Statements under Rule 92 bis ICTY

Notion(s) Filing Case
Appeal Judgement - 08.10.2008 MARTIĆ Milan
(IT-95-11-A)

The Appeals Chamber found that a statement admitted pursuant to Rule 92 bis may only be used as the sole basis for a conviction when the accused was provided a chance to cross-examine the witness in question.

FN486. [… The] Trial Chamber admitted this witness statement under Rule 92 bis of the Rules, without providing Martić the opportunity to cross-examine the witness in question.[1] As noted above, much of the findings in relation to the crimes in Cerovljani […] depend exclusively on this statement, with no corroboration. Thus, this evidence is pivotal to Martić’s responsibility and, lacking sufficient corroboration, Martić should have been granted the opportunity to cross-examine the witness in question.[2] The Appeals Chamber finds that the failure to accord Martić a right to cross-examine this witness constitutes a miscarriage of justice and accordingly his convictions for the crimes in Cerovljani would have been reversible on this ground, too.

[1] Decision on Prosecution’s Motions for the Admission of Written Evidence Pursuant to Rule 92 bis of the Rules, 16 January 2006, paras 16-17, 26, 28 and 37 (where the witness is identified as MM-019).

[2] Prosecutor v. Galić, Case No. IT-98-29-AR73.2, Decision on Interlocutory Appeal Concerning Rule 92 bis(C), 7 June 2002, paras 13-15. See also 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, especially paras 53 and 59.

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ICTR Rule Rule 92 bis ICTY Rule Rule 92 bis
Notion(s) Filing Case
Decision on Admission of Transcript - 23.11.2007 PRLIĆ et al.
(IT-04-74-AR73.6)

43. […] While one of the purposes of Rule 92bis is to place some restrictions on the admissibility of hearsay evidence,[1] its general aim at the time of its introduction was to make trials more expeditious, while not preventing examination and cross-examination of the witness as such.[2] Rule 92bis even states that a Trial Chamber “may dispense” with the attendance of a witness in person – thus providing a clear indication that there is a choice to be made, in order to properly balance the interests to an expeditious trial with the rights of the accused.[3]

[1] Galić Decision, para. 31.

[2] See Prosecutor v. Slobodan Milošević, Case No. IT-02-54-AR73.4, Decision on Interlocutory Appeal on the Admissibility of Evidence-in-Chief in the Form of Written Statements, 30 September 2003, paras 15-18.

[3] See also Galić Decision, paras 28-30. In this respect, the Appeals Chamber notes that the Joint Defence did identify portions of the December 2001 Transcript which would go to the acts and conduct of the various co-accused (Joint Defence Appeal, para. 18, referring to Joint Response, Annex).

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ICTR Rule Rule 92 bis ICTY Rule Rule 92 bis
Notion(s) Filing Case
Decision Concerning Rule 92bis(C) - 07.06.2002 GALIĆ Stanislav
(IT-98-29-AR73.2)

10. [...] Rule 92bis(A) excludes any written statement which goes to proof of any act or conduct of the accused upon which the prosecution relies to establish –

(a)      that the accused committed (that is, that he personally physically perpetrated) any of the crimes charged himself,[] or

(b)      that he planned, instigated or ordered the crimes charged, or

(c)      that he otherwise aided and abetted those who actually did commit the crimes in their planning, preparation or execution of those crimes, or

(d)      that he was a superior to those who actually did commit the crimes, or

(e)      that he knew or had reason to know that those crimes were about to be or had been committed by his subordinates, or

(f)       that he failed to take reasonable steps to prevent such acts or to punish those who carried out those acts.

