Case No. IT-02-60-T

IN TRIAL CHAMBER I, SECTION A

Before:
Judge Liu Daqun, Presiding
Judge Volodymyr Vassylenko
Judge Carmen Maria Argibay

Registrar:
Mr. Hans Holthuis

Decision of:
18 September 2003

PROSECUTOR

v.

VIDOJE BLAGOJEVIC
 DRAGAN JOKIC

_________________________________________

DECISION ON PROSECUTION’S MOTION FOR CLARIFICATION OF ORAL DECISION REGARDING ADMISSIBILITY OF ACCUSED’S STATEMENT

_________________________________________

The Office of the Prosecutor:

Mr. Peter McCloskey

Counsel for the Accused:

Mr. Michael Karnavas and Ms. Suzana Tomanovic for Vidoje Blagojevic
Mr. Miodrag Stojanovic and Ms. Cynthia Sinatra for Dragan Jokic

 

TRIAL CHAMBER I, SECTION A, (“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 (“Tribunal”) is seised of the “Prosecution’s Motion for Clarification of Oral Decision Regarding Admissibility of Accused’s Statements” (“Motion”) filed on 30 June 2003, in which the Office of the Prosecutor (“Prosecution”) seeks clarification of a Trial Chamber oral decision of 22 May 2003.

I. INTRODUCTION

  1. Prior to the commencement of the testimony of Jean-René Ruez on 15 May 2003, the Prosecution delivered to the Trial Chamber and the defence for the Accused Vidoje Blagojevic and Dragan Jokic (“Blagojevic Defence” and “Jokic Defence”, respectively ) a proposed exhibit list for its first witness, Mr. Ruez, who had served as an investigator in the Prosecution for almost six years, working on cases related to events in and around Srebrenica in the summer and fall of 1995.1 The distribution of such an exhibit list, with hard-copies of each exhibit attached for the Trial Chamber, was in accordance with a request made by the Trial Chamber at the Pre-Trial Conference that each party supply both the Trial Chamber and the opposing party or parties with such a list one to two days before each witness begins his or her testimony.

  2. On 16 May 2003, the Prosecution informed the Trial Chamber and both defence teams that it would be seeking to introduce three additional exhibits through that witness. Each of the proposed additional exhibits appeared on the Prosecution’s Exhibit List and had been previously disclosed to both defence teams.2 The three additional exhibits (“Proposed Exhibits”) are: (1) transcript of interview conducted by Jean-René Ruez with Dragan Obrenovic, 2 April 2000 (“P25.1”); (2) transcript of interview conducted by Jean-René Ruez with Dragan Jokic, 14 December 1999 (“P26.1”); and (3) transcript of interview conducted by Jean-René Ruez with Dragan Jokic, 1 April 2000 (“P26.2”).

  3. The Prosecution introduced the Proposed Exhibits on 19 May 2003,3 and following the cross-examination of Mr. Ruez by the Blagojevic Defence and the Jokic Defence, sought to have the Proposed Exhibits admitted into evidence on 22 May 2003.4 The Jokic Defence objected to the admission of the two interviews conducted with Dragan Jokic, P26.1 and P26.2.5

  4. Having heard the parties and considered the context in which the statements were taken based on the testimony of Mr. Ruez, the Trial Chamber held that, pursuant to Rule 89 (D) of the Rules of Evidence and Procedure of the Tribunal (“Rules”), the interviews with Dragan Jokic and former co-accused Dragan Obrenovic were inadmissible at the current time and in the circumstances of that time (“Oral Decision”). In making this finding, the Trial Chamber expressed particular concern about interfering with one accused’s right to remain silent in order to permit another accused to cross-examine the maker of the statement. The Trial Chamber further held that in the event that an accused gave up his right to remain silent and the defence teams would have an opportunity to cross-examine the accused about the statement, the Prosecution could reintroduce the statements through that witness, with the Trial Chamber taking into consideration the testimony of Mr. Ruez and the context in which the interviews were conducted.6

