Page 7370
1 Friday, 12th September 1997
2 (10.00 am)
3 JUDGE KARIBI-WHYTE: Good morning, ladies and gentlemen.
4 Can we have the appearances, please?
5 MR. NIEMANN: If your Honours please, my name is grant nigh
6 man and I appear with my colleagues Mr. Turone and
7 Mr. Khan for the Prosecution.
8 MS. RESIDOVIC: Good morning, your Honours. I am Edina
9 Residovic, Defence counsel for Mr. Zejnil Delalic,
10 together with me is my colleague, Eugene O'Sullivan,
11 professor from Canada.
12 MR. OLUJIC: Good morning, your Honours. I am Zeljko Olujic,
13 I am Defence counsel for Mr. Zdravko Mucic, together with
14 me is my colleague, Michael Greaves.
15 MR. KARABDIC: Good morning, your Honours. I am Salih
16 Karabdic, attorney from Sarajevo, Defence counsel for
17 Mr. Hazim Delic. Together with me is Mr. Tom Moran,
18 attorney from Houston Texas.
19 MR. ACKERMAN: Good morning, your Honours. Seated next to me
20 is Ms. Cynthia McMurrey, my name is John Ackerman and
21 together we represent Mr. Esad Landzo who is excused from
22 his appearance here this morning. Thank you.
23 JUDGE KARIBI-WHYTE: Thank you very much. We were
24 continuing this morning with Mr. Niemann for the
25 Prosecution.
Page 7371
1 MR. NIEMANN: Thank you, your Honour.
2 JUDGE KARIBI-WHYTE: You may proceed.
3 MR. NIEMANN: Your Honours, there were a couple of matters
4 that I followed up from yesterday that perhaps I might
5 deal with first. In relation to the question asked by
6 Mr. Greaves about the signature being put on the
7 document, your Honours, this document is a --
8 MR. GREAVES: I am sorry to interrupt, and I do apologise,
9 I have no transcript coming up on my computer. I do
10 apologise to my learned friend. I not only wish to hear
11 what he says but see it as well.
12 JUDGE KARIBI-WHYTE: Someone is coming to fix it for you.
13 I think you will continue so that we establish this.
14 MR. NIEMANN: Thank you, your Honours. The first matter,
15 your Honour, that I wish to draw the court's attention
16 to is that this is a document prepared in relation to
17 the arrest and subsequent detention of Mr. Mucic, it is a
18 custody report, so in itself it is not directly related
19 to the search itself, but I have been instructed that
20 the way this would be dealt with in Austria is that if
21 the judge, in this case Judge Seda, was unhappy with the
22 fact that the police officer had put another police
23 officer's name on this document, the way that it is
24 handled in Austria is that the police officer can be
25 disciplined, and apparently for breaches of public duty
Page 7372
1 one can even face a criminal sanction. So the judge
2 does not exclude the evidence at trial, he simply deals
3 with the officer for any breaches of the law that could
4 follow.
5 So I am instructed, your Honours, that any
6 mistakes that occur like this are dealt with in this
7 way, and I understand that the reason why that is so is
8 because it is not looked upon as being a police search
9 at all. It is looked upon as being the judge's search.
10 The judge is the one that is in control, and the police
11 are merely his agents, so if the police do not perform
12 the task correctly he deals with them as his agents,
13 employees, come what may, but the police are not seen in
14 this sense as a separate entity. So the net result of
15 that would be that the judge would be excluding his own
16 evidence, and rather than do that the result is that he
17 deals with the police officers by other means, and he
18 has the capacity to do that.
19 So, your Honours, at the end of the day, it is our
20 submission that these documents would not be excluded on
21 this basis at all in an Austrian court, so we have the
22 situation where they would not be excluded there, but if
23 your Honours were persuaded to accept the arguments of
24 Mr. O'Sullivan, they would be excluded here, which is
25 somewhat of an anomaly. It is an anomaly, your Honours,
Page 7373
1 if the purpose and object of the exclusion so to ensure
2 that officers comply with the law, because it would not
3 achieve that objective.
4 JUDGE JAN: May I ask one question? This case never went to
5 Austrian court. Did Dr. Seda have an opportunity to
6 comment on this deficiency or mistake or irregularity,
7 whatever you like to call it?
8 MR. NIEMANN: My understanding of the position, your Honours,
9 is that it was handled according to Austrian law in the
10 same way as if it had been an Austrian investigation,
11 under the direction of a judge. I understand,
12 your Honours, that there are some minor offences
13 apparently, and I must emphasise always that I am no
14 expert in this, but I understand that there are some
15 minor offences which the police do of their own
16 initiative, but major matters are handled under the
17 direction of an investigative judge. I understand that
18 this matter was approached as if it was a major
19 investigation at the outset, as under the control of an
20 investigative judge.
21 Your Honour asked me -- your Honour Judge Jan
22 asked me yesterday -- I think you may have asked a
23 question yesterday, whether the compliance with the
24 provisions for witnesses and so forth was mandatory or
25 directory. Your Honours, I am instructed that it is
Page 7374
1 regarded as being directory, and it is -- if I can just
2 read what I have been given, my instructions:
3 "Any of these alleged mistakes concern only
4 formalities which are established to ensure the
5 efficient course of proceedings, for instance the
6 presence of court witnesses. Such provisions are called
7 in the German speaking countries "Ordnungsvorschrift",
8 which is an old German legal term which means provision,
9 which directs the authorities on how to proceed. The
10 fact that these Ordnungsvorschrift might not have been
11 followed in each case by the Austrian police authorities
12 does not make the searches, or rather the their results
13 illegal or invalid and does not affect the admissibility
14 as a result of the searches at trial."
