I. INTRODUCTION AND PROCEDURAL BACKGROUND

On 5, 9 and 10 June 1997, Mr. Thomas Moerbauer, a District Inspector in the Austrian police and a witness for the Office of the Prosecutor ("Prosecution"), was examined before 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 ("International Tribunal"). Following the cross-examination of Mr. Moerbauer, the Prosecution, on 10 June 1997, sought to tender into evidence certain documents identified as Exhibits 104 - 108, 148 and 151. The Defence for all four of the accused persons ("Defence") unanimously objected to the admission of any of the Exhibits into evidence on various grounds. On 11 June 1997, the Trial Chamber rendered an oral decision, overruling the objections of the Defence. It reserved its written decision to a later date.

A. Applicable Provisions

1. The following provisions of the Rules of Procedure and Evidence of the International Tribunal ("Rules") are relevant.

B. Pleadings

(i) The Prosecution

2. After cross-examination of Mr. Moerbauer by the Defence, the Prosecution sought to tender into evidence a document referred to by the witness as his aide-memoire, which he had produced to assist the study and classification of the numerous documents recovered during a search and seizure operation carried out at the apartment of the accused Zdravko Mucic on 18 March 1996, in Vienna, Austria, pursuant to a search warrant issued by an Austrian judge Exhibit 104). Also sought to be introduced were two passports issued in the name of Zdravko Mucic (numbered Exhibits 105 and 106), a Pass for the War Presidency in the name of Mr. Mucic (Exhibit 107), and a Military ID Card from the HVO bearing his name (Exhibit 108). In addition, the Prosecution sought the admission of the record of a police interview with Mr. Mucic, conducted when he was taken into custody by the Vienna police on the day of the search (Exhibit 148) and the record of the search of his apartment (Exhibit 151).

3. In his submission, Mr. Turone for the Prosecution stated that the aide-memoire was tendered, not for the truth of the analysis and evaluation of the single documents, but to show the system the witness had devised for identifying the various documents seized by the Austrian police in the course of its searches of a number of related locations on 18 March 1996. The aide-memoire would show the indicia on which the witness relied for the identification of every single document. The numbering of the documents inside every file is reflected in the aide-memoire.

4. The Prosecution further made the general argument that Rule 73 requires that an accused who wishes to exclude evidence obtained from him make a preliminary motion to that effect. Having unsuccessfully made such a motion, the accused Zejnil Delalic has lost any right to further contest the admissibility of evidence seized in Vienna.

5. The Prosecution further argued that the search of Mr. Mucic’s apartment was properly carried out and his statement properly obtained, and that the exhibits now in issue should be admitted into evidence for their relevance to the proceedings.

6. It was submitted by the Prosecution that as the position of Mr. Mucic inside the armed forces of Bosnia and Herzegovina and his command responsibility is in issue, and strictly connected to the matter of the crimes for which he is indicted, any document indicating his position within these armed forces which was lawfully seized within the scope of the search warrant is admissible. Exhibits 107 and 108 are, in the view of the Prosecution, in this category. They indicate the capacity of Mr. Mucic to enter into the premises of the War Presidency and his position within the HVO.

7. The Prosecution argued that the two passports (Exhibits 105 and 106), which were valid for 1992, are relevant not only to the relationship between Mr. Mucic and the apartment searched, but also to an alibi defence. This is because they support an alleged journey made by Mr. Mucic outside the former Yugoslavia during the period in issue in the present case.

8. The Prosecution stated that the search of Mr. Mucic’s apartment executed by the Austrian police was lawful. The apartment was searched pursuant to a search warrant ordered by an investigating magistrate. The Prosecution suggested that the contentions made by the Defence relate to the conduct of the searches, which does not affect the result or the admissibility of the seized items at trial. Whilst conceding that mistakes did occur in the execution of the search warrant, the Prosecution submitted that it cannot be seriously argued such mistakes constitute violations of fundamental human rights. The admission of these exhibits into evidence would not seriously damage the integrity of the present proceedings.

9. It was further submitted by the Prosecution that the taking of Mr Mucic’s statement following his arrest on 18 March 1996 was fair and in compliance with the Rules. He was advised of his rights, including his right to silence and to Counsel, and he had an interpreter. He was advised that, in accordance with Austrian law, if he remained silent he would not be able to give his side of the story and that if he co-operated and was found guilty, the co-operation would operate as a mitigation. He chose to speak. This advice cannot be regarded as unfair inducement. Most systems of law have similar provisions. The information provided to Mr. Mucic is perfectly consistent with international standards of human rights.

(ii) The Defence

10. The Defence unanimously objected to the application of the Prosecution to tender the abovementioned documents.

11. Mr. Olujic, Counsel for Mr. Mucic, objected that the piecemeal presentation of the evidence was inappropriate. He submitted that all the facts regarding the testimony of the documents were premature. Mr. Moran, Counsel for Hazim Delic, referred to Exhibit 104 and pointed out that it is full of references to documents which are not part of the record of the trial. Such irrelevant references should be redacted.

12. Ms. Residovic, Counsel for Mr. Delalic, objected to all the tendered items being admitted into evidence. She argued that Exhibit 104 is the analysis of evidence which is not part of the case file and is inadmissible. It would be premature for it to be admitted because it contains reports by various persons and not just by this witness. For that reason also they are inadmissible and premature. In the view of Counsel, the evidence contains a number of illogical allegations which will probably be removed later on in the proceedings. Counsel objected to the admission into evidence of Exhibits 105, 106, 107 and 108 on the grounds that, in the course of the testimony of Mr. Moerbauer it had been clearly established that there were a number of irregularities in the search of Mr. Mucic’s apartment and that actions were taken which were unlawful according to Austrian law.