Where the prosecution case is that the accused participated in a joint criminal enterprise, and is therefore liable for the acts of others in that joint criminal enterprise,[1] Rule 92bis(A) excludes also any written statement which goes to proof of any act or conduct of the accused upon which the prosecution relies to establish –

(g)      that he had participated in that joint criminal enterprise, or

(h)      that he shared with the person who actually did commit the crimes charged the requisite intent for those crimes.[2]

Those are the “acts and conduct of the accused as charged in the indictment”, not the acts and conduct of others for which the accused is charged in the indictment with responsibility.[3]

11. The “conduct” of an accused person necessarily includes his relevant state of mind, so that a written statement which goes to proof of any act or conduct of the accused upon which the prosecution relies to establish that state of mind is not admissible under Rule 92bis.  In order to establish that state of mind, however, the prosecution may rely upon the acts and conduct of others which have been proved by Rule 92bis statements.  An easy example would be proof, in relation to Article 5 of the Tribunal’s Statute, of the knowledge by the accused that his acts fitted into a pattern of widespread or systematic attacks directed against a civilian population.[4]  Such knowledge may be inferred from evidence of such a pattern of attacks (proved by Rule 92bis statements) that he must have known that his own acts (proved by oral evidence) fitted into that pattern.  The “conduct” of an accused person may also in the appropriate case include his omission to act.

12. [...] Far from being an “exception” to Rule 89, […] Rule 92bis identifies a particular situation in which, once the provisions of Rule 92bis are satisfied, and where the material has probative value within the meaning of Rule 89(C), it is in principle in the interests of justice within the meaning of Rule 89(F) to admit the evidence in written form.[5] […]

13. The fact that the written statement goes to proof of the acts and conduct of a subordinate of the accused or of some other person for whose acts and conduct the accused is charged with responsibility does, however, remain relevant to the Trial Chamber’s decision under Rule 92bis. That is because such a decision also involves a further determination as to whether the maker of the statement should appear for cross-examination.[6] [...] 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.[7]  An easy example of where the exercise of that discretion would lead to the rejection of a written statement would be where the acts and conduct of a person other than the accused described in the written statement occurred in the presence of the accused.

See also paras 14-16.

[...]

19. […] [I]t would be preferable that a Trial Chamber should […] always give consideration to the exercise of the discretion given by Rule 92bis whenever the prosecution seeks to use that Rule in the special and sensitive situation posed by a charge of command responsibility under Article 7.3 where the evidence goes to proof of the acts and conduct of the accused’s immediately proximate subordinates.

[...]

28. Rules 92bis(A) and Rule 92bis(C) are directed to written statements prepared for the purposes of legal proceedings. […] Rule 92bis(D), permitting the transcript of a witness’s evidence in proceedings before the Tribunal to be admitted as evidence, is similarly directed to material produced for the purposes of legal proceedings.  Rule 92bis as a whole, therefore, is concerned with hearsay evidence such as would previously have been admissible under Rule 89(C).  But it is hearsay material of a very special type, with very serious issues raised as to its reliability.

[...]

31. A party cannot be permitted to tender a written statement given by a prospective witness to an investigator of the OTP under Rule 89(C) in order to avoid the stringency of Rule 92bis.  The purpose of Rule 92bis is to restrict the admissibility of this very special type of hearsay to that which falls within its terms. By analogy, Rule 92bis is the lex specialis which takes the admissibility of written statements of prospective witnesses and transcripts of evidence out of the scope of the lex generalis of Rule 89(C), although the general propositions which are implicit in Rule 89(C) – that evidence is admissible only if it is relevant and that it is relevant only if it has probative value – remain applicable to Rule 92bis.  But Rule 92bis has no effect upon hearsay material which was not prepared for the purposes of legal proceedings. [...]

[...]

33. [...] What Rule 92bis(C)(i) requires is that the Trial Chamber be satisfied on a balance of probabilities that the written statement was “made by a person who has subsequently died, or by a person who can no longer with reasonable diligence be traced, or by a person who is by reason of bodily or mental condition unable to testify orally”. That is made clear by the use of the words “if the Trial Chamber […] is so satisfied” immediately following those words.[8]  The requirements of Rule 92bis(C)(i) have nothing to do with the “probability” or any other characteristic of the statement itself. The assessment of the reliability of that statement is the subject of Rule 92bis(C)(ii).

[...]

