Assessment of testimony

Notion(s) Filing Case
Appeal Judgement - 28.09.2011 MUNYAKAZI Yussuf
(ICTR-97-36A-A)

71. […] The Appeals Chamber recalls that the Trial Chamber has the main responsibility to resolve any inconsistencies that may arise within or among witnesses’ testimonies.[1] It is within the discretion of the Trial Chamber to evaluate any such inconsistencies, to consider whether the evidence taken as a whole is reliable and credible, and to accept or reject the fundamental features of the evidence.[2] The Appeals Chamber further recalls that “corroboration may exist even when some details differ between testimonies, provided that no credible testimony describes the facts in question in a way which is not compatible with the description given in another credible testimony.”[3]

103. […] Furthermore, corroboration does not require witnesses’ accounts to be identical in all aspects since “[e]very witness presents what he has seen from his own point of view at the time of the events, or according to how he understood the events recounted by others.” Rather, the main question is whether two or more credible accounts are incompatible.

118. […] The Appeals Chamber recalls that, when faced with competing versions of events, it is the duty of the Trial Chamber that heard the witnesses to determine which evidence it considers more probative. Based on the foregoing, the Appeals Chamber finds that it was reasonable for the Trial Chamber to accept the Prosecution evidence over Witness Nahimana’s account.

154. The Appeals Chamber recalls that the Trial Chamber has the main responsibility to resolve any inconsistencies that may arise within or among witnesses’ testimonies. […]

110. Finally, the Appeals Chamber recalls that the Trial Chamber has the primary discretion to decide whether or not a site visit is necessary or relevant for the assessment of evidence. […]

[1] Renzaho Appeal Judgement, para. 355; Rukundo Appeal Judgement, para. 207; Simba Appeal Judgement, para. 103.

[2] Renzaho Appeal Judgement, para. 355; Rukundo Appeal Judgement, para. 207; Simba Appeal Judgement, para. 103.

[3] Nahimana et al. Appeal Judgement, para. 428. See also Rukundo Appeal Judgement, para. 201; Karera Appeal Judgement, para. 173.

[4] Nahimana et al. Appeal Judgement, para. 428.

[5] Nahimana et al. Appeal Judgement, para. 428.

[6] Muvunyi II Appeal Judgement, para. 57; Muhimana Appeal Judgement, para. 103; Gacumbitsi Appeal Judgement, para. 81; Rutaganda Appeal Judgement, para. 29.

[7] Renzaho Appeal Judgement, para. 269; Rukundo Appeal Judgement, para. 207; Simba Appeal Judgement, para. 103.

[8] Simba Appeal Judgement, para. 16.

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Notion(s) Filing Case
Appeal Judgement - 28.09.2011 MUNYAKAZI Yussuf
(ICTR-97-36A-A)

71. […] The Appeals Chamber recalls that the Trial Chamber has the main responsibility to resolve any inconsistencies that may arise within or among witnesses’ testimonies.[1] It is within the discretion of the Trial Chamber to evaluate any such inconsistencies, to consider whether the evidence taken as a whole is reliable and credible, and to accept or reject the fundamental features of the evidence.[2] The Appeals Chamber further recalls that “corroboration may exist even when some details differ between testimonies, provided that no credible testimony describes the facts in question in a way which is not compatible with the description given in another credible testimony.”[3]

103. […] Furthermore, corroboration does not require witnesses’ accounts to be identical in all aspects since “[e]very witness presents what he has seen from his own point of view at the time of the events, or according to how he understood the events recounted by others.” Rather, the main question is whether two or more credible accounts are incompatible.

118. […] The Appeals Chamber recalls that, when faced with competing versions of events, it is the duty of the Trial Chamber that heard the witnesses to determine which evidence it considers more probative. Based on the foregoing, the Appeals Chamber finds that it was reasonable for the Trial Chamber to accept the Prosecution evidence over Witness Nahimana’s account.