  5. On 30 June 2003, the Prosecution filed the Motion, seeking clarification of the Oral Decision. In response to the Motion, the Jokic Defence filed “Mr. Jokic’s Motion to Exclude Statements and Response to Prosecution’s Motion for Clarification of Oral Decision Regarding Admissibility of Statements,” on 14 July 2003 (“Jokic Motion and Response”), in which it objected to the admission of P26.1 and P26.27 on the grounds that the exhibits are inadmissible under Articles 21(2) and 21(4)( g) of the Statute and Rules 95, 42(A)(iii) and 89 (B) and (D) of the Rules of the Tribunal. Finding that the Jokic Motion and Response expands on previous arguments put forward by the Jokic Defence on the date the interviews in question were tendered by the Prosecution and raises some new arguments, the Trial Chamber permitted the Prosecution to file a consolidated response and reply.8 The Prosecution filed its response on 30 July 2003.9 The Blagojevic Defence did not file a response to the Motion.

    II. DISCUSSION

  6. The Prosecution seeks to have one interview with former co-accused Dragan Obrenovic and two interviews with Accused Dragan Jokic conducted by members of the Prosecution admitted into evidence. These interviews were taken with the two defendants10 prior to the time that an indictment was confirmed against either individual, and as such, the defendants were not “accused”.11 The defendants appeared at the interviews in response to a summons issued by the Prosecution pursuant to Article 18(2) of the Statute and Rule 39(i) of the Rules.12 The Trial Chamber has been supplied a copy of the Summons issued to Dragan Jokic, signed 8 November 1999, which states that he is to be “questioned as a suspect and provide a statement in respect of an investigation into crimes that occurred in and around Srebrenica in 1995.”13 As the 1999 summons clearly indicated that Mr. Jokic was being summoned as a suspect, the Trial Chamber rejects the claim by the Jokic Defence that Mr. Jokic only became aware of his status as a suspect in April 2000.14 In determining whether these interviews are admissible into evidence, the Trial Chamber will first examine whether the interviews were conducted in accordance with the procedure detailed in the relevant Rules of the Tribunal.

    A. Were the interviews conducted in accordance with the Statute and Rules of the Tribunal?

  7. Article 18(3) of the Statute and Rule 42 of the Rules of the Tribunal provide that suspects enjoy certain rights when being questioned by the Prosecution.15 These rights must be communicated to the suspect by the Prosecution prior to the commencement of questioning in a language the suspect understands. The rights include the right to be assisted by counsel of the suspect’s choice, the right to be assisted by an interpreter and the right to remain silent.

  8. Rule 43 of the Rules provides the mechanism by which questioning of suspects is to be conducted.16 Specifically, this Rule provides that questioning sessions of suspects must be recorded, with breaks being noted in the record, and the suspect provided with a copy of the recording. In the event that the suspect becomes an accused, the tape shall be transcribed.

  9. In this case, the rights of both Dragan Obrenovic and Dragan Jokic guaranteed under Rule 42 of the Rules were respected. An interpreter was provided to translate between English and B/C/S for all three interviews.17 At the start of each interview, the Prosecution informed the suspect of his right to remain silent; additionally, the Prosecution cautioned both men that anything they said during the interview could be used as evidence.18 There is no evidence to find that either man was forced or coerced into attending the interview or answering the questions put forward by the Prosecution. The Trial Chamber finds that both men knowingly and voluntarily waived their right to remain silent.

