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: 25 September 1997

PROSECUTOR

v.

ZEJNIL DELALIC
ZDRAVKO MUCIC also known as "PAVO"
HAZIM DELIC
ESAD LANDZO also known as "ZENGA"

______________________________

DECISION ON THE MOTIONS FOR THE EXCLUSION OF
EVIDENCE BY THE ACCUSED, ZEJNIL DELALIC

______________________________

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 O’Sullivan, 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. INTRODUCTION

On 8 May 1997, 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") ruled that the transcripts of certain pre-trial interviews held between the accused, Zejnil Delalic ("Accused"), and investigators of the Office of the Prosecutor ("Prosecution") on 18 - 19 March and 22 - 23 August 1996 (jointly referred to as "Statements") were admissible into evidence. In addition, the Trial Chamber admitted into evidence two addenda made on 22 July and 10 August 1996 to the statements of 18 - 19 March 1996 ("Addenda"). The interviews of 18 - 19 March 1996 were held at the Office of the Bavarian Police in Munich, Germany ("Munich Statements") where the Accused was unrepresented by counsel. The interviews of 22 - 23 August 1996 were held at the United Nations Detention Centre in Scheveningen, The Hague ("Scheveningen Statements"). The Addenda were also made in Scheveningen. The Accused was represented by counsel at all times when he was interviewed in Scheveningen.

Following its oral ruling, the Trial Chamber reserved a written decision to a later date.

THE TRIAL CHAMBER HEREBY ISSUES ITS WRITTEN DECISION.

 

II. DISCUSSION

1. The question of admissibility into evidence of the pre-trial statements taken from each of the four accused persons has been an issue before the Trial Chamber for a considerable period of time. In regard to the Accused, the question dates back to May 1996. Considering the importance of the issue and the length of time during which it has been before the Trial Chamber, it is necessary to examine in considerable detail some background matters before dealing with the substance of this Decision.

A. Background to the Munich Statements

2. On 9 October 1996, the Trial Chamber (Judges McDonald, presiding, Stephen and Vohrah) issued the Decision on the Motion on the Exclusion and Restitution of Evidence and Other Material Seized From the Accused Zejnil Delalic (Official Record at Registry page ("RP") D1612 - D1621) ("Exclusion Decision"). The Exclusion Decision addresses, in part, a motion dated 28 May 1996 (RP D1/403 bis - 4/403 bis) filed by the Defence on behalf of the Accused ("Defence") under Sub-rule 73(A)(iii) of the International Tribunal’s Rules of Procedure and Evidence ("Rules"). Pursuant to Sub-rule 73(A)(iii), which states that "[p]reliminary motions by the accused shall include applications for the exclusion of evidence obtained from the accused or having belonged to him", the Defence sought to exclude the Munich Statements from evidence on the ground that they were obtained in violation of Rules 42 and 43, the provisions of which are set out below.

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.

Rule 43

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.

 

3. With regard to Rule 42, the Trial Chamber found that there had been no violation of the Accused’s rights prescribed by either of Sub-rules 42(A) or (B). In particular, the Trial Chamber found that, at the time of the interview, the Accused was aware of his status as a person suspected of having committed crimes within the jurisdiction of the International Tribunal and of the rights thereby accruing to him. Further, it found that the Accused had waived his right to counsel "explicitly and voluntarily in conformity with his right to do so under Sub-rule 42(B)" (Exclusion Decision at paragraph 13).

4. The Defence had alleged that there was a lack of continuity in the recording of the interviews in Munich contrary to Rule 43. In this respect, the Trial Chamber declared that if the facts alleged by the Defence were correct, this would amount to an irregularity in the procedure for questioning suspects established by Rule 43. However, the Trial Chamber went on to state that if indeed such an irregularity had occurred, the Defence would be required to make a showing that the irregularity had led to a violation of the rights of the Accused and that such a violation warrants the exclusion of the Munich Statements (Exclusion Decision at paragraph 15). Further, the Trial Chamber held that the appropriate time for the Defence to make such a showing is when the Prosecution seeks to tender the Munich Statements in evidence. The Trial Chamber ruled that the Defence may object at that stage to the admissibility of the Munich Statements, under Rule 89 or Rule 95. The provisions of Rules 89 and 95 are set out below.