15 We are directed to a German legal author,
16 Mayerhofer/Rieder, in a publication called
17 Strafprozessordnung, and I do apologise, your Honour.
18 I can give these words to the --
19 JUDGE JAN: Difficult to pronounce.
20 MR. NIEMANN: Paragraph 140, Enr 5, thus even if there were
21 mistakes, violations of the provisions on the way
22 searches are carried out do not result in nullification
23 of the act itself. There is a further reference, legal
24 comment Wedrac page 218. I undertake to provide those
25 references to the court reporters.
Page 7375
1 So, your Honours, the issue of control and chain
2 of custody is slightly different to the way we
3 understand it in a common law setting, because it
4 appears, and I am instructed that this is the case, that
5 the documents, although in possession of the police
6 after search, are not really regarded as being in police
7 possession as such. They are regarded as being under
8 the control and possession of the judge, so the police
9 in fact have physical custody of them, but it is the
10 judge and only the judge that can make determinations
11 about them, so they are in effect -- the police are
12 again in this capacity acting under his direction and
13 control.
14 Finally, your Honours, on this point, and picking
15 up what I had said yesterday, even if there are failures
16 to comply with the law, there has not been demonstrated,
17 in my submission,, especially in relation to the
18 searches, any mala fides. Having regard to the fact
19 that even if one was to strictly apply common law
20 principles to illegally obtained evidence, then in the
21 exercise of discretion, it is our submission that they,
22 even in that setting, ought properly be admitted.
23 Your Honours, another issue that was raised by
24 Defence counsel was the fact that there was no link
25 between Mr. Delalic and the premises in Austria or that
Page 7376
1 Judge Seda had sufficient information in order to enable
2 him to form his reasonable suspicion that there was
3 material on the premises. Dealing firstly with what
4 Judge Seda had or did not have, we are not -- we do not
5 know exactly what he was told or what he relied upon,
6 and in my submission, your Honours, there is no evidence
7 to suggest that he did not perform his judicial duties
8 properly and that he did not properly act upon material
9 that was given to him by whatever source.
10 Your Honours are familiar with the fact that often
11 it is the case in search warrant cases that the judge
12 issuing the warrant receives information from a variety
13 of sources, whether they be documents, whether they be
14 oral testimony of the informant, or whatever. So in my
15 submission, your Honours, one cannot just make a bold
16 assertion in a vacuum that his Honour erred in the
17 performance of his judicial duty unless something can
18 positively be pointed to and there is no, in my
19 submission, obligation on the Prosecution to prove
20 that. One presumes the validity of a judicial act
21 unless something emerges to suggest it is otherwise, and
22 there is nothing in the material that we have been given
23 access to that would lead us to that conclusion.
24 Dealing with the question of whether or not there
25 is a link between Mr. Delalic and the premises, I remind
Page 7377
1 your Honours that in the evidence of Mr. Moerbauer, at
2 page 3542 of the transcript at page 12, he says that at
3 7.00 they spotted this vehicle and there was a suspicion
4 that this was the vehicle of Zejnil Delalic. In the
5 course of the afternoon, at 2.15 in the afternoon,
6 Delalic left the house through the entrance at
7 Taubergasse 15, and he came through the exit of the club
8 rooms, went to the vehicle with the German licence
9 plates and drove to Koppstrasse. There he went into the
10 premises of the INDA-Bau company, came back into the
11 street, accompanied by a 30 year old woman
12 approximately, with dark hair, and put files into his
13 vehicle. So he was in the company premises for about
14 half an hour or so, and then alone he drove towards the
15 border, crossing at Walzberg and he left Austria at
16 about 6.00 that afternoon. This was reportedly on March
17 16th . I am told line 12.
18 Further, your Honours, it is our submission that a
19 suggestion that there is no link between Mr. Delalic and
20 the premises in Austria and the documents that were
21 seized, does not sit well in the mouth of counsel for
22 Mr. Delalic in view of the motions that they have filed.
23 They have filed, your Honours, two motions in relation
24 to this matter, one on 26th May 1996, and one on
25 5th June 1996. In the motion of 28th May 1996, in
Page 7378
1 paragraph 5 of their motion they say as follows, and
2 I shall read it out to your Honours, this is on page 3
3 of the English translation:
4 "Carrying out the Prosecutor's orders, the
5 authorities of the Federal Republic of Germany and the
6 republic of Austria searched Zejnil Delalic's flats and
7 business premises in Munich and Vienna. On this
8 occasion they seized a large quantity of evidence which
9 belonged to Mr. Delalic and to third persons entirely
10 unconnected with the matter under investigation. More
11 than 80 videotapes were seized, most of them the
12 property of BH Society of Vienna, as well as the
13 business documents, the archives of business firms
14 co-owned or managed by Zejnil Delalic; the personal
15 files of the employees of these firms and other
16 documents."
17 In the motion that they filed on 5th June 1996,
18 they say in the sixth to last paragraph of the motion:
19 "In accordance with Rule 73, paragraph (A)
20 sub-paragraph (iii) of the rules of procedure and
21 evidence, in my capacity as the Defence counsel of the
22 accused, Mr. Zejnil Delalic, I would like to supplement
23 my motion of 28th May 1996 with a proposal to exclude
24 all the evidence obtained from and having belonged to
25 the accused and to determine that it cannot be used to
Page 7379
1 the disadvantage of the accused. At the arrest on
2 18th March 1996, the relevant authorities of the
3 republic of Austria seized from the apartment and the
4 office of the accused, Mr. Zejnil Delalic, a number of
5 videotapes, documents, personal files et cetera, and
6 similar things were also taken from his office in
7 Munich."
8 So in our submission, your Honours, not only on
9 the face of the evidence is there a clear link between
10 Mr. Delalic and these premises in Austria, not only do
11 the documents speak for themselves in that regard, but
12 Defence counsel for Mr. Delalic themselves do not seem to
13 be coy about the fact that he is directly linked to
14 these premises; otherwise what entitlement would they
15 have to have these documents handed back?
