Evidence

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

1103. […] The Appeals Chamber considers that the component pieces of circumstantial evidence on the issue of identification are to be considered in relation to all other pieces of circumstantial evidence bearing on the issue, and not in isolation.[1] Whereas the assessment of an evidentiary factor in a vacuum might fail to establish an essential matter, the weight of all relevant evidence taken together can conclusively prove the same matter beyond reasonable doubt.[2] […]

See also para. 1150.

[1]           See Limaj et al. Appeal Judgement, para. 153.

[2]           See Limaj et al. Appeal Judgement, para. 153.

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

79. […] The Appeals Chamber recalls that trial chambers have the discretion to bar the testimony of an expert witness called to give evidence on legal matters.[1] […]

[1]           Nahimana et al. Appeal Judgement, paras 292-294. See also Šainović et al. Appeal Judgement, para. 1295; Renzaho Appeal Judgement, para. 289.

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

375. […] The Appeals Chamber recalls that the purpose of expert testimony is to supply specialised knowledge that might assist the trier of fact in understanding the evidence before it, and that in the ordinary case an expert witness offers a view based on specialised knowledge regarding a technical, scientific or otherwise discrete set of ideas or concepts that is expected to fall outside the lay person’s ken.[1] […]

[1]           Nahimana et al. Appeal Judgement, para. 198, citing Semanza Appeal Judgement, para. 303.

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

1307. […] The Appeals Chamber recalls that a trial chamber has the discretion to rely on hearsay evidence.[1] It is settled that the weight and probative value to be afforded to hearsay evidence will ultimately depend upon “the infinitely variable circumstances which surround hearsay evidence”.[2] […]

[1]           See supra, note 3687.

[2]           Karera Appeal Judgement, para. 39. See Kalimanzira Appeal Judgement, para. 96.

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

382. The Appeals Chamber recalls that where a finding of guilt is made on the basis of identification evidence given by a witness under difficult circumstances, the Trial Chamber needs 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”.[1] The Appeals Chamber stresses that this is required only when a witness’s identification was made under difficult circumstances, such as in the dark or as a result of a fleeting glance.[2] […]

392. […] The Appeals Chamber recalls that identification hearsay evidence may, depending on the circumstances of the case, require other credible or reliable evidence in order to support a finding of fact beyond reasonable doubt.[3] […]

[1]           Lukić and Lukić Appeal Judgement, para. 136 (emphasis omitted); Haradinaj et al. Appeal Judgement, para. 152; Kupreškić et al. Appeal Judgement, para. 39.

[2]           Renzaho Appeal Judgement, para. 531, referring to Kupreškić et al. Appeal Judgement, paras 34, 39-40. See also Lukić and Lukić Appeal Judgement, para. 137; Gatete Appeal Judgement, para. 193.

[3]           See Renzaho Appeal Judgement, para. 534. See also Lukić and Lukić Appeal Judgement, paras 387, 577.

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

90. […] “[T]he probative value of a document may be assessed differently in different cases, depending on the circumstances”.[1] […]

[1]           Simba Appeal Judgement, para. 132. See Bizimungu Appeal Judgement, para. 210.

Download full document
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.

Download full document
ICTR Rule Rule 92 bis ICTY Rule Rule 92 bis
Notion(s) Filing Case
Decision on Evidence of Milan Babić - 14.09.2006 MARTIĆ Milan
(IT-95-11-AR73.2)

6. It is well established in the jurisprudence of the International Tribunal that Trial Chambers exercise discretion in relation to the admissibility of some types of evidence, as well as in defining the modalities of cross-examination and the exercise of this right by the Defence.[1] The Trial Chamber’s decision in this case to retain the evidence of Witness Milan Babić pursuant to Rule 89(D) following his death was a discretionary decision to which the Appeals Chamber accords deference. Such deference is based on the recognition by the Appeals Chamber of “the Trial Chamber’s organic familiarity with the day-to-day conduct of the parties and practical demands of the case.”[2]

[1] 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 Decision on Cross-Examination”), p. 3; Prosecutor v. Zdravko Tolimir et al., Case No. IT-04-80-AR73.1, Decision on Radivoje Miletić’s Interlocutory Appeal Against the Trial Chamber’s Decision on Joinder of Accused, 27 January 2006 (“Decision on Radivoje Miletić’s Interlocutory Appeal”) para. 4; Prosecutor v. Milošević, Case Nos.: IT-99-37-AR73, IT-01-50-AR73, IT-01-51-AR73, Reasons for Decision on Prosecution Interlocutory Appeal from Refusal to Order Joinder, 18 April 2002 (“Milošević Decision on Joinder”), para. 3.

[2] Decision on Radivoje Miletić’s Interlocutory Appeal, para. 4; Prosecutor v. Milošević, Case No. IT-02-54-AR73.7, Decision  on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defense Counsel, 1 November 2004 ( “Milošević Decision on Defense Counsel”), para. 9.

Download full document
ICTY Rule Rule 89(D)
Notion(s) Filing Case
Decision on Evidence of Milan Babić - 14.09.2006 MARTIĆ Milan
(IT-95-11-AR73.2)

27. […] Relying on Wigmore’s Evidence in Trials at Common Law,[1] the Appellant concludes that because Milan Babić’s death, which resulted in the prevention or curtailment of the cross-examination of his evidence, was caused by “the voluntary act of the witness himself,” namely his suicide, the examination-in-chief must be struck out.[2]

29. […] In his appeal, armed with the Report’s finding that Milan Babić did in fact commit suicide, the Appellant attempts to rely on Wigmore for the general principle that evidence given by a witness in direct examination who commits suicide prior to, or during his cross-examination, should be excluded.

30. The Appeals Chamber concludes that the International Tribunal need not adopt this approach and finds that, despite Milan Babić’s death having been ruled a suicide, it remained within the Trial Chamber’s discretion to retain the evidence of Milan Babić on the basis that the interruption of his cross-examination, the majority of which had been completed, was unforeseeable and unavoidable.

[1] John Henry Wigmore, Evidence in Trials at Common Law (Boston: Little Brown, 1974) Vol. 5 §1390, p. 134, citing Kemble v. Lyons, 184 Iowa 804, 169 N.W. 117 (1918); Sperry v. Moore’s Estate, 42 Mich. 353, 361, 4 N.W. 13, 19 (1880); Forrest v. Kissam, 7 Hill 470 (N.Y. 1844) (“Wigmore”).

[2] Interlocutory Appeal, para. 30.

Download full document
ICTY Rule Rule 89(D)
Notion(s) Filing Case
Decision on Evidence of Milan Babić - 14.09.2006 MARTIĆ Milan
(IT-95-11-AR73.2)

14. […] [W]hen tasked with the decision of whether to exclude evidence, the Trial Chamber is bound more particularly by Rule 89(D) to determine whether the probative value of the evidence is substantially outweighed by the need to ensure a fair trial.

In this case, the question was whether the incompleteness of the cross-examination and the disadvantage to the Appellant emanating from this, substantially outweighed the probative value of the evidence such that it should be removed from the trial record (para. 15).

Download full document
ICTY Rule Rule 89(D)
Notion(s) Filing Case
Decision on Admissibility of Prosecution Investigator Evidence - 30.09.2002 MILOŠEVIĆ Slobodan
(IT-02-54-AR73.2)

The Trial Chamber denied admission into evidence of the conclusions drawn by a Prosecution investigator based on his summaries of written witness statements. See paras 16-17.

17. [...] [Those conclusions are] facts which the Trial Chamber is obliged to consider and in relation to which it must make its own findings before coming to the issue of the accused’s guilt in relation to them.  That task does not require expertise beyond that which is within the capacity of any tribunal of fact, that of analysing the factual material put forward by the witnesses.  Whatever expertise the OTP investigator may claim to have in relation to such a task, the Trial Chamber was entitled to decline his assistance in the very task which it had to perform for itself.

Download full document
Notion(s) Filing Case
Decision on Admissibility of Prosecution Investigator Evidence - 30.09.2002 MILOŠEVIĆ Slobodan
(IT-02-54-AR73.2)

In paragraph 18 the Appeals Chamber recalled its previous decisions regarding hearsay evidence, i.e. Prosecutor v. Zlatko Aleksovski, IT-95-14/1-AR73, Decision on Prosecutor’s Appeal on Admissibility of Evidence, 16 February 1999 (“Aleksovski Decision”); Prosecutor v. Dario Kordić and Mario Čerkez, IT-95-14/2-AR73.5, Decision on Appeal Regarding Statement of a Deceased Witness, 21 July 2000; and Prosecutor v. Stanislav Galić, IT-98-29-AR73.2, Decision on Interlocutory Appeal Concerning Rule 92bis(C), 7 June 2002 (“Galić Decision”). The Appeals Chamber continued as follows:

18. […] [T]here is nothing in the Galić Decision which prevents a written statement given by prospective witnesses to OTP investigators or others for the purposes of legal proceedings being received in evidence notwithstanding its non-compliance with Rule 92bis – (i) where there has been no objection taken to it, or (ii) where it has otherwise become admissible – where, for example, the written statement is asserted to contain a prior statement inconsistent with the witness’s evidence.[1]

[…]

21. […] Whether it is appropriate in the particular case for [summarising evidence (the summarising of material which is relevant to the issues of the case)] to be admitted will depend upon the circumstances of that case.  If the material being summarised is uncontroversial, there will clearly be a considerable saving of time if that material is summarised either in a document or by one witness rather than given by many witnesses.  In every case, the basic issue is whether the material being summarised would itself be admissible.  A summary made by one person of material provided by another person is necessarily hearsay evidence in character.  The admissibility of hearsay evidence pursuant to Rule 89(C) should not permit the introduction into evidence of material which would not be admissible by itself.  […]

22. Where the material summarised consists of statements made by others (other than written statements by prospective factual witnesses for the purposes of legal proceedings), so that the material summarised would be admissible pursuant to Rule 89(C), the summary still consists of hearsay evidence of those statements made by others, and the reliability of the statements made by those other persons (which are themselves hearsay) is relevant to the admissibility of the summary.  As stated in the Aleksovski Decision […],[2] the Trial Chamber must consider whether the summary is “first-hand” hearsay (that is, whether the persons who made the statements summarised personally saw or heard the events recorded in their statements), and whether the absence of the opportunity to cross-examine those persons affects the reliability of their statements. […] [T]he opportunity to cross-examine the person who summarised those statements does not overcome the absence of the opportunity to cross-examine the persons who made them.  In different cases, of course, the statements may contain their own indicia of reliability which does overcome the absence of that opportunity.

23. The Trial Chamber must also be satisfied as to the reliability of the method by which those statements have been summarised.  This is an issue which can be tested by the cross-examination of the person who made the summary.  The fact that the summary has been prepared for the purposes of the particular litigation may be relevant to whether it should be admitted, but [...] it would be quite wrong to suggest that such a summary is ipso facto unreliable. [...]

[RULE 92bis OF THE ICTY’S RULES OF PROCEDURE AND EVIDENCE WAS AMENDED ON 13 SEPTEMBER 2006.]

[1]    In order to avoid overloading the exhibits, it has become common practice for the prosecution to concede orally that the witness statement includes the passage which the Defence asserts is inconsistent.  The transcript of that concession is a sufficient record of that statement, and the issue as to whether there is in fact an inconsistency is left to the Trial Chamber.

[2]    Aleksovski Decision, par 15.

Download full document
ICTR Rule Rule 89(C);
Rule 92bis
ICTY Rule Rule 89(C);
Rule 92bis
Notion(s) Filing Case
Appeal Judgement - 28.09.2011 SETAKO Ephrem
(ICTR-04-81-A)

31. The Appeals Chamber will consider these challenges in turn. At the outset, it recalls that it is within the discretion of a trial chamber to evaluate inconsistencies in the evidence, to consider whether the evidence taken as a whole is reliable and credible, and to accept or reject the fundamental features of the evidence.[1] The Appeals Chamber will defer to a trial chamber’s judgement on issues of credibility, including its resolution of disparities among different witnesses’ accounts, and will only find an error of fact if it determines that no reasonable trier of fact could have made the impugned finding.[2] Furthermore, 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]

48. The Appeals Chamber recalls that a trial chamber may rely on part of a witness’s testimony and reject other parts.[4] Furthermore, the Appeals Chamber notes that the Trial Chamber only relied on Witness SLA’s testimony where corroborated.[5] The Trial Chamber was therefore entitled to disregard Witness SLA’s claim of torture and still rely on his evidence with respect to the 25 April and 11 May Killings.

154. Regarding Setako’s contention that the Trial Chamber erred in its reasoning, the Appeals Chamber recalls that the task of weighing and assessing evidence lies primarily with the trier of fact.[6] Therefore, the Appeals Chamber must give a margin of deference to a finding of fact reached by a trial chamber.[7] It will only interfere where no reasonable trier of fact could have reached the same finding or where the finding is wholly erroneous.[8]

222. Setako’s submission that the Trial Chamber erred in dismissing his evidence for lack of corroboration due to contradictions in the testimonies of Witnesses SLA and SAT is unclear. If Setako claims that the Trial Chamber was compelled to accept his testimony because Witnesses SLA’s and SAT’s testimonies deviated from each other, the Appeals Chamber disagrees. The Appeals Chamber recalls that a trial chamber has the discretion to decide on the weight, if any, to accord to a piece of evidence, regardless of whether or not that evidence is corroborated.[9] This discretion is not affected by purported inconsistencies in other evidence.

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

[2] See supra, para. 10. See also Renzaho Appeal Judgement, para. 355; Gacumbitsi Appeal Judgement, para. 70.

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

[4] Haradinaj et al. Appeal Judgement, para. 201.

[5] See Trial Judgement, para. 367.

[6] Musema Appeal Judgement, para. 18. See also Boškoski and Tarčulovski Appeal Judgement, para. 14.

[7] Kalimanzira Appeal Judgement, paras. 9, 186; Rukundo Appeal Judgement, para. 10; Musema Appeal Judgement, para. 18; Boškoski and Tarčulovski Appeal Judgement, para. 14.

[8] Kalimanzira Appeal Judgement, para. 9; Rukundo Appeal Judgement, para. 10; Musema Appeal Judgement, para. 18; Boškoski and Tarčulovski Appeal Judgement, paras. 13, 14.

[9] See Gacumbitsi Appeal Judgement, para. 72; Niyitegeka Appeal Judgement, para. 92; Muhimana Appeal Judgement, para. 101.

Download full document
Notion(s) Filing Case
Appeal Judgement - 27.11.2007 SIMBA Aloys
(ICTR-01-76-A)

19. The Appeals Chamber recalls that the decision to admit or exclude evidence pursuant to Rule 89(C) of the Rules is one that falls within the discretion of the Trial Chamber and therefore, warrants appellate intervention only in limited circumstances.[1] It further recalls that in exercising its discretion to admit witness testimony, the Trial Chamber shall be guided by the general principle, enshrined in Rule 90(A) of the Rules, that witnesses be heard directly by the Chambers.

20. The Appeals Chamber recognises, however, that there are well established exceptions to the Tribunal’s preference for direct, live, in-court testimony[2] and agrees with the Trial Chamber’s reasoning that, as a matter of law, statements of non-testifying individuals used during cross-examination may be admitted into evidence, even if they do not conform to the requirements of Rules 90(A) and 92bis of the Rules, provided the statements are necessary to the Trial Chamber’s assessment of the witness’s credibility and are not used to prove the truth of their contents.[3]

[1] Prosecutor v. Théoneste Bagosora et al., Case Nos. ICTR-98-41-AR93 & ICTR-98-41-AR93.2, Decision on Prosecutor’s Interlocutory Appeals Regarding Exclusion of Evidence, 19 December 2003, para. 11. See also Naletilić and Martinović Appeal Judgement, para. 257; Kordić and Čerkez Appeal Judgement, para. 236.

[2] For instance, Rule 90(A) of the Rules provides that a Chamber may order that a witness be heard by means of deposition under Rule 71 of the Rules, and Rule 92 bis of the Rules allows for the admission of written witness statements in lieu of oral testimony which do not go to proof of the acts and conduct of the accused as charged in the indictment.

[3] Decision on the Admission of Certain Exhibits of 7 July 2005, para. 7. See also T. 3 November 2004 pp. 37-38; Akayesu Appeal Judgement, para. 134.

Download full document
ICTR Rule Rule 89(C);
Rule 90(A);
Rule 92 bis
ICTY Rule Rule 89(C);
Rule 90(A);
Rule 92 bis
Notion(s) Filing Case
Appeal Judgement - 27.11.2007 SIMBA Aloys
(ICTR-01-76-A)

132. The Appeals Chamber recalls that it has already dismissed the argument that as a matter of law documentary evidence should be preferred to oral testimony.[1] Here the Appellant further submits that because the Prosecution presented a document in evidence in another case before the Tribunal, it must be authentic, probative and subject to judicial notice.[2] The Appeals Chamber rejects this argument as a matter of principle: the probative value of a document may be assessed differently in different cases, depending on the circumstances. In the instant case, the Trial Chamber considered Exhibit D147,[3] a document allegedly showing the location of Rwandan Army officers as of 5 March 1994, and found that, in the context of the events which followed the death of the President of Rwanda, the locations of officers in mid-April 1994 could have been different from those mentioned in this document.[4] The Appellant has failed to demonstrate that no reasonable Trial Chamber could have reached the same conclusion. Accordingly, this sub-ground of appeal is dismissed.

[1] See above Section D-1, paras 101-103.

[2] Simba Appeal Brief, paras 126-127.

[3] Exh. D147, admitted on 29 March 2005. The document itself is dated 5 March 1994. It arguably emanates from the “Ministère de la Défense Nationale, Armée Rwandaise, Etat-Major G1” and shows the situation of the officers of the Rwandese army as of 1 March 1994.

[4] Trial Judgement, para. 167.

Download full document
ICTR Rule Rule 89(C) ICTY Rule Rule 89(C)
Notion(s) Filing Case
Appeal Judgement - 27.11.2007 SIMBA Aloys
(ICTR-01-76-A)

174. The Appeals Chamber […] notes that the evidence of an expert witness is meant to provide specialised knowledge that may assist the fact finder to understand the evidence presented.[1] It is for the Trial Chamber to decide whether, on the basis of the evidence presented by the parties, the person proposed can be admitted as an expert witness.[2] Just as for any other evidence presented, it is for the Trial Chamber to assess the reliability and probative value of the expert report and testimony.

[1] Semanza Appeal Judgement, para. 303. See also The Prosecutor v. Casimir Bizimungu, Justin Mugenzi, Jérôme-Clément Bicamumpaka, Prosper Mugiraneza, Case No. ICTR-99-50-T, Decision on Casimir Bizimungu’s Urgent Motion for the Exclusion of the Report and Testimony of Déo Sebahire Mbonyinkebe (Rule 89(C)), 2 September 2005, para. 11; The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Decision on Motion for Exclusion of Expert Witness Statement of Filip Reyntjens, 28 September 2004, para. 8; The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Decision on a Defence Motion for the Appearance of an Accused as an Expert Witness, 9 March 1998, p. 2.

[2] The Prosecutor v. Sylvestre Gacumbitsi, Case No. ICTR-01-64-T, Decision on Expert Witnesses for the Defence, Articles 54, 73, 89 and 94 bis of the Rules of Procedure and Evidence, 11 November 2003, para. 8.

Download full document
Notion(s) Filing Case
Appeal Judgement - 27.11.2007 SIMBA Aloys
(ICTR-01-76-A)

The Appellant asserted that the rule for assessing evidence ranks documentary evidence above oral evidence.[1]

103. […] Contrary to the Appellant’s submissions, there is a general,[2] though not absolute,[3] preference for live testimony before this Tribunal. […] This is consistent with Rule 90(A) of the Rules which states in part that witnesses shall, in principle, be heard directly. As the primary trier of fact, it is the Trial Chamber that has the main responsibility to resolve any inconsistencies that may arise within and/or amongst witnesses’ testimonies. It is within the discretion of the Trial Chamber to evaluate any 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. It may do this by relying on live testimony or documentary evidence.[4]

[1] Other errors alleged in relation to the assessment of the evidence of Prosecution Witnesses KEI, KSY, YH and KXX and Exhibit D 147 will be addressed below under Sections D-2 and D-3.

[2] See The Prosecutor v. Pauline Nyiramasuhuko et al., Joint Case No. ICTR-98-42-A15bis, Decision In the Matter of Proceedings under Rule 15 bis(D), 24 September 2003, para. 25.

[3] See Rules 71, 89(C), 92 bis, 94 bis(C) of the Rules.

[4] Kupreškić et al. Appeal Judgement, para. 31.

Download full document
ICTR Rule Rule 89(C);
Rule 90(A)
ICTY Rule Rule 89(C);
Rule 90(A)
Notion(s) Filing Case
Appeal Judgement - 27.11.2007 SIMBA Aloys
(ICTR-01-76-A)

41. The Appeals Chamber can conceive of situations where a fair trial is not possible because witnesses crucial to the Defence case refuse to testify due to State interference. In such cases, it is incumbent on the Defence to, first, demonstrate that such interference has in fact taken place and, second, exhaust all available measures to secure the taking of the witness’s testimony.

Download full document
Notion(s) Filing Case
Decision Refusing Leave to Appeal - 03.07.2003 MILUTINOVIĆ Milan
(IT-99-37-AR65.3)

9.       […] [M]edia reports have to be handled very carefully as far as their evidential weight is concerned.  But they are not to be excluded altogether.[1] […]

[1] Prosecutor v Milutinović et al, IT-99-37-AR65, Decision on Provisional Release, 30 October 2002, par 10 (“Šainović and Ojdanić Appeals Decision”). 

Download full document
Notion(s) Filing Case
Decision on Admission of Evidence - 12.01.2009 PRLIĆ et al.
(IT-04-74-AR73.13)

15. The Appeals Chamber recalls that, while Rule 89 of the Rules grants Trial Chambers a broad discretion in assessing admissibility of evidence they deem relevant, this discretion is not unlimited, considering that the test to be met before ruling evidence inadmissible is rigorous.[1] A piece of evidence may be so lacking in terms of the indicia of reliability that it is not probative and is therefore inadmissible. This principle should not be interpreted to mean that definite proof of reliability must necessarily be shown for evidence to be admissible. Prima facie proof of reliability on the basis of sufficient indicia is enough at the admissibility stage.[2] This indicium of reliability is in turn “a factor in the assessment of its relevance and probative value”.[3] Furthermore, as the Appeals Chamber has held, “evidence is admissible only if it is relevant and […] it is relevant only if it has probative value”.[4] The determination as to whether the proffered material conforms to the criteria of Rule 89 has to be made on a case-by-case basis.[5]

19. With respect to the nine remaining documents falling within the scope of the Appeal, the Appeals Chamber notes that they were rejected on the ground that the witnesses could not comment on the reliability, relevance or probative value of the exhibits.[6] Under the first ground of appeal, the Appellant does not present any arguments with respect to the Trial Chamber’s alleged errors in this evaluation, apart from some general submissions according to which the final assessment of the relevance, reliability or probative value should be done at the end of the trial rather then during its course.[7] The Appeals Chamber reiterates that these are the established criteria of admissibility of evidence and emphasizes that they should not be confused with the assessment of the evidence performed at the stage of deliberations on the judgement.[8]

22. With respect to the Appellant’s references to the previous statements made by the Pre-Trial and Trial Chambers in relation to the admission of evidence,[9] the Appeals Chamber similarly finds that the Appellant misconstrues them. Indeed, the Trial Chamber explained that the final assessment of the relevance, reliability and probative value of the admitted exhibits (i.e. weight to be given to the evidence on the record) would be performed at the end of the trial. This can in no way be interpreted as suggesting that the criteria for admissibility of tendered material may not be assessed during the trial when ruling on the admission. Moreover, when admitting the documents into evidence – subject to the assessment of weight to be given to them at a later stage – the Trial Chamber explicitly concluded that they bore “sufficient indicia of relevance, probative value and reliability”,[10] thus consistently applying the criteria of Rule 89 of the Rules.

[1] Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-AR73.2, Decision on Joint Defence Interlocutory Appeal Concerning the Status of Richard Butler as an Expert Witness, 30 January 2008 (“Popović Decision of 30 January 2008”), para. 22; Georges Anderson Nderubumwe Rutaganda v. Prosecutor, Case No. ICTR-96-3-A, Judgement, 26 May 2003 (“Rutaganda Appeal Judgement”), para. 33.

[2] Popović Decision of 30 January 2008, para. 22 citing Prosecutor v. André Ntagerura et al., Case No. ICTR-99-46-A, Decision on Prosecution Motion for Admission of Additional Evidence, 10 December 2004, para. 22; Rutaganda Appeal Judgement, paras 33 and 266; Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-AR73.2, Decision on Application of Defendant Zejnil Delalić for Leave to Appeal against the Decision of the Trial Chamber of 19 January 1998 for the Admissibility of Evidence, 5 March 1998 (“Delalić Decision of 5 March 1998”), para. 20; Prosecutor v. Dario Kordić et al., Case No. IT-95-14/2-AR73.5, Decision on Appeal Regarding Statement of a Deceased Witness, 21 July 2000 (“Kordić Decision of 21 July 2000”), para. 24 and Prosecutor v. Dario Kordić et al., Case No. IT-95-14/2-AR73.6, Decision on Appeal Regarding the Admission into Evidence of Seven Affidavits and One Formal Statement, 18 September 2000, para. 24.

[3] Prosecutor v. Mladen Naletilić, a.k.a. “Tuta” and Vinko Martinović, a.k.a. “[tela”, Case No. IT-98-34-A, Appeal Judgement, 3 May 2006, para. 402 citing Delalić Decision of 5 March 1998, paras 17, 20, 25 and Kordić Decision of 21 July 2000.

[4] Prosecutor v. Stanislav Galić, Case No. IT-98-29-AR73.2, Decision on Interlocutory Appeal Concerning Rule 92bis (C), 7 June 2002, paras 31, 35.

[5] Popović Decision of 30 January 2008, para. 22.

[6] Annexes to the Impugned Orders [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-T, Order Admitting Evidence Related to Witness Martin Raguž, 6 October 2008 and Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-T, Order on Admission of Evidence Relating to Witness Zoran Perković, 9 October 2008].

[7] Appeal [Jadranko Prlić’s Consolidated Interlocutory Appeal Against the Order Admitting Evidence Related to Witness Martin Raguž and the Order on Admission of Evidence Relating to Witness Zoran Perković, 12 November 2008], para. 10. Under the third ground of appeal, the Appellant also claims that “[t]he documents that were denied by the Impugned Orders […] are documents which the witnesses were familiar with at the time, and which deal with the very subject matters that the witness were involved in, namely refugees, in the case of Mr. Raguž, and Livno municipality, in the case of Mr. Perković” (Appeal, para. 18). However, this unsubstantiated argument cannot be sufficient to challenge the Trial Chamber’s decision not to admit specific documents on the above-mentioned ground(s).

[8] Cf. The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-AR73, Decision on the Appeals by Pauline Nyiramasuhuko and Arsène Shalom Ntahobali on the “Decision on Defence Urgent Motion to Declare Parts of the Evidence of Witnesses RV and QBZ Inadmissible, 2 July 2004, para. 15.

[9] Appeal, para. 14.

[10] Order of 1 November 2007 [Prosecutor v. Jadranko Prlić et al., Case No. IT-07-74-T, Order to Admit Evidence Regarding Witness Nicholas J. Miller, 1 November 2007], p. 4.

Download full document
ICTR Rule Rule 89(C) ICTY Rule Rule 89(C)
Notion(s) Filing Case
Decision on Admission of Evidence - 12.01.2009 PRLIĆ et al.
(IT-04-74-AR73.13)

27. Finally, under this ground of appeal, the Appellant raises the issue that the admission of the tendered material was denied by the majority of the Trial Chamber and not unanimously, thus denying the dissenting Judge the possibility to refer to those materials when providing the reasons for his judgement.[1] [see infra, under “Judges / Decisions by majority”] In this case, the Trial Chamber decided, albeit by majority, not to admit certain documents tendered into evidence. The effect of this decision is such that these documents do not form part of the record. Several venues are open for the Appellant to challenge this decision, including motions for reconsideration and/or review, interlocutory appeal or appeal on the merits. However, if such challenges fail, the parties and the Judges are bound to refer themselves to the record of the case. The suggestion that all tendered materials be admitted into evidence for the sake of forming an exhaustive record contradicts the logic of having admissibility criteria and would not be beneficial to the effective administration of justice.

[1] Appeal, paras 17, 19; see also the Certification Decision [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-T, Decision on Requests for Certification to Appeal Two Decisions Filed by the Prlić Defence, dated 6 and 9 October 2008 Respectively, 6 November 2008], pp. 5-6.

