IN THE TRIAL CHAMBER
Before: Judge Gabrielle Kirk McDonald, Presiding
Judge Ninian Stephen
Judge Lal C. Vohrah
Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh
Decision of: 9 October 1996
ZDRAVKO MUCIC also known as "PAVO"
ESAD LANDZO also known as "ZENGA"
DECISION ON THE MOTION ON THE EXCLUSION AND
RESTITUTION OF EVIDENCE AND OTHER MATERIAL
SEIZED FROM THE ACCUSED ZEJNIL DELALIC
The Office of the Prosecutor:
Mr. Eric Ostberg
Ms. Teresa McHenry
Counsel for the Accused:
Ms. Edina Residovic, for Zejnil Delalic
Pending before this Trial Chamber of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law in the Territory of the Former Yugoslavia since 1991 ("International Tribunal") is a Motion for the Exclusion of Evidence filed on 28 May 1996 on behalf of the accused, Zejnil Delalic, and supplemented by a further filing on 5 June 1996 of a Preliminary Motion for the Exclusion of Evidence ("Supplementary Motion"). The Office of the Prosecutor ("Prosecution") filed its Response on 28 June 1996 ("Response").
This Decision deals with these two defence motions ("Motions"). Together, these Motions request: (a) the exclusion from evidence of the interview of the accused Zejnil Delalic by the Prosecution on 18 and 19 March 1996; and (b) the exclusion from evidence of all documents, video tapes and other objects seized from the accused Zejnil Delalic or belonging to him, from the offices and living quarters of the accused in Germany and the offices of the BH Society in Austria.
THE TRIAL CHAMBER, HAVING CONSIDERED the written submissions and the oral arguments of the parties,
HEREBY ISSUES ITS DECISION.
1. The Motion for the Exclusion of Evidence relates to two events. The first event was the questioning of the accused Zejnil Delalic by two investigators assigned to the Office of the Prosecutor in Munich on 18 and 19 March 1996. According to the Defence, this evidence should be excluded for violations, in the obtaining of this evidence, of the rights of the accused in accordance with Rules 42 and 43 of the Rules of Procedure and Evidence of the International Tribunal ("Rules").
2. The second event was the seizure of certain items in Munich and Vienna. According to the Defence, on request of the Prosecution, the authorities of the Federal Republic of Germany and of the Republic of Austria seized from the apartment of the accused Zejnil Delalic in Munich and from the offices of the BH Society in Vienna respectively, a large quantity of objects and documents belonging to Zejnil Delalic and to third parties. The items seized include video tapes, which were the property of the BH Society in Vienna, as well as business documents and the archives of firms co-owned or managed by the accused Zejnil Delalic, including personal documents of employees.
3. The Supplementary Motion contains the submissions of the Defence as to the seizure. This is a preliminary motion pursuant to Sub-rule 73(A)(iii), and as such relates to "applications for the exclusion of evidence obtained from the accused or having belonged to him". According to the Defence, the evidence seized should be excluded on the ground that it was obtained from or belonged to the accused.
4. The Prosecution opposes each of the Motions. In relation to the Motion for the Exclusion of Evidence, the Prosecution has submitted in its Response that at all times the accused Zejnil Delalic was aware that he had been arrested, and was being questioned on the ground that he was suspected of war crimes by the Office of the Prosecutor, which had forwarded a request for provisional arrest pursuant to Rule 40, to the German authorities, and that, as such, no violation of Sub-rules 42(A) or 42(B) occurred.
5. At a status conference held on 29 May 1996, the Prosecution indicated that all materials seized from the accused Zejnil Delalic had already been inspected by the Defence. The Prosecution conceded that some of the material may be irrelevant, and that investigators were in the process of reviewing all seized material in order to be able to return all "irrelevant" material to the accused. Both Parties are aware of the nature of the material seized.
B. Applicable Provisions
6. According to the Motion for the Exclusion of Evidence, Rules 42 and 43 were breached in the conduct of the interview of the accused Zejnil Delalic, by investigators from the Office of the Prosecutor, on 18 and 19 March 1996. These Rules deal with the rights of a suspect in the conduct of such an interview and provide:
Rights of Suspects during Investigation
(A) A suspect who is to be questioned by the Prosecutor shall have the following rights, of which he shall be informed by the Prosecutor prior to questioning, in a language he speaks and understands:
(i) the right to be assisted by counsel of his choice or to have legal assistance assigned to him without payment if he does not have sufficient means to pay for it;
(ii) the right to have the free assistance of an interpreter if he cannot understand or speak the language to be used for questioning; and
(iii) the right to remain silent, and to be cautioned that any statement he makes shall be recorded and may be used in evidence.