Rule 89

General Provisions

(A) The rules of evidence set forth in this Section shall govern the proceedings before the Chambers. The Chambers shall not be bound by national rules of evidence.

(B) In cases not otherwise provided for in this Section, a Chamber shall apply rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law.

(C) A Chamber may admit any relevant evidence which it deems to have probative value.

(D) A Chamber may exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial.

(E) A Chamber may request verification of the authenticity of evidence obtained out of court.

Rule 95

Evidence Obtained by Means Contrary to Internationally

Protected Human Rights

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.

 

5. Thus, in sum, three things are discernible from the Exclusion Decision. The first is that, when the Munich Statements were made, there were no violations of the Accused’s rights to counsel, an interpreter or silence as guaranteed by Rule 42. Secondly, the Accused voluntarily waived his right to counsel. Thirdly, an avenue was opened for the Defence to object to the admissibility of the Munich Statements at trial if, and only if, it was able to prove that the irregularities it alleged had occurred in the recording of the interview had led to a violation of the Accused’s rights and that this warranted the exclusion of the Munich Statements under Rule 89 or Rule 95.

6. By a letter dated 5 December 1996 (RP 3655 - 3660), the Prosecution informed Counsel for each of the four accused persons of its intention to use the pre-trial statements of the accused persons as evidence during the trial. Acting in response to this, on 16 January 1997, the Defence filed "The Request for Exclusion of the Transcript and the Audio and Video Recordings of the Conversation Handed Over to the Prosecutor on March 18 and 19 1996 in Munich by Zejnil Delalic as Inadmissible Evidence" ("Request"), (RP D2415 - D2424) by which it again sought the exclusion of the Munich Statements.

7. As a basis for the Request, the Defence again relied on alleged infractions of Rule 42. It argued that the Accused was not sufficiently well informed of his right to counsel under Rule 42 and that as such, he did not realise the consequences of a waiver of the right at the time of the interviews. The Defence, therefore, submitted that there had been a violation of the right to counsel which ought to lead the Trial Chamber to exclude the Munich Statements. Further, the Defence submitted that the interview had not been recorded in accordance with Rule 43 and that it should be excluded from evidence.

8. The Prosecution did not file a written response to the Request. However, at a Status Conference held before the Trial Chamber, as presently composed, on 17 January 1997, Ms. Teresa McHenry spoke to the issues raised in the Request on behalf of the Prosecution. Ms. Edina Residovic and Mr. Eugene O’Sullivan, Counsel for the Accused, also spoke to the Request on the same day. Defence Counsel expatiated on the arguments in the Request. They argued that the Accused’s Yugoslavian socio-cultural background should be a deciding factor in evaluating whether his rights under Rule 42 had been violated. They contended that a simple bold reading out of Rule 42 did not suffice to inform the Accused of his rights because, as a result of his civil law system background, he was unable to understand the consequences of waiving his rights to counsel and to silence. For the Prosecution, Ms. McHenry argued that the issue of any alleged violation of Rule 42 had already been addressed in the Exclusion Decision, where the Trial Chamber found that there had been no violation. She stated that the Prosecution had no objection to the Trial Chamber hearing arguments on alleged violations of Rule 43. She then proceeded to explain that any gaps in the recording of the interviews were as a result of the excessive caution of the Prosecution in using both audio and video tapes which stopped at different times. She stated that the Prosecution intended to ensure that the transcripts submitted at trial are a true reflection of everything recorded on both the audio and video tapes.

9. Having heard the submissions during the Status Conference, the Trial Chamber stated that the issues raised in the arguments had already been decided in the Exclusion Decision and, as such, it lacked jurisdiction to go over them again. Stating that the only issue outstanding was the tendering of the Munich Statements at trial, the Trial Chamber ruled that the Defence may make its opposition at such time during the trial as the Prosecution seeks to tender them into evidence.

