Evidence of an accused

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

228. […] Rule 85(C) of the Rules […] contains no restrictions with regard to when, during the defence case, the accused can choose to exercise this right. 

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ICTR Rule Rule 85(C) ICTY Rule Rule 85(C)
Notion(s) Filing Case
Decision on Admission of Transcript - 23.11.2007 PRLIĆ et al.
(IT-04-74-AR73.6)

46. Additionally, a document such as the December 2001 Transcript, after a suspect has become an accused, does not merely provide the judges in his case with a written summary of the answers of a person about whom they know nothing. In the normal course of events, during the proceedings those judges will hear evidence on the individual who was questioned and, by the end of the trial, they will therefore be able – and required – to put the questioning in context in order to assess it in light of the rest of the information received. This does not happen with witness statements, which are based on evidence proffered by an individual about whom the trier of fact knows little, even considering the possibility that he be called for cross-examination.

48. […] In the case at hand, however, the witness is theoretically able to attend – as shown by the fact that he can choose to testify – but is not required to do so in order to protect his own fundamental rights. In this sense, his rights are weighed ex ante against the other interests involved and actually form part of wider considerations falling within the “interests of justice”. […]

50. In construing the “spirit of the Statute and the general principles of law” pursuant to Rule 89(B), the Appeals Chamber will also note that, due to the nature of the issue at hand, domestic legal systems do not provide much guidance. In a very broad sense, in systems that allow an accused to testify in his own trial under a solemn declaration – and not merely expressing himself as an accused – a document such as the December 2001 Transcript would be inadmissible because it could not be tested by cross-examination.[1] On the contrary, those systems where declarations gathered in the pre-trial stages according to certain procedures may be admitted in writing at trial are also the ones that generally do not allow accused persons to testify as witnesses in their own trials – they may be questioned, not in a manner equivalent to an examination under a solemn declaration.[2] Thus, no discernible “general principle” may be inferred from domestic practice in this area.

[1] See, for example: Cruz v. New York, 481 US 186, 189-190 (1987) and Lilly v. Virginia, 527 US 116 (1999), 139 (United States of America); R. v. Mazza (1978), 40 C.C.C. (2d) 134 (S.C.C.) and R. v. Deol, Gill and Randev (1981), 58 C.C.C. (2d) 524 (Alta.C.A.) (Canada); R v. Gunewardene [1951] 2 KB 600 and Lobban v. R, [1995] 2 All ER 602 (England).

[2] See, for example: Code de procédure pénale, articles 105, 113(7), 180, and 181 (France); Strafprozeßordnung (Code of Criminal Procedure), Sections 198-206, 245, 252(1)(3) and Oberster Gerichshof, 12Os26/89 of 30 March 1989, paras 152-153 (Austria); Strafprozeßordnung (Code of Criminal Procedure), Sections 245, 254(1) mutatis mutandis, 255a as regards an audio- and videotape mutatis mutandis (Germany). See in particular Bundesgerichtshof [BGH] [Federal Supreme Court of Justice] 14 May 1969, Entscheidungen des Bundesgerichtshofs in Strafsachen [BGHSt] 32, 372 (374). The case of Italy is more complex, as Articles 210, 500, 511, 513 and 514 of the Code of Criminal Procedure effectively prevent admission into evidence of previous statements by the co-accused, unless the questioning took place at the presence of the counsel of the accused, or when the accused cannot be questioned in court because dead, objectively unable to attend, or does not appear in court due to subornation.

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Notion(s) Filing Case
Decision on Accused's Statement - 20.04.2009 PRLIĆ et al.
(IT-04-74-AR73.15)

23. While the Appeals Chamber considers that a statement made pursuant to Rule 84 bis may touch upon any aspect of the case against the accused, including expert reports, the scope and length of such statements remain under the control of the Trial Chamber.