46. It must be emphasised that Rule 92bis(C) makes specific provision for the admission of part only of a written statement of a witness,[9] and that it is for the Trial Chamber to decide, after hearing the parties, whether to admit the statement in whole or in part.[10] […] [I]t is not [the Prosecution’s] “prerogative” to determine how much of the statement is to be admitted.  Where that part of the written statement not tendered by the prosecution modifies or qualifies what is stated in the part tendered, or where it contains material relevant to the maker’s credit, the absence of any opportunity to cross-examine the witness (which must be the case where Rule 92bis(C) is concerned) would usually necessitate the admission of those parts of the statement as well.  There is no foundation for the appellant’s argument that, if the statement includes material which is irrelevant, the whole of the statement must be rejected.[]

[RULE 92bis OF THE ICTY’S RULES OF PROCEDURE AND EVIDENCE WAS AMENDED ON 13 SEPTEMBER 2006.]

[1]    In Prosecutor v Tadić, IT-94-1-A, Judgment, 15 July 1999 (“Tadić Judgment”), at par 220, this liability is described as that of an accomplice.

[2]    Tadić Judgment, par 196;  Prosecutor v Brđanin & Talić, IT-99-36-PT, Decision on Form of Further Amended Indictment and Prosecution Application to Amend, 26 June 2001, par 31.

[3]    See also Prosecutor v Milošević, IT-02-54-T, Decision on Prosecution’s Request to Have Written Statements Admitted Under Rule 92bis, 21 Mar 2002 (“Milošević Decision”), par 22:  “The phrase ‘acts and conduct of the accused’ in Rule 92bis is a plain expression and should be given its ordinary meaning:  deeds and behaviour of the accused.  It should not be extended by fanciful interpretation.  No mention is made of acts and conduct by alleged co-perpetrators, subordinates or, indeed, of anybody else.  Had the rule been intended to extend to acts and conduct of alleged co-perpetrators or subordinates it would have said so.”

[4]    Tadić Judgment, par 248.

[5]    The admission into evidence of written statements made by a witness in lieu of their oral evidence in chief is not inconsistent with Article 21.4(e) of the Tribunal’s Statute (“In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality: […] to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; […].”) or with other human rights norms (for example, Article 6(3)(d) of the European Convention for the Protection of Human Rights and Fundamental Freedoms provides: “Everyone charged with a criminal offence has the following minimum rights: […] to examine, or have examined, witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; […].”).  But, where the witness who made the statement is not called to give the accused an adequate and proper opportunity to challenge the statement and to question that witness, the evidence which the statement contains may lead to a conviction only if there is other evidence which corroborates the statement: Unterpertinger v Austria, Judgment of 24 Nov 1986, Series A no 110, pars 31-33;  Kostovski v The Netherlands, Judgment of 20 Nov 1989, Series A no 166, par 41;  Vidal v Belgium, Judgment of 22 Apr 1992, Series A no 235-B, par 33;  Lüdi v Switzerland, Judgment of 15 June 1992, Series A no 238, par 49;  Artner v Austria, Judgment of 28 Aug 1992, Series A no 242-A, pars 22, 27;  Saïdi v France, Judgment of 20 Sept 1993, Series A no 261-C, pars 43-44;  Doorson v The Netherlands, Judgment of 26 Mar 1996, par 80;  Van Mechelen v The Netherlands, Judgment of 23 Apr 1997, Reports of Judgments and Decisions, 1997-III, pars 51, 55;  A M v Italy, Judgment of 14 Dec 1999, 1999-IX Reports of Judgments and Decisions, par 25;  Lucà v Italy, Judgment of 27 Feb 2001, 2001-II Reports of Judgments and Decisions, pars 39-40;  Solakov v Former Yugoslav Republic of Macedonia, Judgment of 31 Oct 2001, appl No 47023/99, par 57.)

[6]    Rule 92bis(E).

[7]    Prosecutor v Brđanin & Talić, IT-99-36-T, (Confidential) Decision on the Admission of Rule 92bis Statements, 1 May 2002, par 14 [A public version of this Decision was filed on 23 May 2002.]

[8]    Emphasis has been added to the word “so”.

[9]    Rule 92bis(A).

[10]   Rule 92bis(E).

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ICTR Rule Rule 89;
Rule 92 bis
ICTY Rule Rule 89;
Rule 92 bis