Case No. IT-03-66-T

Before:
Judge Kevin Parker, Presiding
Judge Krister Thelin
Judge Christine Van Den Wyngaert

Registrar:
Mr. Hans Holthuis

Order of:
25 April 2005

The Office of the Prosecutor:

Mr. Alex Whiting
Mr. Julian Nicholls
Mr. Milbert Shin
Mr. Colin Black

Counsel for the Accused:

Mr. Michael Mansfield Q.C. and Mr. Karim A. Khan for Fatmir Limaj
Mr. Gregor Guy-Smith and Mr. Richard Harvey for Haradin Bala
Mr. Michael Topolski Q.C. and Mr. Steven Powles for Isak Musliu

1. By motions,¹ the Prosecution is seeking the admission, as substantive evidence, of video-recordings (with transcripts ) of the interviews given to representatives of the Office of the Prosecutor (“OTP ”) by two witnesses, Ramadan Behluli and Shukri Buja, who were called to testify for the Prosecution in the present case and gave oral evidence inconsistent in some material respects with what they had previously said in the course of the interviews. The video-recordings and the transcripts were admitted into evidence solely for the purpose of assessing the credibility of the witnesses.² By these motions, the Prosecution seeks to rely on the contents of the video-recordings as substantive evidence.

2. The circumstances which give rise to the motions by the Prosecution for the admission of the two video-recordings are not usual. They have some relevance to the outcome of the motions. Both Ramadan Behluli and Shukri Buja had been interviewed at some length by representatives of the OTP. The interviews had been conducted quite independently of each other on 25 and 28 April 2003, well before this trial. In their respective interviews, each of the two witnesses gave quite detailed accounts of events and circumstances material to this trial.

3. When called to give evidence as a Prosecution witness, each of the two witnesses gave oral evidence which differed in some respects from what had been said by the witness during the earlier interview with the OTP. Further, in other respects, the evidence of each witness given in this trial omitted matters which had been mentioned by the witness during the earlier interview with the OTP. The differences and omissions were, generally, material to the Prosecution case. The effect was that the oral evidence given by each witness during examination-in-chief was significantly less favourable to the Prosecution than the earlier interview with the OTP.

4. In respect of each of the two witnesses, the Prosecution moved, in the course of examination-in-chief, for leave to cross-examine the witness on the ground of hostility. The Chamber was persuaded, in the particular circumstances applicable to each witness, that it appeared that the witness was not prepared to speak the truth at the instance of the Prosecution, i.e the party who had called the witness. Each witness was treated as “hostile” and leave was given to the Prosecution to cross-examine on the previous interview.³ This was done at some length. Each witness was also cross-examined, both generally and with respect to the previous interview, by Defence counsel.

5. Each witness readily agreed that he had been interviewed by the OTP in April 2003 and, subject to a few particular issues, each witness accepted the relevant video-recording as depicting what had transpired during that witness’ interview. Each witness also accepted that he had (generally) sought to tell the truth during the interview. Each witness maintained, however, that he now believed that what was said in the April 2003 interview was mistaken in some respects.

6. By the process of cross-examination by Prosecution and Defence counsel, the material differences between the evidence given by the witness before the Chamber, and what had been said at the interview with the OTP in April 2003, were identified. Explanations were given by each witness for the differences and these explanations were tested by cross-examination.

7. It is in this context that the Prosecution then moved, in respect of each of the two witnesses, that the video-recording (with transcript) of the April 2003 interview by the OTP with that witness should be received in evidence, not only for the purpose of assessing the credit of the oral evidence given by that witness in the trial, but also as evidence of the truth of what was said during the April  2003 interview of that witness, i.e as substantive evidence.

8. These procedural and evidentiary issues would not have arisen in a civil legal system.⁴ While detailed procedures inevitably vary between jurisdictions, in general terms, in a civil system, witnesses would be called and questioned under the control of the court rather than of the parties, and the court would have available to it any previous statements of the witness. While the procedure and evidentiary system of this Tribunal represents an attempt to blend elements of both civil and adversarial systems, it remains primarily adversarial. Hence, in contrast to the position normally found in a civil system, it is the parties who, in turn, call and question “their” respective witnesses, who are then cross-examined by the other party (or parties). Further, the Tribunal does not normally have before it any previous statement of a witness, although an inconsistent previous statement may be put to a witness by an opposing party in cross-examination. It is in this adversarial or common-law context that the notion arises of a witness who is “hostile” to the party who calls the witness.

