Statement under ICTR Rule 92bis

Notion(s) Filing Case
Appeal Judgement - 18.12.2014 NGIRABATWARE Augustin
(MICT-12-29-A)

102.     The Appeals Chamber recalls that, pursuant to Rule 92bis(A) of the ICTR Rules, a trial chamber “may admit […] the evidence of a witness in the form of a written statement in lieu of written testimony which goes to proof of a matter other than the acts and conduct of the accused as charged in the indictment.” Pursuant to Rule 92bis(A)(ii) of the ICTR Rules, factors against admitting evidence in the form of a written statement include, inter alia, whether “there is an overriding public interest in the evidence in question being presented orally”. The ICTY Appeals Chamber has also held that:

Where the evidence is so pivotal to the prosecution case, and where the person whose acts and conduct the written statement describes is so proximate to the accused, the Trial Chamber may decide that it would not be fair to the accused to permit the evidence to be given in written form.[1] 

103.     The Appeals Chamber observes that the statements of Witnesses DWAN-48 and DWAN-78 relate to the acts of Witness ANAN as opposed to those of Ngirabatware.[2] The Appeals Chamber finds therefore that the Trial Chamber’s interpretation of matters going to proof of “the acts and conduct of the accused” is inconsistent with the clear distinction in the jurisprudence between the acts and conduct of the accused, as charged in the indictment, and the acts and conduct of others.[3] It is only the former that is excluded from the procedure laid down in Rule 92bis of the ICTR Rules which provides that only matters other than the acts and conduct of the accused can be admitted in written form. [4]

104. In any event, the Trial Chamber’s additional reason for denying admission of the proposed evidence in written form is compatible with Rule 92bis(A)(ii) of the ICTR Rules. The Appeals Chamber is satisfied that the Trial Chamber acted within its discretion in determining that there was an overriding public interest for such serious allegations, imputing to Witness ANAN conduct potentially undermining the integrity of the proceedings as a whole, to be presented orally. Ngirabatware has failed to demonstrate that he made any effort to call these witnesses to testify or that he had good reason for not doing so. Moreover, rather than articulating an error in the Trial Chamber’s reasoning, Ngirabatware merely focuses on the purported importance of the proposed evidence. Such arguments are clearly insufficient to discharge his burden on appeal. Ngirabatware’s submissions in this regard are therefore dismissed.

[1] Prosecutor v. Stanislav Galić, Case No. IT-98-29-AR73.2, Decision on Interlocutory Appeal Concerning Rule 92bis(C), 7 June 2002, para. 13 (internal references omitted). See also Decision of 22 September 2011 [The Prosecutor v. Augustin Ngirabatware, Case No. ICTR-99-54-T, Decision on Defence Motion to Declare Written Statements Admissible, for Leave for Certification by a Presiding Officer of These Written Statements and/or Reconsideration of the Trial Chamber’s Decisions Rendered on 11 and 12 April 2011, 22 September 2011], para. 32.

[2] See Motion of 4 July 2011[The Prosecutor v. Augustin Ngirabatware, Case No. ICTR-99-54-T, Defence Motion to Declare Written Statements Admissible, for Leave for Certification by a Presiding Officer of These Written Statements and/or for Reconsideration of the Trial Chamber’s Decision Rendered on 11 and 12 April 2011, 4 July 2011 (confidential)], Annexes 4 and 4(e).

[3] See Prosecutor v. Stanislav Galić, Case No. IT-98-29-AR73.2, Decision on Interlocutory Appeal Concerning Rule 92bis(C), 7 June 2002, para. 9.

[4] See Galić Appeal Decision [Prosecutor v. Stanislav Galić, Case No. IT-98-29-AR73.2, Decision on Interlocutory Appeal Concerning Rule 92bis(C), 7 June 2002], para. 9. 

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