Download full document
ICTR Rule Rule 89(C) ICTY Rule Rule 89(C)
Notion(s) Filing Case
Decision on Admission of Evidence - 12.01.2009 PRLIĆ et al.
(IT-04-74-AR73.13)

17. The Appellant’s submission according to which relevance can only be assessed after conclusion of the trial contradicts the logic of Rule 89(C) of the Rules which refers to relevance as one of the main criteria of admissibility of evidence throughout the trial.[1] This submission therefore stands to be rejected. The evaluation of relevance at the stage of admissibility of evidence has been defined by the Appeals Chamber as a consideration of “whether the proposed evidence sought to be admitted relates to a material issue”.[2] When the relevance is assessed during the course of a trial, the material issues of the case are found in the indictment.[3] The Appeals Chamber is further of the view that it is for the party tendering the material to show that it has the required indicia of relevance in order to be admissible under Rule 89(C) of the Rules. Finally, the criteria for admission of evidence are cumulative, which means that the given evidence cannot be admitted if all the criteria are not fulfilled. Therefore, the Appellant’s argument that the Trial Chamber could not reject the admission on the sole basis that the tendered material lacked relevance, without inviting him to clarify the issue, cannot prosper.

[1] Rule 89(C) of the Rules: “A Chamber may admit any relevant evidence which it deems to have probative value”.

[2] Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Appellants Jean-Bosco Barayagwiza’s and Ferdinand Nahimana’s Motions for Leave to Present Additional Evidence Pursuant to Rule 115, 12 January 2007, paras 7, 13, 18-20.

[3] Cf. The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-AR73, Decision on Pauline Nyiramasuhuko’s Request for Reconsideration, 27 September 2004, para. 12: “The Trial Chamber has the discretion under Rule 89(C) to admit any evidence which it deems to have probative value, to the extent that it may be relevant to the proof of other allegations specifically pleaded in the Indictment”.

Download full document
ICTR Rule Rule 89(C) ICTY Rule Rule 89(C)
Notion(s) Filing Case
Decision on Admission of Transcript - 23.11.2007 PRLIĆ et al.
(IT-04-74-AR73.6)

57. The Appeals Chamber notes that the Trial Chamber did refer to the principle according to which untested evidence relating to the acts and conduct of the accused may be admitted into the trial record, but must be corroborated by other evidence in order to form, if it comes to that, a basis for a conviction of an accused.[1] This principle is undoubtedly premised on the recognition that professional judges are better able to weigh evidence and consider it in its proper context than members of a jury. Furthermore, as opposed to a jury’s verdict, professional judges have to write a reasoned decision, which is subject to appeal.

58. The principle of fairness that a conviction may not be based solely or in a decisive manner on the deposition of an individual whom the accused has had no opportunity to examine[2] is not equivalent to the restriction that material related to the acts and conduct of the accused is inadmissible except through “live” testimony.[3] The former principle is both wider and narrower in scope.

59. On the one hand, “acts and conduct” of the accused have been interpreted extensively in the jurisprudence of the Tribunal.[4] The scope of the principle expressed above, however, appears to cover more than just this material: it clearly applies to any “critical element” of the Prosecution case,[5] that is, to any fact which is indispensable for a conviction (including those used as an aggravating circumstance in sentencing).[6] These are, in fact, the findings that a trier of fact has to reach beyond reasonable doubt. It would run counter to the principles of fairness discussed above to allow a conviction based on evidence of this kind without sufficient corroboration. In other words, the scope of the rule that sufficient corroboration is necessary has to be expanded to cover evidence beyond that relating to the acts and conduct of the accused stricto sensu.

60. On the other hand, a transcript of the questioning of an accused might contain evidence of his acts and conduct that do not relate to the allegations in the case at hand and may not, as such, form any basis for his conviction.

[1] Impugned Decision, para. 18. On the contrary, evidence that could be subject to cross-examination at trial does not require corroboration under Tribunal’s law (Aleksovski Appeal Judgement, paras 62-63).

[2] A.M. v. Italy, supra, note 5

[3] Rule 92bis.

[4] See, in general, Galić Decision [Prosecutor v. Stanislav Galić, Case No IT-98-29-AR73.2, Decision on Interlocutory Appeal Concerning Rule 92bis(C) , 7 June 2002]

[5] Prosecutor v. Duško Sikirica et al., Case No. IT-95-8-T, Decision on Prosecution’s Application to Admit Transcripts under Rule 92bis, 23 May 2001, paras 4, 8, 11.

[6] See, inter alia, Halilović Appeal Judgement, [Prosecutor v. Sefer Halilović, Case No. IT-01-48-A Judgment, 16 October 2007], para. 125; Blagojević and Jokić Appeal Judgement, [Prosecutor v. Vidoje Blagojević and Dragan Halilović, Case No. IT-02-60-A, Judgment, 9 May 2007], para. 226.

Download full document
ICTR Rule Rule 92 bis ICTY Rule Rule 92 bis
Notion(s) Filing Case
Decision on Admission of Transcript - 23.11.2007 PRLIĆ et al.
(IT-04-74-AR73.6)

38. In this respect, the Appeals Chamber agrees that, under the Tribunal’s law, the Prosecution may not summon an accused as a witness in his own case, due to the special protection he enjoys.[1] The Appeals Chamber however notes that the Prosecution is not attempting to call Prlić as a witness in this trial. A request to admit a transcript of a suspect’s questioning into the trial record cannot be equated with a request to add the person in question to the Prosecution’s witness list. […] On the other hand, written evidence such as the December 2001 Transcript, although strictly speaking evidence stemming from the declarations of an individual, is not the “testimony” of that person.

[1] Rule 85(A). See also Galić Appeal Judgement, paras 17- 18 and Kvočka et al. Appeal Judgement, para. 125.

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

43. […] While one of the purposes of Rule 92bis is to place some restrictions on the admissibility of hearsay evidence,[1] its general aim at the time of its introduction was to make trials more expeditious, while not preventing examination and cross-examination of the witness as such.[2] Rule 92bis even states that a Trial Chamber “may dispense” with the attendance of a witness in person – thus providing a clear indication that there is a choice to be made, in order to properly balance the interests to an expeditious trial with the rights of the accused.[3]

[1] Galić Decision, para. 31.

[2] See Prosecutor v. Slobodan Milošević, Case No. IT-02-54-AR73.4, Decision on Interlocutory Appeal on the Admissibility of Evidence-in-Chief in the Form of Written Statements, 30 September 2003, paras 15-18.

[3] See also Galić Decision, paras 28-30. In this respect, the Appeals Chamber notes that the Joint Defence did identify portions of the December 2001 Transcript which would go to the acts and conduct of the various co-accused (Joint Defence Appeal, para. 18, referring to Joint Response, Annex).

Download full document
ICTR Rule Rule 92 bis ICTY Rule Rule 92 bis
Notion(s) Filing Case
Decision on Admission of Transcript - 23.11.2007 PRLIĆ et al.
(IT-04-74-AR73.6)

48. [...] It is true that [Rule 92quater] provides for a mechanism to allow for the admission of written evidence when the person giving the statement is unavailable – but this is so because the individual in question is objectively unable to attend a court hearing, either because he is deceased or because of physical or mental impairment. […] It is true, however, as the Prosecution submits,[1] that Rule 92quater does provide an example of a provision explicitly allowing for the admission into evidence of a statement – even regarding the acts and conduct of the accused – where cross-examination is impossible.

[1] Prosecution Response, para. 61.

Download full document
ICTY Rule Rule 92 quater
Notion(s) Filing Case
Decision on Admission of Transcript - 23.11.2007 PRLIĆ et al.
(IT-04-74-AR73.6)

40. The Rules do not provide explicitly for the case of a transcript of the questioning of a suspect to be admitted into evidence in the trial of that person and other accused. A Chamber is therefore called in such a case to apply rules of evidence that “will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law”.[1] This is a delicate exercise for, while the system under which the Tribunal’s rules of evidence operates is predominantly adversarial, the jurisprudence – and the Rules themselves – have recognized from the beginning the necessity, and desirability, of certain features which do not accord with a strictly adversarial criminal procedure.

41. One of the central tenets of the procedure before the Tribunal is the right of all accused to a fair and public hearing.[2] While such a hearing generally entails the examination of evidence against the accused, this principle is not absolute.[3] In fact, there are various provisions that, by balancing the rights of the accused against other relevant interests, safeguard the overall fairness of the proceedings. The Appeals Chamber recalls that this is a complex feat, since under the cloak of “fairness”, a court may be led to construe troublesome curtailments of the rights of the accused in specific instances, which in turn might impact on fundamental rights of the accused. Trial Chambers are called to be vigilant and effective in protecting these rights.

43. The Appeals Chamber considers the analysis of Rule 92bis inapposite to the present situation. Rule 92bis provides an answer to a question different, both in aim and in scope, from the one posed by the present situation. […]

44. Moreover, as the Trial Chamber correctly noted, the transcript of a questioning taken pursuant to Rules 42 and 43 is not a “statement” according to Rule 92bis.[4] A recorded questioning includes, by definition, all questions, all answers, every pause and request for clarifications by all attendees. The parties and the Judges also have the possibility to listen to the audio recording itself, which might provide additional guidance in the understanding of the overall demeanor of the questioned person as well as of those questioning him. The danger that the Prosecution uses this type of questioning to “craft” evidence against the (other) accused persons at trial as argued by the Joint Defence is, in such instances, reduced to a minimum. In this sense, a recorded questioning may be considered more reliable than a statement prepared and then admitted under Rule 92bis.

45. […] Conversely, the questioning of a suspect pursuant to Rules 42 and 43 affords stringent safeguards in order to protect the questioned individual’s right not to incriminate himself.[5] Thus, the suspect is motivated to be more circumspect in his responses and, while he might wish to try and shift the blame to other individuals if he considers himself in a difficult position,[6] he will certainly bear in mind that the Prosecution has, at its disposal, a variety of sources to check the accuracy of his words. In other words, and bearing in mind the different purpose behind the questioning of a suspect as opposed to the gathering of a witness statement by the Prosecution, in cases similar to the one under review here there is undoubtedly less concern about a “collaborative effort” between the suspect and the Prosecution, than in cases where the Prosecution approaches a prospective witness. Of course, this does not say much about the veracity of the answers and explanations provided by the suspect who was being questioned – but this is not determinative of the issue, in this case.

47. A trier of fact is of course called upon to carefully consider the context in which the suspect was questioned. Nonetheless, a transcript of a suspect questioning is different from a statement introduced at trial pursuant to Rule 92bis. This shows that there are substantial differences between the transcript of a questioning conducted according to Rules 42 and 43 and a statement prepared with a view to introducing it into the trial proceedings pursuant to Rule 92bis.

[1] Rule 89(B).

[2] Article 21(2) of the Statute.

[3] See, e.g., Prosecutor v. Žejnil Delalic et al., Case No. IT-96-21-AR73.2, Decision on Application of Defendant Zejnil Delalić for Leave to Appeal Against the Decision of the Trial Chamber of 19 January 1998 for the Admissibility of Evidence, 4 March 1998, para. 22.

[4] Impugned Decision [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-T, Decision on Request for Admission of the Statement of Jadranko Prlić, 22 August 2007], paras 26-28.

[5] See, for example, Halilović Appeal Judgement, especially paras 36-40, on the reliability of a summarized statement and Rules 42 and 43.

[6] Joint Defence Appeal, para. 16.

Download full document
ICTY Rule Rule 42;
43
Notion(s) Filing Case
Decision on Fresh Evidence - 26.02.2009 PRLIĆ et al.
(IT-04-74-AR73.14)

25. […] In this sense, the Appeals Chamber recalls that “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”.[1] In doing so, the Trial Chamber will have to consider “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”.[2] In striking the balance under Rule 89(D) of the Rules, the Trial Chamber will also consider the available measures to address the prejudice, if any, by “for example, providing more time for [re]-examination, adjourning the session, or granting the possibility of recalling the witness”.[3] If, on balance, the fresh evidence is found to be inadmissible during the presentation of the Defence case, the Prosecution may still, under certain conditions, seek its admission as evidence in rebuttal.[4]

27. In its Delić Decision, the Appeals Chamber emphasized that specifying the purpose of admission of fresh evidence despite the Defence’s objections is necessary in order to properly address the prejudice caused by such admission.[5] In this sense, the Appeals Chamber considers that the risk of prejudice caused by the admission of fresh evidence probative of guilt is potentially greater as compared to fresh evidence admitted with the sole purpose of impeaching the witness.[6]

30. […] In any case, considerations pertaining to the scope of cross-examination or any prejudice caused by the non-disclosure of the tendered material at an earlier stage may become relevant to the Trial Chamber’s decision on admission made on a case-by-case basis.[7] The Appeals Chamber re-emphasizes that what matters is that the admission of the fresh evidence tendered by the Prosecution after the closure of its case-in-chief is justified by the interests of justice and does not entail violation of the fair trial rights, which is in full compliance of Rules 85, 89(C), 89(D) and 90(F) of the Rules.

[1] Delić Decision, para. 22 (emphasis added).

[2] Ibid., para. 23.

[3] Id.

[4] Cf. Milošević Decision, para. 13.

[5] Delić Decision, para. 23.

[6] Cf. ibid., para. 22.

[7] See supra, paras 23-24; Impugned Decision, paras 24-26.

Download full document
ICTY Rule Rule 89(D)
Notion(s) Filing Case
Decision on Fresh Evidence - 26.02.2009 PRLIĆ et al.
(IT-04-74-AR73.14)

At the outset, the Appeals Chamber specified that its use of the term “fresh evidence”[1] referred, for the purposes of the present decision, to material that was not included in the Prosecution Rule 65 ter list, not admitted during the Prosecution’s case-in-chief but tendered by the Prosecution when cross-examining Defence witnesses. It further clarified that, in this decision, the term was not limited to the material that was not available to the Prosecution during its case-in-chief (para. 15).

23. The Appeals Chamber recalls that, “[a]s a general rule, the Prosecution must present the evidence in support of its case during its case in chief”.[2] This stems from the rights of the accused under Article 21(4)(b) and (e) of the Statute pursuant to which “when evidence is tendered by the Prosecution there must be a fair opportunity for the accused to challenge it”.[3] Consequently, when the Prosecution seeks to introduce fresh evidence, after the closure of its case-in-chief, it has to specifically justify its request.[4] The Trial Chamber may authorize the deviation from the said sequence if it is satisfied that it is in conformity with the other applicable provisions, notably Rule 89(D) of the Rules. The Impugned Decision is correctly premised on this principle noting that, pursuant to Rule 85(A) of the Rules, the sequence of the presentation of evidence may be changed if the Trial Chamber deems it to be in the interests of justice.[5] Therefore, the Appeals Chamber cannot agree with the Appellants that there is an absolute ban for the Prosecution to tender evidence once its case presentation has been closed (save for rebuttal and re-opening). In sum, the Trial Chamber has the discretion to admit fresh evidence under Rule 89(C) and (D) of the Rules, taking into account both the probative value of that evidence and the need to ensure a fair trial.[6] Where the admittance of this evidence constitutes a variation of the sequence of the presentation of evidence set out in Rule 85(A) of the Rules, the Trial Chamber may exercise its discretion to admit the evidence only where it is in the interests of justice.[7]

24. In order to clarify the circumstances under which it would allow admission of fresh evidence after the closure of the Prosecution case-in-chief, the Trial Chamber emphasized that it would do so only in exceptional circumstances where the interests of justice so require, such as “the importance of the ‘new document’”. It went on to specify that, with respect to material aimed at establishing the guilt of an accused, the Prosecution must also “explain to the Chamber when and by which means it obtained these documents, when it disclosed them to the Defence and why they are being offered only after the conclusion of its case”. Finally, the Trial Chamber stated that it would proceed with the assessment of such requests on a case-by-case basis, after having permitted the Defence to challenge the evidence, particularly bearing in mind the potential infringement on the rights of the accused caused by the sought admission. The Appeals Chamber is satisfied that this careful approach establishing a high threshold for the admission of fresh evidence duly mindful of Rule 89(C) and (D) of the Rules may be justified, depending on the specific circumstances of the case. The Appellants have thus not demonstrated any error in the Trial Chamber’s conclusions in this regard.

28. With reference to the Delić Decision, the Trial Chamber resolved that fresh evidence probative of the Appellants’ guilt may only be admitted during the presentation of their respective cases in exceptional circumstances.[11] While the Impugned Decision appears to be more lenient to the admission of the fresh evidence for the sole purpose of “impeaching a witness’s credibility or refreshing his/her memory”, it still specifies that the Trial Chamber will decide on the admission on the case-by-case basis in conformity with Rule 89 of the Rules.[12] In light of the above clarifications, the Appeals Chamber does not find that such approach is erroneous.

[1] Cf. Prosecutor v. Milan Lukić and Sredoje Lukić, Case No. IT-98-32/1-AR73.1, Decision on the Prosecution’s Appeal Against the Trial Chamber’s Order to Call Alibi Rebuttal Evidence During the Prosecution’s Case in Chief, 16 October 2008 (“Lukić Decision”), paras 16-17 referring to Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Judgement, 20 February 2001 (“Čelebići Appeal Judgement”), para. 271; Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement, 17 December 2004 (“Kordić and Čerkez Appeal Judgement”), para. 216 and fn. 306.

[2] Lukić Decision, paras 11 and 12 (“evidence which strengthens the Prosecution’s case […] must be led in its case in chief”); Kordić and Čerkez Appeal Judgement, para. 216; See also, Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Decision III on the Admissibility of Certain Documents, 10 September 2004, para. 5; Prosecutor v. Slobodan Milošević, Case No. IT-02-54-T, Decision on Prosecution Motion for Reconsideration Regarding Evidence of Defence Witnesses Mitar Balević, Vladislav Jovanović, Vukašin Andrić, and Dobre Aleksovski and Decision Proprio Motu Reconsidering Admission of Exhibits 837 and 838 Regarding Evidence of Defence Witness Barry Lituchy, 18 May 2005 (“Milošević Decision”), paras 9-11.

[3] Delić Decision [Prosecutor v. Rasim Delić, Case No. IT-04-83-AR73.1, Decision on Rasim Delić’s Interlocutory Appeal Against Trial Chamber’s Oral Decision on Admission of Exhibits 1316 and 1317, 15 April 2008], para. 22.

[4] Čelebići Appeal Judgement, para. 271; Delić Decision, para. 22.

[5] Impugned Decision [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-T, Decision on Presentation of Documents by the Prosecution in Cross-Examination of Defence Witnesses, 27 November 2008], paras 12, 15, 16, 23.

[6] Cf. Kordić and Čerkez Appeal Judgement, para. 222 referring to fresh evidence that was not available to the Prosecution during its case-in-chief.

[7] Kordić and Čerkez Appeal Judgement, para. 216.

[8] Impugned Decision, para. 20.

[9] Ibid., para. 20.

[10] Ibid., paras 20-22, 24, 26.

[11] Impugned Decision, paras 11, 23.

[12] Ibid., para. 24.

Download full document
ICTR Rule Rule 85(A);
Rule 89(C)
ICTY Rule Rule 85(A);
Rule 89(C);
Rule 89(D);
Notion(s) Filing Case
Appeal Judgement - 17.07.2008 STRUGAR Pavle
(IT-01-42-A)

58. Considering that it is for the Trial Chamber to accept or reject, in whole or in part, the contribution of an expert witness, the Appeals Chamber concludes that a Trial Chamber’s decision with respect to evaluation of evidence received pursuant to Rule 94 bis of the Rules is a discretionary one.[1] When assessing an expert report, a Trial Chamber generally evaluates whether it contains sufficient information as to the sources used in support of its conclusions and whether those conclusions were drawn independently and impartially.[2] […]

[1] See Stakić Appeal Judgement, para. 164; Semanza Appeal Judgement, para. 304; see also The Prosecutor v. Sylvester Gacumbitsi, Case No. ICTR-2001-64-T, Decision on Expert Witnesses for the Defence - Rules 54, 73, 89 and 94 bis of the Rules of Procedure and Evidence, 11 November 2003, para. 8.

[2] Nahimana et al. Appeal Judgement, paras 198-199; see also Prosecutor v. Dragomir Milošević, Case No IT-98-29/1-T, Decision on Admission of Expert Report of Robert Donia, 15 February 2007, paras 8-9; Prosecutor v. Milan Martić, Case No IT-95-11-T, Decision on Defence’s Submission of the Expert Report of Professor Smilja Avramov pursuant to Rule 94 bis, 9 November 2006, paras 9-10; Prosecutor v. Radoslav Brđanin, Case No IT-99-36-T, Decision on Prosecution’s Submission of Statement of Expert Witness Ewan Brown, 3 June 2003, p. 4.

Download full document
ICTR Rule Rule 94 bis ICTY Rule Rule 94 bis
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.

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

51. A Trial Chamber has the discretion to evaluate whether evidence taken as a whole is reliable and credible and to accept or reject the fundamental features of the evidence.[1]

[1] Simba Appeal Judgement, para. 103. See also Renzaho Appeal Judgement, para. 269; Rukundo Appeal Judgement, para. 207. 

Download full document
Notion(s) Filing Case
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.

Download full document
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.

Download full document
Notion(s) Filing Case
Appeal Judgement - 16.10.2007 HALILOVIĆ Sefer
(IT-01-48-A)

38.    […] It is clear that the Trial Chamber instead excluded the Statement because, in accordance with Rule 89(D) of the Rules, it did not deem the statement reliable enough, so that it could have threatened the fairness of the proceedings.[1] The Appeals Chamber is only called to decide on whether this specific decision was unreasonable.

39.     The language used by the Trial Chamber throughout its decision shows that, with no way to test the accuracy of the Statement or its interpretation, its reliability was in doubt.[2] The circumstances of the case, which included the fact that the Statement was being tendered from the bar table, the summary format of the document and the fact that no record of any kind was offered to show its reliability, had an impact upon Halilović’s ability to challenge the content of the Statement and prepare an effective defence without forfeiting his right to remain silent. […]

40.     The Appeals Chamber is not satisfied that the Prosecution has shown that the Trial Chamber in this instance abused its discretion. The issue of whether the Statement contained relevant and probative evidence, in the sense of Rule 89(C) of the Rules, is therefore moot.

See below for separate  opinions on the matter.

[1] Decision of 8 July [2005], in particular paras 17 and 27, referring to Rule 89(D) of the Rules.

[2] [Decision of 8 July 2005], para. 25.

[3] Cf. Naletilić and Martinović Appeal Judgement, paras 530 and 544; Čelebići Appeal Judgement, para. 533 (concerning the Appeals Chamber’s power to intervene to exclude evidence when it finds that a Trial Chamber committed a discernible error in the exercise of its discretion to admit evidence and that this error resulted in unfair prejudice to the appellant, thereby rendering his trial unfair). See also Gacumbitsi Appeal Judgement, para. 19 (concerning a Trial Chamber’s abuse of discretion in relation to a scheduling decision).

Download full document
ICTY Rule Rule 89(D)
Notion(s) Filing Case
Appeal Judgement - 16.10.2007 HALILOVIĆ Sefer
(IT-01-48-A)

39. […] In this respect, the Appeals Chamber emphasizes the large measure of discretion afforded under the Rules to Trial Chambers in establishing the authenticity of a document.[1] Considering that Trial Chambers’ decisions on issues of evaluation of evidence must generally be given a margin of deference,[2] it is only where an abuse of such discretion can be established that the Appeals Chamber should reverse such decisions.[3]

[1] See Prosecutor v. Sefer Halilović, Case No. IT-01-48-AR73.2, Decision on Interlocutory Appeal Concerning Admission of Record of Interview of the Accused from the Bar Table, 19 August 2005, para. 19.

[2]   Čelebići Appeal Judgement, para. 533, where the Appeals Chamber stated that “a Trial Chamber exercises consi­derable discretion in deciding on issues of admissibility of evidence” and that, as a result, “a Trial Chamber should be afforded […] deference in making decisions based on the circumstances of the case before it”.

[3] See, for example, Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-AR73.5, Decision on Appeal Regarding Statement of a Deceased Witness, 21 July 2000; Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-AR73.6, Decision on Appeal Regarding the Admission into Evidence of Seven Affidavits and One Formal Statement, 18 September 2000.

Download full document
ICTY Rule Rule 89(D)
Notion(s) Filing Case
Appeal Judgement - 01.04.2011 RENZAHO Tharcisse
(ICTR-97-31-A)

530. Turning first to Renzaho’s arguments concerning Witness AWO raised under his Eleventh Ground of Appeal, the Appeals Chamber notes that, in relation to her rapes in Rugenge sector, the Trial Chamber was satisfied with Witness AWO’s identification of Renzaho and found her physical description of him to be adequate and consistent.[1] As to factors impacting negatively on the reliability of her identification evidence, the Appeals Chamber recalls that not all factors need to be explicitly addressed, only any significant ones.[2] The fact that Witness AWO had seen Renzaho only once before April 1994 does not, per se, diminish the reliability of her sighting, and the fact that she did not personally know him prior to the events is not sufficient to undermine the reliability of her identification evidence as to the rapes, or moreover with respect to Sainte Famille.[3]

531. Regarding whether the Trial Chamber should have exercised “extreme caution” in assessing Witness AWO’s identification evidence in relation to the attack at Sainte Famille, the Appeals Chamber recalls that such a high level of caution is required only when a witness’s identification was made under difficult circumstances.[4] In this case, the Appeals Chamber finds that the identification evidence did not necessarily call for an “extreme” level of caution.[5] While the events suffered by Witness AWO were unquestionably traumatic, her identification of Renzaho at Sainte Famille did not occur in circumstances that made him difficult to identify, such as in the dark or as a result of a fleeting glance.[6]

  (i) Reasoned opinion

527. The Appeals Chamber notes that the Trial Chamber failed to provide any reasons for accepting the Prosecution witnesses’ identifications of Renzaho at Sainte Famille on 17 June 1994. The Appeals Chamber recalls the general principle that a Trial Chamber need not articulate every step of its reasoning.[7] However, as established in the Kupreškić et al. case, “where a finding of guilt is made on the basis of identification evidence given by a witness under difficult circumstances, the Trial Chamber must rigorously implement its duty to provide a ‘reasoned opinion’.”[8]

529. The Appeals Chamber considers that the circumstances in which these witnesses identified Renzaho were traumatic. In addition, Witness AWO’s evidence was determinative to the Trial Chamber’s finding that Renzaho ordered the attack at Sainte Famille (rather than simply being present).[9] The Trial Chamber therefore should have provided some reasons for accepting their identifications of Renzaho in relation to the attack at Sainte Famille. The Appeals Chamber finds that the Trial Chamber erred in failing to do so. However, the Appeals Chamber finds that this error does not invalidate the Trial Judgement.

[1] See Trial Judgement, para. 716, referring to Witness AWO, T. 7 February 2007 p. 9 (“It was a man who was bald. He had big eyes […] and I believe he must be quite old today.”).

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

[3] Cf. Kayishema and Ruzindana Appeal Judgement, paras. 327, 328.

[4] Kupreškić et al. Appeal Judgement, paras. 34, 39. See also Kalimanzira Appeal Judgement, para. 96.

[5] In Kupreškić et al., the ICTY Appeals Chamber found that Witness H’s identification of the Defendants was carried out under “very difficult circumstances” because, inter alia, the attackers descended upon her and her family while they were sleeping; her father was killed as the family hid in the basement; and the attackers had masked their faces with paint in an attempt to camouflage themselves. Kupreškić et al. Appeal Judgement, para. 133. Despite these and many other “stressful conditions”, the Appeals Chamber was nevertheless “not persuaded by the Defendant’s arguments that the difficult circumstances in which Witness H found herself that morning completely eliminated any possibility of her recognising the attackers and that no reasonable Trial Chamber could have accepted that she did”. Kupreškić et al. Appeal Judgement, para. 135.

[6] Cf. Kupreškić et al. Appeal Judgement, para. 40.

[7] See Karera Appeal Judgement, para. 19.

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

[9] See Trial Judgement, para. 716. 

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

17. The Appeals Chamber recalls that, when a party alleges on appeal that its right to a fair trial has been infringed, the party must prove that the Trial Chamber violated a provision of the Statute and/or the Rules of Procedure and Evidence of the Tribunal (“Rules”) and that this violation caused prejudice that amounts to an error of law invalidating the Trial Judgement.[1] The Appeals Chamber notes that Trial Chamber decisions related to trial management, such as those determining the time available to a party to present its case as well as requests for additional time to present evidence, are discretionary decisions to which the Appeals Chamber accords deference.[2] Accordingly, the Appeals Chamber must determine whether the Trial Chamber abused its discretion by closing the Prosecution case before Kabashi and the other witness had testified, in violation of its obligation under Article 20(1) of the Statute to ensure that a trial is fair and conducted with due regard for the protection of victims and witnesses. If the Trial Chamber did abuse its discretion, the Appeals Chamber must determine whether this violation caused prejudice that amounted to an error of law invalidating the Trial Judgement.

[1] Galić Appeal Judgement, para. 21; Kordić and Čerkez Appeal Judgement, para. 119; Blaškić Appeal Judgement, para. 221; Kupreškić et al. Appeal Judgement, para. 87; Article 25(1)(a) of the Statute.

[2] Prosecutor v. Stanislav Galić, Case No. IT-98-29-AR73, Decision on Application by Prosecution for Leave to Appeal, 14 December 2001, para. 7 (referring specifically to the Trial Chamber’s discretion to set time limits on the presentation of the Prosecution’s case); Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.4, Decision on Prosecution Appeal Concerning the Trial Chamber’s Ruling Reducing Time for the Prosecution Case, 6 February 2007, para. 20.