10. On 1 April 1997, the Prosecution filed a "Response Regarding the Admissibility of the Statements of the Accused" ("Response"), (RP D3203 - D3211). The Response, in fact, addressed the arguments made on separate occasions by counsel on behalf of all four accused persons regarding statements made by the accused. In regard to the Accused, the Prosecution indicated that it intended to tender into evidence the Munich and the Scheveningen Statements. It submitted that they are admissible in the light of its compliance with Rules 42 and 43 as well as its timely disclosure of its intention to tender them in evidence, as required by Rule 66. With respect to the Munich Statements, the Prosecution reasserted its position that the issue of any alleged violation of Rule 42 had been settled in its favour by the Exclusion Decision.

11. The Prosecution conceded in the Response that the Defence may object to the admissibility of the Munich Statements under Rule 43, but it took the view that its provisions had been fully satisfied. It admitted that there were difficulties with the recording of the interviews because they were not conducted at the seat of the International Tribunal in The Hague. It claimed that the apparent problem with the recording was as a result of its use of tapes of different lengths for the audio and video recordings. The result was that the video tapes ended at different times from the audio tapes so that it is impossible to have a full record of the interviews without using both recordings. It averred that it had checked both recordings exhaustively against the transcripts and that the transcripts contain a full account of the recordings. In these circumstances, the Prosecution maintained that no reason existed for the Trial Chamber to exclude the Munich Statements under Rule 43, especially since the Defence had presented no evidence that the difficulties had resulted by design of the Prosecution or that the Prosecution had conducted itself improperly during any alleged unrecorded part of the interview and that there was no attempt to introduce any unrecorded portion of the interview into evidence.

12. In a "Reply to the Prosecution Response Regarding the Admissibility of Statements of the Defence" (RP D3293 - D3301), dated 15 April 1997, the Defence, inter alia, repeated its plea that the Trial Chamber should exclude the Munich Statements from evidence. This time, the Defence made the plea pursuant to Rule 54 which states that "[a]t the request of either party or proprio motu, a Judge or a Trial Chamber may issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial." The Defence stated that for an out-of-court statement to be admitted into evidence there must be strict compliance with Rule 43. It stated that this compliance was absent when the Munich Statements were made because of several gaps in the audio and video recordings and disparities between them and the transcripts. It declared that, as the Accused was unrepresented by counsel, strict compliance with Rule 43 was even more crucial in order to ensure the trustworthiness of the Munich Statements. Therefore, it urged the Trial Chamber to declare the Munich Statements inadmissible under Rule 95 because they were obtained by methods which cast substantial doubts on their reliability and their admission into evidence would be antithetical to, and seriously damage the integrity of, the present proceedings. The Defence made no submissions relating to the admissibility or otherwise of the Scheveningen Statements or the Addenda.

B. Request for a Proceeding Akin to a Voir Dire

13. On 7 May 1997, the Defence filed a "Request for a Hearing to Exclude Evidence by Defendant Delalic" (RP D3582 - D3585). In that request, the Defence prayed the Trial Chamber to hold a hearing akin to a common law voir dire or trial within a trial in order to determine the admissibility of the Munich and the Scheveningen Statements.

14. The Defence submitted that, since the Rules do not prescribe the procedure to be followed in order to determine the admissibility of statements made by accused persons in the circumstances it alleges in this case, a procedure akin to the common law procedure of the voir dire, which is also recognised under the European Convention of Human Rights, is the appropriate procedure to follow. The Defence found support for this submission in Sub-rule 89(B) which provides that in the case of lacuna in the International Tribunal’s evidentiary provisions set out in Rules 89 to 99, the Trial Chamber shall apply "rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and general principles of law."