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ICTY Rule Rule 84 bis
Notion(s) Filing Case
Decision on Accused's Statement - 20.04.2009 PRLIĆ et al.
(IT-04-74-AR73.15)

28. […] While statements made under Rule 84 bis are a type of evidence – the probative value of which is decided by the Trial Chamber[1]– the admission of such statements, or their scope, are subject to the authority and control of the Trial Chamber.

29. The Rules do not provide explicitly for a written supplement to an accused’s Rule 84 bis statement 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”.[2] As the Appeals Chamber has previously noted, “[t]his 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.”[3] Rule 84 bis is one such feature.[4] […]

[1] See, e.g., Prosecutor v. Milan Martić, Case No. IT-95-11-T, Judgement, 12 June 2007, para. 23, in which the Trial Chamber considered whether the accused’s Rule 84 bis statement had any probative value, and concluded that it did not.

[2] Rule 89(B).

[3] Prosecution 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. 40. 

[4] See Giuliano Turone, The Denial of the Accused’s Right to Make Unsworn Statements in Delalić, 2 J. Int’l Crim. J. (2004) 455-458. The Appeals Chamber, notes, however, that the possibility of an accused to make an unsworn statement is not purely a creature of the civil law, and in fact was part of the common law system in many countries, although the tendency has been to abolish the rule. The US Army Manual for Courts Martial (2008), R.C.M. 1001(c)(2)(C) provides for the possibility of an accused to make an unsworn statement, either orally or in writing, though the statement is not considered as evidence and an accused making an unsworn statement is not a “witness”. See Trial of Albert Bury and Wilhelm Hafner, United States Military Commission, Freising, Germany, 15 July 1945, Law Reports of Trials of War Criminals, The United Nations War Crimes Commission, Vol. III, London, HMSO, 1948, p. 63. 

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ICTY Rule Rule 84 bis
Notion(s) Filing Case
Decision on Accused's Statement - 20.04.2009 PRLIĆ et al.
(IT-04-74-AR73.15)

15. With respect to the timing of giving such statements, the Appeals Chamber is persuaded that the placement of this Rule as part of Rule 84 pertaining to opening statements, together with the clear wording of the Rule itself that such statements be made “[a]fter the opening statements of the parties or, if the defence elects to defer its opening statement pursuant to Rule 84, after the opening statement of the Prosecutor” indicate that statements under this Rule should take place prior to the presentation of evidence by the Prosecution. This conclusion is also supported by the original purpose of the Rule – to “improve case management” by narrowing issues in dispute at the outset at trial[1] – which suggests that such statements should take place prior to the presentation of the prosecution case.

16. In practice, however, while most statements made pursuant to Rule 84 bis of the Rules have taken place at the end of opening statements of the parties,[2] Trial Chambers have on occasion allowed accused persons to make such statements at later stages of the trial proceedings.[3] The Trial Chamber in this case has also indicated that it would allow an accused person to make more than one Rule 84 bis statement.[4] In general, Trial Chambers enjoy a wide margin of discretion in determining matters relating to the admissibility of certain types of evidence at trial, as well as in defining the modalities of the exercise of the rights of the Defence.[5] Recognising that there may be situations in which it may be appropriate to allow a Rule 84 bis statement after the presentation of the Prosecution case, the Appeals Chamber considers that Trial Chambers retain the discretion to allow an accused to make Rule 84 bis statements in later stages of the trial in the interests of justice.

[1] Report of the Expert Group to Conduct a Review of the Effective Operation and Functioning of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, UN Doc. A/54/634, para. 87.

