Case No. IT-95-11-T

IN TRIAL CHAMBER I

Before:
Judge Bakone Justice Moloto, Presiding
Judge Janet Nosworthy
Judge Frank Höpfel

Registrar:
Mr. Hans Holthuis

Decision of:
19 January 2006

PROSECUTOR

_____________________________________________________

DECISION ADOPTING GUIDELINES ON THE STANDARDS GOVERNING THE ADMISSION OF EVIDENCE

The Office of the Prosecutor:

Mr. Alex Whiting
Ms. Nisha Valabhji

Counsel for the Accused:

Mr. Predrag Milovancevic

TRIAL CHAMBER I ("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");

NOTING that during the Pre-Trial Conference in the present case held on 12 December 2005 the Trial Chamber informed the Parties of its intention to adopt guidelines on the standards governing the admission of evidence ("Guidelines"), and that the Trial Chamber provided the Parties with a copy of the draft Guidelines;

NOTING that the deadline for the submission of comments on the draft Guidelines, of which the parties were informed in Courtroom I before the start of the pre-Trial Conference on 12 December 2005, expired on 16 January 2006;

NOTING that on 13 December 2005, the Prosecution stated that it is agreeable to the proposed guidelines;¹

NOTING that on 13 December 2005, the Defence stated that it would "comply with the deadline and file a written motion on all these issues";²

NOTING however, that the Defence has not made any such submission and, therefore, that the Trial Chamber has not received any comments on the guidelines from the Defence;

CONSIDERING that the Guidelines, as set forth in Annex A hereto, are reflective of the jurisprudence of the Tribunal and in conformity with the Rules of Procedure and Evidence of the Tribunal ("Rules"), notably Rule 89;

CONSIDERING that the adoption of the Guidelines will assist the Parties in knowing the standards that the Trial Chamber will apply in making its decisions on the admissibility of evidence, and thereby promotes more efficient and expedient trial proceedings;

HEREBY adopts the Guidelines, which shall govern the admission of evidence in this case.

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

_______________
Judge Bakone Justice Moloto
Presiding

Dated this nineteenth day of January 2006,
At The Hague
The Netherlands

[Seal of the Tribunal]

1. The Trial Chamber will begin any analysis on the admissibility of evidence by recalling Rule 89(C) of the Rules, which provides that "[ a] Chamber may admit any relevant evidence which it deems to have probative value", and Rule 89(D) of the Rules, which provides that "[ a] Chamber may exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial."

2. Parties should always bear in mind the basic distinction that exists between the admissibility of documentary evidence and the weight that documentary evidence is given under the principle of free evaluation of evidence. The practice will be, therefore, in favour of admissibility.

3. The admission of a document into evidence does not, in itself, signify that the information contained therein will necessarily be deemed to be an accurate portrayal of the facts. Factors such as authenticity and proof of authorship will naturally assume the greatest importance in the Trial Chamber’s assessment of the weight to be attached to individual pieces of evidence. As has previously been stated, "[ t] he threshold standard for the admission of evidence ₣…ğ should not be set excessively high, as often documents are sought to be admitted into evidence, not as ultimate proof of guilt or innocence, but to provide a context and complete the picture presented by the evidence in general".

4. The fact that this Trial Chamber may rule on the admissibility of a particular document or other piece of evidence will not prevent that ruling from being reversed. Therefore, a decision not to admit a piece of evidence may be quashed at a later stage if good cause is shown for doing so, for example, where further evidence emerges which is relevant, has probative value and thus justifies the admission of the evidence in question.

5. There is no general prohibition on the admission of documents simply on the grounds that their purported author has not been called to testify. Similarly, the fact that a document is unsigned or unstamped does not, a priori, render it void of authenticity. Authenticity and proof of authorship will assume the greatest importance in the Trial Chamber’s assessment of the weight to be attached to individual pieces in the framework of the free evaluation of evidence.

