IN THE TRIAL CHAMBER
Before:
Judge Richard May, Presiding
Judge Mohamed Bennouna
Judge Patrick Robinson
Registrar:
Mrs. Dorothee de Sampayo Garrido-Nijgh
Decision of:
25 June 1999
PROSECUTOR
v.
DARIO KORDIC
MARIO CERKEZ
_________________________________________
DECISION STATING REASONS FOR
TRIAL CHAMBERS RULING OF 1 JUNE 1999
REJECTING DEFENCE MOTION TO SUPPRESS EVIDENCE
_________________________________________
The Office of the Prosecutor
Mr. Geoffrey Nice
Ms. Susan Somers
Mr. Patrick Lopez-Terres
Mr. Kenneth Scott
Counsel for the Accused
Mr. Mitko Naumovski, Mr. Turner Smith Jr., Mr. Ksenija Turkovic, Mr.
Robert A. Stein, Mr. Mr. Stephen M. Sayers, Mr. David F. Geneson, and Mr. Leo Andreis, for
Dario Kordic
Mr. Bozidar Kovacic and Mr. Goran Mikulicic, for Mario Cerkez
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 ("the International Tribunal"),
NOTING the Motion to Suppress Evidence by Defendant Dario Kordic ("the Motion"), filed by Defence counsel of the accused Dario Kordic on 22 January 1999 with attachments, and the Prosecutors Response to Motion to Suppress Evidence, filed by the Office of the Prosecutor ("Prosecution") on 5 February 1999,
NOTING FURTHER this Trial Chambers Order Scheduling a Hearing on the Motions Concerning Rule 95, filed on 4 May 1999, pursuant to which the Defence submitted Affidavits in Lieu of Live Testimony (including the affidavits of Stipo Zigonjic, Mato Tadic and Vinko Antunovic), filed on 17 May 1999, whereas the Prosecution submitted a Prosecutors Summary of Evidence Concerning Search Warrant Hearing, filed on 17 May 1999, and a Submission of Declarations in Connection with Rule 95 Hearing (including the affidavits of Trudie Gillissen, Sylvie Pantz, and Michael Dornan), filed on 31 May 1999,
NOTING the written submissions of the parties and their oral arguments heard on 31 May 1999,
NOTING that at the hearing on 1 June 1999, the Trial Chamber ruled that "the motion will be rejected and the evidence will be admitted; a written decision will follow in due course"1,
NOTING that the Defence argues:
(a) The accused Dario Kordic has locus standi to challenge the introduction of evidence obtained in this search pursuant to the Judgement of the Appeals Chamber in Prosecutor v. Dusko Tadic2,
(b) Neither the Statute nor the Rules of Procedure and Evidence of the International Tribunal ("the Rules") grant the Prosecution authority to take direct enforcement action in the form of armed search and seizure operations within the boundaries of a sovereign state without their consent and/ or participation3;
(c) The absence of any express language in the Statute or the Rules indicates that the Security Council of the United Nations did not intend the International Tribunal or the Prosecution to have enforcement jurisdiction in the territory of sovereign states; the International Tribunal as an international organisation has enumerated powers under the "doctrine of speciality"4;
(d) In the absence of expressly granted powers, the International Tribunal is bound by customary international rules of consent-based judicial assistance and must therefore rely upon cooperation with the municipal authorities of the sovereign state to execute its orders, in compliance with domestic law5;
(e) The Prosecution did not seek the consent of Bosnia and Herzegovina and was therefore in violation of customary international law on state sovereignty6, the laws of Bosnia and Herzegovina7, and standards of criminal procedure8; moreover, a satisfactory inventory of the confiscated materials has yet to be provided;
(f) The power of the Prosecution cannot derive from SFOR; under Annex 1-A of the General Framework Agreement for Peace in Bosnia and Herzegovina SFOR is not vested with the power to execute search and seizure warrants but only with the power to arrest, detain and transfer indictees;
(g) All evidence seized as a result of the unlawful search is inadmissible and must be suppressed pursuant to Rule 95 of the Rules if the rule of law, the interests of justice and fundamental fairness are to be respected in this case.
