Case No. IT-01-48-T

Before:
Judge Liu Daqun, Presiding
Judge Florence Ndepele Mwachande Mumba
Judge Amin El Mahdi

Registrar:
Mr. Hans Holthuis

Decision of:
8 July 2005

________________________________________

The Office of the Prosecutor:

Mr Phillip Weiner
Ms Sureta Chana
Mr. David Re
Mr. Manoj Sachdeva

Counsel for the Accused:

Mr. Peter Morrissey
Mr. Guénaël Mettraux

I. INTRODUCTION
1. 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 seized of the “Motion for Exclusion of Statement of Accused”, filed by the Defence on 6 June 2005 (“Motion”), in which the Defence requests the Trial Chamber not to admit the record of the interview of Sefer Halilovic taken by investigators of the Office of the Prosecutor (“Prosecution”) on 6 May 1996 and tendered by the Prosecution on 28 April 2005.¹ The Prosecution filed its “Prosecution Response to Defence Motion to Exclude the Statement of the Accused” on 17 June 2005 (“Response”), with confidential annexes.

2. On his own initiative, Sefer Halilovic (“Accused”) was interviewed by the Prosecution on 23 and 24 February 1996, on 30 and 31 March 1996, on 15 April 1996 and on 5 and 6 May 1996.² His statement was written down in a 25 page statement (“Statement”).³ The interviews were conducted in French and Bosnian. During the interviews an interpreter was present. The Prosecution did not keep notes of the interviews in its records and the interviews were not audio- or video recorded.
   II. ARGUMENTS OF THE PARTIES
   A. Arguments of the Defence

3. The Defence objects o the procedure of tendering the Statement from the bar table and to the admission of the Statement.
   Tendering the Statement from the bar table

4. The Defence raises a general objection to tendering statements of the Accused from the bar table, and submits that “SaCdmitting unproved statements of the Accused into evidence as proposed is contrary to and undermines basic principles of the Tribunal – inter alia, the best evidence rule, the principle that evidence is oral, live and public, the principle that the Accused has a right to test Prosecution evidence in cross-examination, and that he generally has a –statutory – right to confrontation as well as the right to a fair and public trial.”⁴

5. The Defence argues that “normally, (admitting the statement of an accused into evidence( is not permitted unless and until the Accused gives evidence and only where the Prosecution has established to the Court’s satisfaction special circumstances that justify its admission, in addition to the evidence given at trial.”⁵ The Defence submits that admitting “a document that purports to represent the view of the accused” from the bar table would “gravely undermine, if not totally obliterate, the right of the Accused to remain silent, his right to confrontation and ultimately his right to a fair trial” and that this would also be prejudicial to the Defence as this practice would deprive the Defence of its chance to test the accuracy of the statement.⁶
   Statement taken in accordance with the Rules?

6. The Defence further submits that the Statement was not taken in accordance with the relevant provisions of the Statute of the Tribunal (“Statute”) and the Rules of Procedure and Evidence (“Rules”) in particular Rules 42, 43, 63, 89 and 95. The Defence argues that the reliability, accuracy or legality of the Statement was not proven by the Prosecution;⁷ that Sefer Halilovic was not informed that he was regarded as a suspect; that “the Prosecution should have applied to Mr Halilovic the safeguards and guarantees provided for in the Rules for individuals regarded as suspects, out of an abundance of caution [ …]”;⁸ and that Sefer Halilovic was not advised that his statement could be used in evidence against him, which is in violation of the right of an accused not to incriminate himself.⁹

7. Furthermore, the Defence argues that the statement should be excluded from evidence pursuant to Rule 89 (D) of the Rules, as an unfairness arises “not only because the conduct of the Prosecution has produced a record/statement which is unreliable and would create an unfairness for the Accused, but also, in the alternative, because no such statement/interview might have been made if the investigation had been properly conducted [ …].”¹⁰
   B. Arguments of the Prosecution

8. The Prosecution requests that the Trial Chamber carefully considers why the Defence now moves to have the Statement of the Accused excluded, arguing that the principal objection to the statement has nothing to do with procedural fairness, but that the statement is incriminating and contradictory to the Defence case.¹¹ The Prosecution submits that the statement has been on the Prosecution exhibit list since 17 June 2002¹² and that the very late Defence objection “is a trial tactic, aimed at an ultimate submission to the effect that the document is inadmissible because the Prosecution has no[t] called any live testimony as to how Mr. Halilovic came to sign the statement he gave to the OTP in 1996.”¹³