6. When objections are raised on grounds of authenticity or reliability, this Trial Chamber will follow the practice of this Tribunal, namely, to admit documents and video recordings and then decide on the weight to be given to them within the context of the trial record as a whole. As provided for in Rule 89(E) of the Rules, the tendering party may be requested to provide the Trial Chamber with verification of the authenticity of evidence obtained out of court. Additionally, when an objection is made on the ground of reliability, the tendering party may be required to produce sufficient indicia of reliability to make a prima facie case for the admission of the document, audio tape or video in question. On the request of a party or proprio motu, the Trial Chamber may order the party tendering copies of evidence to present the original or the best legible, audible or visible copy available.

7. 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 keep in mind this rule when submitting evidence to the Trial Chamber. What is considered 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.

8. Hearsay evidence is admissible. Out of court statements, which a Trial Chamber considers relevant and probative, are admissible under Rule 89(C). As stated by the Appeals Chamber in Aleksovski:

   Trial Chambers have a broad discretion under Rule 89(C) to admit relevant hearsay evidence. Since such evidence is admitted to prove the truth of its contents, a Trial Chamber must be satisfied that it is reliable for that purpose, in the sense of being voluntary, truthful and trustworthy, as appropriate; and for this purpose may consider both the content of the hearsay statement and the circumstances under which the evidence arose; or, as Judge Stephen described it, the probative value of a hearsay statement will depend upon the context and character of the evidence in question. The absence of the opportunity to cross-examine the person who made the statements, and whether the hearsay is "first-hand" or more removed, are also relevant to the probative value of the evidence. The fact that the evidence is hearsay does not necessarily deprive it of probative value, but it is acknowledged that the weight or probative value to be afforded to that evidence will usually be less than that given to the testimony of a witness who has given it under a form of oath and who has been cross-examined, although even this will depend upon the infinitely variable circumstances which surround hearsay evidence.

9. 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 which 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 are 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.

10. The Trial Chamber considers circumstantial evidence as being evidence of circumstances surrounding an event or an offence from which a fact at issue may be reasonably inferred. The Trial Chamber recognises that circumstantial evidence may be necessary in order to establish an alleged fact, particularly in criminal trials such as those before this Tribunal, where there is often no eye-witness or conclusive documents relating to a particular alleged fact. The Trial Chamber does not consider circumstantial evidence to be of less value than direct evidence. The Trial Chamber further considers that while individual items of evidence by themselves may be insufficient to establish a fact, when taken together, they may be revealing and decisive. In evaluating circumstantial evidence, the Trial Chamber will take particular notice of the Trial Chamber in Krnojelac, which stated that "[a] circumstantial case consists of evidence of a number of different circumstances which, taken in combination, point to the existence of a particular fact upon which the guilt of the accused person depends because they would usually exist in combination only because a particular fact did exist." The Trial Chamber in that case further added that "[i] t is not sufficient that it is a reasonable conclusion available from that evidence. It must be the only reasonable conclusion available."

11. The Trial Chamber emphasises what it considers to be an over-riding principle in matters of admissibility of evidence. The Trial Chamber is, pursuant to the Statute of the Tribunal, the guardian and guarantor of the procedural and substantive rights of the accused. In addition, it has the obligation to strike a balance in seeking to protect the rights of victims and witnesses. As a trial is an often complex journey in search for the truth in relation to the alleged individual criminal responsibility of the Accused, bearing in mind that "the truth" can never be fully satisfied, the Trial Chamber considers that questions of admissibility of evidence do not arise only when one of the parties raises an objection to a piece of evidence sought to be brought forward by the other party. This Trial Chamber has an inherent right and duty to ensure that only evidence which qualifies for admission under the Rules will be admitted. For this purpose, as may turn out to be necessary from time to time, the Trial Chamber will intervene ex officio to exclude from these proceedings those pieces of evidence which, in its opinion, for one or more of the reasons laid down in the Rules, ought not to be admitted in evidence.

12. Finally, pursuant to Rule 98 of the Rules, the Trial Chamber may be obliged proprio motu to summon witnesses and order their attendance, in order to address any outstanding questions regarding the individual criminal responsibility of the Accused emanating from the presentation of evidence by the parties.