Admissibility of statements made before national jurisdictions

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).

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ICTR Rule Rule 89(B) ICTY Rule Rule 89(B)