15. Implying that the contents of the Statements are confessions, the Defence declared that when a confession on which the Prosecution proposes to rely was or may have been obtained in circumstances which may render it inadmissible in evidence, the Trial Chamber should not allow the confession to be given in evidence unless the Prosecution proves beyond a reasonable doubt that the confession was not so obtained. Thus, the Defence submitted that the Trial Chamber should not admit the confession into evidence unless the Prosecution establishes beyond a reasonable doubt, in a proceeding akin to a voir dire, that it was not so obtained. In the alternative, the Defence declared that the Trial Chamber may proprio motu, require that the Prosecution, as a condition precedent to admitting the confession into evidence, prove that it was not obtained in such a manner as to render it inadmissible. The Defence maintained that the appropriate time to hold such a hearing is just before the evidence in dispute is to be tendered into evidence.

16. The Prosecution did not file a written response to the request.

C. Oral Arguments

17. On 8 May 1997, the Prosecution announced its intention to call Ms. Sabine Manke, an investigator in its office who had been involved in the taking of the Statements, as its next witness. Further, the Prosecution stated its intention to tender the Statements into evidence through Ms. Manke. At this point, Counsel for each of the four accused persons voiced their objections to Ms. Manke’s testimony and to the introduction of the Statements. A summary of these objections is beyond the scope of this Decision. However, Counsel for the Accused, Mr. O’Sullivan, urged the Trial Chamber to hold the proceeding akin to a voir dire before hearing Ms. Manke. He submitted that the Defence wished to call a number of witnesses in this proceeding in order to show that the Statements are inadmissible. The Trial Chamber, having heard this submission, ruled that the Defence had not shown that such a proceeding was necessary at that stage. It determined that it would first hear Ms. Manke so as to be appraised of the manner in which the Statements were taken and then it would listen to substantive oral submissions on the holding of a proceeding akin to a voir dire before determining the question of the admissibility of the Statements.

(i). Applicable Provisions

18. It is appropriate to set out in full certain provisions of the Statute and the Rules which were cited to the Trial Chamber in the oral arguments following the testimony of Ms. Manke before proceeding to the substance of those arguments.

Article 21

Rights of the accused

. . . .

4. In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality:

(a) to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;

(b) to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

(c) to be tried without undue delay;

(d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

(e) to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(f) to have the free assistance of an interpreter if he cannot understand or speak the language used in the International Tribunal;

(g) not to be compelled to testify against himself or to confess guilt.

Rule 37

Functions of the Prosecutor

(A) The Prosecutor shall perform all the functions provided by the Statute in accordance with the Rules and such Regulations, consistent with the Statute and the Rules, as may be framed by him. Any alleged inconsistency in the Regulations shall be brought to the attention of the Bureau to whose opinion the Prosecutor shall defer.

(B) His powers under Parts Four to Eight of the Rules may be exercised by staff members of the Office of the Prosecutor authorised by him, or by any person acting under his direction.

Rule 40

Provisional Measures

In case of urgency, the Prosecutor may request any State:

(i) to arrest a suspect provisionally;

(ii) to seize physical evidence;

(iii) to take all necessary measures to prevent the escape of a suspect or an accused, injury to or intimidation of a victim or witness, or the destruction of evidence.

The State concerned shall comply forthwith, in accordance with Article 29 of the Statute.

Rule 55

Execution of Arrest Warrants

(A) A warrant of arrest shall be signed by a Judge and shall bear the seal of the Tribunal. It shall be accompanied by a copy of the indictment, and a statement of the rights of the accused. These rights include those set forth in Article 21 of the Statute, and in Rules 42 and 43 mutatis mutandis, together with the right of the accused to remain silent, and to be cautioned that any statement he makes shall be recorded and may be used in evidence.

(B) A warrant for the arrest of the accused and an order for his surrender to the Tribunal shall be transmitted by the Registrar to the national authorities of the State in whose territory or under whose jurisdiction or control the accused resides, or was last known to be, or is believed by the Registrar to be likely to be found, together with instructions that at the time of arrest the indictment and the statement of the rights of the accused be read to him in a language he understands and that he be cautioned in that language.

(C) When an arrest warrant issued by the Tribunal is executed, a member of the Prosecutor's Office may be present as from the time of arrest.