(B) Questioning of a suspect shall not proceed without the presence of counsel unless the suspect has voluntarily waived his right to counsel. In case of waiver, if the suspect subsequently expresses a desire to have counsel, questioning shall thereupon cease, and shall only resume when the suspect has obtained or has been assigned counsel.
Recording Questioning of Suspects
Whenever the Prosecutor questions a suspect, the questioning shall be audio-recorded or video-recorded, in accordance with the following procedure:
(i) the suspect shall be informed in a language he speaks and understands that the questioning is being audio-recorded or video-recorded;
(ii) in the event of a break in the course of the questioning, the fact and the time of the break shall be recorded before audio-recording or video-recording ends and the time of resumption of the questioning shall also be recorded;
(iii) at the conclusion of the questioning the suspect shall be offered the opportunity to clarify anything he has said, and to add anything he may wish, and the time of conclusion shall be recorded;
(iv) the tape shall then be transcribed as soon as practicable after the conclusion of questioning and a copy of the transcript supplied to the suspect, together with a copy of the recorded tape or, if multiple recording apparatus was used, one of the original recorded tapes; and
(v) after a copy has been made, if necessary, of the recorded tape for purposes of transcription, the original recorded tape or one of the original tapes shall be sealed in the presence of the suspect under the signature of the Prosecutor and the suspect.
7. Sub-rule 42(A)(ii) and Sub-rule 42(B) are based on the rights of a suspect enshrined in Article 18(3) of the Statute of the International Tribunal ("Statute"). According to Article 18(3):
Investigation and Preparation of Indictment
3. If questioned, the suspect shall be entitled to be assisted by counsel of his own choice, including the right to have legal assistance assigned to him without payment by him in any such case if he does not have sufficient means to pay for it, as well as to necessary translation into and from a language he speaks and understands.
1. Motion for the Exclusion of Evidence: Interview of 18 and 19 March 1996
(a) Sub-rule 42(A)
8. Sub-rule 42(A) sets out the rights of a suspect who is to be questioned by the Prosecutor and establishes the duty of the Prosecutor to inform a suspect of these rights prior to questioning. According to the transcript of the interview with the accused Zejnil Delalic in Munich, Germany on 18 and 19 March 1996 ("Transcript of Interview"), after the accused Zejnil Delalic had identified himself and before further questioning had occurred, an investigator read out verbatim, in the presence of the accused Zejnil Delalic, the words of Rule 42. The interviewer then asked the accused Zejnil Delalic whether he understood these rights, to which the accused Zejnil Delalic answered in the affirmative. The interviewer then read out Rule 43 and asked the accused Zejnil Delalic if he had any questions regarding the Rules. It may thus be seen from the Transcript of Interview that the accused had been informed of the rights of a suspect, pursuant to Rule 42 and 43, before being questioned.
9. It is however the contention of the Defence that "[a]lthough the Rule does not specifically say so, we believe that a fundamental right of the suspect is to be told in what capacity he is being questioned." Motion for the Exclusion of Evidence at ¶2.
10. The Defence relies, in relation to its submission on Sub-rule 42(A), on Rules 55 and 62, and Articles 20 and 21 of the Statute. Rule 55 (Execution of Arrest Warrants) and Rule 62 (Initial Appearance of the Accused) make provision for informing the relevant person (in the case of these two Rules, the accused) of his rights. In this way, Rules 55 and 62 which, it must be pointed out, only apply to an accused and not to a suspect, serve a similar function to Rules 42 and 43. They do not however provide any assistance to the Defence as neither Rule provides for informing the person of his status. Such a status is presumably to be implied from the context in which the accused is to be so informed, if not the mere fact of being so informed. Article 20, which also only applies to an accused, requires that, upon having been taken into custody, he be "immediately informed of the charges against him" and that the Trial Chamber satisfy itself that these rights are respected and that the accused understands the indictment. Article 21, which spells out the rights of an accused, includes, amongst other things, a requirement to provide prompt and detailed information on the nature and cause of the charges against that accused. Again, neither of these Articles assist the Defence as they do not require that the relevant person be informed of his status, which may be implied from the context in which the accused is informed or the act of so informing the accused.
11. Although it is true that at no stage in the Transcript of Interview did the interviewer expressly inform the accused Zejnil Delalic of his status as a suspect, the interviewer did however inform Zejnil Delalic that the rights he was reading out pursuant to Rule 42 "deal[t] with the rights of suspects during investigation." He then proceeded to ask the accused whether he understood those rights. Similarly, when referring to Rule 43, the interviewer stated that the Rule "deals with the recording and questioning of suspects." This was sufficient to inform Zejnil Delalic that he was a suspect and that the purpose of reading out those Rules was to ensure that he was aware of his rights as such. Accordingly, the Trial Chamber finds that there was no violation during the conduct of this interview of the rights of the accused pursuant to Sub-rule 42(A).
