F. Issues 17 and 18: Convictions Under Counts 46 and 47
VIII. THE PROSECUTION INTERVIEWS WITH MUCIC
528. Mucic has appealed against (1) a decision by the Trial Chamber admitting into evidence interviews conducted with him following his arrest and (2) a decision by the Trial Chamber refusing to issue a subpoena to an interpreter.830 Although these decisions were confirmed in the Trial Judgement,831 the original interlocutory decisions were issued by the Trial Chamber on 2 September 1997 (“the Exclusion Decision”)832 and 8 July 1997 (“the Subpoena Decision”)833 respectively. The Appeals Chamber notes that although Mucic has separated his submissions in relation to each decision, in fact both relate to the same issue, that is whether or not Mucic voluntarily waived the right to have counsel present during certain of his interviews. Mucic’s ultimate submission is that the Trial Chamber erred in finding that this waiver was voluntary and as a result, evidence of all of the interviews should have been excluded from the trial proceedings.
(i) Background
529. On 8 May 1997, Mucic filed a motion seeking to exclude from evidence interviews conducted with him following his arrest.834 Between 2 June and 11 June 1997, the Trial Chamber heard testimony from the Prosecution witnesses through whom these interviews would be admitted. On 2 June 1997, Mucic filed an ex parte motion seeking an order compelling an interpreter present throughout the interviews to give evidence. On 12 June 1997, the Trial Chamber heard oral arguments from the parties on the motion to exclude evidence following which it made an oral ruling on the same day. On 8 July 1997, the Trial Chamber issued the Subpoena Decision and on 2 September 1997 it issued the Exclusion Decision.
830 Although Mucic filed his Notice of Appeal on 27 November 1998, on 26 July 1999 he filed the Particulars of the
Grounds of Appeal of the Appellant Zdravko Mucic Dated The 2nd July 1999. In this document, he separated
this issue into two grounds of appeal, labelled ground 5 (concerning the admission into evidence of Mucic’s interviews held from 19 – 21 March 1996) and ground 6 (concerning the refusal of the Trial Chamber to issue a subpoena to an interpreter). By Order dated 31 March 2000 (Order on Motion of Appellants Hazim Delic and Zdravko Mucic for leave to file supplementary brief and on Motion of Prosecution for leave to file supplementary brief), Mucic was ordered inter alia to file a document identifying his amended grounds of appeal. On 31 May 2000 this document was filed (Appellant Zdravko Mucic’s Final Designation of his Grounds of Appeal) and in doing so he renumbered and re-organised the issues, filing this issue as one ground of appeal (concerning the admission into evidence of the prosecution interviews). The Appeals Chamber will however consider the two separate issues raised by this ground of appeal, noting that in any event they are clearly related.
831 Trial Judgement, paras 59 and 63.
832 Decision on Zdravko Mucic’s Motion for the Exclusion of Evidence, 2 Sept 1997. The Trial Chamber initially
ruled orally on this motion on 12 June 1997 (Transcript, pp 4093 – 4098).
833 Decision on the Motion ex parte by the Defence of Zdravko Mucic Concerning the Issue of a Subpoena to an
Interpreter, 8 July 1997.