16 Your Honours, counsel spent a great deal of time
17 expounding the irregularities in using Sanda Mucic as a
18 witness because she was not an adult and in drawing the
19 court's attention to the fact that somehow the
20 Prosecution's case is found wanting because Unger and
21 Winkelmann were not called to give evidence concerning
22 the seizure of documents at the premises Taubergasse 14,
23 Door 15, being the premises in which the Prosecution
24 says and the Defence say materials belonging to
25 Mr. Delalic were seized. Your Honours, this may be an
Page 7380
1 interesting submission by the Defence, but in our
2 submission, it is totally irrelevant; the reason being
3 that the Prosecution has no intention of seeking to
4 tender any material received or seized by the police at
5 the premises Taubergasse 14, Door 15.
6 So, your Honours, any talk of employing Sanda
7 Mucic as a witness, of failing to call Unger and
8 Winkelmann, of multiplicity of sports bags, be they one,
9 two or other, of the 30 video cassettes, of the fact the
10 plastic bags were used to cart the material and placed
11 in miscellaneous boxes, the green folders could not be
12 located as subsequent occasions all may be interesting,
13 but in our submission is totally irrelevant.
14 There was also a suggestion, it would seem, that
15 the placing of the stickers on the files on 18th March
16 1996 was incorrectly carried out because on that night
17 not every document or item had stickers placed on them.
18 This took place over a period of days. Your Honours,
19 I am sure we have all been involved in large fraud cases
20 where thousands upon thousands of documents are seized
21 and where the itemisation and classification of them can
22 take, in one case in which I was involved, up to 12
23 months. So in my submission, your Honour, the period of
24 time is also irrelevant, how long it takes.
25 Yesterday, your Honour, we heard from Mr. Ackerman
Page 7381
1 that your Honours should not be unduly swayed by the
2 determinations of the Nuremberg courts, and he said this
3 because of the length of time. No doubt there is a
4 point in that. But, your Honours, if Mr. Ackerman had
5 had the privilege in appearing before the Appeal Chamber
6 of this Tribunal, he would discover that the Appeal
7 Chamber places a great deal of weight on what is said
8 and what had been said at Nuremberg and it is not
9 dismissed lightly. When I suggested to you yesterday
10 that the rules for procedure and evidence of this
11 Tribunal and the decisions of this Tribunal come first
12 in terms of relying upon authority, but that next down
13 the list from that was Nuremberg, I said so because that
14 in our submission has been basically the approach that
15 has been adopted by the court, by the Appeal Chamber of
16 this Tribunal in examining issues of law. Certainly
17 that Chamber does not dismiss lightly the principles
18 that emerged at Nuremberg. In my submission, one would
19 need some guidance or comment from the Appeal Chamber
20 that no longer were the Nuremberg principles to be given
21 a great deal of weight before it would be safe to
22 disregard them.
23 So, your Honours, when I referred your Honours to
24 the Krupp case, I did so having regard to the fact that
25 on the present practice of the Court of Appeal,
Page 7382
1 your Honours may well be assisted by having regard to
2 what is said at Nuremberg, considering that is the
3 approach that they take. In relation to the issue of
4 captured documents, the Krupp case which I referred to
5 part of, but dealing especially with captured documents,
6 said the following:
7 "The Tribunal's feeling is that this goes to a
8 matter of weight rather than to admissibility. As long
9 as it is conceded that this is a captured document and
10 that gets also to the question of probative value."
11 That is at page 648 of the judgment.
12 Your Honours, in the Nuremberg situation, and I am
13 speaking now more of general principle, but I think it
14 is very helpful, in the Nuremberg situation, the allied
15 powers captured vast quantities of documents which were
16 relied upon by the Tribunal in its pursuit of the
17 truth. Maybe not in this case, but certainly in cases
18 that come before this Tribunal, the opportunity will be
19 presented to the Tribunal to consider documents captured
20 by one side or other to the combatants in Yugoslavia; in
21 other words, when an army captures a particular piece of
22 territory, they take documents that they capture in the
23 process. Often those documents find their way here to
24 the Tribunal.
25 The Office of the Prosecutor or the Tribunal have
Page 7383
1 no control at all over those armies and over the
2 procedures that they adopt in securing documents or
3 capturing documents when they win territory. In exactly
4 the same way as the allied powers had no control over
5 what the Nazis were doing with their documents prior to
6 their capture in 1944 and 1945. So, your Honours, it
7 seems illogical, in my respectful submission, to impose
8 conditions on admissibility, especially in respect to
9 chain evidence, in circumstances that operate in times
10 of war and in times of conflict. The primary objective
11 that confronts your Honours is the search for the truth
12 and in that pursuit, ensuring that the accused receives
13 a fair trial. Strict adherence to principles which work
14 well, perhaps, in peaceful settings cannot readily be
15 applied or adapted in a Tribunal that operates in the
16 environment in which we operate.
17 So, your Honours, if securing a fair trial, the
18 pursuit of the truth is the principal objective, then,
19 your Honours, that objective may be frustrated if
20 restrictive rules of admissibility are thrown up to
21 prevent your Honours from having access to material that
22 may otherwise assist you.
23 Your Honours, with respect to some of the
24 documents that were captured at these premises, I would
25 like to make two short points. Firstly, some of the
Page 7384
1 captured documents have already been authenticated by
2 Mr. Delalic in the record of interview, so it is not true
3 to say that none of the documents -- not one of the
4 documents have been authenticated. He himself has
5 authenticated some of the documents that were captured
6 at his premises. In relation to this whole question of
7 the legality of the search and otherwise, your Honours
8 dealing with exhibits 105 to 108, which documents were
9 recovered as a consequence of the search of these
10 premises, said, and if I can quote from the transcript
11 at page 3927, line 6 and following. This is your Honour
12 Judge Karibi-Whyte, addressing these exhibits at the
13 time that were sought to be tendered through
14 Mr. Moerbauer:
15 "The Defence also has objected on the grounds of
16 non-compliance with the procedural laws of Austria,
17 thereby rendering it inadmissable. We refer to the
18 position adopted by this Trial Chamber, we are not bound
19 by the rules of evidence. We consider evidence which is
20 relevant and probative of the evidence accompanying it.