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

145. The Appeals Chamber recalls that a Trial Chamber may enter a conviction on the “basis of a single witness, although such evidence must be assessed with the appropriate caution, and care must be taken to guard against the exercise of an underlying motive on the part of the witness.”[1] The Appeals Chamber further recalls that “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.”[2] [see also para. 242 of the Appeals Judgement]

219. The Appeals Chamber recalls that a Trial Chamber is at liberty to rely on the evidence of a single witness when making its findings.[3] The testimony of a single witness may be accepted without the need for corroboration, even if it relates to a material fact.[4] […]

[1] Kordić and Čerkez Appeal Judgement, para. 274.

[2] Krajišnik Appeal Judgement, para. 146.

[3] Kupreškić et al. Appeal Judgement, para. 33.

[4] Tadić Appeal Judgement, para. 65; Aleksovski Appeal Judgement, para. 62; Čelebići Appeal Judgement, paras 492, 506; Kayishema and Ruzindana Appeal Judgement, para. 154.

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

152. The Appeals Chamber recalls that, in the case of complex issues, such as the assessment of identification evidence, the reasoned opinion requirement to be met by a Trial Chamber is higher.[1] The Appeals Chamber has held that, “where a finding of guilt is made on the basis of identification evidence given by a witness under difficult circumstances, the Trial Chamber must rigorously implement its duty to provide a ‘reasoned opinion’.”[2] In these instances, the 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] The Appeals Chamber observes that, in such cases:

[w]here the record, including the reasons for judgment, discloses a lack of appreciation of relevant evidence and more particularly the complete disregard of such evidence, then it falls upon the reviewing tribunal to intercede.[4]

155. The Appeals Chamber recalls that Trial Chambers must consider the difficulties associated with identification evidence in a particular case and carefully evaluate it before accepting it as the sole basis for sustaining a conviction. In particular, Trial Chambers must exercise extreme caution before convicting a person based on the identification evidence of a single witness made under difficult circumstances in light of the frailties of human perception and the risk that a miscarriage of justice might result from reliance upon even the most confident witnesses who purport to identify an accused without an adequate opportunity to verify their observations.[5]

156. Factors relevant to the Appeals Chamber’s determination of whether a Trial Chamber’s decision to rely upon identification evidence was unreasonable or renders a conviction unsafe include:

[…] identifications of defendants by witnesses who had only a fleeting glance or an obstructed view of the defendant; identifications occurring in the dark and as a result of a traumatic event experienced by the witness; inconsistent or inaccurate testimony about the defendant’s physical characteristics at the time of the event; misidentification or denial of the ability to identify followed by later identification of the defendant by a witness; the existence of irreconcilable witness testimonies; and a witness’ delayed assertion of memory regarding the defendant coupled with the “clear possibility” from the circumstances that the witness had been influenced by suggestions from others.[6]

Furthermore, the Appeals Chamber recalls that identification evidence may be affected by the length of time between the crime and the confrontation.[7]

[1] Kvočka et al. Appeal Judgement, para. 24.

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

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

[4] Kupreškić et al. Appeal Judgement, para. 39, citing Harper v. The Queen, [1982] 1 S.C.R. 2, p. 14.

[5] Kupreškić et al. Appeal Judgement, para. 34. See also Prosecutor v. Dragoljub Kunarac et al., Case Nos. IT-96-23-T and IT-96-23/1-T, Decision on Motion for Acquittal, 3 July 2000, para. 8

[6] Kupreškić et al. Appeal Judgement, para. 40 (internal citations omitted).

[7]Limaj et al. Appeal Judgement, para. 30. 

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

33. The Appeals Chamber emphasizes that the Rules of both this Tribunal and the ICTY generally reflect a preference for direct, live, in-court testimony. Nevertheless, the jurisprudence of both ad hoc Tribunals admits that Rule 89(C) of the Rules grants a Trial Chamber a broad discretion in assessing admissibility of evidence it deems relevant, including indirect evidence.[1] This discretion is not unlimited, considering that the test to be met before ruling evidence inadmissible is rigorous. It was thus ruled that “a piece of evidence may be so lacking in terms of the indicia of reliability that it is not 'probative’ and is therefore inadmissible.”[2] The Appeals Chamber is of the opinion that this principle should not be interpreted to mean that definite proof of reliability must necessarily be shown for evidence to be admissible. At the stage of admissibility, the beginning of proof that evidence is reliable, in other words, that sufficient indicia of reliability have been established, is quite admissible.[3]

See also para. 266.

[1] With regard to the interpretation of Rule 89(C) of the Rules by the Chambers of the International Tribunal, see Akayesu Appeal Judgement referred to above, para. 286. With regard to the ICTY, see Prosecutor v. Dario Kordić and Mario Čerkez, Decision on Appeal Regarding the Admission into Evidence of Seven Affidavits and one Formal Statement, Case No. IT-95-14/2-AR73.5, ICTY Appeals Chamber, 18 September 2000 (“the second Kordić Decision”), para. 24, citing the Aleksovski Decision wherein it was stated that “it is well settled in the practice of the Tribunal that hearsay evidence is admissible” (para. 15). See also Prosecutor v. Dario Kordić and Mario Čerkez, Decision on Appeal Regarding Statement of a Deceased Witness, Case No. IT-95-14/2-AR73.5, ICTY Appeals Chamber, 21 July 2000 (“the first Kordić Decision”), para. 23.

[2] First Kordić Decision, para. 24.

[3] Prosecutor v. Delalić, Decision on the Motion of the Prosecution for the Admissibility of Evidence, Case No. IT-96-21-T, 19 January 1998, para. 31. It should be emphasized that a decision by the Trial Chamber to admit evidence does not in any way constitute a binding determination as to the authenticity or trustworthiness of the documents sought to be admitted. These are matters to be assessed by the Trial Chamber at a later stage in the course of determining the weight to be attached to the evidence in question.

Download full document
ICTR Rule Rule 89(C) ICTY Rule Rule 89(C)
Notion(s) Filing Case
Appeal Judgement - 26.05.2003 RUTAGANDA George
(ICTR-96-3-A)

34. With regard to hearsay evidence, it should be pointed out that this is not inadmissible. The Trial Chamber has the discretion to cautiously consider this kind of evidence and, depending on the circumstances of each case, in accordance with the provisions of Rule 89 of the Rules.

35. The Appeals Chamber observes that in the instant case, as in Akayesu, some of Rutaganda’s grounds of appeal concern the admission of hearsay evidence in the form of live testimony by witnesses on events which they had not witnessed personally. The Appeals Chamber concurs with the analysis made by the Appeals Chamber in the Akayesu Appeal Judgement[2] wherein it was held that when a witness testifies, their evidence is admitted in that, in the absence of timely objection, it becomes part of the trial record, as reflected in the transcripts, and that the main safeguard applicable to the reliability of the evidence in this case is the preservation of the right to cross-examine the witness on the hearsay evidence which has been called into question.[3] The Appeals Chamber also holds that in these circumstances, although the decision will always depend on the facts of the case, it is unlikely, considering the stage of the proceedings and, in particular, in the absence of any objection, that a Trial Chamber would find that the live testimony of a witness it had just heard, was so lacking in terms of indicia of reliability as to be inadmissible.

See also para. 150. At para. 153, the Appeals Chamber recalled that “the inclusion of witness statements containing hearsay evidence in the trial record does not ipso facto entail one conclusion or another as to their reliability or probative value.” See also paras. 207, 265, 311.

[1] Akayesu Appeal Judgement, para. 288.

[2] Ibid, para. 287.

[3] This right is recorded under Article 20(4)(e) of the Statute which provides that a person against whom a charge has been brought shall be entitled to “examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her” and under Rule 85(B) of the Rules which provides, inter alia, that: “examination-in-chief, cross-examination and re-examination shall be allowed in each case.”

Download full document
ICTR Rule Rule 89(C) ICTY Rule Rule 89(C)
Notion(s) Filing Case
Appeal Judgement - 26.05.2003 RUTAGANDA George
(ICTR-96-3-A)

353. […] It should also be stressed that with regard to the assessment of the credibility of a witness and the reliability of testimony, the Trial Chamber may accept a witness’s testimony despite the existence of contradictory statements.[1] It therefore falls to the Trial Chamber to assess the contradictions pointed out and determine whether the witness — in the light of his entire testimony — was reliable, and his testimony credible.

[…]

443. To be sure, the Trial Chamber should take account of any inconsistencies in a witness’s testimony. The Appeals Chamber, however, emphasises that it falls to the trier of fact to assess the inconsistencies highlighted in testimony and determine whether they impugn the entire testimony.  Moreover, the jurisprudence of both Tribunals recognises that a Trial Chamber has the discretion to accept a witness’ evidence, notwithstanding inconsistencies between said evidence and his previous statements, as it is up to the Trial Chamber to determine whether the alleged inconsistency is not sufficient to substantially cast doubt on the evidence of the witness concerned.[2] […]

[…]

501. […] the Appeals Chamber recalled that “where there are two conflicting testimonies, it falls to the Trial Chamber before which the witness testified to decide which of the testimonies has more weight[3] and/or whether the discrepancies are such as would cast reasonable doubt and/or establish that the alleged acts did not occur.”

[1] See Musema Appeal Judgement, para. 89, Čelebići Appeal Judgement, para. 497, and Kupreškić Appeal Judgement, para. 156.

[2] See, for example, Musema Appeal Judgement, para. 89, Čelebići Appeal Judgement, para. 497, and Kupreškić Appeal Judgement, para. 156. For instance, the Appeals Chamber emphasizes that in the instant case, the Trial Chamber did not hesitate to find Witness M’s unreliable and to not take it into account, as it contained many substantial inconsistencies regarding dates, time, figures and chronology of events.

[3] Kayishema and Ruzindana Appeal Judgement, para. 325.

Download full document
Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

199. It is for the Trial Chamber to decide whether, on the basis of the evidence presented by the parties, the person proposed can be admitted as an expert witness.[1] The expert is obliged to testify “with the utmost neutrality and with scientific objectivity”.[2] The party alleging bias on the part of an expert witness may demonstrate such bias through cross-examination, by calling its own expert witnesses or by means of an expert opinion in reply. Just as for any other evidence presented, it is for the Trial Chamber to assess the reliability and probative value of the expert report and testimony.[3]

[1] Prosecutor v. Dragomir Milošević, Case No. IT-98-29/1-T, Decision on Admission of Expert Report of Robert Donia, 15 February 2007 (“D. Milošević Decision of 15 Fevrier 2007”), para. 7; Prosecutor v. Milan Martić, Case No. IT-95-11-T, Decision on Defense’s Submission of the Expert Report of Milisav Selukić pursuant to Rule 94 bis, and on Prosecution’s Motion to Exclude Certain Sections of the Military Expert Report of Milisav Selukić, and on Prosecution Motion to Reconsider Order of 7 November 2006, 13 November 2006 (“Martić Decision of 13 November 2006”), p. 5; Prosecutor v. Milan Martić, Case No. IT-95-11-T, Decision on Defence’s Submission of the Expert Report of Professor Smilja Avramov pursuant to Rule 94 bis, 9 November 2006 (“Martić Decision of 9 November 2006”), para. 5; The Prosecutor v. Sylvestre Gacumbitsi, Case No. ICTR-2001-64-T, Decision on Expert Witnesses for the Defence, Rules 54, 73, 89 and 94 bis of the Rules of Procedure and Evidence, 11 November 2003 (“Gacumbitsi Decision of 11 November 2003”), para. 8.

 [2] Gacumbitsi Decision of 11 November 2003, para. 8. See also The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Decision on a Defence Motion for the Appearance of an Accused as an Expert Witness, 9 March 1998, p. 2: “in order to be entitled to appear, an expert witness must not only be recognized expert in his field, but must also be impartial in the case.”

 

[3] Martić Decision of 9 November 2006, para. 11.

Download full document
Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

509. The Appeals Chamber recalls first that it is settled jurisprudence that hearsay evidence is admissible as long as it is of probative value,[1] and that it is for Appellant Nahimana to demonstrate that no reasonable trier of fact would have taken this evidence into account because it was second-degree hearsay evidence,[2] which he has failed to do. […]

[1] See references mentioned supra, footnote 521.

[2] Appellant Nahimana claimed that it was third-degree hearsay. The Appeals Chamber disagrees. If Manzi Sudi Fahdi had appeared to confirm the death of his children before the Tribunal, his testimony would not have constituted hearsay. Since the information was given by Manzi Sudi Fahdi to the Prosecution investigators, who then reported it to Expert Witness Chrétien, it is only second-degree hearsay.

Download full document
Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

198. The Appeals Chamber recalls that the evidence of an expert witness is meant to provide specialized knowledge – be it a skill or knowledge acquired through training[1] – that may assist the fact finder to understand the evidence presented.[2] The Appeals Chamber recently held:

Expert witnesses are ordinarily afforded wide latitude to offer opinions within their expertise; their views need not be based upon firsthand knowledge or experience. Indeed, in the ordinary case the expert witness lacks personal familiarity with the particular case, but instead offers a view based on his or her specialized knowledge regarding a technical, scientific, or otherwise discrete set of ideas or concepts that is expected to lie outside the lay person’s ken.[3]

[1] The Prosecutor v. Casimir Bizimungu et al., Case No. ICTR-99-50-T, Oral Ruling on Qualification of Expert Witness Mbonyinkebe, 2 May 2005; The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Oral Decision on the Qualification of Mr. Edmond Babin as Defence Expert Witness, 13 April 2005, para. 5; Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Decision on Prosecution’s Submission of Statement of Expert Witness Ewan Brown, 3 June 2003, p. 4; Prosecutor v. Stanislav Galić, IT-98-29-T, Decision on the Expert Witness Statements Submitted by the Defence, 27 January 2003, p. 3.

[2] Semanza Appeal Judgement, para. 303. See also The Prosecutor v. Casimir Bizimungu et al., Case No. ICTR-99-50-T, Decision on Casimir Bizimungu’s Urgent Motion for the Exclusion of the Report and Testimony of Déo Sebahire Mbonyinkebe (Rule 89(C)), 2 September 2005, para. 11; The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Decision on Motion for Exclusion of Expert Witness Statement of Filip Reyntjens, 28 September 2004, para. 8; The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Decision on a Defence Motion for the Appearance of an Accused as an Expert Witness, 9 March 1998, p. 2.

[3] Semanza Appeal Judgement, para. 303.

Download full document
Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

212. […] Thus, while the report and testimony of an expert witness may be based on facts narrated by ordinary witnesses or facts from other evidence, an expert witness cannot, in principle, testify himself or herself on the acts and conduct of accused persons[1] without having been called to testify also as a factual witness and without his or her statement having been disclosed in accordance with the applicable rules concerning factual witnesses.[2] However, an expert witness may testify on certain facts relating to his or her area of expertise. […]

509. […] The Appeals Chamber recalls that the role of expert witnesses is to assist the Trial Chamber in its assessment of the evidence before it, and not to testify on disputed facts as would ordinary witnesses. […]

[1] Also, it should be recalled that an expert witness cannot pronounce on the criminal responsibility of the accused: see D. Milošević Decision of 15 February 2007, para. 11; Martić Decision of 13 November 2006, p. 5; The Prosecutor v. Casimir Bizimungu et al., Case No. ICTR-99-50-T, Decision on the admissibility of the expert testimony of Binaifer Nowrojee, 8 July 2005, para. 12.

[2] In this regard, see Rules, 66(A)(ii), 73 bis (B)(iv)(b) and 73 ter (B)(iii)(b).

[3] See supra IV. B. 2. (b).

Download full document
Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

181. The Appeals Chamber accepts the view that the concept of a fair trial includes equal opportunity to present one’s case and the fundamental right that criminal proceedings should be adversarial in nature, with both prosecution and accused having the opportunity to have knowledge of and comment on the observations filed or evidence adduced by either party.[1] Considering the latter right under the principle of equality of arms, the Appeals Chamber of ICTY held that Article 21(4)(e) of the Statute of ICTY:

serves to ensure that the accused is placed in a position of procedural equality in respect of obtaining the attendance and examination of witnesses with that of the Prosecution. In other words, the same set of rules must apply to the right of the two parties to obtain the attendance and examination of witnesses.[2]

[1] Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14-/2-A, Decision on Application by Mario Čerkez for Extension of Time to File his Respondent’s Brief, 11 September 2001, para. 5. Even though the French version – the original being the English text – refers to “what is described as the fundamental right that criminal proceedings are accusatoire in nature – defined as meaning the opportunity for both the prosecution and the accused to have knowledge of and comment on the observations filed or evidence adduced by either party […]” (emphasis added), the term “accusatoire” is a wrong translation of the term “adversarial” and, in view of the references on which this relies, the term “contradictoire” should have been used.

[2] Prosecutor v. Zoran Kupreškić et al., Case No. IT-95-16-AR73.3, Decision on Appeal by Dragan Papić against Ruling to Proceed by Deposition, 15 July 1999, para. 24.

Download full document
Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

314. […] However, as will now be explained, it was open to the Trial Chamber to rely, for certain purposes, on evidence in respect of events prior to 1994.

315. It is well established that the provisions of the Statute on the temporal jurisdiction of the Tribunal do not preclude the admission of evidence on events prior to 1994, if the Chamber deems such evidence relevant and of probative value[1] and there is no compelling reason to exclude it. For example, a Trial Chamber may validly admit evidence relating to pre-1994 acts and rely on it where such evidence is aimed at:

- Clarifying a given context;[2]

- Establishing by inference the elements (in particular, criminal intent) of criminal conduct occurring in 1994;[3]

- Demonstrating a deliberate pattern of conduct.[4]

316. The Appeals Chamber accordingly dismisses the Appellants’ contentions that the Trial Chamber exceeded its jurisdiction or that it breached the fairness of the trial simply because it relied on evidence concerning pre-1994 events.

561. The Appeals Chamber recalls that it has already considered the Trial Chamber’s interpretation of the Tribunal’s temporal jurisdiction and reaffirmed that Article 7 of the Statute does not prevent the admission of evidence of events prior to 1 January 1994, insofar as the Trial Chamber deemed such evidence relevant and of probative value, and there was no compelling reason to exclude it. This applies inter alia to evidence of criminal intent.[5] […]

647. […] The Appeals Chamber considers that paragraph 975 of the Judgement is ambiguous because it does not clearly explain whether the Appellant’s participation in CDR meetings prior to 1 January 1994 is cited as a material element of instigation for which the Appellant incurs individual responsibility pursuant to Article 6(1) of the Statute – which would be ultra vires – or whether this fact is simply mentioned as a contextual fact, or as evidence demonstrating the Appellant’s criminal intent in 1994 – which is permissible.[6] […]

[1] Rule 89(C) of the Rules. See also Aloys Simba v. The Prosecutor, Case No. ICTR-01-76-AR72.2, Decision on Interlocutory Appeal Regarding Temporal Jurisdiction, 29 July 2004, p. 4 (“[…] it will be for the Trial Chamber to decide whether to admit evidence relating to events falling outside the temporal jurisdiction of the Tribunal in accordance with Rule 89(C) of the Rules of Procedure and Evidence of the Tribunal”).

[2] Aloys Simba v. The Prosecutor, Case No. ICTR-01-76-AR72.2, Decision on Interlocutory Appeal Regarding Temporal Jurisdiction, 29 July 2004, p. 3; Aloys Ntabakuze v. The Prosecutor, Case No. ICTR-97-34-A, Decision on the Interlocutory Appeal against the Decision of 13 April 2000 of Trial Chamber III, 13 November 2000, p. 5; Decision of 14 September 2000 on the Interlocutory Appeals [Jean-Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision (Interlocutory Appeals Against the Decisions of the Trial Chamber Dated 11 April and 6 June 2000), 14 September 2000), p. 4; Decision of 5 September 2000, p. 6, and Separate Opinion of Judge Shahabuddeen, paras. 21, 26, 32.

[3] Aloys Simba v. The Prosecutor, Case No. ICTR-01-76-AR72.2, Decision on Interlocutory Appeal Regarding Temporal Jurisdiction, 29 July 2004, p. 3; Emmanuel Rukundo v. The Prosecutor, Case No. ICTR-2001-70-AR72, Decision (Notice of Appeal against Decision of 26 February 2003 on the Preliminary Objections), 17 October 2003, p. 5; Juvénal Kajelijeli v. The Prosecutor, Case No. ICTR-98-44A-T [sic], Appeal Judgement (Appeal against the Decision of 13 March 2001 dismissing the Defence Motion Objecting to the Jurisdiction of the Tribunal), 16 November 2001, p. 4; Decision of 5 September 2000,  Separate Opinion of Judge Shahabuddeen, paras. 9-17.

[4] Rule 93 of the Rules. See also The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Decision on Admissibility of Proposed Testimony of Witness DBY, 18 September 2003, paras. 11-14; Decision of 5 September 2000, Separate Opinion of Judge Shahabuddeen, paras. 20-26. In this respect, the Appeals Chamber recalls that there is a difference between trying to establish a specific deliberate pattern of conduct (expressly permitted under Rule 93 of the Rules) and trying to demonstrate an accused’s propensity to commit crimes (which is impermissible, in view of the low probative value of such a demonstration and its prejudicial effect: See The Prosecutor v. Théoneste Bagosora et al., Cases Nos. ICTR-98-41-AR93 and ICTR-98-41-AR93.2, Decision on Prosecutor’s Interlocutory Appeals Regarding the Exclusion of Evidence, 19 December 2003, paras. 13-14).

[5]Idem, citing Aloys Simba v. the Prosecutor, Case No. ICTR-01-76-AR72.2, Decision on Interlocutory Appeal Regarding Temporal Jurisdiction, 29 July 2004, p. 3; Emmanuel Rukundo v. the Prosecutor, Case No. ICTR-2001-70-AR72, Décision (Acte d’appel relatif à la Décision du 26 février 2003 relative aux exceptions préjudicielles) [Decision (Notice of Appeal from the Decision of 26 February 2003 on the Preliminary Objections)], 17 October 2003, p. 5; Juvénal Kajelijeli v. The Prosecutor, Case No. ICTR-98-44A-T [sic], Appeal Judgement (Appel de la Décision du 13 mars 2001 rejetant la “Defence Motion Objecting to the Jurisdiction of the Tribunal” [Appeal from the Decision of 13 March 2001 dismissing the “Defence Motion Objecting to the Jurisdiction of the Tribunal”]), 16 November 2001, p. 4; Separate Opinion of Judge Shahabuddeen to the Decision of 5 September 2000, paras. 9-17.

[6] See supra VIII. B.

Download full document
Notion(s) Filing Case
Appeal Judgement - 15.07.1999 TADIĆ Duško
(IT-94-1-A)

65. The Appeals Chamber notes that it has been the practice of this Tribunal and of the International Criminal Tribunal for Rwanda (“ICTR”)[1] to accept as evidence the testimony of a single witness on a material fact without need for corroboration. […]  

[1] More fully, the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994.

Download full document
Notion(s) Filing Case
Appeal Judgement - 05.07.2001 JELISIĆ Goran
(IT-95-10-A)

The Trial Chamber convicted Jelisić of counts alleging violations of the laws or customs of war and crimes against humanity, to which he pleaded guilty. After the Prosecution presented its case on the remaining count of genocide, the Trial Chamber acquitted him pursuant to Rule 98bis(B) of the Rules. See paras. 1–5. Jelisić asserts that the sentence he received for the counts to which he pleaded guilty erroneously took into account the Prosecution’s evidence given at the trial for genocide. See para. 85. The Appeals Chamber held: 

87. The Appeals Chamber opines that in imposing sentence it was open to the Trial Chamber to take into account evidence presented during the genocide trial, insofar as that evidence was presented to demonstrate facts or conduct to which the cross-appellant had pleaded guilty.  The important point is that in considering evidence for the purpose of sentencing, the Trial Chamber should afford the cross-appellant an opportunity to test the evidence in cross-examination and/or by way of evidence adduced by the cross-appellant himself. 

Download full document
Notion(s) Filing Case
Decision on Expert Witness - 30.01.2008 POPOVIĆ et al.
(IT-05-88-AR73.2)

20. In a recent Appeal Judgement issued in the Nahimana et al. case, the ICTR Appeals Chamber established that:

C’est à la Chambre de première instance de déterminer si, au vu des éléments présentés par les parties, la personne proposée peut être reconnue en qualité de témoin expert. L’expert est tenu de déposer « dans la plus stricte neutralité en respectant l’objectivité scientifique ». La partie qui souhaite contester la partialité d’un témoin expert peut le faire par la voie du contre-interrogatoire, en faisant comparaître ses propres témoins experts ou au moyen d’une contre-expertise. Comme pour tout moyen de preuve présenté, c’est à la Chambre de première instance qu’il revient d’apprécier la fiabilité et la valeur probante du rapport et de la déposition du témoin expert.[1]

In this Appeal Judgement, the ICTR Appeals Chamber also concurred with the principle set forth in the Brđanin Decision that “the mere fact that an expert witness is employed or paid by a party does not disqualify him or her from testifying as an expert witness”.[2]

21. As properly pointed out by the Trial Chamber, Rule 94bis of the Rules “does not provide specific guidelines on the admissibility of testimony given by expert witnesses, or criteria for the admission of their report”.[3] Trial Chambers have established the following requirements for the admissibility of expert statements or reports: (1) the proposed witness is classified as an expert; (2) the expert statements or reports meet the minimum standards of reliability; (3) the expert statements or reports are relevant and of probative value; (4) the content of the expert statements or reports fall within the accepted expertise of the expert witness.[4] As the Trial Chamber in this case,[5] Trial Chambers have also ruled that “concerns relating to the Witness’ independence and impartiality […] are matter of weight, not admissibility”.[6] Such a statement is consistent with the ICTR Appeals Chamber’s finding in the Nahimana et al. Appeal Judgement, quoted above, that a party alleging bias on the part of an expert witness may demonstrate the said bias through cross-examination, by calling its own expert witness or by means of an expert opinion in reply.[7]

22. [L]ike any evidence, expert evidence is subject to the provisions contained in Rule 89(C) and (D) of the Rules. While this Rule grants Trial Chambers a broad discretion in assessing admissibility of evidence they deem relevant, this discretion is not unlimited. A piece of evidence may be so lacking in terms of the indicia of reliability that it is not probative and therefore inadmissible. This principle should not be interpreted to mean that definite proof of reliability must necessarily be shown for evidence to be admissible. Prima facie proof of reliability on the basis of sufficient indicia is enough at the admissibility stage.[8] The Appeals Chamber notes that in a limited number of instances, Trial Chambers have ruled inadmissible the evidence of a proposed expert witness on the ground that this evidence was so lacking in terms of the indicia of reliability because of lack of impartiality and independence or appearance of bias that it was not probative.[9] Such a determination has to be made on a case-by-case basis.[10] Finally, the Appeals Chamber reemphasizes that the decision by a Trial Chamber to admit evidence does not in any way constitute a binding determination as to its authenticity or credibility. These are matters to be assessed by the Trial Chamber at a later stage in the course of determining the weight to be attached to the evidence in question.[11]

31. […] The extent of Butler’s involvement with the Prosecution in the investigation and preparation of this case can be explored during cross-examination, thus giving the Appellants full opportunity to challenge the admissibility of Butler’s reports.[12] In this respect, it is worth emphasizing again that the Trial Chamber stated that accepting Butler as an expert and calling him to give evidence does not automatically entail that his reports would be admitted as evidence.[13] It is also noteworthy recalling that Judges of the Tribunal, as professional judges, are able to weigh evidence and consider it in its proper context, or when applicable, to disregard any particular piece of evidence they have heard or read.[14] Furthermore, they are required to write a reasoned decision, which is subject to appeal.[15] 

[1] Nahimana et al. Appeal Judgement, para. 199 (footnotes omitted). The official English translation is not available yet, but an unofficial translation is provided below for convenience:

It is for the Trial Chamber to decide whether, on the basis of the evidence presented by the parties, the person proposed can be admitted as an expert witness. The expert is obliged to testify “with the utmost neutrality and with scientific objectivity”. The party alleging bias on the part of an expert witness may demonstrate the said bias through cross-examination, by calling its own expert witnesses or by means of an expert opinion in reply. Just as for any other evidence presented, it is for the Trial Chamber to assess the reliability and probative value of the expert report and testimony.

[2] Nahimana et al. Appeal Judgement, para. 282, quoting Brđanin Decision [Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Decision on Prosecution’s Submission of Statement of Expert Witness Ewan Brown, 3 June 2003], p. 4.

[3] Impugned Decision [Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-T,Decision on Defence Rule 94bis Notice Regarding Prosecution Expert Witness Richard Butler, 19 September 2007], para. 22.

[4] Dragomir Milošević Decision [Prosecutor v. Dragomir Milošević, Case No. IT-98-29/1-T, Decision on Admission of Expert Report of Robert Donia, 15 February 2007], para. 6; Martić Decision of 9 November 2006 [Prosecutor v. Milan Martić, Case No. IT-95-11-T, Decision on Defence’s Submission of the Expert Report of Professor Smilja Avramov Pursuant to Rule 94bis, 9 November 2006], para. 5; Prosecutor v. Milan Martić, Case No. IT-95-11-T, Decision on Defence’s Submission of the Expert Report of Milisav Sekulić Pursuant to Rule 94bis, and on Prosecution’s Motion to Exclude Certain Sections of the Military Expert Report of Milisav Sekulić, and on Prosecution Motion to Reconsider Order of 7 November 2006, 13 November 2006 (“Martić Decision of 13 November 2006”), pp. 3-4.   

