Witnesses

Notion(s) Filing Case
Appeal Judgement - 08.10.2008 MARTIĆ Milan
(IT-95-11-A)

The Appeals Chamber found that a statement admitted pursuant to Rule 92 bis may only be used as the sole basis for a conviction when the accused was provided a chance to cross-examine the witness in question.

FN486. [… The] Trial Chamber admitted this witness statement under Rule 92 bis of the Rules, without providing Martić the opportunity to cross-examine the witness in question.[1] As noted above, much of the findings in relation to the crimes in Cerovljani […] depend exclusively on this statement, with no corroboration. Thus, this evidence is pivotal to Martić’s responsibility and, lacking sufficient corroboration, Martić should have been granted the opportunity to cross-examine the witness in question.[2] The Appeals Chamber finds that the failure to accord Martić a right to cross-examine this witness constitutes a miscarriage of justice and accordingly his convictions for the crimes in Cerovljani would have been reversible on this ground, too.

[1] Decision on Prosecution’s Motions for the Admission of Written Evidence Pursuant to Rule 92 bis of the Rules, 16 January 2006, paras 16-17, 26, 28 and 37 (where the witness is identified as MM-019).

[2] Prosecutor v. Galić, Case No. IT-98-29-AR73.2, Decision on Interlocutory Appeal Concerning Rule 92 bis(C), 7 June 2002, paras 13-15. See also Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.6, Decision on Appeals against Decision Admitting Transcript of Jadranko Prlić’s Questioning into Evidence, 23 November 2007, especially paras 53 and 59.

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ICTR Rule Rule 92 bis ICTY Rule Rule 92 bis
Notion(s) Filing Case
Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

134. The Appeals Chamber recalls that a trial chamber has the discretion to rely upon evidence of accomplice witnesses. However, when weighing the probative value of such evidence, the trial chamber is bound to carefully consider the totality of the circumstances in which it was tendered. In particular, consideration should be given to circumstances showing that accomplice witnesses may have motives or incentives to implicate the accused person before the Tribunal or to lie.[1] The Appeals Chamber also recalls that evidence of witnesses who might have motives or incentives to implicate the accused is not per se unreliable, especially where such a witness may be thoroughly cross-examined; therefore, reliance upon this evidence does not, as such, constitute an error of law.[2] However, a trial chamber must explain the reasons for accepting the evidence of such a witness.[3] Particularly relevant factors for the assessment of accomplice witnesses’ credibility include:

the extent to which discrepancies in the testimony were explained; whether the accomplice witness has made a plea agreement with the Prosecution; whether he has already been tried and, if applicable, sentenced for his own crimes or is still awaiting the completion of his trial; and whether the witness may have any other reason for holding a grudge against the accused.[4]

135. A trial chamber’s discretion to rely on uncorroborated, but otherwise credible, witness testimony applies equally to the evidence of witnesses who may have motive to implicate the accused, provided that appropriate caution is exercised in the evaluation of their testimonies.[5]

[1]           Bizimungu Appeal Judgement, para. 63; Lukić and Lukić Appeal Judgement, para. 128 and references cited therein. See Karemera and Ngirumpatse Appeal Judgement, para. 42.

[2]           Šainović et al. Appeal Judgement, para. 1101; Krajišnik Appeal Judgement, para. 146.

[3]           See Lukić and Lukić Appeal Judgement, para. 128; Haradinaj et al. Appeal Judgement, para. 242; Krajišnik Appeal Judgement, para. 146.

[4]           Nchamihigo Appeal Judgement, para. 47 (internal references omitted) and references cited therein.

[5]           Šainović et al. Appeal Judgement, para. 1101, referring to Nchamihigo Appeal Judgement, paras 42-48.

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Notion(s) Filing Case
Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

1228. […] As the Appeals Chamber has previously observed, witnesses testify about what they see or hear from a particular vantage point at the time of the events.[1] It is for the Trial Chamber to evaluate inconsistencies in a witness’s evidence or discrepancies between the evidence of several witnesses, to consider whether the evidence taken as a whole is reliable and credible, and ultimately to accept or reject the fundamental features of the evidence.[2] […]

[1]           See Karera Appeal Judgement, para. 173.

[2]           Nizeyimana Appeal Judgement, para. 174; Munyakazi Appeal Judgement, para. 71. See supra, para. 137.

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Notion(s) Filing Case
Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

131. The Appeals Chamber recalls that a trial chamber is best placed to assess the credibility of a witness and reliability of the evidence adduced,[1] and therefore has broad discretion in assessing the appropriate weight and credibility to be accorded to the testimony of a witness.[2] Indeed, the ICTR Appeals Chamber has previously noted that it “is loathe to disturb such credibility assessments”.[3] As with other discretionary decisions, the question before the Appeals Chamber is not whether it “agrees with that decision” but “whether the trial chamber has correctly exercised its discretion in reaching that decision”.[4] The party challenging a discretionary decision by the trial chamber must demonstrate that the trial chamber has committed a discernible error. The Appeals Chamber will only overturn a trial chamber’s discretionary decision where it is found to be: (1) based on an incorrect interpretation of governing law; (2) based on a patently incorrect conclusion of fact; or (3) so unfair or unreasonable as to constitute an abuse of discretion.[5] In such cases the Appeals Chamber will deem that the witness evidence relied on by the Trial Chamber could not have been accepted by any reasonable tribunal of fact or that the evaluation of the evidence was “wholly erroneous”, and proceed to substitute its own finding for that of the Trial Chamber.[6]

132. The Appeals Chamber is mindful that when exercising its broad discretion, a trial chamber has to consider relevant factors on a case-by-case basis, including the witness’s demeanour in court; his role in the events in question; the plausibility and clarity of his testimony; whether there are contradictions or inconsistencies in his successive statements or between his testimony and other evidence; any prior examples of false testimony; any motivation to lie; and the witness’s responses during cross-examination.[7] The Appeals Chamber recalls that the many potential factors relevant to the trial chamber’s assessment of a witness’s credibility include corroboration,[8] the witness’s close personal relationship to an accused,[9] and the witness’s criminal history.[10] The application of these factors, and the positive or negative impact they may have on the witness’s credibility, varies according to the specific circumstances of each case.[11] Finally, a trial chamber can reasonably accept certain parts of a witness’s testimony and reject others.[12]

133. The Appeals Chamber recalls that a trial chamber is not required to set out in detail why it accepted or rejected a particular testimony,[13] and that an accused’s right to a reasoned opinion does not ordinarily demand a detailed analysis of the credibility of particular witnesses.[14] However, a trial chamber must provide reasons for accepting testimony despite alleged or material inconsistencies when it is the principal evidence relied upon to convict an accused.[15]

[…]

136. The Appeals Chamber recalls that it is not an error of law per se to accept and rely on evidence that is inconsistent with a prior statement or other evidence adduced at trial.[16] A trial chamber has the discretion to accept a witness’s evidence, notwithstanding inconsistencies between the said evidence and his previous statements.[17] However, a trial chamber must take into account any explanations offered for such inconsistencies when determining the probative value of the evidence.[18]

137. Similarly, a trial chamber has the discretion to evaluate any inconsistencies that may arise within or among witnesses’ testimonies and to determine whether, in the light of the overall evidence, the witnesses were reliable and credible.[19] Considering that minor inconsistencies commonly occur in witness testimony without rendering it unreliable, it is within the discretion of a trial chamber to evaluate discrepancies and to consider the credibility of the evidence as a whole, without explaining its decision in every detail.[20]

[1]           Šainović et al. Appeal Judgement, paras 437, 464, 1296; Lukić and Lukić Appeal Judgement, para. 296. See Đorđević Appeal Judgement, para. 395.

[2]           Đorđević Appeal Judgement, paras 781, 797, 819; Ndahimana Appeal Judgement, paras 43, 93; Lukić and Lukić Appeal Judgement, paras 86, 235, 363, 375.

[3]           Nizeyimana Appeal Judgement, para. 56; Hategekimana Appeal Judgement, para. 202; Second Muvunyi Appeal Judgement, para. 26, citing Ntakirutimana and Ntakirutimana Appeal Judgement, para. 244. See Šainović et al. Appeal Judgement, para. 1384.

[4]           Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-AR73.1, Decision on Miroslav Šeparović’s Interlocutory Appeal Against Trial Chamber’s Decisions on Conflict of Interest and Finding of Misconduct, 4 May 2007, para. 11; Prosecutor v. Milan Lukić and Sredoje Lukić, Case No. IT-98-32/1-AR65.1, Decision on Defence Appeal Against Trial Chamber’s Decision on Sredoje Lukić’s Motion for Provisional Release, 16 April 2007, para. 4; Prosecutor v. Mico Stanišić, Case No. IT-04-79-AR65.1, Decision on Prosecution’s Interlocutory Appeal of Mićo Stanišić’s Provisional Release, 17 October 2005, para. 6.

[5]           See supra, para. 74.

[6]           Kupreškić et al. Appeal Judgement, paras 30, 41, 130, 225. See also supra, para. 20.

[7]           Nzabonimana Appeal Judgement, para. 45; Nchamihigo Appeal Judgement, para. 47, referring to Nahimana et al. Appeal Judgement, para. 194. See Nizeyimana Appeal Judgement, para. 92.

[8]           Nchamihigo Appeal Judgement, para. 47, referring to Simba Appeal Judgement, para. 24.

[9]           Nizeyimana Appeal Judgement, para. 57; Kanyarukiga Appeal Judgement, para. 121, referring to Bikindi Appeal Judgement, para. 117.

[10]          Nzabonimana Appeal Judgement, para. 93, referring to Bagosora and Nsengiyumva Appeal Judgement, para. 264, Kamuhanda Appeal Judgement, para. 142.

[11]          Nchamihigo Appeal Judgement, para. 47, referring to Simba Appeal Judgement, para. 24.

[12]          Šainović et al. Appeal Judgement, paras 294, 336, 342, 382, 437, 564, 644; Ndahimana Appeal Judgement, para. 183; Boškoski and Tarčulovski Appeal Judgement, para. 59 and references cited therein. See Bagosora and Nsengiyumva Appeal Judgement, para. 253.

[13]          Gatete Appeal Judgement, para. 136; Ntabakuze Appeal Judgement, para. 161; Bagosora and Nsengiyumva Appeal Judgement, para. 269. See Lukić and Lukić Appeal Judgement, para. 112.

[14]          Kajelijeli Appeal Judgement, para. 60.

[15]          Haradinaj et al. Appeal Judgement, paras 129, 134, 252; Kupreškić et al. Appeal Judgement, paras 135, 202. See First Muvunyi Appeal Judgement, paras 144, 147. See also Bizimungu Appeal Judgement, para. 64; Kajelijeli Appeal Judgement, para. 61.

[16]          Šainović et al. Appeal Judgement, para. 424; Nchamihigo Appeal Judgement, para. 201 and references cited therein.

[17]          Đorđević Appeal Judgement, para. 422; Rukundo Appeal Judgement, para. 86 and references cited therein.

[18]          Šainović et al. Appeal Judgement, para. 424; Nchamihigo Appeal Judgement, para. 201 and references cited therein.

[19]          See Karemera and Ngirumpatse Appeal Judgement, paras 179, 467-468; Đorđević Appeal Judgement, paras 395, 422; Ndahimana Appeal Judgement, para. 93; First Muvunyi Appeal Judgement, para. 144.

[20]          Đorđević Appeal Judgement, para. 797; Lukić and Lukić Appeal Judgement, paras 112, 135; Kvočka et al. Appeal Judgement, para. 23. Cf. supra, note 376.

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Notion(s) Filing Case
Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

205. […] [T]he Appeals Chamber notes that a trial chamber has discretion to determine the modalities of re-examination,[1] and that the Appeals Chamber must ascertain whether the trial chamber properly exercised its discretion and, if not, whether the accused’s defence was substantially affected.[2] […]

[1]           Nahimana et al. Appeal Judgement, para. 182. See also Rule 90(F) of the Rules.

[2]           Nahimana et al. Appeal Judgement, para. 182.

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ICTR Rule Rule 90(F) ICTY Rule Rule 90(F)
Notion(s) Filing Case
Appeal Judgement - 28.09.2011 SETAKO Ephrem
(ICTR-04-81-A)

143. The Appeals Chamber notes that a trial chamber has the discretion to rely upon evidence of accomplice witnesses.[1] However, when weighing the probative value of such evidence, the trial chamber is bound to carefully consider the totality of the circumstances in which it was tendered. In particular, consideration should be given to circumstances showing that accomplice witnesses may have motives or incentives to implicate the accused person before the Tribunal or to lie.[2]

144. In the present case, the Trial Chamber was well aware of the criminal records of Witnesses SLA and SAT.[3] It also acknowledged that the witnesses were accomplices of Setako with regard to the killings on 25 April 1994 and, precisely for this reason, stated that it would view their evidence with caution.[4] It considered various credibility issues raised by the Defence, including allegations of fabrication and manipulation of evidence,[5] and, “out of an abundance of caution”, only accepted the witnesses’ evidence about the events at Mukamira camp where they corroborated each other.[6]

145. In these circumstances, the Appeals Chamber finds that it was not unreasonable for the Trial Chamber to rely on the evidence of Witnesses SLA and SAT. The Appeals Chamber discerns no error in the Trial Chamber’s conclusion that the witnesses, who had not previously confessed to crimes with respect to 25 April 1994, exposed themselves to the risk of being held accountable for them in future criminal proceedings before Rwandan judicial authorities. The fact that they testified as protected witnesses did not render this consideration unreasonable.

[1] Muvunyi II Appeal Judgement, para. 37; Nchamihigo Appeal Judgement, paras. 42, 305; Muvunyi I Appeal Judgement, para. 128.

[2] Muvunyi II Appeal Judgement, para. 37; Nchamihigo Appeal Judgement, paras. 47, 305; Muvunyi I Appeal Judgement, para. 128.

[3] See Trial Judgement, fns. 393, 398.

[4] Trial Judgement, para. 339. See also Trial Judgement, para. 367.

[5] Trial Judgement, paras. 338-359, 367.

[6] See Trial Judgement, para. 367.

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Notion(s) Filing Case
Appeal Judgement - 28.09.2011 SETAKO Ephrem
(ICTR-04-81-A)

137. The Appeals Chamber recalls that collusion is “an agreement, usually secret, between two or more persons for a fraudulent, unlawful, or deceitful purpose.”[1] If an agreement between witnesses for the purpose of untruthfully incriminating an accused is established, their evidence should be excluded pursuant to Rule 95 of the Rules.[2]

[1] Karera Appeal Judgement, para. 234.

[2] Rule 95 of the Rules states: “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.” See also Karera Appeal Judgement, para. 234.

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ICTR Rule Rule 95
Notion(s) Filing Case
Appeal Judgement - 28.09.2011 SETAKO Ephrem
(ICTR-04-81-A)

188. The Appeals Chamber recalls that it is primarily for the trier of fact to determine whether a particular witness may have an incentive to distort the truth.[1] However, the mere fact that the Defence witnesses lived or found refuge at Mukamira camp due to their relationships with soldiers does not in and of itself imply that they gave a tainted account in order to protect Setako from criminal responsibility. This Tribunal has considered that, under certain circumstances, the fact that a witness was saved by the accused may be relevant to the witness’s credibility assessment.[2] Setako does not appear to have played any role in the protection of the Defence witnesses. The trial record also does not reveal any other evidence that the Defence witnesses were biased in favour of Setako.[3]

189. Similarly, the fact that Witness NBO’s husband was related to an accused before this Tribunal does not necessarily indicate that she would have distorted her testimony to the benefit of Setako. In particular, the Appeals Chamber observes that her husband’s relative was not implicated in any charges concerning killings at Mukamira camp.

[1] Gacumbitsi Appeal Judgement, para. 71.

[2] See Kajelijeli Appeal Judgement, para. 19; Ndindabahizi Trial Judgement, paras. 321, 322, 336, 338, 343, 345 (rejecting the Prosecution’s argument that several Defence witnesses were biased in favour of the accused because he or his family saved their lives and the witnesses acknowledged that they owed the accused a debt of gratitude); Kajelijeli Trial Judgement, para. 223.

[3] The Appeals Chamber notes that the Defence witnesses were not asked during their testimony whether they knew each other. It will therefore not discuss this assertion made by Setako. 

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Notion(s) Filing Case
Decision on Examination of Witnesses - 11.09.2008 PRLIĆ et al.
(IT-04-74-AR73.11)

19. The Appeals Chamber has already held that when an accused is effectively represented by counsel, it is, in principle, for the counsel to conduct the examination of witnesses.[1] It has however recognized that Trial Chambers may, under exceptional circumstances, authorize an accused to participate in the examination in person.[2] It has also been established that the Trial Chambers are entitled under Rule 90(F) of the Tribunal’s Rules of Procedure and Evidence (“Rules”) to exercise control over the manner in which such examination is conducted,[3] including ensuring that it “is not impeded by useless and irrelevant questions”.[4]

20. […] In these circumstances, the real issue currently before the Appeals Chamber is whether the Trial Chamber committed a discernable error in defining those “exceptional circumstances” by providing its clarification of the term “specific expertise”.

21. […] The Appeals Chamber reiterates that it is within the Trial Chamber’s discretionary power to define the circumstances under which it can allow the Appellant to intervene in the examination of witnesses. However, it did not need, at this stage of the proceedings, to further restrict the criteria that would apply to all his future requests for personal intervention. Although the Trial Chamber based its decision on its experience concerning previous interventions of the Appellant, the Appeals Chamber considers that the Trial Chamber should have allowed more flexibility for its assessment of the notion of specific expertise and perform such assessment on a case-by-case basis when faced with a specific request. The approach taken by the Trial Chamber could potentially lead to violation of the Appellant’s rights under Article 21 of the Statute and thus constitutes an abuse of discretion.

22. Moreover, the Appeals Chamber emphasizes that both Guideline C (as amended by the Trial Chamber’s Decision of 10 May 2007) and Guideline 1 refer to “exceptional circumstances” which relate in particular to the events in which the Appellant participated personally or issues falling within his specific expertise, and should therefore not be read as restricting those circumstances to these two scenarios.[5] Indeed, various other circumstances may still arise during the proceedings which may justify the Appellant’s participation in the examination.[6]

[1] Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Judgement (“Nahimana et al. Appeal Judgement”), para. 267 and fn. 651; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Scheduling Order, 16 November 2006, pp. 3-4; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Hassan Ngeze’s Motions Concerning Restrictive Measures of Detention, 20 September 2006 (confidential), p. 7: “Article 20(d) of the Statute provides for an alternative between the right to self-representation and the right to legal assistance, but does not entitle an accused or an appellant who has a counsel assigned to him/her to choose at whim when to accept or not his/her counsel’s advice” (footnotes omitted).

[2] Appeals Chamber’s Decision of 24 August 2007 [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.5, Decision on Praljak’s Appeal of the Trial Chamber’s 10 May 2007 Decision on the Mode of Interrogating Witnesses, 24 August 2007], paras 9, 11, 13; Nahimana et al. Appeal Judgement, paras 267, 269-270, 274, 276.

[3] Rule 90(F) of the Rules provides:

         “The Trial Chamber shall exercise control over the mode and order of interrogating witnesses and presenting evidence so as to

(i) make the interrogation and presentation effective for the ascertainment of the truth; and

(ii) avoid needless consumption of time.”

[4] Nahimana et al. Appeal Judgement, paras 182, 270 ; Georges Anderson Nderubumwe Rutaganda v. The Prosecutor, Case No. ICTR-96-3-A, Judgement, 26 May 2003, paras 45, 99, 102; The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Appeal Judgement, 1 June 2001, para. 318.

[5] Recalling the Trial Chamber’s Decisions of 10 May 2007 [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-T, Decision on the Mode of Interrogating Witnesses, 10 May 2007] and 24 April 2008 [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-T, Decision Adopting Guidelines for the Presentation of Defence Evidence, 24 April 2008], the French original of the Impugned Decision reads “[…] dans des circonstances exceptionnelles notamment liées, soit à l’examen d’événements auxquels un Accusé a personnellement participé, soit à l’examen de questions au sujet desquelles il possède des compétences spécifiques” (p. 2, emphasis added). The English translation however erroneously reads “[…] under exceptional circumstances linked either to the examination of events in which an Accused personally took part or to the examination of issues about which he has specific expertise”.

[6] Cf. Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-T where the Trial Chamber allowed Momčilo Krajišnik to put questions to witnesses as “an experiment” to consider whether or not to allow him to represent himself (T. 13439; T.17205). See also Prosecutor v. Ferdinand Nahimana et al., Case No. ICTR-99-52-T where the Trial Chamber accorded Hassan Ngeze the permission to cross-examine witnesses (under the control of the Chamber) as a temporary measure pending the consideration of his request for the withdrawal of his counsel (T. 15 May 2001, pp. 95-96); or – on a different occasion – allowed him to put additional questions to the witness through the Chamber on the basis of – otherwise unidentified – exceptional circumstances, provided that the questions were relevant and admissible (T. 27 November 2001, pp. 1-8); or allowed Hassan Ngeze to sit next to his Co-Counsel so as to participate actively in the cross-examination (T. 4 July 2002, pp. 3-12). The Appeals Chamber has found no error in the approach taken by the latter Trial Chamber (Nahimana et al. Appeal Judgement, paras 266-276).

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ICTR Statute Article 20(4)(e) ICTY Statute Article 21(4)(e) ICTR Rule Rule 90(F) ICTY Rule Rule 90(F)
Notion(s) Filing Case
Decision on Adding Wesley Clark to Witness List - 20.04.2007 MILUTINOVIĆ et al.
(IT-05-87-AR73.1)

The Prosecution argued that the Trial Chamber erred in not applying Rules 70(G) and 89(D) after the Trial Chamber heard General Clark’s testimony.[1] The Appeals Chamber held that the Trial Chamber correctly applied the Rules.[2] It then held:

18. Furthermore, this analysis does not change simply because the Trial Chamber was considering whether to admit a Rule 70 witness subject to conditions imposed by a Rule 70 provider. While Rule 70(C) and (D) of the Rules refers to certain restrictions on a Trial Chamber in hearing a witness testify to confidential material provided by a Rule 70 provider, those restrictions apply only after the Trial Chamber has determined that the Rule 70 witness testimony “elected” to be presented by a party at trial[3] is admissible under Rule 89 of the Rules. In making that determination, a Trial Chamber is entitled under Rule 70(G) of the Rules to consider whether the Rule 70 restrictions stipulated with respect to that witness testimony would undermine the need to ensure a fair trial and substantially outweigh the testimony’s probative value such as to lead to exclusion of that testimony. A Trial Chamber is not obliged to automatically admit such Rule 70 witness testimony where it is deemed relevant and probative and, only afterwards, asses the actual unfairness caused to the trial by the Rule 70 conditions as applied. The Appeals Chamber recalls that Rule 70 protections on confidential information provided by States have been incorporated in the International Tribunal’s Rules in recognition of the need of States for safeguards with respect to certain State interests. They have also been included to allow and to encourage States to fulfil their cooperation obligations under Article 29 of the Tribunal’s Statute[4] by providing a broad range of information relevant to a particular case.[5] However, this deference to States’ interests does not go so far as to supersede a Trial Chamber’s authority to maintain control over the fair and expeditious conduct of the trial.[6] In sum, under Rules 70(G) and 89(D) of the Rules, a Trial Chamber may, as the Trial Chamber did here, assess the conditions placed upon proposed Rule 70 witness testimony and determine, without hearing that testimony, that it may not be admitted on the basis that the Rule 70 conditions would result in substantial unfairness to the trial, which outweighs that testimony’s probative value.

19. The Appeals Chamber further finds that the Prosecution’s citation to the Martić Decision in support of its interpretation of the test under Rules (70G) and 89(D) of the Rules is inapposite. While in that decision the Appeals Chamber similarly considered whether limitations on the cross-examination of witness testimony would result in substantial unfairness to the trial which outweighs its probative value and thereby requires its exclusion under Rule 89(D) of the Rules, the question arose after the testimony had already been admitted by the Trial Chamber and only because of the unexpected death of the witness prior to the close of cross-examination. The Appeals Chamber in the Martić Decision did not address whether proposed witness testimony may be excluded prior to its admission under Rule 89(D) of the Rules because of the need to ensure a fair trial. Nor did it consider possible exclusion of proffered witness testimony because it was subject to Rule 70 conditions.

[1] Decision, paras 13-15.

[2] Decision, paras 16-17.

[3] See Rule 70(C) and (F) of the Rules.

[4] Article 29(1) of the Statute reads: “States shall co-operate with the International Tribunal in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law.”

[5] Prosecutor v. Milan Milutinović et al., Case No. IT-05-87-AR108bis.2, Decision on Request of the United States of America for Review, 12 May 2006 (“Decision of 12 May 2006”), para. 33.

