Notion(s) Filing Case
Reconsideration Appeal Decision - 03.11.2009 PRLIĆ et al.

32. The Appeals Chamber notes that the Appellant’s assertion that authenticity is an issue wholly divorced from the admissibility of evidence is based on a misapprehension of the Tribunal’s case law. In support of his submission that the Trial Chamber erroneously “refused reconsideration for documents initially rejected for lack of authenticity under the heading of reliability”,[1] the Appellant cites an Appeals Chamber decision in the Delalić case.[2] 

34. Authenticity may be similarly viewed in terms of the distinction between prima facie proof and definite proof. Prima facie proof of authenticity is appropriate at the admissibility stage, whereas definitive proof of authenticity is relevant to evidentiary weight later on in the proceedings. Authenticity relates to whether a document is what it professes to be in origin or authorship. It may therefore be relevant in assessing whether a document is prima facie reliable. Thus, whether a document bears basic features indicative of prima facie authenticity may, in the individual circumstances facing a Trial Chamber, be relevant to the underlying factor of prima facie reliability. Conversely, definitive proof of authenticity is an issue relevant to the evidentiary weight to be assigned to a document after admission. [3]

35. The Delalić Decision upon which the Appellant relies does not support his position. Rather, the Delalić Decision clarifies that it is erroneous to claim that strict proof of authenticity constitutes a separate and distinct requirement to the prerequisites of relevance and probative value of Rule 89(C) of the Rules.  The Delalić Decision states that:

The Applicant submits that where the tendering party has not proven the authenticity of a document then that document is necessarily irrelevant and of no probative value; hence it should be excluded. Sub-rule 89(E), whereby “[a] Chamber may request verification of the authenticity of evidence obtained out of court”, cited by the Applicant, does not operate as a pre-condition to bar the admissibility of evidence under Sub-rule 89(C). There is no legal basis for the Applicant’s argument that proof of authenticity is a separate threshold requirement for the admissibility of documentary evidence.[4]

With regard to the notion that definitive proof of authenticity is an element of admissibility:

The implicit requirement that a piece of evidence be prima facie credible – that it have sufficient indicia of reliability – is a factor in the assessment of its relevance and probative value. To require absolute proof of a document’s authenticity before it could be admitted would be to require a far more stringent test than the standard envisioned by Sub-rule 89(C).[5]

36. The Appeals Chamber notes that the Trial Chamber correctly applied the foregoing standards.  The Appellant’s submission that the Trial Chamber refused reconsideration due to the fact that it erroneously subsumed authenticity under the heading of reliability is therefore unmeritorious.

[1] See Appeal [Jadranko Prlić’s Interlocutory Appeal Against the Decision on Prlić Defence Motion for Reconsideration of the Decision on Admission of Documentary Evidence, 23 July 2009], para. 35.

[2] Appeal, fn. 57. The Appellant cites Prosecutor v. Zejnil Delalić, Zdravko Mucić (aka “Pavo”), Hazim Delić and Esad Landžo (aka “Zenga”), Case No. IT-96-21-AR73.2, Decision on Application of Defendant Zejnil Delalić for Leave to Appeal Against the Decision of the Trial Chamber of 19 January 1998 for the Admissibility of Evidence, 4 March 1998 (“Delalić Decision”).

[3] Id.

[4] Delalić Decision, para. 25. (Emphasis inserted).

[5] Id., para. 20. (Emphasis inserted). See also the Naletilić Appeal Judgement which states at para. 402 that “[t]here is no separate threshold requirement for the admissibility of documentary evidence.” (Emphasis inserted).

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ICTR Rule Rule 89(C) ICTY Rule Rule 89(C)
Notion(s) Filing Case
Appeal Judgement - 16.10.2007 HALILOVIĆ Sefer

39. […] In this respect, the Appeals Chamber emphasizes the large measure of discretion afforded under the Rules to Trial Chambers in establishing the authenticity of a document.[1] Considering that Trial Chambers’ decisions on issues of evaluation of evidence must generally be given a margin of deference,[2] it is only where an abuse of such discretion can be established that the Appeals Chamber should reverse such decisions.[3]

[1] See Prosecutor v. Sefer Halilović, Case No. IT-01-48-AR73.2, Decision on Interlocutory Appeal Concerning Admission of Record of Interview of the Accused from the Bar Table, 19 August 2005, para. 19.

[2]   Čelebići Appeal Judgement, para. 533, where the Appeals Chamber stated that “a Trial Chamber exercises consi­derable discretion in deciding on issues of admissibility of evidence” and that, as a result, “a Trial Chamber should be afforded […] deference in making decisions based on the circumstances of the case before it”.

[3] See, for example, 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; Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-AR73.6, Decision on Appeal Regarding the Admission into Evidence of Seven Affidavits and One Formal Statement, 18 September 2000.

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ICTY Rule Rule 89(D)