154. The Appeals Chamber recalls that the Trial Chamber has the main responsibility to resolve any inconsistencies that may arise within or among witnesses’ testimonies. […]

110. Finally, the Appeals Chamber recalls that the Trial Chamber has the primary discretion to decide whether or not a site visit is necessary or relevant for the assessment of evidence. […]

[1] Renzaho Appeal Judgement, para. 355; Rukundo Appeal Judgement, para. 207; Simba Appeal Judgement, para. 103.

[2] Renzaho Appeal Judgement, para. 355; Rukundo Appeal Judgement, para. 207; Simba Appeal Judgement, para. 103.

[3] Nahimana et al. Appeal Judgement, para. 428. See also Rukundo Appeal Judgement, para. 201; Karera Appeal Judgement, para. 173.

[4] Nahimana et al. Appeal Judgement, para. 428.

[5] Nahimana et al. Appeal Judgement, para. 428.

[6] Muvunyi II Appeal Judgement, para. 57; Muhimana Appeal Judgement, para. 103; Gacumbitsi Appeal Judgement, para. 81; Rutaganda Appeal Judgement, para. 29.

[7] Renzaho Appeal Judgement, para. 269; Rukundo Appeal Judgement, para. 207; Simba Appeal Judgement, para. 103.

[8] Simba Appeal Judgement, para. 16.

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Notion(s) Filing Case
Appeal Judgement II - 01.04.2011 MUVUNYI Tharcisse
(ICTR-2000-55A-A)

26. The Trial Chamber also noted the demeanour of the witnesses when confronted with the suggestion that Nteziryayo was not in fact the prefect in May 1994, which, in the Trial Chamber’s view, indicated that “they were confronted with an incorrect recollection rather than a lie.”[1] The assessment of the demeanour of witnesses in considering their credibility is one of the fundamental functions of a Trial Chamber to which the Appeals Chamber must accord considerable deference.[2] The Appeals Chamber has previously noted that it “is loathe to disturb such credibility assessments on review”.[3] The Appeals Chamber further recalls that it is not unreasonable for a trier of fact to accept some, but reject other parts of a witness’s testimony.[4] The Appeals Chamber, Judges Liu and Meron dissenting, is not convinced that it was unreasonable for the Trial Chamber, in the circumstances noted above, to have rejected the portion of the witnesses’ accounts relating to Nteziryayo’s position during the meeting as prefect. Consequently, Muvunyi has not shown that the Trial Chamber’s findings are wholly erroneous or that no reasonable trier of fact could have concluded that the meeting described by the Prosecution witnesses occurred in May 1994.[5]

[1] Trial Judgement, para. 57.

[2] See Nchamihigo Appeal Judgement, para. 47; Bikindi Appeal Judgement, para. 114; Simba Appeal Judgement, para. 9; Nahimana et al. Appeal Judgement, paras. 14, 194; Ndindabahizi Appeal Judgement, para. 34; Ntagerura et al. Appeal Judgement, paras. 12, 213; Semanza Appeal Judgement, para. 8; Ntakirutimana Appeal Judgement, paras. 12, 204, 244; Kamuhanda Appeal Judgement, para. 138; Kayishema and Ruzindana Appeal Judgement, para. 222. See also Edouard Karemera et al. v. The Prosecutor, Case No. ICTR-98-44-AR15bis.2, Reasons for Decision on Interlocutory Appeals Regarding the Continuation of Proceedings with a Substitute Judge and on Nzirorera’s Motion for Leave to Consider New Material, 22 October 2004, para. 60.

[3] Ntakirutimana Appeal Judgement, para. 244.

[4] Muvunyi I Appeal Judgement, para. 128.

[5] The Appeals Chamber finds no merit to Muvunyi’s contention that the allegation in the Indictment refers to a meeting involving Aloys Simba. The Indictment does not identify Simba as the Chairman of Civil Defence in Butare Prefecture. See Indictment, para. 3.24.

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Appeal Judgement - 26.05.2003 RUTAGANDA George
(ICTR-96-3-A)

353. […] It should also be stressed that with regard to the assessment of the credibility of a witness and the reliability of testimony, the Trial Chamber may accept a witness’s testimony despite the existence of contradictory statements.[1] It therefore falls to the Trial Chamber to assess the contradictions pointed out and determine whether the witness — in the light of his entire testimony — was reliable, and his testimony credible.