[6] See Article 20(1) of the Statute. See also Decision of 12 May 2006, para. 28, wherein the Appeals Chamber emphasized that “Rule 70 should not be used by States as a blanket right to withhold, for security purposes, documents necessary for trial from being disclosed by a party for use as evidence at trial as this would jeopardize the very function of the International Tribunal, and defeat its essential object and purpose” (internal quotation marks omitted). 

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ICTR Rule Rule 70; Rule 89(D) ICTY Rule Rule 70; Rule 89(D)
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Decision on Adding Wesley Clark to Witness List - 20.04.2007 MILUTINOVIĆ et al.
(IT-05-87-AR73.1)

The Prosecution argued that the Trial Chamber erred in concluding that forcing the Defence to seek prior approval to expand its scope of cross-examination would cause harm to the Defence that would substantially outweigh the probative value of the witnesses’ evidence.[1] The Appeals Chamber noted:

22. The Appeals Chamber notes that in the Impugned Decision, the Trial Chamber held that “[t]here is no obligation on the Defence to indicate in advance the line of cross-examination to be pursued” and that “[t]o require them to seek permission for examination on a particular subject would oblige them to make disclosure not required by the Rules.”[2] It considered that this Rule 70 condition required it to exclude the proposed testimony under Rules 70(G) and 89(D) of the Rules. The Appeals Chamber finds that the Prosecution has failed to demonstrate a discernible error in this approach. While the Trial Chamber did not specifically state to whom the Defence would unfairly be obliged to make disclosure with respect to its line of cross-examination, it is clear that it would at least have to do so to the Rule 70 provider and, consequently, General Clark as the witness. The Rule 70 provider would have to inform General Clark that he is allowed to answer questions beyond the original scope of cross-examination stipulated and, as a result, any advantage gained by pursuing a new line of cross-examination would be mitigated or even lost given that General Clark would be prepared for it.

23. Furthermore, as found above, the Trial Chamber was not required to find actual harm to the fairness of the trial that has resulted from the application of this Rule 70 condition upon admission of General Clark’s testimony into evidence in order to find that the testimony should be excluded under Rules 70(G) and 89(D).[3] Nor was it required to consider other remedies than exclusion of that testimony from the record once the harm was done. It was appropriate under Rules 70(G) and 89(D) of the Rules for the Trial Chamber to find that the application of this Rule 70 condition as it stands would result in unfairness that substantially outweighs the probative value of that testimony such that the testimony should not be admitted in the first place.[4]

[1] Decision, para. 21.

[2] Impugned Decision, para. 27.

[3] See supra para. 17.

[4] See supra paras 17-18, 20.

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ICTR Rule Rule 70 ICTY Rule Rule 70
Notion(s) Filing Case
Appeal Judgement - 27.11.2007 SIMBA Aloys
(ICTR-01-76-A)

31. Turning to the Appellant’s contention in relation to Witness YH,[1] the Appeals Chamber recalls that the Prosecutor has independent authority to initiate investigations on statutory crimes and to assess whether the information forms a sufficient basis to proceed against persons suspected of having committed such crimes.[2] However, Rule 91(B)(i) of the Rules specifically provides that “[i]f a Chamber has strong grounds for believing that a witness has knowingly and wilfully given false testimony, it may direct the Prosecutor to investigate the matter with a view to the preparation and submission of an indictment for false testimony”. Such action lies within the discretion of the Trial Chamber and is contingent on its conviction that a witness “has knowingly and wilfully given false testimony”.[3] On the other hand, a credibility determination may be based, but does not necessarily depend, on a judicial finding that a witness has given false testimony.[4]

32. The Appeals Chamber stresses that the mere existence of discrepancies between a witness’s testimony and his earlier statements does not constitute strong grounds for believing that a witness may have knowingly and wilfully given false testimony.[5] […]

33. In any event, the Appeals Chamber is only required to grant relief for a violation of the Rules where a party has objected in a timely manner and has suffered material prejudice.[6] The Appellant clearly fails to show how the Oral Decision of 23 September 2004 has prejudiced him. The Appeals Chamber recalls that an investigation for false testimony is only ancillary to proceedings and does not necessarily affect the rights of an accused.

[1] Simba Notice of Appeal, III-3 and III-6.

[2] See Articles 15(2) and 17(1) of the Statute.

[3] The Appeals Chamber finds the following statement persuasive: “[F]alse testimony is a deliberate offence which requires wilful intent on the part of the perpetrator to mislead the Judge and thus to cause harm” (Rutaganda Trial Judgement, para. 20).

[4] The Prosecutor v. Georges Anderson Nderumwe Rutaganda, Case No. ICTR 96-3-A, Decision on Appeals Against the Decisions by Trial Chamber I Rejecting the Defence Motions to Direct the Prosecutor to Investigate the Matter of False Testimony by Witnesses “E” and “CC”, 8 June 1998 (“Rutaganda Decision Rejecting the Defence Motions to Direct the Prosecutor to Investigate the Matter of False Testimony by Witnesses “E” and “CC” of 8 June 1998”), para. 28.

[5] Rutaganda Trial Judgement, para. 20.

[6] Gacumbitsi Appeal Judgement, para. 11, fn. 24, referring to Rule 5 of the Rules.

[7] See The Prosecutor v. Georges Anderson Nderumwe Rutaganda, Case No. ICTR 96-3-A, Decision on Appeals Against the Decisions by Trial Chamber I Rejecting the Defence Motions to Direct the Prosecutor to Investigate the Matter of False Testimony by Witnesses “E” and “CC”, 8 June 1998, para. 28.

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ICTR Rule Rule 91 ICTY Rule Rule 91
Notion(s) Filing Case
Decision on Admission of Transcript - 23.11.2007 PRLIĆ et al.
(IT-04-74-AR73.6)

38. […] Witnesses, under the Tribunal’s rules, are generally questioned by the parties in court after having made a solemn declaration; they may be subjected to cross-examination by the opposing party, as well as to questions from the bench. In particular, judges are thus in a position to observe a witness’s demeanour while he gives evidence.[1] […]

[1] See, inter alia, Rules 85(B) and 90. The issues raised by Rules 92bis and 92quater are discussed below; suffice it to say here that, in these cases, cross-examination by the opposing party is allowed (where possible) and that evidence on the acts and conduct of the accused constitutes a ground to exclude such statements from the proceedings. Moreover, the Appeals Chamber has already noted the difference between statements admitted pursuant to Rule 92bis and others. See Prosecutor v. Stanislav Galić, Case No IT-98-29-AR73.2, Decision on Interlocutory Appeal Concerning Rule 92bis(C) (“Galić Decision”), 7 June 2002, para. 31.

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Notion(s) Filing Case
Decision on Admission of Transcript - 23.11.2007 PRLIĆ et al.
(IT-04-74-AR73.6)

52. The Appeals Chamber has already held that the right to cross-examination is not absolute.[1] It further noted that

application of a fair trial in favour of both parties is understandable because the Prosecution acts on behalf of and in the interests of the community, including the victims of the offences charged (in cases before the Tribunal the Prosecutor acts on behalf of the international community) […] Seen in this way, it is difficult to see how a trial could ever be considered fair where the accused is favoured at the expense of the Prosecution beyond a strict compliance with those fundamental protections.[2]

Of even more relevance for the issue at hand, since the Tribunal’s first cases, the jurisprudence has been constant in holding that, under the Tribunal’s system, a statement of a person made otherwise than in the proceedings in which it is tendered, whether orally by a witness or in writing is not inadmissible, in particular when the source of hearsay is known and subject to potential evaluation by a Chamber.[3] In particular, the Appeals Chamber found that Trial Chambers have a wide discretion in admitting hearsay evidence, although establishing the reliability of this type of evidence is of paramount importance when hearsay evidence is admitted as substantive evidence in order to prove the truth of its contents.[4]

53. A different matter is, of course, what weight a trier of fact is allowed to give to evidence not subjected to the testing of cross-examination. It is in this matter that the jurisprudence of the ECtHR is valuable, as it has authoritatively stated the principle that “all the evidence must normally be produced at a public hearing, in the presence of the accused, with a view to adversarial argument. There are exceptions to this principle, but they must not infringe the rights of the defence.”[5] Unacceptable infringements of the rights of the defence, in this sense, occur when a conviction is based solely, or in a decisive manner, on the depositions of a witness whom the accused has had no opportunity to examine or to have examined either during the investigation or at trial.[6] The ECtHR applied this reasoning to the statement of a co-accused in pre-trial proceedings in a case where neither the applicant nor his lawyer had been given the opportunity to question the co-accused at any stage of the proceedings.[7] The Appeals Chamber has already had occasion to elaborate on the fact that these principles serve as guidelines before the Tribunal.[8]

[1] Prosecutor v. Milan Martić, Case No. IT-95-11-AR73.2, Decision on Appeal against the Trial Chamber’s Decision on the Evidence of Witness Milan Babić, 14 September 2006 (“Martić Decision”), para. 12.

[2] Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-AR73, Decision on Prosecutor’s Appeal on Admissibility of Evidence, 16 February 1999 (“Aleksovski Decision on Admissibility of Evidence”), para. 25, cited with approval in Martić Decision, para. 13.

[3] Prosecutor v. Duško Tadić, Case No. IT-94-1-T, Decision on Defence Motion on Hearsay, 5 August 1996, paras 5, 7, 15, 18-19; Aleksovski Decision on Admissibility of Evidence, paras 14-15; Kordić and Čerkez Appeal Judgement, paras 280-284.

[4] Aleksovski Decision on Admissibility of Evidence, para. 15.

[5] A.M. v. Italy, no. 37019/97, para. 25, ECHR 1999-IX. supra, note 6

[6] Apart from the A.M. case, see also Saïdi v. France, judgment of 20 September 1993, Series A no. 261-C, pp. 56-57, paras 43-44 and Unterpertinger v. Austria, judgment of 24 November 1986, Series A no. 110, pp. 14-15, paras 31-33.

[7] Lucà v. Italy, no. 33354/96, paras 39-45, ECHR 2001-II.

[8] Martić Decision, para. 20 and cited references.

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Notion(s) Filing Case
Decision on Communication with Potential Witnesses of Opposite Party - 30.07.2003 MRKŠIĆ Mile
(IT-95-13/1-AR73)

16.     When a person has declined to be interviewed, the Prosecution is entitled to take reasonable steps to persuade the person to reconsider his decision. However, the mere fact that the person has agreed to testify for the Defence does not preclude the Prosecution from interviewing him provided of course that there is no interference with the course of justice. Particular caution is needed where the Prosecution is seeking to interview a witness who has declined to be interviewed by the Prosecution, since in such a case the witness may feel coerced or intimidated.

See also paragraphs 14-15.

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Notion(s) Filing Case
Decision on Refreshing Witness Memory - 02.04.2004 HADŽIHASANOVIĆ & KUBURA
(IT-01-47-AR73.2)

CONSIDERING that the Appeals Chamber has already stated that a prior statement may be used to refresh the memory of a witness under cross-examination;[1] and that the same conclusion should apply to the question of refreshing a witness’s memory during examination-in-chief;

[1] Prosecutor v. Simić et al., “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”, 23 May 2003, paras. 18, 20. 

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Notion(s) Filing Case
Appeal Judgement - 28.09.2011 MUNYAKAZI Yussuf
(ICTR-97-36A-A)

71. […] The Appeals Chamber recalls that the Trial Chamber has the main responsibility to resolve any inconsistencies that may arise within or among witnesses’ testimonies.[1] It is within the discretion of the Trial Chamber to evaluate any such inconsistencies, to consider whether the evidence taken as a whole is reliable and credible, and to accept or reject the fundamental features of the evidence.[2] The Appeals Chamber further recalls that “corroboration may exist even when some details differ between testimonies, provided that no credible testimony describes the facts in question in a way which is not compatible with the description given in another credible testimony.”[3]

103. […] Furthermore, corroboration does not require witnesses’ accounts to be identical in all aspects since “[e]very witness presents what he has seen from his own point of view at the time of the events, or according to how he understood the events recounted by others.” Rather, the main question is whether two or more credible accounts are incompatible.

118. […] The Appeals Chamber recalls that, when faced with competing versions of events, it is the duty of the Trial Chamber that heard the witnesses to determine which evidence it considers more probative. Based on the foregoing, the Appeals Chamber finds that it was reasonable for the Trial Chamber to accept the Prosecution evidence over Witness Nahimana’s account.

154. The Appeals Chamber recalls that the Trial Chamber has the main responsibility to resolve any inconsistencies that may arise within or among witnesses’ testimonies. […]

110. Finally, the Appeals Chamber recalls that the Trial Chamber has the primary discretion to decide whether or not a site visit is necessary or relevant for the assessment of evidence. […]

[1] Renzaho Appeal Judgement, para. 355; Rukundo Appeal Judgement, para. 207; Simba Appeal Judgement, para. 103.

[2] Renzaho Appeal Judgement, para. 355; Rukundo Appeal Judgement, para. 207; Simba Appeal Judgement, para. 103.

[3] Nahimana et al. Appeal Judgement, para. 428. See also Rukundo Appeal Judgement, para. 201; Karera Appeal Judgement, para. 173.

[4] Nahimana et al. Appeal Judgement, para. 428.

[5] Nahimana et al. Appeal Judgement, para. 428.

[6] Muvunyi II Appeal Judgement, para. 57; Muhimana Appeal Judgement, para. 103; Gacumbitsi Appeal Judgement, para. 81; Rutaganda Appeal Judgement, para. 29.

[7] Renzaho Appeal Judgement, para. 269; Rukundo Appeal Judgement, para. 207; Simba Appeal Judgement, para. 103.

[8] Simba Appeal Judgement, para. 16.

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Appeal Judgement - 28.09.2011 MUNYAKAZI Yussuf
(ICTR-97-36A-A)

77. […] The Appeals Chamber recalls that the Trial Chamber has the discretion to cautiously consider and rely on hearsay evidence.[1] […]

[1] Kalimanzira Appeal Judgement, para. 96; Karera Appeal Judgement, para. 39; Nahimana et al. Appeal Judgement, para. 831. See also Muvunyi I Appeal Judgement, para. 70; Ndindabahizi Appeal Judgement, para. 115; Gacumbitsi Appeal Judgement, para. 115; Rutaganda Appeal Judgement, para. 34.

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Notion(s) Filing Case
Appeal Judgement - 28.09.2011 MUNYAKAZI Yussuf
(ICTR-97-36A-A)

93. The Appeals Chamber has stated that the ordinary meaning of the term “accomplice” is “an association in guilt, a partner in crime”. The caution associated with accomplice testimony is most appropriate where a witness “is charged with the same criminal acts as the accused.” Like Munyakazi, Witness ELB was charged and convicted based on his participation in several attacks, including at Shangi parish. Therefore, the Appeals Chamber is satisfied that the Trial Chamber correctly described Witness ELB as an accomplice.

[1] Ntagerura et al. Appeal Judgement, para. 203, quoting Niyitegeka Appeal Judgement, para. 98.

[2] Ntagerura et al. Appeal Judgement, para. 234.

[3] Trial Judgement, para. 131. See also T. 17 September 2009 pp. 24, 25.

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Notion(s) Filing Case
Appeal Judgement - 28.09.2011 MUNYAKAZI Yussuf
(ICTR-97-36A-A)

71. […] The Appeals Chamber recalls that the Trial Chamber has the main responsibility to resolve any inconsistencies that may arise within or among witnesses’ testimonies.[1] It is within the discretion of the Trial Chamber to evaluate any such inconsistencies, to consider whether the evidence taken as a whole is reliable and credible, and to accept or reject the fundamental features of the evidence.[2] The Appeals Chamber further recalls that “corroboration may exist even when some details differ between testimonies, provided that no credible testimony describes the facts in question in a way which is not compatible with the description given in another credible testimony.”[3]

103. […] Furthermore, corroboration does not require witnesses’ accounts to be identical in all aspects since “[e]very witness presents what he has seen from his own point of view at the time of the events, or according to how he understood the events recounted by others.” Rather, the main question is whether two or more credible accounts are incompatible.

118. […] The Appeals Chamber recalls that, when faced with competing versions of events, it is the duty of the Trial Chamber that heard the witnesses to determine which evidence it considers more probative. Based on the foregoing, the Appeals Chamber finds that it was reasonable for the Trial Chamber to accept the Prosecution evidence over Witness Nahimana’s account.

154. The Appeals Chamber recalls that the Trial Chamber has the main responsibility to resolve any inconsistencies that may arise within or among witnesses’ testimonies. […]

110. Finally, the Appeals Chamber recalls that the Trial Chamber has the primary discretion to decide whether or not a site visit is necessary or relevant for the assessment of evidence. […]

[1] Renzaho Appeal Judgement, para. 355; Rukundo Appeal Judgement, para. 207; Simba Appeal Judgement, para. 103.

[2] Renzaho Appeal Judgement, para. 355; Rukundo Appeal Judgement, para. 207; Simba Appeal Judgement, para. 103.

[3] Nahimana et al. Appeal Judgement, para. 428. See also Rukundo Appeal Judgement, para. 201; Karera Appeal Judgement, para. 173.

[4] Nahimana et al. Appeal Judgement, para. 428.

[5] Nahimana et al. Appeal Judgement, para. 428.

[6] Muvunyi II Appeal Judgement, para. 57; Muhimana Appeal Judgement, para. 103; Gacumbitsi Appeal Judgement, para. 81; Rutaganda Appeal Judgement, para. 29.

[7] Renzaho Appeal Judgement, para. 269; Rukundo Appeal Judgement, para. 207; Simba Appeal Judgement, para. 103.

[8] Simba Appeal Judgement, para. 16.

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Notion(s) Filing Case
Appeal Judgement - 19.07.2010 HARADINAJ et al.
(IT-04-84-A)

129. The Appeals Chamber also recalls that the Trial Chamber exercises considerable discretion in addressing minor inconsistencies in the testimony of a witness. However, this discretion must be reconciled with the right of each accused to a reasoned opinion. In this regard, the Appeals Chamber has stated:

It is to be presumed that the Trial Chamber evaluated all of the evidence presented to it, as long as there is no indication that the Trial Chamber completely disregarded any particular piece of evidence. There may be an indication of disregard when evidence which is clearly relevant to the finding is not addressed by the Trial Chamber’s reasoning, but not every inconsistency which the Trial Chamber failed to discuss renders its opinion defective. Considering the fact that minor inconsistencies commonly occur in witness testimony without rendering it unreliable, it is within the discretion of the Trial Chamber to evaluate it and to consider whether the evidence as a whole is credible, without explaining its decision in every detail. If the Trial Chamber did not refer to the evidence given by a witness, even if it is in contradiction to the Trial Chamber’s finding, it is to be presumed that the Trial Chamber assessed and weighed the evidence, but found that the evidence did not prevent it from arriving at its actual findings.[1]

Thus, although a Trial Chamber is not required to provide every detail of its assessment of minor inconsistencies in the testimony of witnesses, neither can it completely disregard all inconsistencies. [ see also para. 252 of the Appeals Judgement]

[1] Kvočka et al. Appeal Judgement, para. 23 (internal citation omitted).

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Appeal Judgement II - 01.04.2011 MUVUNYI Tharcisse
(ICTR-2000-55A-A)

26. The Trial Chamber also noted the demeanour of the witnesses when confronted with the suggestion that Nteziryayo was not in fact the prefect in May 1994, which, in the Trial Chamber’s view, indicated that “they were confronted with an incorrect recollection rather than a lie.”[1] The assessment of the demeanour of witnesses in considering their credibility is one of the fundamental functions of a Trial Chamber to which the Appeals Chamber must accord considerable deference.[2] The Appeals Chamber has previously noted that it “is loathe to disturb such credibility assessments on review”.[3] The Appeals Chamber further recalls that it is not unreasonable for a trier of fact to accept some, but reject other parts of a witness’s testimony.[4] The Appeals Chamber, Judges Liu and Meron dissenting, is not convinced that it was unreasonable for the Trial Chamber, in the circumstances noted above, to have rejected the portion of the witnesses’ accounts relating to Nteziryayo’s position during the meeting as prefect. Consequently, Muvunyi has not shown that the Trial Chamber’s findings are wholly erroneous or that no reasonable trier of fact could have concluded that the meeting described by the Prosecution witnesses occurred in May 1994.[5]

[1] Trial Judgement, para. 57.

[2] See Nchamihigo Appeal Judgement, para. 47; Bikindi Appeal Judgement, para. 114; Simba Appeal Judgement, para. 9; Nahimana et al. Appeal Judgement, paras. 14, 194; Ndindabahizi Appeal Judgement, para. 34; Ntagerura et al. Appeal Judgement, paras. 12, 213; Semanza Appeal Judgement, para. 8; Ntakirutimana Appeal Judgement, paras. 12, 204, 244; Kamuhanda Appeal Judgement, para. 138; Kayishema and Ruzindana Appeal Judgement, para. 222. See also Edouard Karemera et al. v. The Prosecutor, Case No. ICTR-98-44-AR15bis.2, Reasons for Decision on Interlocutory Appeals Regarding the Continuation of Proceedings with a Substitute Judge and on Nzirorera’s Motion for Leave to Consider New Material, 22 October 2004, para. 60.

[3] Ntakirutimana Appeal Judgement, para. 244.

[4] Muvunyi I Appeal Judgement, para. 128.

[5] The Appeals Chamber finds no merit to Muvunyi’s contention that the allegation in the Indictment refers to a meeting involving Aloys Simba. The Indictment does not identify Simba as the Chairman of Civil Defence in Butare Prefecture. See Indictment, para. 3.24.

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Appeal Judgement II - 01.04.2011 MUVUNYI Tharcisse
(ICTR-2000-55A-A)

26. The Trial Chamber also noted the demeanour of the witnesses when confronted with the suggestion that Nteziryayo was not in fact the prefect in May 1994, which, in the Trial Chamber’s view, indicated that “they were confronted with an incorrect recollection rather than a lie.”[1] The assessment of the demeanour of witnesses in considering their credibility is one of the fundamental functions of a Trial Chamber to which the Appeals Chamber must accord considerable deference.[2] The Appeals Chamber has previously noted that it “is loathe to disturb such credibility assessments on review”.[3] The Appeals Chamber further recalls that it is not unreasonable for a trier of fact to accept some, but reject other parts of a witness’s testimony.[4] The Appeals Chamber, Judges Liu and Meron dissenting, is not convinced that it was unreasonable for the Trial Chamber, in the circumstances noted above, to have rejected the portion of the witnesses’ accounts relating to Nteziryayo’s position during the meeting as prefect. Consequently, Muvunyi has not shown that the Trial Chamber’s findings are wholly erroneous or that no reasonable trier of fact could have concluded that the meeting described by the Prosecution witnesses occurred in May 1994.[5]

[1] Trial Judgement, para. 57.

[2] See Nchamihigo Appeal Judgement, para. 47; Bikindi Appeal Judgement, para. 114; Simba Appeal Judgement, para. 9; Nahimana et al. Appeal Judgement, paras. 14, 194; Ndindabahizi Appeal Judgement, para. 34; Ntagerura et al. Appeal Judgement, paras. 12, 213; Semanza Appeal Judgement, para. 8; Ntakirutimana Appeal Judgement, paras. 12, 204, 244; Kamuhanda Appeal Judgement, para. 138; Kayishema and Ruzindana Appeal Judgement, para. 222. See also Edouard Karemera et al. v. The Prosecutor, Case No. ICTR-98-44-AR15bis.2, Reasons for Decision on Interlocutory Appeals Regarding the Continuation of Proceedings with a Substitute Judge and on Nzirorera’s Motion for Leave to Consider New Material, 22 October 2004, para. 60.

[3] Ntakirutimana Appeal Judgement, para. 244.

[4] Muvunyi I Appeal Judgement, para. 128.

[5] The Appeals Chamber finds no merit to Muvunyi’s contention that the allegation in the Indictment refers to a meeting involving Aloys Simba. The Indictment does not identify Simba as the Chairman of Civil Defence in Butare Prefecture. See Indictment, para. 3.24.

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Notion(s) Filing Case
Appeal Judgement II - 01.04.2011 MUVUNYI Tharcisse
(ICTR-2000-55A-A)

26. The Trial Chamber also noted the demeanour of the witnesses when confronted with the suggestion that Nteziryayo was not in fact the prefect in May 1994, which, in the Trial Chamber’s view, indicated that “they were confronted with an incorrect recollection rather than a lie.”[1] The assessment of the demeanour of witnesses in considering their credibility is one of the fundamental functions of a Trial Chamber to which the Appeals Chamber must accord considerable deference.[2] The Appeals Chamber has previously noted that it “is loathe to disturb such credibility assessments on review”.[3] The Appeals Chamber further recalls that it is not unreasonable for a trier of fact to accept some, but reject other parts of a witness’s testimony.[4] The Appeals Chamber, Judges Liu and Meron dissenting, is not convinced that it was unreasonable for the Trial Chamber, in the circumstances noted above, to have rejected the portion of the witnesses’ accounts relating to Nteziryayo’s position during the meeting as prefect. Consequently, Muvunyi has not shown that the Trial Chamber’s findings are wholly erroneous or that no reasonable trier of fact could have concluded that the meeting described by the Prosecution witnesses occurred in May 1994.[5]

[1] Trial Judgement, para. 57.

