Case Nos.: IT-95-9-AR73.6 & IT-95-9-AR73.7
IN THE APPEALS CHAMBER
Before:
Judge Theodor Meron, Presiding
Judge Fausto Pocar
Judge Wolfgang Schomburg
|Judge Mohamed Shahabuddeen
Judge Mehmet Güney
Registrar:
Mr. Hans Holthuis
Decision of:
23 May 2003
PROSECUTOR
v.
BLAGOJE SIMIC
MIROSLAV TADIC
SIMO ZARIC
___________________________________
DECISION ON PROSECUTION INTERLOCUTORY APPEALS ON THE USE OF STATEMENTS NOT ADMITTED INTO EVIDENCE PURSUANT TO RULE 92BIS AS A BASIS TO CHALLENGE CREDIBILITY AND TO REFRESH MEMORY
___________________________________
The Office of the Prosecutor:
Mr. Gramsci di Fazio
Mr. Phillip Weiner
Mr. David Re
Counsel for the Accused
Mr. Igor Pantelic and Mr. Srdjan Vukovic for Blagoje Simic
Mr. Novak Lukic and Mr. Dragan Krgovic for Miroslav Tadic
Mr. Borislav Pisarevic and Mr. Aleksander Lazarevic for Simo Zaric
The background to the appeals
- Pursuant to a certificate granted by the Trial Chamber in accordance with
Rule 73(B) of the Rules of Procedure and Evidence of the International Tribunal
("Rules "), the prosecution has appealed from Trial Chamber II’s
oral decision of 2 April 2003 and written decision of 28 April 2003
relating to cross-examination of Defence witnesses, when the evidence-in chief
is presented partly as a written statement admitted under Rule 92bis of
the Rules and partly as viva voce evidence ("First Appeal").1
- Further, pursuant to a certificate granted by the Trial Chamber in accordance
with Rule 73(B) of the Rules, the prosecution appealed from Trial Chamber
II’s oral decision of 15 April 2003 and written decision of 2 May
2003 relating to whether a part of a statement not admitted under Rule 92bis
of the Rules could be shown to a witness to refresh his memory ("Second
Appeal").2
- With regard to the First Appeal, the Defence submitted during trial certain
written statements pursuant to Rule 92bis of the Rules, including the
statement of Dorde Tubakovic (statement 184/3ter ID). On 21 March
2003, the Trial Chamber decided that certain parts of the statement of Dorde
Tubakovic could be admitted under Rule 92bis of the Rules, while other
sections of the statement related to the acts and conduct of the accused and
therefore were not suitable for admission under that Rule. For these sections,
the Trial Chamber held that Dorde Tubakovic should "give viva voce testimony."3
As a consequence, the evidence-in-chief was received in the form of a redacted
statement admitted pursuant to Rule 92bis.4
In addition, Dorde Tubakovic appeared before the Trial Chamber on 1 and
2 April 2003 to give viva voce evidence on issues relating to the acts
and conduct of the accused.
- According to the prosecution, Dorde Tubakovic gave testimony which was inconsistent
with his original unredacted statement5
and the prosecution sought to challenge his credibility by putting the inconsistencies
to the witness. On 2 April 2003, the Trial Chamber ruled orally that the prosecution
could not put this inconsistent statement to the witness.6
The prosecution filed a motion before the Trial Chamber for redetermination
or in the alternative certification ("First Motion").7
The proceedings continued without a ruling on the First Motion.8
- With regard to the Second Appeal, on 15 April 2003, witness Vaso Antic appeared
to give viva voce evidence. Part of his evidence had previously been
admitted as a statement under Rule 92bis of the Rules.9
According to the prosecution, his viva voce evidence was inconsistent
with his prior unredacted statement10
and the prosecution sought leave to show witness Vaso Antic portions of his
statement which had not been admitted under Rule 92bis of the Rules
in order to refresh his memory.11 The
Trial Chamber denied the prosecution’s request and ruled that "it
still remains that paragraphs which are struck off cannot be resurrected in
any other way."12 The prosecution
filed a motion before the Trial Chamber requesting redetermination or in the
alternative certification ("Second Motion").13
- On 28 April 2003, the Trial Chamber issued its decision on the First Motion
, whereby it upheld its oral decision of 2 April 2003 and granted certification
for an interlocutory appeal pursuant to Rule 73(B) of the Rules.14
The Trial Chamber found that "the purpose of Rule 92bis is to
restrict the admissibility of this ‘very special type of hearsay evidence,’"15
and that:
Rule 92bis allows the Trial Chamber to admit,
in whole or in part, the written evidence of a witness, and that portions
of the witness statement that are struck out by the Trial Chamber for
