Case Nos.: IT-95-9-AR73.6 & IT-95-9-AR73.7

IN THE APPEALS CHAMBER

Before:
Judge Theodor Meron, Presiding
Judge Fausto Pocar
Judge Wolfgang Schomburg
|Judge Mohamed Shahabuddeen
Judge Mehmet Güney

Registrar:
Mr. Hans Holthuis

Decision of:
23 May 2003

PROSECUTOR
v.
BLAGOJE SIMIC
MIROSLAV TADIC
SIMO ZARIC

___________________________________

DECISION ON PROSECUTION INTERLOCUTORY APPEALS ON THE USE OF STATEMENTS NOT ADMITTED INTO EVIDENCE PURSUANT TO RULE 92BIS AS A BASIS TO CHALLENGE CREDIBILITY AND TO REFRESH MEMORY

___________________________________

The Office of the Prosecutor:

Mr. Gramsci di Fazio
Mr. Phillip Weiner
Mr. David Re

Counsel for the Accused

Mr. Igor Pantelic and Mr. Srdjan Vukovic for Blagoje Simic
Mr. Novak Lukic and Mr. Dragan Krgovic for Miroslav Tadic
Mr. Borislav Pisarevic and Mr. Aleksander Lazarevic for Simo Zaric

 

The background to the appeals

  1. Pursuant to a certificate granted by the Trial Chamber in accordance with Rule 73(B) of the Rules of Procedure and Evidence of the International Tribunal ("Rules "), the prosecution has appealed from Trial Chamber II’s oral decision of 2 April 2003 and written decision of 28 April 2003 relating to cross-examination of Defence witnesses, when the evidence-in chief is presented partly as a written statement admitted under Rule 92bis of the Rules and partly as viva voce evidence ("First Appeal").1
  2. Further, pursuant to a certificate granted by the Trial Chamber in accordance with Rule 73(B) of the Rules, the prosecution appealed from Trial Chamber II’s oral decision of 15 April 2003 and written decision of 2 May 2003 relating to whether a part of a statement not admitted under Rule 92bis of the Rules could be shown to a witness to refresh his memory ("Second Appeal").2
  3. With regard to the First Appeal, the Defence submitted during trial certain written statements pursuant to Rule 92bis of the Rules, including the statement of Dorde Tubakovic (statement 184/3ter ID). On 21 March 2003, the Trial Chamber decided that certain parts of the statement of Dorde Tubakovic could be admitted under Rule 92bis of the Rules, while other sections of the statement related to the acts and conduct of the accused and therefore were not suitable for admission under that Rule. For these sections, the Trial Chamber held that Dorde Tubakovic should "give viva voce testimony."3 As a consequence, the evidence-in-chief was received in the form of a redacted statement admitted pursuant to Rule 92bis.4 In addition, Dorde Tubakovic appeared before the Trial Chamber on 1 and 2 April 2003 to give viva voce evidence on issues relating to the acts and conduct of the accused.
  4. According to the prosecution, Dorde Tubakovic gave testimony which was inconsistent with his original unredacted statement5 and the prosecution sought to challenge his credibility by putting the inconsistencies to the witness. On 2 April 2003, the Trial Chamber ruled orally that the prosecution could not put this inconsistent statement to the witness.6 The prosecution filed a motion before the Trial Chamber for redetermination or in the alternative certification ("First Motion").7 The proceedings continued without a ruling on the First Motion.8
  5. With regard to the Second Appeal, on 15 April 2003, witness Vaso Antic appeared to give viva voce evidence. Part of his evidence had previously been admitted as a statement under Rule 92bis of the Rules.9 According to the prosecution, his viva voce evidence was inconsistent with his prior unredacted statement10 and the prosecution sought leave to show witness Vaso Antic portions of his statement which had not been admitted under Rule 92bis of the Rules in order to refresh his memory.11 The Trial Chamber denied the prosecution’s request and ruled that "it still remains that paragraphs which are struck off cannot be resurrected in any other way."12 The prosecution filed a motion before the Trial Chamber requesting redetermination or in the alternative certification ("Second Motion").13
  6. On 28 April 2003, the Trial Chamber issued its decision on the First Motion , whereby it upheld its oral decision of 2 April 2003 and granted certification for an interlocutory appeal pursuant to Rule 73(B) of the Rules.14 The Trial Chamber found that "the purpose of Rule 92bis is to restrict the admissibility of this ‘very special type of hearsay evidence,’"15 and that:

