Witness intimidation

Notion(s) Filing Case
Appeal Judgement - 19.07.2010 HARADINAJ et al.

34. The central factual context of the Prosecution’s appeal is the unprecedented atmosphere of widespread and serious witness intimidation that surrounded the trial. The Trial Chamber acknowledged this in the Trial Judgement, observing that:

[…] throughout the trial, the Trial Chamber encountered significant difficulties in securing the testimony of a large number of witnesses. Many witnesses cited fear as a prominent reason for not wishing to appear before the Trial Chamber to give evidence. The Trial Chamber gained a strong impression that the trial was being held in an atmosphere where witnesses felt unsafe. This was due to a number of factors specific to Kosovo/Kosova, for example Kosovo/Kosova’s small communities and tight family and community networks which made guaranteeing anonymity difficult. The parties themselves agreed that an unstable security situation existed in Kosovo/Kosova that was particularly unfavourable to witnesses.[1]

35. In circumstances of witness intimidation such as this, it is incumbent upon a Trial Chamber to do its utmost to ensure that a fair trial is possible. Witness intimidation of the type described by the Trial Chamber undermines the fundamental objective of the Tribunal, enshrined in Article 20(1) of the Statute: to ensure that trials are fair, expeditious, and conducted with due regard for the protection of victims and witnesses. Countering witness intimidation is a primary and necessary function of a Trial Chamber. While a Trial Chamber is always required to “provide every practicable facility it is capable of granting under the Rules and Statute when faced with a request by a party for assistance in presenting its case”,[2] this obligation is especially pressing when outside forces seek to undermine the ability of a party to present its evidence at trial. For the Tribunal to function effectively, Trial Chambers must counter witness intimidation by taking all measures that are reasonably open to them, both at the request of the parties and proprio motu.

[1] [Haradinaj et al.] Trial Judgement, para. 6 (internal citations omitted).

[2] Tadić Appeal Judgement, para. 52.

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Notion(s) Filing Case
Appeal Judgement - 01.04.2011 RENZAHO Tharcisse

207. The Appeals Chamber is deeply concerned about the allegations that the Defence Investigator intimidated prospective Defence witnesses. It considers that witness intimidation undermines the fundamental objectives of the Tribunal, provided in Article 20(2) of the Statute, including the objective to ensure that trials are fair.[1]

208. Considering the gravity of the allegations under investigation, the Appeals Chamber is of the view that the Trial Chamber was obliged to ensure that the Renzaho Investigation was carried out diligently and, in particular, that it was completed. It is unacceptable that the matter appears to have been simply abandoned at some juncture, without explanation.

209. Although the Appeals Chamber notes with concern the Defence’s failure to bring a motion at any point seeking the assistance of the Trial Chamber to secure the attendance of witnesses or the completion of the Renzaho Investigation, it recalls that “Trial Chambers must counter witness intimidation by taking all measures that are reasonably open to them, both at the request of the parties and proprio motu.”[2] In this particular instance, the Trial Chamber was obliged, at the very least, to ensure that a final report was received from Jean Haguma before delivering the Trial Judgement. By failing to do so, the Trial Chamber erred and brought into question Renzaho’s right to a fair trial under Article 20(2) of the Statute.

[1] See Haradinaj et al. Appeal Judgement, para. 35; Jean de Dieu Kamuhanda v. The Prosecutor, Case No. ICTR-99-54A-A, Oral Decision (Rule 115 and Contempt of False Testimony), 19 May 2005, p. 2.

[2] Haradinaj et al. Appeal Judgement, para. 35.

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