non-compliance with Rule 92bis may not be resurrected by parties
for the purpose of cross-examination of the credibility of the witness
, and may not be treated as a prior representation for cross-examination
purposes as they exist only for the purpose of the Rule 92 bis procedure
and do not stand alone.16
- On 2 May 2003, the Trial Chamber issued a decision on the Second Motion,
whereby its oral decision of 15 April 2003 was upheld and a certification
pursuant to Rule 73(B) of the Rules was granted.17
Grounds of appeal
- The First Appeal relates primarily to the application of Rules 90(H) and
92bis of the Rules. The prosecution submits that the Trial Chamber
erred in law by failing to correctly apply the Appeals Chamber’s decisions
in Prosecutor v. Galic18
("Galic Decision"), Prosecutor v. Milosevic19
("Milosevic Decision") and the Tadic Appeal Judgement20
by finding that the prosecution was not entitled to cross-examine a witness
on inconsistencies contained in a section of a statement excluded from a written
statement admitted pursuant to Rule 92bis of the Rules. The Trial Chamber
treated such statements as a special category and thereby failed to consider
the permissible scope of cross -examination of a witness on credibility as
set out in Rule 90(H) of the Rules.21
- In the Second Appeal the prosecution submits that the Trial Chamber erred
in law by treating a section of a statement which was not admitted into evidence
as a written statement under Rule 92bis of the Rules as a special category
for the purpose of refreshing the memory of a witness and thereby failing
to distinguish the purpose for which the statement was submitted.22
- The defence orally informed the Appeals Chamber that they would not be filing
any submissions on the First and Second Appeals and they did not do so.
Joining of the First and Second Appeal
- The First and Second Appeal are closely related in terms of the procedural
background and legal issues involved. The Appeals Chamber has therefore decided
to issue one joint decision in relation to both appeals.
Discussion
- It is necessary to draw a distinction between a situation where a witness
statement is submitted to a Chamber for admission as evidence-in-chief under
Rule 92bis of the Rules in lieu of viva voce evidence
and a situation where a witness statement is requested to be used for other
purposes. In the present case, the statements were requested to be used for
the purpose of either challenging credibility or refreshing a witness’s
memory during cross-examination pursuant to Rule 90(H) of the Rules.
- The Trial Chamber in its oral ruling on 2 April 2003 and subsequently in
its First Decision relied on Rule 92bis of the Rules and stated that
a section of a statement which has not been admitted under Rule 92bis of
the Rules could "not be treated as a prior representation for cross-examination
purposes as they exist only for the purpose of the Rule 92bis procedure
and do not stand alone."23 Likewise
in its Second Decision, the Trial Chamber held that "the reasoning and
finding of the Trial Chamber [in the First Decision], which prevent the Prosecution
from referring a witness to a portion that has been struck out by the Trial
Chamber of a statement prepared pursuant to Rule 92bis of the Rules,
applies to [the Second Motion]."24
- In the Milosevic Decision, the Appeals Chamber held that:
To avoid any misunderstanding, however, it is perhaps necessary
to add that there is nothing in the Galic Decision which prevents
a written statement given by prospective witnesses to OTP investigators
or others for the purposes of legal proceedings being received in evidence
notwithstanding its non-compliance with Rule 92bis –
(i) where there has been no objection taken to it, or (ii) where
it has otherwise become admissible – where, for example, the
written statement is asserted to contain a prior statement inconsistent
with the witness’s evidence.25
- From the Milosevic Decision it is clear that Rule 92bis of
the Rules, in itself, does not bar the use of such statements in cross-examination.26
Rule 92bis of the Rules sets out certain criteria to be met in order
for a statement to be admitted as evidence–in-chief in lieu of
viva voce testimony. The purpose of Rule 92bis of the Rules
is to determine whether a particular statement meets the requirements for
admission into evidence (with or without cross-examination) as an alternative
or complement to viva voce evidence and not to limit the scope of cross-examination,
or to regulate the types of statements or documents which may be referred
to in cross-examination.