[5] Impugned Decision, paras 26-27.

[6] Brđanin Decision, p. 4; Dragomir Milošević Decision, para. 9; Boškoski Decision [Prosecutor v. Ljube Boškoski et al., Case No. IT-04-82-T, Decision on Motion to Exclude the Prosecution’s Proposed Evidence of Expert Bezruchenko and his Report, 17 May 2007], paras 8, 12; Prosecutor v. Slobodan Milosević, Case No. IT-02-54-T, Decision on Admissibility of Expert Report of Kosta Čavoški, 1 March 2006, p. 2; Prosecutor v. Pavle Strugar, Case No. IT-01-42-PT, Decision on the Defence Motions to Oppose Admission of Prosecution Expert Reports Pursuant to Rule 94bis, 1 April 2004, p. 4.

[7] Nahimana et al. Appeal Judgement, para. 199.

[8] Prosecutor v. André Ntagerura et al., Case No. ICTR-99-46-A, Decision on Prosecution Motion for Admission of Additional Evidence, 10 December 2004, para. 22; Georges Anderson Nderubumwe Rutaganda v. Prosecutor, Case No. ICTR-96-3-A, Judgement, 26 May 2003 (“Rutaganda Appeal Judgement”), paras 33, 266; Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-AR73.2, Decision on Application of Defendant Zejnil Delalić for Leave to Appeal against the Decision of the Trial Chamber of 19 January 1998 for the Admissibility of Evidence, 4 March 1998, para. 20.  See, also Prosecutor v. Dario Kordić et al., Case No. IT-95-14/2-AR73.5, Decision on Appeal Regarding Statement of a Deceased Witness, 21 July 2000, para. 24, and Prosecutor v. Dario Kordić et al., Case No. IT-95-14/2-AR73.6, Decision on Appeal Regarding the Admission into Evidence of Seven Affidavits and One Formal Statement, 18 September 2000, para. 24.

[9] In the Akayesu case, the Trial Chamber dismissed a Defence motion for the appearance of a person accused in another case before the ICTR for crimes related to those in its case, on the ground, inter alia, that “an expert must not only be a recognized expert in his field, but must also be impartial in the case” (Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Decision on a Defence Motion for the Appearance of an Accused as an Expert Witness, 9 March 1998 (“Akayesu Decision”), p. 2). In the Milutinović Decision [Prosecutor v. Milan Milutinović et al., Case No. IT-05-87-T, Decision on Prosecution Request for Certification of Interlocutory Appeal of Decision on Admission of Witness Philip Coo’s Expert Report, 30 August 2006], the Trial Chamber found that the proposed expert witness was “too close to the team, in other words to the Prosecution presenting the case, to be regarded as an expert” and that “it could not regard his opinion as bearing the appearance of impartiality on which findings crucial to the determination of guilt of criminal charges might confidently be made” (paras 1, 10). See, also the three following decisions as illustrations of instances in which such an issue was raised: (1) In the Boškoski Decision [Prosecutor v. Ljube Boškoski et al., Case No. IT-04-82-T, Decision on Motion to Exclude the Prosecution’s Proposed Evidence of Expert Bezruchenko and his Report, 17 May 2007], the Trial Chamber stated that “the active involvement of a proposed expert witness in the investigation of the case on behalf of the Prosecution is a factor capable of affecting the reliability of that witness’ Report and potential evidence […] The involvement in a particular case may be such that the reliability of the opinions of the expert cannot be accepted.” (para. 12); (2) Decision on General Smith [Prosecutor v. Vujadin Popović, Case No. IT-05-88-T, Second Decision Regarding the Evidence of General Rupert Smith, 11 October 2007], p. 4, footnotes 14, 15; (3) Martić Decision of 9 November 2006 [Prosecutor v. Milan Martić, Case No. IT-95-11-T, Decision on Defence’s Submission of the Expert Report of Professor Smilja Avramov Pursuant to Rule 94bis, 9 November 2006], para. 10. 

[10] In this respect, the Appeals Chamber rejects the Prosecution’s suggestion that because Butler already testified as an expert witness in other cases, including before the Appeals Chamber, this automatically means that the Joint Defence Appeal should be dismissed.

[11] Rutaganda Appeal Judgement, footnote 63.

[12] In a rather similar instance, the Trial Chamber, after having found that the circumstances of the case were not the same as those in the Milutinović Decision, stated that “[t]he degree of [the expert witness’] connection with the Prosecution can be explored by the Defence in cross-examination and will be taken into account by the Chamber in assessing the weight to be attached to the evidence of the expert witness. It will be open to both Defence teams to examine the extent to which the involvement of [the expert witness] in the interviewing of witnesses and his subsequent reliance on statements and material obtained with his active participation affected the content of his Report and testimony” (Boškoski Decision, para. 12).

[13] Impugned Decision, para. 31.

[14] Prlić Decision on Admission of Transcript [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], para. 57. See, also the Trial Chamber’s statement in the Certification Decision, p. 2, that Bulter’s evidence “can be redacted or disregarded if the Trial Chamber’s finding is reversed”.

[15] Prlić Decision on Admission of Transcript, para. 57.

Download full document
ICTR Rule Rule 89(C);
Rule 94 bis
ICTY Rule Rule 89(C);
Rule 94 bis
Notion(s) Filing Case
Decision on Expert Witness - 30.01.2008 POPOVIĆ et al.
(IT-05-88-AR73.2)

27. The Appeals Chamber recalls that the evidence of an expert witness is meant to provide some specialized knowledge – be it a skill or knowledge acquired through training[1] – that may assist the fact finder to understand the evidence presented.[2] It is established that:

Expert witnesses are ordinarily afforded wide latitude to offer opinions within their expertise; their views need not be based upon firsthand knowledge or experience. Indeed, in the ordinary case the expert witness lacks personal familiarity with the particular case, but instead offers a view based on his or her specialized knowledge regarding a technical, scientific, or otherwise discrete set of ideas or concepts that is expected to lie outside the lay person’s ken.[3]

29. The Appeals Chamber is of the opinion that the fact that Butler may have acquired his knowledge on the organization and the general procedures of the VRS solely as a result of his six years of employment with the Prosecution – an allegation which is not substantiated by the Appellants – does not in itself affect his qualification as an expert. In this respect, the Appeals Chamber underlines the Trial Chamber’s ruling that before admitting Butler’s evidence, it will have to determine, inter alia, “whether there is transparency in the methods and sources used by the expert witness, including the established or assumed facts on which the expert witness relied”.[4] The Appeals Chamber further recalls that firsthand knowledge or experience is not required for qualifying as an expert;[5] thus the Appellants’ argument related to Butler’s lack of working experience with the VRS is without merit.

[1] Nahimana et al. Appeal Judgement, para. 198; Prosecutor v. Casimir Bizimungu et al., Case No. ICTR-99-50-T, Oral Ruling on Qualification of Expert Witness Mbonyinkebe, 2 May 2005; Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Oral Decision on the Qualification of Mr. Edmond Babin as Defence Expert Witness, 13 April 2005, para. 5; Brđanin Decision, p. 4; Prosecutor v. Stanislav Galić, IT-98-29-T, Decision on the Expert Witness Statements Submitted by the Defence, 27 January 2003, p. 3.

[2] Semanza Appeal Judgement [Laurent Semanza v. Prosecutor, Case No. ICTR-97-20-A, Judgement, 20 May 2005], para. 303. See also Nahimana et al. Appeal Judgement, para. 198; Prosecutor v. Casimir Bizimungu et al., Case No. ICTR-99-50-T, Decision on Casimir Bizimungu’s Urgent Motion for the Exclusion of the Report and Testimony of Déo Sebahire Mbonyinkebe (Rule 89(C)), 2 September 2005, para. 11; Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Decision on Motion for Exclusion of Expert Witness Statement of Filip Reyntjens, 28 September 2004, para. 8; Akayesu Decision, p. 2.

[3] Semanza Appeal Judgement, para. 303; Nahimana et al. Appeal Judgement, para. 198.

[4] Impugned Decision, paras 30-31 (footnotes omitted).

[5] See, supra, para. 27.

Download full document
Notion(s) Filing Case
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.

Download full document
Notion(s) Filing Case
Decision on Impeachment - 01.02.2008 POPOVIĆ et al.
(IT-05-88-AR73.3)

32. The Tribunal’s professional Judges, as noted by the Trial Chamber, are competent to assess the truthfulness and to accord the proper weight to a witness’ evidence.[1] The decision as to whether a particular piece of evidence will be admitted for the purposes of assessing a witness’ credibility and/or for the substance therein must be left to the Trial Chamber’s discretion.

See also Delić Decision on Admission of Exhibits, para. 22.

[1] Prosecutor v. Vujadin Popović, Case No. IT-05-88-AR73.2, Decision on Joint Defence Interlocutory Appeal Concerning the Status of Richard Butler as an Expert Witness, 30 January 2008, para. 31; [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], para. 57.

Download full document
ICTR Rule Rule 89(C) ICTY Rule Rule 89(C)
Notion(s) Filing Case
Appeal Judgement - 19.09.2005 KAMUHANDA Jean de Dieu
(ICTR-99-54A-A)

31. […] the Appellant relies on the Appeal Judgement in Musema, which, in his view, found that when a Trial Chamber did not refer to a particular piece of evidence, it could be presumed that the Trial Chamber did not take this piece of evidence into account.[1]

32. Contrary to the Appellant’s view, Musema does not stand for such a proposition. In that case, the Appeals Chamber did not suggest that a Trial Chamber could be presumed to have ignored a piece of evidence just because it did not mention it in the Judgement. Rather, the Appeals Chamber held, in the paragraph cited by the Appellant, that it could be presumed (absent particular circumstances suggesting otherwise) that the Trial Chamber chose not to “rely on” an unmentioned piece of evidence—that is, that it considered the evidence but decided that it was either not reliable or otherwise not worth citing in the Judgement.[2] The Appeals Chamber in Musema furthermore expressly acknowledged that

… a Trial Chamber is not required to articulate in its judgement every step of its reasoning in reaching a particular finding. Although no particular evidence may have been referred to by a Chamber, it may nevertheless be reasonable to assume in the light of the particular circumstances of the case, that the Trial Chamber had taken it into account. Hence, where a Trial Chamber did not refer to any particular evidence in its reasoning, it is for the appellant to demonstrate that both the finding made by the Trial Chamber and its failure to refer to the evidence had been disregarded.[3]

Moreover, the reading of Musema proffered by the Appellant is inconsistent with the subsequent case law of the Appeals Chamber, which clearly establishes that a Trial Chamber is not obligated to identify and discuss in the Judgement each and every piece of evidence that it has considered.[4]

[1] Reply Brief [Brief in Reply to the Respondent’s Brief, 27 April 2005], para. 86. See also Appeal Brief [Appeal Brief – Pursuant to Rule 111 of the Rules of Procedure and Evidence, 19 October 2004], para. 66, quoting Musema Appeal Judgement, para. 118.

[2] Musema Appeal Judgement, para. 118.

[3] Musema Appeal Judgement, para. 277 (citations omitted).

[4] See, e.g., Semanza Appeal Judgement, paras. 130, 139; Rutaganda Appeal Judgement para. 536; Čelebići Case Appeal Judgement, para. 481.

Download full document
ICTR Statute ICTY Statute
Notion(s) Filing Case
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).

Download full document
Notion(s) Filing Case
Appeal Judgement - 29.09.2014 NIZEYIMANA Ildéphonse
(ICTR-00-55C-A)

101. […] [T]hat a fact is mentioned during a witness’s testimony but omitted from the same witness’s statement does not necessarily imply a material inconsistency,[1] […].

[1] See Kajelijeli Appeal Judgement, para. 176.

Download full document
Notion(s) Filing Case
Appeal Judgement - 29.09.2014 NIZEYIMANA Ildéphonse
(ICTR-00-55C-A)

Fn. 784. The Appeals Chamber recalls that in other cases it has affirmed the use of background evidence as circumstantial corroboration of an otherwise credible witness’s testimony. See, e.g., Bagosora and Nsengiyumva Appeal Judgement, paras. 255, 257.

Download full document
Notion(s) Filing Case
Appeal Judgement - 23.01.2014 ŠAINOVIĆ et al.
(IT-05-87-A)

1055.  […] Further, a trial chamber’s conclusion on the individual criminal responsibility of an accused is the result of a complex evaluation of all the evidence presented in relation to that accused.[1] Thus, while the assessment of the conduct of co-accused in general, and of alleged members of a JCE in particular, will often depend on evidence of their involvement in the same events, they will not necessarily be considered alike. Any given case contains a multitude of variables and “[t]o focus on one or two variables that are similar to the exclusion of numerous others that differ will not suffice to make the cases […] analogous”.[2] The appellant bears the burden of showing that the Trial Chamber’s findings in relation to his own participation in the commission of the crime were unreasonable.

[1] See Halilović Appeal Judgement, para. 125, quoting Ntagerura et al. Appeal Judgement, para. 174, where the Appeals Chamber held: “Only after the analysis of all the relevant evidence, can the Trial Chamber determine whether the evidence upon which the Prosecution relies should be accepted as establishing the existence of the facts alleged, notwithstanding the evidence upon which the Defence relies.” See also Halilović Appeal Judgement, para. 128.

[2] Cf. Kvočka et al. Appeal Judgement, para. 696, where the Appeals Chamber made this observation particularly in relation to the sentences imposed in that case.

Download full document
Notion(s) Filing Case
Appeal Judgement - 20.05.2005 SEMANZA Laurent
(ICTR-97-20-A)

303. The purpose of expert testimony is to supply specialized knowledge that might assist the trier of fact in understanding the evidence before it.  Expert witnesses are ordinarily afforded wide latitude to offer opinions within their expertise; their views need not be based upon firsthand knowledge or experience.  Indeed, in the ordinary case the expert witness lacks personal familiarity with the particular case, but instead offers a view based on his or her specialized knowledge regarding a technical, scientific, or otherwise discrete set of ideas or concepts that is expected to lie outside the layperson’s ken.    

Download full document
Notion(s) Filing Case
Appeal Judgement - 20.05.2005 SEMANZA Laurent
(ICTR-97-20-A)

189. […] [I]t was proper for the Chamber to apply Rule 89 of the Rules, which is the general provision that governs the admission of evidence at trial, providing at paragraph (C) that “a Chamber may admit any relevant evidence which it deems to have probative value.”[1]  The Appeals Chamber affirms that Rule 94 of the Rules is not a mechanism that may be employed to circumvent the ordinary requirement of relevance and thereby clutter the record with matters that would not otherwise be admitted.[2]  Therefore, the Appeals Chamber concludes that the Trial Chamber did not err in applying Rule 89 in addition to Rule 94 of the Rules.

[1] Rule 89(C).

[2] Momir Nikolic v. Prosecutor, Case No. IT-002-60/1-A, Decision on Appellant’s Motion for Judicial Notice, 5 April 2005, para. 17.

Download full document
ICTR Rule Rule 89(C);
Rule 94
ICTY Rule Rule 89(C);
Rule 94
Notion(s) Filing Case
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.

Download full document
Notion(s) Filing Case
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.

Download full document
Notion(s) Filing Case
Appeal Judgement - 20.10.2010 RUKUNDO Emmanuel
(ICTR-2001-70-A)

76. The Appeals Chamber recalls its holding in the Nahimana et al. Appeal Judgement that:

two testimonies corroborate one another when one prima facie credible testimony is compatible with the other prima facie credible testimony regarding the same fact or a sequence of linked facts. It is not necessary that both testimonies be identical in all aspects or describe the same fact in the same way. 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. 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.[1] See also para. 201.

[1] Nahimana et al. Appeal Judgement, para. 428. See also Karera Appeal Judgement, para. 173.

Download full document
Notion(s) Filing Case
Appeal Judgement - 20.10.2010 RUKUNDO Emmanuel
(ICTR-2001-70-A)

67. The Appeals Chamber recalls that a reasonable Trial Chamber must take into account the difficulties associated with identification evidence in a given case and must carefully evaluate any such evidence before accepting it as the basis for sustaining a conviction.[1] […] See also para195.

[1] Limaj et al. Appeal Judgement, para. 30; Kamuhanda Appeal Judgement, para. 234; Kupreškić et al. Appeal Judgement, para. 34.

Download full document
Notion(s) Filing Case
Appeal Judgement - 20.10.2010 RUKUNDO Emmanuel
(ICTR-2001-70-A)

86. The Appeals Chamber recalls that a Trial Chamber has the discretion to accept a witness’s evidence, notwithstanding inconsistencies between the said evidence and his or her previous statements, as it is up to the Trial Chamber to determine whether an alleged inconsistency is sufficient to cast doubt on the evidence of the witness concerned.[1] […]

207. The Appeals Chamber recalls that the Trial Chamber has the main responsibility to resolve any inconsistencies that may arise within or amongst witnesses’ testimonies.[2] 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.[3]

[1] Kajelijeli Appeal Judgement, para. 96. See also Rutaganda Appeal Judgement, para. 443; Musema Appeal Judgement, para. 89.

[2] Simba Appeal Judgement, para. 103.

[3] Simba Appeal Judgement, para. 103.

Download full document
Notion(s) Filing Case
Decision on Admissibility of Evidence - 02.07.2004 NTAHOBALI & NYIRAMASUHUKO
(ICTR-97-21-AR73)

14. […] [W]hilst it may be the case that the allegation of witness RV in relation to Nyiramasuhuko’s presence at the installation of Ndayambaje in Muganza commune is not specifically pleaded in the indictment, this alone does not render the evidence inadmissible.

15. Indeed, pursuant to Rule 89(C) of the Rules, the Trial Chamber may admit any relevant evidence which it deems to have probative value. It should be recalled that admissibility of evidence should not be confused with the assessment of the weight to be accorded to that evidence, an issue to be decided by the Trial Chamber after hearing the totality of the evidence. Consequently, although on the basis of the present indictment it is not possible to convict Nyiramasuhuko in respect of her presence at the installation of Ndayambaje, evidence of this meeting can be admitted to the extent that it may be relevant to the proof of any allegation pleaded in the Indictment.

16. The Appeals Chamber considers therefore that the Trial Chamber acted within its discretion in dismissing the Appellants’ request to declare the evidence of witness RV inadmissible.

Download full document
ICTR Rule Rule 89(C) ICTY Rule Rule 89(C)
Notion(s) Filing Case
Appeal Judgement - 24.03.2000 ALEKSOVSKI Zlatko
(IT-95-14/1-A)

62. Neither the Statute nor the Rules oblige a Trial Chamber to require medical reports or other scientific evidence as proof of a material fact.  Similarly, the testimony of a single witness on a material fact does not require, as a matter of law, any corroboration.  The only Rule directly relevant to the issue at hand is Rule 89.  In particular, sub-Rule 89(C) states that a Chamber “may admit any relevant evidence which it deems to have probative value”, and sub-Rule 89(D) states that a Chamber “may exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial”. 

Download full document
ICTR Rule Rule 89(C)
Rule 89(D)
ICTY Rule Rule 89(C)
Rule 89(D)
Notion(s) Filing Case
Appeal Judgement - 24.03.2000 ALEKSOVSKI Zlatko
(IT-95-14/1-A)

63. Trial Chambers are best placed to hear, assess and weigh the evidence, including witness testimonies, presented at trial.  Whether a Trial Chamber will rely on single witness testimony as proof of a material fact, will depend on various factors that have to be assessed in the circumstances of each case.[1]  In a similar vein, it is for a Trial Chamber to consider whether a witness is reliable and whether evidence presented is credible.  The Appeals Chamber, therefore, has to give a margin of deference to the Trial Chamber’s evaluation of the evidence presented at trial.  The Appeals Chamber may overturn the Trial Chamber’s finding of fact only where the evidence relied on could not have been accepted by any reasonable tribunal[2] or where the evaluation of the evidence is wholly erroneous.

[1] Tadi} Judgement, para. 65.

[2] Ibid.

Download full document
Notion(s) Filing Case
Decision on Admissibility of Evidence - 16.02.1999 ALEKSOVSKI Zlatko
(IT-95-14/1-AR73)

15. It is well settled in the practice of the Tribunal that hearsay evidence is admissible. Thus relevant out of court statements which a Trial Chamber considers probative are admissible under Rule 89(C). […] Trial Chambers have a broad discretion under Rule 89(C) to admit relevant hearsay evidence. Since such evidence is admitted to prove the truth of its contents,[1] a Trial Chamber must be satisfied that it is reliable for that purpose, in the sense of being voluntary, truthful and trustworthy, as appropriate; and for this purpose may consider both the content of the hearsay statement and the circumstances under which the evidence arose;[2] or, as Judge Stephen described it, the probative value of a hearsay statement will depend upon the context and character of the evidence in question.[3] The absence of the opportunity to cross-examine the person who made the statements, and whether the hearsay is "first-hand" or more removed, are also relevant to the probative value of the evidence.[4] The fact that the evidence is hearsay does not necessarily deprive it of probative value, but it is acknowledged that the weight or probative value to be afforded to that evidence will usually be less than that given to the testimony of a witness who has given it under a form of oath and who has been cross-examined, although even this will depend upon the infinitely variable circumstances which surround hearsay evidence.[5]

[1] Prosecutor v. Tadić, Case No. IT-94-1-T, 5 Aug. 1996, at paras. 15-19; Prosecutor v. Blaškić, Case No. IT-95-14-T, 21 Jan. 1998, at para. 10.

[2] Prosecutor v. Tadić, Case No. IT-94-1-T, 5 Aug. 1996, at paras. 15-19.

[3] Prosecutor v. Tadić, Case No. IT-94-1-T, 5 Aug. 1996 at p. 3 of Judge Stephen’s concurring opinion.

[4] Prosecutor v. Blaškić, Case No. IT-95-14-T, 21 Jan. 1998, at para. 12.

[5] Prosecutor v. Tadić, Case No. IT-94-1-T, 5 Aug. 1996 at pp. 2-3 of Judge Stephen’s concurring opinion.

Download full document
ICTR Rule Rule 89(C) ICTY Rule Rule 89(C)
Notion(s) Filing Case
Appeal Judgement - 03.07.2002 BAGILISHEMA Ignace
(ICTR-95-IA-A)

79. […] [I]t is well settled that “the testimony of a single witness on a material fact may be accepted as evidence without the need for corroboration.”[1] However, the Appeals Chamber considers that this jurisprudence cannot be interpreted to mean that a Trial Chamber cannot resort to corroboration; the Trial Chamber can do so by virtue of its discretion. […]

[1] Kayishema/Ruzindana Appeal Judgement, para. 154, citing the Tadić Appeal Judgement, para. 65, the Aleksovski Appeal Judgement, para. 62 and the Čelebići Appeal Judgement, paras. 492 and 506.

Download full document
Notion(s) Filing Case
Appeal Judgement - 03.07.2002 BAGILISHEMA Ignace
(ICTR-95-IA-A)

66. […] Where, as in the present case, the Prosecution is directed by the Trial Chamber to obtain further material, the Prosecution cannot rely upon Rule 98, as that rule contemplates that the party to which the direction is given will itself tender the further material in evidence as part of its case. The Trial Chamber does, however, have a clear power – as part of its duty to ensure that the trial is properly conducted – to direct the Prosecution to obtain material which may be relevant to the case of the accused. In such a case, the further material should be produced, not only to the Trial Chamber, but also to the accused. If any use is to be made of that material during the trial, it must either be elicited in evidence from a witness or tendered in evidence itself.[1]

[…]

70. […] The Appeals Chamber cannot accept the argument that the Trial Chamber in this case was under a duty to ensure that the Witnesses were called back, under the pretext that the Chamber itself had asked that the statements of the Witnesses be made available. It is the sole responsibility of the party that claims to have suffered prejudice, in this case, the Prosecution, to request the Trial Chamber to have the Witnesses called back and to justify such a request.

See also paras. 67-69.

[1] Prosecutor v Slobodan Milošević, IT-02-54-AR73.2, Decision on Admissibility of Prosecution Investigator’s Evidence, 30 September 2002, para. 24: “It would of course be quite wrong for the Trial Chamber, in determining the issues in the trial, to refer to material which may be available to it but which is not in evidence […].”

Download full document
ICTR Rule Rule 98 ICTY Rule Rule 98
Notion(s) Filing Case
Appeal Judgement - 14.12.2011 BAGOSORA et al. (Military I)
(ICTR-98-41-A)

226. The Appeals Chamber also reiterates that hearsay evidence from an expert witness is admissible as long as it has probative value and remains within the proper purview of expert evidence.[1] Witness Des Forges provided testimony as an expert on, inter alia, the historical and political developments leading up to the genocide.[2] The Appeals Chamber considers that her testimony on the civil defence system fell within the ambit of her professional expertise on the historical and political framework of the crimes committed in 1994 in Rwanda. […] Further, as is usual for the establishment of historical facts, Witness Des Forges relied on a variety of sources for her conclusions.[3] This may include hearsay information.

[1] See Nahimana et al. Appeal Judgement, para. 509. The Appeals Chamber recalls that the role of expert witnesses is to assist the Trial Chamber in its assessment of the evidence before it, and not to testify on disputed facts as would ordinary witnesses. See idem.

[2] See Alison Des Forges, T. 17 September 2002, 24 September 2002, 25 September 2002, 18 November 2002, 19 November 2002. See also Exhibit P2A (Expert Report of Alison Des Forges), confidential.

[3] See Exhibit P2A (Expert Report of Alison Des Forges), confidential.

Download full document
Notion(s) Filing Case
Appeal Judgement - 14.12.2011 BAGOSORA et al. (Military I)
(ICTR-98-41-A)

225. […] the Appeals Chamber recalls that expert witnesses are ordinarily afforded significant latitude to offer opinions within their expertise; their views need not be based upon first-hand knowledge or experience.[1] In general, an expert witness lacks personal familiarity with the particular case and offers a view based on his or her specialised knowledge regarding a technical, scientific, or otherwise discrete set of ideas or concepts that is expected to lie outside the lay person’s ken.[2]

[1] Renzaho Appeal Judgement, para. 287; Nahimana et al. Appeal Judgement, para. 198; Semanza Appeal Judgement, para. 303.

[2] Renzaho Appeal Judgement, para. 287; Nahimana et al. Appeal Judgement, para. 198; Semanza Appeal Judgement, para. 303.

Download full document
Notion(s) Filing Case
Reconsideration Appeal Decision - 03.11.2009 PRLIĆ et al.
(IT-04-74-AR73.16)

13. As the Appellant has noted, pursuant to Guidelines 9(a)(iii) and 9(a)(vi) issued by the Trial Chamber, in seeking the admission of the documents, the party is required to provide references to the relevant paragraphs of the Indictment and reasons why it considered the documents important for the determination of the case. […] However, the Appeals Chamber underscores that the Guidelines must be interpreted in the light of the Rules and the jurisprudence. When introducing documentary evidence pursuant to Rule 89(C) of the Rules, the parties must explain how the content of the document relates to a material issue.[1] This issue is a question of fact and depends upon the circumstances of each case. The Appeals Chamber must accord considerable deference to the Trial Chamber’s discretion in its evaluation of the relevance of the documentary evidence.

[1] See Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.13, Decision on Jadranko Prlić’s Consolidated Interlocutory Appeal Against the Trial Chamber’s Orders of 6 and 9 October 2008 on Admission of Evidence, 12 January 2009 (“Prlić 12 January Decision”), para. 17, citing Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Appellants Jean-Bosco Barayagwiza’s and Ferdinand Nahimana’s Motions for Leave to Present Additional Evidence Pursuant to Rule 115, 12 January 2007, paras 7, 13, 18-20 and The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-AR73, Decision on Pauline Nyiramasuhuko’s Request for Reconsideration, 27 September 2004, para. 12.