[…]

443. To be sure, the Trial Chamber should take account of any inconsistencies in a witness’s testimony. The Appeals Chamber, however, emphasises that it falls to the trier of fact to assess the inconsistencies highlighted in testimony and determine whether they impugn the entire testimony.  Moreover, the jurisprudence of both Tribunals recognises that a Trial Chamber has the discretion to accept a witness’ evidence, notwithstanding inconsistencies between said evidence and his previous statements, as it is up to the Trial Chamber to determine whether the alleged inconsistency is not sufficient to substantially cast doubt on the evidence of the witness concerned.[2] […]

[…]

501. […] the Appeals Chamber recalled that “where there are two conflicting testimonies, it falls to the Trial Chamber before which the witness testified to decide which of the testimonies has more weight[3] and/or whether the discrepancies are such as would cast reasonable doubt and/or establish that the alleged acts did not occur.”

[1] See Musema Appeal Judgement, para. 89, Čelebići Appeal Judgement, para. 497, and Kupreškić Appeal Judgement, para. 156.

[2] See, for example, Musema Appeal Judgement, para. 89, Čelebići Appeal Judgement, para. 497, and Kupreškić Appeal Judgement, para. 156. For instance, the Appeals Chamber emphasizes that in the instant case, the Trial Chamber did not hesitate to find Witness M’s unreliable and to not take it into account, as it contained many substantial inconsistencies regarding dates, time, figures and chronology of events.

[3] Kayishema and Ruzindana Appeal Judgement, para. 325.

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Notion(s) Filing Case
Appeal Judgement - 26.05.2003 RUTAGANDA George
(ICTR-96-3-A)

28. The Appeals Chamber recalls that, as a general rule, a Trial Chamber is primarily responsible for assessing and weighing the evidence presented at trial, and that, in this regard, it is incumbent on the Trial Chamber to consider whether a witness is reliable and whether evidence presented is credible.[1] In this exercise, the Trial Chamber has the inherent discretion to decide what approach is most appropriate for the assessment of evidence in the circumstances of the case.[2]

29. Similarly, the issue as to whether it is necessary to rely on one or several witness testimonies to establish proof of a material fact depends on different factors that have to be assessed in the circumstances of each case.[3] It is possible for one Trial Chamber to prefer that a witness statement be corroborated, but neither the jurisprudence of the International Tribunal nor of the ICTY makes this an obligation.[4] Where testimonies are divergent, it is the duty of the Trial Chamber, which heard the witnesses, to decide which evidence it deems to be more probative,[5] and to choose which of the two divergent versions of the same event it may admit.

[1] Akayesu Appeal Judgement, para. 132 citing Aleksovski Appeal Judgement, para. 63, Tadić Appeal Judgement, para 64 and Furundžija Appeal Judgement, para. 37.

[2] Kayishema/Ruzindana Appeal Judgement, para. 119.

[3] Musema Appeal Judgement, para. 90; Kayishema/Ruzindana Appeal Judgement, para. 187; Akayesu Appeal Judgement, para. 132; Aleksovski Appeal Judgement, para. 63; Tadic Appeal Judgement, para. 65; Celebici Appeal Judgement, para. 506.

[4] Musema Appeal Judgement, para. 36 citing Kayishema/Ruzindana Appeal Judgement, paras. 154 and 229; Aleksovski Appeal Judgement, para. 62; Tadic Appeal Judgement, para. 65 and Celebici Appeal Judgement, paras. 492 and 506. See also Kunarac Appeal Judgement, para. 268.

[5] Kayishema/Ruzindana Appeal Judgement, para. 325.