Rule 92

Confessions

A confession by the accused given during questioning by the Prosecutor shall, provided the requirements of Rule 63 were strictly complied with, be presumed to have been free and voluntary unless the contrary is proved.

(ii). Pleadings

(a). The Defence

19. The Defence supplied the details of those events which it alleges may render the Munich Statements inadmissible in evidence. First, the Defence submitted that the right of the Accused to counsel under Article 21(4)(d) of the Statute was violated because, prior to the commencement of the interviews, the Prosecution investigators simply read out the provisions of Rule 42 to him, without further explanation. Counsel contended that the essence of the protection provided by Article 21(4)(d) is that an accused person should be informed of his rights in a way that will be understandable to an ordinary person who is not a trained lawyer. The mere reading of the Rule to the Accused did not meet the requirements of Article 21(4)(d). Further, Counsel drew the attention of the Trial Chamber to the admission of Ms. Manke, during cross-examination, that she did not herself have a full understanding of the meaning of the right to counsel. Secondly, the Defence stated that Rule 43 was not strictly complied with during the questioning of the Accused in Munich. It asserted that there were numerous flaws in the recording of the Munich Statements which taint them and render them inadmissible in evidence.

20. In addition, the Defence submitted that, since the Accused was arrested by the German authorities pursuant to a request of the Prosecutor under Rule 40, the Prosecution investigators had no right to be present and to interrogate the Accused in Munich. This is because, unlike Sub-rule 55(C), Rule 40 makes no provision for the presence of members of the Office of the Prosecutor during a provisional arrest. The Defence maintains that, because Rules 42 and 43 only make mention of prosecutors questioning accused persons, the investigators who are not prosecuting attorneys, had no authority to question the Accused.

21. Relying on Rule 92, the Defence averred that Ms. Manke had shown during cross-examination that the questioning of the Accused in Munich was neither correct nor fair and that his fundamental rights guaranteed by Article 21 were not respected. The Defence argued that, throughout the interviews, the measures taken against the Accused, including provisional arrest, were completely unfair and the admission of the statement would amount to legalising the unlawful arrest and the taking of statements at a time when the Accused clearly did not understand what was read out to him. In particular, the Defence submitted that the provisional arrest was unlawful because it was effected for means other than the collection of evidence or for preventing the Accused’s escape in violation of Rule 40. In sum, the Munich Statements should not be admitted because the rights of the Accused provided by the Statute were not respected.

22. The Defence did not make any specific assertions with respect to the Scheveningen Statements, but at the close of its argument, it requested that the Trial Chamber hold a proceeding akin to a voir dire on both the Scheveningen Statements and the Munich Statements.

(b). The Prosecution

23. The Prosecution submitted that the investigators and everyone who participated in the interviews of the Accused from its office complied with the Rules of the International Tribunal relating to fair trial. It contended that all of the Defence arguments alleging violations of the Rules were raised and decided against the Defence in the Exclusion Decision, where the Trial Chamber correctly found that the Prosecution had complied with the requirements for a fair trial during the Munich interviews. The Trial Chamber also held that the Accused had voluntarily waived his right to counsel. The Defence is, therefore, in the view of the Prosecution, not entitled to be re-heard on these issues.

24. The Prosecution conceded that the Defence is permitted to challenge the admissibility of the evidence based on whether or not the Munich Statements were fully recorded, as required by Rule 43. However, it submitted that there was no part of the questioning that was unrecorded. Further, it asserted that the Munich Statements, as presented for admission into evidence, are a full transcription of the whole interview as recorded on audio and video tapes. It declared that there had been no suggestion, allegation or evidence that anything improper happened.

25. The Prosecution submitted that its investigators in Munich ensured that the Accused understood his rights. At several points during the interview these rights were read to him, he was asked whether he understood them and if he was sure he wished to waive his right to counsel. Rule 42 was also read out to him. The Prosecution maintained that it, in fact, did more than it was required to do and it would be a miscarriage of justice for the Trial Chamber not to admit the Munich Statements under these circumstances.

