IN THE TRIAL CHAMBER
Before: Judge Adolphus G. Karibi-Whyte, Presiding
Judge Elizabeth Odio Benito
Judge Saad Saood Jan
Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh
Decision of: 1 September 1997
ZDRAVKO MUCIC a/k/a "PAVO"
ESAD LANDZO a/k/a ZENGA"
DECISION ON HAZIM DELICS MOTIONS PURSUANT TO RULE 73
The Office of the Prosecutor:
Mr. Grant Niemann
Ms. Teresa McHenry
Mr. Giuliano Turone
Counsel for the Accused:
Ms. Edina Residovic, Mr. Ekrem Galijatovic, Mr. Eugene OSullivan, for Zejnil Delalic
Mr. Zeljko Olujic, Mr. Michael Greaves for Zdravko Mucic
Mr. Salih Karabdic, Mr. Thomas Moran, for Hazim Delic
Mr. John Ackerman, Ms. Cynthia McMurrey, for Esad Landzo
I. PROCEDURAL AND FACTUAL BACKGROUND
Prior to the commencement of the trial in the present proceedings on 10 March 1997, the accused, Hazim Delic, made two statements to officials of the Office of the Prosecutor ("Prosecution") on 19 July 1996 and 7 January 1997 ("Statements"). The Prosecution informed this 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 ("International Tribunal") and the Defence on behalf of all four accused persons that the Statements and other statements made by the other three accused persons will form a part of its evidence during the trial (see "Annex to Opposition to Delics Motion for Relief From Waiver From Rule 73" (Official Record at Registry Page ("RP") D 3655 - D 3661) and "Prosecution Response Regarding the Admissibility of Statements of the Accused" (RP D 3203 - D 3211)).
On 8 May 1997, during the cross-examination of a Prosecution witness, Mr. Mladen Kuljanin, Judge Karibi-Whyte declared that only voluntary statements will be admitted into evidence. Subsequently, in reliance on this statement, the Defence for Hazim Delic ("Defence") through Counsel, Mr. Tom Moran, intimated to the Trial Chamber its intention to file a motion to request a hearing on the voluntariness of the Statements.
For this reason, the Defence presented for determination by the Trial Chamber two motions filed pursuant to Rule 73 of the Rules of Procedure and Evidence of the International Tribunal ("Rules") on 8 May 1997 (RP D 3600 D 3605) (jointly referred to as "Motions"). In the first one of the motions, the Defence seeks relief from its waiver of its right to file a motion to exclude the Statements from evidence while in the second motion, it seeks to exclude the Statements from evidence. The Prosecution filed an opposition to the Motions on 13 May 1997 (RP D 3633 D 3635) ("Opposition") and an annex to the Opposition on 14 May 1997 (RP D 3655 D 3661).
On 14 May 1997 both the Prosecution and the Defence ("Parties") argued their positions orally before the Trial Chamber. On the same date, having considered the written and oral arguments of the Parties, the Trial Chamber delivered an oral decision denying the Motions, reserving its written decision to a later date.
THE TRIAL CHAMBER HEREBY ISSUES ITS WRITTEN DECISION.
A. Applicable Provisions
1. The Defence seeks relief pursuant to Rule 73, the relevant portions of which are set out below.
Preliminary Motions by Accused
(A) Preliminary motions by the accused shall include:
(iii) applications for the exclusion of evidence obtained from the accused or having belonged to him;
(B) Any of the motions by the accused referred to in Sub-rule (A) shall be brought within sixty days after his initial appearance, and in any case before the hearing on the merits.
(C) Failure to apply within the time-limit prescribed shall constitute a waiver of the right. Upon a showing of good cause, the Trial Chamber may grant relief from the waiver.
2. Hazim Delics initial appearance was on 18 June 1996 and his trial on the merits commenced on 10 March 1997.
Analysis Rule 73
3. Rule 73 confers a right on the accused to bring preliminary motions. This is for the facilitation of the judicial process and for a more tidy arrangement in judicial proceedings. Rule 73 prescribes the preliminary motions which shall be brought within sixty days after the initial appearance of the accused, and in any case before the hearing of the case on merits. If no application is brought within the prescribed period, such inaction will constitute a waiver of the right. However, upon the showing of a good cause, the Trial Chamber will grant relief from the waiver. Thus preliminary motions are motions which fall within the purview of Sub-rule 73A and must be brought within sixty days of entering appearance or before hearing on the merits.
4. This rule is of deceptive simplicity. On a closer analysis a few difficulties in the interpretation of Sub-rule 73(C) can be discerned. The Trial Chamber has no difficulty with the provisions of Sub-rule 73(A)(iii), which are plain and unambiguous. It states clearly that "applications for the exclusion of evidence obtained from the accused or having belonged to him" are included in the preliminary motions for which applications may be made by the accused within the specified period prescribed in Sub-rule 73(B). Sub-rule 73(C) states that failure to comply with Sub-rule 73(B) shall constitute a waiver of the right conferred by Sub-rule 73(A), but vests a discretion on the Trial Chamber to grant relief from the waiver, upon the applicant showing good cause.
5. It seems to the Trial Chamber that the exercise of discretion is with respect to the waiver and not with respect to the relief. Thus where good cause is shown the Trial Chamber will exercise its discretion to allow an application to be brought notwithstanding that it was made more than sixty days after initial appearance and after the commencement of the hearing on the merits.