[2] See Nchamihigo Appeal Judgement, para. 47; Bikindi Appeal Judgement, para. 114; Simba Appeal Judgement, para. 9; Nahimana et al. Appeal Judgement, paras. 14, 194; Ndindabahizi Appeal Judgement, para. 34; Ntagerura et al. Appeal Judgement, paras. 12, 213; Semanza Appeal Judgement, para. 8; Ntakirutimana Appeal Judgement, paras. 12, 204, 244; Kamuhanda Appeal Judgement, para. 138; Kayishema and Ruzindana Appeal Judgement, para. 222. See also Edouard Karemera et al. v. The Prosecutor, Case No. ICTR-98-44-AR15bis.2, Reasons for Decision on Interlocutory Appeals Regarding the Continuation of Proceedings with a Substitute Judge and on Nzirorera’s Motion for Leave to Consider New Material, 22 October 2004, para. 60.

[3] Ntakirutimana Appeal Judgement, para. 244.

[4] Muvunyi I Appeal Judgement, para. 128.

[5] The Appeals Chamber finds no merit to Muvunyi’s contention that the allegation in the Indictment refers to a meeting involving Aloys Simba. The Indictment does not identify Simba as the Chairman of Civil Defence in Butare Prefecture. See Indictment, para. 3.24.

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Appeal Judgement - 26.05.2003 RUTAGANDA George
(ICTR-96-3-A)

28. The Appeals Chamber recalls that, as a general rule, a Trial Chamber is primarily responsible for assessing and weighing the evidence presented at trial, and that, in this regard, it is incumbent on the Trial Chamber to consider whether a witness is reliable and whether evidence presented is credible.[1] In this exercise, the Trial Chamber has the inherent discretion to decide what approach is most appropriate for the assessment of evidence in the circumstances of the case.[2]

29. Similarly, the issue as to whether it is necessary to rely on one or several witness testimonies to establish proof of a material fact depends on different factors that have to be assessed in the circumstances of each case.[3] It is possible for one Trial Chamber to prefer that a witness statement be corroborated, but neither the jurisprudence of the International Tribunal nor of the ICTY makes this an obligation.[4] Where testimonies are divergent, it is the duty of the Trial Chamber, which heard the witnesses, to decide which evidence it deems to be more probative,[5] and to choose which of the two divergent versions of the same event it may admit.

[1] Akayesu Appeal Judgement, para. 132 citing Aleksovski Appeal Judgement, para. 63, Tadić Appeal Judgement, para 64 and Furundžija Appeal Judgement, para. 37.

[2] Kayishema/Ruzindana Appeal Judgement, para. 119.

[3] Musema Appeal Judgement, para. 90; Kayishema/Ruzindana Appeal Judgement, para. 187; Akayesu Appeal Judgement, para. 132; Aleksovski Appeal Judgement, para. 63; Tadic Appeal Judgement, para. 65; Celebici Appeal Judgement, para. 506.

[4] Musema Appeal Judgement, para. 36 citing Kayishema/Ruzindana Appeal Judgement, paras. 154 and 229; Aleksovski Appeal Judgement, para. 62; Tadic Appeal Judgement, para. 65 and Celebici Appeal Judgement, paras. 492 and 506. See also Kunarac Appeal Judgement, para. 268.

[5] Kayishema/Ruzindana Appeal Judgement, para. 325.

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Notion(s) Filing Case
Appeal Judgement - 26.05.2003 RUTAGANDA George
(ICTR-96-3-A)

219. On this point, the Appeals Chamber refers to the opinion of the ICTY Appeals Chamber, which considers that in matters of evidence, there is no established rule that traumatic circumstances endured by a witness necessarily render his or her evidence unreliable.[1] In the instant case, it has not been demonstrated how the “trauma” would have rendered Witnesses AA and Q incapable of giving an accurate account of the events they experienced. Consequently, the Appeals Chamber considers that the Trial Chamber correctly held that the fact that a witness may forget or mix up small details is often as a result of trauma suffered and does not necessarily impugn his evidence in relation to the central facts of the crime.[2] Hence, the Appellant, by merely citing two paragraphs of the Judgement and raising general considerations, has in no way demonstrated the basis for his contention that the Trial Chamber in general discounted many contradictions in the evidence on grounds of trauma.

[1] Kunarac Appeal Judgement, para. 324. “[I]n principle, there could be cases in which the trauma experienced by a witness may make her unreliable as a witness and […] a Trial Chamber must be especially rigorous in assessing identification evidence. However, there is no recognised rule of evidence that traumatic circumstances necessarily render a witness’s evidence unreliable. It must be demonstrated in concreto why “the traumatic context” renders a given witness unreliable. It is the duty of the Trial Chamber to provide a reasoned opinion adequately balancing all the relevant factors. […]”[1] (Emphasis added).

[2] Čelebići Appeal Judgement, para. 497.

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Appeal Judgement - 26.05.2003 RUTAGANDA George
(ICTR-96-3-A)

45. [...] [T]he Appeals Chamber recalls that the Presiding Trial Judge is presumed to have been performing, on behalf of the Trial Chamber, his duty to exercise sufficient control over the process of examination and cross-examination of witnesses, and that in this respect, it is the duty of the Trial Chamber and of the Presiding Judge, in particular, to ensure that cross-examination is not impeded by useless and irrelevant questions.[1]

[1] Akayesu Appeal Judgement, para. 318.

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Appeal Judgement - 26.05.2003 RUTAGANDA George
(ICTR-96-3-A)

62. [...] There is no provision in the Rules that prohibits Judges from asking questions in order to contribute to discovering the truth or to try to corroborate or contradict the facts in issue. [...]

 

63. [...] As has already been recalled, the Rules allow Judges to ask questions, and Judges have a wide discretion to contribute to the discovery of the truth, including the power to confront one witness with the testimony of another. [...]

[...]

111. […] The Appeals Chamber recalls that it is up to the Judges to ask any questions that they deem necessary for the clarification of testimonies and for the discovery of the truth. […]

[…]

118. […] the Appeals Chamber considers that the questions fall entirely within the ambit of the Judge’s duty to contribute to the discovery of the truth, which implies, especially at the cross-examination phase, the possibility of testing witness credibility. […]

[1] Defence Appeal Brief, para.523. See also Prosecution’s Response Brief, para. 10.38.

[2] T, 7 October 1997, pp. 34 to 36.

[3] Defence Appeal Brief, paras. 531 and 532. See also Prosecution’s Response Brief, para. 10.47.

[4] T, 6 October 1997, pp. 115 to 117.

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Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

194. The Appeals Chamber recalls that statements made by witnesses in court are presumed to be credible at the time they are made; the fact that the statements are taken under oath and that witnesses can be cross-examined constitute at that stage satisfactory indicia of reliability.[1] However, the Trial Chamber has full discretionary power in assessing the appropriate weight and credibility to be accorded to the testimony of a witness.[2] This assessment is based on a number of factors, including the witness’s demeanour in court, his role in the events in question, the plausibility and clarity of his testimony, whether there are contradictions or inconsistencies in his successive statements or between his testimony and other evidence, any prior examples of false testimony, any motivation to lie, and the witness’s responses during cross-examination. Appellant Barayagwiza is therefore wrong in invoking the principle of the presumption of innocence in order to contend that it was for the Prosecutor to establish that its witnesses were credible.[3]

949. The Appeals Chamber recalls that the jurisprudence of the Tribunal does not require the corroboration of the testimony of a sole witness,[4] and that the trial Judges are in the best position to assess the credibility of a witness and the reliability of the evidence adduced.[5]

[1] Ntagerura et al. Appeal Judgement, para. 388.

[2] Idem [Ntagerura et al. Appeal Judgement, para. 388].

[3] Barayagwiza Appellant’s Brief, para. 324.

[4] See the case-law cited supra, footnote 1312.

[5] Rutaganda Appeal Judgement, para. 188; Akayesu Appeal Judgement, para. 132; Furundžija Appeal Judgement, para. 37; Aleksovski Appeal Judgement, para. 63; Tadić Appeal Judgement, para. 64.

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Contempt Appeal Judgement - 03.07.2009 JOKIĆ Miodrag
(IT-05-88-R77.1-A)

35. In its discussion in paragraph 28 of the Trial Judgement, the Trial Chamber noted that the Rules do not provide a standard to be relied upon for determining a witness’ “competency to testify” and therefore considered the “plain meaning” of the phrase,[1] finding that it “requires that the proposed witness has a basic capacity to understand the questions put to him and give rational and truthful answers to those questions.”[2] This approach is broadly similar to that set out in Rule 90(B) of the Rules, dealing with the testimony of children, which focuses on the ability of a child witness “to report the facts of which the child has knowledge and understands the duty to tell the truth”. Further, although the Trial Chamber did not refer to any jurisprudence on the issue, the Appeals Chamber notes that there is no established standard for a witness’ fitness to testify in the jurisprudence of the Tribunal upon which the Trial Chamber could have relied beyond the Strugar case.[3] In that case, the Trial Chamber rejected, in the context of a determination of the accused’s fitness to stand trial, the Defence’s submission that the accused was not fit to testify because he was “unable to ‘fully’ testify”.[4] In that case, the Trial Chamber’s analysis of the accused’s capacity to testify centred on his ability to answer questions put to him.[5] The Appeals Chamber considers that the Trial Chamber’s analysis in paragraph 28 of the Trial Judgement was in line with the Strugar decision. Additionally, the conclusion of the Trial Chamber in the instant case, that the question comes down to whether the witness’ evidence will have probative value, is clearly in line with Rule 89(C) of the Rules which sets the standard for the admission of evidence before the Tribunal.

[1] Trial Judgement, para. 28.

[2] Ibid.

[3] Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Decision re Defence Motion to Terminate Proceedings, 26 May 2004.

[4] Ibid., para. 49.

[5] Ibid. Similarly, in Prosecutor v. Vladimir Kovačević, Case No. IT-01-42/2-I, Public Version of the Decision on Accused’s Fitness to Enter a Plea and Stand Trial, 12 April 2006, in the context of determining the Accused’s fitness to stand trial the Trial Chamber considered the Accused’s ability to testify and considered the following questions: “Is the Accused able to understand that he may choose to give testimony himself, i.e. to answer questions put to him by Defence Counsel on, i.e., his involvement or participation in the crimes for which he is charged, and that questions may also be put to him by the Prosecution and by the Judges, and that his answers can be taken into account when the Judges determine whether he is guilty; but also that he is entitled not to testify, in which case the Judges will decide the case without the information he might have given?” (para. 5).

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Appeal Judgement - 18.03.2010 NCHAMIHIGO Siméon
(ICTR-01-63-A)

42. The Appeals Chamber has held that nothing in the Statute or the Rules prohibits a Trial Chamber from relying upon the testimony of accomplice witnesses.[1] However, such evidence is to be treated with caution, “the main question being to assess whether the witness concerned might have motives or incentives to implicate the accused”.[2] Nevertheless, a Trial Chamber retains discretion to rely on uncorroborated, but otherwise credible, witness testimony[3] because it is best placed to evaluate the probative value of evidence.[4] Acceptance of and reliance upon uncorroborated evidence does not in itself constitute an error of law.[5] The Appeals Chamber notes that the Appeals Chamber of the Special Court for Sierra Leone has extended this proposition to accomplice witnesses, stating that a Trial Chamber “may convict on the basis of the evidence of a single witness, even an accomplice, provided such evidence is viewed with caution.”[6]

43. Similarly, in a number of domestic jurisdictions, judges and jurors can rely on the uncorroborated evidence of an accomplice witness provided they assess such evidence with caution. For example, the Indian judiciary has recognized that corroboration is not lawfully required but that it is wise to assess accomplice evidence with caution.[7] Moreover, corroboration requirements for accomplices have been abolished in Canada,[8] the United Kingdom,[9] and Australia.[10] The Appeals Chamber further recalls the discussion in Tadić of corroboration requirements in civil law countries, which concluded that “there is no ground for concluding that this requirement of corroboration is any part of customary international law and should be required by [the ICTY]].”[11]

44. The Nahimana et al. and Muvunyi Appeal Judgements upon which the Appellant relies do not represent a different proposition. When the Appeals Chamber stated in Muvunyi that it was necessary for the Trial Chamber to consider whether the testimony of a particular accomplice witness was corroborated, it did so because the Trial Chamber had already found that the witness had a general motive to enhance Muvunyi’s role in the crimes and to diminish his own.[12] Contrary to the Appellant’s argument, this does not evidence a categorical rule requiring Trial Chambers to search for corroboration when evaluating the testimony of an accomplice witness. Rather, the Appeals Chamber simply found that corroboration was necessary in those circumstances because the accomplice witness had a motive to enhance the accused’s role in the crimes. 

45. In the passage from the Nahimana et al. Appeal Judgement upon which the Appellant relies, the Appeals Chamber considered whether the Trial Chamber erred when it relied on the testimony of an accomplice witness only to the extent that it was corroborated.[13] The Nahimana Trial Chamber had concluded that it could only rely on the witness’s evidence to the extent that it was corroborated because, in addition to being an accomplice, the witness gave testimony that was confusing and inconsistent.[14] The Nahimana Appeal Judgement found that there was no error in this approach.[15] This reflects the fact that Trial Chambers are endowed with the discretion to require corroboration, but does not mean that corroboration is required when evaluating the testimony of all accomplice witnesses.

46. In support of his proposition, the Appellant also points to a passage from the Krajišnik Appeal Judgement.[16] There, the ICTY Appeals Chamber stated that a Trial Chamber should briefly explain why it accepted the evidence of witnesses who may have had motives or incentives to implicate the accused to show its cautious assessment of such evidence.[17] This passage does not mean that corroboration is required. It simply stresses that Trial Chambers cannot merely state that they exercised caution when assessing the evidence of an accomplice witness, but must establish that they in fact did so.

48. In light of the above, the Appeals Chamber considers that the proposition that a Trial Chamber retains the discretion to rely on uncorroborated, but otherwise credible, witness testimony applies equally to the evidence of accomplice witnesses provided that the trier of fact applies the appropriate caution in assessing such evidence.

[1] Niyitegeka Appeal Judgement, para. 98.

[2] Nahimana et al. Appeal Judgement, para. 439, citing Ntagerura et al. Appeal Judgement, paras. 203-206. See also Niyitegeka Appeal Judgement, para. 98 (“However, considering that accomplice witnesses may have motives or incentives to implicate the accused person before the Tribunal, a Chamber, when weighing the probative value of such evidence, is bound to carefully consider the totality of the circumstances in which it was tendered.”). The Appeals Chamber notes that the Appeals Chamber of the Special Court for Sierra Leone similarly stated in Brima et al. that “in assessing the reliability of an accomplice, the main consideration for the Trial Chamber should be whether or not the accomplice has an ulterior motive to testify as he did.” Prosecutor v. Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, Case SCSL-2004-16-A, Appeal Judgement, 3 March 2008 (“Brima et al. Appeal Judgement”), para. 128. In some instances a situation may arise where Rule 95 of the Rules is applicable. See Karera Appeal Judgement, para. 234 and fn. 498, referring to Nahimana et al. Appeal Judgement, para. 545.

[3] Muvunyi Appeal Judgement, para. 128. See Karera Appeal Judgement, para. 46 (“a Trial Chamber has the discretion to decide, in the circumstances of each case, whether corroboration of evidence is necessary and to rely on uncorroborated, but otherwise credible, witness testimony.”).

[4] See Rutaganda Appeal Judgment, para. 29 (“It is possible for one Trial Chamber to prefer that a witness statement be corroborated, but neither the jurisprudence of the International Tribunal nor of the ICTY makes this an obligation.”); Musema Appeal Judgment, paras. 36-38; Kayishema and Ruzindana Appeal Judgement, paras. 154, 187, 320, 322; Čelebići Appeal Judgment, para. 506; Aleksovski Appeal Judgment, paras. 62, 63; Tadić Appeal Judgment, para. 65; Kupreškić et al. Appeal Judgement, para. 33.

[5] Niyitegeka Appeal Judgement, para. 92.

[6] Brima et al. Appeal Judgement, para. 129.

[7] See Dagdu & Others Etc. v. State of Maharashtra (1977) 3 S.C.R. 636, 643 (India) (explaining that section 133 of the Evidence Act permits a conviction to be based on uncorroborated accomplice testimony but given that such evidence may be “hazardous,” a judge should dispense with corroboration “only if the peculiar circumstances of a case make it safe to” do so); Rameshwar v. State of Rajasthan (1952) S.C.R. 377, 385 (India) (clarifying that in cases tried by a judge, the judge should indicate that he considered the rule of caution and “explain why he considered it safe to convict without corroboration in the particular case”).

[8] R. v. Vetrovec, [1982]] 1 S.C.R. 811, 830 (Canada) (holding “that there is no special category for accomplices” but cautioning that a jury warning may sometimes be appropriate).

[9] See Criminal Justice and Public Order Act 1994, s. 32 (UntitedKingdom) (abolishing any requirement for a corroboration warning).

[10] Evidence Act 1995 (Cth), s. 164(1). See, e.g., Conway v. The Queen (2002) 209 C.L.R. 203, 223-224 (Australia) (applying section 164(1) of the Evidence Act 1995, in the context of a case involving testimony from accomplice witnesses, and affirming that the corroboration requirement has been abolished in such circumstances).

[11] Tadić Trial Judgement, para. 539.

[12] Muvunyi Appeal Judgement, paras. 129-131.

[13] Nahimana et al. Appeal Judgement, para. 439.

[14] Nahimana et al. Trial Judgement, para. 824.

[15] Nahimana et al. Appeal Judgement, para. 439.

[16] Brief in Reply [Siméon Nchamihigo v. The Prosecutor, Case No. ICTR-2001-63-A, Appellant’s Brief in Reply, filed confidentially in French on 15 July 2009 (Mémoire en réplique de l’appelant), re-filed publically on 31 July 2009], paras. 3, 6.

[17] Krajišnik Appeal Judgement, para. 146.

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Appeal Judgement - 18.03.2010 NCHAMIHIGO Siméon
(ICTR-01-63-A)

47. The Appeals Chamber recalls that a Trial Chamber has full discretion to assess the appropriate weight and credibility to be accorded to the testimony of a witness.[1] In so doing, a Trial Chamber has to consider relevant factors on a case-by-case basis, including the witness’s demeanour in court; his role in the events in question; the plausibility and clarity of his testimony; whether there are contradictions or inconsistencies in his successive statements or between his testimony and other evidence; any prior examples of false testimony; any motivation to lie; and the witness’s responses during cross-examination.[2] Some factors are particularly relevant for the assessment of accomplice witnesses, including: the extent to which discrepancies in the testimony were explained;[3] whether the accomplice witness has made a plea agreement with the Prosecution; whether he has already been tried and, if applicable, sentenced for his own crimes or is still awaiting the completion of his trial;[4] and whether the witness may have any other reason for holding a grudge against the accused.[5] Corroboration is also one of many potential factors relevant to the Trial Chamber’s assessment of a witness’s credibility.[6] The application of these factors, and the positive or negative impact they may have on the witness’s credibility, varies according to the specific circumstances of each case.

201. The Appeals Chamber recalls that it is not a legal error per se to accept and rely on evidence that deviates from a prior statement or other evidence adduced at trial.[7] However, a Trial Chamber is bound to take into account any explanations offered in respect of inconsistencies when weighing the probative value of the evidence.[8] In this case, the Trial Chamber explicitly considered the Appellant’s contention at trial that Witness LAG “made some prior inconsistent statements.”[9] The Appellant has not articulated either how the Trial Chamber erred in evaluating the prior statements or how the particular inconsistencies raised here could potentially result in the Trial Judgement being reversed or revised.

[1] Nahimana et al. Appeal Judgement, para. 194.

[2] See Nahimana et al. Appeal Judgement, para. 194.

[3] See Simba Appeal Judgement, para. 129; Kordić and Čerkez Appeal Judgement, para. 266.

[4] See Blagojević and Jokić Trial Judgement, para. 24.

[5] See Kajelijeli Trial Judgement, para. 151.

[6] Simba Appeal Judgement, para. 24, quoting Ntakirutimana Appeal Judgement, para. 132.

[7] Muhimana Appeal Judgement, para. 135; Niyitegeka Appeal Judgement, para. 96.

[8] Muhimana Appeal Judgement, para. 135; Niyitegeka Appeal Judgement, para. 96, citing Kupreškić et al. Appeal Judgement, para. 31.

[9] Trial Judgement [The Prosecutor v. Siméon Nchamihigo, Case No. ICTR-2001-63-T,  Judgement and Sentence, 12 November 2008], para. 92. The Trial Chamber merely refers, as an example, to the issue of Witness LAG’s membership of the Liberal Party.  

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Appeal Judgement - 16.12.2013 NDAHIMANA Grégoire
(ICTR-01-68-A)

45. The Appeals Chamber also rejects Ndahimana’s contention that as a matter of law witnesses who require corroboration cannot corroborate one another.[1] In the Appeals Chamber’s view, a finding that a witness’s evidence is not sufficiently credible or reliable to be relied upon on its own, and therefore needs corroboration, does not amount to a finding that the witness cannot be relied upon at all, but merely denotes the adoption of a cautious approach by the trial chamber in its evidentiary assessment of the evidence. Absent any contrary finding, a trial chamber’s decision to ultimately rely upon the cumulative evidence of witnesses whose evidence required corroboration reflects the trial chamber’s determination that, taken as whole, the evidence was sufficiently credible and reliable. This factual determination is an exercise of the trial chamber’s discretionary power in assessing the credibility of witnesses and in determining the weight to be accorded to their evidence in which the Appeals Chamber will only interfere where no reasonable trier of fact could have reached the same finding or where the finding is wholly erroneous.[2]  

[1] The Appeals Chamber observes that, in support of this contention, Ndahimana cites a single case from India, which, according to him, stands for the proposition that “the evidence is not sufficient to constitute corroboration if it is such as itself requires corroboration.” See Ndahimana Appeal Brief [Appellant’s Brief, 12 December 2012], para. 51, fn. 234, citing Vaijanath v. State, 1970 Cri. L.J.91 (Vol. 76, paragraph 29). See also Ndahimana Reply Brief [Appellant’s Brief in Reply, 5 February 2013], para. 77, fn. 64.

[2] See supra [Ndahimana Appeal Judgement], para. 10.

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Decision on Impeachment - 01.02.2008 POPOVIĆ et al.
(IT-05-88-AR73.3)

31. The Appellants’ also misconstrue the Limaj Decision in arguing that it stands for the proposition that the contents of any previous inconsistent statement may only be received into evidence for assessing the credibility of the witness. To the contrary, the Limaj Decision affirms that such evidence may be admitted as hearsay evidence for the truth of its contents when it fulfills the criteria under the Tribunal’s Rules of being relevant and sufficiently reliable to be accepted as probative.[1] It also bears noting that this approach is consistent with the position at common law which has evolved alongside developments in the law on hearsay in recent years to allow for the admission of a prior inconsistent statement adduced in this manner for the truth of its contents.[2] While the position at common law is in no way determinative of the issue, it would seem unsound to adopt a stricter approach on this point.

[1] Limaj Decision, paras. 18, 21.

[2] In Canada, the traditional common law rule limiting the use of prior inconsistent statements to impeaching the credibility of the witness was overturned by the Supreme Court of Canada in the case of R. v. B. (K.G.), [1993] 1 S.C.R. 740. The Court found that the existing rule had been attenuated by developments in the law of hearsay. It held that prior inconsistent statements should be substantively admissible on a principled basis, the governing principles being the reliability of the evidence and its necessity. In the United States of America the traditional common law rule was abandoned by the Federal Rules of Evidence, 28 U.S.C. app., Rule 801(d): “A Statement is not hearsay if … (1) Prior statement by witness - The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition”.  In Australia the Evidence Act 1995 C.C.A. provides at section 60: “The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation. With reference to section 60 see Adam v. The Queen 207 CLR 96 at 37: “by s. 60 of the Act, the prior statements would be admitted as evidence of the truth of their contents. But that difference brought about by s. 60 was one of the significant alterations in the rules of evidence that the Act was intended to effect. No longer were tribunals of fact to be asked to treat evidence of prior inconsistent statements as evidence that showed no more than that the witness may not be reliable. The prior inconsistent statements were to be taken as evidence of their truth.” In the United Kingdom, see the Criminal Justice Act 2003 c. 44 Pt 11 c 2, s 119: “(1) If in criminal proceedings a person gives oral evidence and (a) he admits making a previous inconsistent statement, or (b) a previous inconsistent statement by him is proved by virtue of section 3, 4 or 5 of the Criminal Procedure Act 1865 (c.18), the statement is admissible as evidence of any matter stated of which oral evidence by him would be admissible.” See e.g. R v. Joyce, [2005] EWCA Crim 1785; R v. K N, [2006] EWCA Crim 3309.