    

9. At common-law the traditional position is clear. Where a witness is declared to be “hostile” by the court, and leave is given to cross-examine a party’s own witness on a previous inconsistent statement, the contents of that previous inconsistent statement may only be received in evidence and used for the purpose of assessing the credit of the witness and deciding whether or not to accept all or any of the evidence given orally in the trial by the witness. Unless the witness, in oral evidence, changes his position and adopts as true what was said in the previous inconsistent statement, the contents of the previous inconsistent statement may not be received and used as substantive evidence in the trial.⁵

10. Thus, the traditional common-law position is that neither the April 2003 interview of Ramadan Behluli, nor that of Shukri Buja, could be received and used as substantive evidence in the trial in the present circumstances. Essentially, it is the position of each witness that while he sought to answer the questions put to him by the OTP in April 2003 honestly, he now realises that in some respects he was mistaken in his answers and the true position is that detailed in his oral evidence given before the Chamber.

11. The primary submission for the Defence⁶ is in keeping with the traditional common-law position. It is argued that the only “evidence” of each witness is that given orally before the Chamber. The effect of the evidence of each of the witnesses is that the previous interview contains identified errors. How the errors occurred has been explained and the present belief of the witness has been detailed in oral evidence together with the reasons advanced by the witness for now holding his present belief.

12. The Prosecution essentially submits that the Chamber is in a somewhat unique position, especially because the previous interviews were video-recorded, of being able to evaluate not only whether each of the two witnesses is now telling the truth when he says that his present belief is that his April 2003 interview contains the identified errors, even though he then thought his answers were true, but also whether his present oral account of the material issues is true or the account given to the OTP in April 2003. In support of its motions, the Prosecution submits that the traditional common-law position should not be followed because it is founded heavily on the common-law’s objection to hearsay evidence, whereas hearsay, at least if apparently reliable, is admissible before this Tribunal, and because the procedure and evidence applied in this Tribunal is a blending of both civil and adversarial systems.

13. The submissions of both the Prosecution and Defence accept that there is no provision of the Rules which expressly deals with the question raised whether a previous inconsistent statement of a witness may be admitted in evidence in the present circumstances, and if so for what purposes. Nor does the Statute provide any clear guidance. The parties point to the absence of any general principle of law governing the matter. Essentially, the Defence submits that there is no general principle of law allowing for the admission of prior inconsistent statements as substantive evidence, ⁷ while the Prosecution contends that there is no general principle favouring the adoption of a rule against their admission into evidence.⁸

14. The submissions of the parties also proceeded in part on the basis that the video-recordings made of the interviews of each of the two witnesses might be regarded as a written statement within the meaning of the Rules. Rather than spending time on whether that is a correct understanding of the Rules, it is convenient for present purposes to discuss some issues on that basis.

15. Rule 92bis of the Rules allows for the admission of “the evidence of a witness in the form of a written statement in lieu of oral testimony” where such evidence does not go to the acts and conduct of the accused as charged in the indictment. Rule 92bis is concerned with one very specific type of hearsay, i.e written statements given by prospective witnesses for the purposes of legal proceedings.⁹ It is designed to expedite the proceedings on matters that are not pivotal to the case, by avoiding the need to call and examine the witness and admitting his or her written statement as substantive evidence in lieu of his or her oral evidence. This is not the case here. Ramadan Behluli and Shukri Buja were both called as witnesses by the Prosecution and testified in court. There was no attempt to prevent them from giving full oral evidence or to circumvent cross-examination by the Defence. Indeed, both witnesses were questioned at length on the existence of their prior interviews, and on their respective reasons for having departed from them in their evidence.