[2] In Prosecutor v. Slobodan Milosević, Case No. IT-01-54, the accused made a three day Rule 84 bis statement at the end of the Prosecution’s opening statement (T. 225-509). In Prosecutor v. Baton Haxhiu, Case No. IT-04-84-R77.5, the accused made a short unsworn statement after the opening statements of the parties (T. 20).  In Prosecutor v. Milan Martić, Case No. IT-95-11, the accused made a 45 minute Rule 84 bis statement after the opening statements of the parties (T. 295-319). In Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, the accused made a four hour statement under Rule 84 bis after the opening statement of the Prosecution (T. 1855).  In Prosecutor v. Mile Mrkšić et al., the accused [ljivančanin made a Rule 84 bis statement of about 20 minutes and the accused Radić made a Rule 84 bis statement of two or three minutes after the opening statements of the parties (T. 520-530). In Prosecutor v. Momčilo Perišić, Case No. IT-04-81, the accused made a 45 minute Rule 84 bis statement at the conclusion of the Prosecution’s opening statement (T. 424-432). In Prosecutor v. Vlastimir Ðorđevic, Case No. IT-05-87/1, the accused made a 25 minute Rule 84 bis statement after the opening statement of the Prosecution (T. 227-242).

[3] See, e.g, Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1, T. 9449-9473 (the accused Žigić gave a 45 minute Rule 84 bis statement at the beginning of his defence case, on 26 March 2001);                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39, T. 27500-27534 (the accused made a 45 minute Rule 84 bis statement at the end of the trial proceedings, on 31 August 2006); Stanišić and Simatović Decision of 9 April 2008, para. 14 (noting that if the accused Stanišić was too ill to attend court, he could make a statement pursuant to Rule 84 bis of the Rules at a later stage of the trial); Prosecutor v. Milomir Stakić, Case No. IT-97-24-PT, Order for Filing of Motions and Related Matters, 7 March 2003, p. 3 and Prosecutor v. Mile Mrkšić et al., Case No. IT-95-13/1-PT, Order for Filing of Motions and Related Matters, 28 November 2003, p. 3 (both finding that Rule 84 bis applies throughout the proceedings in accordance with the accused’s right to be heard in person by the Trial Chamber, and that “this right is granted from the outset whenever a witness has finalized his or her testimony and at the end of a party’s presentation of a case, notwithstanding further rights of the accused, as laid down in the Statute and Rules, and notwithstanding other directives of the Trial Chamber if the interests of justice so demand”); Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, Decision on Vidoje Blagojević’s Oral Request, 30 July 2004, p. 7, quoting Motion Hearing, 17 June 2004, T. 10922-25 (finding that although “an unsworn statement is generally made after the opening statement of the parties, the Trial Chamber does not find any reason to deny you the opportunity to make an unsworn statement at a later time”).

[4] During the Rule 98 bis ruling on 28 January 2008 in this case, the Trial Chamber stated that although the accused Praljak had already made a Rule 84 bis statement before the beginning of the Prosecution case on 27 April 2006, it would be ready to authorize him to take the floor once more to make a statement at the time when the Defence is presenting its case (T. 26873).

[5] 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, para. 6; Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.2, Decision on Joint Defence Interlocutory Appeal against the Trial Chamber’s Oral Decision of 8 May 2006 Relating to Cross-Examination By Defence and on Association of Defence Counsel’s Request for Leave to File an Amicus Curiae Brief, 4 July 2006, p. 3; 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, 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, para. 3.

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ICTY Rule Rule 84 bis
Notion(s) Filing Case
Decision on Accused's Statement - 20.04.2009 PRLIĆ et al.
(IT-04-74-AR73.15)

14. In regard to Prlić’s contention that such statements may be given in writing, the Appeals Chamber notes that while the plain wording of Rule 84 bis suggests that such statements would ordinarily be made orally in court,[1] the Rule does not prohibit such statements being given by an accused in written form. In principle, therefore, a statement made under Rule 84 bis might be given in written form, although its admission would remain subject to the authorisation of the Trial Chamber, and under its control.[2]

[1] See also Salvatore Zappalà, Human Rights in International Criminal Proceedings (Oxford: OUP, 2005), p. 142: “[…] it is doubtful whether the [Rule 84 bis] statement can be written”.

