Questionable Documents Could Work Fraud on the Court

With two recent witnesses, Mr. Milosevic has sought to introduce documents of questionable authenticity. The Court has received them into the record “for what they’re worth,” despite reservations. In some cases, the documents originated from the Prosecution as potentially exculpatory material turned over to the Accused. Mr. Milosevic appears to have obtained other documents from authorities in the Republika Srpska. In none of these cases were the documents authenticated, which leads to the possibility that they were fabricated and may have been offered to mislead the Court.

The Tribunal has relatively loose evidentiary rules. Rule 89 C provides that “A Chamber may admit any relevant evidence which it deems to have probative value.” As the Court in the Blaskic case noted, the Tribunal's regime is one of 'extensive admissibility.' Such laxness is permitted because professional judges, not lay juries, are the decision-makers, and it is thought they can distinguish between reliable and unreliable evidence, as well as evaluate the evidence to determine how much weight to give it.

Nevertheless, not everything offered as evidence will or should be admitted. ICTY Rule 89 C limits admissible evidence to that which is “relevant” and has “probative value.” In other words, it must tend to prove or disprove something at issue in the case. Moreover, Section B provides an overall caution, “In cases not otherwise provided for in this Section, a Chamber shall 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.”

The essential principle of law here is truth seeking, the very purpose of the trial. That principle is not aided when potentially fraudulent documents are accepted into the record. Indeed, Section E gives the Chamber authority to “request verification of the authenticity of evidence obtained out of court.” Moreover, Rule 95 provides, 'No evidence shall be admissible if obtained by methods which cast substantial doubt on its reliability or if its admission is antithetical to, and would seriously damage, the integrity of the proceedings.'

As a general matter, a document may be authenticated by testimony of the person who made it or by someone who knows and can verify the signature of the maker, if the maker is unavailable. If it is a regularly kept record, a keeper of such records can attest to the fact that it bears all the indications of being such a record. However, Tribunal jurisprudence allows trial chambers to admit unauthenticated documents into evidence. Admission of a document does not mean the Court considers it trustworthy or authentic. In reviewing all the evidence, the court decides what, if any, weight to attach to each piece. Where a document has not been authenticated, it may be given no weight at all.

The authentication issue arose recently during the cross examination of witness B-1505. Mr. Milosevic offered a document titled, “Report on Genocide and War Crimes Against the Serbian People in Visegrad in 1991 and 1992.” It was addressed to the State Prosecutor by the Public Prosecutor in Visegrad, Drasko Lazar, dated 15 March 1993. While the witness had not seen it before, he reported that the document was written well after the events it purported to relate, at a time when the SDS (Serbian Democratic Party) had exclusive power in the region. B-1505 said he did not consider it a credible source.

Judge May also expressed his concern about the document which was produced by one side to the conflict, not by an impartial body. Prosecutor Dermot Groome advised the Court it was for that reason the Prosecution has not introduced similar documents produced by Bosnian Muslims or Croats. Such self-serving documents, created after the fact, are “inherently unreliable,” he said. Judge May suggested that if the Court were to admit this document it would have to admit similar documents offered by the Prosecution. “Where would the end of it be?” he opined. Mr. Groome suggested in an understatement, “It would make the Chamber's task more difficult.”

Judge May explained his concerns as follows, “Here were two sides engaged in conflict. Both make substantial allegations against the other, effectively say ‘we blame you.’ The issue is whether we let in every document every side produces without authentication, or whether we wait for evidence to be produced.” He added, “Both sides might have an interest in such documents in presenting untruths as propaganda. Therefore, they are valueless . . . .” However, Judge May’s two colleagues disagreed and admitted the document without authentication. Judge May explained his dissent, “The danger in the case is being overwhelmed by partial [biased] documents which may not have a single word of truth. The proper way is to have the one who produced it testify.”

Perhaps finding himself in the minority on that occasion, Judge May made little effort to disallow similarly questionable documents which Mr. Milosevic presented the following week. Cross examining Mustafa Ramic, former Mayor of Brcko, Mr. Milosevic produced several “official notes” written by unidentified agents of the Republika Srpska (RS) Ministry of the Interior Public Security Sector well after the events alleged to have occurred. Mr. Ramic said both were fabricated. One was supposedly a report on a meeting that occurred before war broke out in Brcko on May 1, 1991, where the only item on the agenda was how Muslims were to be armed. The witness recalled the meeting, but said the primary agenda item was a request from Brcko’s Serbs to establish a separate Serbian part of the municipality. The report was dated 18 October 1995.