530. In the Exclusion Decision, the Trial Chamber found that statements made by Mucic to the Austrian Police Force on 18 March 1996 (“the First Interviews”) should be excluded from evidence as having been obtained in breach of his right to counsel under Article 18 of the Statute and Rule 42 of the Rules. It reached this decision on the basis that Mucic was denied the right to counsel during the First Interviews because the Austrian procedural rules did not recognise the right of a suspect to have counsel present during questioning. However, statements made to Prosecution investigators on 19, 20 and 21 March 1996 (“the Second Interviews”) were ruled admissible, on the basis that Mucic was clearly informed of his right under the Rules to have counsel present and he voluntarily waived it.835
531. Mucic points out that it is clear that the Trial Chamber relied upon the Second Interviews in the course of its Judgement and consequent conviction of him. However, he submits that as the interviews as a whole836 amounted “to a course of interviewing conduct which was irrevocably tainted, at least in the mind or consciousness of [Mucic…]; all of the interviews should have been thereby excluded.”837 He submits that the overall objective in considering what is said in interviews is that the Trial Chamber should be fair and that the decision by the Trial Chamber breaches this objective.838
(ii) Discussion
532. The Appeals Chamber notes that Mucic does not dispute the overall factual findings of the Trial Chamber with regard to the conduct of both the First Interviews and the Second Interviews.839 However, as a matter of law, he alleges for several reasons that the Trial Chamber erred in the exercise of its discretion in admitting the Second Interviews, having excluded the First Interviews. The Appeals Chamber recalls that for such a ground of appeal to succeed, although an appellant must discharge an initial burden of raising arguments in support of an alleged error of law with the Appeals Chamber, the Appeals Chamber may proceed to examine whether or not the alleged error is such that it invalidates the Trial Chamber’s decision.840
533. As to the Trial Chamber’s decision, the Appeals Chamber notes that a Trial Chamber exercises considerable discretion in deciding on issues of admissibility of evidence. As a result,
835 Exclusion Decision, para 63.
836 That is, including the First Interviews.
837 Mucic Brief, Section 2, p 1 (underlining in original). 838 Appeal Transcript, p 462.
839 As pointed out by the Prosecution with regard to the Second Interviews in the Prosecution Response, para 16.8. 840 Article 25(1)(a) of the Statute. See Furundžija Appeal Judgement, paras 35-36.
a Trial Chamber should be afforded a certain degree of deference in making decisions based on the circumstances of the case before it. To this extent the Appeals Chamber agrees with the Prosecution submissions on this point during the hearing on appeal.841 Nevertheless, the Appeals Chamber recalls that it also has the authority to intervene to exclude evidence, in circumstances where it finds that the Trial Chamber abused its discretion in admitting it. Indeed the Appeals Chamber has intervened in the past to do so.842 In these decisions, the Appeals Chamber confirmed that a pre-requisite for admission of evidence must be compliance by the moving party with any relevant safeguards and procedural protections and that it must be shown that the relevant evidence is reliable. If evidence is admitted and an appellant can subsequently show that prejudice has been caused by a failure by the Trial Chamber to properly apply such protections, then it may be found that the Trial Chamber has erred and exceeded its discretion. This is when Rule 89(D) and Rule 95 of the Rules may come into play and in these circumstances a ground of appeal may succeed.
534. In its oral ruling on the Exclusion Decision, the Trial Chamber found that the Second Interviews were “reliable and admissible […]. The weight to be attached and the probative value will be determined by considering all the other circumstances in these proceedings.”843 Mucic submits that “it is plain that the Trial Chamber relied upon the second interview in the course of [its] judgement.”844 This cannot be disputed. The Trial Chamber, in convicting Mucic under Article 7(3) of the Statute845 found:
In his interview with the Prosecution, Mucic admitted he had authority over the camp, at least from 27 July 1992. However, in the same interview he admitted that he went to the prison- camp daily from 20 May 1992 onwards.846
841 Appeal Transcript, pp 475–476. The Prosecution submits that “[…] in making […] determination of this final
matter, the Trial Chamber is required to weigh all the facts in evidence before it, and in some cases involving issues of this kind, it may be required to receive evidence and hear witnesses, and so in accordance with general principles, it would be necessary to afford a considerable margin of deference to the finding of the Trial Chamber, and it would only be where the decision of the Trial Chamber could be shown to be an abuse of discretion that there would be justification in the Appeals Chamber intervening on appeal.”
842 See for example: Prosecuto v Kordic and Cerkez, Decision on Appeal Regarding Statement of a Deceased
Witness, Case No IT-95-14/2-AR73.5, 21 July 2000; Prosecutor v Kordic and Cerkez, Decision on Appeal Regarding the Admission into Evidence of Seven Affidavits and One Formal Statement, Case No IT-95-14/2- AR73.6, 18 Sept 2000; The Prosecutor v Kupreškic et al, Decision on Appeal by Dragan Papic Against Ruling to Proceed by Deposition, Case No IT-95-16-AR73.3, 15 July 1999.