[2] The Appeals Chamber notes that this is the first time that an accused before the Tribunal has submitted a written document pursuant to Rule 84 bis of the Rules. The Appeals Chamber is also conscious of Article 67(1)(h) of the Rome Statute of the International Criminal Court, which explicitly provides for a right of an accused to make an unsworn oral or written statement in his or her defence.

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ICTY Rule Rule 84 bis
Notion(s) Filing Case
Appeal Judgement - 16.10.2007 HALILOVIĆ Sefer
(IT-01-48-A)

The Trial Chamber had denied admission of a statement given by Halilović to the Prosecution at a time when he was questioned only as a witness, which was not taped or video-recorded according to Rule 43. On appeal, both parties agreed that the procedure under Rules 42 and 43 had not been followed since the Prosecution did not consider Halilović a suspect at that time, although it did inform him of his rights to counsel and to remain silent.

36. The Trial Chamber found that:

in order to protect the right of the Accused to a fair trial, in accordance with Article 21 of the Statute, it should be taken into account whether the safeguards of Rules 42, 43 and 63 of the Rules have been fully respected when deciding on the admission of any former statement of an accused irrespective of the status of the accused at the time of taking the statement.[1]

The Trial Chamber’s understanding of the protections afforded by the Statute and the Rules is consistent with the principles expressed in the case law of the International Tribunal and the ICTR[2] as well as the law of other jurisdictions.[3]

37. The Decision of 8 July 2005 dealt with the issue of whether the Statement had been taken in accordance with Rules 42, 43, 63, 89 and 95 of the Rules.[4] The Trial Chamber reasoned that the main question at issue was “what safeguards should have been applied by the Prosecution in order for a former statement of a now accused person to be admissible into evidence”.[5] The Trial Chamber concluded that:

[…] In the present case, Rule 43 [of the Rules] was not applied at the time of taking the Statement. Sefer Halilović has not chosen to waive his right to remain silent during trial. Thus, the Trial Chamber finds that the admission of the Statement would infringe upon the Accused’s right to a fair trial.[6]

38. Whether the statement would also be inadmissible due to a retroactive reading of Rule 43 of the Rules was not a decisive consideration in the Trial Chamber’s reasoning.[7] […]

[1] Decision of 8 July 2005 [Prosecutor v. Sefer Halilović, Case No. IT-01-48-T, Decision on Motion for Exclusion of Statement of Accused, 8 July 2005], para. 21.

[2] See, for example, Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Decision on Defendant’s Motion for Summonses and Protection of Witnesses called by the Defence, 17 February 1998; Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Decision on Zdravko Mucić’s Motion for the Exclusion of Evidence, 2 September 1997.

[3] The European Court of Human Rights (“ECtHR”) has dealt with this issue mostly in the context of punishment (in a broad sense) of accused persons relying on their right to remain silent. However, the Appeals Chamber finds the ECtHR case law to be informative of the principles that “[t]he right not to incriminate oneself is primarily concerned … with respecting the will of an accused person to remain silent” (Heaney and McGuinness v. Ireland, Reports of Judgments and Decisions 2000-XII, para. 40) and that the status of a person (not yet formally charged) is modified when that individual’s situation has been “substantially affected” therefore anticipating the right to remain silent, the right against self-incrimination and the related warnings (Id., 41-42, 45). See also Serves v. France, Reports 1997-VI, para. 42; Saunders v. the United Kingdom, Reports 1996-VI, para. 74; Shannon v. United Kingdom, no. 6563/03, judgement of 4 October 2005 (consulted in the Internet).

[4] Decision of 8 July 2005, paras 21 and 24.

[5] Decision of 8 July 2005, para. 19.

[6] Decision of 8 July 2005, para. 26.

[7] See, in this respect, Čelebići Appeal Judgement, para. 533 and Kvočka Appeal Judgement, para. 128.