NOTING THAT, on the other hand, the Prosecution submits:
(a) The accused Dario Kordic lacks locus standi to challenge the collection of this evidence; only the Federal Government of Bosnia and Herzegovina can properly assert any claim that its sovereignty was violated and it has raised no such challenge either on this occasion or on any previous occasions where on-site investigations were conducted;
(b) The Prosecution was fully empowered to conduct this investigation through the Statute and Rules of the International Tribunal9;
(c) The United Nations Security Council intended to create an effective International Tribunal with the powers to perform its mission10 and these powers are essential for its functioning (especially in situations of non-cooperation);
(d) The Prosecution and the International Tribunal are not subservient to the courts and authorities of Bosnia and Herzegovina; rather the International Tribunal has primacy11;
(e) Provisions concerning state assistance impose obligations on states and not on the Prosecutor; the Prosecutor "may" seek the assistance of a state under Rule 39 whereas states "shall" cooperate fully with the International Tribunal under Article 29;
(f) There was no improper use of SFOR or physical force; SFOR took no part in the search but was present purely to ensure the security of all persons present;
(9) The investigation was duly carried out in a lawful and appropriate manner12 and there exists no ground for the exclusion of the evidence found.
CONSIDERING that the dispute concerns a search executed at the Defence Office of Vitez municipality on 23 September 1998 pursuant to a search warrant issued by a Judge of the International Tribunal on 18 September 1998, by persons representing the Prosecution accompanied by SFOR,
CONSIDERING that it is not the warrant itself or the facts surrounding its execution which are in dispute, but the manner in which it was executed,
CONSIDERING that the Appeals Chamber in its Decision of 2 October 1995 in Prosecutor v. Tadic13 stated that "an accused, being entitled to a full defence, cannot be deprived of a plea so intimately connected with, and grounded in, international law as a defence based on violation of State sovereignty";
CONSIDERING that Rule 95 gives the accused the right to challenge evidence "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",
CONSIDERING that the accused therefore has standing to challenge the admissibility of this evidence,
CONSIDERING that Rule 2 of the Rules defines "investigation" as "all activities undertaken by the Prosecutor under the Statute and the Rules for the collection of information and evidence"; this definition covers the factual circumstances concerning the search warrant at issue here,
CONSIDERING that the power of the Prosecution to conduct investigations is clearly provided for in the Statute under Article 18, paragraph 2; furthermore, Rule 39 provides that "[i]n the conduct of an investigation, the Prosecutor may . . . seek, to that end, the assistance of any State authority concerned", which does not mean that she is obliged to do so under any circumstances,
CONSIDERING FURTHER that pursuant to Article 29 of the Statute all States have an obligation to lend cooperation and judicial assistance to the International Tribunal including the obligation to comply with the provisions of an order issued by the International Tribunal for the search of certain premises; this obligation is also embodied in Security Council Resolution 827 (1993), paragraph 414,
CONSIDERING that this obligation derives from the provisions of Chapter VII and Article 25 of the United Nations Charter ("the Charter"), pursuant to which the International Tribunal was established as a subsidiary organ of the Security Council itself,
CONSIDERING that Article 2, paragraph 7, of the Charter states that the principle of non-intervention in "matters which are within the domestic jurisdiction of any state . . . shall not prejudice the application of enforcement measures under Chapter VII",
CONSIDERING that the legal obligations of a Member State under the Charter of the United Nations prevail over their obligations under any other international agreement, pursuant to Article 103 of the UN Charter,
CONSIDERING ALSO that obligations under the Charter and particularly Chapter VII prevail over any international rules of consent-based judicial assistance,
CONSIDERING that the powers of the International Tribunal as provided for in the Statute are not in any way dependant upon domestic legislation,
CONSIDERING that the investigation carried out by the Prosecution, resulting in the seizure of certain materials, was perfectly within the powers of the Prosecution provided for in the Statute,
CONSIDERING FURTHER Security Council Resolution 1988 (1996), in which the Security Council:
7. Reminds the parties that, in accordance with the Peace Agreement15, they have committed themselves to cooperate fully with all entities involved in the implementation of this peace settlement, as described in the Peace Agreement, or which are otherwise authorised by the Security Council, including the International Tribunal for the Former Yugoslavia, as it carries out its responsibilities for dispensing justice impartially, and underlines that full cooperation by States and entities with the International Tribunal includes, inter alia, the surrender for trial of all persons indicted by the Tribunal and provision of information to assist in Tribunal investigations;
8. Recognises that the parties have authorised the multinational force referred to in paragraph 18 below16 to take such actions as required, including the use of necessary force, to ensure compliance with Annex 1-A of the Peace Agreement;
CONSIDERING that SFOR as an entity concerned with the implementation of the Peace Agreement acted properly and in accordance with its mandate in assisting this investigation,
PURSUANT TO Articles 18 (2) and 29 of the Statute and Rule 39 of the Rules,
HEREBY REAFFIRMS ITS RULING OF 1 JUNE 1999 REJECTING the Defence Motion.
Done in English and French, the English text being authoritative.
_____________________________
Richard May
Presiding Judge
Dated this twenty-fifth day of June 1999
At The Hague
The Netherlands
[Seal of the Tribunal]
1. Official transcript p. 3045.
2. Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, Prosecutor v. Dusko Tadic