  10. Both Dragan Obrenovic and Dragan Jokic were assisted by counsel whom each man brought with him to the interview. Indeed, both men were assisted by the same counsel. The Jokic Defence argues that the fact that both men were represented by the same counsel qualifies as a conflict of interest that makes the statements inadmissible. At this stage of the analysis, the Trial Chamber will examine only whether, based on the transcript of the interviews, Mr. Obrenovic and Mr. Jokic were informed of their right to be represented by counsel of their own choosing, in accordance with Rule 42(A)(i), and whether there was any obvious interference with their enjoyment of this right.19 In response to the Prosecution informing Mr. Jokic of his right to be assisted by counsel of his own choosing at the first interview in December 1999, Mr. Jokic responded : “I’m not a lawyer, and I don’t know much about the law. And I would like Mr. Krstan Simic to represent me as a lawyer.”20 In response to the reading of this right to Mr. Jokic and Mr. Obrenovic in April 2000, both men indicated that Mr. Simic was the lawyer of their choice.21 Mr. Simic remained present throughout the entirety of the three interviews in question. The Trial Chamber finds that based on the information given by the defendants to the Prosecution and their actions at the time of the interviews, Dragan Obrenovic and Dragan Jokic were represented by counsel of their choice.

  11. Both Dragan Obrenovic and Dragan Jokic were informed that the statement would be recorded, in accordance with Rule 43.22 The interviews were recorded and were transcribed in accordance with Rule 43 (vi ), as Mr. Obrenovic and Mr. Jokic became accused.

  12. The Trial Chamber finds, based on its examination of P25.1 P26.1 and P26.2 and taking into consideration the testimony of Mr. Ruez, that the questioning of Mr. Obrenovic and Mr. Jokic was in accordance with procedure outlined in Rules 42 and 43 of the Rules, and that, from a procedural stand-point, the Proposed Exhibits are admissible.

    B. Admissibility of the Proposed Exhibits as Evidence in this Case

  13. Having found that from a procedural stand-point the statements are admissible, the Trial Chamber must now consider whether these particular statements should be admitted, taking into account the Rules of the Tribunal and Guidelines on the Admission of Evidence, issued by the Trial Chamber,23 as well as relevant provisions of the Statute of the Tribunal.24

  14. Rule 89 (“General Provisions”) of the Rules provides, in relevant part:

    […]

    (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.

    […]

  15. The Guidelines provide, in paragraph 8 of the Annex:

    The “best evidence rule” will be applied in the determination of matters before this Trial Chamber. This means that the Trial Chamber will rely on the best evidence available in the circumstances of the case and parties are directed to regulate the production of their evidence along these lines. What is the best evidence will depend on the particular circumstances attached to each document and to the complexity of this case and the investigations that preceded it.

  16. The Guidelines further provide, in paragraph 9 of the Annex:

    Rule 95 of the Rules provides for the exclusion of improperly obtained evidence. It declares that no evidence shall be admissible if obtained by methods that cast substantial doubt on its reliability or if its admission is antithetical to, and would seriously damage the integrity of, the proceedings. Accordingly, the Trial Chamber makes it clear at the very outset that statements which are not voluntary, but rather are obtained by means including oppressive conduct, cannot be admitted pursuant to Rule 95. If there is prima facie indicia that there was such oppressive conduct, the burden is on the party seeking to have the evidence admitted to prove that the statement was voluntary and not obtained by oppressive conduct.25

    1. The Interview with Dragan Obrenovic

  17. At the time that the Prosecution added P25.1 to its proposed exhibit list for Mr. Ruez, Dragan Obrenovic was an accused in this case. By the time the Prosecution sought to tender this exhibit, Mr. Obrenovic had pled guilty to one count in the Indictment and was subsequently separated from the proceedings. Dragan Obrenovic is currently on the Prosecution’s witness list in this case.26 As a future witness, rather than an accused, the Trial Chamber finds that the decision of the admissibility of the statement of Dragan Obrenovic is best determined at the time that Mr. Obrenovic testifies. In this regard, the Trial Chamber recalls decisions taken to date in this case on the admissibility of former witness statements of witnesses appearing before the Trial Chamber.27 Accordingly, the Trial Chamber reserves its decision on the admission of P25.1 until such a time as Mr. Obrenovic testifies in this case and his statement is tendered by one of the parties to these proceedings.