Mr. Milosevic produced another document which included a list of 284 names, all Bosniaks from one village, who allegedly joined the 108th Brigade of the BiH Army as the Third Company on May 1, 1991, the date the war began in Brcko. One can speculate that his purpose was to establish that there was a conflict between two armies rather than an attack on civilians by Serbian forces, as the prosecution contends. Mr. Ramic called the document a fabrication since the 108th Brigade did not form until May 17. He also pointed out it was not signed by any official and could have been written by anyone. It was dated 7 November 1995.

The Court turned to the Prosecutor to determine the document’s source, but Prosecutor Melissa Pack said the OTP had not seen the document before. Stating that they had reservations as to its authenticity, she asked the Court to accept it for identification only. Judge May remarked, “Plainly the Accused is getting a great deal of information. It may be a matter for us to consider in deciding how much help he needs.” The Judge was referring to Mr. Milosevic’s complaint that he lacks sufficient resources for his defense and is greatly out-resourced by the Prosecution.

The Accused continued to produce documents which had not been authenticated. Some were written well after the events or were unsigned. Others bore a certified stamp of the Republika Srpska dated many years after they were written. The Court nevertheless accepted them.

The final group of documents were indictments and judgments against Mr. Ramic for war crimes allegedly committed in 1992. He had never seen any of the documents until the Prosecution showed them to him shortly before his testimony. Nor had he heard about the criminal proceedings against him until well after he was found guilty in a trial he did not attend (trial in absentia). In questioning from Judge Robinson as to whether he had ever been arrested on the charges, Mr. Ramic replied, “Of course not. That is out of the question. I consider this an absolute farce.” Judge Robinson sought assistance from the Amicus, Mr. Tapuskovic, about the laws in effect in the Republika Srpska at the time. Was it possible, he asked, to hold a trial in absentia without making an effort to serve the indictment on the accused. Mr. Tapuskovic said, “A court of law would have to do everything possible to assure the Accused is present.” If it did not succeed in serving the indictment, “then the person would be summoned to trial.” Only if the accused failed to appear could the trial proceed. “If the accused appears later, he would have to be retried.”

Mr. Ramic testified he had never been arrested or served with an indictment or summons, though he has returned to Brcko frequently since the end of the war. About a year and a half ago, he read in the newspapers that the Court in Brcko had pardoned him and others. He called the judge and protested orally and in writing. There was nothing to pardon him for, he maintained. “I was not guilty and did not accept responsibility.” Nor was he legally found guilty. He asked that the entire proceedings be annulled. There was no evidence of any action taken.

Mr. Milosevic got the alleged indictments and conviction in absentia from the Prosecution under its Rule 68 obligations. That Rule provides: 'The Prosecutor shall, as soon as practicable, disclose to the defence the existence of material known to the Prosecutor which in any way tends to suggest the innocence or mitigate the guilt of the accused or may affect the credibility of prosecution evidence.' Lead Prosecutor Geoffrey Nice has advised the Court previously that the OTP errs on the side of generous disclosure of potentially exculpatory material. In turning it over to the Accused, the prosecution does not vouch for its authenticity. In these circumstances, there is nothing to prevent anyone from anonymously providing the OTP with fabricated documents tending to show the Accused's innocence. Mr. Nice alluded to that possibility in an earlier document submission by the Accused.

At the end of Mr. Ramic’s testimony, Judge Robinson expressed his concern about the mandatory disclosure rule: “I have been developing the view that Rule 68 does not necessarily achieve fairness for all parties. It is impractical and unduly onerous. It needs to be revised so it does not do an injustice to the Accused.”

Rule 68 may also do an injustice to the public. If anonymous sources can flood the prosecution with fabricated material that appears potentially exculpatory, Rule 68 requires the prosecution to turn this material over to the accused. Not only does the material have the potential to overwhelm the court by its sheer volume. But, if the court admits the material without requiring its authentication, it has great potential to work a fraud on the court, undermining its truth seeking function and discrediting it in the eyes of the world.

The way to assure that this is not done is for the Court to require that documents received into evidence be authenticated or, at a minimum, show some indicia of reliability. That does not appear to be the case with recent documents the Court has admitted at Mr. Milosevic's request. In its effort to bend over backward to be fair to an unrepresented accused, the Court makes its job, that of truth seeking, much more difficult.