21 We are satisfied that the passports and ID cards were
22 recovered by the witness. They are therefore relevant
23 to the trial and this witness is therefore in a position
24 to tender them. We therefore admit them into evidence
25 as Exhibits 105 through 108."
Page 7385
1 Much has been said, your Honours, about this
2 question of beyond reasonable doubt in terms of the
3 admissibility of documents. The Prosecution has never
4 shied away from its responsibility to prove the case
5 beyond a reasonable doubt and to prove the guilt of the
6 accused beyond a reasonable doubt. What we say,
7 however, is that this does not occur at the time of
8 admissibility of documents. I seek to gain further
9 support for this proposition from the decision of the
10 Tadic Appeal Chamber in the Defence motion on hearsay of
11 5th August 1996, when at paragraph 18, page 8, their
12 Honours McDonald and Vohrah said:
13 "Moreover, sub-rule 89(D) provides further
14 protection against prejudice to the Defence, for if
15 evidence has been admitted as relevant and having
16 probative value, it may later be excluded. Pursuant to
17 this sub-rule, the trial judge has the opportunity to
18 consider evidence, place it in the context of the trial,
19 and then exclude it if it is substantially outweighed by
20 the need to ensure a fair trial."
21 Judge Stephen said, at page 4 of his judgment, of
22 his separate opinion:
23 "It is to be noted that sub-rule (D) [89(D)] while
24 it may be applicable to some instances of hearsay
25 evidence, is by no means confined to such evidence. It
Page 7386
1 will obviously also have a role to play where, for
2 example, highly prejudicial first hand testimony is for
3 any of a multitude of reasons to be accorded very little
4 weight because of the low probative value, and should
5 therefore be excluded from the evidence."
6 In my submission, your Honours, the judges in the
7 Tadic decision on hearsay both speak of the
8 admissibility of evidence, whether it be documents or
9 testimony, and then its subsequent exclusion. In my
10 submission, that opportunity would not be readily
11 available at all to the judges if the evidence was
12 proved beyond a reasonable doubt, and in my submission,
13 that clearly demonstrates that proof beyond a reasonable
14 doubt is not a matter that occurs at the admission
15 stage. Proof beyond a reasonable doubt occurs, as
16 Rule 87 says, at the time of the Tribunal's
17 deliberation, and if your Honours wish to rely upon a
18 document at that stage in order to determine the guilt
19 of an accused, you must be satisfied that that document
20 has been proved beyond a reasonable doubt before you can
21 do so, but it does not happen, in my submission, at the
22 admission stage and I respectfully rely upon the
23 decision in Tadic for that purpose.
24 Unless I can assist your Honours, that is all
25 I wish to say.
Page 7387
1 JUDGE KARIBI-WHYTE: I think there are no further questions
2 to ask. Does the professor --
3 JUDGE JAN: Have you seen the contents of your own motion of
4 28th May, where you said these were your documents that
5 had been seized? Do you have anything to say in that
6 regard?
7 MS. RESIDOVIC: Your Honour, the basic arguments regarding
8 what Mr. Niemann said will be given by my colleague
9 O'Sullivan, but as for the questions, I would like to
10 give responses since the submissions were filed when
11 I was the only Defence counsel for Mr. Delalic.
12 Regarding this particular issue, I have to say first of
13 all that these were submissions filed with the court
14 after Mr. Delalic had been brought to The Hague. At the
15 time the Defence counsel was informed that many things
16 were seized from Mr. Delalic, and that was the
17 information that at the time we received from the
18 Prosecutor, and with the indictment we only received
19 statements of 22 witnesses. Using our right and the
20 fact that we knew that the search was carried out in the
21 apartment of Mr. Delalic in Munich and in his offices in
22 his vehicle, and himself, for reasons of caution, our
23 request referred to the overall space. We never talked
24 about the apartment in Vienna or any other space in
25 Vienna.
Page 7388
1 I would like to quote this entire passage that was
2 also quoted by Mr. Niemann. Item 5 says:
3 "Carrying out the warrant of the Prosecutor, the
4 relevant bodies of the Federal Republic of Germany and
5 the republic of Austria carried out a search of the
6 apartment and offices of Zejnil Delalic in Munich and
7 Vienna and on that occasion, they seized a considerable
8 number of evidence that had belonged to him in Munich."
9 Now I am adding, since this is the entire
10 evidence, and we are already emphasising that this is
11 numerous evidence that has nothing to do with him, which
12 means third parties as well, who are in no way related
13 to the case or the subject of the indictment:
14 "Over 80 videotapes were seized, of which most
15 belonged to the BH Association in Vienna, business
16 files, documents of companies that were co-owned by
17 Delalic or where he had authorisations."
18 This is Munich:
19 "Personnel files for the companies and other
20 files", so this passage is general.