    2. The Interviews with Dragan Jokic

  18. The Trial Chamber finds that there are matters of concern in relation to the admissibility of the two interviews with Accused Dragan Jokic. The Trial Chamber will first examine the context in which the interviews were taken. Based on its findings in relation to the context in which the statements were taken, it will determine whether the admission of the statements is in accordance with the Rules of the Tribunal and the Guidelines issued by this Trial Chamber. Finally, should the Trial Chamber find that the statements are admissible, it will examine whether it is proper to take the statement of one accused in a joint trial as evidence, when the second accused may be deprived of his right to cross-examine the maker of the statement due to maker of the statement invoking his right to remain silent, and therefore not allow the second accused to fully test the evidence that may be used against him.

    a. Context within which the Interviews were taken

  19. As noted above, the two interviews with Dragan Jokic were conducted in accordance with Rules 42 and 43 of the Tribunal. The Trial Chamber finds, that as a matter of principle, as reflective of the fact that these Rules and Rule 63 are included in the Tribunal’s Rules of Procedure and Evidence, once a suspect or an accused waives his or her right to remain silent, the result of any questioning by members of the Prosecution (which in this case includes both members involved in the investigative stage and the post-indictment stage of proceedings) can be used in proceedings involving that suspect or accused.28 It is because of the circumstances in which those statements were taken that the Trial Chamber finds it necessary to further examine whether the admission of these statements at this time would be in the interests of justice and would ultimately assist the Trial Chamber in its determination of the individual criminal responsibility of the Accused in this case.

    i. Counsel for Dragan Jokic

  20. The Trial Chamber is concerned that Mr. Jokic and other suspects purported to be from the Zvornik Brigade being questioned by the Prosecution shared a counsel.29 While the Jokic Defence argues that it was for the Prosecution to inform Mr. Jokic of what it describes as an apparent conflict of interest30 and to “raise the issue of waiver of conflict-free counsel,”31 the Trial Chamber finds that the Prosecution satisfied its obligations under Rules 42 and 43 by confirming that Mr. Jokic has counsel of his choice present at the interviews. It was not for the Prosecution to question – or interfere with – Mr. Jokic’s choice of counsel. It is primarily the responsibility of counsel and the person who retains counsel to ensure that chosen counsel does not “labour under a conflict of interest.” It is apparent from P26.2 that Mr. Jokic was aware at the time of the April 2000 interview that Mr. Simic represented other members of the Zvornik Brigade and yet he chose to continue with the interview with Mr. Simic acting as his counsel. While Mr. Simic had professional responsibilities to raise the matter with his client or even to decline to represent Mr. Jokic, the Prosecution did not have the responsibility to enquire into Mr. Jokic’s choice of Mr. Simic, other than to inform him of his right to have counsel of his choice assist him, which the Prosecution did.

  21. Having said this, the Trial Chamber has questions as to whether Mr. Simic provided adequate legal assistance to Mr. Jokic during the interviews. As already mentioned, Mr. Simic represented other members of the Zvornik Brigade and the Jokic Defence alleges that he “disclosed confidential communications to clients with conflicting interests.”32 The Jokic Defence cites examples from the interviews of Mr. Simic refusing to intercede to stop the interview when Mr. Jokic complained about being tired, of Mr. Simic “attempt?ingC to bolster the Prosecution’s questioning”33 and of Mr. Simic “repeatedly refusing to consult with Mr. Jokic despite Mr. Jokic’s specific requests for an opportunity to consult with his Counsel.”34

  22. The Trial Chamber finds that there is support in the interviews for these complaints. The Trial Chamber also finds, however, that while Mr. Simic may not have provided what can generally be considered as good legal assistance, Mr. Jokic still remained free to simply refuse to answer questions put to him and free to stop the interview. There is no evidence in the record that the Prosecution forced or coerced Mr. Jokic into answering questions put to him; the transcripts of the interviews and the testimony of Mr. Ruez make this clear. Indeed, Mr. Jokic had the option to choose another counsel to assist him during the interviews. Additionally, Mr. Jokic was aware that Mr. Simic was representing other members of the Zvornik Brigade at the time of the interviews and still went ahead with Mr. Simic as his counsel. Without further explanation for why Mr. Jokic did so, the Trial Chamber cannot make findings on the issue of a conflict of interest and whether Mr. Jokic in fact gave his informed consent to Mr. Simic’s representation despite the potential existence of a conflict of interest. The Trial Chamber reserves a final determination on the impact of Mr. Jokic’s choice of counsel upon the full enjoyment of his right to be assisted by counsel until further evidence on this issue is available to it.