Download full document
ICTR Rule Rule 89(C) ICTY Rule Rule 89(C)
Notion(s) Filing Case
Reconsideration Appeal Decision - 03.11.2009 PRLIĆ et al.
(IT-04-74-AR73.16)

32. The Appeals Chamber notes that the Appellant’s assertion that authenticity is an issue wholly divorced from the admissibility of evidence is based on a misapprehension of the Tribunal’s case law. In support of his submission that the Trial Chamber erroneously “refused reconsideration for documents initially rejected for lack of authenticity under the heading of reliability”,[1] the Appellant cites an Appeals Chamber decision in the Delalić case.[2] 

34. Authenticity may be similarly viewed in terms of the distinction between prima facie proof and definite proof. Prima facie proof of authenticity is appropriate at the admissibility stage, whereas definitive proof of authenticity is relevant to evidentiary weight later on in the proceedings. Authenticity relates to whether a document is what it professes to be in origin or authorship. It may therefore be relevant in assessing whether a document is prima facie reliable. Thus, whether a document bears basic features indicative of prima facie authenticity may, in the individual circumstances facing a Trial Chamber, be relevant to the underlying factor of prima facie reliability. Conversely, definitive proof of authenticity is an issue relevant to the evidentiary weight to be assigned to a document after admission. [3]

35. The Delalić Decision upon which the Appellant relies does not support his position. Rather, the Delalić Decision clarifies that it is erroneous to claim that strict proof of authenticity constitutes a separate and distinct requirement to the prerequisites of relevance and probative value of Rule 89(C) of the Rules.  The Delalić Decision states that:

The Applicant submits that where the tendering party has not proven the authenticity of a document then that document is necessarily irrelevant and of no probative value; hence it should be excluded. Sub-rule 89(E), whereby “[a] Chamber may request verification of the authenticity of evidence obtained out of court”, cited by the Applicant, does not operate as a pre-condition to bar the admissibility of evidence under Sub-rule 89(C). There is no legal basis for the Applicant’s argument that proof of authenticity is a separate threshold requirement for the admissibility of documentary evidence.[4]

With regard to the notion that definitive proof of authenticity is an element of admissibility:

The implicit requirement that a piece of evidence be prima facie credible – that it have sufficient indicia of reliability – is a factor in the assessment of its relevance and probative value. To require absolute proof of a document’s authenticity before it could be admitted would be to require a far more stringent test than the standard envisioned by Sub-rule 89(C).[5]

36. The Appeals Chamber notes that the Trial Chamber correctly applied the foregoing standards.  The Appellant’s submission that the Trial Chamber refused reconsideration due to the fact that it erroneously subsumed authenticity under the heading of reliability is therefore unmeritorious.

[1] See Appeal [Jadranko Prlić’s Interlocutory Appeal Against the Decision on Prlić Defence Motion for Reconsideration of the Decision on Admission of Documentary Evidence, 23 July 2009], para. 35.

[2] Appeal, fn. 57. The Appellant cites Prosecutor v. Zejnil Delalić, Zdravko Mucić (aka “Pavo”), Hazim Delić and Esad Landžo (aka “Zenga”), Case No. IT-96-21-AR73.2, Decision on Application of Defendant Zejnil Delalić for Leave to Appeal Against the Decision of the Trial Chamber of 19 January 1998 for the Admissibility of Evidence, 4 March 1998 (“Delalić Decision”).

[3] Id.

[4] Delalić Decision, para. 25. (Emphasis inserted).

[5] Id., para. 20. (Emphasis inserted). See also the Naletilić Appeal Judgement which states at para. 402 that “[t]here is no separate threshold requirement for the admissibility of documentary evidence.” (Emphasis inserted).

Download full document
ICTR Rule Rule 89(C) ICTY Rule Rule 89(C)
Notion(s) Filing Case
Reconsideration Appeal Decision - 03.11.2009 PRLIĆ et al.
(IT-04-74-AR73.16)

27. Contrary to the arguments of the Appellant, the Trial Chamber did not require strict proof of reliability, but some indicia of prima facie reliability. The Trial Chamber considered that crucial to an informed assessment of the prima facie relevance of proposed documentary evidence is the provision of such basic information as the sources and dates of the documents in question, information which, in essence, allows the entities responsible for the contents of the documents and the periods in time to which those contents relate, to be identified.  It found that the documents excluded on this basis did “not contain the indicia necessary for the Chamber to rule on the admission of a piece of evidence.”[1] This finding was well within the exercise of the Trial Chamber’s discretion and the Appellant has failed to demonstrate any error in that regard.

33. Relevance and probative value are the two prerequisites of admissibility under Rule 89(C) of the Rules. In order to assess whether proposed evidence satisfies both prerequisites, consideration is given to an item of evidence’s prima facie reliability.[2] Prima facie reliability does not however constitute a separate and additional prerequisite under Rule 89(C) of the Rules, but is an underlying factor relevant in determining whether the prerequisites of relevance and probative value have been met. Thus, prima facie reliability “is a factor in the assessment of its relevance and probative value”.[3] Also, definitive proof of reliability is not required at the admissibility stage.[4] Rather, it is an issue to be assessed at a later stage in the course of determining the weight to be attached to the evidence after its admission.[5]

[1] Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-T, Decision on Prlić Defence Motion for Admission of Documentary Evidence, 6 March 2009, para. 28. Thus, for example, proposed exhibit 1D02359 comprises a newspaper article, which lists only the names of its three authors. It does not provide the name of the publication with which the authors were affiliated, nor does it refer to the publication date, or a date or period in time to which the events and issues discussed in the article relate.

[2] Georges Anderson Nderubumwe Rutaganda v. The Prosecutor, Case No. ICTR-96-3-A, Judgement, 26 May 2003 (“Rutaganda Appeal Judgement”), paras 33 and 266; Delalić Decision, para. 20; Prlić 12 January Decision, para. 15; Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-AR73.2, Decisión on Joint Defence Interlocutory Appeal Concerning the Status of Richard Butler as an Expert Witness, 30 January 2008, (“Popović Decisión”), para. 22.

[3] Prosecutor v. Mladen Naletilić, a.k.a. “Tuta”, Vinka Matinović, a.k.a. “[tela”, Case No. IT-98-34-A, Judgement, 3 May 2006,  para. 402. (Emphasis inserted). See also Delalić Decision, para. 20.

[4] Popović Decision, para. 22.

[5] Id.

Download full document
ICTR Rule Rule 89(C) ICTY Rule Rule 89(C)
Notion(s) Filing Case
Appeal Judgement - 18.03.2010 BIKINDI Simon
(ICTR-01-72-A)

97. The Appeals Chamber has not considered the video recording of the site visit, as it is not part of the record. The Appeals Chamber strongly emphasises that a detailed record of a Trial Chamber’s site visit should normally be maintained[1] and form part of the trial record. The purpose of a site visit is to assist a Trial Chamber in its determination of the issues, and therefore it is incumbent upon the Trial Chamber to ensure that the parties are able to review effectively any findings made by the Trial Chamber in reliance on observations made during the site visit.[2]

[1] See Zigiranyirazo Appeal Judgement, para. 36; Karera Appeal Judgement, para. 50.

[2] Karera Appeal Judgement, para. 50. 

Download full document
Notion(s) Filing Case
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.

Download full document
Notion(s) Filing Case
Decision - 08.04.2003 BLAGOJEVIĆ et al.
(IT-02-60-AR73, IT-02-60-AR73.2, IT-02-60-AR73.3)

22.     A Trial Chamber of the International Tribunal is in nature both a trier of fact and an arbiter of questions of law.  Authorised by the Statute and the Rules to make factual findings on the basis of evidence presented by the parties, the Trial Chamber relies on the factual findings to determine the guilt or innocence of the accused.  In that sense, the factual findings, subject to appeal and review, are parts of the truth proved beyond reasonable doubt.[1]  It does not, however, follow that the Trial Chamber, by assessing evidence presented by the parties, will be discharging some of the prosecutorial responsibilities.

[1] See Rule 87 (A) and Prosecutor v. Delalić et al., Case No. IT-96-21-A, Judgement, 20 February 2001, Appeals Chamber, par 459.  Both show that the standard of proof at trial is that of proof beyond reasonable doubt. In civil law countries, search for truth in criminal trial is regarded as a basic principle, often known as the principle of instruction: Christine van den Wyngaert et al., Criminal Procedure Systems in the European Community (Butterworths, London, 1993), pp. 18 (Belgium), 145 (Germany), 292 (Netherlands) and 324 (Portugal).  The related principle of freedom in evaluation of evidence is also common to the criminal justice systems of Continental European countries.

Download full document
Notion(s) Filing Case
Appeal Judgement - 19.05.2010 BOŠKOSKI & TARČULOVSKI
(IT-04-82-A)

Tarčulovski claimed that the Trial Chamber had erred in law and in fact by admitting into evidence three statements (“Statements”) made by Tarčulovski to the Commission for Inquiry of the Former Yugoslav Republic of Macedonia (“FYROM”). The Appeals Chamber held[1] that there was “no incongruity in the Trial Chamber admitting evidence deemed to be ‘an apparently reliable record of the Accused’s understanding of these events’[2] and proceeding to reject virtually all of what the statement said’”. It concluded that the Trial Chamber “was entitled to admit the Statements as accurately representing Tarčulovski’s evidence before the Commission for Inquiry”.[3] It further held:

190. The proposition advanced by Tarčulovski, namely, that the Tribunal should create a privilege to exclude statements made during the course of a national investigation of suspected war crimes, would unduly compromise the Tribunal’s discretion to admit evidence under Rule 89 of the Rules. Such an exemption could potentially preclude the Tribunal from considering vital pieces of evidence and consequently undermine the Tribunal’s ability to fulfil its mandate to prosecute persons accused of serious violations of international humanitarian law in the territory of the former Yugoslavia since 1991.[4]

191. The Appeals Chamber further considers that the creation of the aforementioned privilege could create an impromptu immunity, allowing those responsible for the commission of war crimes to comply with national investigations and thereafter rely on the exemption to exclude incriminatory evidence from subsequent criminal proceedings.

194. Further, the Appeals Chamber notes that Tarčulovski has failed to identify a “general principle of law” to support his argument. The fact that the Statements were inadmissible before FYROM courts is insufficient to support the claim that such a general principle of law exists. In this context, the Appeals Chamber observes that out-of-court statements made by an accused are admissible in a number of common law[5] and civil law[6] jurisdictions.

[1] Appeal Judgement, para. 187.

[2] Decision of 10 December 2007 [Prosecutor v. Ljube Boškoski and Johan Tarčulovski, Case No. IT-04-82-T, Decision on Prosecution’s Motion for admission into Evidence of Documents MFI P251, P379 and P435, 10 December 2007 (confidential)], para. 41.

[3] Appeal Judgement, para. 188.

[4] Article 1 of the Statute.

[5] Sections 81 and 82 of the Evidence Act of 1995 (Australia); Section 76 of the Police and Criminal Evidence Act of 1984, Sections 114 and 118 of the Criminal Justice Act 2003 (United Kingdom); R. v. C. (B.), (1993) 62 O.A.C. 13, para. 12 (Canada); Section 3(1) of the Law of Evidence Amendment Act No. 45 of 1988 and Section 219A of the Criminal Procedure Act 51 of 1977 (South Africa).

[6] Article 427 of the Code de procédure pénale (France); Article 322 of Keiji sosho ho (Code of Criminal Procedure), (Japan).

Download full document
ICTR Rule Rule 89(B) ICTY Rule Rule 89(B)
Notion(s) Filing Case
Appeal Judgement - 19.05.2010 BOŠKOSKI & TARČULOVSKI
(IT-04-82-A)

193. The Appeals Chamber recalls that Rule 89(A) of the Rules specifically provides that the Tribunal is not bound by national rules of evidence.[1] Furthermore, the Tribunal’s jurisprudence confirms that evidence inadmissible under domestic law is not necessarily inadmissible in proceedings before the Tribunal.[2]

[1] The Appeals Chamber notes with approval the Prosecution Response Brief, para. 166 (fn. 545).

[2] See Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-AR73, Decision on Prosecutor’s Appeal on Admissibility of Evidence, 16 February 1999, para. 19; Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Decision on the Defence “Objection to Intercept Evidence”, 3 October 2003, paras 53-54; Orić Order of 21 October 2004, para. 8.

Download full document
ICTR Rule Rule 89(A) ICTY Rule Rule 89(A)
Notion(s) Filing Case
Vujin Contempt Appeal Judgement - 31.01.2000 TADIĆ Duško
(IT-94-1-A-R77)

92. The first such matter of principle is that a tribunal of fact must never look at the evidence of each witness separately, as if it existed in a hermetically sealed compartment; it is the accumulation of all the evidence in the case which must be considered. The evidence of one witness, when considered by itself, may appear at first to be of poor quality, but it may gain strength from other evidence in the case.[1] The converse also holds true.

[1] These propositions are not new. For a discussion of them in the domestic context, see, in Australia: Chamberlain v The Queen (1984) 153 CLR 521 at 535 (High Court of Australia); Regina v Heuston (1995) 81 A Crim R 387 at 391 (New South Wales Court of Criminal Appeal); in New Zealand: Thomas v The Queen [1972] NZLR 34 at 37-38 (New Zealand Court of Appeal); Police v Pereira [1977] 1 NZLR 547 at 532-533 (Supreme Court, Auckland); and in Canada: Regina v Morin [1988] 2 SCR 345 at 358 (Supreme Court of Canada); Regina v MacKenzie [1993] 1 SCR 212 (Supreme Court of Canada).

Download full document
Notion(s) Filing Case
Vujin Contempt Appeal Judgement - 31.01.2000 TADIĆ Duško
(IT-94-1-A-R77)

93. The second matter of principle of general application is the weight to be given to a statement made by a witness out of court which is inconsistent with his or her evidence in court. Where such out of court statement is merely hearsay, the common law denies it any value as evidence of the truth of what had been said out of court, and restricts its relevance to the issue of the witness’s credit.[1] On the other hand, the civil law admits the hearsay material without restriction, provided that it has probative value; the weight to be afforded to it as evidence of the truth of what was said is considered at the end of all the evidence. This Tribunal has, by its Rules, effectively rejected the common law approach. Rule 89(C) provides:

A Chamber may admit any relevant evidence which it deems to have probative value.

The application of that Rule was considered at the trial of Tadié, in a decision which was not challenged in the appeal.[2] The Appeals Chamber has since held that is now well settled in the practice of the Tribunal that hearsay material having probative value is admissible so as to prove the truth of what was said,[3] acknowledging nevertheless that the weight to be afforded to that material will usually be less than that given to the testimony of a witness who has given it under a form of oath and who has been cross-examined, although even this will depend upon the infinitely variable circumstances which surround hearsay material.[4]

[1] In Australia, however, the common law has now been modified in certain circumstances to enable such evidence, once admitted in relation to credit, to establish also the truth of what had been said: Evidence Act 1995 (Commonwealth), Section 60.

[2] Prosecutor v Tadić,  Case IT-94-1-T, Decision on Defence Motion on Hearsay, 5 Aug 1996.

[3] Prosecutor v Aleksovski, Case IT-95-14/1-AR73, Decision on Prosecutor’s Appeal on Admissibility of Evidence, 16 Feb 1999, par 15.

[4] Ibid. at par 15. Extensive reference is made to the Tadić Decision on Defence Motion on Hearsay.

Download full document
ICTR Rule Rule 89(C) ICTY Rule Rule 89(C)
Notion(s) Filing Case
Appeal Judgement - 16.11.2009 ZIGIRANYIRAZO Protais
(ICTR-01-73-A)

36. As a preliminary matter, the Appeals Chamber has previously stated that a detailed record of a Trial Chamber’s site visit should normally be maintained.[1] The Appeals Chamber observes, however, that Zigiranyirazo did not object at trial to the lack of record. In addition, there appears to be no dispute with respect to the itinerary and travel times taken by the Trial Chamber during its site visit. The absence of a record also did not prevent Zigiranyirazo from fully addressing issues arising from the site visit in his Defence Closing Brief. Consequently, the Appeals Chamber does not consider that the lack of a record of the site visit invalidated the verdict.

[1] Karera Appeal Judgement, para. 50.

Download full document
Notion(s) Filing Case
Decision on Rebuttal Evidence - 29.05.2009 KAREMERA et al.
(ICTR-98-44-AR73.17)

16. In the present case, the Trial Chamber found that “evidence which has already been considered and rejected by another Trial Chamber in making a finding of fact should not be admissible in a later proceeding to rebut that same finding of fact”.[1] In support of its finding, the Trial Chamber reasoned that the original Trial Chamber “was in a much better position to make determinations regarding reliability and credibility than [it], having heard the evidence viva voce”.[2] The Appeals Chamber considers that, in stating so, the Trial Chamber disregarded the fact that the assessment of admissibility criteria must be done on a case-by-case basis,[3] in light of the specific circumstances of each case. It overlooked the fact that the probative value of a piece of evidence may be assessed differently in different cases, depending on the rest of the evidence and other relevant circumstances.[4] While the prior assessment of the evidence by another Trial Chamber is a factor that may be taken into account in the assessment of its probative value, it does not relieve the Trial Chamber of its obligation to assess the admissibility of the evidence in the context of the case before it.

17. In the Karemera et al. Appeal Decision on Judicial Notice, the Appeals Chamber held that adjudicated facts:

are facts that have been established in a proceeding between other parties on the basis of the evidence the parties to that proceeding chose to introduce, in the particular context of that proceeding. For this reason, they cannot simply be accepted, by mere virtue of their acceptance in the first proceeding, as conclusive in proceedings involving different parties who have not had the chance to contest them.[5]

This is also the case for credibility findings in another case: the finding on the credibility and reliability of Ntakirutimana’s testimony in his own trial cannot be accepted as conclusive in the present proceedings by the mere virtue of the fact that it was reached by the Ntakirutimana Trial Chamber.

18. In this case, the Trial Chamber denied the admissibility of Ntakirutimana’s testimony into evidence on the basis that the Ntakirutimana Trial Chamber had found it to be less reliable than another testimony.[6] That is, instead of examining for itself whether Ntakirutimana’s testimony was prima facie reliable and credible, the Trial Chamber erroneously relied on the final evaluation of its reliability and credibility by another Trial Chamber and accepted that negative assessment as determinative of the admissibility of the evidence.

19. The Trial Chamber further reasoned that to re-engage in an assessment of the reliability and credibility of Ntakirutimana’s testimony “would essentially be acting in review of another Chamber, and therefore outside of its jurisdiction”.[7] The Appeals Chamber disagrees. As noted above, the final assessment of the weight of a piece of evidence is based on the totality of the evidence in a given case. Naturally, the same piece of evidence can be assessed differently in different cases because of other evidence on the record therein. Therefore, a Trial Chamber’s assessment of a piece of evidence from another case does not involve a review of a decision of another Trial Chamber. Moreover, in this respect, the Appeals Chamber recalls that “the final adjudication of facts in judicial proceedings is treated as conclusively binding only, at most, on the parties to those proceedings”.[8]

22. [...] In deferring to the assessment of the reliability of Ntakirutimana’s testimony by the Ntakirutimana Trial Chamber, the Trial Chamber not only failed to fulfil its obligation to examine whether the evidence may have probative value in the circumstances of the case before it, but also misapplied the standard for admission of evidence which only requires prima facie indicia of reliability and credibility.    

[1] Impugned Decision, para. 12.

[2] Impugned Decision, para. 12.

[3] Prlić et al. Appeal Decision, paras. 15, 25; Popović et al. Appeal Decision, para. 21.

[4] Simba Appeal Judgement, para. 132.

[5] Karemera et al. Appeal Decision on Judicial Notice, para. 40.

[6] Impugned Decision, paras. 12, 13.

[7] Impugned Decision, para. 12.

[8] Karemera et al. Appeal Decision on Judicial Notice, para. 42. 

Download full document
ICTR Rule Rule 89(C);
Rule 94
ICTY Rule Rule 89(C);
Rule 94
Notion(s) Filing Case
Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)
(IT-96-21-A)

533. […] [T]he Appeals Chamber notes that a Trial Chamber exercises considerable discretion in deciding on issues of admissibility of evidence.  As a result, a Trial Chamber should be afforded a certain degree of deference in making decisions based on the circumstances of the case before it.  To this extent the Appeals Chamber agrees with the Prosecution submissions on this point during the hearing on appeal.[1]  Nevertheless, the Appeals Chamber recalls that it also has the authority to intervene to exclude evidence, in circumstances where it finds that the Trial Chamber abused its discretion in admitting it. Indeed the Appeals Chamber has intervened in the past to do so.[2]  In these decisions, the Appeals Chamber confirmed that a pre-requisite for admission of evidence must be compliance by the moving party with any relevant safeguards and procedural protections and that it must be shown that the relevant evidence is reliable.  If evidence is admitted and an appellant can subsequently show that prejudice has been caused by a failure by the Trial Chamber to properly apply such protections, then it may be found that the Trial Chamber has erred and exceeded its discretion.  This is when Rule 89(D) and Rule 95 of the Rules may come into play and in these circumstances a ground of appeal may succeed.

[1]    Appeal Transcript, pp 475–476. The Prosecution submits that “[…] in making […] determination of this final matter, the Trial Chamber is required to weigh all the facts in evidence before it, and in some cases involving issues of this kind, it may be required to receive evidence and hear witnesses, and so in accordance with general principles, it would be necessary to afford a considerable margin of deference to the finding of the Trial Chamber, and it would only be where the decision of the Trial Chamber could be shown to be an abuse of discretion that there would be justification in the Appeals Chamber intervening on appeal.”

[2]    See for example: Prosecutor v Kordić and Čerkez, Decision on Appeal Regarding Statement of a Deceased Witness, Case No IT-95-14/2-AR73.5, 21 July 2000; Prosecutor v Kordić and Čerkez, Decision on Appeal Regarding the Admission into Evidence of Seven Affidavits and One Formal Statement, Case No IT-95-14/2-AR73.6, 18 Sept 2000; The Prosecutor v Kupreškić et al, Decision on Appeal by Dragan Papić Against Ruling to Proceed by Deposition, Case No IT-95-16-AR73.3, 15 July 1999.

Download full document
ICTY Rule Rule 89(D)
Notion(s) Filing Case
Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)
(IT-96-21-A)

538. […] The Appeals Chamber recalls that reference to principles applied in national jurisdictions can be of assistance to both Trial Chambers and the Appeals Chamber in interpreting provisions of the Statute and the Rules.[1]  However, Rule 89(A) of the Rules expressly provides that the Chambers “shall not be bound by national rules of evidence.”  What is of primary importance is that a Trial Chamber “apply rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law.”[2]  The Appeals Chamber notes that the Trial Chamber found that implicit in this principle was “the application of national rules of evidence by the Trial Chamber.”[3]  On the contrary, the Appeals Chamber confirms that rules of evidence as expressly provided in the Rules should be primarily applied, with the assistance of national principles only if necessary for guidance in the interpretation of these Rules.

[1]    See for example, Furundžija Appeal Judgement, paras 183-188; Aleksovski Appeal Judgement, para 186.

[2]    Rule 89(B) of the Rules.   Although strictly speaking this relates to “cases not otherwise provided for” in Section 3 of the Rules (the title being “Rules of Evidence”) nevertheless, the general principle is important.  See Prosecutor v Kordić and Čerkez, Decision on Appeal Regarding the Admission into Evidence of Seven Affidavits and One Formal Statement, Case No IT-95-14/2-AR73.6, 18 Sept 2000, para 22.  See also [Čelebići Case, Prosecution’s Appeal Brief, 2 July 1999], paras 12.11 and 16.11.

[3]    [Čelebići Case, Decision on Zdravko Mucić’s Motion for the Exclusion of Evidence, 2 Sept 1997], para 34.

Download full document
ICTR Rule Rule 89(A) ICTY Rule Rule 89(A)
Notion(s) Filing Case
Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)
(IT-96-21-A)

498. The Trial Chamber is not obliged in its Judgement to recount and justify its findings in relation to every submission made during trial.  It was within its discretion to evaluate the inconsistencies highlighted and to consider whether the witness, when the testimony is taken as a whole, was reliable and whether the evidence was credible.  Small inconsistencies cannot suffice to render the whole testimony unreliable. […]

Download full document
Notion(s) Filing Case
Appeal Judgement - 02.02.2009 KARERA François
(ICTR-01-74-A)

48. Turning to the Appellant’s contention that the Trial Chamber erred in law by failing to keep records from the site visit, the Appeals Chamber first notes that at no time during the trial proceedings did the Appellant object to the absence of such materials.[1] Moreover, the Appeals Chamber notes that the Trial Chamber considered the parties’ submissions on the observations made during the site visit in reaching its findings,[2] and explained how its observations affected the assessment of the evidence.[3] Therefore, the Appeals Chamber does not agree that, in relying on its observations, the Trial Chamber denied the Appellant the right to present a full defence and to be provided with a reasoned opinion. The Appeals Chamber emphasizes that detailed records of Trial Chamber’s site visits should normally be kept. The purpose of a site visit is to assist a Trial Chamber in its determination of the issues and therefore it is incumbent upon the Trial Chamber to ensure that the parties are able to effectively review any findings made by the Trial Chamber in reliance on observations made during the site visit.[4] The Appeals Chamber however finds that in this case the Appellant has not demonstrated that he was prejudiced by his inability to challenge the Trial Chamber’s observations and that the parties had the opportunity to make arguments based on their observations of the site visit in their closing arguments and closing briefs to which the Trial Chamber referred in its Judgement.[5]

[1] The Appeals Chamber observes that the Appellant consented without reservation to the site visit. See The Prosecutor v. François Karera, Case No. ICTR-2001-74-T, Defence Response to the Prosecutor’s Motion for a View (Locus in Quo) (Rules 4, 54, and 89 of the Rules of Procedure and Evidence), 12 May 2006.

[2] Trial Judgement [The Prosecutor v. François Karera, Case No. ICTR-2001-74-T, Judgement and Sentence, 7 December 2007, paras. 133, 159 (and fn. 217), 160 (and fn. 218), 161, 305. See also Prosecution Closing Brief [The Prosecutor v. François Karera, Case No. ICTR-2001-74-T, The Prosecutor’s Closing Brief, 10 November 2006 (confidential)], paras. 20, 24, 389, 418, 452, and fn. 414; Defence Closing Brief [The Prosecutor v. François Karera, Case No. ICTR-2001-74-T, Defence Closing Arguments, 10 November 2006 (confidential)], paras. 93, 111, 184, 235, fns 255-256, 451; T. 23 November 2006 pp. 7, 35, 38, 40, 41, 53.

[3] Trial Judgement, paras. 133, 159, 160, 161, 305.

[4] Such records may take different forms and it will depend on the circumstances of the specific case to deternine which form will be most appropriate.

[5] See Trial Judgement, paras. 133, 159, 161.

Download full document
Notion(s) Filing Case
Appeal Judgement - 02.02.2009 KARERA François
(ICTR-01-74-A)

19. Regarding the Appellant’s contention that special rules should apply when assessing an accused’s testimony, the Appeals Chamber recalls that the Tribunal’s Chambers are not bound by national rules of evidence or national case law.[1] While “[t]here is a fundamental difference between being an accused, who might testify as a witness if he so chooses, and a witness”,[2] this does not imply that the rules applied to assess the testimony of an accused are different from those applied with respect to the testimony of an “ordinary witness”. A trier of fact shall decide which witness’s testimony to prefer, without necessarily articulating every step of its reasoning in reaching this decision.[3] In so doing, as for any witness, a trier of fact is required to determine the overall credibility of an accused testifying at his own trial[4] and then assess the probative value of the accused’s evidence in the context of the totality of the evidence.[5] There is no requirement in the Tribunal’s jurisprudence that the accused’s credibility be assessed first and in isolation from the rest of the evidence in the case.

21. A review of the Trial Judgement reveals that the Trial Chamber did consider the Appellant’s testimony and made assessments of the probative value of that evidence.[6] It was not obliged to systematically justify why it rejected each part of that evidence. The Appellant’s claim that the Trial Chamber erred by failing to explain why it did not believe him is therefore dismissed.

[1] Rule 89(A) of the Rules of Procedure and Evidence of the Tribunal (“Rules”); The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73.8, Decision on Interlocutory Appeal Regarding Witness Proofing, 11 May 2007, paras. 7, 11.

[2] Galić Appeal Judgement, para. 17; Kvočka Appeal Judgement, para. 125; Prlić et al. Decision of 5 September 2008 [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74, Decision on Prosecution’s Appeal Against Trial Chamber’s Order on Contact Between the Accused and Counsel During an Accused’s Testimony Pursuant to Rule 85(C), 5 September 2008], para. 11.

[3] Kupreškić et al. Appeal Judgement, para. 32.

[4] Ntakirutimana Appeal Judgement, para. 391, citing Musema Appeal Judgement, para. 50.

[5] See Musema Appeal Judgement, para. 50 (regarding the assessment of documentary evidence tendered by an accused in support of his alibi); Muhimana Appeal Judgement, para. 19.

[6] See, inter alia, Trial Judgement, paras. 30, 34, 48, 49, 64, 65, 72, 73, 104, 133, 275-278, 309, 342-345, 373, 390-394, 402, 406, 415, 430, 448, 463-466, 479-481, 515, 516.

Download full document
Notion(s) Filing Case
Decision on Statement of Deceased Witness - 21.07.2000 KORDIĆ & ČERKEZ
(IT-95-14/2-AR73.5)

20. Rule 89(C) grants the Trial Chambers broad discretion. The bounds of this discretion, however, are suggested by Rule 89(B), which provides that “[i]n cases not otherwise provided for in this Section, a Chamber shall apply rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law.” A Trial Chamber’s exercise of discretion under Rule 89(C) ought, pursuant to Rule 89(B), to be in harmony with the Statute and the other Rules to the greatest extent possible.