21 We learned that searches were carried out, that
22 1,730 documents were seized in Munich alone. At the
23 time we did not know that, but while disclosing evidence
24 towards the end of the year the Prosecutor gave us the
25 entire file of over 3,000 pages. Therefore,
Page 7389
1 your Honours, we do not know at all for about 40
2 indictments in this file whether they have anything to
3 do with the location where Zejnil Delalic had been the
4 owner, co-owner, or tenant, so in this multitude of
5 documents, with all the illegalities we have found out
6 from the statements of witnesses and the interruption of
7 chain of custody of evidence from one location to the
8 other, this motion does not indicate that those
9 locations and those objects could be related to Zejnil
10 Delalic.
11 I just wish to say something else, a fact that my
12 colleague would be unable to speak about. That is the
13 fact that Mr. Niemann emphasised in the letter forwarded
14 to the Defence counsel on 28th August, which he repeated
15 before the Trial Chamber, claiming that some of the
16 documents allegedly originating from the INDA-Bau
17 company, Zejnil Delalic has already identified and
18 confirmed them during his interview in Scheveningen on
19 22nd and 23rd August. In the interview, accepted by
20 this Trial Chamber as evidence 99, there is something
21 that is not identical to what Mr. Niemann was speaking
22 about before this Chamber. For that reason, I expressed
23 doubt that some of the documents in this file are not
24 originating just from Vienna but perhaps from Munich as
25 well, and perhaps even from Bosnia, because if we look
Page 7390
1 at this evidence indicated as Exhibit 99, you will see
2 that on that occasion, Mr. Delalic was presented with one
3 of the documents; however, this document, presented at
4 the time, described in detail in the interview
5 Mr. Delalic had given, is not a document contained in
6 this file. That is a document with identifications easy
7 to recognise, a document that could have been found in
8 any location or brought to that location which
9 Mr. Delalic did identify, but the use of it could be
10 based on its identification on the basis of the
11 interview and not because the document was allegedly
12 found in Vienna.
13 I do say, and this can be confirmed easily, that
14 the document presented during the interview with easily
15 recognised identifications is not in this file, and if
16 the Prosecutor claims that this document is in this
17 file then I have to say that the identifications that
18 were discussed during the interview were removed from
19 the document; also one of the four documents presented
20 at the time to Mr. Delalic, according to the Prosecutor
21 is in this file, since there is a video recording,
22 transcript in the Bosnian language and a transcript in
23 the English language of this interview, we can see that
24 when the investigator presented this document to
25 Mr. Delalic at the time, I took a document of two
Page 7391
1 pages and not one, as it is stated in the file, and
2 I said that this was a document that I had submitted
3 together with a submission to this court. Therefore,
4 another of the four documents that could be used before
5 this court because it was identified by Mr. Delalic
6 expresses even more the doubt regarding how some of the
7 documents came into this file. That is why I wanted to
8 explain these facts and once again, through the evidence
9 that my defendant confirmed as evidence he could
10 identify, we cannot confirm the legality or illegality
11 of the document and tendering these documents in this
12 way to this court. Thank you.
13 MR. NIEMANN: Your Honours, I rise to my feet because, when
14 quoting from the motion, Madam Residovic said, and
15 I really have to draw this to your Honours' attention,
16 she was reading it, and she said:
17 "On this occasion, they seized a large quantity of
18 evidence which belonged to Mr. Delalic", and then she
19 inserted "at Munich". I invite her to go back and read
20 it again, and see whether the words "at Munich" appear
21 after the words "Mr. Delalic". I invite your Honours to
22 look at the motion itself.
23 JUDGE KARIBI-WHYTE: I suppose the motions themselves are
24 available, are they? We can consult them, instead of
25 relying on what counsel said. Actually, the real issue
Page 7392
1 is not what happened around the motion, but what was
2 said in the motion. I think that is the issue: what
3 counsel claimed in the motion, because it was quite easy
4 to have disputed the premises on which the warrants were
5 executed in that motion. Maybe anything following from
6 it should not have concerned Delalic, but since counsel
7 has actually admitted that the premises was anything
8 concerning Delalic, and the documents and videos seized
9 there belonged to him, I do not see any need for
10 considerable argument on what happened -- at least this
11 argument was brought in as a reference to admissions, so
12 it is not what is in dispute now. Can we hear
13 Mr. O'Sullivan?
14 MS. RESIDOVIC: I could have answered, it does not say
15 Munich, it says in front of the name "in Munich and
16 Vienna belongs to third parties" and I believe the court
17 will have an insight into the submission as well. Thank
18 you.
19 JUDGE KARIBI-WHYTE: What I have just said, those motions
20 are records of the court, so we can go to it and see
21 what really was said. We do not depend entirely on what
22 counsel has said. Can we hear Professor O'Sullivan?
23 MR. O'SULLIVAN: Your Honours, I would like to respond to
24 some of the submissions made by my learned friend
25 Mr. Niemann. I begin by pointing out that this Trial
Page 7393
1 Chamber has ruled that beyond reasonable doubt is the
2 standard of proof. It is untenable to say that a lesser
3 standard of proof applies when we are talking about the
4 admission of evidence or the determination of guilt.
5 I do not need to remind you of your own decision of
6 September 1st 1997, when you ruled inadmissable the
7 statement made by Mr. Mucic to the Vienna police.
8 Moreover, the prosecution during this hearing, or the
9 evidence on this evidence, has acknowledged that they
10 have been put to strict proof, as Mr. Niemann himself,
11 when he was questioning one of his witnesses --
12 THE INTERPRETER: Could the counsel please slow down.
13 MR. O'SULLIVAN: -- chain of custody.
14 JUDGE KARIBI-WHYTE: We return to our problem yesterday.
15 MR. O'SULLIVAN: My apologies to all concerned. Now
16 I understand the problem Madam Residovic has when she
17 questions witnesses in a common language. I will slow
18 down.
19 Aside from the issue of the burden of proof, this
20 Chamber, your Honours, you are very mindful of Rule 95
21 of the rules. With your indulgence, I will read it
22 again. Rule 95:
23 "Evidence obtained by means contrary to
24 internationally protected human rights. No evidence
25 shall be admissible if obtained by methods which cast
Page 7394
1 substantial doubt on its reliability or if its admission
2 is antithetical to and would seriously damage the
3 integrity of the proceedings."