    ii. “Interrogation Techniques” of the Prosecution

  23. The Trial Chamber rejects the submission by the Jokic Defence that the “interrogation techniques” of the Prosecution were “outside of the legally acceptable means of questioning adhered to by the creators of the ideals of the ICTY” resulting in the interviews being “coercive”.35 The Jokic Defence appears to rely on the length of the interviews and the fact that the suspects grew tired as support for this claim. The Trial Chamber would not find “expert evidence to show the coerciveness and misleading interview tactics that deprive the results of the interrogations of reliability,” as proposed by the Jokic Defence to be useful.36 The Trial Chamber finds no evidence to support the claim that the interviews were “coercive”.37 The Trial Chamber therefore does not find Rule 95, relied on by the Jokic Defence in its Motion and Response, applicable in this case.

    iii. Status of Dragan Jokic

  24. The Trial Chamber recalls that Dragan Jokic appeared at the questioning sessions with the Prosecution as a suspect; as is the case with any suspect, Mr. Jokic did not want to leave those sessions having been “elevated” to an accused. It is reasonable to expect that any person appearing at such a questioning session may minimise his role in any criminal activities while highlighting or even exaggerating the role of others in order to deflect attention from himself. A suspect appearing for questioning is not required to make a solemn declaration, as is a witness testifying before this Tribunal.38 Without making any finding about the specific interviews with Mr. Jokic or seeking to make any observation on the character or truthfulness of Mr. Jokic, the Trial Chamber finds that the veracity of any such interview is inherently suspect, and would not be sufficient to establish any facts at issue before it as proven beyond a reasonable doubt.

    b. Admissibility of the statements under the Rules of the Tribunal and Guidelines

  25. As the Jokic Defence often points out, Mr. Jokic was unfamiliar with his legal rights and that is why he required legal assistance at his interviews with the Prosecution. Indeed, the purpose of Article 18(3) of the Statute and Rule 42 is not to have counsel present with a suspect during questioning but to assist a suspect during questioning. As it is this Trial Chamber’s duty to ensure that evidence is not admitted for which the probative value is substantially outweighed by the need to ensure a fair trial, the Trial Chamber finds that, on balance, the alleged conflict of interest in relation to Mr. Jokic’s counsel at the interviews, as well as the behaviour of his counsel, may be considered at this stage as a contributing factor to this Trial Chamber’s decision not to admit the interviews at this stage, though it is not a sufficient reason for the Trial Chamber to deprive the Prosecution and itself of the relevant facts which may be contained in the interviews with Dragan Jokic.

  26. In the Guidelines, the Trial Chamber holds that the best evidence rule will be applied. In relation to the facts that may be extracted from P26.1 and P26.2 which are relevant to the determination of Mr. Jokic’s individual criminal responsibility, the Trial Chamber expects that the Prosecution has additional or alternative, more reliable sources for those facts which are necessary to establish its case. The Trial Chamber prefers to rely on this evidence, the reliability of which the Trial Chamber may be more assured. Indeed, in the event that the Trial Chamber were to admit the interviews with Dragan Jokic at this stage, it would not be able to attribute much weight to this evidence and would certainly not rely on these interviews as a single source by which to determine that a given allegation has been proven beyond a reasonable doubt.