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ICTR Rule Rule 89(C) ICTY Rule Rule 89(C)
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Decision on Impeachment - 01.02.2008 POPOVIĆ et al.
(IT-05-88-AR73.3)

24. While the Tribunal is in no way bound by the rules of the common law[1] and the Rules do not provide clear guidance on the question of impeaching a party’s own witness, Rules 85 and 90 are nonetheless largely reflective of the common law system. It is the parties who call and question “their” witnesses in turn and who are then cross-examined by the opposing side.[2] Accordingly, recognizing that the procedure for the hearing of witnesses at the Tribunal is rooted in the adversarial process, it is important to be cautious in removing safeguards that belong to that process for reasons of fairness to the parties and for the purpose of ascertaining the truth; in this case, leaving the determination of adversity, and the green light to cross-examine, to the calling party rather than to the Trial Chamber.[3] 

26. The Appeals Chamber considers that notwithstanding the exact form the impeachment procedure takes, the Trial Chamber must be the one to determine whether to allow the calling party to cross-examine its witness. It must also be the one to limit the scope of the questioning, if and to the extent it considers appropriate, within its discretion. Despite the Prosecution’s assertion that the Trial Chamber has not abandoned or undermined its authority to control the nature and extent of a witness’ examination under Rule 90(F), it is difficult to interpret the Impugned Decision otherwise. By stating that “a party need not seek permission to challenge the credibility of its own witness nor is the process of having a witness declared “hostile” necessary before taking such a step”, the Trial Chamber leaves no room for objections to impeachment.[4] Furthermore, objections to the scope of the challenge also appear to be precluded by the Trial Chamber’s assertion that it “would not place any limitations on the way in which such a challenge may be conducted.”[5] This is the prejudice occasioned by the discernible error.

28. The Trial Chamber’s practice to date, as well as that of other Trial Chambers,[6] demonstrates a general if not altogether consistent approach that puts the decision to allow a party to put a prior statement to its own witness and cross-examine that witness in the hands of the Trial Chamber. This may or may not be done on the basis of a prior determination of hostility. In this light the Appeals Chamber considers that the Trial Chamber’s decision to put the determination to impeach in the hands of the calling party constitutes a discernible error. It further considers that the Trial Chamber committed a discernible error in deciding to leave the scope of the challenge to the discretion of the impeaching party. It may be that the Trial Chamber will decide to allow a calling party to put a prior inconsistent statement to its witness in order to clarify a particular contradiction without declaring the witness hostile. The interests of justice dictate a certain measure of flexibility. However, this again will be a matter for the Trial Chamber to determine in the circumstances before it.

[1] Rule 89(A) of the Rules.

[2] See e.g. Prosecutor v. Fatmir Limaj et al., Case No. IT-03-66-T, Decision on the Prosecution’s Motions to Admit Prior Statements as Substantive Evidence, 25 April 2005 (“Limaj Decision”), para. 8.

[3] The determination of adversity lies with the court at common law. Canada, Australia and the United Kingdom all have nearly identical statutory provisions to this effect. Canada: Canada Evidence Act, R.S.C. 1985, C-5, s. 9: "A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but if the witness, in the opinion of the court, proves adverse, the party may contradict him by other evidence, or, by leave of the court, may prove that the witness made at other times a statement inconsistent with his present testimony, but before the last mentioned proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, shall be mentioned to the witness, and he shall be asked whether or not he did make the statement”; Australia: Evidence Act 1929 (S.A.), s. 27, see also, R v. Hutchison (1990) 53 SASR 587 at 592: "The crucial consideration is that the party calling the witness is unable, by reason of the witness's unwillingness to tell the truth or the whole truth, to elicit the true facts by non-leading questions"; United Kingdom: Criminal Procedure Act 1865 c18, s 3, see also, R v. Jobe, [2004] EWCA Crim 3155. See also United States of America: Federal Rules of Evidence, 28 U.S.C. app., Rules 607: “The credibility of a witness may be attacked by any party, including the party calling the witness" and Rule 611(c): “Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’ testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions." See also, Ellis v. Chicago, 667 F2d 606 at 613 (7th Cir, 1981) (internal citations omitted): “In essence, Rule 611(c) codifies the traditional more of dealing with leading questions. It acknowledges that they are generally undesirable on direct examination, that they are usually permissible on cross-examination, and that there are exceptions to both of these propositions. Although not explicitly stated, the rule is consistent with what has long been the law – that in the use of leading question much must be left to the sound discretion of the trial judge who sees the witness and can, therefore, determine in the interests of truth and justice whether the circumstances justify leading questions to be propounded to a witness by the party producing them.”

[4] [Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-T, T. 15457-15458, Decision on Certification and Clarification of the Trial Chamber’s Oral Decision on Impeachment of a Party’s Own Witness, 21 November 2007], para. 14.

[5] Id.

[6] See e.g. Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, T. 807, 24 January 2002; Prosecutor v. Fatmir Limaj et al., Case No. IT-03-66-T, T. 2735-2742 and T. 4002-4010; Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-T, T. 8558-8559, 23 November 2004. See also, [Prosecutor v. Sefer Halilović, Case No. IT-01-48-T, Decision on Admission into Evidence of Prior Statement of a Witness, 5 July 2005], p. 3 (“the party calling the witness may challenge the witness’ credibility on portions of his or her testimony, without necessarily [seeking leave from the Trial Chamber], by confronting the witness with specific passages of his or her prior statement, so that explanations can be given for the alleged discrepancies and these explanations can be tested by cross-examination”); Prosecutor v. Slobodan Milošević, Case No. IT-02-54-T, T. 16732-16733. 

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ICTR Rule Rule 90(F) ICTY Rule Rule 90(F)
Notion(s) Filing Case
Appeal Judgement - 09.07.2004 NIYITEGEKA Eliézer
(ICTR-96-14-A)

96. It is not a legal error per se to accept and rely on evidence that varies from prior statements or other evidence. However, a Trial Chamber is bound to take into account inconsistencies and any explanations offered in respect of them when weighing the probative value of the evidence.[1] […]

[1] See Kupreškić et al. Appeal Judgement, para. 31. 

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Appeal Judgement - 09.07.2004 NIYITEGEKA Eliézer
(ICTR-96-14-A)

98. The ordinary meaning of the term “accomplice” is “an associate in guilt, a partner in crime.”[1] Nothing in the Statute or the Rules of the Tribunal prohibits a Trial Chamber from relying upon testimony of those who were partners in crime of persons being tried before it. As stated above, a Chamber may admit any relevant evidence which it deems to have probative value.[2] Accomplice testimony is not per se unreliable, especially where an accomplice may be thoroughly cross-examined.[3] However, considering that accomplice witnesses may have motives or incentives to implicate the accused person before the Tribunal, a Chamber, when weighing the probative value of such evidence, is bound to carefully consider the totality of the circumstances in which it was tendered.[4] In the view of the Appeals Chamber, reliance upon evidence of accomplice witnesses per se does not constitute a legal error.

[1] Oxford English Dictionary (2nd ed.).

[2] See Rule 89(C) of the Rules.

[3] See Media Case[Nahimana et al.]., Case No. ICTR-99-52-I, Decision on the Defence Motion Opposing the Hearing of the Ruggiu Testimony against Jean Bosco Barayagwiza, 31 January 2002, pp. 2-3.

[4] See Kordić and Čerkez Trial Judgement, para. 629. See also Media Case [Nahimana et al.]. Trial Judgement, para. 824.

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Decision on Witness List - 21.08.2007 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-AR73)

21. As noted above, Trial Chambers exercise discretion in relation to the conduct of proceedings before them.[1] The Appeals Chamber notes that in the Orić case,[2] the ICTY Appeals Chamber held that:

[a]lthough Rule 73ter gives the Trial Chamber the authority to limit the length of time and the number of witnesses allocated to the defence case, such restrictions are always subject to the general requirement that the rights of the accused pursuant to Article 21 of the Statute of the International Tribunal be respected. Thus, in addition to the question whether, relative to the time allocated to the Prosecution, the time given to the Accused is reasonably proportional, a Trial Chamber must also consider whether the amount of time is objectively adequate to permit the Accused to set forth his case in a manner consistent with his rights. [3]

Consequently, the Appeals Chamber must determine whether in ordering the Appellant to reduce the number of his witnesses, the Trial Chamber took into consideration the complexity of the Appellant’s case and determined that the maximum number of witnesses allotted to him was sufficient to allow the Appellant a fair opportunity to present his defence.

24. […] As already stated, the Appeals Chamber is satisfied that it was well within the discretion of the Trial Chamber to reduce the number of witnesses to be called by the Appellant by reference to the Pre-Defence Brief and “will-say” statements. The Appeals Chamber is further satisfied that in basing its decision on a consideration of the evidence to be adduced by the proposed witnesses, the Trial Chamber properly considered whether reducing the number of the Appellant’s witnesses to a maximum of thirty would still allow the Appellant the opportunity to present an adequate defence. Accordingly, the Appeals Chamber finds no error on the part of the Trial Chamber.

[1] See para. 10 supra.

[2] Prosecutor v. Naser Orić, Case No. IT-03-68-AR73.2, Interlocutory Decision on Length of Defence Case, 20 July 2005, (“Orić Decision”).

[3] Orić Decision, para. 8.

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Decision on Witness List - 21.08.2007 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-AR73)

26. The Appeals Chamber recalls that in the Karemera et al. case, it endorsed the following reasoning of the ICTY Appeals Chamber in the Orić case:

The Appeals Chamber has long recognised that “the principle of equality of arms between the prosecutor and accused in a criminal trial goes to the heart of the fair trial guarantee.” At a minimum, “equality of arms obliges a judicial body to ensure that neither party is put at a disadvantage when presenting its case,” certainly in terms of procedural equity. This is not to say, however, that an [a]ccused is necessarily entitled to precisely the same amount of time or the same number of witnesses as the Prosecution. The Prosecution has the burden of telling an entire story, of putting together a coherent narrative and proving every necessary element of the crimes charged beyond a reasonable doubt. Defence strategy, by contrast, often focuses on poking specifically targeted holes in the Prosecution’s case, an endeavour which may require less time and fewer witnesses. This is sufficient reason to explain why a principle of basic proportionality, rather than a strict principle of mathematical equality, generally governs the relationship between the time and witnesses allocated to the two sides.[3]

The Appeals Chamber considered that all parties were not entitled to call precisely equal numbers of witnesses and the Trial Chamber has the discretion to limit the number of witnesses a party may call. This discretion may be exercised pursuant to Rules 73bis and 73ter of the Rules. Where the Trial Chamber exercises this discretion, it must be subject to the full respect of the rights of the party concerned. In cases where an exercise of this discretion leads to a situation where one party has more witnesses than the other, this does not necessarily mean that the principle of equality of arms is violated.

[1] Prosecutor v. Édouard Karemera et al., Case No.ICTR-98-44-AR 15bis 3, Decision on Appeal Pursuant to Rule 15 bis (D), 20 April 2007, para. 27.

[2] Orić Decision.

[3] Orić Decision, para. 7 (internal footnotes omitted).

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Appeal Judgement - 29.09.2014 NIZEYIMANA Ildéphonse
(ICTR-00-55C-A)

177. […] A trial chamber’s assessment of the witness’s demeanour may be implicit in the Trial Chamber’s assessment of the witness’s credibility.[1]

[1] Cf. Nahimana et al. Appeal Judgement, para. 195. The Appeals Chamber notes that the Trial Chamber recalled, in several instances, its central role in assessing witnesses’ demeanour and credibility. See, e.g., Trial Judgement, paras. 731, 1287. It also noted that it is not always possible to capture its reasons for its findings on a witness’s demeanour on paper. See Trial Judgement, para. 1288.

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Nobilo Contempt Appeal Judgement - 30.05.2001 ALEKSOVSKI Zlatko
(IT-95-14/1-AR77)

47. […] Although there were many inconsistencies within the various statements made by Mr Nobilo concerning other issues which could have discredited him as a witness in relation to these issues, a mere disbelief of a witness’s denial of a particular fact does not by itself logically permit a tribunal of fact to accept beyond reasonable doubt the truth of fact which he denied. […]

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Appeal Judgement - 08.05.2012 KANYARUKIGA Gaspard
(ICTR-02-78-A)

42. The Appeals Chamber recalls that under Rule 90(F) of the Rules, the trial chamber “shall exercise control over the mode and order of interrogating witnesses and presenting evidence so as to: (i) [m]ake the interrogation and presentation effective for the ascertainment of the truth; and (ii) [a]void needless consumption of time.” Trial chambers therefore enjoy discretion in setting the parameters of cross-examination.[1] When addressing a submission concerning the modalities of cross-examination, the Appeals Chamber must ascertain whether the Trial Chamber properly exercised its discretion and, if not, whether the accused’s defence was substantially affected.[2]

[1] Rukundo Appeal Judgement, para. 133; Nahimana et al. Appeal Judgement, para. 182. See also Prlić et al. Decision of 4 July 2006 [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.2, Decision on Joint Defence Interlocutory Appeal Against the Trial Chamber’s Oral Decision of 8 May 2006 Relating to Cross-Examination by Defence and on Association of Defence Counsel’s Request for Leave to File an Amicus Curiae Brief, 4 July 2006], p. 3.

[2] Nahimana et al. Appeal Judgement, para. 182, referring to Rutaganda Appeal Judgement, paras. 99, 102.

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Appeal Judgement - 08.05.2012 KANYARUKIGA Gaspard
(ICTR-02-78-A)

187. […] It is well established that trial chambers have the discretion to accept some but reject other parts of a witness’s testimony.[1] The Appeals Chamber therefore dismisses Kanyarukiga’s assertion that the Trial Chamber was precluded from relying on Witness CDL with respect to the 16 April 1994 meeting because it rejected other parts of his evidence. The Trial Chamber’s rejection of portions of his testimony rather demonstrates that it was fully aware of credibility concerns relating to this witness and that it adopted a cautious approach to his evidence.

[1] Bagosora and Nsengiyumva Appeal Judgement, para. 243; Setako Appeal Judgement, paras. 31, 48; Haradinaj et al. Appeal Judgement, para. 201.

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Appeal Judgement - 08.05.2012 KANYARUKIGA Gaspard
(ICTR-02-78-A)

238. The Appeals Chamber recalls that collusion has been defined as an agreement, usually secret, between two or more persons for a fraudulent, unlawful, or deceitful purpose.[1] If an agreement between witnesses for the purpose of untruthfully incriminating an accused were indeed established, their evidence would have to be excluded pursuant to Rule 95 of the Rules.[2] However, a mere risk of collusion is insufficient to exclude evidence under Rule 95 of the Rules.

[1] Setako Appeal Judgement, para. 137; Renzaho Appeal Judgement, para. 275, referring to Karera Appeal Judgement, para. 234.

[2] Setako Appeal Judgement, para. 137; Renzaho Appeal Judgement, para. 275, referring to Karera Appeal Judgement, para. 234. Rule 95 of the Rules states: “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”.

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ICTR Rule Rule 95 ICTY Rule Rule 95
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Appeal Judgement - 23.01.2014 ŠAINOVIĆ et al.
(IT-05-87-A)

1100.  […] the jurisprudence of the Tribunal which draws no distinction, for the purposes of evaluation of evidence, between witnesses called by the parties and witnesses called by a chamber.[1]

[1] See, e.g. Krajišnik Appeal Judgement, paras 37, 401, Annex A: para. 64, read together with Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-A, Scheduling Order for Evidentiary Hearing, 21 October 2008, p. 2; Hadžihasanović and Kubura Trial Judgement, paras 270, 284-285.

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Contempt Appeal Judgement - 15.03.2010 NSHOGOZA Léonidas
(ICTR-07-91-A)

65. Furthermore, the fact that the trial had concluded or that the protected witnesses may have approached Nshogoza did not in any way terminate their protected status. Rule 75(F) of the Rules states that protective measures once ordered continue to have effect in any proceeding before the Tribunal until rescinded, varied, or augmented.[1] In addition, the Kamuhanda Witness Protection Order clearly states that “the [protected] witness does not have the right, without authorization from the Chamber, to disclose his or her identity freely.”[2] This measure was added by the Trial Chamber proprio motu and was not challenged by the Kamuhanda Defence.

66. Although in some circumstances such a measure might be considered onerous, the Appeals Chamber is unable to determine that it was unreasonable or unjustified as a means of ensuring that any waiver is fully informed and voluntary given the information submitted by the Prosecution to the Trial Chamber at the time and the prevailing security climate. Furthermore, Nshogoza has failed to demonstrate why, in the particular circumstances of this case, it would have been impractical or particularly onerous to seek a variation of the Kamuhanda Witness Protection Order before proceeding with further contact with the protected witnesses. Indeed, at the relevant time of the contact, this case remained before either the Trial Chamber or the Appeals Chamber and thus an urgent, and even ex parte, application could have been made.[3]

67. The Appeals Chamber recognizes that such measures might stifle effective Defence investigations where the Prosecution qualifies an excessive number of individuals as potential Prosecution witnesses, in particular without even ascertaining their willingness to appear. However, the Appeals Chamber is not satisfied that this was the case here. Witness A7/GEX was clearly identified to the Kamuhanda Defence as a potential witness willing to appear for the Prosecution on 26 March 2001 shortly before the trial.[4] Nshogoza’s contention that the witness protection measures for Witness A7/GEX should have lapsed at the conclusion of the trial fails to appreciate the Tribunal’s interest in protecting individuals who have agreed to cooperate and provide statements on a confidential basis. Potential witnesses who did not eventually testify may face similar risks as those who did, for instance by virtue of their cooperation with either party. Those who decided not to testify out of fear might also require continued anonymity, depending on the circumstances. In any case, even if Nshogoza were correct that the prohibitions on contact with this particular witness were no longer applicable, it cannot reasonably be argued that he had the right to disclose information, which had been consistently treated as confidential, to third parties without official sanction from a Chamber.

[1] See also Jović Appeal Judgement, para. 30 (“[A]n order remains in force until a Chamber decides otherwise.”).

[2] Kamuhanda Witness Protection Order, para. 12. See also Kamuhanda Witness Protection Order, p. 6 (“MODIFIES the measure sought in point 3(j) and recalls that it is the Chamber’s decision solely and not the decision of the witness to determine how long a pseudonym is to be used in reference to Prosecution witnesses in Tribunal proceedings, communications and discussions between the Parties to the trial, and with the public.”).

[3] Nshogoza brought Witnesses GAA and A7/GEX to the notary along with Augustin Nyagatare in March 2004. See Trial Judgement, para. 74. At the time, the Kamuhanda case was pending on appeal. The Trial Judgement does not specify when the earlier meetings occurred. However, the Trial Chamber in the Kamuhanda case was actively seized of this case until it delivered its Judgement on 22 January 2004. See Kamuhanda Appeal Judgement, paras. 1, 440.

[4] Trial Judgement, para. 161. A review of the specific disclosure in the Kamuhanda case reflects that Witness A7/GEX was named among eight other witnesses in a confidential disclosure alluding to the Kamuhanda Witness Protection Order. The cover memo clearly indicates that the unredacted statements are “highly confidential” and the cover page of Witness A7/GEX’s statement is also marked in large bold type with the word “confidential”. See The Prosecutor v. Jean de Dieu Kamuhanda, Case No. ICTR-99-54A-I, Interoffice Memorandum, Subject: Disclosure of unredacted witness statements in the case Prosecutor v. Jean de Dieu Kamuhanda, Case No. ICTR-54-I [sic], dated 26 March 2001, paras. 1, 3, 5, p. 514.

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ICTR Rule Rule 75 ICTY Rule Rule 75
Notion(s) Filing Case
Decision on Subpoenaing Tolimir - 13.11.2013 KARADŽIĆ Radovan
(IT-95-5/18-AR73.11)

35.     The critical issue is whether Rule 90(E) of the Rules adequately protects an accused or appellant from the direct and indirect use against him of any compelled self-incriminating information, arising as a result of deliberate or inadvertent self-incrimination. In this regard, the Appeals Chamber notes Tolimir’s contention that Rule 90(E) of the Rules “is not a complete protection from self-incrimination”,[1] and that compelling him to testify pursuant to Rule 90(E) of the Rules would constitute a violation of his right against self-incrimination under Article 21(4)(g) of the Statute.[2]

[…]

43.     The immunity from prosecution guaranteed under Rule 90(E) of the Rules clearly prohibits the subsequent direct use of any self-incriminating statements compelled under the provision against the witness in criminal proceedings other than those concerned with false testimony. Thus, where an accused or appellant is compelled to make self-incriminating statements under Rule 90(E) of the Rules, the Prosecution is prohibited from directly relying on such statements in the accused’s or appellant’s own case. Furthermore, in view of the fact that the underlying purpose of the immunity under Rule 90(E) of the Rules is to protect a witness from the subsequent use of such statements against him, and considering that the laws of various national and international jurisdictions reflect that incriminating statements may be compelled from a witness only where adequate safeguards exist against the subsequent use of such statements against the witness, the Appeals Chamber finds that the immunity under Rules 90(E) of the Rules must be interpreted also as a prohibition against the derivative or indirect use of the compelled statements in any subsequent prosecution of the witness other than for false testimony. Testimony compelled under Rule 90(E) of the Rules therefore cannot be used by the Prosecution as a basis for subsequent investigations from which other incriminating evidence may be derived and then used against the accused or appellant.

44.     Furthermore, regarding the issue of inadvertent self-incrimination, the Appeals Chamber emphasizes that in the Impugned Decision the Trial Chamber expressed that it “will be cognisant of the fact that Tolimir is currently involved in appeals proceedings before the Appeals Chamber and will ensure his rights are safeguarded.”[3] Moreover, in the interests of justice in this particular case, particularly in view of the fact that Tolimir is a self-represented appellant, any self-incriminating testimony inadvertently provided during Tolimir’s testimony in the Karadžić case shall not be used as evidence during his appeal or any subsequent proceedings against him, except for false testimony.

45.     Accordingly, […] considering that national and international jurisdictions have recognised that the right against self-incrimination is adequately protected if adequate immunity from prosecution for compelled self-incriminating statements is provided and taking into account the nature of the protection provided by Rule 90(E) of the Rules, the Appeals Chamber finds that the compulsion of an accused’s or appellant’s testimony under Rule 90(E) of the Rules in another case before the Tribunal is not inconsistent with the right against self-incrimination under Article 21(4)(g) of the Statute. Any self-incriminating information potentially emerging during Tolimir’s testimony in the Karadžić case, therefore, could not be used directly or indirectly against Tolimir in his own case. Thus the Prosecution would be prohibited from attempting, pursuant to Rule 115 of the Rules, to tender into evidence in the Tolimir case any self-incriminating information derived from Tolimir’s testimony in the Karadžić case, or any evidence derived therefrom. […]

[1] Appeal [Appeal against the Decision on the Accused’s Motion to Subpoena Zdravko Tolimir”, 11 June 2013], para. 19. See also Appeal, paras 15-20, 25-29; Reply to the Prosecution Submissions on the Appeal [Reply to Prosecution’s Submissions on Tolimir’s Appeal, 12 August 2013], para. 6.

[2] Appeal, paras 17, 30-31. See also Reply to the Prosecution Submissions on the Appeal, para. 2.

[3] Impugned Decision [Decision on Accused’s Motion to Subpoena Zdravko Tolimir”, 9 May 2013], para. 22.

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ICTR Statute Article 20(4)(g) ICTY Statute Article 21(4)(g) ICTR Rule Rule 90(E) ICTY Rule Rule 90(E)
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Appeal Judgement - 07.07.2006 NTAGERURA et al. (Cyangugu)
(ICTR-99-46-A)

It is in the discretion of the Trial Chamber to apply Rule 90(E) to compel a witness to answer a question which may incriminate the witness. The Trial Chamber may in particular decline to use its power under Rule 90(E) if the question is not related to the facts of the case and only relevant to the overall credibility of the witness (para. 254):

254.    In the view of the Appeals Chamber, the question about the transport of Interahamwe in northern Rwanda had very little relevance to the facts of the present case, or to the subject-matter of Augustin Ndindiliyimana’s testimony. Counsel for the Prosecution argued that the question was necessary to test the witness’ credibility. Under Rule 90(G)(i) of the Rules, questions about matters affecting the credibility of a witness may be asked during cross-examination. However, the possibility to ask questions to test the credibility of a witness is not unlimited.The Appeals Chamber has already observed that Augustin Ndindiliyimana was not an accomplice in the ordinary meaning of the word, but is only charged with similar offences as Bagambiki and Imanishimwe. The question the Prosecution wanted to put to the witness concerned a very specific matter, which was only in the most general way related to the criminal charges against the Accused. Taking into consideration the very limited scope of Augustin Ndindiliyimana’s testimony, the Appeals Chamber finds that the Prosecution has not demonstrated that this particular question was relevant to determining the reliability of Augustin Ndindiliyimana’s testimony in the present case. The Appeals Chamber does not find that the Trial Chamber erred in law when it declined to compel the witness under Rule 90(E) of the Rules to answer the question.

