The Prosecutor v. Radoslav Brdjanin - Case No. IT-99-36-T

“Decision on the Defence 'Objection to Intercept Evidence'”

3 October 2003
Trial Chamber II (Judges Agius [Presiding], Janu and Taya)

Procedural Background

On 3 July 2003 and 18 July 2003 respectively, the Defence for Radislav Brdjanin filed its “Objection to Intercept Evidence” (“Objection”) and its “Supplemented Objection to Intercept Evidence” (“Supplemental Objection”). It objected to the admission of evidence obtained through the allegedly illegal interception of telephone conversations.¹ It essentially argued that the International Covenant on Civil and Political Rights² (“ICCPR”) and the European Convention on Human Rights³ (“ECHR”)both provide a framework in which the right to privacy may be protected . In its view, the admission of illegally intercepted evidence, in contravention of the laws of the State of BiH and conventional and customary international law, would contravene Rules 89⁴ and 95⁵ of the Rules of Procedure and Evidence (“Rules”) in that it would seriously damage the integrity of the proceedings.

The Decision

The Trial Chamber rejected the Objection and Supplemental Objection and admitted the proposed evidence.

The Reasoning

Admissibility of illegally or unlawfully obtained evidence

The Trial Chamber first made it clear that it has primarily reached its Decision on the basis of Rules 89 and 95 of the Rules of Procedure and Evidence (“Rules”). Nevertheless, in order to highlight the real import of these two rules, it decided to review the relevant international law and national laws.

Admission of illegally obtained evidence in international law and national laws

International instruments protect the right to privacy of individuals.⁶ That right, however, is not absolute as it may be derogated from in times of public emergency which threatens the life of the nation.⁷ Article 8(2)of the ECHR further envisages that there can be interferences with this right “in accordance with the law” and when “necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”. In principle the right to privacy may be breached by intercepts of private conversations, as the Trial Chamber has acknowledged in the present case.⁸

The crucial issue is then whether evidence obtained through illegal, unlawful or questionable methods (and potentially in breach of the right to privacy) may still be admitted in criminal proceedings. As little guidance is to be found in the case law of international courts⁹, the Trial Chamber turned to the case-law of national courts. It found that a variety of approaches may be taken when dealing with the admission of such evidence: 1. the law itself may specifically provide for the automatic exclusion of any evidence which has been illegally or otherwise inappropriately obtained; 2. the issue of exclusion or admission of such evidence may be left as a matter for the discretion of the judge who has the judicial duty to ensure fairness to the accused; 3. the courts might concern themselves only with the quality of the evidence and not consider its provenance at all; in other words the courts would only seek to find out whether the evidence was relevant and reliable and had probative value irrespective of whether that evidence was obtained lawfully or unlawfully (mostly common law approach).¹⁰

Admission of illegally obtained evidence in the Tribunal’s Rules

Nothing in the Rules of the Tribunal provides for the exclusion of illegally obtained evidence. The issue was, however, addressed in the Kordic & Cerkez case at the 2 February 2000 hearing. Judge Robinson stated during the proceedings that inadmissibility under Bosnian law did not necessarily make evidence inadmissible under Rule 89 or 95 of the Rules.¹¹ Judge May stated that: “even if the illegality was established (…) [w]e have come to the conclusion that the evidence obtained […] by eavesdropping on an enemy's telephone calls during the course of a war is certainly not within the conduct which is referred to in Rule 95. It's not antithetical to and certainly would not seriously damage the integrity of the proceedings”.¹² The Trial Chamber endorsed this approach stating that: “communications intercepted during an armed conflict are not as such subject to exclusion under Rule 95 and should therefore be admitted upon a challenge based on the grounds laid down in that Rule”.¹³ In its view, “the drafters of the Rules specifically chose not to set out a rule providing for the automatic exclusion of evidence illegally or unlawfully obtained and opted instead to leave the matter of admissibility of evidence irrespective of its provenance to be dealt with under and in accordance with Rules 89 and 95”.¹⁴ The Trial Chamber ruled that: “It is clear from the review of national laws and international law, and the Rules and practice of this International Tribunal, that before this Tribunal evidence obtained illegally is not, a priori, inadmissible, but rather that the manner and surrounding circumstances in which evidence is obtained, as well as its reliability and effect on the integrity of the proceedings, will determine its admissibility. Illegally obtained evidence may, therefore, be admitted under Rule 95 since the jurisprudence of the International Tribunal has never endorsed the exclusionary rule as a matter of principle”.¹⁵