4 To ensure that the Trial Chamber carries out its
5 direction and duties under Rule 95, your Honours are
6 aware of Articles 20 and 21 of the statute. This rule
7 and these articles are designed to ensure that evidence
8 that is admitted is reliable. I refer to the annotated
9 publication prepared by Mr. Jones on the rules and on the
10 statute. I read the footnote to Rule 95 --
11 MR. NIEMANN: Your Honours, I do hesitate to interrupt
12 counsel, but there is a notation on the front of that
13 publication which I would you invite counsel to look at,
14 under the heading "notice".
15 JUDGE KARIBI-WHYTE: Perhaps you should not be citing it.
16 MR. O'SULLIVAN: Very well. What is the purpose of the rule
17 and what is the purpose of the Austrian code of
18 procedure? Your Honours know that Mr. Niemann takes the
19 position that a violation under Austrian law or an
20 illegal search and seizure, the consequence of which may
21 be the execution of evidence. He takes the position, my
22 learned friend takes the position that exclusion of
23 evidence is meant to punish or discipline the police for
24 their illegal activities. With all due respect, in my
25 respectful submission --
Page 7395
1 JUDGE JAN: Just a minute. (Pause). Sorry for interrupting
2 you.
3 MR. O'SULLIVAN: I was taking issue with the submission by my
4 learned friend Mr. Niemann on the reason why illegally
5 obtained evidence may be excluded by a court. The
6 thrust of his submission that it is to discipline or
7 punish the police, so they do not do it again, so they
8 are made more aware of following procedures under their
9 own criminal procedures. In my submission, I strongly
10 disagree with Mr. Niemann's submissions. Rather, the
11 reason for excluding evidence which is illegally
12 obtained is twofold, and they are connected.
13 The first is to ensure a fair trial for the
14 accused. Applications under our statutes, our rules,
15 under public international law conventions, is to ensure
16 and protect the accused, not to punish the police in a
17 country. Tied to that and the notion of a fair trial is
18 that we have rules of procedure, criminal procedures in
19 states that are meant -- are designed to ensure that
20 evidence is trustworthy or reliable; in other words, it
21 is to ensure, your Honours, that a court of law can rely
22 on the trustworthiness, the authenticity, the
23 reliability of evidence. We ask police to perform their
24 duties; we ask them to record their duties; we ask them
25 to follow the law when they do it, and when they do not
Page 7396
1 that evidence becomes unreliable. It affects a fair
2 trial. That is why the Prosecution is put to strict
3 proof of showing a court, your Honours, such things that
4 warrants are properly issued, that the Austrian law is
5 complied with, that witnesses are present as according
6 to their own documents, their own Niederschrift, there
7 is a place for witnesses to sign; that under the
8 Austrian code in particular, there is a provision for
9 sealing items before leaving a premises. The
10 Prosecution must prove beyond a reasonable doubt that
11 the chain of custody is established; again, to ensure
12 reliability for your Honours. Those are the reasons why
13 courts may exclude evidence, to ensure a fair trial, the
14 rights of the defendant, to ensure that the evidence is
15 trustworthy and reliable.
16 For Mr. Niemann to say yesterday that countries
17 like Austria would ignore a decision of this Tribunal,
18 because you have no teeth, because there would be no
19 consequence in what you did here, there would be no
20 punishment of police officers in Austria, is not only an
21 insult to this Tribunal but it is also saying that this
22 Tribunal should give its stamp of approval to something
23 which Mr. Niemann is on the point of agreeing that the
24 procedures were illegal; that police officers went out
25 of their way to choose a 16 year old girl, that there is
Page 7397
1 a mala fides, there is admittedly a forged document,
2 meant to mislead.
3 There is so much contradictory evidence that the
4 Prosecution is now saying, "We abandon apartment 14".
5 We have two bags, not one bag, cassettes change; "We
6 abandon apartment 14". What about all the co-mingling
7 of the evidence back at police headquarters on 18th
8 March? That is the chain that I was discussing with you
9 yesterday. That is why I tried to break it down into
10 time periods. There are considerable problems with the
11 period where the seizure begins at 14 and takes us back
12 to police headquarters. There are considerable problems
13 when we go from INDA-Bau to police headquarters, and
14 then in police headquarters we have all the co-mingling
15 of evidence, documents moving, nothing marked, not one
16 document is marked or identified before 8.00 pm on
17 18th March. That is the evidence. So now they are
18 abandoning a set of documents and tapes from apartment
19 14, because there the violations are flagrant, are they
20 not?
21 What about the events of the evening of the 18th?
22 We have conflicting evidence that according to the OTP
23 investigator D'Hooge, Dr. Seda, this investigating
24 magistrate, who is in charge, could not be contacted to
25 give his approval. He was not on the premises. You
Page 7398
1 remember my friend's argument, he was the man in
2 control. The OTP investigators were told he was not
3 available, it was after working hours. Yet Moerbauer
4 says, I gave out documents on his approval. The
5 co-mingling of evidence from 14 and INDA-Bau on the
6 night of the 18th. With all due respect to my friend
7 Mr. Niemann, he is incorrect when he says that in regard
8 to when items were marked -- I will just find the notes
9 I took when he was speaking.
10 Regarding the point at which stickers were put on
11 the files, the evidence of Mr. Panzer is that he put
12 stickers on all the files from INDA-Bau on 19th March,
13 the exterior. We have made a distinction in this
14 courtroom between the file folders and their contents.
15 Panzer's evidence is that he put stickers on them on
16 19th March.
17 JUDGE KARIBI-WHYTE: You appear to be repeating your
18 submissions yesterday.
19 MR. O'SULLIVAN: I am responding to Mr. Niemann's submissions
20 this morning. He was incorrect when he said that, your
21 Honour. If you just bear with me, I think it is
22 important.
23 The interior of those folders from INDA-Bau, the
24 file folders themselves, and this is the whole key to
25 chain of evidence, according to Moerbauer, the documents
Page 7399
1 are marked on 22nd April during a ten day period. He
2 comes to this courtroom and he cannot identify his mark
3 on all but one document. That is conclusive proof,
4 your Honours. There is no explanation as to what
5 happened to those documents. He was not able to tell
6 your Honours that the documents he was shown are the
7 documents that he marked. His marks have disappeared.
