Other party's witness who declined interview

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

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

See also paragraphs 14-15.

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

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

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

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

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

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

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MICT Rule Rule 86