[1] See supra, para. 237.

[2] T.18 February 2003, p. 50.

[3] Archbold, Criminal Pleading, Evidence and Practice (London, 2004), para. 8-138, p. 1176: “[A] witness may be asked questions about his antecedents, associations or mode of life which although irrelevant to the issue would be likely to discredit his testimony. […] The judge has discretion to excuse an answer when the truth of the matter suggested would not in his opinion affect the credibility of the witness as to the subject matter of his testimony.”

[4] See supra, para. 236.

[5] See supra, para. 237.

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ICTR Rule Rule 90(E) ICTY Rule Rule 90(E)
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Appeal Judgement - 13.12.2004 NTAKIRUTIMANA and NTAKIRUTIMANA
(ICTR-96-10-A and ICTR-96-17-A)

147. Although the jurisprudence of the Tribunal contains several comments on the use of prior inconsistent statements to impeach witness testimony,[1] it has not commented significantly on the proper uses of prior consistent statements. The Rules of Procedure and Evidence of the Tribunal do not expressly forbid the use of prior consistent statements to bolster credibility. However, the Appeals Chamber is of the view that prior consistent statements cannot be used to bolster a witness’s credibility, except to rebut a charge of recent fabrication of testimony.[2] The fact that a witness testifies in a manner consistent with an earlier statement does not establish that the witness was truthful on either occasion; after all, an unlikely or untrustworthy story is not made more likely or more trustworthy simply by rote repetition.[3] Another reason supporting this position is that, if admissible and taken as probative, parties would invariably adduce numerous such statements in a manner that would be unnecessarily unwieldy to the trial.[4]

148. However, there is a difference between using a prior consistent statement to bolster the indicia of credibility observed at trial and rejecting a Defence challenge to credibility based on alleged inconsistencies between testimony and earlier statements. The former is a legal error, while the latter is simply a conclusion that the Defence’s arguments are not persuasive. […]

[1] Akayesu Appeal Judgement, para. 142; Musema Appeal Judgement, para. 99.

[2] See, e.g., Tome v. United States, 513 U.S. 150, 157 (1995) (“Prior consistent statements may not be admitted to counter all forms of impeachment or to bolster the witness merely because she has been discredited.”); R. v. Beland and Phillips, 36 C.C.C. (3d) 481, 489 (Supreme Court of Canada 1987).

[3] See 4 J.H. Wigmore, Evidence in Trials at Common Law §1124 (J.H. Chadbourn rev. 1972).

[4] See id

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Decision Regarding False Testimony - 02.03.2016 NTAKIRUTIMANA and NTAKIRUTIMANA
(MICT-12-17)

9.       Rule 108(B) of the Rules provides:

If a Chamber or Single Judge has strong grounds for believing that a witness has knowingly and wilfully given false testimony, it shall refer the matter to the President who shall designate a Single Judge who may:

(i) direct the Prosecutor to investigate the matter with a view to the preparation and submission of an indictment for false testimony; or    

(ii) where the Prosecutor, in the view of the Single Judge, has a conflict of interest with respect to the relevant conduct, direct the Registrar to appoint an amicus curiae to investigate the matter and report back to the Single Judge as to whether there are sufficient grounds for instigating proceedings for false testimony.

10.     What constitutes “strong grounds” represents a heightened threshold for initiating investigations into allegations of false testimony,[1] and has been distinguished from the “sufficient grounds” standard applied to initiating the prosecution of an individual for false testimony or contempt.[2] […]

11.     A party seeking to institute proceedings for false testimony bears “the onus to prove the alleged falsehood”.[3] Despite having been instructed to provide references to transcripts from the Ntakirutimana case that, in his view, amounted to false testimony,[4] Ntakirutimana does not specify which portions of Witness HH’s testimony he alleges are false. This omission weighs against establishing that strong grounds exist for believing that Witness HH knowingly and wilfully gave false testimony before the ICTR.

See also paragraph 17 and footnote 57.

[1] See The Prosecutor v. Eliézer Niyitegeka, Case No. MICT-12-16, Decision on Request to Initiate Proceedings against Witness GGH in Niyitegeka for Giving False Testimony under Solemn Declaration and for Interfering with the Administration of Justice, 26 February 2014 (“Niyitegeka Decision of 26 February 2014”), para. 10; The Prosecutor v. Eliézer Niyitegeka, Case No. MICT-12-16, Decision on Request to Initiate Proceedings against Witness KJ in Niyitegeka for Giving False Testimony under Solemn Declaration and for Interfering with the Administration of Justice, 28 January 2014 (“Niyitegeka Decision of 28 January 2014”), para. 17.

[2] See The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR.91, Decision on “Joseph Nzirorera’s Appeal from Refusal to Investigate [a] Prosecution Witness for False Testimony” and on Motion for Oral Arguments, 22 January 2009 (“Karemera et al. Decision of 22 January 2009”), paras. 17-20.

[3] Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-A, Judgement, 9 July 2004, para. 253.

[4] See Order of 13 October 2015 [Prosecutor v. Elizaphan and Gérard Ntakirutimana, Case No. MICT-12-17, Order for Submissions, 13 October 2015 (confidential)], para. 10; Order of 12 November 2014 [Prosecutor v. Elizaphan and Gérard Ntakirutimana, Case No. MICT-12-17, Order for Submissions in Relation to the Motion to Appoint an Amicus Curiae to Investigate the Apparent Recantation of a Witness Testifying before the ICTR Pursuant to Rule 108(B), 12 November 2014 (confidential)], paras. 12, 13.

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MICT Rule Rule 108(B)
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Decision Regarding False Testimony - 02.03.2016 NTAKIRUTIMANA and NTAKIRUTIMANA
(MICT-12-17)

10.     […] False testimony has been defined by the Appeals Chamber of the ICTR as “a deliberate offence which requires wilful intent on the part of the perpetrator to mislead the Judge and thus to cause harm”.[1]

[1] Aloys Simba v. The Prosecutor, Case No. ICTR-01-76-A, Judgement, 27 November 2007, n. 68. The elements of false testimony have also been defined by trial chambers of the ICTR and the International Criminal Tribunal for the former Yugoslavia (“ICTY”) as: (i) the witness must make a solemn declaration; (ii) a false statement must be contrary to the solemn declaration; (iii) the witness must believe at the time that it was false; and (iv) there must be a relationship between the statement and a material matter within the case. See, e.g., The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Decision on Defence Motion for Investigation of Prosecution Witness Ahmed Mbonyunkiza for False Testimony, 29 December 2006, para. 6; Prosecutor v. Mile Mrkšić et al., Case No. IT-95-13/1-T, Decision on Reconsideration of the Decision on Protective Measures for Witness P024 and Initiation of the Proceedings pursuant to Rule 91, 13 July 2006 (confidential), para. 3.

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MICT Rule Rule 108(B)
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Appeal Judgement - 14.12.2011 NTAWUKULILYAYO Dominique
(ICTR-05-82-A)

21. The Appeals Chamber recalls that a Trial Chamber has full discretion to assess the appropriate credibility and weight to be accorded to the testimony of a witness;[1] corroboration is one of many potential factors relevant to this assessment.[2] A Trial Chamber retains discretion to decide, in the circumstances of each case, whether corroboration of evidence is necessary and to rely on uncorroborated, but otherwise credible, witness testimony.[3]

[…]

24. Nevertheless, the Appeals Chamber recalls that two prima facie credible testimonies need not be identical in all aspects or describe the same fact in the same way in order to be corroborative.[4] Every witness presents what he has seen from his own point of view at the time of the events, or according to how he understood the events recounted by others.[5] It follows that corroboration may exist even when some details differ between testimonies, provided that no credible testimony describes the facts in question in a way which is not compatible with the description given in another credible testimony.[6]

[1] Nchamihigo Appeal Judgement, para. 47; Muvunyi Appeal Judgement of 1 April 2011, para. 56; Nahimana et al. Appeal Judgement, para. 194.

[2] Nchamihigo Appeal Judgement, para. 47; Simba Appeal Judgement, para. 24, quoting Ntakirutimana Appeal Judgement, para. 132.

[3] Karera Appeal Judgement, para. 45. See also Renzaho Appeal Judgement, para. 556; Nchamihigo Appeal Judgement, para. 42; Muvunyi Appeal Judgement of 29 August 2008, para. 128.

[4] Munyakazi Appeal Judgement, para. 103; Bikindi Appeal Judgement, para. 81, citing Nahimana et al. Appeal Judgement, para. 428.

[5] Munyakazi Appeal Judgement, para. 103, citing Nahimana et al. Appeal Judgement, para. 428; Bikindi Appeal Judgement, para. 81; Karera Appeal Judgement, paras. 173, 192.

[6] Munyakazi Appeal Judgement, para. 71, citing Nahimana et al. Appeal Judgement, para. 428; Setako Appeal Judgement, para. 31; Rukundo Appeal Judgement, para. 201; Bikindi Appeal Judgement, para. 81.

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Appeal Judgement - 14.12.2011 NTAWUKULILYAYO Dominique
(ICTR-05-82-A)

21. The Appeals Chamber recalls that a Trial Chamber has full discretion to assess the appropriate credibility and weight to be accorded to the testimony of a witness;[1] corroboration is one of many potential factors relevant to this assessment.[2] A Trial Chamber retains discretion to decide, in the circumstances of each case, whether corroboration of evidence is necessary and to rely on uncorroborated, but otherwise credible, witness testimony.[3]

[…]

24. Nevertheless, the Appeals Chamber recalls that two prima facie credible testimonies need not be identical in all aspects or describe the same fact in the same way in order to be corroborative.[4] Every witness presents what he has seen from his own point of view at the time of the events, or according to how he understood the events recounted by others.[5] It follows that corroboration may exist even when some details differ between testimonies, provided that no credible testimony describes the facts in question in a way which is not compatible with the description given in another credible testimony.[6]

[1] Nchamihigo Appeal Judgement, para. 47; Muvunyi Appeal Judgement of 1 April 2011, para. 56; Nahimana et al. Appeal Judgement, para. 194.

[2] Nchamihigo Appeal Judgement, para. 47; Simba Appeal Judgement, para. 24, quoting Ntakirutimana Appeal Judgement, para. 132.

[3] Karera Appeal Judgement, para. 45. See also Renzaho Appeal Judgement, para. 556; Nchamihigo Appeal Judgement, para. 42; Muvunyi Appeal Judgement of 29 August 2008, para. 128.

[4] Munyakazi Appeal Judgement, para. 103; Bikindi Appeal Judgement, para. 81, citing Nahimana et al. Appeal Judgement, para. 428.

[5] Munyakazi Appeal Judgement, para. 103, citing Nahimana et al. Appeal Judgement, para. 428; Bikindi Appeal Judgement, para. 81; Karera Appeal Judgement, paras. 173, 192.

[6] Munyakazi Appeal Judgement, para. 71, citing Nahimana et al. Appeal Judgement, para. 428; Setako Appeal Judgement, para. 31; Rukundo Appeal Judgement, para. 201; Bikindi Appeal Judgement, para. 81.

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Appeal Judgement - 20.10.2010 RUKUNDO Emmanuel
(ICTR-2001-70-A)

81. The Appeals Chamber further recalls that minor inconsistencies commonly occur in witness testimony without rendering the testimony unreliable and that it is within the discretion of the Trial Chamber to evaluate such inconsistencies and to consider whether the evidence as a whole is credible, without explaining its decision in every detail.[1]

[1] Karera Appeal Judgement, para. 174; Kvočka et al. Appeal Judgement, para. 23.

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Appeal Judgement - 20.10.2010 RUKUNDO Emmanuel
(ICTR-2001-70-A)

133. The Appeals Chamber recalls that the Trial Chamber “shall exercise control over the mode and order of interrogating witnesses”[1] and that it therefore enjoys considerable discretion in setting the parameters of cross-examination.[2] Nonetheless, Article 20(4) of the Statute does provide the right to cross-examine a witness.

134. While Rukundo had the opportunity to cross-examine Witness BLP when he first gave testimony at trial, he was given no such opportunity to examine him upon the issue of his alleged recantation. The Appeals Chamber considers that, in light of the serious implications of recantation of testimony, the parties should have been given the opportunity to cross-examine Witness BLP on the issue of his alleged recantation. In this regard, the Appeals Chamber has previously noted the particular usefulness of cross-examination as a tool for discerning whether a witness’s testimony has been improperly influenced.[3] Furthermore, the Appeals Chamber recalls that the Trial Chamber indicated on a number of occasions that the parties would be given the opportunity to cross-examine Witness BLP, but ultimately no opportunity was afforded to them. Accordingly, the Appeals Chamber finds that the Trial Chamber erred in law in failing to allow Rukundo the opportunity to cross-examine Witness BLP upon the issue of his recantation.

147. The Appeals Chamber recalls that decisions relating to the general conduct of trial proceedings are matters within the discretion of Trial Chambers[4] and that they exercise control over the mode and order of interrogating witnesses.[5]

[1] Rule 90(F) of the Rules.

[2] See Nahimana et al. Appeal Judgement, para. 182; Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.2, Decision on Joint Defence Interlocutory Appeal Against the Trial Chamber’s Oral Decision of 8 May 2006 Relating to Cross-Examination by Defence and on Association of Defence Counsel’s Request for Leave to File an Amicus Curiae Brief, 4 July 2006 (“Prlić et al. Appeal Decision of 4 July 2006”), p. 3.

[3] The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73.8, Decision on Interlocutory Appeal Regarding Witness Proofing, 11 May 2007, para. 13.

[4] Prlić et al. Appeal Decision of 4 July 2006, p. 3.

[5] Rule 90(F) of the Rules.

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Appeal Judgement - 20.10.2010 RUKUNDO Emmanuel
(ICTR-2001-70-A)

221. In its Decision of 11 September 2007, the Trial Chamber recalled:

the general principle articulated in Rule 90(A) [is] that “witnesses shall [...] be heard directly by the Chamber.” Nonetheless, the Chamber has the discretion to hear testimony by video-link in lieu of physical appearance for purposes of witness protection under Rule 75, or where it is in the interests of justice to do so. In determining the interests of justice, the Chamber has to assess the importance of the testimony, the inability or unwillingness of the witness to travel to Arusha, and whether a good reason has been adduced for that inability and unwillingness. The burden of proof lies with the party making the request.[1]

[…] This standard is consistent with the approach taken by the Appeals Chamber.[2]

[1] Decision of 11 September 2007 [The Prosecutor v. Emmanuel Rukundo, Case No. ICTR-2001-70-T, Decision on the Defence Motions for Additional Time to Disclose Witnesses’ Identifying Information, to Vary its Witness List and for Video-Link Testimony, and on the Prosecution’s Motion for Sanctions, 11 September 2007 ], para. 23 (internal citations omitted).

[2] See Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-A, Decision on Prosecution’s Request for Testimony by Video-Conference Link and Protective Measures, filed confidentially on 2 July 2004, p. 3 (“the Appeals Chamber will ‘only allow video-link testimony if certain criteria are met, namely that testimony of a witness is shown to be sufficiently important to make it unfair to proceed without it and that the witness is unable or unwilling to come to the International Tribunal’”).

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Appeal Judgement - 18.03.2010 BIKINDI Simon
(ICTR-01-72-A)

115. As for the Appellant’s claim that the Prosecution bears the burden of establishing that a Defence witness is giving false evidence, the Appeals Chamber recalls that a credibility determination may be based, but does not necessarily depend, on a judicial finding that a witness has given false testimony.[1] The fact that the Prosecution did not prove or even allege that Defence witnesses were giving false testimony did not prevent the Trial Chamber from exercising its discretion in assessing the weight to be attached to their evidence. The Appellant’s argument that unless the Prosecution established that Defence witnesses gave false testimony the Trial Chamber was compelled to believe their evidence is misguided.

116. With respect to the Appellant’s assertion that the Trial Chamber erred in considering the evidence of Defence witnesses with caution due to their “close relationship” with him, whereas the same criterion was not applicable to Prosecution evidence, the Appeals Chamber disagrees. In determining the weight to attach to the evidence of any witness, the Trial Chamber has a broad discretion to consider all relevant factors, as noted above.[2] The fact that a criterion for assessing the credibility of the Defence witnesses was not equally applicable to the Prosecution witnesses did not invalidate the application of this factor. The right to have Defence witnesses examined under the same conditions as Prosecution witnesses relates to the right to call witnesses, and the right to cross-examine witnesses called by the Prosecution under the same conditions as the Prosecution.[3] It does not encompass the factors that a Trial Chamber may consider relevant in assessing the credibility of those witnesses.

[1] Simba Appeal Judgement, para. 31.

[2] Nahimana et al. Appeal Judgement, para. 194.

[3] Nahimana et al. Appeal Judgement, para. 181.

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Appeal Judgement - 30.06.2014 BIZIMUNGU Augustin
(ICTR-00-56B-A)

63. The Appeals Chamber recalls that it is within a trial chamber’s discretion to rely on the evidence of accomplice witnesses.[1] However, the trial chamber must exercise appropriate caution in assessing such evidence and carefully consider the totality of the circumstances in which it was tendered.[2] Of the several factors relevant to a cautious assessment, consideration should be given to circumstances showing that the witness may have motives or incentives to incriminate the accused or to lie.[3]

64. The Appeals Chamber recalls that “[u]nder some circumstances, a reasoned explanation of the Trial Chamber’s assessment of a particular witness’s credibility is a crucial component of a ‘reasoned opinion’ – for instance, where there is a genuine and significant dispute surrounding a witness’s credibility and the witness’s testimony is truly central to the question whether a particular element is proven”.[4] The Appeals Chamber considers the Trial Chamber’s analysis to be inadequate given the existence of a genuine and significant dispute surrounding Witness GAP’s credibility in light of his status as an accomplice witness and evidence suggesting that he may have had a motive to lie. In particular, the Trial Chamber failed to expressly consider evidence that Witness GAP had been pressured by Rwandan authorities to implicate Bizimungu in order to receive a more lenient sentence.[5] It failed to expressly address other evidence which alleged that Witness GAP facilitated the fabrication of evidence against accused before the Tribunal generally and Bizimungu specifically.[6] These omissions must be viewed in light of the Trial Chamber’s further failure to expressly consider that Witness GAP never mentioned this meeting or Bizimungu’s involvement in it in his statements to the Tribunal prior to 2003,[7] and that he failed to report this when confessing to his crimes before Rwandan authorities in 2002.[8] Mindful that trial chambers enjoy broad discretion in assessing evidence[9] and that they need not articulate every step of their reasoning for each finding they make,[10] the Appeals Chamber finds that the absence of any express consideration of these circumstances reflects a failure to apply necessary caution in light of the particular circumstances surrounding Witness GAP’s evidence.

[1] Gatete Appeal Judgement, para. 154; Munyakazi Appeal Judgement, para. 93; Setako Appeal Judgement, para. 143. See also Lukić and Lukić Appeal Judgement, para. 128; Krajišnik Appeal Judgement, para. 146.

[2] Gatete Appeal Judgement, para. 154; Setako Appeal Judgement, para. 143; Nchamihigo Appeal Judgement, para. 305. See also Lukić and Lukić Appeal Judgement, para. 128.

[3] See Kanyarukiga Appeal Judgement, para. 181; Setako Appeal Judgement, para. 143; Muvunyi II Appeal Judgement, para. 37. See also Lukić and Lukić Appeal Judgement, para. 128.

[4] Kajelijeli Appeal Judgement, para. 61  (emphasis in original).

[5] The Appeals Chamber observes that Witness GAP retracted that he had been pressured by Rwandan authorities to implicate Bizimungu when he appeared before the Karemera et al. trial chamber in January 2010. See, e.g., Defence Exhibit 699a (The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Witness GAP, T. 26 January 2010 pp. 32, 33, 36, 37, 43, 44). Other evidence reflects that pressure was applied on other inmates in Ruhengeri prison to fabricate evidence against several accused before the Tribunal and that fabricated evidence was given in this regard. See, e.g., Defence Exhibit 689a (The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Witness BTH, T. 10 April 2008 pp. 50-60); Defence Exhibit 690a (The Prosecutor v. Édouard Karemera et al., ICTR-Case No. 98-44-T, Witness BTH, T. 14 April 2008 pp. 2-53, 57-60, 62, 63); Defence Exhibit 691a (The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Witness BTH, T. 15 April 2008 pp. 16-19, 21-35); Defence Exhibit 692a (The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Witness BTH, T. 16 April 2008 pp. 13, 14, 26-36, 41-46, 48-51, 55-57, 61, 62, 64-71); Defence Exhibit 693a (The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Witness BTH, T. 17 April 2008 pp. 21, 22, 25-28, 30). See also Witness DB11-2, T. 12 June 2007 pp. 42, 43 (closed session); T. 13 June 2007 pp. 16, 22, 23 (closed session); Witness CBP99, T. 3 March 2008 pp. 45, 46, 57, 58, 61, 62, 65-69. The Appeals Chamber observes that the Trial Chamber only generally discussed that Witness GFA was confronted with statements taken from other witnesses who he testified had provided false testimony before the Tribunal, indicating that they had not lied. See Trial Judgement, paras. 178, 179. The Trial Chamber provided no indication that it found Witness GFA’s testimony to lack credibility on this issue.

[6] Defence Exhibit 689a (The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Witness BTH, T. 10 April 2008 pp. 58, 59) (referring to individual number 3); Defence Exhibit 690a (The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Witness BTH, T. 14 April 2008 pp. 5, 8, 19, 20) (referring to individual number 2); Defence Exhibit 691a (The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Witness BTH, T. 15 April 2008 pp. 22, 23, 30-34) (referring to individual number 2); Defence Exhibit 692a (The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Witness BTH, T. 16 April 2008 pp. 61, 62) (referring to individual number 2); Defence Exhibit 693a (The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Witness BTH, T. 17 April 2008 p. 31) (referring to individual number 2). To identify that the individual referred to in Witness BTH’s testimony in the Karemera et al. proceeding as Witness GAP, Defence Exhibits 689a, and 690a must read in conjunction with Defence Exhibits 666 and 668, respectively, while Defence Exhibits 691a, 692a, and 693a must be read in conjunction with Defence Exhibit 678. All of these exhibits were admitted pursuant to Rules 89(C) and 92bis(D) of the Rules through The Prosecutor v. Augustin Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Bizimungu’s Motion for the Admission into Evidence of the Transcripts and Exhibits of Witness BTH’s Testimony in the Karemera et al. Case Pursuant to Rule 92bis, 4 December 2008, paragraph 1 of which identifies Witness BTH in the Karemera et al. case as being Witness GFA in the present case.

[7] See Witness GAP, T. 16 February 2005 pp. 22-27, 33, 37, 62, 63; T. 17 February 2005 pp. 6, 49; T. 22 February 2005 p. 47.

[8] See Witness GAP, T. 15 February 2005 pp. 4-6, 11, 12 (closed session), 36, 42-44; T. 16 February 2005 pp. 11, 12, 19-21, 27, 30, 33, 63.

[9] See, e.g., Kanyarukiga Appeal Judgement, para. 121; Ntawukulilyayo Appeal Judgement, para. 21; Nchamihigo Appeal Judgement, para. 47.

[10] See, e.g., Ntabakuze Appeal Judgement, para. 161; Bagosora and Nsengiyumva Appeal Judgement, para. 269; Nchamihigo Appeal Judgement, para. 165.

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Decision on Flaten's Testimony - 17.07.2007 BIZIMUNGU et al. (Government II)
(ICTR-99-50-AR73.6)

17. [...] If a Trial Chamber finds that the information has been provided in accordance with Rule 70(B), the information will benefit from the protections afforded under Rules 70(C) and (D).[1] However, the restrictions referred to under Rules 70(C) and (D) will only apply after the Trial Chamber has determined that the restrictions imposed by the government upon the witness’s testimony would not undermine the need to ensure a fair trial, and that the need to ensure a fair trial would not substantially outweigh the probative value of the testimony so as to lead to its exclusion.[2] Indeed, Rule 70(F) provides that Rule 70 restrictions shall not “affect a Trial Chamber’s power under Rule 89(C) to exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial.”[3]

18. By conducting the balancing exercise under Rule 70(F), a Trial Chamber ensures that the government’s legitimate confidentiality concerns are respected, and, at the same time, that the conduct of the trial remains fair and expeditious. While according due weight to legitimate State concerns related to national security and the need for States to safeguard their interests,[4] the Appeals Chamber adopts the holding of the ICTY Appeals Chamber in the Milutinović et al. case that “this deference to States’ interests does not go as far as to supersede a Trial Chamber’s authority to maintain control over the fair and expeditious conduct of the trial”.[5]

22. With regard to whether the limitations placed upon Ambassador Flaten’s testimony under Condition B would have resulted in substantial unfairness such as to outweigh the probative value of his testimony, the Appeals Chamber makes the following observations. On 24 January 2007, the Trial Chamber observed that “[a]s the prospective witness is a Defence witness, the limitations on cross-examination do not impact the rights of the Accused.”[6] The Appeals Chamber recalls that Rule 70(E) is indeed aimed at ensuring that the right of an accused to challenge evidence presented by the Prosecution under Rules 70(C) and (D) remains unaffected and, therefore, finds no error in the Trial Chamber’s statement.