8 By no stretch has the Prosecution proven that those
9 documents --
10 JUDGE KARIBI-WHYTE: Do you know the content of those
11 folders?
12 MR. O'SULLIVAN: No, I do not. Mr. Moerbauer does not either.
13 JUDGE KARIBI-WHYTE: Then what are we trying to admit?
14 MR. O'SULLIVAN: The Prosecution is trying to say that what
15 is being admitted are those documents. There is no
16 proof of the provenance of those documents. There is no
17 proof that the documents in these binders are the ones
18 that Moerbauer marked because his marks are no longer on
19 those documents. Those may not even be the documents
20 that he saw. That is the obvious conclusion.
21 My friend also talked about chain of custody in
22 time of war. We were in Vienna Austria, your Honours,
23 in March 1996. We were in a western country that is not
24 at war. I think that goes without saying, with an elite
25 police force who sent experienced police officers to
Page 7400
1 handle things.
2 THE INTERPRETER: Microphone, your Honour.
3 JUDGE JAN: They all disclaim they belong to an elite
4 portion of Vienna's police.
5 MR. O'SULLIVAN: They were in charge of state security and
6 things like that, so in fact they may not have been an
7 elite branch of the Austrian police.
8 JUDGE KARIBI-WHYTE: In pursuit of this chain of custody
9 argument, who do you think is in possession at any one
10 time? The Vienna police, or the commander who took
11 charge of the investigation?
12 MR. O'SULLIVAN: With all due respect to your request,
13 I think that is a question for the Prosecution to prove.
14 JUDGE KARIBI-WHYTE: When you are challenging the chain
15 of -- at least you have to establish where the
16 possession lies.
17 MR. O'SULLIVAN: That is precisely the point. There is no
18 proof beyond a reasonable doubt of the provenance of
19 these items, because of the way they are handled, coming
20 to police headquarters. There is no proof of who
21 handled, took or moved articles around on the evening of
22 the 18th and when Moerbauer is the first person,
23 beginning on March 22nd, who says "I opened folders and
24 I put marks on the documents, my mark was on those
25 documents", he comes to this court in June 1997, he is
Page 7401
1 asked by yourself, Judge Karibi-Whyte, "Are your marks
2 on these documents?" He says no.
3 He cannot say whether those are his documents, the
4 ones he looked at a year and a half earlier or not.
5 There is no proof. He does not understand the language,
6 and it would not be fair to ask a man, a year and a half
7 later, "Could you look through these and tell me whether
8 these are the exact documents you looked at at the end
9 of March 1996?" That is what the chain of custody is
10 all about, proving continuity, and Mr. Moerbauer's
11 evidence is fatal on that. He says he looked at
12 INDA-Bau documents, he put his sticker. He comes here,
13 there are no stickers on the documents. So what
14 happened to them, who knows? There is no way of
15 knowing, your Honour. That is the fatal flaw that
16 determines this issue, in our submission. We cannot
17 know. Moerbauer came here and said, "I do not know", in
18 response to your question. You spotted the issue, your
19 Honour.
20 JUDGE KARIBI-WHYTE: Actually perhaps I might have been
21 misunderstood now from the question I posed to you.
22 What I am trying to find out is strictly
23 jurisprudential, where does the custody lie in respect
24 of all those things recovered on search? Is it on the
25 individual policemen or in the team which actually went
Page 7402
1 for the search?
2 MR. O'SULLIVAN: We talk about the chain of custody, we talk
3 about all police officers who had handling --
4 JUDGE KARIBI-WHYTE: All of them as a group or individually
5 in respect of what they --
6 MR. O'SULLIVAN: Individually, your Honour. Each police
7 officer has custody and control at a certain point and
8 he passes it on to a colleague.
9 JUDGE KARIBI-WHYTE: This is what I am trying to get at.
10 MR. O'SULLIVAN: That is the fatal aspect of this whole issue
11 on having proved these documents having regard to their
12 authenticity and reliability. It has not been done and
13 it cannot be done because Officer Moerbauer, the central
14 man in this, the only man who marked things
15 individually, came here and said "I do not see my mark",
16 which suggests --
17 JUDGE KARIBI-WHYTE: I return again to whatever is asked,
18 what were being tendered were folders containing
19 documents. I do not know if any document was being
20 tendered.
21 MR. O'SULLIVAN: I would agree with you on that, your
22 Honour. That there is no way of proving the documents.
23 The documents have not been proven and not been
24 tendered.
25 JUDGE KARIBI-WHYTE: What is excluded?
Page 7403
1 MR. O'SULLIVAN: My understanding is Mr. Niemann wants the
2 contents tendered and I am saying he cannot prove the
3 contents. If he only wants the folders, the 12 coloured
4 folders with no contents, I would not oppose that as
5 strenuously, but even those are not proven.
6 So the submissions are that there is mala fides,
7 there is no proof of the contents of these folders at
8 all, I assume that is what my friend wants to admit. On
9 that basis, on the basis of all these witnesses
10 individually who handled these items and who marked them
11 and Moerbauer in particular could not identify a single
12 document from those folders and those are the exhibits
13 in fact between 104 and 147 which are Prosecution
14 exhibits, which they are attempting to tender and that
15 is why I raised the point that Moerbauer, the man who
16 says he marked them, analysed them in that chair said he
17 could not identify them because his marking was no
18 longer there.
19 Are there any further questions from
20 your Honours? Can I be of any further assistance to
21 you?
22 JUDGE KARIBI-WHYTE: You can continue with your submission.
23 If that is all you have, I think that is all for the
24 argument of both sides.