26. The Prosecution, in answer to the Defence contention that the investigators questioned the Accused without authority, relied on Sub-rule 37(B), which provides that the powers of the Prosecutor under Parts Four to Eight of the Rules may be exercised by staff members of her office authorised by her or by persons acting under her direction. The Prosecution, therefore, contended that by virtue of the Sub-rule, an investigator can validly exercise the powers of the Prosecutor.

27. The Prosecution made no specific submissions relating to the Scheveningen Statements.

III. FINDINGS

(A). The Request for a Proceeding Akin to a voir dire

28. Concisely stated, the issue before the Trial Chamber is whether a proceeding akin to the common law procedure of "a trial within a trial", also referred to by the Norman French expression, voir dire, should be employed in order to ascertain if the Statements should be excluded from evidence. The possibility of employing the common law procedure of voir dire before the International Tribunal, which has its own procedural rules, is created by the provisions of Sub-rule 89(B). Those provisions make it clear that the Trial Chamber can borrow this procedure in appropriate circumstances, namely, where employing the procedure would best favour a fair determination of the matter before it - in this case whether to admit the Statements into evidence or not - and the procedure is consonant with the spirit of the Statute and the general principles of law. Sub-rule 89(B) provides a necessary escape route in the administration of justice before the International Tribunal in situations which are not covered by the evidentiary provisions set out in Rules 89 to 99.

29. Generally, in common law systems, the voir dire procedure is employed in cases where the admissibility of a confession is disputed on the ground that it was not made voluntarily. This common law principle is stated in the well known English case of Ibrahim v R (1914) A.C. 609, in which the court declared the following.

It has long been established as a positive rule of English criminal law that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority. The principle is as old as Hale. (Emphasis added.)

30. This statement was approved by the House of Lords in Commissioners of Customs and Excise v Harz and Power (1967) 51 Cr.App.R. 123 at p. 155. This is the classic formulation of the rule, the clarity of which has never been in dispute or doubt. The rule is that where the admissibility of a statement is challenged on the ground that it is not made voluntarily, it is for the judge to determine whether or not the prosecution has established that it was made voluntarily. This is done by hearing evidence called by the parties. The rule has also been extended to cases of oppression (see Callis v Gunn (1963) 48 Cr.App.R. 36). This rule is adopted in Australia (see Cases and Materials on Evidence 2nd ed., Wright, P.K. and Williams, C. R. at pps. 774 - 776 and Litigation Evidence and Procedure 5th ed., Aronson, M. And Hunter, J at pps. 371 - 389) and in federal courts in the United States of America (see 18 USC 3501).

31. The enactment, in 1984, of the Police and Criminal Evidence Act ("PACE") in the United Kingdom, has codified and widened the ambit of circumstances under which a voir dire may be held in England and Wales. Pursuant to Section 76(2) of PACE, a voir dire may be held on the admissibility of a confession if the Defence represents to the court that the confession was or may have been obtained by oppression of the person who made it, or in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof. If the defence is able to satisfy the court that any of the alternative situations exist, the court will hold a voir dire and will not admit the confession into evidence unless the prosecution proves beyond a reasonable doubt that it was not so obtained.

32. In the common law system, the burden of proof rests on the prosecution to show beyond a reasonable doubt that statements of an accused person were made voluntarily, and that they were not obtained either by fear of prejudice or hope of advantage held out by interrogators. It is not sufficient for the prosecution to show that there was no intention to extract a confession or that there was no impropriety in the inducement held out. Where there is an implicit threat, promise or inducement, the consequence is the same and the statement obtained thereby will be inadmissible.

33. Having stated above the conditions precedent to holding a voir dire in common law systems, the Trial Chamber will now consider if, on the strength of the submissions of the Defence, it should hold a proceeding akin to a voir dire to determine the admissibility of the Statements.