843 Trial Transcript, p 4098. 844 Mucic Brief, Section 2, p 1. 845 Trial Judgement, para 775.
846 Trial Judgement, para 737. See also, para 767: “Zdravko Mucic had all the powers of a commander to discipline
camp guards and to take every appropriate measure to ensure the maintenance of order. Mucic himself admits he had all such necessary disciplinary powers. He could confine guards to barracks as a form of punishment and for serious offences he could make official reports to his superior authority at military headquarters. Further, he could remove guards, as evidenced by his removal of Esad Land‘o in October 1992.” (Footnotes referring to Trial Exhibit 101-1 – (record of interview with Prosecution) omitted).
535. In addition, it noted that:
Mucic admitted in his interview with the Prosecution that he was aware that crimes were being committed in the prison-camp at Celebici in June and July 1992 and that he had personally witnessed detainees being abused during this period.847
536. Mucic’s argument is that the Trial Chamber erred in the admission of the Second Interviews into evidence. However, as a result of this decision and in its findings in the Trial Judgement, the Trial Chamber relied inter alia on this evidence to convict. Accordingly, it is logical to conclude that Mucic’s argument must include an allegation that the Trial Chamber also erred in subsequently relying in part on the Second Interviews in this conviction.
537. Mucic’s arguments may be summarised as follows. He submits that contrary to the Trial Chamber’s findings, the First Interviews and the Second Interviews should have been considered as one continuing event.848 If they had been, he submits that the Trial Chamber would have found that the Second Interviews should be excluded. As noted above, the First Interviews were excluded because the Trial Chamber found them to be in breach of Mucic’s right to counsel during questioning, guaranteed by Article 18 of the Statute849 and Rule 42 of the Rules.850 Mucic submits that as he was informed that he had no right to counsel during the First Interviews, it was not unreasonable to expect that he would believe this prohibition to continue to apply in the Second Interviews, despite the fact that he had been informed to the contrary. Such expectation arose from the fact that the interviews were conducted very close together. He was in a foreign country and should not have been expected to perform “the necessary intellectual gymnastics to give informed consent” to the Second Interviews, when he had been informed he was not entitled to be represented by counsel in the First Interviews.851 He submits that although he may have stated that he did not want counsel present in the Second Interviews, this waiver was neither informed nor voluntary. He argues that in considering whether or not he voluntarily waived the right to counsel in the Second Interviews, the Trial Chamber should have applied a subjective test and found that in the circumstances, his consent was not voluntary.
847 Trial Judgement, para 769. 848 Mucic Brief, Section 2, pp 1, 7-8.
849 Article 18(3) of the Statute provides: “If questioned, the suspect shall be entitled to be assisted by counsel of his
own choice, including the right to have legal assistance assigned to him without payment by him in any such case if he does not have sufficient means to pay for it, as well as to necessary translation into and from a language he speaks and understands.”
850 Rule 42(A)(i) of the Rules provides that a suspect shall have “the right to be assisted by counsel of the suspect’s
choice or to be assigned legal assistance without payment if the suspect does not have sufficient means to pay for it.” Rule 42(B) provides that “[q]uestioning of a suspect shall not proceed without the presence of counsel unless the suspect has voluntarily waived the right to counsel. In case of waiver, if the suspect subsequently expresses a desire to have counsel, questioning shall thereupon cease, and shall only resume when the suspect has obtained or has been assigned counsel.”
538. Several issues arise. Initially, the Appeals Chamber notes that Mucic relies considerably on precedent drawn from the United Kingdom. The Appeals Chamber recalls that reference to principles applied in national jurisdictions can be of assistance to both Trial Chambers and the Appeals Chamber in interpreting provisions of the Statute and the Rules.852 However, Rule 89(A) of the Rules expressly provides that the Chambers “shall not be bound by national rules of evidence.” What is of primary importance is that a Trial Chamber “apply rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law.”853 The Appeals Chamber notes that the Trial Chamber found that implicit in this principle was “the application of national rules of evidence by the Trial Chamber.”854 On the contrary, the Appeals Chamber confirms that rules of evidence as expressly provided in the Rules should be primarily applied, with the assistance of national principles only if necessary for guidance in the interpretation of these Rules.