C. Findings

13. The Rules have provided a liberal and less technical rule relating to the admissibility of evidence. They uphold the principle that evidence admitted must not only remain within the accepted norms and permissible ambit of the administration of justice but must also ensure that its admission is not antithetical to, and would not seriously damage, the integrity of the proceedings (see Rule 95). Evidence will be admissible whenever it is relevant to the proceedings and has probative value (see Sub-rule 89(c)). It is the obligation of the Trial Chamber to ensure that every piece of evidence admitted should not challenge the integrity of the proceedings.

14. Under Sub-rule 89(A) the Trial Chamber is not bound by national rules of evidence. This does not, however, mean that national rules of evidence which will best favour a fair determination of the matter before the Trial Chamber will be ignored. The Trial Chamber will apply such national rules in cases not otherwise provided for in Section 3 of the Rules (Sub-rule 89(B)). In this way the Trial Chamber seeks to adopt the best rules in its determination of the matter before it.

15. In this regard, a classic statement of the "best evidence rule" is contained in the old English case of Omychund v Barker (1745) 1 Atk. 21 at p. 49 where Lord Hardwicke is quoted as saying, that "the judges and sages of the law have laid it down that there is but one general rule of evidence, the best that the nature of the case will allow." In the circumstances of this case, the Trial Chamber will guide its consideration of the evidence relying on this aphorism. The principle of a fair trial is dominant in our consideration. The Trial Chamber will rely on the best evidence available in the circumstances of the case.

16. The Prosecution is tendering Exhibit 104 as an aide-memoire produced by the witness to assist him in identifying the numerous documents retrieved by other officers in the course of the search conducted on 18 March 1996. The witness has admitted that these documents were not seized by him. His connection with them was only in respect of their division into categories and indexing.

17. The Trial Chamber is satisfied, and the Defence is not disputing the fact, that the aide-memoire was produced by the witness and therefore does not fall into the same category as the documents from which it was compiled. The aide-memoire can be tendered through the witness who is the author. The Trial Chamber therefore admits the aide-memoire as Exhibit 104.

18. The two passports, the War Presidency Pass and the identity card belonging to Mr. Mucic (exhibits 105 - 108) were tendered through the witness. Defence objections to their admissibility were based on grounds of non-compliance with the procedural laws of Austria in the carrying out of the search. It has already been stated that the Trial Chamber is not bound by national laws of evidence (Sub-rule 89(A)). Accordingly, the Austrian laws are not binding with respect to the validity vel non of the searches conducted.

19. The Trial Chamber is concerned with evidence which is relevant and is of probative value. It would seem to be consistent with the Rules that where evidence is relevant and has probative value, it is immaterial how it has been obtained. Except that is, if it is obtained by methods which cast doubts on its reliability, or if its admission would be antithetical to, and would seriously damage the integrity of the proceedings. Mr. Mucic has not disputed that the passports, identity card and Pass belonged to him. He has also not claimed that they were fraudulently obtained from him by methods which are unconscionable.

20. The Trial Chamber is not satisfied that the method by which the evidence was obtained amounts to such conduct as to induce the exercise of our discretion to exclude it. The Trial Chamber is of the opinion that it would constitute a dangerous obstacle to the administration of justice if evidence which is relevant and of probative value could not be admitted merely because of a minor breach of procedural rules which the Trial Chamber is not bound to apply.

21. The governing consideration in these cases is the overriding interest of justice. The Trial Chamber is satisfied that the interest of justice in this case demand that the passports, identity card and Pass, which are both relevant and of probative value, should be admitted into evidence. The passports (Exhibits 105 and 106), Pass (Exhibit 107) and identity card (Exhibit 108) are therefore hereby admitted into evidence.

22. The Trial Chamber does not accept the submission by the Prosecution that the unsuccessful application to exclude evidence under Sub-rule 73(A) precludes any further effort through relevant procedure to exclude evidence. This is a misunderstanding of the provisions of Sub-rule 73(A). The application of the Rule is limited to motions which are brought within 60 days after the initial appearance of the accused, and in any case before the hearing on the merits. These are preliminary motions which enable the accused to prepare for his defence. There is no rule precluding the raising of any matters as a defence which will enable the accused to show that his rights have been violated.

23. The Trial Chamber reserves the right to exercise its discretion to exclude any evidence admitted if it is satisfied that it was obtained by means contrary to internationally protected human rights.

24. The Trial Chamber already considered the admission of the police interview of Mr. Mucic (Exhibit 148) in its "Decision on Zdravko Mucic’s Motion for the Exclusion of Evidence" of 4 September 1997 (Official Record at Registry Page D5095 - D5105) in which Exhibit 148 was excluded from evidence. Similarly, the admission of the Search Record (Exhibit 151) was considered and granted by the Trial Chamber during the proceedings on 1 September 1997. Further consideration of the admission of these items is therefore unnecessary.

For the foregoing reasons, the TRIAL CHAMBER, being seized of the oral application of the Prosecution,

GRANTS the application to tender the documents identified as Exhibits 104, 105, 106, 107 and 108 into evidence.

Done in both English and French, the English text being authoritative.

__________________________

Adolphus Godwin Karibi-Whyte

Presiding Judge

Dated this ninth day of February 1998

At The Hague,

The Netherlands.

[Seal of the Tribunal]