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ICTY Rule Rule 42;
Rule 43
Notion(s) Filing Case
Decision on Admission of Record of Interview - 19.08.2005 HALILOVIĆ Sefer
(IT-01-48-AR73.2)

The Accused appealed against a Decision of the Trial Chamber admitting into evidence from the bar table the record of the Prosecution’s interview with him. When considering whether the Trial Chamber erred in exercising its discretion to admit the record of the interview pursuant to Rule 89(D) of the ICTY Rules of Procedure and Evidence, the Appeals Chamber made the following findings:

14.     With respect to the Appellant’s first argument, that the Rules do not permit a record of an interview with the accused to be tendered into evidence unless the accused has chosen to testify or has consented to the tender, the Appeals Chamber does not agree that the Rules impose such a categorical restriction.  The Rules instead grant Trial Chambers considerable discretion on evidentiary matters; in particular Rule 89(C) states that a “Chamber may admit any relevant evidence which it deems to have probative value”.  Here the Trial Chamber was satisfied that the record of interview was relevant and probative, and the Appellant does not dispute these points.  The Trial Chamber therefore had the discretion to admit the record, at least so long as doing so did not violate any of the specific restrictions outlined in the remainder of the Rules, nor the general principle of Rule 89(B) requiring application of “rules of evidence which will best favour a fair determination of the matter before it andare consonant with the spirit of the Statute and the general principles of law”.

15.     The Appeals Chamber does not find that fairness or the “spirit of the Statute and general principles of law” require that the admissibility of an accused’s prior statements turn on whether he has agreed to testify or consented to the admission.  The Appellant’s argument to the contrary rests implicitly on the right of an accused against self-incrimination.  An accused has the right to refuse to give statements incriminating himself prior to trial, and he had the right to refuse to testify at trial.  But where the accused has freely and voluntarily made statements prior to trial, he cannot later on choose to invoke his right against self-incrimination retroactively to shield those statements[1] from being introduced, provided he was informed about his right to remain silent before giving this statement; there is, however, a presumption that he knows about this right if he is assisted by counsel.  Nor does the Appellant point to any provision of the Rules or rules of customary international law that specifically imposes such a restriction on the admission of an accused’s prior statements.  The Appeals Chamber therefore concludes that no such rules exists.

16.     The Appellant’s second complaint, that the method of introducing the evidence (via tender from the bar table) breached the principle of orality, is misplaced.  There is to be sure, a general principle that witnesses before the Tribunal should give their evidence orally rather than have their statement entered into the record.  The principle has its origin in the Roman law requirement that parties before a tribunal make submissions orally rather than in writing, and exists in various forms in common and civil law traditions today.  The principle of orality and its complement, the principle of immediacy, act as analogues to common law hearsay rules and are meant to ensure the adversarial nature of criminal trials, and the right of the accused to confront witnesses against him.  

17.     However, the principle of orality, as reflected in the Rules, is not an absolute restriction, but instead simply constitutes a preference for the oral introduction of evidence.  Rule 89(F) states that a “Chamber may receive the evidence of a witness orally or, where the interests of justice allow, in written form.[2] The Tribunal’s jurisprudence recognises that the interests of justice may often allow for the admission of prior statements of the accused.  The principle of orality is weaker in application to the accused’s own statements than to the testimony of other witnesses.  As the Appeals Chamber explained in the Kvočka case, the rules of evidence applicable to witness testimony do not always apply to the statements of an accused: “[t]here is a fundamental difference between an accused, who might testify as a witness if he so chooses, and a witness”. [3]  The principle of orality is intended principally to ensure the accused’s right to confront the witnesses against him, and in this respect its logic is not applicable to the accused’s own statements.  Moreover, to the extent that the principle of orality ensures that in-court witness testimony (generally understood to be more reliable) is used instead of those witnesses’ out-of-court statements where possible, that logic is also less applicable to the accused’s statements, for the accused may, as the Appellant did, refuse to testify.