(i). The Munich Statements

34. Ms. Residovic, Counsel for the Accused, during her oral submissions, went into considerable detail on the purported violation of the Accused’s right to counsel under Rule 42 and Article 21(4)(d) of the Statute, the unlawfulness of the arrest of the Accused, and the status of the investigators who interviewed him. Counsel submitted that the Accused cannot be regarded as having had a fair trial if the Munich Statements are admitted in spite of these violations. Accordingly, she submitted, that these allegations should be addressed in a voir dire proceeding in order to determine the admissibility of the Statements.

35. The Trial Chamber accepts the submission of the Prosecution that the issue of violations of Rule 42, in particular violations of the right to counsel, were previously decided in the Exclusion Decision. The alleged violations are, therefore, not matters to be revisited.

36. With regard to Article 21(4)(d), the rights thereby guaranteed are the rights of an accused person, not the rights of a suspect during questioning by the Prosecution. The Accused cannot claim the benefit of Article 21(4)(d) - benefit due to an accused - at a time when he was still a suspect. The right of a suspect to legal assistance which is guaranteed in Article 18(3) finds expression in Rule 42, a rule which the Exclusion Decision declares was not violated in relation to the Accused.

37. The Trial Chamber is also in complete agreement with the construction of Sub-rule 37(B) propounded by the Prosecution, that investigators authorised by and acting on behalf of the Prosecutor are, for such purposes, performing her functions in accordance with Sub-rule 37(A). Such investigators, once authorised, are competent to carry out interrogation as Prosecutors may do. Thus, the allegation of the Defence that the Munich Statements were taken without authority is totally unfounded.

38. Also unpersuasive is the very restricted interpretation of Rule 40 proposed by the Defence. There is nothing in Rule 40 which can lead to the inference that the Prosecutor can request the provisional arrest of a suspect only for the purpose of collecting evidence or to prevent a suspect’s escape. Clearly, these are obvious grounds upon which the Prosecutor may make the decision to make a Rule 40 arrest request to a State, but they are not necessarily the only grounds. The Prosecutor is charged with investigating the crimes within the jurisdiction of the International Tribunal and in the course of her investigations, she may, in good faith, take a decision to request the arrest of a suspect provisionally. It would be an unwarranted fetter on her ability to perform her duties effectively to limit the exercise of her discretionary powers in the manner proposed. Rule 40 does not state the reasons why a request may be made, it only states the type of requests that may be made.

39. Furthermore, the Trial Chamber rejects the submission that the Prosecutor cannot interrogate a suspect arrested pursuant to Rule 40 and that the only possibility for the presence of the Prosecutor or her representative is when a warrant of arrest is being served under Sub-rule 55(d). Rules 42 and 43, which regulate the manner in which the Prosecutor deals with suspects during interrogation, are of general application to all suspects. They make no distinction between suspects arrested pursuant to Rule 40 and other suspects, so there is no reason to suppose that there is a special class of suspects to whom the Prosecutor’s powers of interrogation do not extend. The fact that no specific mention is made of the presence of the Prosecutor at the time of a Rule 40 arrest cannot be taken to mean that the Prosecution is prevented from carrying on with its investigations in any lawful manner it deems fit by interrogating the suspect.

40. It appears that the Defence has misunderstood the application of the voir dire procedure. The procedure, as has been outlined above, is called in aid only where a statement is challenged on the ground that it is involuntary. That is, where it is alleged to have been obtained either from fear of prejudice or hope of advantage held out by a person in authority over the Accused, or when various indices of unreliability clearly exist, as is the case in England and Wales where the PACE applies. None of the grounds which have been represented to the Trial Chamber by the Defence fall into these categories. The Defence has not brought its request within the purview of the common law and it has not made out a case for the allegations it makes regarding the Munich Statements to be tried in a proceeding akin to a voir dire.

(ii) The Scheveningen Statements and the Addenda

41. The Trial Chamber finds no reasons why a proceeding akin to a voir dire should be held on these Statements and the Defence has not presented it with any.

B. The Admissibility of the Statements

(i). The Munich Statements

42. The Trial Chamber has decided to admit the Munich Statements into evidence because it is not persuaded by any of the submissions made by the Defence at the different stages during which the matter has been pending.