[…]

22. […] Rule 89(C) must be interpreted so that safeguards are provided to ensure that the Trial Chamber can be satisfied that the evidence is reliable. A starting point is the requirements of these other rules [Rules 71, 71bis, 94bis, 94ter] that expressly allow for departures from the principle of live evidence. Rule 89(C) may indeed permit some relaxation of these requirements, but it would be odd to find that a statement that met none of the requirements of those other rules was nonetheless admissible under Rule 89(C) without any other compensating evidence of reliability.  […]

[…]

24. […] [T]he reliability of a statement is relevant to its admissibility, and not just to its weight. A piece of evidence may be so lacking in terms of the indicia of reliability that is not “probative” and is therefore inadmissible.

 

Download full document
ICTR Rule Rule 89 ICTY Rule Rule 89
Notion(s) Filing Case
Appeal Judgement - 12.11.2009 MILOŠEVIĆ Dragomir
(IT-98-29/1-A)

215. […] [N]othing prohibits a Trial Chamber from relying on uncorroborated evidence; it has the discretion to decide in the circumstances of each case whether corroboration is necessary or whether to rely on uncorroborated, but otherwise credible, witness testimony.[1]

248. The Appeals Chamber recalls that “corroboration of testimonies, even by many witnesses, does not establish automatically the credibility, reliability or weight of those testimonies” and that it is “neither a condition nor a guarantee of reliability of a single piece of evidence”.[2] However, given that the assessment of evidence, including corroboration, is a matter of the Trial Chamber’s discretion, the Appeals Chamber is not satisfied that Milošević has shown that in the circumstances of the case, the Trial Chamber abused its discretion in rejecting witnesses Knowles and Hansen’s evidence while relying on the evidence supporting the Prosecution’s case.

[1] See, e.g., Aleksovski Appeal Judgement, para. 63; Muhimana Appeal Judgement, paras 49, 101, 120, 159 and 207; Nahimana et al. Appeal Judgement, paras 633 and 810; Gacumbitsi Appeal Judgement, para. 72; Kajelijeli Appeal Judgement, para. 170, citing Niyitegeka Appeal Judgement, para. 92; Rutaganda Appeal Judgement, para. 29; Musema Appeal Judgement, para. 36. See also infra, Section X.B.2, para. 248.

[2] Limaj et al. Appeal Judgement, para. 203, referring, inter alia, to Aleksovski Appeal Judgement, paras 62-63; Čelebići Appeal Judgement, paras 492, 506; Gacumbitsi Appeal Judgement, para. 72; Musema Appeal Judgement, paras 37-38; See also Karera Appeal Judgement, para. 45.

Download full document
Notion(s) Filing Case
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.

Download full document
ICTR Rule Rule 89(C);
Rule 90(F)
ICTY Rule Rule 89(C);
Rule 90(F)
Notion(s) Filing Case
Appeal Judgement - 18.12.2014 NGIRABATWARE Augustin
(MICT-12-29-A)

102.     The Appeals Chamber recalls that, pursuant to Rule 92bis(A) of the ICTR Rules, a trial chamber “may admit […] the evidence of a witness in the form of a written statement in lieu of written testimony which goes to proof of a matter other than the acts and conduct of the accused as charged in the indictment.” Pursuant to Rule 92bis(A)(ii) of the ICTR Rules, factors against admitting evidence in the form of a written statement include, inter alia, whether “there is an overriding public interest in the evidence in question being presented orally”. The ICTY Appeals Chamber has also held that:

Where the evidence is so pivotal to the prosecution case, and where the person whose acts and conduct the written statement describes is so proximate to the accused, the Trial Chamber may decide that it would not be fair to the accused to permit the evidence to be given in written form.[1] 

103.     The Appeals Chamber observes that the statements of Witnesses DWAN-48 and DWAN-78 relate to the acts of Witness ANAN as opposed to those of Ngirabatware.[2] The Appeals Chamber finds therefore that the Trial Chamber’s interpretation of matters going to proof of “the acts and conduct of the accused” is inconsistent with the clear distinction in the jurisprudence between the acts and conduct of the accused, as charged in the indictment, and the acts and conduct of others.[3] It is only the former that is excluded from the procedure laid down in Rule 92bis of the ICTR Rules which provides that only matters other than the acts and conduct of the accused can be admitted in written form. [4]

104. In any event, the Trial Chamber’s additional reason for denying admission of the proposed evidence in written form is compatible with Rule 92bis(A)(ii) of the ICTR Rules. The Appeals Chamber is satisfied that the Trial Chamber acted within its discretion in determining that there was an overriding public interest for such serious allegations, imputing to Witness ANAN conduct potentially undermining the integrity of the proceedings as a whole, to be presented orally. Ngirabatware has failed to demonstrate that he made any effort to call these witnesses to testify or that he had good reason for not doing so. Moreover, rather than articulating an error in the Trial Chamber’s reasoning, Ngirabatware merely focuses on the purported importance of the proposed evidence. Such arguments are clearly insufficient to discharge his burden on appeal. Ngirabatware’s submissions in this regard are therefore dismissed.

[1] Prosecutor v. Stanislav Galić, Case No. IT-98-29-AR73.2, Decision on Interlocutory Appeal Concerning Rule 92bis(C), 7 June 2002, para. 13 (internal references omitted). See also Decision of 22 September 2011 [The Prosecutor v. Augustin Ngirabatware, Case No. ICTR-99-54-T, Decision on Defence Motion to Declare Written Statements Admissible, for Leave for Certification by a Presiding Officer of These Written Statements and/or Reconsideration of the Trial Chamber’s Decisions Rendered on 11 and 12 April 2011, 22 September 2011], para. 32.

[2] See Motion of 4 July 2011[The Prosecutor v. Augustin Ngirabatware, Case No. ICTR-99-54-T, Defence Motion to Declare Written Statements Admissible, for Leave for Certification by a Presiding Officer of These Written Statements and/or for Reconsideration of the Trial Chamber’s Decision Rendered on 11 and 12 April 2011, 4 July 2011 (confidential)], Annexes 4 and 4(e).

[3] See Prosecutor v. Stanislav Galić, Case No. IT-98-29-AR73.2, Decision on Interlocutory Appeal Concerning Rule 92bis(C), 7 June 2002, para. 9.

[4] See Galić Appeal Decision [Prosecutor v. Stanislav Galić, Case No. IT-98-29-AR73.2, Decision on Interlocutory Appeal Concerning Rule 92bis(C), 7 June 2002], para. 9. 

Download full document
Notion(s) Filing Case
Appeal Judgement - 21.07.2000 FURUNDŽIJA Anto
(IT-95-17/1-A)

In paragraphs 74–78 the Appeals Chamber considered the Appellant’s contention “that, by preventing him from introducing the testimony of [two witnesses] when the proceedings were re-opened, the Trial Chamber violated his right, under Article 21(4) of the Statute, to examine, and obtain the attendance of, relevant witnesses on his behalf”. The Appeals Chamber held:

75. Article 21(4)(e) of the Statute grants an accused the right “to obtain the attendance and examination of witnesses on his behalf”.  This right is, for obvious reasons, subject to certain conditions, including a requirement that the evidence should be called at the proper time.[1]  In this regard, the Appeals Chamber observes that the Appellant was obliged, under the applicable rules, to present all available evidence at trial.  However, it should be noted that the proceedings were re-opened due to the exceptional circumstance of the Prosecutor’s late disclosure of material which, in the view of the Trial Chamber, “clearly had the potential to affect the 'credibility of prosecution evidence’”.[2] […] 

At paragraph 78, the Appeals Chamber concluded that “the Trial Chamber did not err when it decided to deny the Appellant the right to call [the witnesses] on the ground that the proposed testimony fell outside the scope of the re-opened proceedings.”

[1] Rule 85 of the Rules provides that evidence at trial shall be presented in a certain sequence unless otherwise directed by the Trial Chamber in the interests of justice. 

[2] Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-T, Decision, 16 July 1998, para. 17 (original emphasis).

Download full document
ICTR Rule Rule 85(A) ICTY Rule Rule 85(A)
Notion(s) Filing Case
Appeal Judgement - 16.11.2001 MUSEMA Alfred
(ICTR-96-13-A)

36.     One of the duties of a Trial Chamber is to assess the credibility of witnesses.  In discharging that duty, the Trial Chamber takes into account all the circumstances of the case.  As stated in the Aleksovski Appeal Judgement, “[w]hether a Trial Chamber will rely on single witness testimony as proof of a material fact, will depend on various factors that have to be assessed in the circumstances of each case.”[1]  It may be that a Trial Chamber would require the testimony of a witness to be corroborated, but according to the established practice of this Tribunal and of the International Criminal Tribunal for the Former Yugoslavia (ICTY), that is clearly not a requirement.[2]

37.     In the instant case, the Trial Chamber affirmed that it “may rule on the basis of a single testimony if, in its opinion, that testimony is relevant and credible.”[3] It further stated that:

[…] it is proper to infer that the ability of the Chamber to rule on the basis of testimonies and other evidence is not bound by any rule of corroboration, but rather on the Chamber’s own assessment of the probative value of the evidence before it.

The Chamber may freely assess the relevance and credibility of all evidence presented to it. The Chamber notes that this freedom to assess evidence extends even to those testimonies which are corroborated: the corroboration of testimonies, even by many witnesses, does not establish absolutely the credibility of those testimonies.[4]

38.     The Appeals Chamber is of the view that these statements correctly reflect the position of the law regarding the Trial Chamber’s discretion in assessing testimonies and the evidence before it.

[1] Aleksovski Appeal Judgement, para. 63, referring to Tadić Appeal Judgement, para. 65.

[2] Kayishema/Ruzindana Appeal Judgement, paras. 154 and 229; Aleksovski Appeal Judgement, para. 62 (“the testimony of a single witness does not require as a matter of law any corroboration”); Tadić Appeal Judgement, para. 65; Čelebići Appeal Judgement, paras. 492 and 506.

[3] Trial Judgement [Alfred Musema v. The Prosecutor, Case No. ICTR-96-13-T, 27 January 2000], para. 43.

[4] Ibid. [Trial Judgement], paras. 45 to 46.

Download full document
Notion(s) Filing Case
Appeal Judgement - 16.11.2001 MUSEMA Alfred
(ICTR-96-13-A)

113.   On whether Witness F could easily recognize Musema, the Appeals Chamber finds that Musema’s arguments are not sufficient to raise doubt as to the reliability of the contested identification testimony.  The Appeals Chamber notes that during a meeting convened by the bourgmestre of Gisovu commune, which was one of the three occasions where F had seen Musema prior to the events, F was able to observe Musema for a period of 30 minutes.[1]  Musema gives the impression that an identified suspect needs to be personally well known to the witness.[2]  This is not the case. Prior knowledge of an identified suspect is a factor that a Trial Chamber may take into account when assessing the reliability of a witness’ testimony,[3]  but that is not a sine qua non; identification may be based on other factors. In any event, the Appeals Chamber is of the opinion that it was within the discretion of the Trial Chamber to accept, in support of the evidence of identification before it, the fact that Witness F had met Musema on several occasions.

[1] T, 3 February 1999, p. 6.

[2] “Therefore Musema was not a man well known to the witness, or whom it was likely he could easily recognize and identify” (Appellant’s Brief [Grounds of Appeal Against Conviction and Sentence and Appellant's Brief on Appeal, 23 May 2000], para. 157).

[3] Kayishema/Ruzindana Trial Judgement, para. 71.

Download full document
Notion(s) Filing Case
Appeal Judgement - 16.11.2001 MUSEMA Alfred
(ICTR-96-13-A)

47.     In the instant case, the Trial Chamber noted that “the burden of proof of the reliability … of the document lies on the party that seeks to rely on the document”, and that the requisite standard of proof was proof on the balance of probabilities.[1]  Without ruling on the issue as to whether such was the appropriate standard, the Appeals Chamber holds that the Trial Chamber did not err in stating that for a document to be admissible as evidence, the Party relying on it must establish that it has sufficient indicia of reliability.

48.     The Trial Chamber also found that, “the standard of proof required for admissibility should be lower than the standard of proof required in the final determination of the matter at hand through the weighing up of the probative value of all the evidence before the Chamber.”[2]   It is the view of the Appeals Chamber that, in that sentence, the Trial Chamber was making a distinction between admissibility and the final assessment of evidence.

49.     As to the second argument that the Trial Chamber erred in stating that the source of a document could be important in determining the reliability of a document, the Trial Chamber held that:

…the source of a document may, taken in context, impact upon the assessment of the reliability or credibility (or both) of the document. For example, evidence produced in support of a defence of alibi from a source other than the Accused may be of greater probative value than evidence provided or produced by the Accused. While noting this, the Chamber emphasizes that such an understanding of the relationship between the source of documentary evidence and its probative value must in no way be interpreted as a presumption of the guilt of the Accused. The Chamber has not, in any way, allowed its assessment of the probative value of documentary evidence to interfere with the right of the Accused to a fair trial.[3]

50.     The first and second arguments overlap.  Again, Musema has not given any instances where he attempted to adduce evidence before the Trial Chamber, which evidence the Trial Chamber rejected on the grounds that Musema himself was the source thereof. Every Trial Chamber is required, in assessing evidence, to determine its overall reliability and credibility.  In the instant case, the Trial Chamber stated that it had “assessed the relative weight and probative value to be accorded to each piece of evidence in the context of all other evidence presented to it in the course of the trial.”[4] It is correct to state that the sole fact that evidence is proffered by the accused is no reason to find that it is, ipso facto, less reliable. Nevertheless, the source of a document may be relevant to the Trial Chamber’s assessment of the reliability and credibility of that document.  Where such a document is tendered by an accused, a Trial Chamber may determine, for example, if the accused had the opportunity to concoct the evidence presented and whether or not he or she had cause to do so. This is part of the Trial Chamber’s duty to assess the evidence before it.

[1] Trial Judgement, paras. 55 and 56.

[2] Ibid., para. 56.

[3] Ibid., para. 63.

[4] Ibid., para. 41.

Download full document
Notion(s) Filing Case
Decision on Subpoena Application - 01.07.2003 KRSTIĆ Radislav
(IT-98-33-A)

8. The Appeals Chamber accepts that, in a situation where the defence is unaware of the precise nature of the evidence which a prospective witness can give and where the defence has been unable to obtain his voluntary cooperation, it would not be reasonable to require the defence to use “all mechanisms of protection and compulsion available” to force the witness to give evidence “cold” in court without first knowing what he will say.  That would be contrary to the duty owed by counsel to their client to act skilfully and with loyalty.[1]  Accordingly, it is generally inappropriate in this situation to consider orders to the prospective witness to attend to give evidence (Rule 54) or for taking his evidence by way of deposition for use later in the trial (Rule 71).[2]

9. The Reply, however, wrongly assumes that Rule 54 is limited to making orders that the prospective witness attend to give evidence before the relevant Chamber. It is clear, both from the terms of the Rule itself and from what the Appeals Chamber said in the Tadić Rule 115 Decision,[3] that the requirement that “all mechanisms of protection and compulsion available” be used by the defence was not intended to be limited to the situation where the defence is aware of what evidence the prospective witness can give but where the prospective witness is unwilling (for whatever reason) to cooperate. In the exercise of due diligence, the appropriate mechanisms must also be used in the situation where the defence is unaware of the precise nature of the evidence the prospective witness can give and where the defence is unable to obtain his cooperation by speaking to it.

See also paragraphs 14-16.

[1]    Code of Professional Conduct for Defence Counsel Appearing Before the International Tribunal (IT/125 Rev 1) 12 July 2002, Article 3(ii) and (iii).  That duty of loyalty must, of course, be discharged consistently with the duty owed by counsel to the Tribunal to act with independence in the administration of justice.

[2]    In par 12, infra, it is suggested that Rule 54 could be utilised so that a judge could explain to the prospective witness the importance of his cooperation and how he will be afforded protection by the Tribunal if it is required.

[3]    See footnote 6, supra [Prosecutor v Tadić, IT-94-1-A, Decision on Appellant’s Motion for the Extension of the Time Limit and Admission of Additional Evidence, 15 Oct 1998 (“Tadić Rule 115 Decision”)]. 

Download full document
ICTR Rule Rule 54;
Rule 71
ICTY Rule Rule 54;
Rule 71
Notion(s) Filing Case
Appeal Judgement - 23.10.2001 KUPREŠKIĆ et al.
(IT-95-16-A)

31. […] As the primary trier of fact, it is the Trial Chamber that has the main responsibility to resolve any inconsistencies that may arise within and/or amongst witnesses’ testimonies.  […]  The presence of inconsistencies in the evidence does not, per se, require a reasonable Trial Chamber to reject it as being unreliable.[1]  Similarly, factors such as the passage of time between the events and the testimony of the witness, the possible influence of third persons, discrepancies, or the existence of stressful conditions at the time the events took place do not automatically exclude the Trial Chamber from relying on the evidence.  However, the Trial Chamber should consider such factors as it assesses and weighs the evidence. 

[1] Čelebići Appeal Judgement, paras 485 and 496-498.

Download full document
Notion(s) Filing Case
Appeal Judgement - 23.10.2001 KUPREŠKIĆ et al.
(IT-95-16-A)

34. The Appeals Chamber notes […] that a reasonable Trial Chamber must take into account the difficulties associated with identification evidence in a particular case and must carefully evaluate any such evidence, before accepting it as the sole basis for sustaining a conviction.  […]

[…]

39. In cases before this Tribunal, a Trial Chamber must always, in the interests of justice, proceed with extreme caution when assessing a witness’ identification of the accused made under difficult circumstances.  While a Trial Chamber is not obliged to refer to every piece of evidence on the trial record in its judgement, where a finding of guilt is made on the basis of identification evidence given by a witness under difficult circumstances, the Trial Chamber must rigorously implement its duty to provide a “reasoned opinion”.  In particular, a reasoned opinion must 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.  As stated by the Canadian Court of Appeal in R. v Harper:

Where the record, including the reasons for judgment, discloses a lack of appreciation of relevant evidence and more particularly the complete disregard of such evidence, then it falls upon the reviewing tribunal to intercede.[1]

[…]

See also paras. 33-38, 40.

[1] R. v Harper, [1982] 1 S.C.R. 2.

Download full document
Notion(s) Filing Case
Appeal Judgement - 23.10.2001 KUPREŠKIĆ et al.
(IT-95-16-A)

220.    The Prosecution is correct in maintaining that “the testimony of a single witness on a material fact does not require, as a matter of law, any corroboration”.[1]  Rather, the absence of corroboration is simply one factor to be taken into consideration by the Trial Chamber in weighing the evidence and arriving at its determination of witness credibility.  Certainly, in cases hinging on a single witness’ identification of the accused made in difficult circumstances, corroborative evidence takes on more importance.[2]  However, of itself, the absence of corroboration is not a ground for the Appeals Chamber to intervene in a factual finding made by the Trial Chamber.

[1] Aleksovski Appeal Judgement, para. 62.  See the further discussion supra para. 33.

[2] See the discussion supra paras 34-36.

Download full document
Notion(s) Filing Case
Appeal Judgement - 27.09.2007 LIMAJ et al.
(IT-03-66-A)

21. The Appeals Chamber is satisfied that the principle of in dubio pro reo, as a corollary to the presumption of innocence, and the burden of proof beyond a reasonable doubt,[1] applies to findings required for conviction, such as those which make up the elements of the crime charged. This approach is consistent with the case-law of the International Tribunal and is a logical approach, given that, in the context of issues of fact, the principle is essentially just one aspect of the requirement that guilt must be found beyond a reasonable doubt.[2] In Naletilić and Martinović, the Appeals Chamber recognized the applicability of this principle to the mens rea requirement of knowledge of the existence of an armed conflict.[3] Similarly, the Naletilić and Martinović Trial Chamber applied the principle in the context of the crime of torture: It held that the evidence did not allow the Trial Chamber to distinguish between beatings that were inflicted with a specific purpose – which is required to establish the crime of torture ‑ and beatings that may have been inflicted for reasons of pure cruelty, but not with a specific purpose. Consequently, the Trial Chamber found in dubio pro reo that the specific purpose necessary for torture had not been established beyond reasonable doubt.[4] Further, the principle of in dubio pro reo is not applied to individual pieces of evidence and findings of fact on which the judgement does not rely. For example, in Kvočka et al., the Appeals Chamber dismissed Prcać’s argument that the Trial Chamber failed to apply the principle when it found that Prcać was an administrative assistant at the Omarska camp.[5] The Appeals Chamber held that the finding that Prcać was an administrative assistant was not a fact aimed at conviction or an element of the crime charged, and thus the in dubio pro reo inquiry did not apply.

See Judge Shahabuddeen’s and Judge Schomburg’s declarations.

[1] See Čelebići Trial Judgement, para. 601. See also Christine V. D. Wyngaert (ed.), Criminal Procedure Systems in the European Community Butterworths, London (1993) at 21 (Belgium), 148 (Germany), 324 (Portugal), and Christoph J. M. Safferling, Towards an International Criminal Procedure, OUP, New York (2001) at 260.

[2] See Naletilić and Martinović Appeal Judgement, para. 120; Stakić Appeal Judgement, paras 102-103. Naletilić and Martinović Trial Judgement, footnote 1100. See also [ Prosecutor v. Duško Tadić a/k/a “Dule”, Case No. IT-94-1-AR-72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995], para. 143.

[3] Naletilić and Martinović Appeal Judgement, para. 120.

[4] Naletilić and Martinović Trial Judgement, fn. 1100.

[5] Kvočka et al. Appeal Judgement, paras 623-624.

Download full document
Notion(s) Filing Case
Appeal Judgement - 27.09.2007 LIMAJ et al.
(IT-03-66-A)

24. […] The burden of proof on the Prosecution to establish facts beyond reasonable doubt does not necessarily require the Prosecution to establish that each piece of evidence independently establishes the relevant fact to that standard.

Download full document
Notion(s) Filing Case
Appeal Judgement - 27.09.2007 LIMAJ et al.
(IT-03-66-A)

27. The Appeals Chamber agrees with both parties that no probative weight should be attached to in-court identifications.[1] As considered by the Kunarac Trial Chamber, in-court identifications are inherently unreliable “[b]ecause all of the circumstances of a trial necessarily lead such a witness to identify the person on trial”.[2] This has been affirmed in both the Kunarac and Kamuhanda Appeal Judgements.[3]

28. […] Accordingly, the Trial Chamber attached some weight to the in-court identifications and to the extent that it did, it was in error.[4] […]

30. In considering this allegation, the Appeals Chamber recalls its finding in Kupreškić et al. that a reasonable Trial Chamber must take into account the difficulties associated with identification evidence in a particular case and must carefully evaluate any such evidence, before accepting it as the sole basis for sustaining a conviction. Domestic criminal law systems from around the world recognise the need to exercise extreme caution before proceeding to convict an accused person based upon the identification evidence of a witness made under difficult circumstances. The principles developed in these jurisdictions acknowledge the frailties of human perceptions and the very serious risk that a miscarriage of justice might result from reliance upon even the most confident witnesses who purport to identify an accused without an adequate opportunity to verify their observations.

After having examined a number of domestic criminal law systems in relation to the question of identification evidence, the Appeals Chamber stated in Kupreškić et al.:

Courts in domestic jurisdictions have identified the following factors as relevant to an appellate court’s determination of whether a fact finder’s decision to rely upon identification evidence was unreasonable or renders a conviction unsafe: identifications of defendants by witnesses who had only a fleeting glance or an obstructed view of the defendant; identifications occurring in the dark and as a result of a traumatic event experienced by the witness; inconsistent or inaccurate testimony about the defendant’s physical characteristics at the time of the event; misidentification or denial of the ability to identify followed by later identification of the defendant by a witness; the existence of irreconcilable witness testimonies; and a witness’ delayed assertion of memory regarding the defendant coupled with the “clear possibility” from the circumstances that the witness had been influenced by suggestions from others.

In addition, the Appeals Chamber observes that identification evidence may be affected by the length of time between the crime and the confrontation.[7]

[1] The failure to identify an accused in court, however, can be a reason for declining to rely on the evidence of an identifying witness. In this context, see Kvočka et al. Appeal Judgement, para. 473.

[2] Kunarac et al. Trial Judgement, para. 562.

[3] Kunarac et al. Appeal Judgement, para. 320; Kamuhanda Appeal Judgement, para. 243.

[4] The Appeals Chamber notes that while the Trial Chamber “accept[ed] the honesty of the seven identifying witnesses,” it previously found that it was not convinced of Witness L96’s honesty and thus only gave weight to those material parts of his evidence which were confirmed by evidence offered by others: Trial Judgement, paras 26, 613.

[5] Kupreškić et al. Appeal Judgement, para. 34. See also Kunarac et al., [Case No. IT-96-23-T ], Decision on Motion for Acquittal, 3 July 2000, para. 8.

[6] Kupreškić et al. Appeal Judgement, para. 40 (internal footnotes omitted).

[7] See Corpus Juris Secundum, XXXIV. Identification Evidence in General, section 1095, updated November 2006.

Download full document
Notion(s) Filing Case
Appeal Judgement - 27.09.2007 LIMAJ et al.
(IT-03-66-A)

75. Rule 84bis(A) of the Rules provides that an accused may elect to make an opening statement which shall not be sworn or subject to cross-examination. In making a statement, whether sworn or unsworn, an accused accepts that the Trial Chamber “shall decide on the probative value, if any, of the statement” under Rule 84bis(B) of the Rules. The assessment of unsworn statements under Rule 84bis of the Rules is, thus, a discretionary function of the Trial Chamber. Such a statement is generally given somewhat less weight than testimony given under oath, which is subject to cross-examination and inquiry from the Bench.[1]

[1] See Blagojević and Jokić, [Case No. IT-02-60-T], Decision on Vidoje Blagojević’s Oral Request, 30 July 2004, p. 7.

Download full document
Notion(s) Filing Case
Appeal Judgement - 27.09.2007 LIMAJ et al.
(IT-03-66-A)

86. The Appeals Chamber recalls that a Trial Chamber need not refer to the testimony of every witness or every piece of evidence on the trial record, “as long as there is no indication that the Trial Chamber completely disregarded any particular piece of evidence.”[1] Such disregard is shown “when evidence which is clearly relevant to the findings is not addressed by the Trial Chamber’s reasoning.”[2]

88. […] In this context, the Appeals Chamber recalls that “it is settled jurisprudence of the International Tribunal that it is the trier of fact who is best placed to assess the evidence in its entirety as well as the demeanour of a witness.”[3] […]

153. […] Accordingly, the Trial Chamber correctly found that:

The ultimate weight to be attached to each relevant piece of evidence, including each visual identification where more than one witness has identified an Accused, is not to be determined in isolation. Even though each visual identification and each other relevant piece of evidence, viewed in isolation, may not be sufficient to satisfy the obligation of proof on the Prosecution, it is the cumulative effect on the evidence, i.e. the totality of the evidence bearing on the identification of an Accused, which must be weighed to determine whether the Prosecution has proved beyond reasonable doubt that each Accused is a perpetrator as alleged.[4]

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

[2] Ibid.

[3] Kordić and Čerkez Appeal Judgement, para. 21, fn 12.

[4] Trial Judgement, para. 20 (emphases added).

Download full document
Notion(s) Filing Case
Appeal Judgement - 27.09.2007 LIMAJ et al.
(IT-03-66-A)

203. […] Moreover, corroboration of testimonies, even by many witnesses, does not establish automatically the credibility, reliability or weight of those testimonies.[1] Corroboration is neither a condition nor a guarantee of reliability of a single piece of evidence.[2] It is an element that a reasonable trier of fact may consider in assessing the evidence. However, the question of whether to consider corroboration or not forms part of its discretion.

[1] See Musema Trial Judgement, para. 46, confirmed by Musema Appeal Judgement, paras 37-38; Kamuhanda Trial Judgement, para. 40.

[2] See Aleksovski Appeal Judgement, paras 62-63, with reference to Tadić Appeal Judgement, para. 65; Čelebići Appeal Judgement, paras 492 and 506; Gacumbitsi Appeal Judgement, para. 72; Semanza Appeal Judgement, para. 153; Kayishema and Ruzindana Appeal Judgement, paras 154 and 229.

Download full document
Notion(s) Filing Case
Appeal Judgement - 20.10.2010 KALIMANZIRA Callixte
(ICTR-05-88-A)

96. The Appeals Chamber recalls that in assessing witness testimony, “it falls to the Trial Chamber to take the approach it considers most appropriate for the assessment of evidence.”[1] A trial chamber “is […]] not obliged in its judgement to recount and justify its findings in relation to every submission made at trial.”[2] In addition, “neither the Rules nor the jurisprudence of the Tribunal oblige[]] [a] Trial Chamber to require a particular type of identification evidence.”[3] However, identifications made in difficult circumstances, such as darkness, obstructed view, or traumatic events,[4] require careful and cautious analysis by a trial chamber.[5] In addition, in-court identification evidence should be assigned “little or no credence” given the signals that can identify an accused aside from prior acquaintance.[6]

[1] Rutaganda Appeal Judgement, para. 207.

[2] Muhimana Appeal Judgement, para. 176.

[3] Kamuhanda Appeal Judgement, para. 298.

[4] See, e.g., Kupreškić Appeal Judgement, para. 40.

[5] See, e.g., Bagilishema Appeal Judgement, para. 75. See also Kupreškić Appeal Judgement, para. 39.

[6] Kamuhanda Appeal Judgement, para. 243.