6. The most important hurdle in the compliance with Sub-rule 73(C) is the determination of what constitutes good cause to persuade the Trial Chamber to exercise its discretion in favour of the applicant. The phrase good cause used in Sub-rule 73(C) is an ordinary English expression commonly used in judicial legislation enabling the Judge in the exercise of his discretion where the applicant has lost or forfeited his right. The determination of the meaning of the phrase good cause is a question of fact depending upon the particular facts and circumstances of the case within the context of the rights in respect of which the application is brought. Accordingly, although it is difficult to prescribe a general rule as to what should constitute good cause it seems to the Trial Chamber that a combination of circumstances may be relevant. For instance, where the reason for the application would be defeated if the discretion is not exercised in favour of the applicant, the fact that the right pursued is very substantial and likely to succeed, or the delay is not inordinate will constitute a good cause for the exercise of discretion.
7. The exercise of the discretion in accordance with Sub-rule 73(C) is for a grant of relief from waiver of the right forfeited because the application was not brought within the period prescribed, that is, within sixty days after the initial appearance and before the hearing on the merits. The consequence of the exercise of the discretion and grant of relief from the waiver is to bring the applicant within the ambit of Sub-rule 73(B).
8. It is, therefore, the opinion of the Trial Chamber, that an application for preliminary motions can only be in respect of any of the matters prescribed in Sub-rule 73(A), or matters relating thereto. This enlarged construction is adopted because of the use of the word "include" in Sub-rule 73(A), which admits other applications coming within the purview of those prescribed. The intention of the Rule is to ensure a tidy judicial proceeding, hence the limitation of the period when the application should be brought. It follows therefore that any application which is not aimed at the preparation of the case for hearing on the merits does not fall within the contemplation of the Rule.
9. The application shall be brought within sixty days of entering of appearance or before hearing on the merits. This is an indication of the exercise of a right which has not been waived. If the application is brought outside the prescribed period the Trial Chamber has granted relief from waiver. These are the conditions which shall be satisfied before the right of the accused to bring a preliminary motion can be exercised.
10. Also of relevance to the determination of the Motions is Rule 42.
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.
(i) The Defence
11. The Defence admits that the motion to exclude the Statements was not brought within the period prescribed in Sub-rule 73(B). The good cause claimed why the Trial Chamber should exercise its discretion in favour of the Defence and grant relief from the waiver of its right under Sub-rule 73(A)(iii) is that the Statements are inadmissible because Hazim Delics waiver of his rights under Rule 42 was involuntary.
12. Mr. Tom Moran contends that his argument that statements are inadmissible if a suspects waiver of his rights under Rule 42 is involuntary is a logical extension of Judge Karibi-Whytes statement that involuntary statements are inadmissible. He declared that the assertion of Hazim Delic is that his waiver of his Rule 42 right to silence was involuntary in that he was unaware of the implications of making a statement at the time he waived his right under Rule 42.
(ii) The Prosecution
13. The Prosecution declares that the Motions are untimely. It asserts that the Defence has not shown good cause for a relief from its deemed waiver of its right to bring an application to exclude the Statements out of time. It maintains that Judge Karibi-Whytes statement of 8 May 1997 that involuntary statements are inadmissible, did not create new law. The notion that involuntary statements are inadmissible is incontrovertible and is indeed the basis of Rule 42. The Prosecution asserts, therefore, that the Defence contention that the legal proposition stated by Judge Karibi-Whyte is new is unmaintainable and should be rejected.
14. The Prosecution contends that the Defence has had ample opportunity to raise the issue of involuntariness prior to this time. It asserts that both Hazim Delic and his counsel were expressly informed of the relevant provisions of the Rules at the time the Statements were made and that the Rules are both clear and unambiguous.
15. The Trial Chamber considers it necessary to deal with the ingenious analogy on which the Defence claim of good cause is founded. The principle that confessions made by accused persons in the absence of their volition and arising from threats, inducement or hope of favour by persons in authority is inadmissible in evidence is well settled (see the English case of Ibrahim v The King [1914C A.C. 599). All such statements are made involuntarily. The reason for their exclusion is that the will of the maker of the statement is constrained, coerced or induced into making the statement. Such statements are therefore unreliable and ought not to be taken seriously in the making of a judicial determination. Mr. Morans contention is that when Hazim Delic waived his right to silence under Rule 42, he was unaware of the implications of making a statement.
16. There is no doubt that Hazim Delic made the Statements after waiving his right to silence voluntarily. The decision to waive was not compelled by force or induced by any advantage, or threat of any injury. Counsels contention is that if Hazim Delic had known of the implications of his Rule 42 waiver, he would not have waived them. Accordingly it was submitted that "his waiver of his Rule 42 rights was involuntary in the sense that he did not knowingly and intelligently waive those rights with the full understanding of the result of such waiver" (see RP 3603 at para. II).
17. The Trial chamber is essentially concerned here with the question of whether the Defence has established good cause why relief from the waiver of the right to bring a preliminary motion should be granted in this case. The Defence submission is that Hazim Delic waived his right to silence under Rule 42 involuntarily.
18. The correct appreciation of the facts on analysis is that Hazim Delic acted voluntarily in respect of the instructions read out to him. His perception of the facts as he understood them, as counsel submitted, was quite different from the consequence which ensued. He undoubtedly, knowingly and intelligently, even if mistakenly, waived his right to silence. A persons conscious, uncoerced and voluntary exercise of his rights cannot, within our jurisprudence, be regarded as involuntary.
19. The Trial Chamber is satisfied that Hazim Delic voluntarily exercised his right to waive his right to silence under Rule 42. The Defence has therefore not shown good cause why its right to make a preliminary motion under Rule 73, forfeited because of the violation of Sub-rule 73(B), should be waived.
For the foregoing reasons, the TRIAL CHAMBER, being seised of the Motions filed by the Defence
PURSUANT TO RULE 73,
HEREBY DISMISSES the Motions
Done in both English and French, the English text being authoritative.
Adolphus Godwin Karibi-Whyte
Dated this first day of September 1997
At The Hague,
[Seal of the Tribunal]