16. Reasoning of the Appeals Chamber indicates that the mere existence of Rule 92bis does not preclude the receipt into evidence of a statement of a witness which does not comply with its requirements, i.e of a statement which goes to the acts and conduct of the accused.¹⁰ The Appeals Chamber has stated that, as a matter of law, Rule 89(F) allows for the admission of a written statement which does not meet the requirements set out in Rule 92bis provided that the witness is present in court, available for cross -examination and able to attest that the statement accurately reflects his or her declaration and what he or she would say if examined.¹¹ Nevertheless, on the Appeals Chamber’s reasoning, while the fact that such statement relates to acts and conduct of the accused is a factor that a Chamber may, in the exercise of its discretion, consider in determining whether to admit it into evidence or the weight which ought to be attached to it, it does not render the statement inadmissible in law.¹² The issue, however, is different in the present case. The prior out-of-court interviews of Ramadan Behluli and Shukri Buja are not submitted for admission into evidence in order to avoid lengthy evidence-in chief during which the witnesses would essentially reiterate the content of their respective prior statements. The issue before the Chamber is that of witnesses who were called and gave oral evidence which canvassed the relevant events fully, but who, for reasons which appeared to the Chamber to involve an unpreparedness to tell the truth, disavowed in part what they had previously stated during their respective out-of-court video-taped formal interviews. These are very specific circumstances which are unlikely to arise frequently. They are not within the scope of Rule 89(F).

17. Thus, even if it were to be accepted that the previous video-recordings are to be regarded as written statements (which the Chamber does not decide), the issue of the admissibility of each of these prior interviews is not to be determined under either Rule 92bis or Rule 89(F). Rather, it is necessary to turn to the general rules of evidence and the jurisprudence applicable to hearsay evidence. It is well -settled in the Tribunal’s jurisprudence that hearsay evidence is admissible under Rule 89(C) provided that it is relevant and has probative value.¹³ Where hearsay evidence is sought to be admitted to prove the truth of its content, a Chamber must be satisfied that the evidence is reliable for that purpose, and in doing so, may consider both the content of the evidence and the circumstances under which it arose.¹⁴ As formulated by the Appeals Chamber, a “piece of evidence may be so lacking in terms of the indicia of reliability that it is not “probative” and is therefore inadmissible.”¹⁵

18. As has been noted earlier, the traditional common-law position is that evidence of the prior inconsistent interviews of Ramadan Behluli and Shukri Buja could only be admitted for the purposes of impeaching the witnesses’ credibility but not to prove the truth of their content. This position, however, cannot be accepted as determinative in the present case for several reasons. First, the traditional common -law position is strongly derived from its aversion to hearsay, which is inadmissible in most situations as substantive evidence. As discussed above, such objection has not the same force before this Tribunal as hearsay evidence may be received as substantive evidence provided that it is relevant and sufficiently reliable so as to be considered probative. A further justification which is often advanced for the traditional common -law position is that typically the factual determination of a case will be made by a jury. The difficulty of evaluating and weighting hearsay evidence, as against inconsistent oral testimony given in the presence of the jury, has been perceived traditionally to be too complex for a jury. This objection is of limited force in this Tribunal where the factual determination is to be made by a bench of three judges.

19. Moreover, in many common-law jurisdictions, there has been a profound change of attitude to the admissibility of hearsay evidence, especially in circumstances such as the present. In the United Kingdom, Section 119 of the Criminal Justice Act of 2003, which is anticipated to come into effect in the near future, provides that a prior inconsistent statement by a witness “is admissible as evidence of any matter stated in it of which oral evidence by that person would be admissible.” In the United States federal system, the hearsay limitation does not apply to prior statements made by witnesses under oath and such statements are capable of being used as substantive evidence.¹⁶ Further, a growing number of State jurisdictions in the United States are permitting the use of unsworn prior inconsistent statements for their substantive value and not merely for impeachment purposes.¹⁷ Section 60 of Australia’s Uniform Evidence Act of 1995 which applies in federal jurisdiction as well as in the state courts of New South Wales and Tasmania is set out below.¹⁸ In the view of the High Court of Australia, this provision is intended to allow for prior inconsistent statements to be admitted for the truth of their contents.¹⁹ There is provision to similar effect in the State of Queensland.²⁰ It appears, therefore, that the traditional common-law position with respect to hearsay evidence is undergoing fundamental change in many leading jurisdictions. The effect of this change is to remove what had been the fundamental obstacle to the admission in evidence of a prior inconsistent out-of-court statement of a witness who is called to give evidence in a trial.

20. There is a further way in which Rules of this Tribunal bear on the present issue. As originally drafted, the Rules of this Tribunal reflected the view that the evidence of a witness was the oral testimony given by that witness. Progressively, by process of amendment, there has been a shift away from that view towards an acceptance that, at least in some situations, the evidence of a witness may be received although not given orally before the Tribunal. Thus the Rules no longer provide for the invariable view that the evidence of a witness must be given orally. In the present case, therefore, a critical issue is whether Rule 89(C) would allow the receipt, as substantive evidence, in the present circumstances, of the video -recordings of the April 2003 interviews of the two witnesses.