(b) Sub-rule 42(B)
12. In relation to the rights of the accused pursuant to Sub-rule 42(B), the Motion for the Exclusion of Evidence relied in part on the same argument considered above in relation to Sub-rule 42(A). To the extent that the argument applies here, the Defence has failed to show that there has been any violation of the rights of the accused. Before turning to the substance of the arguments of the Defence on this point, the Trial Chamber notes that, at one point in the Motion for the Exclusion of Evidence, the Defence alludes to the failure on the part of the interviewers to inform the accused Zejnil Delalic, as a suspect, of the "Facts on which [their] suspicions were based." There is nothing in Rule 42 or in any other Rule which requires such disclosure at that stage of the investigation. All that is necessary under Rule 42 is that the suspect be informed of his rights as set out in that Rule.
13. The Defence makes two further arguments in relation to Sub-rule 42(B). The first argument is that:
The fact that a person is suspected of serious violations of international humanitarian law, for which most national legislations provide the most serious penalty, requires that in the interests of justice the suspect is not only informed, but also questioned, in the presence of a defence counsel.
Motion for the Exclusion of Evidence at ¶ 3. The Rules guarantee to suspects the right to counsel during questioning by the Prosecutor, but also set out the conditions of any waiver of that right. It seems clear from the Transcript of Interview that Zejnil Delalic had indeed waived that right explicitly and voluntarily in conformity with his right to do so under Sub-rule 42(B).
14. The second argument is that, on the second day of interview (19 March 1996), the accused Zejnil Delalic did request that counsel be present for any further questioning but that questioning continued despite this. It is apparent from the Transcript of Interview at Registry Page D586 that the accused was asked whether it would be acceptable to him if the interview continued until a defence counsel arrived. To this the accused replied in the affirmative. The accused was also reminded that he could change his mind at any time. As such, it cannot be said that the interview continued in violation of Sub-rule 42(B).
(c) Rule 43
15. In relation to the arguments of the Defence pursuant to Rule 43, the Motion for the Exclusion of Evidence alleges that at some stage during a break in the recording further information was obtained from the accused Zejnil Delalic, and that such information formed the basis of subsequent questions. If this were so, that would amount to an irregularity in the procedure. Whether or not such an irregularity took place, the Defence would have to make a showing that such an irregularity has led to a violation of the rights of the accused Zejnil Delalic that warrants the exclusion of the evidence. For that purpose, and in the event that the Transcript of Interview is tendered as evidence at trial, the Defence may object to its admissibility under Rule 89 or Rule 95. At this stage, while the Transcript of Interview has not been tendered into evidence, and until the Defence makes a showing that it should be excluded, the Motion for the Exclusion of Evidence shall be denied.
2. The Supplementary Motion
16. The Supplementary Motion is concerned inter alia with the seizure of various items from the apartment of the accused Zejnil Delalic in Munich and the offices of the BH Society in Vienna. For the sake of convenience, and as any order would be the same regardless of the source of such evidence, the Trial Chamber will proceed to deal with all of the evidence seized.
17. At the status conference of 29 May 1996, the items seized in Munich and Vienna by the German and Austrian authorities respectively, which were handed over to the Prosecution, were discussed. Some of this evidence would appear to have no relevance to current or anticipated proceedings in respect of the accused Zejnil Delalic before the International Tribunal. This material has been in the hands of the Prosecution since before the status conference of 29 May 1996. The Presiding Judge directed Defence Counsel at that time to meet with the Prosecution and, if difficulties arose, to file a motion, at which point the Trial Chamber would assist the Defence. It is the order of this Trial Chamber that the Prosecution return to the accused such evidence as belonged to the accused or was obtained from him, whether from the apartment in Munich or the offices of the BH Society in Vienna, where that evidence is not relevant to the charges against the accused. The Defence is advised to make further application to this Trial Chamber upon the failure, if any, of the Prosecution to deliver any such evidence into the custody of the Defence.
For the foregoing reasons,
the Trial Chamber,
pursuant to Rule 72,
HEREBY DENIES the Defence Motion for the Exclusion of Evidence and the Preliminary Motion for the Exclusion of Evidence; and
DIRECTS the Prosecution to return to the accused such items of evidence as were seized from, or belonging to, the accused Zejnil Delalic which are not material to the preparation of its case.
Done in English and French, the English text being authoritative.
Gabrielle Kirk McDonald
Dated this ninth day of October 1996
At The Hague
[Seal of the Tribunal]