- In respect of the First Appeal, the prosecution wanted to cross-examine
witness Dorde Tubakovic by referring to portions of his statement made but
not admitted pursuant to Rule 92bis of the Rules. The Appeals Chamber
notes that, had this witness only appeared before the Trial Chamber as a live
witness, the scope of his cross-examination would have been regulated by Rule
90(H)(i) of the Rules.27 The fact that
part of his testimony was admitted through a different procedure, that is,
by way of a written statement submitted pursuant to Rule 92bis of the
Rules, does not prevent the use of the unadmitted portions of this statement
for the purpose of challenging his credibility under cross-examination.
- The statement at issue was taken in front of a presiding officer of the
Registry , in accordance with the requirements of Rule 92bis(B) of
the Rules and as such is a prior statement made by the witness. It would be
in the interest not only of the moving party, but also of the Chamber, to
have alleged inconsistencies put to the witness.
- In respect of the Second Appeal, the prosecution moved to use portions of
the statement given by Vaso Antic pursuant to Rule 92bis of the Rules
but not admitted pursuant to that Rule to refresh the witness’s memory
during his viva voce evidence. The Trial Chamber, however, denied the
prosecution’s request by referring to the fact that sections of the
statement had not been admitted pursuant to Rule 92bis of the Rules
and therefore could not be used by the prosecution for this purpose. This
was incorrect. The fact that a statement was made pursuant to Rule 92bis
does not prevent the use of the unadmitted portions of the statement for
the purpose of refreshing the memory of a witness under cross-examination
.
Conclusion
- In respect to the First Appeal, the Appeals Chamber finds that the Trial
Chamber erred in law by holding that a party cannot cross-examine a witness
on apparent inconsistencies between a part of his prior statement given but
not admitted pursuant to Rule 92bis of the Rules and his viva voce
testimony.
- In respect of the Second Appeal, the Appeals Chamber finds that the Trial
Chamber erred in law by holding that a part of a statement given but not admitted
pursuant to Rule 92bis of the Rules cannot be used for the purpose
of refreshing a witness’s memory during cross-examination.
- The Trial Chamber should in a manner it finds appropriate give the prosecution
, should it so request, an opportunity to complete the cross-examination of
these two witnesses.
Disposition
- The Appeals Chamber grants the First Appeal and the Second Appeal and quashes
the appealed decisions.
Done in both English and French, the English text being authoritative.
Dated this twenty-third day of May 2003,
At The Hague,
The Netherlands.
_______________
Judge Theodor Meron
Presiding Judge
[Seal of the Tribunal]
1 - "Prosecution’s Interlocutory Appeal
Against the Trial Chamber’s 28 April 2003 ‘Decision on Prosecutor’s
Motion for Trial Chambers Redetermination of its Decision of 2 April 2003 Relating
to Cross-examination of Defence Rule 92bis Witnesses or Alternatively Certification
Under Rule 73(B) of the Rules of Procedure and Evidence,’" filed 5
May 2003.
2 - "Prosecution’s Interlocutory Appeal Against the
Trial Chamber’s 2 May 2003 ‘Decision on Prosecutor’s Motion
for Redetermination of Decision of 15 April 2003 Preventing Witnesses from
Refreshing Memory From a Statement Declared Pursuant to Rule 92bis of the Rules
of Procedure and Evidence, or Alternatively Certification Under Rule 73(B) and
a Variation of Time for Filing of Rule 73(B) Motion Pursuant to Rule 127,’"
filed 9 May 2003.
3 - T. 17235.
4 - Statement 184/3 ID.
5 - Statement 184/3ter ID.
6 - T. 17931. "JUDGE MUMBA: Mr. Re, the Trial Chamber is
of the view that you can't refer to anything in a paragraph which was struck off.
MR. RE: Is Your Honour telling me that I cannot cross-examine a witness as to
his credibility based upon a prior statement he has made, signed, sworn, before
a registry officer, which contains different evidence to the evidence which he
gave yesterday? Yesterday he said something which is completely different to what
is in the signed statement. I'm putting it as to his credibility under Rule 90(H)
only on that basis."
