Statements under Rule 92 quater ICTY

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

48. [...] It is true that [Rule 92quater] provides for a mechanism to allow for the admission of written evidence when the person giving the statement is unavailable – but this is so because the individual in question is objectively unable to attend a court hearing, either because he is deceased or because of physical or mental impairment. […] It is true, however, as the Prosecution submits,[1] that Rule 92quater does provide an example of a provision explicitly allowing for the admission into evidence of a statement – even regarding the acts and conduct of the accused – where cross-examination is impossible.

[1] Prosecution Response, para. 61.

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ICTY Rule Rule 92 quater
Notion(s) Filing Case
Appeal Judgement - 04.12.2012 LUKIĆ & LUKIĆ
(IT-98-32/1-A)

565. Rule 92 quater of the Rules allows for the admission of written evidence when the person giving the statement is objectively unable to attend a court hearing ‑ either because the person is deceased or because of a physical or mental impairment ‑ even if the evidence goes directly to the accused’s acts and conduct.[1] However, Rule 92 quater(B) of the Rules counsels cautious scrutiny on the part of the trial chamber with respect to evidence that goes to the acts and conduct of the accused as charged in the indictment, as this may be a factor against the admission of such evidence, or of part of it.[2]

565. Rule 92 quater(A)(ii) of the Rules further requires a trial chamber to be satisfied that there are sufficient indicia of reliability to justify the admission of the written evidence.[3] Moreover, the general requirements for admissibility of evidence as set out in Rule 89 of the Rules must be fulfilled, namely that the proffered evidence must be relevant and have probative value as provided in Rule 89(C) of the Rules. Finally, the probative value of the evidence must not be substantially outweighed by the need to ensure a fair trial under Rule 89(D) of the Rules and the evidence must therefore not be unduly prejudicial.[4]

570. The Appeals Chamber recalls that in order for evidence admitted pursuant to Rule 92 quater of the Rules to support a conviction, it must be corroborated.[5] […]

[1] 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. Appeal Decision on Admission of Transcript of 23 November 2007”), para. 48. See also Haradinaj et al. Appeal Judgement, fn. 252; Haraqija and Morina Appeal Judgement, para. 61; Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-AR73.1, Decision on Appeals Against Decision Admitting Material Related to Borovčanin’s Questioning, 14 December 2007, para. 48; 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 Appeal Decision on Admission of Materials of 14 September 2006”), para. 22.

[2] See also Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-T, Decision on Prosecution Motion for Admission of Evidence Pursuant to Rule 92 quater, 21 April 2008 (“Popović et al. Decision on Admission of Evidence of 21 April 2008”), para. 32.

[3] Among the factors that chambers have considered as relevant in the assessment of the reliability of written evidence are: “(a) the circumstances in which the statement was made and recorded, in particular: (i) whether the statement was given under oath; or (ii) whether the statement was signed by the witness with an accompanying acknowledgement that the statement is true to the best of his or her recollection; and whether the statement was taken with the assistance of an interpreter duly qualified and approved by the Registry of the Tribunal; (b) whether the statement has been subject to cross-examination; (c) whether the statement, in particular an unsworn statement that has never been subject to cross-examination, relates to events about which there is other evidence; and (d) other additional factors, such as the absence of manifest or obvious inconsistencies in the statements” (see Prosecutor v. Milan Milutinović et al., Case No. IT-05-87-T, Decision on Prosecution Motion for Admission of Evidence Pursuant to Rule 92 quater, 16 February 2007 (“Milutinović et al. Decision on Admission of Evidence of 16 February 2007”), para. 7; Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-T, Decision on the Prosecution Motion for Admission of Evidence Pursuant to Rules 92 bis and quater of the Rules, 2 November 2006 (confidential), paras 10, 15; Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-AR73.5, Decision on Appeal Regarding Statement of a Deceased Witness, 21 July 2000, para. 27).

[4] See e.g. Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-PT, Decision on Prosecution Motion for Admission of Testimony of Witness KDZ198 and Associated Exhibits Pursuant to Rule 92 quater, 20 August 2009, para. 6; Popović et al. Decision on Admission of Evidence of 21 April 2008, para. 30; Milutinović et al. Decision on Admission of Evidence of 16 February 2007, paras 4, 6.

[5] Haradinaj et al. Appeal Judgement, para. 101, fn. 252; Haraqija and Morina Appeal Judgement, paras 61-62; Prlić et al. Appeal Decision on Admission of Transcript of 23 November 2007, paras 53, 58-59; Martić Appeal Decision on Admission of Materials of 14 September 2006, para. 20.

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