SCSL Trial Chamber admitted into evidence two confidential US government cables

Yesterday, in the Taylor case, the Trial Chamber granted the Defence request to admit into evidence two US government cables obtained by WikiLeaks and published in the Guardian in December 2010.

In its motion of 10 January, the Defence argued that the leaked cables “clearly indicate, inter alia, two things: 1) the USG’s desire to ensure that Mr. Taylor does not return to Liberia ... 2) proof that there is and have been contacts between the Trial Chamber, the Prosecution and the Registry, respectively, and agents of the USG outside the official lines of communication.”
This, according to the Defence “raises grave doubts about the independence and impartiality of the Special Court’s prosecution of Charles Taylor. Viewed objectively, the evidence could lead to the reasonable conclusion that the indictment and trial of Mr. Taylor by the Special Court is no more than an extension of United States foreign policy interests in West Africa, with there being no genuine connection to any alleged crimes in Sierra Leone.”

Despite the Prosecution’s objection, the Chamber admitted the documents and noted that they “can be related to submissions made by defence counsel as well as sworn evidence by the accused”.

One of the judges of the Chamber, Julia Sebutinde, attached a declaration in which she stated that “it would be in the interests of justice for me to voluntarily withdraw myself from a decision on this Motion. The USG Code Cable ... involves a statement that un-named “sources in the Prosecution, Chambers and the Registry” ... allegedly made certain specific allegations against me...” She further declared that “while I am completely innocent of the allegations ..., in order for justice to be seen to be done, I should not participate in the deliberations or decision relating to this motion.”

(See also next post).

Taylor, Decision on the Urgent and Public with Annexes A-C Defence Motion to R-Open its Case in Order to Seek Admission of Documents Relating to the Relationship between the United States Governement and the Prosecution of Charles Taylor, Case No. SCSL-03-1-T, T. Ch., 27 January 2011.

Intercepts, obtained in violation of domestic law, can be admitted into evidence

Today, in the Karadžić case, the Trial Chamber reiterated that intercepted evidence, obtained in violation of domestic law, should not automatically be excluded from admission into evidence.

The accused objected to the admission of the intercepts of telephone conversations involving various individuals, including the accused.
He argued that that they were intercepted in violation of Bosnian law and universal principles of the right to privacy.

According to the Chamber, the Tribunal jurisprudence is clear that evidence obtained illegally is not, a priori, inadmissible, but rather that the manner and surrounding circumstances in which the evidence was obtained, as well as its reliability and effect on the integrity of the proceedings, will determine its admissibility.

The Chamber noted that admitting intercepts of conversations that may have been obtained in contravention of domestic law would not violate the accused’s right to privacy to such an extent that the integrity of the proceedings would be damaged.

It was recalled that the fundamental right to privacy is not absolute and may be derogated from in times of emergency.

The Chamber also stated that the admission of evidence that may have been obtained illegally would not conflict with the need to ensure a fair trial.

Considering the jurisdiction that the Tribunal has to prosecute and adjudicate serious violations of international law as well as the charges brought against the accused, the Chamber considered that intercepted evidence, even if it may have been obtained in violation of applicable domestic law, should not automatically be excluded from admission into evidence.

Karadžić, Decision on the Accused’s Motion to Exclude Intercepted Conversations, Case No. IT-95-5/18-T, T. Ch., 30 September 2010

Admissibility of testimony of a deceased witness

Pursuant to Rule 92 quater of the ICTY Rules, the evidence of a person in the form of a written statement or transcript who has subsequently died, even if the evidence which goes to proof of acts and conduct of accused. However, according to the Rule, this may be a factor against the admission of such evidence, or that part of it.

The Trial Chamber in the Šešelj case dismissed the entire testimony of a deceased witness when some of it directly alleged the responsibility of the accused.

Šešelj, Redacted Version of the “Decision on the Prosecution’s Consolidated Motion pursuant to Rules 89(F), 92 bis, 92 ter and 92 quater of the Rules of Procedure and Evidence” Filed Confidentially on 7 January 2008, Case No. IT-03-67-T, T. Ch., 21 February 2008.

Recently the Trial Chamber in the Karadžić case denied admission of the portion of the transcript of the witness’s testimony related to an intercept which was, in the Chamber’s view, “highly incriminatory and thus highly prejudicial to the accused.” The Chamber noted that the witness had not been cross-examined on his evidence surrounding the intercept or the contents of the intercept itself.

According to the Chamber, admitting this transcript, without any chance for cross-examination, would impact the accused’s fair trial rights. As such, the probative value of admitting this portion of the witness’s evidence is substantially outweighed by the need to ensure a fair trial.

The Chamber noted that it differed from the Šešelj approach as Rule 92 quater, according to the Chamber, specifically accounts for situations where cross-examination of evidence going to acts and conduct is impossible and then provides a number of other factors that need to be balanced before such evidence can be admitted.

Karadžić, Decision on Prosecution’s Motion for Admission of the Evidence of KDZ172 (Milan Babić) pursuant to Rule 92 quater, Case No. IT-95-5/18-T, T. Ch., 13 April 2010.

In his Partially Dissenting Opinion, judge Kwon opined that the incriminating or prejudicial nature of evidence in relation to the accused is not one of the criteria to be assessed in determining its admission pursuant to Rule 92 quater, and no other Chamber had found it to be so.

With regard to the place of cross-examination in prior proceedings as a factor in making an assessment of admissibility under Rule 92 quater, the judge noted that the presence, absence, or poor quality of cross-examination in the prior proceedings should be analysed in the overall assessment of that evidence as a whole. It cannot be considered as a discrete test applicable to individual passages, questions or parts of the testimony or statement.

Admissibility of testimony outside of the witness statement

In its Decision of 26 March, the Trial Chamber in the Gatete case recalled that a witness is not bound strictly by what he has said in his statement, but that he may speak to matters immediately connecting or relevant to the issues that he has mentioned in his statement.

Gatete, Decision on Defence Motion for Exclusion of Evidence and Delineation of the Defence Case, Case No. ICTR-2000-61-PT, T. Ch., 26 March 2010, para. 30.

In the Bizimungu Casimir et al.case, the Trial Chamber did not allow a witness to testify on some factual issues not contained in his statement since, according to the Chamber, they were prejudicial to the Defence. The Chamber, however, noted that this did not mean that the witness would be bound strictly by what he had stated in his statement. The witness would be able to speak to matters immediately connecting or relevant to the issues that he had mentioned in his statement. In order to avoid this type of situation, the Chamber directed the Prosecution to give notice to the Defence, as soon as possible, of any additional matters not referred to in a statement of a witness who was going to be called by the Prosecution.

Bizimungu Casimir et al., transcript, Case No.¬¬¬ ICTR-99-50, 3 December 2003, pp. 36-37.