Download full document
Notion(s) Filing Case
Appeal Judgement - 20.10.2010 KALIMANZIRA Callixte
(ICTR-05-88-A)

96. […] The Appeals Chamber further recalls that “[a]] Trial Chamber has the discretion to cautiously consider hearsay evidence and has the discretion to rely on it.”[1] However, “the weight and probative value to be afforded to that evidence will usually be less than that accorded to the evidence of a witness who has given it under oath and who has been cross-examined.”[2]

[…]

199. The Appeals Chamber recalls that caution is warranted before basing convictions on hearsay evidence.[3]

[1] Karera Appeal Judgement, para. 39 (internal citations omitted).

[2] Karera Appeal Judgement, para. 39.

[3] See supra Section III.E.2 (Alleged Errors in the Trial Chamber’s Consideration of Witnesses’ Credibility and Provision of Identification Evidence).

Download full document
Notion(s) Filing Case
Appeal Judgement - 04.12.2012 LUKIĆ & LUKIĆ
(IT-98-32/1-A)

262. Milan Lukić submitted the Logbook Entry to the Trial Chamber without a translation into one of the working languages of the Tribunal.[1] The Logbook Entry, which related to 14 June 1992, was also admitted without a translation as part of Prosecution Exhibit P68, which comprised the whole logbook.[2] The Appeals Chamber emphasises that it is incumbent on the party seeking to admit an exhibit to provide a translation where necessary.[3] Milan Lukić failed to provide such a translation. However, the Appeals Chamber notes that the Trial Chamber admitted the Logbook Entry into evidence, as Exhibit 1D39, without noting or commenting on the lack of translation.[4] From this point, the document was part of the trial record, and was therefore before the Trial Chamber. Moreover, the Trial Chamber had the duty to consider all the evidence before it.[5]

263. In the Trial Judgement, the Trial Chamber stated that it had admitted the Logbook Entry “inadvertently” and was unable to attach any weight to it without a translation into one of the working languages of the Tribunal.[6] However, in its summary of the evidence in the Trial Judgement, the Trial Chamber demonstrated that, even without a translation, it was aware that the Logbook Entry showed that Vasiljević was registered at the Višegrad Health Centre on 14 June 1992.[7] Moreover, the Trial Chamber found that it was able to attach probative weight to Prosecution Exhibit P68, which had also been admitted into evidence without an official translation, but the substance of which had been commented on by a Prosecution witness.[8]

264. In light of the foregoing, the Appeals Chamber finds that the Trial Chamber erred in failing to consider the substance of the Logbook Entry. However, the Appeals Chamber finds that this error has no impact.

[1] See Trial Judgement, para. 570.

[2] The logbook from the Višegrad Health Centre was initially admitted in its entirety without translation on 4 September 2008 as Exh. P68 (confidential) (see T. 1190 (4 September 2008)). On 10 September 2008, following the testimony of Vasiljević, the page from the logbook which comprises the Logbook Entry was admitted as Exh. 1D39 (see T. 1559-1561 (10 September 2008) (closed session)). This page had already been admitted as part of Exh P68 but was tendered by Milan Lukić as part of a set of documents in support of Vasiljević’s testimony that he was not present at Pionirska Street. Subsequently, on 27 October 2008, the Trial Chamber ruled that Exh. P68, as previously admitted, was no longer admitted in its entirety but that “the pages of the logbook which contain entries made on the 7th of June, 1992, [were]] admitted into evidence as Exhibit P68 under seal [and that] these pages in their redacted form [were]] admitted as Exhibit P70.” The Trial Chamber further clarified that “Exhibit 1D39 only comprises pages of the logbook which contain entries of 14th June 1992.” (T. 2766 (27 October 2008)). There was never an official translation submitted for any part of the logbook during trial.

[3] See Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Decision on Defence Application for Forwarding the Documents in the Language of the Accused, 27 September 1996, paras 6, 10.

[4] T. 1559-1561 (10 September 2008) (closed session); T. 2766 (27 October 2008).

[5] Cf. Halilović Appeal Judgement, para. 121, referring to Kvočka et al. Appeal Judgement, para. 23.

[6] Trial Judgement, para. 570.

[7] Trial Judgement, para. 439, referring to Logbook Entry.

[8] Trial Judgement, fn. 327. The Appeals Chamber notes that in relation to those portions of the logbook, witnesses discussed the contents of the pages and, to a certain extent, provided translations. However, the witness testimony was confined to discussing the specific patient and treatment on the corresponding page, and did not address specifically what the various columns meant (see Trial Judgement, fn. 327, referring to VG032, T. 1191-1193 (8 September 2008), VG133, T. 2963-2967 (28 October 2008)). Therefore, the Appeals Chamber does not accept Milan Lukić’s assertion that to the extent those portions of the logbook were translated, they also translated the Logbook Entry.

Download full document
Notion(s) Filing Case
Appeal Judgement - 04.12.2012 LUKIĆ & LUKIĆ
(IT-98-32/1-A)

118. The Trial Chamber noted that there was a difference between “identification” witnesses, to whom the accused was “previously unknown by sight” and “recognition” witnesses who had prior knowledge of the accused enabling them to recognise the accused at the time of the alleged crime.[1] A witness’s prior knowledge of, or level of familiarity with, an accused is a relevant factor in the assessment of identification evidence. The Appeals Chamber considers that, as part of its reasoned opinion, a trial chamber should articulate the basis on which it was satisfied that the witness had prior knowledge of an accused and was therefore able to recognise that individual at the crime scene.[2]

119. The Appeals Chamber finds no error in the Trial Chamber having distinguished between “identification” and “recognition” witnesses. The Appeals Chamber further considers that the Trial Chamber rightly pointed out that a witness who has “acquired sufficient knowledge” of an accused, for example when a crime is committed over a long period of time, may be considered a “recognition” witness.[3] The Appeals Chamber finds that Milan Lukić and Sredoje Lukić have not shown that the Trial Chamber erred in law by distinguishing between “identification” and “recognition” witnesses.

[1] Trial Judgement, para. 31, referring to Tadić Trial Judgement, para. 545, Haradinaj et al. Trial Judgement, para. 29.

[2] Haradinaj et al. Appeal Judgement, para. 152, referring to Kupreškić et al. Appeal Judgement, para. 39.

[3] See Trial Judgement, para. 34.

Download full document
Notion(s) Filing Case
Appeal Judgement - 04.12.2012 LUKIĆ & LUKIĆ
(IT-98-32/1-A)

120. The Appeals Chamber recalls that in-court identification is generally permissible.[1] Contrary to the Appellants’ contention,[2] the fact that a witness fails to identify the accused during a pre-trial identification exercise does not bar a trial chamber from allowing in-court identification.[3] However, in-court identification should be given “‘little or no credence’ given the signals that can identify an accused aside from prior acquaintance”.[4] A trial chamber must therefore exercise caution in assessing such evidence.[5] The Appeals Chamber considers that, while little or no weight should be given to a witness’s in-court identification evidence,[6] a witness’s failure to identify an accused in court can be a reason for declining to rely on the identification evidence of that witness.[7] The distinction between an “identification” or “recognition” witness is thus irrelevant in the context of in-court identification. In the present case, the Trial Chamber allowed in-court identifications by several witnesses. The Appeals Chamber considers that, as a matter of law, Milan Lukić and Sredoje Lukić have not shown that the Trial Chamber erred by allowing in-court identification per se. The Appeals Chamber will evaluate the Appellants’ claims regarding each witness in the appropriate section.

136. The Appeals Chamber further recalls that “where a finding of guilt is made on the basis of identification evidence given by a witness under difficult circumstances, the Trial Chamber must rigorously implement its duty to provide a ‘reasoned opinion’”.[8] In these instances, the Trial Chamber must “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”.[9]

137. Factors relevant to the Appeals Chamber’s determination of whether a trial chamber’s decision to rely upon identification evidence was unreasonable or rendered the conviction unsafe, include:

[I]dentifications of defendants by witnesses who had only a fleeting glance or an obstructed view of the defendant; identifications occurring in the dark and as a result of a traumatic event experienced by the witness; inconsistent or inaccurate testimony about the defendant’s physical characteristics at the time of the event; misidentification or denial of the ability to identify followed by later identification of the defendant by a witness; the existence of irreconcilable witness testimonies; and a witness’ delayed assertion of memory regarding the defendant coupled with the “clear possibility” from the circumstances that the witness had been influenced by suggestions from others.[10]

138. Furthermore, the Appeals Chamber considers that this list is not intended to be exhaustive.[11] A trial chamber is not bound to consider all of these factors, but only those appropriate in the circumstances of the case.[12]

[1] See Kalimanzira Appeal Judgement, para. 96; Kamuhanda Appeal Judgement, para. 243.

[2] Milan Lukić Appeal Brief, para. 84; Sredoje Lukić Appeal Brief, paras 19, 306.

[3] Limaj et al. Appeal Judgement, para. 29.

[4] Kalimanzira Appeal Judgement, para. 96. See also Kamuhanda Appeal Judgement, para. 243, referring to Kunarac et al. Trial Judgement, para. 562, Kunarac et al. Appeal Judgement, para. 320.

[5] Kalimanzira Appeal Judgement, para. 96, referring to Kamuhanda Appeal Judgement, para. 243. See also Limaj et al. Appeal Judgement, paras 27-28; Kunarac et al. Appeal Judgement, paras 226-227, 320, upholding Kunarac et al. Trial Judgement, para. 562.

[6] See Kamuhanda Appeal Judgement, paras 243 (referring to Kunarac et al. Trial Judgement, para. 562, Kunarac et al. Appeal Judgement, para. 320), 244.

[7] Limaj et al. Appeal Judgement, fn. 68; Kvočka et al. Appeal Judgement, para. 473.

[8] Haradinaj et al. Appeal Judgement, para. 152. See also Kvočka et al. Appeal Judgement, para. 24; Kupreškić et al. Appeal Judgement, para. 39; Renzaho Appeal Judgement, para. 527.

[9] Haradinaj et al. Appeal Judgement, para. 152, referring to Kupreškić et al. Appeal Judgement, para. 39 (emphasis added).

[10] Haradinaj et al. Appeal Judgement, para. 156, referring to Kupreškić et al. Appeal Judgement, para. 40 (internal citations omitted).

[11] See Bikindi Appeal Judgement, para. 116.

[12] See Kordić and Čerkez Appeal Judgement, para. 382.

Download full document
Notion(s) Filing Case
Appeal Judgement - 04.12.2012 LUKIĆ & LUKIĆ
(IT-98-32/1-A)

375.[…].The Appeals Chamber recalls that a trial chamber has a broad discretion to assess the appropriate weight and credibility to be accorded to the testimony of a witness,[1] and is at liberty to rely on the uncorroborated evidence of a single witness when making its findings, even if it is related to a material fact.[2] […]

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

[2] Haradinaj et al. Appeal Judgement, para. 219; Kupreškić et al. Appeal Judgement, para. 33; Aleksovski Appeal Judgement, para. 62; Tadić Appeal Judgement, para. 65.

Download full document
Notion(s) Filing Case
Appeal Judgement - 04.12.2012 LUKIĆ & LUKIĆ
(IT-98-32/1-A)

303. At the outset, the Appeals Chamber recalls that hearsay evidence is in principle admissible,[1] although in assessing its probative value, the surrounding circumstances must be considered.[2] […]

387. […] The Appeals Chamber recalls that where the source of identification evidence is hearsay, a trial chamber must duly consider the relevant criteria in assessing the weight or the probative value to be accorded to this evidence.[3] The Trial Chamber erred in failing to do so.

577. […] The Appeals Chamber recalls that a Trial Chamber has “wide discretion as to the assessment of the weight and probative value of the hearsay evidence alongside with other factors relevant to the evaluation of the totality of the evidence.”[4] However, caution is warranted in the consideration of hearsay evidence, particularly where such evidence constitutes the primary basis for the identification of an accused. Relevant criteria in assessing the weight or the probative value to be accorded to hearsay evidence are the source of the information,[5] the precise character of the information,[6] and corroborative evidence.[7]

[1] Blaškić Appeal Judgement, para. 656, fn. 1374.

[2] See Haradinaj et al. Appeal Judgement, paras 85-86.

[3] Karera Appeal Judgement, para. 39 and references cited therein.

[4] Milošević Appeal Judgement, fn. 731. See also Nahimana et al. Appeal Judgement, para. 831; Karera Appeal Judgement, para. 39; Naletilić and Martinović Appeal Judgement, para. 217.

[5] Karera Appeal Judgement, para. 39; Nahimana et al. Appeal Judgement, para. 831; Ndindabahizi Appeal Judgement, para. 115; Semanza Appeal Judgement, para. 159; Rutaganda Appeal Judgement, paras 154, 156, 159.

[6] Karera Appeal Judgement, para. 39; Ndindabahizi Appeal Judgement, para. 115.

[7] Karera Appeal Judgement, para. 39; Nahimana et al. Appeal Judgement, para. 473; Gacumbitsi Appeal Judgement, para. 115.

Download full document
Notion(s) Filing Case
Appeal Judgement - 04.12.2012 LUKIĆ & LUKIĆ
(IT-98-32/1-A)

565. Rule 92 quater of the Rules allows for the admission of written evidence when the person giving the statement is objectively unable to attend a court hearing ‑ either because the person is deceased or because of a physical or mental impairment ‑ even if the evidence goes directly to the accused’s acts and conduct.[1] However, Rule 92 quater(B) of the Rules counsels cautious scrutiny on the part of the trial chamber with respect to evidence that goes to the acts and conduct of the accused as charged in the indictment, as this may be a factor against the admission of such evidence, or of part of it.[2]

565. Rule 92 quater(A)(ii) of the Rules further requires a trial chamber to be satisfied that there are sufficient indicia of reliability to justify the admission of the written evidence.[3] Moreover, the general requirements for admissibility of evidence as set out in Rule 89 of the Rules must be fulfilled, namely that the proffered evidence must be relevant and have probative value as provided in Rule 89(C) of the Rules. Finally, the probative value of the evidence must not be substantially outweighed by the need to ensure a fair trial under Rule 89(D) of the Rules and the evidence must therefore not be unduly prejudicial.[4]

570. The Appeals Chamber recalls that in order for evidence admitted pursuant to Rule 92 quater of the Rules to support a conviction, it must be corroborated.[5] […]

[1] 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 (“Prlić et al. Appeal Decision on Admission of Transcript of 23 November 2007”), para. 48. See also Haradinaj et al. Appeal Judgement, fn. 252; Haraqija and Morina Appeal Judgement, para. 61; Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-AR73.1, Decision on Appeals Against Decision Admitting Material Related to Borovčanin’s Questioning, 14 December 2007, para. 48; 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 Appeal Decision on Admission of Materials of 14 September 2006”), para. 22.

[2] See also Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-T, Decision on Prosecution Motion for Admission of Evidence Pursuant to Rule 92 quater, 21 April 2008 (“Popović et al. Decision on Admission of Evidence of 21 April 2008”), para. 32.

[3] Among the factors that chambers have considered as relevant in the assessment of the reliability of written evidence are: “(a) the circumstances in which the statement was made and recorded, in particular: (i) whether the statement was given under oath; or (ii) whether the statement was signed by the witness with an accompanying acknowledgement that the statement is true to the best of his or her recollection; and whether the statement was taken with the assistance of an interpreter duly qualified and approved by the Registry of the Tribunal; (b) whether the statement has been subject to cross-examination; (c) whether the statement, in particular an unsworn statement that has never been subject to cross-examination, relates to events about which there is other evidence; and (d) other additional factors, such as the absence of manifest or obvious inconsistencies in the statements” (see Prosecutor v. Milan Milutinović et al., Case No. IT-05-87-T, Decision on Prosecution Motion for Admission of Evidence Pursuant to Rule 92 quater, 16 February 2007 (“Milutinović et al. Decision on Admission of Evidence of 16 February 2007”), para. 7; Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-T, Decision on the Prosecution Motion for Admission of Evidence Pursuant to Rules 92 bis and quater of the Rules, 2 November 2006 (confidential), paras 10, 15; Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-AR73.5, Decision on Appeal Regarding Statement of a Deceased Witness, 21 July 2000, para. 27).

[4] See e.g. Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-PT, Decision on Prosecution Motion for Admission of Testimony of Witness KDZ198 and Associated Exhibits Pursuant to Rule 92 quater, 20 August 2009, para. 6; Popović et al. Decision on Admission of Evidence of 21 April 2008, para. 30; Milutinović et al. Decision on Admission of Evidence of 16 February 2007, paras 4, 6.

[5] Haradinaj et al. Appeal Judgement, para. 101, fn. 252; Haraqija and Morina Appeal Judgement, paras 61-62; Prlić et al. Appeal Decision on Admission of Transcript of 23 November 2007, paras 53, 58-59; Martić Appeal Decision on Admission of Materials of 14 September 2006, para. 20.

Download full document
Notion(s) Filing Case
Decision Concerning Rule 92bis(C) - 07.06.2002 GALIĆ Stanislav
(IT-98-29-AR73.2)

Fn. 34: [W]here the witness who made the statement is not called to give the accused an adequate and proper opportunity to challenge the statement and to question that witness, the evidence which the statement contains may lead to a conviction only if there is other evidence which corroborates the statement[.]

Download full document
ICTR Statute Article 20(4)(e) ICTY Statute Article 21(4)(e) Other instruments European Convention on Human Rights Article 6(3)(d).
Notion(s) Filing Case
Decision Concerning Rule 92bis(C) - 07.06.2002 GALIĆ Stanislav
(IT-98-29-AR73.2)

40. [...] Rule 94bis contains nothing which is inconsistent with the application of Rule 92bis to an expert witness.  Indeed, Rule 92bis expressly contemplates that witnesses giving evidence relating to the relevant historical, political or military background of a case (which is usually the subject of expert evidence) will be subject to its provisions.  There is nothing in either Rule which would debar the written statement of an expert witness, or the transcript of the expert’s evidence in proceedings before the Tribunal, being accepted in lieu of his oral testimony where the interests of justice would allow that course in order to save time, with the rights of the other party to cross-examine the expert being determined in accordance with Rule 92bis.  Common sense would suggest that there is every reason to suggest that such a course ought to be followed in the appropriate case.

Download full document
ICTR Rule Rule 92 bis;
Rule 94 bis
ICTY Rule Rule 92 bis;
Rule 94 bis
Notion(s) Filing Case
Decision Concerning Rule 92bis(C) - 07.06.2002 GALIĆ Stanislav
(IT-98-29-AR73.2)

27. [...] Hearsay evidence may be oral, as where a witness relates what someone else had told him out of court, or written, as when (for example) an official report written by someone who is not called as a witness is tendered in evidence.  Rule 89(C) clearly encompasses both these forms of hearsay evidence. [...]

Download full document
ICTR Rule Rule 89 ICTY Rule Rule 89
Notion(s) Filing Case
Decision Concerning Rule 92bis(C) - 07.06.2002 GALIĆ Stanislav
(IT-98-29-AR73.2)

29.     Unlike the civil law, the common law permits hearsay evidence only in exceptional circumstances.[1]  When many common law jurisdictions took steps to limit the rule against hearsay by permitting the admission of written records kept by a business as evidence of the truth of what they stated notwithstanding that rule, they invariably excluded from what was to be admissible under that exception any documents made in relation to pending or anticipated legal proceedings involving a dispute as to any fact which the document may tend to establish.  This exclusion reflected the fact that such documents are not made in the ordinary course by persons who have no interest other than to record as accurately as possible matters relating to the business with which they are concerned.  It also rested upon the recognised potential in relation to such documents for fabrication and misrepresentation by their makers and of such documents being carefully devised by lawyers or others to ensure that they contained only the most favourable version of the facts stated.

30.     The decision to encourage the admission of written statements prepared for the purposes of such legal proceedings in lieu of oral evidence from the makers of the statements was nevertheless taken by the Tribunal as an appropriate mixture of the two legal systems, but with the realisation that any evidentiary provision specifically relating to that material required considerable emphasis upon the need to ensure its reliability.  This is particularly so in relation to written statements given by prospective witnesses to OTP investigators, as questions concerning the reliability of such statements have unfortunately arisen,[2] from knowledge gained in many trials before the Tribunal as to the manner in which those written statements are compiled.[3] Rule 92bis has introduced that emphasis.

[1]    See, generally, Myers v Director of Public Prosecutions [1965] AC 1001.

[2]    Kordić & Čerkez Decision, par 27;  Prosecutor v Naletilić & Martinović, IT-98-34-T, Confidential Decision on the Motion to Admit Statement of Deceased Witnesses Kazin Mežit and Arif Pasalić, 22 Jan 2002, p 4.

[3]    In the usual case, the witness gives his or her statement orally in B/C/S, which is translated into English and, after discussion, a written statement is prepared by the investigator in English.  The statement as written down is read back to the witness in English and translated orally into B/C/S.  The witness then signs the English written statement.  Some time later, the English written statement is translated into a B/C/S written document, usually by a different translator, and it is this third stage translation which is provided to the accused pursuant to Rule 66.  Neither the interview nor the reading back is tape-recorded to ensure the accuracy of the oral translation given at each stage.

Download full document
Notion(s) Filing Case
Decision Concerning Rule 92bis(C) - 07.06.2002 GALIĆ Stanislav
(IT-98-29-AR73.2)

10. [...] Rule 92bis(A) excludes any written statement which goes to proof of any act or conduct of the accused upon which the prosecution relies to establish –

(a)      that the accused committed (that is, that he personally physically perpetrated) any of the crimes charged himself,[] or

(b)      that he planned, instigated or ordered the crimes charged, or

(c)      that he otherwise aided and abetted those who actually did commit the crimes in their planning, preparation or execution of those crimes, or

(d)      that he was a superior to those who actually did commit the crimes, or

(e)      that he knew or had reason to know that those crimes were about to be or had been committed by his subordinates, or

(f)       that he failed to take reasonable steps to prevent such acts or to punish those who carried out those acts.

Where the prosecution case is that the accused participated in a joint criminal enterprise, and is therefore liable for the acts of others in that joint criminal enterprise,[1] Rule 92bis(A) excludes also any written statement which goes to proof of any act or conduct of the accused upon which the prosecution relies to establish –

(g)      that he had participated in that joint criminal enterprise, or

(h)      that he shared with the person who actually did commit the crimes charged the requisite intent for those crimes.[2]

Those are the “acts and conduct of the accused as charged in the indictment”, not the acts and conduct of others for which the accused is charged in the indictment with responsibility.[3]

11. The “conduct” of an accused person necessarily includes his relevant state of mind, so that a written statement which goes to proof of any act or conduct of the accused upon which the prosecution relies to establish that state of mind is not admissible under Rule 92bis.  In order to establish that state of mind, however, the prosecution may rely upon the acts and conduct of others which have been proved by Rule 92bis statements.  An easy example would be proof, in relation to Article 5 of the Tribunal’s Statute, of the knowledge by the accused that his acts fitted into a pattern of widespread or systematic attacks directed against a civilian population.[4]  Such knowledge may be inferred from evidence of such a pattern of attacks (proved by Rule 92bis statements) that he must have known that his own acts (proved by oral evidence) fitted into that pattern.  The “conduct” of an accused person may also in the appropriate case include his omission to act.

12. [...] Far from being an “exception” to Rule 89, […] Rule 92bis identifies a particular situation in which, once the provisions of Rule 92bis are satisfied, and where the material has probative value within the meaning of Rule 89(C), it is in principle in the interests of justice within the meaning of Rule 89(F) to admit the evidence in written form.[5] […]

13. The fact that the written statement goes to proof of the acts and conduct of a subordinate of the accused or of some other person for whose acts and conduct the accused is charged with responsibility does, however, remain relevant to the Trial Chamber’s decision under Rule 92bis. That is because such a decision also involves a further determination as to whether the maker of the statement should appear for cross-examination.[6] [...] Where the evidence is so pivotal to the prosecution case, and where the person whose acts and conduct the written statement describes is so proximate to the accused, the Trial Chamber may decide that it would not be fair to the accused to permit the evidence to be given in written form.[7]  An easy example of where the exercise of that discretion would lead to the rejection of a written statement would be where the acts and conduct of a person other than the accused described in the written statement occurred in the presence of the accused.

See also paras 14-16.

[...]

19. […] [I]t would be preferable that a Trial Chamber should […] always give consideration to the exercise of the discretion given by Rule 92bis whenever the prosecution seeks to use that Rule in the special and sensitive situation posed by a charge of command responsibility under Article 7.3 where the evidence goes to proof of the acts and conduct of the accused’s immediately proximate subordinates.

[...]

28. Rules 92bis(A) and Rule 92bis(C) are directed to written statements prepared for the purposes of legal proceedings. […] Rule 92bis(D), permitting the transcript of a witness’s evidence in proceedings before the Tribunal to be admitted as evidence, is similarly directed to material produced for the purposes of legal proceedings.  Rule 92bis as a whole, therefore, is concerned with hearsay evidence such as would previously have been admissible under Rule 89(C).  But it is hearsay material of a very special type, with very serious issues raised as to its reliability.

[...]

31. A party cannot be permitted to tender a written statement given by a prospective witness to an investigator of the OTP under Rule 89(C) in order to avoid the stringency of Rule 92bis.  The purpose of Rule 92bis is to restrict the admissibility of this very special type of hearsay to that which falls within its terms. By analogy, Rule 92bis is the lex specialis which takes the admissibility of written statements of prospective witnesses and transcripts of evidence out of the scope of the lex generalis of Rule 89(C), although the general propositions which are implicit in Rule 89(C) – that evidence is admissible only if it is relevant and that it is relevant only if it has probative value – remain applicable to Rule 92bis.  But Rule 92bis has no effect upon hearsay material which was not prepared for the purposes of legal proceedings. [...]

[...]

33. [...] What Rule 92bis(C)(i) requires is that the Trial Chamber be satisfied on a balance of probabilities that the written statement was “made by a person who has subsequently died, or by a person who can no longer with reasonable diligence be traced, or by a person who is by reason of bodily or mental condition unable to testify orally”. That is made clear by the use of the words “if the Trial Chamber […] is so satisfied” immediately following those words.[8]  The requirements of Rule 92bis(C)(i) have nothing to do with the “probability” or any other characteristic of the statement itself. The assessment of the reliability of that statement is the subject of Rule 92bis(C)(ii).

[...]

46. It must be emphasised that Rule 92bis(C) makes specific provision for the admission of part only of a written statement of a witness,[9] and that it is for the Trial Chamber to decide, after hearing the parties, whether to admit the statement in whole or in part.[10] […] [I]t is not [the Prosecution’s] “prerogative” to determine how much of the statement is to be admitted.  Where that part of the written statement not tendered by the prosecution modifies or qualifies what is stated in the part tendered, or where it contains material relevant to the maker’s credit, the absence of any opportunity to cross-examine the witness (which must be the case where Rule 92bis(C) is concerned) would usually necessitate the admission of those parts of the statement as well.  There is no foundation for the appellant’s argument that, if the statement includes material which is irrelevant, the whole of the statement must be rejected.[]

[RULE 92bis OF THE ICTY’S RULES OF PROCEDURE AND EVIDENCE WAS AMENDED ON 13 SEPTEMBER 2006.]

[1]    In Prosecutor v Tadić, IT-94-1-A, Judgment, 15 July 1999 (“Tadić Judgment”), at par 220, this liability is described as that of an accomplice.

[2]    Tadić Judgment, par 196;  Prosecutor v Brđanin & Talić, IT-99-36-PT, Decision on Form of Further Amended Indictment and Prosecution Application to Amend, 26 June 2001, par 31.

[3]    See also Prosecutor v Milošević, IT-02-54-T, Decision on Prosecution’s Request to Have Written Statements Admitted Under Rule 92bis, 21 Mar 2002 (“Milošević Decision”), par 22:  “The phrase ‘acts and conduct of the accused’ in Rule 92bis is a plain expression and should be given its ordinary meaning:  deeds and behaviour of the accused.  It should not be extended by fanciful interpretation.  No mention is made of acts and conduct by alleged co-perpetrators, subordinates or, indeed, of anybody else.  Had the rule been intended to extend to acts and conduct of alleged co-perpetrators or subordinates it would have said so.”

[4]    Tadić Judgment, par 248.

[5]    The admission into evidence of written statements made by a witness in lieu of their oral evidence in chief is not inconsistent with Article 21.4(e) of the Tribunal’s Statute (“In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality: […] to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; […].”) or with other human rights norms (for example, Article 6(3)(d) of the European Convention for the Protection of Human Rights and Fundamental Freedoms provides: “Everyone charged with a criminal offence has the following minimum rights: […] to examine, or have examined, witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; […].”).  But, where the witness who made the statement is not called to give the accused an adequate and proper opportunity to challenge the statement and to question that witness, the evidence which the statement contains may lead to a conviction only if there is other evidence which corroborates the statement: Unterpertinger v Austria, Judgment of 24 Nov 1986, Series A no 110, pars 31-33;  Kostovski v The Netherlands, Judgment of 20 Nov 1989, Series A no 166, par 41;  Vidal v Belgium, Judgment of 22 Apr 1992, Series A no 235-B, par 33;  Lüdi v Switzerland, Judgment of 15 June 1992, Series A no 238, par 49;  Artner v Austria, Judgment of 28 Aug 1992, Series A no 242-A, pars 22, 27;  Saïdi v France, Judgment of 20 Sept 1993, Series A no 261-C, pars 43-44;  Doorson v The Netherlands, Judgment of 26 Mar 1996, par 80;  Van Mechelen v The Netherlands, Judgment of 23 Apr 1997, Reports of Judgments and Decisions, 1997-III, pars 51, 55;  A M v Italy, Judgment of 14 Dec 1999, 1999-IX Reports of Judgments and Decisions, par 25;  Lucà v Italy, Judgment of 27 Feb 2001, 2001-II Reports of Judgments and Decisions, pars 39-40;  Solakov v Former Yugoslav Republic of Macedonia, Judgment of 31 Oct 2001, appl No 47023/99, par 57.)