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Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

194. The Appeals Chamber recalls that statements made by witnesses in court are presumed to be credible at the time they are made; the fact that the statements are taken under oath and that witnesses can be cross-examined constitute at that stage satisfactory indicia of reliability.[1] However, the Trial Chamber has full discretionary power in assessing the appropriate weight and credibility to be accorded to the testimony of a witness.[2] This assessment is based on a number of factors, including the witness’s demeanour in court, his role in the events in question, the plausibility and clarity of his testimony, whether there are contradictions or inconsistencies in his successive statements or between his testimony and other evidence, any prior examples of false testimony, any motivation to lie, and the witness’s responses during cross-examination. Appellant Barayagwiza is therefore wrong in invoking the principle of the presumption of innocence in order to contend that it was for the Prosecutor to establish that its witnesses were credible.[3]

949. The Appeals Chamber recalls that the jurisprudence of the Tribunal does not require the corroboration of the testimony of a sole witness,[4] and that the trial Judges are in the best position to assess the credibility of a witness and the reliability of the evidence adduced.[5]

[1] Ntagerura et al. Appeal Judgement, para. 388.

[2] Idem [Ntagerura et al. Appeal Judgement, para. 388].

[3] Barayagwiza Appellant’s Brief, para. 324.

[4] See the case-law cited supra, footnote 1312.

[5] Rutaganda Appeal Judgement, para. 188; Akayesu Appeal Judgement, para. 132; Furundžija Appeal Judgement, para. 37; Aleksovski Appeal Judgement, para. 63; Tadić Appeal Judgement, para. 64.

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Notion(s) Filing Case
Appeal Judgement - 18.03.2010 NCHAMIHIGO Siméon
(ICTR-01-63-A)

47. The Appeals Chamber recalls that a Trial Chamber has full discretion to assess the appropriate weight and credibility to be accorded to the testimony of a witness.[1] In so doing, a Trial Chamber has to consider relevant factors on a case-by-case basis, including the witness’s demeanour in court; his role in the events in question; the plausibility and clarity of his testimony; whether there are contradictions or inconsistencies in his successive statements or between his testimony and other evidence; any prior examples of false testimony; any motivation to lie; and the witness’s responses during cross-examination.[2] Some factors are particularly relevant for the assessment of accomplice witnesses, including: the extent to which discrepancies in the testimony were explained;[3] whether the accomplice witness has made a plea agreement with the Prosecution; whether he has already been tried and, if applicable, sentenced for his own crimes or is still awaiting the completion of his trial;[4] and whether the witness may have any other reason for holding a grudge against the accused.[5] Corroboration is also one of many potential factors relevant to the Trial Chamber’s assessment of a witness’s credibility.[6] The application of these factors, and the positive or negative impact they may have on the witness’s credibility, varies according to the specific circumstances of each case.

201. The Appeals Chamber recalls that it is not a legal error per se to accept and rely on evidence that deviates from a prior statement or other evidence adduced at trial.[7] However, a Trial Chamber is bound to take into account any explanations offered in respect of inconsistencies when weighing the probative value of the evidence.[8] In this case, the Trial Chamber explicitly considered the Appellant’s contention at trial that Witness LAG “made some prior inconsistent statements.”[9] The Appellant has not articulated either how the Trial Chamber erred in evaluating the prior statements or how the particular inconsistencies raised here could potentially result in the Trial Judgement being reversed or revised.

[1] Nahimana et al. Appeal Judgement, para. 194.

[2] See Nahimana et al. Appeal Judgement, para. 194.

[3] See Simba Appeal Judgement, para. 129; Kordić and Čerkez Appeal Judgement, para. 266.

[4] See Blagojević and Jokić Trial Judgement, para. 24.

[5] See Kajelijeli Trial Judgement, para. 151.

[6] Simba Appeal Judgement, para. 24, quoting Ntakirutimana Appeal Judgement, para. 132.

[7] Muhimana Appeal Judgement, para. 135; Niyitegeka Appeal Judgement, para. 96.

[8] Muhimana Appeal Judgement, para. 135; Niyitegeka Appeal Judgement, para. 96, citing Kupreškić et al. Appeal Judgement, para. 31.

[9] Trial Judgement [The Prosecutor v. Siméon Nchamihigo, Case No. ICTR-2001-63-T,  Judgement and Sentence, 12 November 2008], para. 92. The Trial Chamber merely refers, as an example, to the issue of Witness LAG’s membership of the Liberal Party.  