[1] Cf. Niyitegeka v Prosecutor, ICTR-96-14-A, Judgement, 9 July 2004, paras. 30-36.

[2] In addition Rules 92 bis specifically authorises and provides procedures for the admission of written witness statements under certain circumstances not applicable here (involving witness statements that go “to proof of a matter other than the acts and conducts of the accused as charged in the indictment”).

[3] Prosecutor v. Kvočka, Case No. IT-98-30/1-A, Judgement, 28 February 2005, paras. 122-126 (“Kvočka Appeals Judgement”).

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ICTY Rule Rule 42;
Rule 43
Notion(s) Filing Case
Appeal Judgement - 02.02.2009 KARERA François
(ICTR-01-74-A)

22. The Appellant submits that the Trial Chamber erred in law in failing to conclude that those portions of his testimony that the Prosecution did not cross-examine were established.[1] Referring to Rule 90(G)(ii) of the Rules, the Rutaganda Appeal Judgement,[2] and Canadian jurisprudence, he submits that the “failure to cross-examine a witness on an aspect of his testimony implies a tacit acceptance of the truth of the witness’s evidence on the matter”.[3]

24. The Appeals Chamber finds that Rule 90(G)(ii) of the Rules does not support the Appellant’s contention [. The rule merely states that “[i]n the cross-examination of a witness who is able to give evidence relevant to the case for the cross-examining party, counsel shall put to that witness the nature of the case of the party for whom that counsel appears which is in contradiction of the evidence given by the witness.” The ICTY Appeals Chamber has previously stated, regarding the similarly worded Rule 90(H)(ii) of the ICTY Rules, that it:

seeks to facilitate the fair and efficient presentation of evidence whilst affording the witness being cross-examined the possibility of explaining himself on those aspects of his testimony contradicted by the opposing party’s evidence, so saving the witness from having to reappear needlessly in order to do so and enabling the Trial Chamber to evaluate the credibility of his testimony more accurately owing to the explanation of the witness or his counsel.[4]

The central purpose of this rule is to “promote the fairness of the proceedings by enabling the witness […] to appreciate the context of the cross-examining party’s questions, and to comment on the contradictory version of the events in question”.[5]

26. For the requirements of this rule to be fulfilled, there is no need for the cross-examining party to explain every detail of the contradictory evidence. Furthermore, the rule allows for some flexibility depending on the circumstances at trial.[6] This therefore implies that if it is obvious in the circumstances of the case that the version of the witness is being challenged, there is no need for the cross-examining party to waste time putting its case to the witness.[7]

27. The Appeals Chamber notes that the term “witness” under Rule 90 of the Rules does not always equate to an accused who chooses to testify. There is a fundamental difference between the accused, who might testify as a witness if he so chooses, and a witness. The Tribunal “does not reflexively apply rules governing any other witness to an accused who decides to testify in his own case”.[8] When an accused testifies in his own defence, he is well aware of the context of the Prosecution’s questions and of the Prosecution’s case, insofar as he has received sufficient notice of the charges and the material facts supporting them.[9] Furthermore, the accused’s version of the events is for the most part challenged by the Prosecution, while his testimony is aimed at responding to Prosecution’s evidence and allegations. In these circumstances, it would serve no useful purpose to put the nature of the Prosecution’s case to the accused in cross-examination. The Appeals Chamber therefore does not find that Rule 90(G)(ii) of the Rules was intended to apply to an accused testifying as a witness in his own case. The Appeals Chamber notes that, in any event, Rule 90(G)(ii) of the Rules is silent on any inferences that may be drawn by a Trial Chamber from a witness’s testimony that is not subject to cross-examination.