25 MR. O'SULLIVAN: Thank you.
Page 7404
1 MR. OLUJIC: With your permission, your Honours, I would like
2 to reply to what my learned colleague said yesterday and
3 stressed today again in his response as regards the
4 manner of gathering evidence, and the entirety of the
5 matter. I will not be overlong, so if you will allow
6 me, it does affect my client, so please allow me to
7 present my argument.
8 MR. NIEMANN: Your Honours, this is a little unfair. I think
9 that this is the motion that was put on by counsel for
10 Mr. Delalic and counsel has had an exhaustive opportunity
11 to address on both sides. In relation to that, are we
12 to be confronted with a whole range of different
13 arguments that will be put forward? We have no idea --
14 there has been no motion filed by this counsel in
15 relation to the matter. I submit, your Honours, it is a
16 little unfair to allow all counsel to pop up at will and
17 say whatever they think might be useful about these
18 things. It is the motion of Mr. Delalic that
19 your Honours are dealing with.
20 JUDGE KARIBI-WHYTE: Actually this is not a general issue in
21 which perhaps most counsel might be helpful in making
22 contributions. It is a specific motion under the name
23 of Delalic. I do not think you need to assist, except
24 perhaps if the court wants assistance. But I do not
25 think it is necessary. We have had exhaustive arguments
Page 7405
1 since yesterday. Have I made myself understood?
2 MR. OLUJIC: Thank you, your Honours. I will respect your
3 decision. This was my request, but if it is your
4 position that the rest of the Defence should not join
5 in, but since I thought that there was a number of
6 questions of principle, but anyway, I do respect your
7 decision.
8 JUDGE KARIBI-WHYTE: Thank you very much. I think that is
9 the end of the arguments.
10 MR. NIEMANN: That is correct, your Honour, yes.
11 JUDGE KARIBI-WHYTE: We will rise now and come back at
12 12.00. Perhaps we would want to have a short status
13 conference at that time, to organise the affairs. As
14 you know, we will soon be having a break from the
15 15th and we are not likely to resume for some time. We
16 want to know exactly how things are organised for
17 possibly the last lap of the Prosecution case
18 presentation, so we will know how everybody stands, how
19 the Defence also. We will organise the affairs
20 following how you schedule your arrangements. We will
21 rise now. Possibly the accused -- it is not necessary
22 the accused be present because in a status conference,
23 it might be helpful to counsel, but normally I do not
24 think they need be there.
25 MR. ACKERMAN: Your Honour, I do not think there is any
Page 7406
1 problem with regard to that. I do not foresee any.
2 MR. MORAN: Your Honour, I do not see a problem. Of course,
3 my client is not here in any case. I do not foresee a
4 problem with that.
5 MR. OLUJIC: Your Honours, if you allow me, if possible, my
6 client has requested to attend the status conference.
7 JUDGE KARIBI-WHYTE: Thank you. We will be back at that
8 time.
9 (11.20 am)
10 (A short break)
11 (12.00 pm)
12 JUDGE KARIBI-WHYTE: We are giving a very short ruling on
13 the last of the arguments, because of the nature of the
14 decision we are handing down.
15 The Trial Chamber has considered the contentions
16 of counsel for Delalic and for the Prosecution, with
17 respect to the admissibility of evidence consisting of
18 documents and video cassettes recovered during the
19 search of premises designated as occupied by Delalic in
20 those proceedings. We have considered the contention
21 that the warrant relied upon for the search of the
22 premises is illegal. The Trial Chamber has no evidence
23 of the breach of any condition predicating its issue.
24 We rely on the principle of omnia presumatorite esse
25 acta to hold the warrant valid. The effect of
Page 7407
1 non-compliance with the procedure requirements of such
2 we do not consider the situation so reprehensible as to
3 render the acts illegal. We therefore consider it in
4 the interests of the trial to admit the materials
5 recovered during the search --
6 THE INTERPRETER: Could his Honour please slow down. Thank
7 you.
8 JUDGE KARIBI-WHYTE: We therefore consider it in the
9 interests of the trial to admit the materials recovered
10 during the search and tendered in evidence.
11 We however observe that the Defence is entitled to
12 address the Trial Chamber on those materials, and will
13 be entitled to challenge the admissibility of any
14 documents sought to be tendered as arising from the
15 search or discrepancies from evidence of witnesses.
16 This is because the Prosecution is seeking to tender 12
17 folders containing documents, but not the documents
18 contained therein.
19 To adopt another approach would be tantamount to
20 reviewing a considerable portion of the case, an
21 exercise clearly undesirable in the overall
22 determination of the case, which should not be decided
23 piecemeal. The Defence is entitled to challenge any of
24 the evidence when tendered. They still reserve the
25 right to challenge any other issues which are not
Page 7408
1 involved in this decision.
2 I think this is our decision. We will carry on in
3 this way. We will deliver our ruling on the Mucic
4 admissibility letter later on, not now. We can now go
5 into the status conference.
6 MS. RESIDOVIC: Your Honour, with your permission, to make
7 sure that it is clear to me in this phase, this was your
8 decision regarding the documents and 12 folders.
9 However, in the proposal of the Prosecution -- in the
10 motion of the Prosecution, there were three videotapes
11 that Mr. Navrat, the only witness from the location,
12 could neither identify nor recognise, nor did the
13 Prosecutor propose that to the witness, and in your
14 decision I did not hear whether you decided -- whether
15 you have already ruled on the three videotapes whose
16 number changed from the time of the seizure to the time
17 they departed from the police station, so I would like
18 to ask you if I misunderstood, because I thought the
19 ruling referred only to the documents. I would like to
20 have a clarification at this point. Thank you very
21 much.
22 JUDGE KARIBI-WHYTE: What I said was consisting of documents
23 and video cassettes. That was what I said. Perhaps the
24 transcript will show that.
25 (In closed session)
Pages 7409 to 7417 in closed session
(12.30 pm)
(Court adjourned until 10.00 am
on Monday, 6th October 1997)