26. Lastly, the Appeals Chamber reiterates that pursuant to Rule 70(F), the Trial Chamber would have been able to exclude the evidence provided by Ambassador Flaten if it found – during the course of his testimony – that the application of Condition B unfairly limited the rights of the co-accused or the Prosecution. Rule 70(F) provides a safeguard against any undue prejudice that could be caused to the parties as a result of the limitations imposed by a State for the protection of the confidential information in its possession. The Appeals Chamber recalls in this regard that the public interest served in ensuring that information given in confidence to one of the parties remains confidential finds its limitation in the obligation imposed on this Tribunal by Articles 20 and 21 of the Statute to ensure a fair trial. In the present case, the Trial Chamber stressed on 24 January 2007 that “Rule 70(F) clearly preserves the Chamber’s power to apply Rule 89(C) and exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial.”[7] The Appeals Chamber finds that such a safeguard in the Rules means that the Trial Chamber would have retained authority over the proceedings even with Condition B applied. Indeed, if the Trial Chamber were to find that the application of Condition B had unfairly limited the rights of the co-accused or the Prosecution to confront the witness during his testimony, the ultimate remedy would be the exclusion of the evidence.[8]

[1] See Slobodan Milošević Decision of 23 October 2002, paras. 20 and 29.

[2] See Milutinović et al. Decision, para. 18.

[3] See Milutinović et al. Decision, para. 16, referring to Rule 70(G) of the Rules of the ICTY.

[4] See Prosecutor v. Tihomir Blaškić, Case No 95-14-AR108bis, Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997, para. 67; See also Milutinović et al. Decision, para. 18.

[5] Milutinović et al. Decision, para. 18.

[6]T. 24 January 2007, p. 46 (closed session).

[7]T. 24 January 2007, p. 47 (closed session).

[8] The same rationale was applied in several cases before ICTY Trial Chambers: Prosecutor v. Radoslav Brđanin and Momir Talić, Case No IT-99-36-T, Public Version of the Confidential Decision on the Alleged Illegality of Rule 70 of 6 May 2002, 23 May 2002, paras. 25 and 27; Prosecutor v. Milutinović et al., Case No IT-05-87-T, Decision on Prosecution Second Renewed Motion for Leave to Amend its Rule 65ter List to Add Michael Phillips and Shaun Byrnes, 12 March 2007, paras. 34 and 36; Prosecutor v. Slobodan Milošević, Case No IT-02-54-T, Decision on the Prosecution’s Motion to Grant Specific Protection Pursuant to Rule 70, confidential, 25 July 2002, para. 19; Slobodan Milošević Decision of 23 October 2002, para. 26. Incidentally, the Appeals Chamber notes that the Trial Chamber seized of the Bagosora et al. case granted a condition similar to Condition B for the appearance of a colonel serving in the French military, recalling that it retained authority to resolve any disputes as to the proper scope of questioning which might arise during the testimony: The Prosecutor v. Théoneste Bagosora et al., Case No ICTR-98-41-T, Modalities for Presentation of a Witness, 20 September 2006, para. 5 and Disposition.

 

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ICTR Rule Rule 70;
Rule 89(C)
ICTY Rule Rule 70;
Rule 89(C)
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Decision on Flaten's Testimony - 17.07.2007 BIZIMUNGU et al. (Government II)
(ICTR-99-50-AR73.6)

17. The Appeals Chamber recalls that Rule 70 has been incorporated in the Rules to encourage States to fulfill their cooperation obligations under Article 28 of the Statute of the Tribunal.[1] It creates an incentive for such cooperation by permitting information to be shared on a confidential basis and by guaranteeing the providers of such information that the confidentiality thereof, together with its sources, will be protected.[2] Rule 70 operates on the basis that governments showing a genuine interest in protecting the information in their possession may invoke Rule 70 to ensure the protection of such information by requiring limitations on the scope of a witness’s testimony or on the dissemination of that witness’s testimony.[3] If a Trial Chamber finds that the information has been provided in accordance with Rule 70(B), the information will benefit from the protections afforded under Rules 70(C) and (D).[4] However, the restrictions referred to under Rules 70(C) and (D) will only apply after the Trial Chamber has determined that the restrictions imposed by the government upon the witness’s testimony would not undermine the need to ensure a fair trial, and that the need to ensure a fair trial would not substantially outweigh the probative value of the testimony so as to lead to its exclusion.[5] Indeed, Rule 70(F) provides that Rule 70 restrictions shall not “affect a Trial Chamber’s power under Rule 89(C) to exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial.”[6]

[1] See Milutinović et al. Decision [Prosecutor v. Milan Milutinović et al., Case No IT-05-87-AR73.1, Decision on Interlocutory Appeal against Second Decision Precluding the Prosecution from Adding General Wesley Clark to its 65ter Witness List, 20 April 2007], para. 18. Article 28(1) reads: “States shall cooperate with the International Tribunal for Rwanda in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law.”

[2] Prosecutor v. Slobodan Milošević, Case No IT-02-54-AR108bis&AR73.3, Decision on Interpretation and Application of Rule 70, confidential, 23 October 2002 (“Slobodan Milošević Decision of 23 October 2002”), para. 19.

[3] Prosecutor v. Dragomir Milošević, Case No IT-98-29/1-T, Decision on Prosecution’s Application for Rule 70 Conditions for Testimony of Witness W-156 and Prosecution Motion for Admission of Witness Statement Pursuant to Rule 92ter, 23 April 2007. p. 3. See also Prosecutor v. Milutinović et al., Case No IT-05-87-T, Second Decision on Prosecution Motion for Leave to Amend its Rule 65ter Witness List to Add Wesley Clark, 16 February 2007, para. 26.

[4] See Slobodan Milošević Decision of 23 October 2002, paras. 20 and 29.

[5] See Milutinović et al. Decision, para. 18.

[6] See Milutinović et al. Decision, para. 16, referring to Rule 70(G) of the Rules of the ICTY.

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ICTR Rule Rule 70 ICTY Rule Rule 70
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Appeal Judgement - 09.05.2007 BLAGOJEVIĆ & JOKIĆ
(IT-02-60-A)

82. Accomplice testimony is not per se unreliable, and its use by a Trial Chamber, in and of itself, does not constitute error. Such evidence, however, must be carefully considered in light of the circumstances under which it was given. […] In the view of the Appeals Chamber, the Trial Chamber treated this evidence with appropriate caution. […]

[1] Niyitegeka Appeal Judgement, para. 98. See also Ntagerura et al. Appeal Judgement, paras. 203, 204.

[2] Niyitegeka Appeal Judgement, para. 98. See also Ntagerura et al. Appeal Judgement, para. 204.

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Appeal Judgement - 09.05.2007 BLAGOJEVIĆ & JOKIĆ
(IT-02-60-A)

82. […] the Appeals Chamber observes that it is not unreasonable for a Trial Chamber to accept certain parts of a witness’s testimony and reject others.[1]

[1] Kupreškić et al. Appeal Judgement, para. 333. See also Ntagerura et al. Appeal Judgement, para. 214; Kamuhanda Appeal Judgement, para. 248.

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Vujin Contempt Appeal Judgement - 31.01.2000 TADIĆ Duško
(IT-94-1-A-R77)

145. A tribunal of fact is always permitted to accept part and reject part of the same witness’s evidence. The Appeals Chamber is conscious that it is a substantial step to take to accept the statement given by a witness in preference to his or her sworn evidence, especially when the witness seeks to repudiate the relevant part of the statement. 

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Vujin Contempt Appeal Judgement - 31.01.2000 TADIĆ Duško
(IT-94-1-A-R77)

145. A tribunal of fact is always permitted to accept part and reject part of the same witness’s evidence. The Appeals Chamber is conscious that it is a substantial step to take to accept the statement given by a witness in preference to his or her sworn evidence, especially when the witness seeks to repudiate the relevant part of the statement. 

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Vujin Contempt Appeal Judgement - 31.01.2000 TADIĆ Duško
(IT-94-1-A-R77)

163. The Appeals Chamber has not been placed in a position where it can determine just what the law on this point is in the former Yugoslavia. The material which the Respondent supplied to the Chamber as supporting what he had said does not demonstrate the existence of any law prohibiting lawyers from obtaining statements from witnesses directly and without intervention by the court or the police, but the material he supplied may be incomplete. However, whatever the law may be in the various parts of the former Yugoslavia, it must clearly be understood by counsel appearing in matters before this Tribunal that they are bound by the law of the Tribunal to act freely when seeking out witnesses. They are bound by the Code of Professional Conduct for Defence Counsel Appearing Before the International Tribunal, which (by Article 19) prevails where there is any inconsistency between it and any other code which counsel may be bound to honour. International law does not recognise any prohibition upon counsel such as asserted by the Respondent to exist in the former Yugoslavia, and States could not effectively legislate to frustrate the proper workings of the Tribunal in that way.

164. In the present case, the Respondent explained his resort to the military tribunal by his concern that, in an application pursuant to Rule 115 to present additional evidence to the Appeals Chamber, the Chamber would prefer the evidence to be on oath, and therefore would accept statements taken by an official organ of the country in which the witnesses reside. (The Appeals Chamber was informed that affidavits are unknown in the former Yugoslavia.) Such would certainly be an understandable concern. But it should again clearly be understood that counsel appearing before the Tribunal are not obliged to have statements taken from prospective witnesses in police stations or in courts or through any other official organs. Indeed, in most cases it would be unwise, and potentially counter-productive, to follow such procedures, because of the intimidating effect they may have on the witnesses themselves, and the perceptions which such procedures may create as to the influence of the State upon statements which are made in that way.

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Decision on False Testimony - 16.02.2010 KAREMERA et al.
(ICTR-98-44-AR91.2)

19. With respect to the fact that the Amicus Report[1] did not establish when Witness BTH gave false testimony or which portions of his evidence were false, and the Trial Chamber’s finding that as a result any indictment would necessarily be insufficiently precise, the Appeals Chamber finds that the Trial Chamber applied the incorrect legal test. The legal test is whether there are “sufficient grounds to proceed against a person for giving false testimony”.[2] The ICTY Appeals Chamber in the Šešelj case held that “the ‘sufficient grounds’ standard under Rule 77(D) of the ICTY Rules only requires the Trial Chamber to establish whether the evidence before it gives rise to a prima facie case of contempt of the Tribunal and not to make a final finding on whether contempt has been committed”.[3] While the Šešelj Decision concerned the initiation of contempt proceedings under Rule 77 of the ICTY Rules rather than proceedings for false testimony under Rule 91 of the Rules, the Appeals Chamber observes that the language in the two rules is identical with respect to the initiation of proceedings.[4] It therefore considers that since the “sufficient grounds” requirement, as prescribed in Rule 77 of the ICTY Rules, is satisfied where the evidence establishes a prima facie case, the “sufficient grounds” requirement of Rule 91(C) of the Rules is also satisfied by the existence of evidence which establishes a prima facie case. Accordingly, the Appeals Chamber finds that the Trial Chamber erred in basing its decision upon the fact that the Amicus Report did not determine when Witness BTH gave false testimony or which portions of his evidence were false because this does not necessarily preclude the existence of a prima facie case of false testimony.

[1] [The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Final Report of Amicus Curiae of the Investigations into the False Testimony of Prosecution Witness BTH/GFA in The Prosecutor v. Édouard Karemera et al. and The Prosecutor v. Casimir Bizimungu et al., filed confidentially on 17 April 2009.]

[2] Rule 91(C) of the Rules [of Procedure and Evidence].

[3] Prosecutor v. Vojislav [ešelj, Case No. IT-03-67-AR77.2, Decision on the Prosecution’s Appeal Against the Trial Chamber’s Decision of 10 June 2008, 25 July 2008 (“[ešelj Decision”), para. 16. See also Karemera et al. Decision on Refusal to Investigate a Witness for False Testimony, para. 17; Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Order Concerning Allegations Against Milka Maglov, 15 April 2003, p. 3.

[4] Rule 77(D) of the ICTY and Tribunal Rules states: “If the Chamber considers that there are sufficient grounds to proceed against a person for contempt, the Chamber may: (i) in circumstances described in paragraph (C)(i), direct the Prosecutor to prosecute the matter; or (ii) in circumstances described in paragraph (C)(ii) or (iii), issue an order in lieu of an indictment and either direct amicus curiae to prosecute the matter or prosecute the matter itself.”

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Decision on False Testimony - 16.02.2010 KAREMERA et al.
(ICTR-98-44-AR91.2)

20. The Appeals Chamber further finds that the Trial Chamber erred in concluding that ordering the prosecution of Witness BTH was premature because an assessment of his credibility will be undertaken when deliberating on the Karemera et al. case and that such prosecution would risk causing serious prejudice to the Karemera et al. proceedings. An assessment of a witness’s credibility is a separate inquiry from that of the prosecution of a witness for false testimony.[1] The Trial Chamber hearing the case in which the witness testified will assess the witness’s credibility in its consideration of the evidence adduced in that case.[2] Prosecution for false testimony is a separate trial conducted by a separate chamber of judges, who will consider evidence relating to the allegation of false testimony.[3] Therefore, proceedings for false testimony need not be deferred until the completion of the trial in which the false testimony was allegedly given but can proceed contemporaneously. In this respect, the Appeals Chamber recalls the finding in Rutaganda that:

A credibility determination may be based, but does not necessarily depend, on a judicial finding that a witness has given false testimony. The testimony of a witness may lack credibility even if it does not amount to false testimony within the meaning of Rule 91. Thus, an investigation for false testimony is ancillary to the proceeding and does not impact on the accused’s right to a fair trial.[4]

[…]

[1] The Prosecutor v. Georges Rutaganda, Case No. ICTR-96-3-A, Decision on Appeals of the Decisions by Trial Chamber I Rejecting the Defence Motions to Direct the Prosecutor to Investigate the Matter of False Testimony by Witnesses “E” and “CC”, 8 June 1998, (“Rutaganda Decision”), para. 28.

[2] See, e.g., Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-A, Judgement, 28 February 2005, para. 659 (“The Appeals Chamber considers that the Trial Chamber was entitled to exercise discretion in its assessment of evidence presented by all parties to the case, in accordance with the relevant Rules of Procedure and Evidence. Whether all of the Defence or Prosecution witnesses were credible was a matter for the Trial Chamber to decide.”)

[3] Rule 91(F) of the Rules stipulates that “[n]o Judge who sat as a member of the Trial Chamber before which the witness appeared shall sit for the trial of the witness for false testimony.”

[4] Rutaganda Decision, para. 28. The Appeals Chamber further recalls that contempt proceedings have, on a number of occasions, been instituted contemporaneously with the trial in which such contempt was alleged to have arisen. See, e.g., Prosecutor v. Slobodan Milošević, Contempt Proceedings Against Kosta Bulatović, Case No. IT-02-54-R77.4, Decision on Contempt of the Tribunal, 13 May 2005; Contempt Proceedings Against Dragan Jokić, Case No. IT-05-88-R77.1-A, Judgement on Allegations of Contempt, 25 June 2009 (arising from Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-T, proceedings which are ongoing).

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Decision on Substitute Judge and New Material - 22.10.2004 KAREMERA et al.
(ICTR-98-44-AR15bis.2)

59. The Appeals Chamber also finds that in reaching the Impugned Decision the remaining Judges took into account an immaterial consideration, namely, the fact that the testimonies were given in a language not understood by the Bench […]

60. The Tribunal has repeatedly emphasized the importance of observing the demeanour of witnesses and, indeed, it is this first-hand observation which is the basis for the Appeals Chamber’s deference to the factual findings of Trial Chambers.[1] The Appeals Chamber considers that the importance of evaluation of the demeanour of witnesses by the triers of fact cannot be discounted on the ground that the witnesses may speak through an interpreter. Even when this is the case, the Judges observing the witness testify have an opportunity to see his or her demeanour, assess it, and weigh the evidence accordingly.

[1] For example in Rutaganda, the Appeals Chamber stated the following: “It is an established principle that a high degree of deference must be shown to the factual findings of a Trial Chamber, and the Appeals Chamber has regularly recalled that it will not lightly disturb findings of fact by a Trial Chamber. Such deference is based essentially on the fact that the Trial Chamber has the advantage of observing witnesses in person and hearing them when they are testifying, and so are better placed to choose between divergent accounts of one and the same event. Trial Judges are better placed than the Appeals Chamber to assess witness reliability and credibility, and to determine the probative value to ascribe to the evidence presented at trial.Rutaganda v. Prosecutor, Case No. ICTR-96-3-A, Judgement, 26 May 2003, para. 21 (citations omitted, emphasis added). The Appeals Chamber also observed that in reviewing the factual findings of Trial Chambers it only has at its disposal transcripts of the testimonies. Id. n. 36.

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Appeal Judgement - 02.02.2009 KARERA François
(ICTR-01-74-A)

234. The Appeals Chamber notes that collusion can be defined as an agreement, usually secret, between two or more persons for a fraudulent, unlawful, or deceitful purpose.[1] If an agreement between witnesses for the purpose of untruthfully incriminating an accused were indeed established, their evidence would have to be excluded pursuant to Rule 95 of the Rules.[2] In the present instance, the Trial Chamber rejected the possibility of collusion between the four Prosecution witnesses testifying about the events in Ntarama.[3] The Trial Chamber held that it could not “exclude that the witnesses may have discussed the events of 1994, in spite of [their] general denials of having done so”.[4] It took into account that two of the witnesses gave their respective statements to investigators on the same day at the same place and that the other two gave their statements on another day at the same location.[5] It also considered that all four witnesses lived in the same area, travelled together to Arusha in connection with the trial, and had their meals together in the safe house.[6] However, the Trial Chamber reasoned that the differences in the testimonies of the four witnesses did not support the allegation of collusion[7] and concluded that there was no basis to find that they colluded to untruthfully implicate the Appellant.[8] The Appellant has failed to show that the Trial Chamber erred in reaching this conclusion.

235. Furthermore, the Appeals Chamber is not convinced by the Appellant’s claim that the Trial Chamber contradicted itself at paragraphs 250 and 307 of the Trial Judgement. The Trial Chamber consistently stated in both paragraphs that it did not exclude the possibility that the witnesses may have jointly discussed the events of 1994 but that there was insufficient basis to conclude that they colluded amongst themselves in order to untruthfully implicate the Appellant. Consequently, the Appellant’s argument is rejected.

[1] The Appeals Chamber notes that Black’s Law Dictionary, 6th Edition defines collusion as “[a]n agreement between two or more persons to defraud a person of his rights by the forms of law, or to obtain an object forbidden by law. It implies the existence of fraud of some kind, the employment of fraudulent means, or of unlawful means for the accomplishment of an unlawful purpose”.

[2] Rule 95 of the Rules states: “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.” See, also, mutatis mutandis, Nahimana et al. where the Appeals Chamber dismissed the testimony of a witness insofar as it was not corroborated by other credible evidence, having found that even if the evidence was “insufficient to establish with certainty that [this witness] was paid for his testimony against [the accused], it [was] nonetheless difficult to ignore this possibility, which undeniably casts doubt on the credibility of this witness.” It also ruled that “if the Trial Chamber had been aware of the fact that the Prosecutor’s investigator questioned the witness’ moral character, suspecting him of having been involved in the subornation of other witnesses and of being prepared to testify in return for money – the Trial Chamber would have been bound to find that these matters cast serious doubt on [this witness’s] credibility. Hence, like any reasonable trier of fact, it would have disregarded his testimony, or at least would have required that it be corroborated by other credible evidence.” Nahimana et al. Appeal Judgement, para. 545.

[3] Trial Judgement, paras. 250, 308, 313.

[4] Trial Judgement, para. 250. See also Trial Judgement, para. 308 (“[a]s observed previously, it cannot be excluded that the witnesses may have discussed the events of 1994, either previously or in connection with travelling to Arusha or taking their meals together.”).

[5] Trial Judgement, para. 250.

[6] Trial Judgement, para. 250.

[7] Trial Judgement, para. 250.

[8] Trial Judgement, para. 308.

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ICTR Rule Rule 95
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Appeal Judgement - 17.03.2009 KRAJIŠNIK Momčilo
(IT-00-39-A)

119. As noted above,[1] the Trial Chamber exceptionally and temporarily allowed Krajišnik to supplement his Counsel’s cross-examination with his own questions to the witness pending final decision on his request to self-represent.[2] The Appeals Chamber is of the view that the Trial Chamber acted within its discretion in doing so. The Appeals Chamber has already recognised that an accused represented by counsel may in certain circumstances directly put questions to a witness, subject to the Trial Chamber’s supervision.[3] In the Appeals Chamber’s opinion, the circumstances at hand (the pending request to self-represent) made it appropriate to allow Krajišnik to put questions to the witnesses after the cross-examination of Counsel. The Appeals Chamber further notes that the Trial Chamber explicitly warned Krajišnik of the risks connected with taking an active role in cross-examinations.[4] In the circumstances, the Appeals Chamber is not persuaded that Amicus Curiae has shown that the Trial Chamber’s decision rendered the trial unfair. The only concrete prejudice alleged by Amicus Curiae concerns Krajišnik’s handling of the cross-examination of Witness Davidović,[5] but he does not provide any reference in this regard and the Appeals Chamber can not thus assess this contention.

[1] See supraIII.A.1.

[2] Trial Judgement, para. 1245. This practice was extended even after Krajišnik’s request for self-representation was denied: the Trial Chamber allowed Krajišnik a limited role in complementing his Counsel’s examination-in-chief of Defence witnesses, subject to the Trial Chamber’s supervision (T. 17205-17206; Trial Judgement, para. 1246). Amicus Curiae does not seem to argue that the Trial Chamber erred in doing so. In any case, the Appeals Chamber can see no error in this, for the reasons given below.

[3] Prosecutor v. Jandranko Prlić et al., Case No. IT-04-74-AR73.5, Decision on Praljak’s Appeal of the Trial Chamber’s 10 May 2007 Decision on the Mode of Interrogating Witnesses, 24 August 2007. See also Nahimana et al, Appeal Judgement, para. 267; Prosecutor v. Jandranko Prlić et al., Case No. IT-04-74-AR73.11, Decision on Slobodan Praljak’s Appeal of the Trial Chamber’s Decision on the Direct Examination of Witnesses Dated 26 June 2008, 11 September 2008, para. 22.

[4] T. 13440:

[…] your lack of legal experience means that there is a serious risk that you’ll damage your position. You should be aware that if you inadvertently damage your position through questioning witnesses, that it's something you shall have to live with. The Chamber therefore strongly advises you to consult your assigned counsel about any line of questioning you wish to pursue.

[5] Amicus Curiae’s Reply, para. 24.

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Appeal Judgement - 17.03.2009 KRAJIŠNIK Momčilo
(IT-00-39-A)

146. The Appeals Chamber recalls at the outset that it is well established in the jurisprudence of both ad hoc Tribunals that nothing prohibits a Trial Chamber from relying on evidence given by a convicted person, including evidence of a partner in crime of the person being tried before the Trial Chamber.[1] Indeed, accomplice evidence, and, more broadly, evidence of witnesses who might have motives or incentives to implicate the accused is not per se unreliable, especially where such a witness may be thoroughly cross-examined; therefore, reliance upon this evidence does not, as such, constitute a legal error.[2] However, “considering that accomplice witnesses may have motives or incentives to implicate the accused person before the Tribunal, a Chamber, when weighing the probative value of such evidence, is bound to carefully consider the totality of the circumstances in which it was tendered”.[3] As a corollary, a Trial Chamber should at least briefly explain why it accepted the evidence of witnesses who may have had motives or incentives to implicate the accused; in this way, a Trial Chamber shows its cautious assessment of this evidence.

[1] Nahimana et al. Appeal Judgement, para. 439. See also Blagojević and Jokiæ Appeal Judgement, para. 82; Ntagerura et al. Appeal Judgement, paras 203-206; Niyitegeka Appeal Judgement, para. 98.

[2] Niyitegeka Appeal Judgement, para. 98. See also Ntagerura et al. Appeal Judgement, para. 204, and Blagojević and Jokiæ Appeal Judgement, para. 82.

[3] Niyitegeka Appeal Judgement, para. 98. See also Nahimana et al. Appeal Judgement, para. 439; Ntagerura et al. Appeal Judgement, paras 204 and 206, and Blagojević and Jokiæ Appeal Judgement, para. 82.

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Appeal Judgement - 17.03.2009 KRAJIŠNIK Momčilo
(IT-00-39-A)

Agreeing with a similar finding of the ICTR Appeals Chamber in Karera, the Appeals Chamber held that Rule 90(H)(ii) of the Rules does not apply to an accused testifying in his own case.