  27. Therefore, taking into consideration that the Trial Chamber finds that it is unable to rely on the interviews with Dragan Jokic as an indisputably reliable source of information upon which to determine issues in this case and has concerns in relation to Mr. Jokic’s legal representation at the interviews, the Trial Chamber declines to admit the statements into evidence at this stage. In the event that circumstances change and additional evidence becomes available to respond to the Trial Chamber’s concerns, the Prosecution can renew its request to have P26.1 and P26.2 admitted as evidence.

    c. Impact of Admitting Jokic Interviews on co-Accused Vidoje Blagojevic

  28. Having found that the statements are inadmissible at the current time, the Trial Chamber finds it unnecessary to consider the additional issue of the potential impact of the admission of the interviews with Dragan Jokic on co-accused Vidoje Blagojevic. Should circumstances change with effect that the interviews are re- tendered by the Prosecution, the Trial Chamber will rely on the arguments advanced by the Prosecution and Jokic Defence, while bearing in mind that the Blagojevic Defence has not offered any submissions on this issue and that Dragan Obrenovic, the former co-accused most directly affected by the admission of the Jokic interviews, is now the subject of separate proceedings.39

    III. DISPOSITION

  29. Pursuant to Rule 89(D) of the Rules and considering the Guidelines on the Standards Governing the Admission of Evidence, the Trial Chamber hereby CONFIRMS the Oral Decision and DENIES the admission of the three exhibits at the present stage of the proceedings, and, in the event of a change of circumstances, would permit the Prosecution to re-tender the exhibits at a later stage of the proceedings for renewed consideration.

 

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

________________
Judge Liu Daqun
Presiding

Dated this eighteenth day of September 2003,
At The Hague
The Netherlands

[Seal of the Tribunal]