[6]    Rule 92bis(E).

[7]    Prosecutor v Brđanin & Talić, IT-99-36-T, (Confidential) Decision on the Admission of Rule 92bis Statements, 1 May 2002, par 14 [A public version of this Decision was filed on 23 May 2002.]

[8]    Emphasis has been added to the word “so”.

[9]    Rule 92bis(A).

[10]   Rule 92bis(E).

Download full document
ICTR Rule Rule 89;
Rule 92 bis
ICTY Rule Rule 89;
Rule 92 bis
Notion(s) Filing Case
Appeal Judgement - 09.10.2012 GATETE Jean Baptiste
(ICTR-00-61-A)

225. The Appeals Chamber finds that the Trial Chamber correctly recalled that the absence of reference to an accused in separate proceedings involving different accused carries limited probative value when weighed against corroborated and credible eye-witness testimony.[1]

[1] See Trial Judgement, para. 409. See also, e.g., Munyakazi Appeal Judgement, paras. 85, 121.

Download full document
Notion(s) Filing Case
Appeal Judgement - 09.10.2012 GATETE Jean Baptiste
(ICTR-00-61-A)

125. The Appeals Chamber recalls that two testimonies corroborate one another when one prima facie credible testimony is compatible with the other prima facie credible testimony regarding the same fact or a sequence of linked facts. It is not necessary that both testimonies be identical in all aspects or describe the same fact in the same way.

126. The Appeals Chamber finds that it was reasonable for the Trial Chamber to find thematic consistencies between the accounts of Witnesses BBP, BVS, and BBJ, “in particular, that Gatete came to the parish prior to 11 April, spoke to gendarmes, who witnesses recalled had guarded the parish, and also spoke to the two priests at the parish.”[3] The Appeals Chamber is of the view that it was not necessary that all witnesses described the same visit by Gatete and corroborated each other in this respect for the Trial Chamber to find that Gatete had come to the parish prior to 11 April 1994. That the witnesses may have described different visits does not undermine the conclusion that their accounts were compatible on the fact that Gatete was seen at the parish before 11 April 1994.

205. […T]he 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.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. 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.

[1] Kanyarukiga Appeal Judgement, paras. 177, 220; Ntawukulilyayo Appeal Judgement, para. 121, citing Bikindi Appeal Judgement, para. 81; Nahimana et al. Appeal Judgement, para. 428.

[2] Kanyarukiga Appeal Judgement, para. 220; Ntawukulilyayo Appeal Judgement, para. 24, citing Munyakazi Appeal Judgement, para. 103; Bikindi Appeal Judgement, para. 81; Nahimana et al. Appeal Judgement, para. 428. See also Ntabakuze Appeal Judgement, para. 150.

[3] Trial Judgement, para. 298.

[4] See supra, para. 125.

[5] Ntawukulilyayo Appeal Judgement, para. 24, referring to Munyakazi Appeal Judgement, para. 103; Bikindi Appeal Judgement, para. 81; Karera Appeal Judgement, para. 173; Nahimana et al. Appeal Judgement, para. 428.

[6] Hategekimana Appeal Judgement, para. 82; Ntawukulilyayo Appeal Judgement, para. 24, referring to, inter alia, Munyakazi Appeal Judgement, para. 71; Nahimana et al. Appeal Judgement, para. 428.

Download full document
Notion(s) Filing Case
Appeal Judgement - 09.10.2012 GATETE Jean Baptiste
(ICTR-00-61-A)

193. The Appeals Chamber recalls that neither the Rules nor the jurisprudence of the Tribunal oblige a trial chamber to require a particular type of identification evidence. However, identifications made in difficult circumstances, such as darkness, obstructed view, or traumatic events, require careful and cautious analysis by a trial chamber. In addition, the Appeals Chamber recalls that in-court identification evidence should be assigned “little or no credence” given the signals that may identify an accused aside from prior acquaintance.

[1] Kalimanzira Appeal Judgement, para. 96; Kamuhanda Appeal Judgement, para. 298.

[2] See, e.g., Renzaho Appeal Judgement, para. 527, referring to Kupreškić et al. Appeal Judgement, para. 39; Kalimanzira Appeal Judgement, para. 96; Bagilishema Appeal Judgement, para. 75. 

[3] Kalimanzira Appeal Judgement, para. 96; Kamuhanda Appeal Judgement, para. 243.

Download full document
Notion(s) Filing Case
Appeal Judgement - 09.10.2012 GATETE Jean Baptiste
(ICTR-00-61-A)

54. The Appeals Chamber recalls that the Trial Chamber has the discretion to decide whether a site visit is necessary or relevant in the assessment of evidence.[1] As such, the Appeals Chamber considers that the determination of the itinerary is also within the discretion of the Trial Chamber.

[1] Munyakazi Appeal Judgement, para. 76; Simba Appeal Judgement, para. 16, citing Galić Appeal Judgement, para. 50.

Download full document
Notion(s) Filing Case
Decision on Conflict of Interest (Markač) - 04.05.2007 GOTOVINA et al.
(IT-06-90-AR73.1)

12. […] The Appeals Chamber notes that most of the Annexes, that is, except Annexes 2 and 3 in the addendum, are being introduced for the first time on appeal. In order for the said information to become part of the record, they have to be admitted as additional evidence pursuant to Rule 115 of the Rules.[1] Because the Appellant has failed to move for their admission pursuant to Rule 115, they will not be considered by the Appeals Chamber.

[1] Prosecutor v. Radovan Stanković, Case No. IT-96-23/2-AR11bis.1, Decision on Rule 11bis Referral, 1 September 2005, para. 37.

Download full document
Notion(s) Filing Case
Appeal Judgement - 23.07.2009 HARAQIJA & MORINA
(IT-04-84-R77.4-A)

61. The right to cross-examination is not absolute.[1] The Appeals Chamber has held that "as a matter of principle nothing bars the admission of evidence that is not tested or might not be tested through cross-examination."[2] Nevertheless, the Appeals Chamber has recognized that "[u]nacceptable infringements of the rights of the defence [...] 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."[3] Therefore, "[i]t would run counter to the principles of fairness [...] to allow a conviction based on evidence of this kind without sufficient corroboration."[4]

62. Whether untested evidence is sufficiently corroborated is necessarily a fact specific inquiry and varies from case to case. Accordingly, the Appeals Chamber declines to impose any specific legal requirement as to the source of the corroboration. Therefore, the Appeals Chamber can identify no error of law in the above quoted legal principles adopted by the Trial Chamber for assessing untested evidence. The main question, however, is whether the conviction rests decisively on untested evidence. Furthermore, it follows from jurisprudence that not all evidence characterized as hearsay can be considered untested or unreliable.[5] Indeed, as a matter of law, it is permissible to base a conviction on hearsay or circumstantial evidence, but caution is warranted in such circumstances.[6]

[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 Babic, 14 September 2006, para. 12. See also Prlić Appeal Decision [Prosecutor v. Jadranko Prlić, Case No. IT-04-74-AR73.6, Decision on Appeals Against Decision Admitting Transcript of Jadranko Prlić’s Questioning into Evidence, 23 November 2007], para. 41; Popović Appeal Decision [Prosecutor v. Vujadin Popović, Case No. IT-05-88-AR73.1, Decision on Appeals Against Decision Admitting Material Related to Borovčanin’s Questioning, 14 December 2007], para. 48.

[2] Prlić Appeal Decision, para. 55. See also Popović Appeal Decision, para. 48..

[3] Prlić  Appeal Decision, para. 53.

[4] Prlić Appeal Decision, para. 59. See also Popović Appeal Decision, para. 48.

[5] See, e.g., Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement, 17 December 2004 (“Kordić and Čerkez Appeal Judgement”), paras 276, 281-284, 291-294; Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-AR73, Decision on Prosecutor’s Appeal on Admissibility of Evidence, 16 February 1999, paras 15, 19, 27. See also The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Judgement, 1 June 2001, para. 287.

[6] Kordić and Čerkez Appeal Judgement, para 294 (affirming conviction based on hearsay and circumstantial evidence where Trial Chamber exhaustively considered credibility issues and surrounding circumstances). See also Tharcisse Muvunyi v. The Prosecutor, Case No. ICTR-2000-55A-A, Judgement, 29 August 2008, para. 70 (overturning a conviction based on hearsay and circumstantial evidence where hearsay lacked detail).

Download full document
Notion(s) Filing Case
Appeal Judgement - 07.07.2006 NTAGERURA et al. (Cyangugu)
(ICTR-99-46-A)

The Appeals Chamber, after an analysis of earlier jurisprudence, affirmed that a Trial Chamber can consider evidence given by an accomplice, but must be cautious in doing so (paras 203-205). However, in such a case, the Trial Chamber has to analyse the possible motives of the witness to lie; the mere fact that a witness is an accomplice is not sufficient to reject his or her testimony (para. 206). This applies to witnesses who are suspected of taking part in the same criminal activities as the accused; a Trial Chamber does not err if it does not take the same cautious approach to witnesses who are suspect of criminal activities of a similar legal nature as the accused, but without a factual relation to the charges against the accused (paras 233-234):

233.    In Niyitegeka, the Defence submitted that one of the witnesses, Witness KJ, was an accomplice and that the Trial Chamber should treat his evidence with suspicion. The Trial Chamber, addressing this submission, noted that, although the witness was detained in a Rwandan military camp, he had not been charged with any crime. The Trial Chamber further stated: “Moreover, no evidence has been adduced of criminal involvement on his part in the events giving rise to the charges faced by the Accused”. Thus, the Trial Chamber concluded, the witness was not an accomplice whose uncorroborated testimony was subject to special caution. On appeal, the Appeals Chamber endorsed the Trial Chamber’s conclusion. Reviewing the jurisprudence cited in the first section of this chapter, the Appeals Chamber finds that it exclusively relates to accomplices in the “ordinary meaning” of the term. In Čelebići, the witness whom the Trial Chamber considered an accomplice was employed in the same prison camp as the accused and participated in the offences against the detainees. In Kordić and Čerkez, the witness was convicted by the ICTY for his participation in one attack with which the accused was also charged.

234.    The Appeals Chamber recalls that the reason for applying “caution” to the testimony of accomplice evidence is that accomplice witnesses may have motives or incentives to implicate the accused person before the Tribunal. Obviously, these motives or incentives are much stronger when the witness is charged with the same criminal acts as the accused. It may be necessary, depending on the circumstances of the case, also to employ a critical approach towards witnesses who are merely charged with crimes of a similar nature. But in most cases, they will not have the same tangible motives for giving false evidence like a witness who was allegedly involved in the same criminal acts as the accused. Therefore, as long as no special circumstances have been identified, it is reasonable not to employ the same cautious approach towards the testimony of witnesses charged with similar crimes as to the testimony of accomplices in the ordinary sense of the word.

[1] Niyitegeka Trial Judgement, para. 72.

[2] Ibid., para. 73.

[3] Niyitegeka Trial Judgement, para. 73.

[4] Niyitegeka Appeal Judgement, para. 105.

[5] See supra, paras. 203-204.

[6] Čelebići Trial Judgement, para. 759.

[7] Kordić and Čerkez Trial Judgement, para. 627.

[8] Niyitegeka Appeal Judgement, para. 98; see supra, para. 204.

Download full document
Notion(s) Filing Case
Appeal Judgement - 04.12.2001 KAYISHEMA & RUZINDANA
(ICTR-95-1-A)

154.    […] [T]he Appeals Chamber concurs with the opinion of ICTY Appeals Chamber that the testimony of a witness on a material fact may be accepted as evidence without the need for corroboration.[1]

[…]

322.    The Appeals Chamber reiterates[2] that accepting as evidence the uncorroborated testimony of a witness does not in itself constitute an error.[3]

See also para. 187.

[1] Tadić Appeal Judgement, para. 65, Aleksovski Appeal Judgement, para. 62, and Čelebiči Appeal Judgement, paras 492 and 506.

[2] Tadić Appeal Judgement, para. 65 in fine.

[3] Reference to Ruzindana’s allegation in his Brief, para. 42 (witness FF-Bisesero Hill ) and paras. 55 and 56 (witness KK and MM- Gitwa cellule).

Download full document
Notion(s) Filing Case
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.

Download full document
ICTR Statute Article 24 ICTY Statute Article 25
Notion(s) Filing Case
Appeal Judgement - 04.12.2001 KAYISHEMA & RUZINDANA
(ICTR-95-1-A)

210.    The Appeals Chamber emphasizes that once having heard testimonial evidence as proffered by the parties, it is up to the Trial Chamber to decide, by a reasoned opinion, to accept or to reject, in whole or in part, the testimony of an expert witness, provided the reasons for its decision are reasonable.[1] In this regard, the Appeals Chamber notes that the assessment of the credibility of evidence given by an expert falls clearly to the trier of fact.

[1] Tadić Appeal Judgement, para. 64, and Aleksovski Appeal Judgement, para. 63.

Download full document
Notion(s) Filing Case
Appeal Judgement - 29.09.2014 KAREMERA & NGIRUMPATSE
(ICTR-98-44-A)

597.   […] The Appeals Chamber has confirmed that a trial chamber has the discretion to admit any relevant evidence which it deems to have probative value, even where it is not possible to convict an accused on such evidence due to lack of notice.[1]

[1] Arsène Shalom Ntahobali and Pauline Nyiramasuhuko v. The Prosecutor, Case No. ICTR-97-21-AR73, Decision on the Appeals by Pauline Nyiramasuhuko and Arsène Shalom Ntahobali on the “Decision on Defence Urgent Motion to Declare Parts of the Evidence of Witnesses RV and QBZ inadmissible”, 2 July 2004, paras. 14-16.

Download full document
Notion(s) Filing Case
Decision on Exclusion of Evidence - 19.12.2003 BAGOSORA et al. (Military I)
(ICTR-98-41-AR93 & ICTR-98-41-AR93.2)

13.     Rule 93 provides that “Evidence of a consistent pattern of conduct relevant to serious violations of international humanitarian law under the Statute may be admissible in the interests of justice.” Rule 93 does not create an exception to Rule 89(C), but rather is illustrative of a specific type of evidence which may be admitted by a Trial Chamber. Rule 93 must be read in conjunction with Rule 89(C), which permits a Trial Chamber to admit any relevant evidence which it deems to have probative value. Even where pattern evidence is relevant and deemed probative, the Trial Chamber may still decide to exclude the evidence in the interests of justice when its admission could lead to unfairness in the trial proceedings, such as when the probative value of the proposed evidence is outweighed by its prejudicial effect, pursuant to the Chamber’s duty to ensure a fair and expeditious trial as required by Article 19(1) of the Statute of the International Tribunal.

See also para. 14.

Download full document
ICTR Rule Rule 89(C);
Rule 93
ICTY Rule Rule 89(C);
Rule 93
Notion(s) Filing Case
Decision on Exclusion of Evidence - 19.12.2003 BAGOSORA et al. (Military I)
(ICTR-98-41-AR93 & ICTR-98-41-AR93.2)

11.     The decision to admit or exclude evidence pursuant to Rule 89(C) is one within the discretion of the Trial Chamber and, therefore, appellate intervention is warranted only in limited circumstances. The Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) has summarized the applicable standard of review as follows: “It is for the party challenging the exercise of a discretion to identify for the Appeals Chamber a ‘discernible’ error made by the Trial Chamber. It must be demonstrated that the Trial Chamber misdirected itself either as to the principle to be applied, or as to the law which is relevant to the exercise of the discretion, or that it has given weight to extraneous or irrelevant considerations, or that it has failed to give weight or sufficient weight to relevant considerations, or that it has made an error as to the facts upon which it has exercised its discretion.”[1] If the Trial Chamber has properly exercised its discretion, the Appeals Chamber may not intervene solely because it may have exercised the discretion differently.[2]

[…]

16.     The Appeals Chamber affirms that the Trial Chamber has a broad discretion to direct the course of the proceedings in accordance with its fundamental duty to ensure a fair and expeditious trial pursuant to Article 19(1) of the Statute. In pursuit of these goals, the Trial Chamber may choose to exclude otherwise relevant and probative evidence where its prejudicial effect will adversely affect the fairness or expeditiousness of the proceedings. […]

[1] Prosecutor v. Milosević, Nos. IT-99-37-AR73, IT-01-50-AR73 & IT-01-51-AR73, Reasons for Decision on Prosecution Interlocutory Appeal from Refusal to Order Joinder, 18 April 2002, para. 5 (footnotes omitted).

[2] Ibid., para. 4.

Download full document
ICTR Statute Article 19(1) ICTY Statute Article 20(1) ICTR Rule Rule 89(C) ICTY Rule Rule 89(C)
Notion(s) Filing Case
Decision on Exclusion of Evidence - 19.12.2003 BAGOSORA et al. (Military I)
(ICTR-98-41-AR93 & ICTR-98-41-AR93.2)

17.     […] [T]he Prosecutor alleges that the Trial Chamber erred by compartmentalizing its analysis of probative value. The Appeals Chamber affirms that the correct approach is to assess the aggregate probative value of the particular evidence against its aggregate prejudicial effect. […]. 

Download full document
Notion(s) Filing Case
Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

561. The Appeals Chamber considers that a witness’s membership in an association of survivors alone does not imply a desire or motive to implicate the accused, nor does it render the witness’s evidence tainted or his accounts unreliable or partial. The Appeals Chamber therefore sees no reason to require, as a matter of principle, a trial chamber to apply particular caution in treating the evidence of witnesses who are members of such associations. The Appeals Chamber also recalls its position that a “statement by Professor Reynt[j]ens that the Ibuka Organization paid people to give false evidence cannot, per se, constitute a sufficient ground for excluding, in a general manner, the testimony of Prosecution witnesses”.[1]

[1] Rutaganda Appeal Judgement, para. 205.

Download full document
Notion(s) Filing Case
Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

249. As to Ntahobali’s contention that Exhibit P113 lacked sufficient probative value to be admitted under Rule 89(C) of the Rules, the Appeals Chambers considers that the mere fact that a statement is made by a co-accused does not ipso facto render the document’s contents so unreliable that it could not be admitted under Rule 89(C) of the Rules.[1]

See also para. 260.

[1] See Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-AR73.1, Decision on Appeals against Decision Admitting Material Related to Borovčanin’s Questioning, 14 December 2007, para. 50 (“However, it would be wrong to exclude certain evidence solely because of the supposedly intrinsic lack of reliability of the content of a suspect’s questioning in relation to persons who later became that suspect’s co-accused.”).

Download full document
ICTR Rule Rule 89 ICTY Rule Rule 89
Notion(s) Filing Case
Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

331. Likewise, the Appeals Chamber finds no merit in Nyiramasuhuko’s and Ntahobali’s argument that the fact that the witnesses lied required that their testimonies be excluded. In support of this claim, Ntahobali refers to national jurisprudence.[1] However, the Appeals Chamber highlights that Rule 89(A) of the Rules specifically provides that the Tribunal is not bound by national rules of evidence,[2] and recalls that decisions on the admission or exclusion of evidence fall within the trial chambers’ discretion.[3] […]

[1] See Ntahobali Appeal Brief, para. 822 and references cited therein.

[2] See also Simba Appeal Judgement, para. 38; Akayesu Appeal Judgement, fn. 577.

[3] See Gaspard Kanyarukiga v. The Prosecutor, Case No. ICTR-02-78-AR73.2, Decision on Gaspard Kanyarukiga’s Interlocutory Appeal of a Decision on the Exclusion of Evidence, 23 March 2010 (“Kanyarukiga Appeal Decision”), para. 7; Prosecutor v. Jadranko Prliæ et al., Case No. IT-04-74-AR73.13, Decision on Jadranko Prlić Consolidated Interlocutory Appeal Against the Trial Chamber’s Orders of 6 and 9 October 2008 on Admission of Evidence, 12 January 2009 (“Prliæ et al. Appeal Decision”), para. 15; The Prosecutor v. Arsène Shalom Ntahobali and Pauline Nyiramasuhuko, Case No. ICTR-97-21-AR73, Decision on “Appeal of Accused Arsène Shalom Ntahobali Against the Decision on Kanyabashi’s Oral Motion to Cross-Examine Ntahobali Using Ntahobali’s Statements to Prosecution Investigators in July 1997”, 27 October 2006 (“27 October 2006 Decision”), para. 10.

Download full document
ICTR Rule Rule 89 ICTY Rule Rule 89
Notion(s) Filing Case
Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

1616.            The Appeals Chamber recalls that neither the Rules nor the jurisprudence of the Tribunal oblige a trial chamber to require a particular type of identification evidence[1] and that trial chambers have the discretion to consider cautiously and rely on hearsay evidence.[2] The Appeals Chamber further recalls that a witness’s prior knowledge of, or level of familiarity with, an accused is a relevant factor in the assessment of identification evidence; however, contrary to what Ntahobali suggests, the fact that a witness did not personally know an accused prior to the events does not necessarily undermine the reliability of his identification evidence.[3] In the present case, the Trial Chamber correctly recalled generally the law concerning reliance on hearsay evidence in an introductory section of the Trial Judgement and specifically when considering such evidence with respect to Ntahobali’s identification at the prefectoral office.[4] The Trial Chamber considered the hearsay nature of various witnesses’ identifications of Ntahobali at the prefectoral office and concluded that they were reliable for a variety of reasons.[5] Ntahobali’s general contentions concerning the Trial Chamber’s use of hearsay, which do not discuss this analysis,[6] fail to demonstrate that the Trial Chamber erred in this regard.

See also fn. 5590.

[1] Gatete Appeal Judgement, para. 193; Kalimanzira Appeal Judgement, para. 96. See also Musema Appeal Judgement, para. 90.

[2] See, e.g., Nizeyimana Appeal Judgement, para. 95; Munyakazi Appeal Judgement, para. 77; Kalimanzira Appeal Judgement, para. 96; Karera Appeal Judgement, para. 39.

[3] Lukić and Lukić Appeal Judgement, para. 118; Renzaho Appeal Judgement, para. 530. Cf. Kayishema and Ruzindana Appeal Judgement, paras. 327, 328.

[4] Trial Judgement, paras. 168, 169, 2638, 2679.

[5] Trial Judgement, paras. 2633, 2638, 2678-2680.

[6] See Ntahobali Appeal Brief, paras. 716-720.

Download full document
Notion(s) Filing Case
Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

2891.            The Appeals Chamber notes that the Trial Chamber’s statement that “Ndayambaje’s testimony must be treated with appropriate caution as he has a personal interest in demonstrating that he was not present at Ngiryi Bridge on the morning of 20 April 1994”[1] followed the Trial Chamber’s assessment of Ndayambaje’s and Witness Tiziano’s evidence placing Ndayambaje at his home around 9.00 a.m.[2] The Trial Chamber did not find this aspect of Ndayambaje’s and Witness Tiziano’s testimonies credible as it was contradicted by Witness RV’s evidence.[3] The Appeals Chamber finds that a reasonable trier of fact could have considered the possibility of Ndayambaje’s incentive to provide exculpatory evidence in the context of all the relevant evidence and that the Trial Chamber’s consideration does not denote a violation of the presumption of innocence.[4]

See also para. 3226.

[1] Trial Judgement, paras. 1203, 1401.

[2] Trial Judgement, para. 1200.

[3] Trial Judgement, para. 1200.

[4] Cf. Musema Appeal Judgement, para. 50 (“It is correct to state that the sole fact that evidence is proffered by the accused is no reason to find that it is, ipso facto, less reliable. Nevertheless, the source of a document may be relevant to the Trial Chamber’s assessment of the reliability and credibility of that document. Where such a document is tendered by an accused, a Trial Chamber may determine, for example, if the accused had the opportunity to concoct the evidence presented and whether or not he or she had cause to do so. This is part of the Trial Chamber’s duty to assess the evidence before it.”).

Download full document
Notion(s) Filing Case
Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

576. The Appeals Chamber underlines that trial chambers are tasked with determining the guilt or innocence of the accused and must do so in light of the entirety of the evidence admitted into the record and that neither the Statute nor the Rules prevent a trial chamber from relying on the testimony of the accused to convict that accused, unless the accused’s self-incriminating evidence was compelled in violation of Article 20(4)(g) of the Statute.[1] […]

[1] See Karera Appeal Judgement, para. 19, quoting, in part, Galić Appeal Judgement, para. 17 (“While ‘[t]here is a fundamental difference between being an accused, who might testify if he so chooses, and a witness’, this does not imply that the rules applied to assess the testimony of an accused are different from those applied with respect to the testimony of an ‘ordinary witness’.”). See also Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR73.11, Decision on Appeal Against the Decision on the Accused’s Motion to Subpoena Zdravko Tolimir, 13 November 2013, para. 50 (“The Appeals Chamber emphasises that an accused or appellant may be compelled to testify in other cases before the Tribunal due to the fact that any self-incriminating information elicited in those proceedings cannot be directly or derivatively used against him in his own case. By contrast, an accused or appellant is not compellable in his own case […] as this may violate his right under Article 21(4)(g) of the [ICTY] Statute.”).

Download full document
Notion(s) Filing Case
Appeal Judgement - 28.02.2005 KVOČKA et al.
(IT-98-30/1-A)

23. The Appeals Chamber recalls that every accused has the right to a reasoned opinion under Article 23 of the Statute and Rule 98ter(C) of the Rules.[1]  However, this requirement relates to the Trial Chamber’s Judgement; the Trial Chamber is not under the obligation to justify its findings in relation to every submission made during the trial. The Appeals Chamber recalls that it is in the discretion of the Trial Chamber as to which legal arguments to address. With regard to the factual findings, the Trial Chamber is required only to make findings of those facts which are essential to the determination of guilt on a particular count. It is not necessary to refer to the testimony of every witness or every piece of evidence on the trial record.[2] It is to be presumed that the Trial Chamber evaluated all 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 findings 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.[3] 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. It is therefore not possible to draw any inferences about the quality of a judgement from the length of particular parts of a judgement in relation to other judgements or parts of the same judgement.

24. The Appeals Chamber notes that, in certain cases, the requirements to be met by the Trial Chamber are higher. As an example of a complex issue, the Appeals Chamber considered the appraisal of witness testimony with regard to the identity of the accused:

While a Trial Chamber is not obliged to refer to every piece of evidence on the trial record in its judgement, where a finding of guilt is made on the basis of identification evidence given by a witness under difficult circumstances, the Trial Chamber must rigorously implement its duty to provide a “reasoned opinion”. In particular, a reasoned opinion must 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. [4]

But even in those cases, the Trial Chamber is only expected to identify the relevant factors, and to address the significant negative factors. If the Defence adduced the evidence of several other witnesses, who were unable to make any meaningful contribution to the facts of the case, even if the conviction of the accused rested on the testimony of only one witness, the Trial Chamber is not required to state that it found the evidence of each Defence witness irrelevant. On the contrary, it is to be presumed that the Trial Chamber took notice of this evidence and duly disregarded it because of its irrelevance. In general, as the Furundžija Appeals Chamber stated:

The case-law that has developed under the European Convention on Human Rights establishes that a reasoned opinion is a component of the fair hearing requirement, but that “the extent to which this duty ... applies may vary according to the nature of the decision” and “can only be determined in the light of the circumstances of the case”.[5]

25. The Appeals Chamber therefore emphasizes that it is necessary for any appellant claiming an error of law because of the lack of a reasoned opinion to identify the specific issues, factual findings or arguments, which he submits the Trial Chamber omitted to address and to explain why this omission invalidated the decision.[6] General observations on the length of the Judgement, or of particular parts of the Judgement, or of the discussion of certain parts of the evidence, do not qualify, except in particularly complex cases, as the basis of a valid ground of appeal.[7]

[1] Furundžija Appeal Judgement, para. 69; Kunarac et al. Appeal Judgement, para. 41.

[2] Čelebići Appeal Judgement, para. 498; Kupreškić et al. Appeal Judgement, para. 39; Kordić and Čerkez Appeal Judgement, para. 382. See also above, para. 23.

[3] Čelebići Appeal Judgement, paras 481, 498; Kupreškić et al. Appeal Judgement, para. 32.

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

[5] Furundžija Appeal Judgement, para. 69 (footnotes omitted).

[6] Cf. Kordić and Čerkez Appeal Judgement, para. 21.

[7] Cf. Decision on Prosecution Motion Requesting Order to Zoran Žigić to File Grounds of Appeal, 14 June 2002, para. 10.

Download full document