21. It is necessary, therefore, to examine whether the prior interviews given by Ramadan Behluli and Shukri Buja fulfil the criteria under which they may be admitted as hearsay evidence for the truth of their contents, i.e whether they are relevant and of sufficient reliability to be accepted as probative (Rule 89(C)). The prior interviews are highly relevant to the present case, in particular as they relate to the position of Fatmir Limaj as a KLA commander in the relevant geographic area during the time material to the Indictment.

22. With respect to the issue of reliability, each interview was conducted with some formality. It was an official interview by the OTP. The whole interview was recorded by video equipment so that there is both a sound and a visual record of the interview of each witness. Interpreters were used, and the complete interpretation process, of both questions and answers, is revealed by the video recording. Further, the interpretations made during each interview have since been reviewed by interpreters of the Tribunal and an “officially accurate” transcript in English has been provided to the Chamber, so that it is possible to assess situations where any looseness of interpretation during the interview may have led to misunderstanding, either by the questioner or the witness. As each question and answer is recorded, it is also possible to assess any possible influence of the questioning on the answers of the witness. The video-recording of each interview also allows the Chamber to observe and assess the demeanour and credibility of the witnesses in April 2003.

23. The circumstances in which the material was presented and discussed in court provides further evidence of its reliability. The witnesses acknowledged in court, under oath, having given the prior interviews and generally having been truthful in doing so. Nevertheless, when questioned in court on the content of their interviews, each witness disavowed part of what he had previously said. In light of these inconsistencies, the relevant portions of the respective video-recording were played in court while the witness was giving evidence. The inconsistencies were fully tested, by both the Prosecution and the Defence, in oral evidence. The process whereby the evidence was presented and tested being essentially the same as with evidence in court, the Chamber is in a favourable position to determine not only whether each witness is telling the truth now, in court, but also whether the truth was told then, in the course of the April 2003 interview, or at neither time.

24. Quite distinct objections are also made to the admission of the video-recording of the interview with Shukri Buja. It is said that there were procedural irregularities and that undue pressure was brought to bear on Shukri Buja to give the interview and to answer particular questions.²¹ Reliance is placed on Rule 89(D) which provides that a Chamber may exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial, and on Rule 95 which states that no evidence shall be admissible if obtained by methods which cast substantial doubt on its reliability or if its admission is antithetical to, and would seriously damage, the integrity of the proceedings. The objection made is that the witness had reason to understand he was a suspect. Further, it is contended he should have been given an opportunity to “correct” his answers. Neither of these matters, however, suffices to cast substantial doubt on the reliability of what the witness said at the interview, nor would its admission damage the integrity of the proceedings or adversely affect the fairness of the trial. The alleged pressure exerted on the witness is based on circumstances which do not directly relate to the interview itself and there is nothing to suggest that during the interview the witness was under any undue pressure. Having viewed extensive parts of the interviews, the Chamber did not observe any indication of undue pressure on the witness during the interview. The witness was not afforded an opportunity to view the video-recording to “correct” his answers, but this is no different from the position of any witness following oral evidence in a trial.²² In any event, the statement is not being admitted to prove the guilt of the witness.

25. For the reasons given, the Chamber is persuaded that, in the very particular factual circumstances presented in this case, the two video-recordings are relevant and sufficiently reliable so as to have probative value in this trial. Therefore, under Rule 89(C), they may be admitted as evidence for the truth of their contents, i.e. as substantive evidence.

26. However, the word “may” in Rule 89(C) indicates that it is a matter of discretion whether to admit either or both of the video-recordings. Many of the matters already discussed also have a relevance to the exercise of this discretion. We will not discuss them further. On balance they favour the exercise of the discretion to admit the two video-recordings.

27. The Defence, however, argues against the exercise of discretion to admit, especially on the basis that this would lead to an erosion of the standard and burden of proof, and “is guaranteed to lead to miscarriages of justice.”²³ On analysis, this line of argument appears to be based on an unexpressed premise that all hearsay evidence is unsatisfactory and should be inadmissible. That evidence is in form hearsay does not necessarily deprive it of probative value or render it unsatisfactory. Its admissibility is firmly established by the jurisprudence of this Tribunal.²⁴ As discussed earlier, while this is contrary to the traditional view of the common-law, it is in keeping generally with the position in civil law jurisdictions and now in a growing number of common-law jurisdictions. Extensive experience in such jurisdictions suggests that the admission of hearsay evidence, per se, will not lead to miscarriages of justice as is submitted. It will be important, however, to evaluate with care the reliability of any hearsay evidence which has been admitted before reliance is placed on it for the purpose of establishing guilt.