1 - At this stage of the Prosecution’s examination of Mr. Ruez, a third accused, Dragan Obrenovic, was joined to the case. Before cross-examination of Mr. Ruez commenced, Mr. Obrenovic entered a plea of guilty to one count of the Indictment and was separated from these proceedings.
2 - The Prosecution had alerted the defence teams and the Trial Chamber that it had not yet disclosed the statements of the accused, anticipating a possible motion by defence counsel to exclude those statements, at a Rule 65 ter (D)(v) conference on 26 November 2002; barring such a motion, the Prosecution indicated that it would offer those statements as exhibits. No motion by any of the defence teams to suppress any statements by the accused was filed. The three exhibits were added to the Prosecution’s Exhibit List pursuant to Rule 65 ter (E)(iii) of the Rules of Procedure and Evidence of the Tribunal following a motion by the Prosecution on 29 January 2003, to which neither the Blagojevic Defence nor the Jokic Defence objected. See, Decision on Prosecution’s Motion for Leave to Supplement Exhibit List, 20 March 2003.
3 - Trial Proceedings, 19 May 2003, Transcript pages (“T.”) 543-46.
4 - Trial Proceedings, 22 May 2003, T. 732.
5 - Trial Proceedings, 22 May 2003, T. 732. See earlier questioning of Mr. Ruez on the Proposed Exhibits, T. 682-704.
6 - Trial Proceedings, 22 May 2003, T. 735-36.
7 - While no specific objection was expressed in relation to P25.1, as the Trial Chamber’s Oral Decision included P25.1, this Decision will address P25.1 to the extent necessary to address the Prosecution’s request for clarification.
8 - Decision on Prosecution’s Motion for Leave to File Consolidated Response and Reply Concerning Admissibility of Jokic Statements, 24 July 2003.
9 - Prosecution’s Response to Dragan Jokic’s Motion to Exclude Statements and Incorporated Reply Regarding Prosecution Motion for Clarification, 30 July 2003 (“Prosecution’s Response”).
10 - The Trial Chamber uses the term “defendants” for simplicity, as Dragan Obrenovic and Dragan Jokic are currently at different stages of the proceedings, and it may therefore be misleading to use the term “Accused” for both individuals.
11 - The initial Indictment against Dragan Jokic was confirmed on 31 May 2001 and remained sealed under 15 August 2001. Prosecutor v. Dragan Jokic, Case No. IT-01-44. The initial Indictment against Dragan Obrenovic was confirmed on 9 April 2001 and remained sealed until 15 April 2001. Prosecutor v. Dragan Obrenovic, Case No. IT-01-43. Pursuant to Rule 2 of the Rules, an Accused is: “A person against whom one or more counts in an indictment have been confirmed in accordance with Rule 47.”
12 - Article 18(2) of the Statute (“Investigations and preparation of Indictment”) provides: “The Prosecutor shall have the power to question suspects, victims and witnesses, to collect evidence and to conduct on-site investigations. In carrying out these taks, the Prosecutor may, as appropriate, seek the assistance of State authorities concerned.” Rule 39 (“Conduct of Investigations”) provides, in part: “In the conduct of an investigation, the Prosecutor may: (i) summon and question suspects, victims and witnesses and record their statements, collect evidence and conduct on-site investigations; […].”
13 - Emphasis added. According to Rule 2 of the Rules, a “suspect” is defined as: “A person concerning whom the Prosecutor possesses reliable information which tends to show that the person may have committed a crime over which the Tribunal has jurisdiction.” At the start of the second interview with Mr. Jokic on 1 April 2000, Peter McCloskey from the Prosecution informed Mr. Jokic that he was “considered as a suspect.” P26.2, p.1.
14 - See, Jokic Motion and Response, para. 5.
15 - Article 18(3) of the Statute provides: “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 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.” Rule 42 (“Rights of Suspects during Investigation”), which is included in Part 4 of the Rules (“Investigations and Rights of Suspects”), provides:
(A) A suspect who is to be questioned by the Prosecutor shall have the following rights, of which the Prosecutor shall inform the suspect prior to questioning, in a language the suspect speaks and understands:
(i) the right to be assisted by counsel of the suspect’s choice or to be assigned legal assistance without payment if the suspect does not have sufficient means to pay for it;
(ii) the right to have the free assistance of an interpreter if the suspect 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 the suspect 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 the 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.
16 - Rule 43 (“Recording Questioning of Suspects”) provides: 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 the suspect 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 the suspect has said, and to add anything the suspect may wish, and the time of conclusion shall be recorded;
(iv) a copy of the recorded tape will be supplied to the suspect or, if multiple recording apparatus was used, one of the original recorded tapes;
(v) after a copy has been made, if necessary, of the recorded tape, 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; and (vi) the tape shall be transcribed if the suspect becomes an accused.
17 - See, P25.1/A, p. 2; P26.1/A, p. 1; and P26/.2/A, p. 1 (agreeing to the interpreter provided by the Prosecution).