9. The Prosecution response to the arguments of the Defence is as follows.
   Tendering the Statement from the bar table

10. The Prosecution submits that “there is no difference in principle between the admissibility of a statement of a person taken by an OTP investigator (or anyone else for that matter) and any other document containing a representation which is sought to be led in evidence. Each is a hearsay document to which the normal rules of admissibility apply and each document must be assessed on its own merits.”¹⁴ It further submits that “the fact that an investigator has typed the words of the Accused into statement form (and that he has signed it) does not put it into any special category requiring additional or special scrutiny.”¹⁵

11. The Prosecution argues that tendering documents from the bar table is permissible and a normal occurrence in proceedings before the Tribunal, as several precedents show.¹⁶ The Prosecution finally submits that the procedure of tendering documents from the bar table is entirely consistent with the Guidelines adopted by the Trial Chamber.¹⁷
    Statement taken in accordance with the Rules?

12. The Prosecution submits that Sefer Halilovic, at the time of the interviews, was not a suspect in any Prosecution investigation.¹⁸ In May 1996, the Prosecution “had almost no documentation in relation to Grabovica and Uzdol.”¹⁹ The Prosecution did not obtain a dossier from the Bosnian Federation Prosecutors relating to its investigations into the events in Grabovica until 25 February 1998 and “in October 2000 the Prosecution obtained much of the documentation necessary to properly analyse a case against Mr. Halilovic.”²⁰

13. The Prosecution further submits that, in April 1996, it was conducting an investigation into crimes allegedly committed by the ABiH and the Bosnian Government during the war, including crimes committed in the Neretva Valley between March and November 1993.²¹ This investigation into crimes committed in the Neretva Valley included investigating alleged killings of civilians in Grabovica and other villages, as well as illegal detentions and attacks on detainees in military camps and plunder.²² The Prosecution submits that in 1996, the main suspect in relation to the alleged crimes in Grabovica was Zulfikar Alispago.²³ It argues that the mere fact that a superior’s subordinates are suspected of having committed crimes "does not itself turn the superior into a suspect." For the Prosecution to have regarded the Accused as a suspect it would have had to have information that Sefer Halilovic had failed to prevent the massacres in Grabovica and Uzdol or failed to punish the perpetrators.²⁴

14. The Prosecution also argues that Sefer Halilovic by signing the statement acknowledged that “the investigation may subsequently bring out facts which might involve my own responsibility” and “ce que je vais (dire( pourra etre retenu comme prevue.”²⁵ According to the Prosecution, this “could only have indicated to him that [the statement] could be used against him in evidence, or at the very least signalled that he should seek legal advice, if he feared self-incrimination.”²⁶ Sefer Halilovic received this warning even though “the OTP did not consider then him responsible for [the] events.”²⁷

15. The Prosecution also submits that the statement was taken with the assistance of a competent United Nations interpreter, with good knowledge of military terms, who read the statement, as written by the investigator, to Sefer Halilovic before he signed it.²⁸ Having been informed that he may be assisted by an attorney, Sefer Halilovic “unequivocally waived his right to have a lawyer present during the interviews at their very commencement”.²⁹ The Prosecution argues that there is no strict requirement to keep records of any notes of the investigator, nor is there a requirement to keep a list of questions.³⁰

16. With regard to the recording of the interview, the Prosecution submits that the Rules do not require the Prosecution to audio or video record the taking of witness statements.³¹ Rule 43 requires the recording of interviews with suspects, but as Sefer Halilovic was not a suspect at the time of the interview, there was no legal requirement to audio or video record the interview.³²
    III. DISCUSSION

17. The Trial Chamber shall, as prescribed in Rule 89 (B), in cases not otherwise provided for in the provisions of Rules 89 to 98 of the Rules, 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.

18. The jurisprudence of the Tribunal provides that “a pre-requisite for admission of evidence must be compliance by the moving party with any relevant safeguards and procedural protections and that it must be shown that the relevant evidence is reliable.”³³ In light of this, as has already been held by the Trial Chamber in its “Decision on Admission into Evidence of Interview of the Accused”, filed on 20 June 2005, the Trial Chamber finds that there is no prohibition for a record of an interview with the Accused to be tendered from the bar table and subsequently admitted into evidence if the Trial Chamber establishes that the interview was obtained voluntarily, that it was conducted in compliance with the requirements set out in the Rules and that it is relevant and has probative value.³⁴

19. The principal question at issue is what safeguards should have been applied by the Prosecution in order for a former statement of a now accused person to be admissible into evidence.

