Case No.: IT-00-39-T
IN THE TRIAL CHAMBER
Judge Alphons Orie, Presiding
Judge Amin El Mahdi
Judge Joaquín Martín Canivell
Mr Hans Holthuis
16 February 2004
DECISION ON THE DEFENCE’S MOTION TO PRECLUDE MIROSLAV DERONJIC
FROM GIVING TESTIMONY PRIOR TO BEING SENTENCED
Office of the Prosecutor
Mr Mark Harmon
Mr Alan Tieger
Mr Nicholas Stewart
Ms Chrissa Loukas
- On 10 February 2004 this Trial Chamber ("the 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 ("the Tribunal") was seized of
a "Defence Motion to Exclude the Evidence of Miroslav Deronjic or in
the Alternative to Preclude his Testimony Prior to Being Sentenced" ("the
Motion"). The Prosecution, responding on the same day, requested that
the Motion be denied. On 11 February the Defence informed the Chamber that
it was withdrawing that part of the Motion which called for the complete exclusion
of Deronjic’s testimony. The parties then made brief oral submissions on the
matter. The Chamber announced its decision to deny the Motion on 12 February,
and Deronjic began giving testimony on the same day.
- On 30 September 2003, Miroslav Deronjic pleaded guilty before Trial Chamber
II of the Tribunal. His indictment does not mention the accused in the present
case, Momčilo Krajišnik. Conversely, Krajisnik’s indictment makes no
reference to Deronjic. Deronjic is to be sentenced by Trial Chamber II in
due course. He has, since his guilty plea, testified as a Prosecution witness
in four Tribunal cases, not counting the present one, an indication that the
practice of the Tribunal is to allow a convicted person awaiting sentence
to testify. The Motion does not take issue with the practice in relation to
Deronjic prior to this case. It refers instead to a passage from the Kordic
and Cerkez judgement of this Tribunal, whose result does not support the
Defence’s position, and to remarks of a Tribunal judge, made in the course
of a guilty-plea hearing, noting that a Trial Chamber may treat the testimony
of a convicted person awaiting sentence with suspicion. This also does not
compel the conclusion that Deronjic’s testimony should be postponed. The Motion
thereafter cites a scholarly commentary which claims that the evidence of
a co-perpetrator or an accomplice is generally admissible before the Tribunal
without corroboration, but must be treated with caution unless supported by
other evidence. This does not advance the Defence’s argument, even if Deronjic
and Krajisnik could be said to be co-perpetrators or accomplices, which on
the face of their indictments – and barring a very extended sense of the terms
– they can not.
- The Motion also looks for support in the case-law of two national jurisdictions
dealing with the use of accomplice evidence in jury trials. The Tribunal is
of course not bound by the rules and practices of national jurisdictions,
although they are accorded persuasive value in certain circumstances.
- Pipe, the first English case cited by the Defence, is distinguishable
on several grounds. The prosecution had called S to testify against the appellant.
In S’s account he had helped the appellant hack open and then dump a safe
which the latter had stolen from a house. By this stage a charge had been
brought against S and criminal proceedings were due to begin. There had been
no guilty plea. Lord Chief Justice Parker said that "for years now it
has been the recognised practice that an accomplice who has been charged,
either jointly charged in the indictment with his co-accused or in the indictment
though not under a joint charge, or indeed has been charged though not brought
to the state of an indictment being brought against him, shall not be called
by the prosecution, except in limited circumstances." None of the three
above-mentioned situations corresponds to the situation in the present case.
The Lord Chief Justice went on to say that in practice an accomplice may be
called where the prosecution has omitted him from the indictment, or where
a plea of guilty has been entered. Both conditions are true in the present
- The Defence also referred the Chamber to the later English case of Turner.