7 - "Prosecutor’s Motion for Trial Chamber’s
Redetermination of its decision of 2 April 2003 relating to Cross-Examination
of Defence Rule 92bis Witnesses, or Alternatively Certification Under Rule
73(B) of the Rules of Procedure and Evidence," filed 3 April 2003.
8 - According to the prosecution, on 15 April 2003 a similar
situation appeared in relation to the testimony of Stevan Nikolic, First Motion,
para. 6. However, the Trial Chamber’s ruling with respect to Stevan Nikolic
is not subject to an appeal. See First Appeal, 16, where the prosecution
submits that "the Prosecution did not file a motion under Rule 73(B) in respect
of this decision, considering that its written motion of 3 April 2003 [the First
Motion] covered any subsequent rulings on the same issue."
9 - T. 16480. Second Appeal, para. 3.
10 - Statement 37/4 ID.
11 - T. 18646.
12 - T. 18646-18647.
13 - "Prosecutor’s Motion for Redetermination of Decision
of 15 April 2003 Preventing Witnesses From Refreshing Memory From a Statement
Declared Pursuant to Rule 92bis(B) of the Rules of Procedure and Evidence,
or Alternatively Certification Under Rule 73(B) and a Variation of Time for Filing
of Rule 73(B) Motion Pursuant to Rule 127," filed 25 April 2003.
14 - "Decision on Prosecutor’s Motion for Trial Chambers
[sic] Redetermination of its Decision of 2 April 2003 Relating to Cross-examination
of Defence Rule 92bis Witnesses or Alternatively Certification Under Rule
73(B) of the Rules of Procedure and Evidence," issued 28 April 2003.
15 - The Trial Chamber’s decision refers to Prosecutor
v. Slobodan Milosevic, "Decision on Admissibility of Prosecution Investigator’s
Evidence," issued 30 September 2002 ("Milosevic Decision"),
p. 11.
16 - "Decision on Prosecutor’s Motion for Trial Chambers
Redetermination of its Decision of 2 April 2003 Relating to Cross-examination
of Defence Rule 92bis Witnesses or Alternatively Certification Under Rule
73(B) of the Rules of Procedure and Evidence," issued 28 April 2003, pp.
2-3.
17 - "Decision on Prosecutor’s Motion for Redetermination
of Decision of 15 April 2003 Preventing Witnesses From Refreshing Memory
from a Statement Declared Pursuant to Rule 92bis(B) of the Rules of Procedure
and Evidence, or Alternatively Certification Under Rule 73(B) And Variation of
Time for Filing of Rule 73(B) Motion Pursuant to Rule 127," issued 2
May 2003. The Trial Chamber held that "that the reasoning and finding of
the Trial Chamber in the Decision on Motion A, which prevent the Prosecution from
referring a witness to a portion that has been struck out by the Trial Chamber
of a statement prepared pursuant to Rule 92bis of the Rules, applies to
Motion B."
18 - Prosecutor v. Galic, Case No.: IT-98-29-AR73.2, "Decision
on Interlocutory Appeal Concerning Rule 92bis(C)," issued 7 June
2002.
19 - Prosecutor v. Milosevic, Case No.: IT-02-54-AR73.2,
"Decision on Admissibility of Prosecution Investigator’s Evidence,"
issued 30 September 2002.
20 - Prosecutor v. Dusko Tadic, Case No.: IT-94-1-A, Judgement,
15 July 1999.
21 - First Appeal, paras 13, 16-18, 21, 23, 33 and 36.
22 - Second Appeal, paras 7-12.
23 - See supra 16.
24 - See supra 17.
25 - Milosevic Decision, pp. 10-11. omitted.
26 - Tadic Appeal Judgement held that "once a Defence
witness has testified, it is for a Trial Chamber to ascertain the credibility
of his or her testimony. If he or she has made a prior statement, a Trial Chamber
must be able to evaluate the testimony in the light of this statement, in its
quest for the truth and for the purpose of ensuring a fair trial," para 322.
27 - Rule 90(H)(i) of the Rules "Cross-examination shall
be limited to the subject-matter of the evidence-in-chief and matters affecting
the credibility of the witness and, where the witness is able to give evidence
relevant to the case of the cross-examining party, to the subject-matter of that
case."