18 - See, P25.1/A, p. 1; P26.1/A, p. 1. At the April 2000 interview with Mr. Jokic, Peter McCloskey from the Prosecution repeated that Mr. Jokic had the right to remain silent, adding that “if, during the questioning if you don’t want to answer the question, you don’t have to.” Mr. Jokic clarified: “It means that I do not have to answer the questions?” to which Mr. McCloskey responded “correct” and asked if “knowing all this” Mr. Jokic was willing to speak to members of the Prosecution. Mr. Jokic responded “yes”. P26.2/A, pp. 1-2.
19 - See, e.g. Prosecutor v. Zejnil Delalic, Case No. IT-96-21-T, Decision on the Motion on the Exclusion and Restitution of Evidence and Other Material Seized from the Accused Zejnil Delalic, 9 October 1996, para. 12: “All that is necessary under Rule 42 is that the suspect be informed of his rights as set out in the Rules.”
20 - P26.1/A, p.1.
21 - See, P25.1/A, p. 1-2: Mr. Ruez asked Mr. Obrenovic: “I assume that you already made a choice regarding who your counsel is?” to which Mr. Obrenovic, who was accompanied by Mr. Simic, replied: “I obviously did.”; Mr. Ruez introduced the persons present at the start of the second interview with Mr. Jokic, indicating that Mr. Jokic and “his defence lawyer, Mr. Simic” were present. Mr. Jokic did not indicate that this information was incorrect. P26.2/A, p.1.
22 - See, P25.1/A, p. 2; P26.1/A, p. 1; and P26.2/A, p. 1.
23 - Guidelines on the Standards Governing the Admission of Evidence, 23 April 2003 (“Guidelines”).
24 - Article 20 (“Commencement and conduct of trial proceedings”) of the Statute provides, in relevant part: “1. The Trial Chambers shall ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with the rules of procedure and evidence, with full respect for the rights of the accused and due regard for the protection of victims and witnesses.” Article 21 (“Rights of the accused”) provides, in relevant part: 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;
[…]
(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.
25 - Rule 95 (“Exclusion of Certain Evidence”) provides: “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.”
26 - Decision on Prosecution’s Motion to Amend Witness List, 25 June 2003.
27 - See, e.g., Trial Proceedings, 8 July 2003, T.876-77.
28 - See, e.g., Prosecutor v. Miroslav Kvocka et al., Case No. IT-98-30/1-T, Decision on the Admission of the Record of the Interview of the Accused Kvocka, 16 March 2001. See also, 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. Emphasis added.
29 - The Trial Chamber recalls that the issue of Mr. Simic representing both Mr. Obrenovic and Mr. Jokic during the investigative stage of these proceedings was already raised by both defendants at the time that the Prosecution moved to join the cases of the two accused, and that many of the arguments advanced by the Jokic Defence in the Jokic Motion and Response had previously been raised and addressed. See, Dragan Jokic’s Motion for Separate Trial, dated 21 June 2002 and filed 27 June 2002. See, Decision on Jokic’s Motion Requesting a Separate Trial, 5 July 2002. See also, Case Nos. IT-98/1-PT; IT-01-43-PT; IT-01-44-PT, Written Reasons following Oral Decision of 15 January 2002 on the Prosecution’s Motion for Joinder, 16 January 2002, paras 8, 11, 14 and 20-21, and at para. 25: “The Trial Chamber is not required at this stage of the proceedings to go into the merits of any argument that Jokic and Obrenovic should not have been represented at ?ang interview by the same lawyer, and that a conflict of interest exists between them. The proper determination of these issues is at trial, where the admissibility of the interviews as evidence will have to be considered by the Trial Chamber.”
30 - Jokic Motion and Response, para.1.
31 - Jokic Motion and Response, paras 9 and 13.
32 - Jokic Motion and Response, paras 1 and 3. The Jokic Defence further alleges that Mr. Jokic and “others in the VRS” were “instructed that all officers who had received summonses were to be represented by, attorney, Mr. Krstan Simic.”
33 - Jokic Motion and Response, para. 8, citing P26.1/A, p. 9, p.17, pp. 25-26, pp. 48-49, p. 56-57, p. 68 and p.70.
34 - Jokic Motion and Response, para. 15, citing P26.2/A, p.6 and p.9, and para. 18, citing P26.2/A, p.71.
35 - Jokic Motion and Response, para.1. See also, paras. 17 and xx 19
36 - See, Jokic Motion and Response, para. 34.
37 - The Trial Chamber attributes no weight to proposed exhibit D2/3, letter from the Republika Srpska Ministry of Defence on interviews of suspects and witnesses in the investigation conducted by the International Criminal Tribunal for former Yugoslavia regarding events in Srebrenica in 1995.
38 - See, Rule 90 of the Rules.
39 - The Trial Chamber recalls a decision it took in a separate proceeding, Prosecutor v. Momir Nikolic, Case No. IT-02-60/1-T, Decision Regarding the Preparation of Sentencing Hearing, 28 May 2003 in which it held that “for the purposes of sentencing, the Trial Chamber shall take into consideration the factual submissions upon which the plea agreement was based, and other relevant information, as filed by the Prosecution and Defence in the sentencing briefs and as provided in the submissions made by the parties at the sentencing hearing”. Thus, the Jokic interviews cannot be considered in the proceedings against Dragan Obrenovic unless specifically tendered and admitted in those proceedings.