In Turner Lord Justice Lawton, delivering the main opinion of the Court
of Appeal, confirmed the long-standing position that "at common law an
accomplice who gave evidence for the Crown in the expectation of getting a
pardon for doing so was a competent witness." He noted that the nineteenth-century
rule of practice that judges should warn juries of the dangers of convicting
on the uncorroborated evidence of accomplices had become a rule of law by
the twentieth century. He then addressed, and dismissed, a claim made by one
of the appellants that Pipe had brought about a change in the rule
of law as to the competency of accomplices: "[Pipe] is confined
to a case in which an accomplice, who has been charged, but not tried, is
required to give evidence of his own offence in order to secure the conviction
of another accused. Pipe on its facts was clearly a right decision.
The same result could have been achieved by adjudging that the trial judge
should have exercised his discretion to exclude [S’s] evidence on the ground
that there was an obvious and powerful inducement for him to ingratiate
himself with the prosecution and the Court and that the existence of this
inducement made it desirable in the interests of justice to exclude it."
- Both Pipe and Turner, and, finally, Booth – an Australian
authority cited by the Defence – are cases where accomplice evidence was critical.
The cases stood or fell on the admissibility, and credibility, of the accomplice’s
evidence (Booth involved two accomplices). As observed by Justice Lee
in Booth, in such cases, "The trial judge is expected to bring
home to the jury that it is dangerous to convict on the uncorroborated evidence
of such a witness; and this direction has the consequence that the witness
is, in a real sense, held up as a witness whose testimony is suspect."
It is in this context, in which an accomplice’s uncorroborated testimony potentially
founds a conviction, that the following comment of Justice Lee, quoted by
the Defence, must be understood: "In this State, the practice is, when
the Crown intends to call an accomplice, for the judge to sentence the accomplice,
if he is charged, and to do that before he is called; and I would say that
that practice is one which should be followed in all cases, unless there are
the most cogent reasons for not so doing."
- In summary, the Motion has established only that in jury trials in which
everything hangs on an accomplice’s uncorroborated evidence the jury must
be warned about the inducement to lie; and that, where the inducement is very
powerful, it is within a judge’s discretion to preclude the witness from testifying.
The Chamber has no reason to doubt these propositions, yet does not see how
they assist the Defence, considering that the fact-finders in the present
trial are professional judges, that Deronjic is one among a very large number
of Prosecution witnesses, that there is much room for his testimony to be
corroborated or contradicted, that the scrutiny of his testimony is such that
the inducement to tell the truth would be at least as powerful as the inducement
not to, and that any sentencing benefit he might expect from ingratiating
himself with the Prosecution through dishonest or inaccurate evidence is countervailed
by the threat of a longer sentence should such scheming come to light in questioning.
- The Chamber also notes the supporting jurisprudence of the European Commission
and Court of Human Rights, as cited by the Prosecution.
- While the Defence claims (without justification, in the Chamber’s view)
that Deronjic “has an obvious and powerful inducement to lie”, the Chamber
is also aware of the Defence’s lesser submission, that any existing
amount of inducement could be removed, quite simply, by postponing Deronjic’s
testimony until such time as he has been sentenced. While it is possible to
do so, the Prosecution does not seem to mind the extra degree of suspicion
and scrutiny which will be brought to bear on its witness.
- The Chamber’s position therefore is that there is no legal impediment to
hearing Deronjic in the present circumstances. The Chamber expects the witness
to testify truthfully, in accordance with his solemn declaration. The Chamber
recognizes that a person in Deronjic’s position might be tempted to improve
his chances before the sentencing panel by giving untruthful evidence to this
Chamber that significantly assists the Prosecution’s case. But he cannot be
unaware of the dangers of this course. The Chamber will in any event exercise
particular caution in scrutinizing, weighing up, and finding corroboration
for the evidence that Deronjic places before it. And it will closely control
the examination of the witness.
FOR THE FOREGOING REASONS,
PURSUANT TO RULE 73 OF THE TRIBUNAL’S RULES OF PROCEDURE AND EVIDENCE:
DENIES the Motion.
Done in English and French, the English text being authoritative.
Dated this 16th day of February 2004
At The Hague
[Seal of the Tribunal]