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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Notion(s) Filing Case
Appeal Judgement - 19.03.2019 KARADŽIĆ Radovan
(MICT-13-55-A)

162. The Appeals Chamber recalls that Article 21(4)(e) of the ICTY Statute guarantees the right of the accused to examine or have examined the witnesses against him. However, this right is not absolute and may be limited, for instance, in accordance with Rule 92 bis of the ICTY Rules.[1] In this respect, a decision to accept evidence without cross-examination is one which trial chambers should arrive at only after careful consideration of its impact on the rights of the accused.[2] As with any issue regarding the admission or presentation of evidence, trial chambers enjoy broad discretion in this respect.[3]

[…]

164. […] Rule 92 bis of the ICTY Rules does not prohibit the admission of written evidence in circumstances where it might be appropriate for the witness to be cross-examined but provides instead that such circumstances would weigh against admission. The Trial Chamber did not err in considering that there was no reason for requiring the witness’s attendance as the witness’s anticipated evidence, which concerned underlying crime base events, did not appear to have “any” bearing on Karadžić’s acts and conduct as charged and could not materially assist his case.[4] […]

[…]

177. Under Rule 92 bis of the ICTY Rules, a trial chamber may dispense with the attendance of a witness in person in certain circumstances and instead admit the witness’s evidence in the form of a written statement. […]

[1] See Prosecutor 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 (“Prlić et al. Decision of 23 November 2007”), paras. 41, 43, 52; 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 of 14 September 2006”), paras. 12, 13.

[2] Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, First Decision on Prosecution’s Motion for Admission of Witness Statements and Prior Testimony Pursuant to Rule 92 bis, 12 June 2003, para. 14. See also Prlić et al. Decision of 23 November 2007, para. 41.

[3] See, e.g., Prlić et al. Appeal Judgement, para. 143; Prlić et al. Decision of 23 November 2007, para. 8; Martić Decision of 14 September 2006, para. 6.

[4] [Footnote omitted].

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ICTY Statute Article 21(4)(e) ICTY Rule Rule 92bis
Notion(s) Filing Case
Appeal Judgement - 19.03.2019 KARADŽIĆ Radovan
(MICT-13-55-A)

449. The Appeals Chamber recalls that under Article 21(4)(e) of the ICTY Statute an accused has the right to examine, or have examined, the witnesses against him. In relation to challenges to a trial chamber’s reliance on evidence admitted pursuant to Rule 92 bis of the ICTY Rules when the defendants did not have an opportunity to cross-examine the witness, the Appeals Chamber of the ICTY stated:

[A] conviction may not rest solely, or in a decisive manner, on the evidence of a witness whom the accused has had no opportunity to examine or to have examined either during the investigation or at trial. This principle applies “to any fact which is indispensable for a conviction”, meaning “the findings that a trier of fact has to reach beyond reasonable doubt”. It is considered to “run counter to the principles of fairness […] to allow a conviction based on evidence of this kind without sufficient corroboration”.[1]

The Appeals Chamber adopts this statement of the law.

[…]

458. […] The Appeals Chamber recalls that the principle that no conviction can rest solely or decisively on untested evidence without sufficient corroboration stems from the fundamental right of the accused to examine, or have examined, the witnesses against him, which is enshrined in Article 21(4)(e) of the ICTY Statute.[2] As Karadžić alleges a violation of his fair trial rights, he must demonstrate that such a violation occurred and show that it caused prejudice amounting to an error of law invalidating the trial judgement.[3]

See also paras. 460 to 473.

474. […] [T]he Appeals Chamber finds, Judges Joensen and de Prada dissenting, that Karadžić has established that the Trial Chamber violated his fundamental right to examine, or have examined, the witnesses against him under Article 21(4)(e) of the ICTY Statute by convicting him after having impermissibly relied solely or decisively on untested evidence in reaching findings in relation to Scheduled Incidents C.27.5, B.20.4, and E.11.1 as well as Scheduled Incident B.13.1 with respect to the killing of one detainee in Kula prison and Scheduled Incident C.22.5 in relation to the mistreatment of two Muslim men at the Magarice military facility. The Appeals Chamber finds that such violations prevented Karadžić from testing evidence related to these specific events which the Trial Chamber relied upon in convicting him. This has resulted in material prejudice invalidating the judgement to the extent that his convictions are based upon these findings. The Appeals Chamber, Judges Joensen and de Prada dissenting, considers that the only appropriate remedy is to set aside, in part, Karadžić’s convictions to the extent they rely on these findings. The impact, if any, such errors may have had on Karadžić’s sentence will be evaluated below.

See also paras. 475, 776, 777.

[1] Popović et al. Appeal Judgement, para. 96 (internal references omitted). See also Prlić et al. Appeal Judgement, para. 137; Martić Appeal Judgement, para. 192, n. 486.

[2] See Đorđević Appeal Judgement, para. 807; [Prosecutor v. Jadranko Prlić, Bruno Stojić, Slobodan Praljak, Milivoj Petković, Valentin Ćorić, and Berislav Pušić, 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. 59.

[3] Šainović et al. Appeal Judgement, para. 29; Nyiramasuhuko et al. Appeal Judgement, para. 346.

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ICTY Statute Article 21(4)(e) ICTY Rule Rule 92bis