    Rule 92bis allows the Trial Chamber to admit, in whole or in part, the written evidence of a witness, and that portions of the witness statement that are struck out by the Trial Chamber for non-compliance with Rule 92bis may not be resurrected by parties for the purpose of cross-examination of the credibility of the witness , and may not be treated as a prior representation for cross-examination purposes as they exist only for the purpose of the Rule 92 bis procedure and do not stand alone.16

  7. On 2 May 2003, the Trial Chamber issued a decision on the Second Motion, whereby its oral decision of 15 April 2003 was upheld and a certification pursuant to Rule 73(B) of the Rules was granted.17
  8. Grounds of appeal

  9. The First Appeal relates primarily to the application of Rules 90(H) and 92bis of the Rules. The prosecution submits that the Trial Chamber erred in law by failing to correctly apply the Appeals Chamber’s decisions in Prosecutor v. Galic18 ("Galic Decision"), Prosecutor v. Milosevic19 ("Milosevic Decision") and the Tadic Appeal Judgement20 by finding that the prosecution was not entitled to cross-examine a witness on inconsistencies contained in a section of a statement excluded from a written statement admitted pursuant to Rule 92bis of the Rules. The Trial Chamber treated such statements as a special category and thereby failed to consider the permissible scope of cross -examination of a witness on credibility as set out in Rule 90(H) of the Rules.21
  10. In the Second Appeal the prosecution submits that the Trial Chamber erred in law by treating a section of a statement which was not admitted into evidence as a written statement under Rule 92bis of the Rules as a special category for the purpose of refreshing the memory of a witness and thereby failing to distinguish the purpose for which the statement was submitted.22
  11. The defence orally informed the Appeals Chamber that they would not be filing any submissions on the First and Second Appeals and they did not do so.
  12. Joining of the First and Second Appeal

  13. The First and Second Appeal are closely related in terms of the procedural background and legal issues involved. The Appeals Chamber has therefore decided to issue one joint decision in relation to both appeals.
  14. Discussion

  15. It is necessary to draw a distinction between a situation where a witness statement is submitted to a Chamber for admission as evidence-in-chief under Rule 92bis of the Rules in lieu of viva voce evidence and a situation where a witness statement is requested to be used for other purposes. In the present case, the statements were requested to be used for the purpose of either challenging credibility or refreshing a witness’s memory during cross-examination pursuant to Rule 90(H) of the Rules.
  16. The Trial Chamber in its oral ruling on 2 April 2003 and subsequently in its First Decision relied on Rule 92bis of the Rules and stated that a section of a statement which has not been admitted under Rule 92bis of the Rules could "not be treated as a prior representation for cross-examination purposes as they exist only for the purpose of the Rule 92bis procedure and do not stand alone."23 Likewise in its Second Decision, the Trial Chamber held that "the reasoning and finding of the Trial Chamber [in the First Decision], which prevent the Prosecution from referring a witness to a portion that has been struck out by the Trial Chamber of a statement prepared pursuant to Rule 92bis of the Rules, applies to [the Second Motion]."24
  17. In the Milosevic Decision, the Appeals Chamber held that:
  18. To avoid any misunderstanding, however, it is perhaps necessary to add that there is nothing in the Galic Decision which prevents a written statement given by prospective witnesses to OTP investigators or others for the purposes of legal proceedings being received in evidence notwithstanding its non-compliance with Rule 92bis – (i) where there has been no objection taken to it, or (ii) where it has otherwise become admissible – where, for example, the written statement is asserted to contain a prior statement inconsistent with the witness’s evidence.25

