Self-incrimination

Notion(s) Filing Case
Decision on Subpoenaing Tolimir - 13.11.2013 KARADŽIĆ Radovan
(IT-95-5/18-AR73.11)

35.     The critical issue is whether Rule 90(E) of the Rules adequately protects an accused or appellant from the direct and indirect use against him of any compelled self-incriminating information, arising as a result of deliberate or inadvertent self-incrimination. In this regard, the Appeals Chamber notes Tolimir’s contention that Rule 90(E) of the Rules “is not a complete protection from self-incrimination”,[1] and that compelling him to testify pursuant to Rule 90(E) of the Rules would constitute a violation of his right against self-incrimination under Article 21(4)(g) of the Statute.[2]

[…]

43.     The immunity from prosecution guaranteed under Rule 90(E) of the Rules clearly prohibits the subsequent direct use of any self-incriminating statements compelled under the provision against the witness in criminal proceedings other than those concerned with false testimony. Thus, where an accused or appellant is compelled to make self-incriminating statements under Rule 90(E) of the Rules, the Prosecution is prohibited from directly relying on such statements in the accused’s or appellant’s own case. Furthermore, in view of the fact that the underlying purpose of the immunity under Rule 90(E) of the Rules is to protect a witness from the subsequent use of such statements against him, and considering that the laws of various national and international jurisdictions reflect that incriminating statements may be compelled from a witness only where adequate safeguards exist against the subsequent use of such statements against the witness, the Appeals Chamber finds that the immunity under Rules 90(E) of the Rules must be interpreted also as a prohibition against the derivative or indirect use of the compelled statements in any subsequent prosecution of the witness other than for false testimony. Testimony compelled under Rule 90(E) of the Rules therefore cannot be used by the Prosecution as a basis for subsequent investigations from which other incriminating evidence may be derived and then used against the accused or appellant.

44.     Furthermore, regarding the issue of inadvertent self-incrimination, the Appeals Chamber emphasizes that in the Impugned Decision the Trial Chamber expressed that it “will be cognisant of the fact that Tolimir is currently involved in appeals proceedings before the Appeals Chamber and will ensure his rights are safeguarded.”[3] Moreover, in the interests of justice in this particular case, particularly in view of the fact that Tolimir is a self-represented appellant, any self-incriminating testimony inadvertently provided during Tolimir’s testimony in the Karadžić case shall not be used as evidence during his appeal or any subsequent proceedings against him, except for false testimony.

45.     Accordingly, […] considering that national and international jurisdictions have recognised that the right against self-incrimination is adequately protected if adequate immunity from prosecution for compelled self-incriminating statements is provided and taking into account the nature of the protection provided by Rule 90(E) of the Rules, the Appeals Chamber finds that the compulsion of an accused’s or appellant’s testimony under Rule 90(E) of the Rules in another case before the Tribunal is not inconsistent with the right against self-incrimination under Article 21(4)(g) of the Statute. Any self-incriminating information potentially emerging during Tolimir’s testimony in the Karadžić case, therefore, could not be used directly or indirectly against Tolimir in his own case. Thus the Prosecution would be prohibited from attempting, pursuant to Rule 115 of the Rules, to tender into evidence in the Tolimir case any self-incriminating information derived from Tolimir’s testimony in the Karadžić case, or any evidence derived therefrom. […]

[1] Appeal [Appeal against the Decision on the Accused’s Motion to Subpoena Zdravko Tolimir”, 11 June 2013], para. 19. See also Appeal, paras 15-20, 25-29; Reply to the Prosecution Submissions on the Appeal [Reply to Prosecution’s Submissions on Tolimir’s Appeal, 12 August 2013], para. 6.

[2] Appeal, paras 17, 30-31. See also Reply to the Prosecution Submissions on the Appeal, para. 2.

[3] Impugned Decision [Decision on Accused’s Motion to Subpoena Zdravko Tolimir”, 9 May 2013], para. 22.

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ICTR Statute Article 20(4)(g) ICTY Statute Article 21(4)(g) ICTR Rule Rule 90(E) ICTY Rule Rule 90(E)
Notion(s) Filing Case
Appeal Judgement - 07.07.2006 NTAGERURA et al. (Cyangugu)
(ICTR-99-46-A)

It is in the discretion of the Trial Chamber to apply Rule 90(E) to compel a witness to answer a question which may incriminate the witness. The Trial Chamber may in particular decline to use its power under Rule 90(E) if the question is not related to the facts of the case and only relevant to the overall credibility of the witness (para. 254):

254.    In the view of the Appeals Chamber, the question about the transport of Interahamwe in northern Rwanda had very little relevance to the facts of the present case, or to the subject-matter of Augustin Ndindiliyimana’s testimony. Counsel for the Prosecution argued that the question was necessary to test the witness’ credibility. Under Rule 90(G)(i) of the Rules, questions about matters affecting the credibility of a witness may be asked during cross-examination. However, the possibility to ask questions to test the credibility of a witness is not unlimited.The Appeals Chamber has already observed that Augustin Ndindiliyimana was not an accomplice in the ordinary meaning of the word, but is only charged with similar offences as Bagambiki and Imanishimwe. The question the Prosecution wanted to put to the witness concerned a very specific matter, which was only in the most general way related to the criminal charges against the Accused. Taking into consideration the very limited scope of Augustin Ndindiliyimana’s testimony, the Appeals Chamber finds that the Prosecution has not demonstrated that this particular question was relevant to determining the reliability of Augustin Ndindiliyimana’s testimony in the present case. The Appeals Chamber does not find that the Trial Chamber erred in law when it declined to compel the witness under Rule 90(E) of the Rules to answer the question.

[1] See supra, para. 237.

[2] T.18 February 2003, p. 50.

[3] Archbold, Criminal Pleading, Evidence and Practice (London, 2004), para. 8-138, p. 1176: “[A] witness may be asked questions about his antecedents, associations or mode of life which although irrelevant to the issue would be likely to discredit his testimony. […] The judge has discretion to excuse an answer when the truth of the matter suggested would not in his opinion affect the credibility of the witness as to the subject matter of his testimony.”

[4] See supra, para. 236.

[5] See supra, para. 237.

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ICTR Rule Rule 90(E) ICTY Rule Rule 90(E)
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.”).

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