters of Rule 68. It has no objection to providing Kordic with this
document, because it supports the credibility of Witness "AT", in
that the existence of the document had been questioned by the Defence at trial.
As far as non-disclosed documents are concerned, the Prosecution indicates
that they relate to redacted portions of the interviews with Witness "AT".42
Although the Prosecution stresses that it has no specific objection to the
disclosure of the documents in question,43 it
has indicated ex parte the reasons why it has not disclosed the documents
in question.44 Having reviewed these reasons,
the Appeals Chamber finds that Ex Parte Annexes D1 and D2 fall within
Rule 68, as they are particularly relevant to the issue of credibility of
Witness "AT", and that they should therefore have been disclosed
together with the material described at paragraph 26 above, to which it is
directly linked.
- Thirdly, the Appeals Chamber considers the request by Kordic related to
the notes of a meeting at which Witness "AT" was interviewed by
the Prosecution Senior Trial Attorney in the Blaskic case, Mr Harmon.
Kordic submits that, without knowing what the subject matter covered by Mr Harmon’s
notes is, he is not in a position to make detailed submission.45
The Prosecution contends that the related document Ex Parte Annex E
does not contain Rule 68 material. This was an internal memorandum within
the OTP regarding the meeting, which the Prosecution claims is protected by
Rule 70(A).46 Having reviewed Ex Parte Annex
E, the Appeals Chamber is satisfied that the Prosecution’s judgement that
it does not contain Rule 68 material has not been an abuse of its discretion.
DISPOSITION
- The Appeals Chamber partially GRANTS Kordic’s Motion, in that it
finds that :
(I) File pages 7277-7259 and file pages 7227-7199 of the Prosecution’s "Confidential
Ex Parte Annex B" and Annex B to "Prosecution’s Ex-Parte Filing
Regarding Motion by Kordic for Disclosure of Unredacted Interviews with Witness ‘AT’"
contain additional material falling within its Rule 68 obligation of disclosure,
and
(II) Prosecution’s Ex Parte Annex D1 and D2 also fall within Rule 68.
and ORDERS the Prosecution to inform the Appeals Chamber within 10 days
following the filing of the present Decision as to whether it seeks further
protective measure prior to disclosing the material in question to Kordic and,
if so, the nature of the protective measures it seeks.
The Appeals Chamber will make an order for further disclosure by the Prosecution
, as well as a scheduling order for Kordic to file any Rule 115 Motion, when
the Prosecution has complied with this order.
Done in both English and French, the English text being authoritative.