  19. From the Milosevic Decision it is clear that Rule 92bis of the Rules, in itself, does not bar the use of such statements in cross-examination.26 Rule 92bis of the Rules sets out certain criteria to be met in order for a statement to be admitted as evidence–in-chief in lieu of viva voce testimony. The purpose of Rule 92bis of the Rules is to determine whether a particular statement meets the requirements for admission into evidence (with or without cross-examination) as an alternative or complement to viva voce evidence and not to limit the scope of cross-examination, or to regulate the types of statements or documents which may be referred to in cross-examination.
  20. In respect of the First Appeal, the prosecution wanted to cross-examine witness Dorde Tubakovic by referring to portions of his statement made but not admitted pursuant to Rule 92bis of the Rules. The Appeals Chamber notes that, had this witness only appeared before the Trial Chamber as a live witness, the scope of his cross-examination would have been regulated by Rule 90(H)(i) of the Rules.27 The fact that part of his testimony was admitted through a different procedure, that is, by way of a written statement submitted pursuant to Rule 92bis of the Rules, does not prevent the use of the unadmitted portions of this statement for the purpose of challenging his credibility under cross-examination.
  21. The statement at issue was taken in front of a presiding officer of the Registry , in accordance with the requirements of Rule 92bis(B) of the Rules and as such is a prior statement made by the witness. It would be in the interest not only of the moving party, but also of the Chamber, to have alleged inconsistencies put to the witness.
  22. In respect of the Second Appeal, the prosecution moved to use portions of the statement given by Vaso Antic pursuant to Rule 92bis of the Rules but not admitted pursuant to that Rule to refresh the witness’s memory during his viva voce evidence. The Trial Chamber, however, denied the prosecution’s request by referring to the fact that sections of the statement had not been admitted pursuant to Rule 92bis of the Rules and therefore could not be used by the prosecution for this purpose. This was incorrect. The fact that a statement was made pursuant to Rule 92bis does not prevent the use of the unadmitted portions of the statement for the purpose of refreshing the memory of a witness under cross-examination .
  23. Conclusion

  24. In respect to the First Appeal, the Appeals Chamber finds that the Trial Chamber erred in law by holding that a party cannot cross-examine a witness on apparent inconsistencies between a part of his prior statement given but not admitted pursuant to Rule 92bis of the Rules and his viva voce testimony.
  25. In respect of the Second Appeal, the Appeals Chamber finds that the Trial Chamber erred in law by holding that a part of a statement given but not admitted pursuant to Rule 92bis of the Rules cannot be used for the purpose of refreshing a witness’s memory during cross-examination.
  26. The Trial Chamber should in a manner it finds appropriate give the prosecution , should it so request, an opportunity to complete the cross-examination of these two witnesses.
  27. Disposition

  28. The Appeals Chamber grants the First Appeal and the Second Appeal and quashes the appealed decisions.

 

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

Dated this twenty-third day of May 2003,
At The Hague,
The Netherlands.

_______________
Judge Theodor Meron
Presiding Judge

[Seal of the Tribunal]


1 - "Prosecution’s Interlocutory Appeal Against the Trial Chamber’s 28 April 2003 ‘Decision on Prosecutor’s Motion for Trial Chambers Redetermination of its Decision of 2 April 2003 Relating to Cross-examination of Defence Rule 92bis Witnesses or Alternatively Certification Under Rule 73(B) of the Rules of Procedure and Evidence,’" filed 5 May 2003.


2 - "Prosecution’s Interlocutory Appeal Against the Trial Chamber’s 2 May 2003 ‘Decision on Prosecutor’s Motion for Redetermination of Decision of 15 April 2003 Preventing Witnesses from Refreshing Memory From a Statement Declared Pursuant to Rule 92bis of the Rules of Procedure and Evidence, or Alternatively Certification Under Rule 73(B) and a Variation of Time for Filing of Rule 73(B) Motion Pursuant to Rule 127,’" filed 9 May 2003.


3 - T. 17235.


4 - Statement 184/3 ID.


5 - Statement 184/3ter ID.


6 - T. 17931. "JUDGE MUMBA: Mr. Re, the Trial Chamber is of the view that you can't refer to anything in a paragraph which was struck off. MR. RE: Is Your Honour telling me that I cannot cross-examine a witness as to his credibility based upon a prior statement he has made, signed, sworn, before a registry officer, which contains different evidence to the evidence which he gave yesterday? Yesterday he said something which is completely different to what is in the signed statement. I'm putting it as to his credibility under Rule 90(H) only on that basis."