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Notion(s) Filing Case
Appeal Judgement - 09.07.2004 NIYITEGEKA Eliézer
(ICTR-96-14-A)

96. It is not a legal error per se to accept and rely on evidence that varies from prior statements or other evidence. However, a Trial Chamber is bound to take into account inconsistencies and any explanations offered in respect of them when weighing the probative value of the evidence.[1] […]

[1] See Kupreškić et al. Appeal Judgement, para. 31. 

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Notion(s) Filing Case
Nobilo Contempt Appeal Judgement - 30.05.2001 ALEKSOVSKI Zlatko
(IT-95-14/1-AR77)

47. […] Although there were many inconsistencies within the various statements made by Mr Nobilo concerning other issues which could have discredited him as a witness in relation to these issues, a mere disbelief of a witness’s denial of a particular fact does not by itself logically permit a tribunal of fact to accept beyond reasonable doubt the truth of fact which he denied. […]

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Notion(s) Filing Case
Appeal Judgement - 08.05.2012 KANYARUKIGA Gaspard
(ICTR-02-78-A)

187. […] It is well established that trial chambers have the discretion to accept some but reject other parts of a witness’s testimony.[1] The Appeals Chamber therefore dismisses Kanyarukiga’s assertion that the Trial Chamber was precluded from relying on Witness CDL with respect to the 16 April 1994 meeting because it rejected other parts of his evidence. The Trial Chamber’s rejection of portions of his testimony rather demonstrates that it was fully aware of credibility concerns relating to this witness and that it adopted a cautious approach to his evidence.

[1] Bagosora and Nsengiyumva Appeal Judgement, para. 243; Setako Appeal Judgement, paras. 31, 48; Haradinaj et al. Appeal Judgement, para. 201.

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Notion(s) Filing Case
Appeal Judgement - 23.01.2014 ŠAINOVIĆ et al.
(IT-05-87-A)

1100.  […] the jurisprudence of the Tribunal which draws no distinction, for the purposes of evaluation of evidence, between witnesses called by the parties and witnesses called by a chamber.[1]

[1] See, e.g. Krajišnik Appeal Judgement, paras 37, 401, Annex A: para. 64, read together with Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-A, Scheduling Order for Evidentiary Hearing, 21 October 2008, p. 2; Hadžihasanović and Kubura Trial Judgement, paras 270, 284-285.

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Appeal Judgement - 14.12.2011 NTAWUKULILYAYO Dominique
(ICTR-05-82-A)

21. The Appeals Chamber recalls that a Trial Chamber has full discretion to assess the appropriate credibility and weight to be accorded to the testimony of a witness;[1] corroboration is one of many potential factors relevant to this assessment.[2] A Trial Chamber retains discretion to decide, in the circumstances of each case, whether corroboration of evidence is necessary and to rely on uncorroborated, but otherwise credible, witness testimony.[3]

[…]

24. Nevertheless, the Appeals Chamber recalls that two prima facie credible testimonies need not be identical in all aspects or describe the same fact in the same way in order to be corroborative.[4] Every witness presents what he has seen from his own point of view at the time of the events, or according to how he understood the events recounted by others.[5] It follows that corroboration may exist even when some details differ between testimonies, provided that no credible testimony describes the facts in question in a way which is not compatible with the description given in another credible testimony.[6]

[1] Nchamihigo Appeal Judgement, para. 47; Muvunyi Appeal Judgement of 1 April 2011, para. 56; Nahimana et al. Appeal Judgement, para. 194.

[2] Nchamihigo Appeal Judgement, para. 47; Simba Appeal Judgement, para. 24, quoting Ntakirutimana Appeal Judgement, para. 132.

[3] Karera Appeal Judgement, para. 45. See also Renzaho Appeal Judgement, para. 556; Nchamihigo Appeal Judgement, para. 42; Muvunyi Appeal Judgement of 29 August 2008, para. 128.

[4] Munyakazi Appeal Judgement, para. 103; Bikindi Appeal Judgement, para. 81, citing Nahimana et al. Appeal Judgement, para. 428.