367. The Appeals Chamber recalls that this Rule seeks to facilitate the fair and efficient presentation of evidence whilst affording the witness being cross-examined the possibility of explaining himself on those aspects of his testimony contradicted by the opposing party’s evidence, so saving the witness from having to reappear needlessly in order to do so and enabling the Trial Chamber to evaluate the credibility of his testimony more accurately owing to the explanation of the witness or his counsel.[1]

Hence, the Appeals Chamber agrees that the central purpose of the Rule in question “is to promote the fairness of proceedings by enabling the witness on the stand to appreciate the context of the cross-examining party’s questions, and to comment on the contradictory version of the events in question”.[2]

368. The Appeals Chamber stresses that, in order to fulfil the requirements of Rule 90(H)(ii) of the Rules, it is sufficient that the cross-examining party put the nature of its case to the witness, meaning the general substance of its case conflicting with the evidence of the witness, chiefly to protect this witness against any confusion.[3] There is no need for the cross-examining party to explain every detail of the contradictory evidence, and the Rule allows for some flexibility depending on the circumstances of the trial.[4] In particular, if it is obvious in the circumstances of the case that the version of the witness is being challenged, there is no need for the cross-examining party to waste time putting its case to the witness.[5]

The Appeals Chamber confirmed, however, that this provision does not apply when an accused testifies in his own defence as “he is well aware of the context of the Prosecution’s questions and of the Prosecution’s case, insofar as he has received sufficient notice of the charges and the material facts supporting them.” (para. 369, citing Karera Appeal Judgement, para. 27).

[1] Prosecutor v. Radoslav Brđanin and Momir Talić, Case No. IT-99-36-AR73.7, Decision on the Interlocutory Appeal against a Decision of the Trial Chamber, as of right, 13 June 2002 (“Brđanin and Talić Appeal Decision”), p. 4.

[2] Karera Appeal Judgement, para. 25; Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-T, Order Setting Forth Guidelines for the Procedure under Rule 90(H)(ii), 6 March 2007 (“Popović et al. Order setting Guidelines”), para. 1 (emphasis added). See also Prosecutor v. Radoslav Brđanin and Momir Talić, Case No. IT-99-36-T, Decision on “Motion to Declare Rule 90(H)(ii) Void to the Extent it is in Violation of Article 21 of the Statute of the International Tribunal” by the Accused Radoslav Brđanin and on “Rule 90(H)(ii) Submissions” by the Accused Momir Talić, 22 March 2002 (“Brđanin and Talić Decision on Rule 90(H)(ii)”), paras 13, 17.

[3] Prosecutor v. Naser Orić, Case No. IT-03-68-T, Decision on Partly Confidential Defence Motion Regarding the Consequences of a Party Failing to Put its Case to Witnesses Pursuant to Rule (90)(H)(ii), 17 January 2006 (“Orić Decision on Rule 90(H)(ii)”), pp. 1-2. See also Popović et al. Order setting Guidelines, para. 2; Prosecution v. Stanislav Galić, Case No. IT-98-29-T, T. 6465 (2 April 2002); Brđanin and Talić Decision on Rule 90(H)(ii), paras 13, 17.

[4] Karera Appeal Judgement, para. 26; Brđanin and Talić Decision on Rule 90(H)(ii), para. 14. See also Orić Decision on Rule 90(H)(ii), pp.1-2, and Popović et al. Order setting Guidelines, para. 2.

[5] See, for instance, Browne v. Dunn, (1893) 6 R. 1894, 67 (recognised as the leading case on this question in the common law jurisdictions having adopted a rule similar to Rule 90(H)(ii) of the Rules), where Lord Herschell (L.C.) states at p. 71 that the requirement to put the case to the witness does not apply when it is

otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling. Of course I do not deny for a moment that there are cases in which that notice has been so distinctly and unmistakably given, and the point upon which he is impeached, and is to be impeached, is so manifest, that it is not necessary to waste time in putting questions to him upon it.   

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Appeal Judgement - 16.11.2001 MUSEMA Alfred
(ICTR-96-13-A)

71.     In this instance, the Trial Chamber found that exceptional circumstances existed which justified the non-disclosure of the identities of Prosecution witnesses.  In the opinion of the Appeals Chamber, the Trial Chamber was, in the circumstances, bound to consider the testimony of these witnesses in the same way as that of witnesses who were not afforded protective measures.  Indeed, when assessing the probative value of the testimony of a protected witness, the Trial Chamber may take into consideration his status as protected witness, but it is incorrect to say that a Trial Chamber must exercise “special caution” in assessing such evidence. 

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Appeal Judgement - 16.11.2001 MUSEMA Alfred
(ICTR-96-13-A)

63.     The issue here is whether the Trial Chamber’s consideration of the impact of trauma was in accordance with the law. The established practice of both the Trial Chambers and the Appeals Chamber supports a finding that it was. Trial Chambers normally take the impact of trauma into account in their assessment of evidence given by a witness. This approach was properly adopted by the Trial Chamber in this case. Contrary to Musema’s assertion, the Appeals Chamber finds that such an approach is, in fact, favourable to him. Indeed, the fact that the Trial Chamber should take into account the impact of trauma on a witness’s memory implies the Trial Chamber’s awareness of such factors (as in the case of the passage of time) and of their possible effect on the ability of the witness to recount events impartially and accurately. 

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Decision on Subpoena Application - 01.07.2003 KRSTIĆ Radislav
(IT-98-33-A)

11. The assessment of the chance that the prospective witness will be able to give information which will materially assist the defence in its case will depend largely upon the position held by the prospective witness in relation to the events in question, any relationship he may have (or have had) with the accused which is relevant to the charges, the opportunity which he may reasonably be thought to have had to observe those events (or to learn of those events) and any statements made by him to the prosecution or to others in relation to those events.  The test would have to be applied in a reasonably liberal way but, just as in relation to such applications for access to confidential material, the defence will not be permitted to undertake a fishing expedition – where it is unaware whether the particular person has any relevant information, and it seeks to interview that person merely in order to discover whether he has any information which may assist the defence.

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Decision on Issuance of Subpoenas - 21.06.2004 HALILOVIĆ Sefer
(IT-01-48-AR73)

10. While a preparation for cross-examination is undeniably a part of the overall preparation for trial, it is not, in and of itself, a sufficient basis for an issuance of subpoena. […] In entertaining a request for a subpoena, a Trial Chamber is therefore entitled to take into account the fact that a witness whom a party seeks to subpoena is scheduled to testify during the trial, and to refuse the request where its sole rationale is to prepare for a more effective cross-examination. A subpoena involves the use of judicial power to compel, and as such, it must be used where it would serve the overall interests of the criminal process, not where it would merely facilitate a party’s task in litigation […].

[…]

12. Where a witness is listed by one party as expected to testify on its behalf with respect to certain issues, it does not necessarily follow that this witness will have no information of value to the opposing party on other issues related to the case. The opposing party may have a legitimate expectation of interviewing such witness in order to obtain this information and thereby better prepare a case for its client. To deprive this expecting party of such ability would hand an unfair advantage to the opposing party, which would be able to block its opponent’s ability to interview crucial witnesses simply by placing them on its witness list.

13. Moreover, the party which placed the witness in question on its list of witnesses may then decide not to call the witness at all. While the other party, such as the Defence in this case, could subsequently petition the Trial Chamber for a subpoena to obtain information from the witness, that party would have lost valuable time in procuring this information and may therefore end up at an unfair disadvantage with respect to the preparation of its case.

14. […] [D]uring cross-examination, the party conducting cross-examination can elicit from the witness evidence exceeding the subject-matter of the evidence-in-chief and matters affecting the credibility of the witness, provided that “the witness is able to give evidence relevant to the case for the cross-examining party.”[1] Given that during cross-examination the Defence can elicit from the Prosecution witness information which is relevant to its own case and goes beyond the scope of the Prosecution’s examination-in-chief, the Defence may have a legitimate need to interview this witness prior to trial in order to properly prepare its case.

[1] Rule 90(H)(i) of the Rules of Procedure and Evidence. 

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Appeal Judgement - 20.10.2010 KALIMANZIRA Callixte
(ICTR-05-88-A)

173. The Appeals Chamber recalls that “accomplice witnesses may have motives or incentives to implicate the accused person before the Tribunal” and that “a Chamber, when weighing the probative value of such evidence, is bound to carefully consider the totality of the circumstances in which it was tendered.”[1] The Trial Chamber noted the requirement to approach accomplice witnesses with caution.[2] It also examined the circumstances surrounding Witness BCZ’s testimony and his possible motives to falsely incriminate Kalimanzira.[3]

[1] See Muvunyi Appeal Judgement, para. 128.

[2] Trial Judgement, para. 72.

[3] Trial Judgement, paras. 608, 612.

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Appeal Judgement - 20.10.2010 KALIMANZIRA Callixte
(ICTR-05-88-A)

180. The Appeals Chamber recalls that Rule 90(A) of the Rules provides that witnesses shall be heard by the trial chamber. Prior out-of-court witness statements are normally relevant only as necessary for the trial chamber to assess credibility.[1] Witness statements used for this purpose normally bear the witness’s signature or some other indicator that their content reflects what the witness said.[2] A will-say statement, however, differs from a typical statement given by a witness. In the practice of the Tribunal, will-say statements are primarily communications from one party to another and the trial chamber concerning aspects of a witness’s anticipated testimony that were not mentioned in previously-disclosed witness statements.[3] Will-say statements are generally communicated by counsel upon learning of new details during the preparation of a witness for examination,[4] and are not necessarily acknowledged by the witness. Therefore, will-say statements have no probative value except to the extent that the witness confirms their content. In the instant case, Witness AKK explicitly repudiated the content of the unsigned will-say statement, the contents of which were allegedly unknown to her.[5] Given the lack of any explanation for why it was nonetheless acceptable to rely on the unsigned and repudiated will-say statement, the Appeals Chamber finds that the Trial Chamber erred in law in relying on the will-say statement to discredit aspects of Witness AKK’s testimony.

[1] Simba Appeal Judgement, para. 103, quoting Akayesu Appeal Judgement, paras. 134, 135.

[2] For example, some statements are transcriptions of interviews or are signed by a domestic judicial authority.

[3] See, e.g., The Prosecutor v. Aloys Simba, Case No. ICTR-01-76-T, Decision on the Admissibility of Evidence of Witness KDD, 1 November 2004 (“Simba Admissibility of Evidence Decision”), paras. 9-11.

[4] Simba Admissibility of Evidence Decision, para. 9.

[5] See [The Prosecutor v. Callixte Kalimanzira, Case No. ICTR-05-88-T] T. 26 November 2008 pp. 55-58.

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Appeal Judgement - 04.12.2012 LUKIĆ & LUKIĆ
(IT-98-32/1-A)

614. […] The Appeals Chamber, Judge Pocar and Judge Liu dissenting, considers that in-court viva voce evidence is generally more reliable than prior statements.[1] This is based on the indicia of reliability provided by cross-examination of in-court evidence. A trial chamber preferring a witness’s prior statement to his or her viva voce evidence should provide reasons for doing so. […]

[1] Cf. Akayesu Appeal Judgement, para. 134; Simba Appeal Judgement, para. 103; Renzaho Appeal Judgement, para. 469.

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Appeal Judgement - 04.12.2012 LUKIĆ & LUKIĆ
(IT-98-32/1-A)

112. The Appeals Chamber recalls that a trial chamber has a broad discretion to consider all relevant factors in determining the weight to attach to the evidence of any given witness.[1] It is within the discretion of a trial chamber to evaluate the evidence as a whole, without explaining its decision in detail.[2] Merely stating that two witnesses, who testified about two separate events, were accorded different weight by the Trial Chamber does not meet the standard of appeal.

[1] See supra [Appeal Judgement,] para. 86.

[2] Kvočka et al. Appeal Judgement, para. 23, referring to Čelebići Appeal Judgement, paras 481, 498; Kupreškić et al. Appeal Judgement, para. 32.

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Appeal Judgement - 04.12.2012 LUKIĆ & LUKIĆ
(IT-98-32/1-A)

58. Further, the Appeals Chamber notes that, on 9 December 2008, the Prosecution submitted that three potential female witnesses were unwilling to speak to the Defence Team.[1] However, once Milan Lukić had received their identifying information, he was obliged to make use of all mechanisms of compulsion available under the Statute and the Rules had he wanted to contact them.[2]

[1] Prosecutor v. Milan Lukić and Sredoje Lukić, Case No. IT-98-32/1-T, Prosecution Motion to Redact Identifying Information, 9 December 2008 (confidential with confidential Annex A), paras 3-6, 10-12, 16-17, 20.

[2] Cf. Kupreškić et al. Appeal Judgement, para. 50, referring to Prosecutor v. Duško Tadić, Case No. IT-94-1-A, Decision on Appellant’s Motion for the Extension of the Time-Limit and Admission of Additional Evidence, 16 October 1998, para. 47.

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Appeal Judgement - 04.12.2012 LUKIĆ & LUKIĆ
(IT-98-32/1-A)

128. The Appeals Chamber recalls that a trial chamber has the discretion to rely upon evidence of accomplice witnesses.[1] However, when weighing the probative value of such evidence, the trial chamber is bound to carefully consider the totality of the circumstances in which it was tendered. In particular, consideration should be given to circumstances showing that accomplice witnesses may have motives or incentives to implicate the accused person before the Tribunal or to lie.[2] This does not mean that corroboration is required.[3] However, a trial chamber must explain the reasons for accepting the evidence of an accomplice.[4]

[1] Kanyarukiga Appeal Judgement, para. 181; Setako Appeal Judgement, para. 143; Muvunyi II Appeal Judgement, para. 37; Nchamihigo Appeal Judgement, paras 47, 305.

[2] Kanyarukiga Appeal Judgement, para. 181; Setako Appeal Judgement, para. 143; Muvunyi II Appeal Judgement, para. 37; Nchamihigo Appeal Judgement, paras 42, 305. See also Blagojević and Jokiæ Appeal Judgement, para. 82.

[3] Nchamihigo Appeal Judgement, paras 46-48.

[4] Krajišnik Appeal Judgement, para. 146. See also Haradinaj et al. Appeal Judgement, para. 145.

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Appeal Judgement - 04.12.2012 LUKIĆ & LUKIĆ
(IT-98-32/1-A)

135. The Appeals Chamber recalls that minor inconsistencies commonly occur in witness testimony without rendering it unreliable.[1] It is within the discretion of a trial chamber to evaluate discrepancies and to consider the credibility of the evidence as a whole, without explaining every detail of its decision.[2] The Appeals Chamber recalls that a trial chamber is required to “carefully articulate the factors relied upon in support of the identification of the accused and adequately address any significant factors impacting negatively on the reliability of the identification evidence”.[3] A trial chamber should consider whether there is inconsistent or inaccurate testimony concerning an accused’s physical characteristics,[4] or any other evidence regarding an accused’s identity which may be decisive in a trial chamber’s decision to rely on the identification evidence.[5]

[1] Haradinaj et al. Appeal Judgement, para. 134.

[2] See supra [Appeal Judgement,] para. 112.

[3] Kupreškić et al. Appeal Judgement, para. 39.

[4] Kupreškić et al. Appeal Judgement, para. 40.

[5] See Furundžija Appeal Judgement, para. 107. 

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Appeal Judgement - 09.10.2012 GATETE Jean Baptiste
(ICTR-00-61-A)

154. The Appeals Chamber recalls that, while a witness’s status as an accomplice does not render his or her evidence unreliable per se,[1] a trial chamber must exercise appropriate caution in assessing his or her evidence.[2]

[1] Niyitegeka Appeal Judgement, para. 98.

[2] See, e.g., Kanyarukiga Appeal Judgement, para. 181; Nchamihigo Appeal Judgement, para. 42.

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Appeal Judgement - 19.05.2010 BOŠKOSKI & TARČULOVSKI
(IT-04-82-A)

59. The Appeals Chamber has repeatedly held that a Trial Chamber can reasonably accept certain parts of a witness’s testimony and reject others.[1]

[1] Krajišnik Appeal Judgement, para. 354; Blagojević and Jokić Appeal Judgement, para. 82; Kupreškić et al. Appeal Judgement, para. 333. See also Seromba Appeal Judgement, para. 110; Ntagerura et al. Appeal Judgement, para. 214; Kamuhanda Appeal Judgement, para. 248.

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Decision on Admission of Exhibits - 15.04.2008 DELIĆ Rasim
(IT-04-83-AR73.1)

The Prosecution sought to confront a Defence witness, during cross-examination, with two documents. Delić objected on the basis that these documents were not included in the list of exhibits the Prosecution intended to offer under Rule 65 ter(E)(iii) of the Rules of Procedure and Evidence. Following the cross-examination of the witness on the content of the two documents, the Trial Chamber proceeded to admit them into evidence. Delić appealed the admission because it was done during the Defence case. The Appeals Chamber found:

20. According to Rule 89(C) of the Rules, a “Chamber may admit any relevant evidence which it deems to have probative value”. More specifically, Rule 90(F)(i) of the Rules states that a “Trial Chamber shall exercise control over the mode and order of interrogating witnesses and presenting evidence so as to (i) make the interrogation and presentation effective for the ascertainment of the truth; and (ii) avoid needless consumption of time”.  Within the discretion afforded to it, a Trial Chamber may admit any evidence which it deems relevant and of probative value, provided that the right of the accused to a fair trial is ensured in the process.[1]

21. In the present case, the Prosecution contends that it could not have ascertained the importance of the Exhibits until Delić had disclosed its own list of witnesses pursuant to Rule 65 ter (G)(i). However, the Prosecution did not proceed to disclose the Exhibits immediately after this list was filed, but just prior to the beginning of the testimony of [the] witness […]

22. In these circumstances, the Appeals Chamber notes that the Impugned Decision does not clarify whether the Exhibits were admitted as evidence probative of guilt or only for impeachment purposes of the witness in question. This may cause confusion, prejudicing Delić in the organization of his case. According to the principles enshrined in the Statute – in particular in Article 21(4)(b) and (e) – on the rights of the accused, when evidence is tendered by the Prosecution there must be a fair opportunity for the accused to challenge it; this is all the more true if evidence is tendered after the close of the Prosecution case. In situations where the accused opposes the admission of evidence during cross-examination due to alleged breach of his right to a fair trial, a Trial Chamber must consider how it intends to strike the appropriate balance between the need to ensure the rights of the accused and its decision to admit such evidence.

23. The Trial Chamber therefore erred in not specifying the purpose for which the Exhibits were admitted despite the request by Delić and, consequently, in not addressing how the prejudice caused by the admission of the Exhibits, if any, could be redressed. Only after having considered the mode of disclosure of the documents in question, the purpose of their admission, the time elapsed between disclosure and examination of the witness, the languages known to Counsel and the accused, as well as any other relevant factual considerations, the Trial Chamber will be able to provide a reasoned opinion on the prejudice, if any, caused by the admission of the Exhibits and on the measures to address such prejudice – for example providing more time for cross-examination, adjourning the session, or granting the possibility of re-calling the witness if Delić shows it is necessary. Having failed to give sufficient weight to relevant considerations in reaching its decision, the Trial Chamber committed a discernible error.

[1] Rule 89(D) of the Rules.

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ICTY Rule Rule 89(C);
Rule 90(F)
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Appeal Judgement - 09.05.2007 BLAGOJEVIĆ & JOKIĆ
(IT-02-60-A)

27. In the Galić Appeal Judgement, the Appeals Chamber confirmed that an accused has the right to appear as a witness in his defence.[1] The Appeals Chamber equally determined that this right does not prevent a Trial Chamber from exercising its authority to control the conduct of a trial by imposing conditions on the right to appear as a witness, provided these conditions do not unreasonably interfere with the right to testify.[2]

28. In the present case, the only condition imposed on Blagojević’s right to testify was that his assigned counsel would be responsible for examining him. The Appeals Chamber notes that Blagojević stated that he would answer questions put to him by the parties that “incorporate[ed] the examination-in-chief and cross-examination”[3] and that he needed assistance in preparing for his testimony.[4] In these circumstances, it was not unreasonable for the Trial Chamber to require Blagojević to be examined by his assigned counsel if he chose to testify, notwithstanding his persistent refusal to communicate with Mr. Karnavas. The Appeals Chamber is of the view that the Trial Chamber made extensive efforts to ensure that Blagojević was advised of the consequences of testifying and was given the opportunity to testify or otherwise be heard before the end of the case.[5] It was Blagojević’s unjustified and unilateral refusal to communicate with his assigned counsel that resulted in his failure to testify, rather than any action or unjustified restriction imposed on his right by the Trial Chamber.

29. Therefore, the Appeals Chamber is not satisfied that the conditions placed by the Trial Chamber on Blagojević’s right to testify on his own behalf, namely that his counsel conduct the examination, so unreasonably interfered with his right to testify that his right to a fair trial was infringed.

[1] Galić Appeal Judgement, paras. 19, 22.

[2] Galić Appeal Judgement, paras. 19, 20, 22. In the Galić Appeal Judgement, the restriction at issue related to the timing of the accused’s testimony.

[3] T. 12267.

[4] Blagojević and Jokić, Decision on Vidoje Blagojević’s Oral Request [Prosecutor v. Vidoje Blagojevic and Dragan Jokic, Case No. IT-02-60-A, Decision on Vidoje Blagojevic's Oral Request, 30 July 2004], pp. 7-8, 10.

[5] The Trial Chamber also offered Blagojević the opportunity to make a sworn or unsworn statement under the control of the Trial Chamber. Blagojević explained to the Trial Chamber that he did not want to pursue this option because the Trial Chamber indicated that it might not carry the same weight as testimony given under oath and subject to cross-examination and further inquiry from the Trial Chamber. See Blagojević and Jokić, Decision on Vidoje Blagojević’s Oral Request [Prosecutor v. Vidoje Blagojevic and Dragan Jokic, Case No. IT-02-60-A, Decision on Vidoje Blagojevic's Oral Request, 30 July 2004], pp. 7, 10. However, the Appeals Chamber observes that, in explaining that the statement might carry less weight, the Trial Chamber referred specifically to the situation where a statement would be unsworn. In addition, in making its observation, the Trial Chamber did not state that it would definitively accord such a statement less weight, in particular if it were sworn. Blagojević has made no submissions suggesting that this would have been an unreasonable alternative to being examined by his counsel or that it would fail to satisfy his right to appear as a witness in his defence.

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Appeal Judgement - 14.12.2011 NTAWUKULILYAYO Dominique
(ICTR-05-82-A)

21. The Appeals Chamber recalls that a Trial Chamber has full discretion to assess the appropriate credibility and weight to be accorded to the testimony of a witness;[1] corroboration is one of many potential factors relevant to this assessment.[2] A Trial Chamber retains discretion to decide, in the circumstances of each case, whether corroboration of evidence is necessary and to rely on uncorroborated, but otherwise credible, witness testimony.[3]

[…]

24. Nevertheless, the Appeals Chamber recalls that two prima facie credible testimonies need not be identical in all aspects or describe the same fact in the same way in order to be corroborative.[4] Every witness presents what he has seen from his own point of view at the time of the events, or according to how he understood the events recounted by others.[5] It follows that corroboration may exist even when some details differ between testimonies, provided that no credible testimony describes the facts in question in a way which is not compatible with the description given in another credible testimony.[6]

[1] Nchamihigo Appeal Judgement, para. 47; Muvunyi Appeal Judgement of 1 April 2011, para. 56; Nahimana et al. Appeal Judgement, para. 194.

[2] Nchamihigo Appeal Judgement, para. 47; Simba Appeal Judgement, para. 24, quoting Ntakirutimana Appeal Judgement, para. 132.

[3] Karera Appeal Judgement, para. 45. See also Renzaho Appeal Judgement, para. 556; Nchamihigo Appeal Judgement, para. 42; Muvunyi Appeal Judgement of 29 August 2008, para. 128.

[4] Munyakazi Appeal Judgement, para. 103; Bikindi Appeal Judgement, para. 81, citing Nahimana et al. Appeal Judgement, para. 428.

[5] Munyakazi Appeal Judgement, para. 103, citing Nahimana et al. Appeal Judgement, para. 428; Bikindi Appeal Judgement, para. 81; Karera Appeal Judgement, paras. 173, 192.

[6] Munyakazi Appeal Judgement, para. 71, citing Nahimana et al. Appeal Judgement, para. 428; Setako Appeal Judgement, para. 31; Rukundo Appeal Judgement, para. 201; Bikindi Appeal Judgement, para. 81.