Exclusion of evidence under Rule 95

The Trial Chamber held that “in applying the provisions of Rule 95, this Tribunal considers all the relevant circumstances and will only exclude evidence if the integrity of the proceedings would indeed otherwise be seriously damaged”.¹⁶ It considered its finding to be consistent with and in the same spirit as the Decision on Interlocutory Appeal Concerning Legality of Arrest in the Dragan Nikolic case in which the Appeals Chamber, in analyzing the impact that a violation of an accused’s human rights would have on the exercise of its jurisdiction, held that “certain human rights violations are of such a serious nature that they require that the exercise of jurisdiction be declined” and that “[t]he correct balance must […] be maintained between the fundamental rights of the accused and the essential interests of the international community in the prosecution of persons charged with serious violations of international humanitarian law”.¹⁷

Admission of intercept evidence and right to a fair trial

The Trial Chamber stated that in assessing whether intercept evidence is admissible, a Trial Chamber is required under Rule 89(D) of the Rules to use “a balancing test to ensure that the right of an accused to a fair trial is not violated”.¹⁸ It found that the “correct balance must […] be maintained between the fundamental rights of the accused and the essential interests of the international community in the prosecution of persons charged with serious violations of international humanitarian law”.¹⁹

The Trial Chamber found that there was no basis for declaring that the intercepts in question had been obtained illegally and held that, even if the evidence had been obtained illegally, there were circumstances militating towards their admission into evidence. Having held that the intercept evidence was admissible under Rule 95, it then turned to the requirement that they be admissible under Rule 89, namely that they be relevant and have probative value. It found this to be the case and admitted the proposed materials.

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1. The evidence submitted by the Prosecution contained several transcripts of intercepted telephone conversations, recorded by internal security personnel of the government of the Republic of Bosnia and Herzegovina (“BiH”) before and during the war. In response to the Defence Objection, the Prosecution asserted that the intercepts were obtained legally and that even if they had been obtained illegally they would still have been admissible.
2. Article 17 of the ICCPR states: No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
3. Article 8 of the ECHR states: Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
4. Rule 89 (General Provisions) states, in relevant part: (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.
5. Rule 95 of the Rules (Exclusion of Certain Evidence) states: No evidence shall be admissible if obtained by methods which cast substantial doubt on its reliability or if its admission is antithetical to, or would seriously damage, the integrity of the proceedings.
6. See footnotes 2 and 3 and accompanying text. The Trial Chamber also referred to Article 11 of the American Convention on Human Rights which states: Everyone has the right to have his honor respected and his dignity recognized. No one may be the object of arbitrary or abusive interference with his private life, his family, his home, or his correspondence, or of unlawful attacks on his honor or reputation. Everyone has the right to the protection of the law against such interference or attacks.
7. Article 4 of the ICCPR, Article 15 of the ECHR and Article 27 of the American Convention on Human Rights.
8. Para. 31.
9. For example, the European Court of Human Rights leaves the matter of assessing evidence to the national courts. See inter alia Van Mechelen and Others v. The Netherlands (1998) 25 EHRR 647.
10. See paras. 33-52.
11. See Kordic & Cerkez, IT-95-14/2-T, Transcripts (“T.”) 13670.
12. Ibid., T. 13694.
13. Para. 53.
14. Para. 54.
15. Para. 55.
16. Para. 61, emphasis in the original. The Trial Chamber referred to the oral decision of Judge May in the Kordic and Cerkez case (see footnote 12 supra and text accompanying note).
17. Dragan Nikolic, IT-94-2-AR73, Decision on Interlocutory Appeal Concerning Legality of Arrest, 5 June 2003, Judicial Supplement No. 42.
18. Para. 62.
19. Ibid. The Trial Chamber added that it agreed “without hesitation” with the finding of the European Court of Human Rights that “the use at the applicant’s trial of the secretly taped material did not conflict with the requirements of fairness guaranteed by Article 6§1 of the Convention” (Khan v. United Kingdom (2001) 31 EHRR 45, para. 40).