28. The Appeals Chamber further notes that the relevant holding of the Appeals Chamber in Rutaganda reads: 

La Chambre d’appel estime que, d’une manière générale, une partie qui ne contre-interroge pas un témoin sur une déclaration donnée admet tacitement la véracité de la déposition dudit témoin sur ce point. La Chambre de première instance n’aurait donc pas commis une erreur de droit en l’espèce, en induisant du fait que l’Appelant n’avait pas contre-interrogé le témoin Q sur la distribution d’armes, que celui-ci ne contestait pas la véracité de la déposition dudit témoin sur ce point. Ceci étant dit, il ne ressort pas clairement du Jugement que la Chambre de première instance est effectivement parvenue à une telle conclusion. Il semble plutôt qu’elle se soit limitée à noter que l’Appelant n’avait pas contre-interrogé le témoin Q sur la question visée, sans toutefois en tirer quelques conséquences que ce soit dans ses conclusions factuelles. De l’avis de la Chambre d’appel, cet argument est dépourvu de fondement.[10]

29. The Appeals Chamber recalls that in Kamuhanda, the Appeals Chamber stated that this holding in Rutaganda “does not stand for the proposition that a trier of fact must infer that statements not challenged during cross-examination are true,” and that it is within the discretion of a Trial Chamber to decline to make such an inference.[11] Thus, the Appeals Chamber emphasizes that a Trial Chamber has the discretion to infer (or not) as true statements unchallenged during cross-examination, and to take into account the absence of cross-examination of a particular witness when assessing his credibility.[12]

30. The Appeals Chamber notes that in this instance, the Appellant, who testified at the end of the case, had consistently denied the allegations against him throughout the proceedings and claimed that he did not know anything about the crimes alleged.[13] The Prosecution cross-examined the Appellant on a number of issues.[14] Under this sub-ground of appeal, the Appellant has failed to point to any finding allegedly affected by the lack of cross-examination by the Prosecution but merely makes a general reference to his oral arguments at trial.[15] In these circumstances, the Appellant has not demonstrated that the Trial Chamber committed an error of law in not considering as established those portions of his testimony on which the Prosecution did not cross-examine him.[16]

See also, below under “Development of the existing case-law”.

[1] Notice of Appeal [Defence Notice of Appeal, 14 January 2008], para. 25. The authoritative French version of this paragraph reads: “La Chambre de première instance a erré en droit en [ne] concluant pas que les portions du témoignage de l’appelant sur lesquelles il n’avait pas été contre-interrogé devraient être tenues pour avérées.” The English translation inaccurately reads: “The Trial Chamber erred in law in finding that those portions of the Appellant’s testimony on which he was not cross-examined were to be considered established”, while it should read: “The Trial Chamber erred in law in not finding that those portions of the Appellant’s testimony on which he was not cross-examined were to be considered established”. Appellant’s Brief, paras. 25, 26.

[2] Rutaganda Appeal Judgement, para. 310.

[3] Appellant’s Brief, para. 26 (citation omitted); Notice of Appeal, para. 26.

[4] Prosecutor v. Radoslav Brđanin and Momir Talić, Case No. IT-99-36-AR73.7, Decision on the Interlocutory Appeal against a Decision of the Trial Chamber, as of Right, 6 June 2002, p. 4.

[5] On this issue, the Appeals Chamber approves of the language used by the Trial Chamber in Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-T, Order Setting Forth Guidelines for the Procedure Under Rule 90(H)(ii), 6 March 2007 (“Popović Order”), para. 1.

[6] On this issue, the Appeals Chamber approves of the language used by the Trial Chamber in Prosecutor v. Radoslav Brđanin and Momir Talić, Case No. IT-99-36-T, Decision on “Motion to Declare Rule 90(H) (ii) Void to the Extent It Is in Violation of Article 21 of the Statute of the International Tribunal” by the Accused Radoslav Brđanin and on “Rule 90(H) (ii) Submissions” by the Accused Momir Talić, 22 March 2002 (“Brđanin Decision”), paras. 13, 14; Prosecutor v. Naser Orić, Case No. IT-03-68-T, Decision on Partly Confidential Defence Motion Regarding the Consequences of a Party Failing to Put its Case to Witnesses Pursuant to Rule 90(H)(ii), 17 January 2006, pp. 1-2; Popović Order, para. 2.