43. Despite the clear and unambiguous language of the Exclusion Decision that there was no violation of Rule 42, the Defence has repeatedly raised its allegations of violations of the Accused’s rights under Rule 42, in particular the right to counsel. The Trial Chamber is not an appellate or review entity. The Trial Chamber is functus officio once a matter has been decided and no measure of repetition or recloaking of an argument can authorise it to act in excess of its jurisdiction. The Trial Chamber declines the exercise of a jurisdiction it does not possess and has, therefore, not considered any of the arguments based on violations of Rule 42. The finding of non-violation in the Exclusion Decision is binding on all Parties and the Trial Chamber: it, therefore, stands.

44. With regard to Rule 43, the filings of the Defence all allege a violation in the recordings which ought to lead the Trial Chamber to exclude the Munich Statements. The Prosecution has not denied that there was some difficulty with the recording equipment because it made recordings in two media, audio and video, rather than in one of these, as required by Rule 43. However, to obtain the relief sought, namely the exclusion of the Munich Statements on the grounds of a violation of Rule 43, the Defence has to satisfy the conditions laid down in the Exclusion Decision. It has, first, to prove that as a result of these difficulties, an irregularity occurred because some unrecorded information was obtained from the Accused and secondly, that this irregularity has led to a violation of his rights. Despite the fact that it focused, in all its filings on the matter under consideration, and in oral argument, on non compliance with Rule 43, it did not prove to the satisfaction of the Trial Chamber that any of the Accused’s rights were violated as a result of any difficulty or irregularity. Also significant is that the Defence did not deny the Prosecution’s statement that the whole of the interview was recorded either on video or audio cassettes and that the final transcript is a complete representation of these two recordings. Rather, it continually drew the attention of the Trial Chamber to the problems with the recording, problems which the Prosecution did not deny. The Trial Chamber is satisfied that these problems were caused by a difference in the recording time of the audio and video tapes and, sadly, by the Prosecution’s initially inefficient transcription of the interviews.

45. In the light of the above, it is difficult to accept the Defence argument that there has been such a violation of Rule 43 that renders the Munich Statements inadmissible in evidence under Rule 95. It cannot be said that the difficulties in recording the Statements cast a "substantial doubt on . . . [their] reliability" or that admitting them into evidence will be "antithetical to, and would seriously damage, the integrity of the [present] proceedings." The existence of these difficulties is relevant to the weight the Trial Chamber will attach to the Munich Statements during its deliberations.

46. If, however, the Defence wishes to object to the admissibility of the audio or video recordings of the Munich interviews, the Defence may do so whenever the Prosecution seeks to tender them into evidence. The Decision of the Trial Chamber is limited to the Munich Statements, that is, the transcripts of the Munich interviews and does not extend to the recordings.

(ii). The Scheveningen Statements and the Addenda

  1. The Defence has presented no reasons why the Trial Chamber should not admit these Statements. For this reason, and because the Trial Chamber finds, prima facie, that there was no violation of the rights of the Accused when these Statements were taken, the Trial Chamber admits them into evidence.

 

IV. DISPOSITION

For the foregoing reasons, THE TRIAL CHAMBER, being seised of the filings of the Defence relating to the admissibility of the Statements of the Accused,

Having considered each of the Rules and statutory provisions hereinbefore cited,

PURSUANT TO RULE 54,

HEREBY:

1. REJECTS the Defence request for a proceeding akin to a voir dire to determine whether to exclude the Statements of the Accused.

2. ADMITS the Munich Statements into evidence.

3. ADMITS the Scheveningen Statements into evidence.

4. ADMITS the Addenda into evidence.

5. PERMITS the Defence to make objections to the admissibility of the video and/or audio recordings of the Munich interviews at such time during the present proceedings as the Prosecution seeks to tender them into evidence.

 

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

__________________________

Adolphus Godwin Karibi-Whyte

Presiding Judge

Dated this twenty-fifth day of September 1997

At The Hague

The Netherlands.

[Seal of the Tribunal]