539. The particular precedent relied upon by Mucic concerns generally the exclusion of evidence of interviews obtained by oppression, in circumstances likely to render them unreliable or which would render it unfair to the accused to admit it. In particular he refers to Section 76(2) and Section 78(1) of the Police and Criminal Evidence Act 1984 (“PACE”) applicable in the United Kingdom.855 Although the principles drawn therefrom may arguably be of some assistance, the Appeals Chamber turns primarily to Rule 89(D) and Rule 95 of the Rules, which expressly apply to this issue.
Rule 89(D)
A Chamber may exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial.
852 See for example, Furundžija Appeal Judgement, paras 183-188; Aleksovski Appeal Judgement, para 186. 853 Rule 89(B) of the Rules. Although strictly speaking this relates to “cases not otherwise provided for” in
Section 3 of the Rules (the title being “Rules of Evidence”) nevertheless, the general principle is important. See Prosecutor v Kordic and Cerkez, Decision on Appeal Regarding the Admission into Evidence of Seven Affidavits and One Formal Statement, Case No IT-95-14/2-AR73.6, 18 Sept 2000, para 22. See also Prosecution Brief, paras 12.11 and 16.11.
854 Exclusion Decision, para 34.
855 Section 76(2) PACE provides: “If, in any proceedings where the prosecution proposes to give in evidence a
confession made by an accused person, it is represented to the court that the confession was or may have been obtained – (a) by oppression of the person who made it; or (b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof, the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.” Section 78(1) PACE provides: “In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.”
Rule 95
No evidence shall be admissible if obtained by methods which cast substantial doubt on its reliability or if its admission is antiethical to, and would seriously damage, the integrity of the proceedings.
540. The Appeals Chamber notes that the Trial Chamber correctly referred to these Rules in its consideration of the interviews. It found that:
where the probative value of […] evidence is substantially outweighed by the need to ensure a fair trial, it ought to be excluded – Sub-rule 89(D). Also to be excluded by Rule 95, is evidence obtained by means contrary to internationally protected human rights.856
It further found that Rule 95 of the Rules in particular enables “the exclusion of evidence antiethical to and damaging, and thereby protecting the integrity of the proceedings.”857 The Appeals Chamber can see no reason why the Trial Chamber should be required to look elsewhere for the applicable legal principles.
541. During the hearing on appeal, the Appeals Chamber questioned the parties as to whether or not it would have been appropriate for the Trial Chamber to hold a voir dire to resolve this issue. It was stated that “the very issue of whether or not something is voluntary is the prime example of where a voir dire is often taken”858 so that for example in this case, Mucic could have been provided with the opportunity to “explain what was affecting his mind.”859 The Appeals Chamber notes that although there is no express provision in the Rules for such a procedure, it is generally available in, inter alia, common law jurisdictions. It allows for arguments and evidence to be brought before the court solely on a defined issue and would provide an accused with the opportunity to give evidence on a limited basis, prohibiting questions beyond the issues raised. It would ensure in general that arguments and evidence led be confined to the issue in dispute and not extend to discussion of the facts of the case itself.860
542. The Appeals Chamber notes that during proceedings at first instance, the possibility of resolving this issue by way of voir dire was in fact raised.861 In Mucic’s motion to exclude the First Interviews and Second Interviews from evidence862 he submitted that “the appropriate way of dealing with [this issue of admissibility] is that there should be a hearing by way of voire
856 Exclusion Decision, para 35. 857 Exclusion Decision, para 44. 858 Appeal Transcript, p 482. 859 Appeal Transcript, p 483.
860 See for example, Archbold 2000 (Sweet and Maxwell Limited, 2000), paras 15-360 – 15-365.
861 The Appeals Chamber also notes that during the hearing on appeal, both parties appeared unaware of the fact
that this issue had been specifically raised at first instance.
[sic] dire (or ‘trial-within-a-trial’)”.863 However, he did not submit specifically that in doing so, he wished to have the opportunity to give evidence personally. On the contrary, he submitted generally that this procedure would allow both parties to “call evidence and have witnesses