20. The jurisprudence of the Tribunal shows that there is a fundamental difference between an accused, who might testify if he so chooses, and a witness. The Statute and the Rules provide for safeguards for suspects and accused, which are not enjoyed by witnesses. As provided for in Rule 42, which is based on the rights of a suspect enshrined in Article 18 of the Statute, a suspect has the right to be assisted by counsel and an interpreter, he has the right to remain silent, and he has to be warned that his statement may be used in evidence.³⁵ A witness, when questioned, does not enjoy the specific rights of a suspect, and therefore does not have to be advised of these rights.

21. The Trial Chamber endorses the finding of the Celebici Trial Chamber that “Rule 42 embodies the essential provisions of the right to a fair hearing as enshrined in Article 14(3) of the International Covenant on Civil and Political Rights and Article 6(3)(c) of the European Convention of Human Rights. These are the internationally accepted basic and fundamental rights accorded to the individual to enable the enjoyment of a right to a fair hearing during trial.”³⁶ The Trial Chamber notes that where a now accused person has been interviewed as a witness, the admission of that statement during trial could violate the rights of the accused to a fair trial, in particular his right to remain silent. The fundamental difference between an accused and a witness may result in an inadmissibility of a statement of an accused taken at the time when he was still considered to be a witness, insofar as the statement was not taken in accordance with Rule 42, 43 and 63 of the Rules. The Trial Chamber finds that in order to protect the right of the Accused to a fair trial, in accordance with Article 21 of the Statute, it should be taken into account whether the safeguards of Rules 42, 43 and 63 of the Rules have been fully respected when deciding on the admission of any former statement of an accused irrespective of the status of the accused at the time of taking the statement.

22. The Trial Chamber notes that in the present case the Accused was advised of the rights provided for in Rule 42 of the Rules prior to his being questioned, in a language that he understood and that he subsequently waived his right to have counsel present during the interview, as permitted under Rule 42 (B).

23. The Defence submission that Sefer Halilovic did not understand that the evidence he gave at that time could be used against him, cannot hold. Sefer Halilovic was informed that he had the right to remain silent and that any statement he made may be used in evidence, as provided for in Rule 42 of the Rules.³⁷ This was sufficient to inform the Accused that any statement given may be used in evidence against himself. The investigator in the current case was under no obligation to go any further.

24. Rule 43 provides for audio and video-recording of the interview of suspects and aims at ensuring the integrity of the proceedings, inter alia, by providing for an instrument to ascertain the voluntariness of a statement and the adherence to other relevant safeguards as provided for in Rule 42 and Rule 95.³⁸ The Trial Chamber finds that Rule 43 is a fundamental provision to protect the rights of a suspect and an accused. Moreover, it is a safeguard for a full and accurate reflection of the questions and answers during the interview and thus enables the parties and the Trial Chamber to verify the exact wording of what was said during the interview.

25. The Trial Chamber notes that the Statement was read out to Sefer Halilovic in his own language before he signed each page of the document. The Trial Chamber finds that the content of the Statement is a general reflection of what Sefer Halilovic said during the interview. However, the fact is that the Statement is but a summary of seven days of interviews, taken over a period of four months. Considering that according to the interpreter Sefer Halilovic gave “very detailed answers to the questions,”³⁹ the Trial Chamber is not satisfied that the Statement represents a full and complete record of what Sefer Halilovic said. It is more probable than not that not every detail or nuance of the interview was included in the Statement, which affects its reliability. Because the Statement was not audio or video recorded, the Defence at present is incapable to verify the accuracy of the Statement. The only effective way to challenge the content of the statement at this moment in time would be for Sefer Halilovic to waive his right to remain silent and testify before this Tribunal.

26. In the present case, Rule 43 was not applied at the time of taking the Statement. Sefer Halilovic has not chosen to waive his right to remain silent during trial. Thus, the Trial Chamber finds that the admission of the Statement would infringe upon the Accused’s right to a fair trial.
    IV. DISPOSITION

27. For the foregoing reasons, pursuant to Rule 89 (D), the Trial Chamber GRANTS the Motion and DECIDES not to admit the Statement into evidence.

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

________________
Judge Liu Daqun
Presiding

Dated this eighth day of July 2005
At The Hague
The Netherlands

[Seal of the Tribunal]