7 - "Prosecutor’s Motion for Trial Chamber’s Redetermination of its decision of 2 April 2003 relating to Cross-Examination of Defence Rule 92bis Witnesses, or Alternatively Certification Under Rule 73(B) of the Rules of Procedure and Evidence," filed 3 April 2003.
8 - According to the prosecution, on 15 April 2003 a similar situation appeared in relation to the testimony of Stevan Nikolic, First Motion, para. 6. However, the Trial Chamber’s ruling with respect to Stevan Nikolic is not subject to an appeal. See First Appeal, 16, where the prosecution submits that "the Prosecution did not file a motion under Rule 73(B) in respect of this decision, considering that its written motion of 3 April 2003 [the First Motion] covered any subsequent rulings on the same issue."


9 - T. 16480. Second Appeal, para. 3.


10 - Statement 37/4 ID.


11 - T. 18646.


12 - T. 18646-18647.


13 - "Prosecutor’s Motion for Redetermination of Decision of 15 April 2003 Preventing Witnesses From Refreshing Memory From a Statement Declared Pursuant to Rule 92bis(B) of the Rules of Procedure and Evidence, or Alternatively Certification Under Rule 73(B) and a Variation of Time for Filing of Rule 73(B) Motion Pursuant to Rule 127," filed 25 April 2003.
14 - "Decision on Prosecutor’s Motion for Trial Chambers [sic] Redetermination of its Decision of 2 April 2003 Relating to Cross-examination of Defence Rule 92bis Witnesses or Alternatively Certification Under Rule 73(B) of the Rules of Procedure and Evidence," issued 28 April 2003.


15 - The Trial Chamber’s decision refers to Prosecutor v. Slobodan Milosevic, "Decision on Admissibility of Prosecution Investigator’s Evidence," issued 30 September 2002 ("Milosevic Decision"), p. 11.
16 - "Decision on Prosecutor’s Motion for Trial Chambers Redetermination of its Decision of 2 April 2003 Relating to Cross-examination of Defence Rule 92bis Witnesses or Alternatively Certification Under Rule 73(B) of the Rules of Procedure and Evidence," issued 28 April 2003, pp. 2-3.


17 - "Decision on Prosecutor’s Motion for Redetermination of Decision of 15 April 2003 Preventing Witnesses From Refreshing Memory from a Statement Declared Pursuant to Rule 92bis(B) of the Rules of Procedure and Evidence, or Alternatively Certification Under Rule 73(B) And Variation of Time for Filing of Rule 73(B) Motion Pursuant to Rule 127," issued 2 May 2003. The Trial Chamber held that "that the reasoning and finding of the Trial Chamber in the Decision on Motion A, which prevent the Prosecution from referring a witness to a portion that has been struck out by the Trial Chamber of a statement prepared pursuant to Rule 92bis of the Rules, applies to Motion B."
18 - Prosecutor v. Galic, Case No.: IT-98-29-AR73.2, "Decision on Interlocutory Appeal Concerning Rule 92bis(C)," issued 7 June 2002.


19 - Prosecutor v. Milosevic, Case No.: IT-02-54-AR73.2, "Decision on Admissibility of Prosecution Investigator’s Evidence," issued 30 September 2002.


20 - Prosecutor v. Dusko Tadic, Case No.: IT-94-1-A, Judgement, 15 July 1999.
21 - First Appeal, paras 13, 16-18, 21, 23, 33 and 36.
22 - Second Appeal, paras 7-12.
23 - See supra 16.
24 - See supra 17.


25 - Milosevic Decision, pp. 10-11. omitted.
26 - Tadic Appeal Judgement held that "once a Defence witness has testified, it is for a Trial Chamber to ascertain the credibility of his or her testimony. If he or she has made a prior statement, a Trial Chamber must be able to evaluate the testimony in the light of this statement, in its quest for the truth and for the purpose of ensuring a fair trial," para 322.


27 - Rule 90(H)(i) of the Rules "Cross-examination shall be limited to the subject-matter of the evidence-in-chief and matters affecting the credibility of the witness and, where the witness is able to give evidence relevant to the case of the cross-examining party, to the subject-matter of that case."