[5] Munyakazi Appeal Judgement, para. 103, citing Nahimana et al. Appeal Judgement, para. 428; Bikindi Appeal Judgement, para. 81; Karera Appeal Judgement, paras. 173, 192.

[6] Munyakazi Appeal Judgement, para. 71, citing Nahimana et al. Appeal Judgement, para. 428; Setako Appeal Judgement, para. 31; Rukundo Appeal Judgement, para. 201; Bikindi Appeal Judgement, para. 81.

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Appeal Judgement - 09.05.2007 BLAGOJEVIĆ & JOKIĆ
(IT-02-60-A)

82. […] the Appeals Chamber observes that it is not unreasonable for a Trial Chamber to accept certain parts of a witness’s testimony and reject others.[1]

[1] Kupreškić et al. Appeal Judgement, para. 333. See also Ntagerura et al. Appeal Judgement, para. 214; Kamuhanda Appeal Judgement, para. 248.

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Notion(s) Filing Case
Vujin Contempt Appeal Judgement - 31.01.2000 TADIĆ Duško
(IT-94-1-A-R77)

145. A tribunal of fact is always permitted to accept part and reject part of the same witness’s evidence. The Appeals Chamber is conscious that it is a substantial step to take to accept the statement given by a witness in preference to his or her sworn evidence, especially when the witness seeks to repudiate the relevant part of the statement. 

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Vujin Contempt Appeal Judgement - 31.01.2000 TADIĆ Duško
(IT-94-1-A-R77)

145. A tribunal of fact is always permitted to accept part and reject part of the same witness’s evidence. The Appeals Chamber is conscious that it is a substantial step to take to accept the statement given by a witness in preference to his or her sworn evidence, especially when the witness seeks to repudiate the relevant part of the statement. 

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Appeal Judgement - 16.11.2001 MUSEMA Alfred
(ICTR-96-13-A)

71.     In this instance, the Trial Chamber found that exceptional circumstances existed which justified the non-disclosure of the identities of Prosecution witnesses.  In the opinion of the Appeals Chamber, the Trial Chamber was, in the circumstances, bound to consider the testimony of these witnesses in the same way as that of witnesses who were not afforded protective measures.  Indeed, when assessing the probative value of the testimony of a protected witness, the Trial Chamber may take into consideration his status as protected witness, but it is incorrect to say that a Trial Chamber must exercise “special caution” in assessing such evidence. 

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

614. […] The Appeals Chamber, Judge Pocar and Judge Liu dissenting, considers that in-court viva voce evidence is generally more reliable than prior statements.[1] This is based on the indicia of reliability provided by cross-examination of in-court evidence. A trial chamber preferring a witness’s prior statement to his or her viva voce evidence should provide reasons for doing so. […]

[1] Cf. Akayesu Appeal Judgement, para. 134; Simba Appeal Judgement, para. 103; Renzaho Appeal Judgement, para. 469.

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Appeal Judgement - 04.12.2012 LUKIĆ & LUKIĆ
(IT-98-32/1-A)

112. The Appeals Chamber recalls that a trial chamber has a broad discretion to consider all relevant factors in determining the weight to attach to the evidence of any given witness.[1] It is within the discretion of a trial chamber to evaluate the evidence as a whole, without explaining its decision in detail.[2] Merely stating that two witnesses, who testified about two separate events, were accorded different weight by the Trial Chamber does not meet the standard of appeal.

[1] See supra [Appeal Judgement,] para. 86.

[2] Kvočka et al. Appeal Judgement, para. 23, referring to Čelebići Appeal Judgement, paras 481, 498; Kupreškić et al. Appeal Judgement, para. 32.

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Appeal Judgement - 19.05.2010 BOŠKOSKI & TARČULOVSKI
(IT-04-82-A)

59. The Appeals Chamber has repeatedly held that a Trial Chamber can reasonably accept certain parts of a witness’s testimony and reject others.[1]

[1] Krajišnik Appeal Judgement, para. 354; Blagojević and Jokić Appeal Judgement, para. 82; Kupreškić et al. Appeal Judgement, para. 333. See also Seromba Appeal Judgement, para. 110; Ntagerura et al. Appeal Judgement, para. 214; Kamuhanda Appeal Judgement, para. 248.