28. It is also submitted by the Defence that to admit these video-recordings as substantive evidence is undesirable in principle because this would allow the Prosecution, in effect, to “cherry pick” its way through the evidence, relying only on that which most favoured its case, and to ignore the contrary oral evidence given by each of the two witnesses in the trial. This submission involves weighty issues that are at a watershed between civil and adversarial systems. The more that the Rules and jurisprudence of this Tribunal are altered to incorporate features of a civil law approach, the more issues of this nature will present difficulty. Because of the nature of the source of the difficulty, there is, and there can be, no universal or absolute principle which determines the answer in all cases. The particular circumstances presented by each case will be material. A just result in these circumstances must be sought.

29. Despite the amendments that have been made to the Rules with respect to the form of admissible evidence, oral evidence remains the primary and normal standard. It would not appear to be in the interests of justice for a practice to develop by which the Prosecution could readily seek to brush aside the oral evidence given in court of a Prosecution witness in favour of a disavowed earlier account of the witness. It is not the intended purport of this decision that an earlier account or statement of a witness should be admitted in evidence, as of course, at the instance of the party calling the witness to give oral evidence.

30. The present case illustrates, however, that there may be circumstances where an earlier inconsistent account of a witness may well assist the Chamber to evaluate not only the credit of a witness and the truthfulness of his or her oral evidence, but also whether he or she was being truthful in the earlier account and whether what was then said remains reliable despite the contrary oral evidence.

31. In the present case, both witnesses were considered by the Chamber to be hostile or adverse to the Prosecution, that is the witnesses appeared not to be prepared to tell the truth in oral evidence before the Chamber, when examined by the Prosecution. This involved an evaluation by the Chamber, inter alia, of the demeanour of each witness, the oral evidence of the witness to that stage, the terms of the previous account and the circumstances in which it was made.²⁵ In accordance with long-settled common law principles, much more than some material difference between the oral evidence and a previous account was required before the conclusion could be reached by the Chamber that apparently a witness apparently was not prepared to tell the truth in his oral testimony. Further, the formality and thoroughness of the earlier interview by the OTP of each witness, and the care taken to record the previous interview in a way which greatly facilitated its evaluation by the Chamber, were also material matters that influenced the decisions that each of these witnesses was “hostile”.

32. While the Prosecution had an indication that each witness had changed his position in the final proofing immediately before each witness was called to give evidence, the circumstances did not indicate to the Chamber that the Prosecution was seeking to ignore its responsibilities by calling a witness, who was in truth clearly opposed to its case, as a mere device to seek to tender the earlier inconsistent interview of that witness. Such conduct may well have warranted a refusal to exercise the discretion, under Rule 89(C), to admit the video-recordings.

33. Contrary to the thrust of this Defence submission, the outcome of this trial will not be determined by the way in which the Prosecution may choose to rely on aspects of the evidence in support of its case in its closing submissions. It will be for the Chamber to determine what weight, if any, it will eventually attach to either or both of these video-recordings when it comes to assess all the evidence at the final stage of the trial. Both the oral evidence of each witness and the earlier account on the video-recording will be before the Chamber. It will remain a most significant feature of this aspect of the evidence that each of the witnesses has changed his position and disavows his earlier account. That will demand the most careful scrutiny by the Chamber.

34. For these reasons, it appears to the Chamber that in these particular circumstances the interests of justice are in favour of the exercise of the discretion to admit both video-recordings as substantive evidence. The Chamber is persuaded that the video-recording of the 25 April 2003 interview of Ramadan Behluli and the video- recording of the 28 April 2003 interview of Shukri Buja, together with the transcripts of each video-recording, should be accepted as substantive evidence, i.e. as evidence of the truth of their contents, pursuant to Rule 89(C).

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

______________________
Judge Kevin Parker
Presiding

Dated this twenty-fifth day of April 2005
At The Hague
The Netherlands

[Seal of the Tribunal]