Right to cross-examine witnesses

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

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

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

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

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

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

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

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

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

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

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

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

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

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Notion(s) Filing Case
Appeal Judgement - 08.05.2012 KANYARUKIGA Gaspard
(ICTR-02-78-A)

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

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

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

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Notion(s) Filing Case
Decision on Joinder - 27.01.2006 TOLIMIR et al.
(IT-04-80-AR73.1)

The Appellant was arguing that the Trial Chamber erred in finding that it could regulate the cross-examination of witnesses. In his view, this would violate both his right to cross-examine witnesses under Article 21(4)(e) of the Statute and Rule 82(A) of the Rules according to which in “joint trials, each accused shall be accorded the same rights as if such accused were being tried separately.”

The Appeals Chamber found the following:

29. […] The Trial Chamber was correct to note that in a joint trial, a Trial Chamber has discretion to regulate the examination of witnesses so as to avoid repetitive questioning during cross-examination. Rule 90(F) specifically provides that “[t]he 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.” Of course, this power is subject to Trial Chamber’s obligation to respect the rights of an accused, including the right to cross-examine witnesses under Article 21(4)(e) of the Statute.[1] The Appellant fails to show how the Trial Chamber’s regulation of the cross-examination of witnesses in this joint trial by, for example, avoiding repetitive questioning, would result in prejudice to him. Rather, the Trial Chamber’s regulation should mitigate any potential prejudice to him. At trial, the Appellant will have the opportunity to object where he feels that the Trial Chamber has erred in finding that another Accused’s cross-examination of a witness is sufficient to cover his defence such that he does not need to also engage in cross-examination of that same witness. The Trial Chamber will consider each objection carefully under its obligation to respect norms of due process and the rights of the Appellant. 

[1] Article 20(1) of the Statute requires that “[t]he Trial Chambers shall ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with the rules of procedure and evidence, with full respect for the rights of the accused […]” (emphasis added).

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ICTR Statute Article 20(4)(e) ICTY Statute Article 21(4)(e) ICTR Rule Rule 48;
Rule 82(A);
Rule 90(F)
ICTY Rule Rule 48;
Rule 82(A);
Rule 90(F)
Notion(s) Filing Case
Appeal Judgement - 20.10.2010 RUKUNDO Emmanuel
(ICTR-2001-70-A)

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

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

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

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

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

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

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

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

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