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Appeal Judgement - 14.12.2011 NTAWUKULILYAYO Dominique
(ICTR-05-82-A)

21. The Appeals Chamber recalls that a Trial Chamber has full discretion to assess the appropriate credibility and weight to be accorded to the testimony of a witness;[1] corroboration is one of many potential factors relevant to this assessment.[2] A Trial Chamber retains discretion to decide, in the circumstances of each case, whether corroboration of evidence is necessary and to rely on uncorroborated, but otherwise credible, witness testimony.[3]

[…]

24. Nevertheless, the Appeals Chamber recalls that two prima facie credible testimonies need not be identical in all aspects or describe the same fact in the same way in order to be corroborative.[4] Every witness presents what he has seen from his own point of view at the time of the events, or according to how he understood the events recounted by others.[5] It follows that corroboration may exist even when some details differ between testimonies, provided that no credible testimony describes the facts in question in a way which is not compatible with the description given in another credible testimony.[6]

[1] Nchamihigo Appeal Judgement, para. 47; Muvunyi Appeal Judgement of 1 April 2011, para. 56; Nahimana et al. Appeal Judgement, para. 194.

[2] Nchamihigo Appeal Judgement, para. 47; Simba Appeal Judgement, para. 24, quoting Ntakirutimana Appeal Judgement, para. 132.

[3] Karera Appeal Judgement, para. 45. See also Renzaho Appeal Judgement, para. 556; Nchamihigo Appeal Judgement, para. 42; Muvunyi Appeal Judgement of 29 August 2008, para. 128.

[4] Munyakazi Appeal Judgement, para. 103; Bikindi Appeal Judgement, para. 81, citing Nahimana et al. Appeal Judgement, para. 428.

[5] Munyakazi Appeal Judgement, para. 103, citing Nahimana et al. Appeal Judgement, para. 428; Bikindi Appeal Judgement, para. 81; Karera Appeal Judgement, paras. 173, 192.

[6] Munyakazi Appeal Judgement, para. 71, citing Nahimana et al. Appeal Judgement, para. 428; Setako Appeal Judgement, para. 31; Rukundo Appeal Judgement, para. 201; Bikindi Appeal Judgement, para. 81.

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Decision on Whether to Continue or Restart Trial - 24.09.2003 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A15bis)

25. There is a preference for live testimony to be heard by each and every judge. But that does not represent an unbending requirement. The Rules and the cases show that exceptions can be made. The exceptions may relate even to evidence involving an assessment of demeanour, various ways being available to assist a new judge to overcome any disadvantages. The Appellants have not attacked the procedure prescribed by Rule 15(A) or Rule 15(B). Under these provisions, a witness could be heard by two judges; that the procedure is, in effect, available only over a short period of time is not relevant to the principle involved. Nor have the Appellants attacked the procedure prescribed by the old Rule 15(C) by virtue of which, in a part-heard case, a substitute judge could come in for the remainder of the trial; that this was possible only with the consent of the accused (where opening statements had been made or evidence had begun to be presented) was, again, not relevant to the principle involved. And then there is the case of deposition evidence admitted under Rule 71. In all these cases, the temporarily absent judge or the substitute judge, as the case may be, is faced with the task of evaluating evidence not given before him.

[…]

34.     The recomposed Trial Chamber may recall witnesses so as to enable the substitute judge to assess their demeanour on particular points. The recall decision would be made by the recomposed Trial Chamber after the proposed judge has joined it. Where video-recordings are available, an absent judge who reviews such recordings does so as a member of the bench, as in all the cases mentioned in paragraph 25 above. In like manner, in this case the substitute judge would be hearing recalled testimony as a member of the recomposed Trial Chamber. The recall power lies within the normal competence of the recomposed Trial Chamber. It was not for the two judges to authorize it to exercise that competence, although they could note that competence.

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ICTR Rule Rule 15 bis ICTY Rule Rule 15 bis