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Appeal Judgement - 04.12.2001 KAYISHEMA & RUZINDANA
(ICTR-95-1-A)

115.    […] [I]t is the duty of the trial Judges to hear, assess and weigh the evidence adduced by the parties at the hearing.[1] The Trial Chamber thus determines if a witness is credible and if the evidence presented is reliable.[2]

[…]

129.    The Appeals Chamber affirms once again that it is incumbent on the Trial Chamber to assess the credibility of a witness as well as the reliability of the evidence given by the parties.  Therefore, the Appeals Chamber cannot and must not set aside the Trial Judge’s findings except when a reasonable court would not have relied on the evidence for its decision or when the assessment of the evidence is completely erroneous.  The Appeals Chamber stresses that it is the duty of the Trial Chamber to determine the probative value of each exhibit or witness testimony, based on their relevance and credibility.

[…]

187.    […] As held by the Appeals Chamber in the Tadić Appeal Judgement,[3] the Aleksovski Appeal Judgement[4] and the Čelebići Appeal Judgement,[5] the Trial Chamber is best placed to hear, assess and weigh the evidence, including witness testimonies presented at trial. Whether a Trial Chamber will rely upon a single witness testimony as proof of a material fact, will depend on various factors that have to be assessed in light of the circumstances of each case. The Appeals Chamber therefore has to give a margin of deference to the Trial Chamber’s evaluation of the evidence presented at trial.

[…]

222.    As regards the impugned demeanour of certain witnesses which should have “reasonably” caused the Trial Chamber to disqualify them, the Appeals Chamber is of the view that the trial judges are in the most appropriate position to assess the credibility of a testimony and the demeanor of a witness at a hearing. […]

[…]

230.    Moreover, it is for the trier of fact to assess the probative value of a testimony, such discretionary power also covering the manner in which the Trial Chamber decides to deal with apparent contradictions. […]

[…]

319.    […] [I]t is neither possible nor proper to draw up an exhaustive list of criteria for the assessment of evidence, given the specific circumstances of each case and the duty of the judge to rule on each case in an impartial and independent manner.[6] The Appeals Chamber concurs with the argument of the Trial Chamber that it is “for the Trial Chamber to decide upon the reliability of the witness’ testimony in light of its presentation in court and after its subjection to cross-examination.”[7]

[…]

325.    […] The Appeals Chamber affirms that in a case where there are two conflicting testimonies, it falls to the Trial Chamber, before which the witnesses testified, to decide which of the testimonies has more weight.

[1] Tadić Appeal Judgement, 1999, para. 64.

[2] Aleksovski Appeal Judgement, 2000, para. 63

[3] Tadić Appeal Judgement, para. 65.

[4] Aleksovski Appeal Judgement, para. 63.

[5] Čelibići Appeal Judgement, para. 506.

[6] Cf. supra, para. 54 et seq. on the independence of  the Tribunal.

[7] Trial Judgement, para. 70.

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ICTR Statute Article 24 ICTY Statute Article 25
Notion(s) Filing Case
Decision on Additional Evidence - 16.10.1998 TADIĆ Duško
(IT-94-1-A)

36.     Rule 115 (A) provides that a “party may apply by motion to present before the Appeals Chamber additional evidence which was not available to it at the trial”. That relates to appeals. Rule 119 enables a party to seek a review “[w]here a new fact has been discovered which was not known to the moving party at the time of the proceedings before a Trial Chamber or the Appeals Chamber, and could not have been discovered through the exercise of due diligence”. The Appellant submits that the reference to “diligence” in the latter but not in the former means that diligence is not required under Rule 115. However, whilst the Rules can illustrate the meaning of the Statute under which they are made, they cannot vary the Statute. If there is a variance, it is the Statute which prevails. But, for the reasons explained below, there is no variance in this case. In the view of the Appeals Chamber, there is a requirement for the exercise of due diligence by a party moving under Rule 115.

37.     Article 25, paragraph 1, of the Statute provides for appeals on two grounds, namely, “an error on a question of law invalidating the decision” and “an error of fact which has occasioned a miscarriage of justice”. The first error is clearly an error committed by the Trial Chamber. That, in principle, would seem to be also the case with the second error. But it is difficult to see how the Trial Chamber may be said to have committed an error of fact where the basis of the error lies in additional evidence which, through no fault of the Trial Chamber, was not presented to it. Where evidence was sought to be presented to the Trial Chamber but was wrongly excluded by it, there is no need for recourse to the provisions relating to the production of additional evidence to the Appeals Chamber; there the Trial Chamber would have committed an error appealable in the ordinary way.

38.     It is only by construing the reference to “an error of fact” as meaning objectively an incorrectness of fact disclosed by relevant material, whether or not erroneously excluded by the Trial Chamber, that additional material may be admitted. Such an extension of the concept of an “error of fact” as being not restricted to an error committed by the Trial Chamber may be required by justice; but justice would also require the accused to show why the additional evidence could not be presented to the Trial Chamber in exercise of the rights expressly given to him by the Statute. It would be right to hold that the purpose of the Statute in giving those rights was that the accused should exercise due diligence in utilising them. This would exclude cases in which the failure to exercise those rights was due to lack of diligence.

[…]

40.     The compulsory and protective machinery of the International Tribunal may not always be able to give total assurance that witnesses will be both available and protected if necessary. That is all the more reason why the machinery at the disposal of the International Tribunal should be used. A party seeking leave to present additional evidence should show that it has sought protection for witnesses from the Trial Chamber where appropriate, and that it has requested the Trial Chamber to utilise its powers to compel witnesses to testify if appropriate. Any difficulties, including those arising from intimidation or inability to locate witnesses, should be brought to the attention of the Trial Chamber.

[…]

42.     By the time proceedings have reached the Appeals Chamber, evidence relevant to the culpability of the accused has already been submitted to a Trial Chamber to enable it to reach a verdict and a sentence, if he is found guilty. From the judgement of the Trial Chamber there lies an appeal to the Appeals Chamber. The corrective nature of that procedure alone suggests that there is some limitation to any additional evidentiary material sought to be presented to the Appeals Chamber; otherwise, the unrestricted admission of such material would amount to a fresh trial. Further, additional evidence should not be admitted lightly at the appellate stage, considering that Rule 119 provides a remedy in circumstances in which new facts are discovered after the trial.

43.     Consideration may be given to the consequences of the opposite holding that additional evidence may be presented to the Appeals Chamber even where, through lack of diligence, it was not presented to the Trial Chamber though available. The Prosecutor can appeal from an acquittal. She may seek to reverse the acquittal on the basis of an error of fact disclosed by additional evidence. If the additional evidence was available to her but not presented to the Trial Chamber through lack of diligence, the accused is in effect being tried a second time. In substance, the non bis in idem prohibition is breached.

44.     The Appeals Chamber therefore finds that the position under the Statute is as indicated above and cannot be cut down by reference to any apparent discrepancy in the wording of Rules 115 and 119 of the Rules. The word “apparent” is used because, on a proper construction, Rule 115 is to be read in the light of the Statute; it is therefore subject to requirements of the Statute which have the effect of imposing a duty to be reasonably diligent. Where evidence is known to an accused person, but he fails through lack of diligence to secure it for the Trial Chamber to consider, he is of his own volition declining to make use of his entitlements under the Statute and of the machinery placed thereunder at his disposal; he certainly cannot complain of unfairness.

45.     In summary, additional evidence is not admissible under Rule 115 in the absence of a reasonable explanation as to why it was not available at trial. Such an explanation must include compliance with the requirement that the moving party exercised due diligence. This conclusion is consistent with the Statute and with the jurisprudence of many countries; it is not, however, dependent on that jurisprudence.

[…]

3.       Material which existed at trial but of which the Defence was unaware

[…]

58.     […] While the Defence is required to use due diligence to identify and seek out witnesses, there are limits to this obligation. The Appeals Chamber finds that the Appellant has provided sufficient indication that these witnesses and materials were unknown to the Defence, despite the exercise of due diligence, and thus not available at the time of trial […].

4.       Material which the Appellant was unable to adduce at trial

59.     This category relates to witnesses of whom the Defence was aware at the time of trial but whose evidence they were unable to produce. The material under this heading may be divided into three sub-categories: witnesses who were unwilling or unable to come forward at the trial stage, for example, witnesses who were imprisoned at the time; witnesses alleged to have been intimidated; and potential witnesses who could not be located at the time of trial.

60.     First, then, there is the category of potential witnesses who were simply unwilling to come forward at the trial stage but are now willing to do so at the appeal stage. […] No evidence has been submitted to the Appeals Chamber to indicate that any request was made to the Trial Chamber for the issue of subpoenas to compel the attendance of these witnesses. Despite the obvious practical difficulties in obtaining the evidence of such witnesses, a party cannot later seek to have such material admitted as additional evidence unavailable at trial unless it has raised the issue with the Trial Chamber at the time. As discussed above, the requirement of due diligence is not satisfied where there is insufficient attempt to invoke such coercive measures as were at the disposal of the International Tribunal. Therefore, it cannot be said that the evidence of these three witnesses was not available at trial.

[…]

62.     The second category is a substantial one. It relates to potential witnesses who were known to the Defence at the time of trial but who are said to have been intimidated by persons in authority in the former Yugoslavia. […] Again, in the absence of any evidence to demonstrate that attempts were made to obtain such protection for these witnesses as the International Tribunal could offer, the Appeals Chamber finds that reasonable diligence was not exercised. Consequently, the testimony of these witnesses cannot be said to have been unavailable at trial.

[RULE 115 OF THE ICTY RULES WAS SUBSEQUENTLY AMENDED ON 12 July 2002, 30 September 2002, and 21 July 2005]

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ICTR Statute Article 24 ICTY Statute Article 25 ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Additional Evidence - 16.10.1998 TADIĆ Duško
(IT-94-1-A)

2.       Material not in existence at the time of the trial

[…]

63.     The third category concerns potential witnesses who were known to the Defence but who could not be located at the time of trial. […] The Appellant claims that all three of these witnesses had fled abroad and could not be located. In view of the difficulties facing defence counsel in locating such witnesses, the Appeals Chamber finds that the Appellant has provided sufficient indication that these witnesses were not available at the time of trial. […]

[RULE 115 OF THE ICTY RULES WAS SUBSEQUENTLY AMENDED ON 12 July 2002, 30 September 2002, and 21 July 2005]

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Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

174. Rule 73bis(E) of the Rules provides that after the commencement of the trial, the Prosecutor, if he considers it to be in the interests of justice, may move the trial chamber for leave to reinstate the list of witnesses or to vary his decision as to which witnesses are to be called. The rule does not impose a time limit to validly raise a request under this provision. However, the jurisprudence of both the Tribunal and the ICTY indicates that, when assessing whether it is in the interests of justice to permit the Prosecution to vary its witness list, the trial chamber shall take into account the potential prejudice to the Defence and the stage of the proceedings among other factors.[1] The Appeals Chamber nonetheless emphasises that decisions concerning the variation of a party’s witness list are among the discretionary decisions of the trial chamber to which the Appeals Chamber must accord deference.[2]

[…]

178. […] [T]he purpose of Rule 73bis(E) of the Rules is to allow the Prosecution to correct its prior assessment of which witnesses to call “after the commencement of [t]rial”. Nothing in Rule 73bis(E) of the Rules requires that the addition of new witnesses be conditioned upon the removal of witnesses who were expected to testify about the same facts.[3] […]

179. […] Furthermore, while the Appeals Chamber observes that trial chambers of the ICTY have previously emphasised considerations such as the stage of the proceedings and the justification provided in support of requests for the amendment of witness lists,[4] the Appeals Chamber finds that Ntahobali’s reliance on the Mrkšić et al. decisions is not pertinent. The Appeals Chamber stresses that the manner in which the discretion to manage trials is exercised by a trial chamber should be determined in accordance with the case before it; what is reasonable in one trial is not automatically reasonable in another.[5] The question of whether a trial chamber abused its discretion should not be considered in isolation, but rather by taking into account all relevant circumstances of the case at hand.[6] It can therefore not be held that granting a request for the addition of witnesses in the last stages of a party’s presentation of its case is per se unreasonable and prejudicial to the opposing party; such an assessment rather requires a careful balancing of various interests and circumstances on a case-by-case basis.

[1] See Prosecutor v. Zdravko Tolimir, Case No. IT-05-88/2-T, Decision on Prosecution’s Motion for Leave to Amend the Rule 65ter Witness List and for Disclosure of an Expert Witness Report Pursuant to Rule 94bis, 31 August 2010, para. 4; Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Decision on Prosecution’s Motion for Leave to Amend Its Witness List to Add Witness KDZ597, 1 July 2010, para. 5; Prosecutor v. Momčilo Perišić, Case No. IT‑04-81-T, Decision on Prosecution’s Motion to Substitute Expert Witness, 30 October 2009 (“Perišić 30 October 2009 Decision”), para. 6; Prosecutor v. Vlastimir Đorđević, Case No. IT-05-87/1-T, Decision on Prosecution’s Motion to Add Milan Đaković to the Rule 65ter Witness List, 21 May 2009 (“Đorđević 21 May 2009 Decision”), para. 6; The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Decision on Prosecutor’s Motion for Leave to Vary the Witness List Pursuant to Rule 73bis(E), 21 May 2004, para. 13. See also The Prosecutor v. Augustin Ndindiliyimana et al., Case No. ICTR-2000-56-T, Decision on Prosecution Motion to Vary Its List of Witnesses: Rule 73 bis (E) of the Rules, 11 February 2005, paras. 22, 23.

[2] See Augustin Ngirabatware v. The Prosecutor, Case No. ICTR-99-54-AR73(C), Decision on Ngirabatware’s Appeal of the Decision Reducing the Number of Defence Witnesses, 20 February 2012 (“Ngirabatware Appeal Decision”), para. 12; The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-AR73, Decision on Joseph Kanyabashi’s Appeal Against the Decision of Trial Chamber II of 21 March 2007 Concerning the Dismissal of Motions to Vary His Witness List, 21 August 2007 (“21 August 2007 Appeal Decision”), para. 10; Prosecutor v. Milan Milutinović et al., Case No. IT-05-87-AR73.1, Decision on Interlocutory Appeal Against Second Decision Precluding the Prosecution from Adding General Wesley Clark to Its 65ter Witness List, 20 April 2007 (“Milutinović et al. Appeal Decision”), paras. 9, 10.

[3] See The Prosecutor v. Augustin Ngirabatware, Case No. ICTR-99-54-T, Decision on Prosecution Motion for Leave to Vary Its Witness List, 28 January 2010, para. 50, referring to The Prosecutor v. Augustin Ndindiliyimana et al., Case No. ICTR-2000-56-T, Decision on Sagahutu’s Request to Vary His Witness List, 26 May 2008, paras. 5, 6.

[4] See, e.g., Perišić 30 October 2009 Decision, para. 6; Đorđević 21 May 2009 Decision, para. 5; Prosecutor v. Milan Lukić and Sredoje Lukić, Case No. IT-98-32/1-T, Decision on Prosecution’s Motion to Amend Prosecution’s Witness List (Dr. Fagel), 3 November 2008, p. 3.

[5] Haradinaj et al. Appeal Judgement, para. 39.

[6] Haradinaj et al. Appeal Judgement, para. 39.

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ICTR Rule Rule 73bis(E) ICTY Rule Rule 73bis(F)
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Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

1405.            With respect to Ntahobali’s argument regarding the lack of caution exercised by the Trial Chamber in assessing his co-accused’s evidence, the Appeals Chamber considers that Ntahobali does not demonstrate that the Trial Chamber was required, as a matter of law, to treat all the evidence presented by his co-accused with caution[1] […]

See also para. 1292.

[1] Ntahobali again simply refers to a paragraph in the Nchamihigo Appeal Judgement, which concerns the treatment of accomplice witness evidence. However, Ntahobali does not demonstrate that any witness he contends the Trial Chamber failed to treat with caution was an accomplice witness whose evidence required a cautious assessment. See Ntahobali Appeal Brief, para. 412, referring to Nchamihigo Appeal Judgement, para. 46.

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Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

140. Turning to Nyiramasuhuko’s contention that Judge Bossa could not assess the demeanour of witnesses based on the audio-recordings, the Appeals Chamber is of the view that the importance of observing first-hand the demeanour of witnesses in court cannot be discounted on the ground that audio-recordings exist. Although the preference for live testimony to be heard by each judge does not represent an “unbending requirement”,[1] the Appeals Chamber is not convinced that audio‑recordings alone allow a substitute judge to thoroughly assess all aspects of the witness’s demeanour in court, in particular when the judge is not proficient in the language spoken by the witness.[2]

[…]

148.  The Appeals Chamber is of the view that transcripts or audio recordings of a witness’s testimony in court do not necessarily always allow a judge to assess thoroughly the witness’s possible aggressiveness, reluctance to answer questions, lack of emotion, silences, and arrogance. […]

164.  The Appeals Chamber reiterates that, while there is a clear preference for live testimony to be heard by each and every judge, this preference does not represent an unbending requirement.[3] […]

[1] The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR15bis.3, Decision on Appeals pursuant to Rule 15bis(D), 20 April 2007 (“Karemera et al. 20 April 2007 Appeal Decision”), para. 42, quoting Appeal Decision on Continuation of Trial [The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A15bis, Decision in the Matter of Proceedings under Rule 15bis(D), 24 September 2003], para. 25. See also Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-AR15bis, Decision on Appeal Against Decision on Continuation of Proceedings, 6 June 2014, para. 37; Appeal Decision on Continuation of Trial, para. 33 (“But [the substitute judge] may feel that, even in the absence of video‑recordings, the record of proceedings is enough to enable him to appreciate what has happened. Failure to review video-recordings which, because they are non-existent, do not form part of the record of the proceedings, does not mean that the judge has not familiarized himself with the record of the proceedings as the record stands and therefore does not disqualify him from joining the bench. He may decide to join the bench with any questions of demeanour being left to be resolved”.).

[2] The Appeals Chamber notes that the Oxford Dictionary defines “demeanour” as the “manner of comporting oneself outwardly or towards others”.

[3] See supra, para. 140.

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Decision on Additional Evidence - 30.06.2005 GALIĆ Stanislav
(IT-98-29-A)

73.     The Appeals Chamber notes that it is normal for a witness who testified in several trials about the same event or occurrence to focus on different aspects of that event, depending on the identity of the person at trial and the questions posed to the witness.[1] Therefore, not every discrepancy may undermine a witness’s credibility. […]

[1] Prosecutor v. Elizaphan and Gérard Ntakirutimana, Case Nos. ICTR 96-10-A and ICTR-96-17-A, Reasons for the Decision on Request for Admission of Additional Evidence, 8 September 2004, para. 31.

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Appeal Judgement - 28.09.2011 MUNYAKAZI Yussuf
(ICTR-97-36A-A)

85. […] As the Appeals Chamber has previously stated, “to suggest that if something were true a witness would have included it in a statement or a confession letter is obviously speculative and, in general, it cannot substantiate a claim that a Trial Chamber erred in assessing the witness’s credibility.”[1]

[1] Kajelijeli Appeal Judgement, para. 176.

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Decision on Review - 12.03.2009 NIYITEGEKA Eliézer
(ICTR-96-14-R)

22. The Appeals Chamber further recalls that the term “new fact” refers to new evidentiary information supporting a fact that was not in issue during the trial or appeal proceedings.[1] The requirement that the fact was not in issue during the proceedings means that “it must not have been among the factors that the deciding body could have taken into account in reaching its verdict.”[2] Essentially, the moving party must show that the Chamber did not know about the fact in reaching its decision.[3]

47. This being said, the Appeals Chamber does not find it necessary to order Niyitegeka to file the Additional Statements or information concerning the identity of their authors. Niyitegeka makes clear that, in his view, the information contained in the Additional Statements reveals that Witness GGV was not credible. The Appeals Chamber notes that Witness GGV’s credibility is a matter that was litigated at trial and on appeal. While the Additional Statements may constitute material of an evidentiary nature, in light of what Niyitegeka discloses of their content they do not constitute “new facts” within the meaning of Article 25 of the Statute. Accordingly, Niyitegeka’s attempt to have them admitted as new facts for the purposes of review is bound to fail.  

[1] Third Review Decision, para. 14; Rutaganda Review Decision, para. 9; Blaškić Review Decision, paras. 14, 15; Tadić Review Decision, para. 25.

[2] Third Review Decision, para. 14; Rutaganda Review Decision, para. 9; Blaškić Review Decision, paras. 14, 15; Tadić Review Decision, para. 25.

[3] Third Review Decision, para. 14; Rutaganda Review Decision, para. 9; Blaškić Review Decision, para. 14.

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Decision on Review - 19.03.2009 NALETILIĆ Mladen
(IT-98-34-R)

25. The Appeals Chamber further recalls that the term “new fact” for the purposes of review refers to new evidentiary information supporting a fact that was not in issue or considered in the original proceedings.[1] Accordingly, as the issue of Simang’s credibility was considered during the trial and appeal proceedings in light of allegations regarding the promises made by the Prosecution to Simang and Mrachaz, the Appeals Chamber finds that the Applicant has failed to demonstrate that the evidence submitted in the Application regarding Simang’s credibility constitutes a new fact for the purposes of review.[2]

[1] See supra, para. 11, fn. [4].

[2] See Prosecutor v. Tholimir Blaškić, Case No. IT-95-14-R, Confidential Decision on Prosecutor’s Request for Review or Reconsideration, 23 November 2006, paras 15-17, 60-61. See also, Rutaganda Review Decision, paras 15-17, where the Appeals Chamber found that some information concerning the credibility of two witnesses constituted new facts, notwithstanding the circumstance that those witnesses’ credibility was already litigated throughout the case. In the Rutaganda Decision, the Appeals Chamber based its finding on the circumstance that, in contrast to the present case, the allegations presented by the moving party in relation to witness credibility were not in issue during the original proceedings and amounted to new facts.

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Appeal Judgement - 29.09.2014 NZABONIMANA Callixte
(ICTR-98-44D-A)

93.     […] The Appeals Chamber again recalls that a trial chamber has full discretion to assess witness credibility,[1] and notes that a witness’s criminal history may be a factor in assessing credibility.[2] […] 

[1] See supra, para. 45.

[2] Cf. Bagosora and Nsengiyumva Appeal Judgement, para. 264; Kamuhanda Appeal Judgement, para. 142. 

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Decision on Pseudonyms of Witnesses - 22.05.2017 KARADŽIĆ Radovan
(MICT-13-55-A)

Pages 3-4:

RECALLING that, pursuant to Rule 71(B) of the Rules, the Prosecution shall, on request, permit the Defence to inspect any books, documents, photographs, and tangible objects in its custody or control, which are material to the preparation of the defence;

CONSIDERING, that the pseudonyms that Karadžić wishes to inspect are not books, documents, photographs, or tangible objects in the Prosecution’s custody or control, but rather information contained in confidential and ex parte filings;

FINDING, therefore, that Rule 71(B) of the Rules is not applicable;

[…]

CONSIDERING that disclosing pseudonyms of protected witnesses in this case who were the subject of Rule 86 proceedings may reveal details about non-public investigations in other jurisdictions[1] which were communicated to the Mechanism on a confidential and ex parte basis;

[1] See Response [Prosecutor v. Radovan Karadžić, Case No. MICT-13-55-A, Prosecution’s Response to Karadžić Motion to Compel Inspection of Pseudonyms of Witnesses Subject to Ex Parte Rule 86 Proceedings, 25 April 2017], para. 8. 

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Decision on an Appeal of a Decision Rendered by a Single Judge - 06.10.2017 KAMUHANDA Jean de Dieu
(MICT-13-33)

14.     The Appeals Chamber recalls the generally accepted principle that the interpretation and implementation of protective measures should be the least restrictive necessary to provide for the protection of victims or witnesses.[1]

15.     […] the Appeals Chamber observes that the contested language releases the Mechanism and the WISP from accountability for any moral or material prejudice the witness might suffer whether he or she consents to the interview or does not and, therefore, prima facie, it neither encourages nor discourages a witness from consenting to an interview.[2] In addition, Kamuhanda’s contention that the impugned provision necessarily discouraged the witness from agreeing to an interview is not supported by Witness GEK’s explanation for not consenting to the interview. Witness GEK declined the request for the interview not because of the contested language, having to express an understanding that the witness could not hold the Mechanism responsible for his or her decision, but rather because of fears for safety.[3] […]

[1] The Prosecutor v. Théoneste Bagosora et al., Case Nos. ICTR-98-41-AR73 & ICTR-98-41-AR73(B), Decision on Interlocutory Appeals of Decision on Witness Protection Orders, 6 October 2005, para. 19.

[2] Registrar’s Submission [Registrar’s Submission Pursuant to Order of 8 June 2017, 21 June 2017 (confidential)], Annex, RP. 2/1554bis (“I fully understand the meaning and implications of my personal decision and therefore commit myself, through this document, not to hold WISP and the Mechanism in general accountable for any moral and material prejudice which I might suffer from my decision as to whether to participate in such an interview.”) (Emphasis added).

[3] See Registrar’s Submission, Annex, RP. 1/1554bis (“I fear for my safety because even when I appeared before the Tribunal previously, I did so as a protected witness. If they want to interview me, I am prepared to meet with them in court. In all other respects, my response is no.”).

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MICT Rule Rule 86