[7] The Appeals Chamber notes that the case of Browne v. Dunn (on which the Brđanin Decision, confirmed by the Appeals Chamber, relies) states that the requirement to put the case to the witness does not apply when it is “otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling. Of course I do not deny for a moment that there are cases in which that notice has been so distinctly and unmistakably given, and the point upon which he is impeached, and is to be impeached, is so manifest, that it is not necessary to waste time in putting questions to him upon it”. Browne v. Dunn (1893) 6 R. 67 (H.L.).

[8] Prlić et al, Decision of 5 September 2008, para. 11.

[9] The question of the lack of notice will be treated separately by the Appeals Chamber , see below Chapter VIII(D) and Chapter X.

[10] Rutaganda Appeal Judgement, para. 310 (footnote omitted). The Appeals Chamber notes that the English version does not accurately reflect the French authoritative version. The English version reads: “The Appeals Chamber considers that a party who fails to cross-examine a witness upon a particular statement tacitly accepts the truth of the witness’s evidence on the matter. Therefore the Trial Chamber did not commit an error of law in the case at bar, in inferring that the Appellant’s failure to cross-examine Witness Q on the weapons distribution meant that he did not challenge the truth of the witness’s evidence on the matter. That being said, it is unclear from the Trial Judgement whether the Trial Chamber drew inferences from this failure. Rather, it appears that it only noted that the Appellant failed to cross-examine Witness Q regarding the specific statement, without making any inferences in its factual conclusions. It is the opinion of the Appeals Chamber that this argument is without foundation.” In order to fully reflect the nuances introduced by the Appeals Chamber in its finding, the English translation of the first two sentences of this paragraph should read: “The Appeals Chamber considers that, [in general], a party who fails to cross-examine a witness upon a particular statement tacitly accepts the truth of the witness’s evidence on the matter. Therefore the Trial Chamber [would have] not commit[ted] an error of law in the case at bar, in inferring that the Appellant’s failure to cross-examine Witness Q on the weapons distribution meant that he did not challenge the truth of the witness’s evidence on the matter.”

[11] Kamuhanda Appeal Judgement, para. 204.

[12] Kajelijeli Appeal Judgement, para. 26; Nahimana et al. Appeal Judgement, paras. 820, 824 and fn. 1893.

[13]T. 21 August 2006; T. 22 August 2006; T. 23 August 2006.

[14]T. 22 August 2006 pp. 31-61; T. 23 August 2006 pp. 1-44.

[15] See Notice of Appeal, paras. 24-26; Appellant’s Brief [Appellant’s Brief, 7 April 2008], paras. 25, 26.

[16] Any specific arguments raised by the Appellant in relation to this allegation will be dealt with below in the respective Chapters.

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ICTR Rule Rule 90(G) ICTY Rule Rule 90(H)
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.

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

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

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

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

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

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

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

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

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

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

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

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

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ICTR Rule Rule 90(G) ICTY Rule Rule 90(H)
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.

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Appeal Judgement - 30.11.2006 GALIĆ Stanislav
(IT-98-29-A)

At paras 17-20, the Appeals Chamber addressed the issue whether a Trial Chamber can decide when an accused can testify in his own trial. It concluded:

20. […] Trial Chambers have discretion pursuant to Rule 90(F) of the Rules to determine when an accused may testify in his own defence, but this power must nevertheless be exercised with caution, as it is, in principle, for both parties to structure their cases themselves, and to ensure that the rights of the accused are respected, in particular his or her right to a fair trial.

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ICTR Rule Rule 85(C);
Rule 90(F)
ICTY Rule Rule 85(C);
Rule 90(F)
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Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

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

See also para. 1292.

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

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

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.”).

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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.”).

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