Competency to testify

Notion(s) Filing Case
Contempt Appeal Judgement - 03.07.2009 JOKIĆ Miodrag

35. In its discussion in paragraph 28 of the Trial Judgement, the Trial Chamber noted that the Rules do not provide a standard to be relied upon for determining a witness’ “competency to testify” and therefore considered the “plain meaning” of the phrase,[1] finding that it “requires that the proposed witness has a basic capacity to understand the questions put to him and give rational and truthful answers to those questions.”[2] This approach is broadly similar to that set out in Rule 90(B) of the Rules, dealing with the testimony of children, which focuses on the ability of a child witness “to report the facts of which the child has knowledge and understands the duty to tell the truth”. Further, although the Trial Chamber did not refer to any jurisprudence on the issue, the Appeals Chamber notes that there is no established standard for a witness’ fitness to testify in the jurisprudence of the Tribunal upon which the Trial Chamber could have relied beyond the Strugar case.[3] In that case, the Trial Chamber rejected, in the context of a determination of the accused’s fitness to stand trial, the Defence’s submission that the accused was not fit to testify because he was “unable to ‘fully’ testify”.[4] In that case, the Trial Chamber’s analysis of the accused’s capacity to testify centred on his ability to answer questions put to him.[5] The Appeals Chamber considers that the Trial Chamber’s analysis in paragraph 28 of the Trial Judgement was in line with the Strugar decision. Additionally, the conclusion of the Trial Chamber in the instant case, that the question comes down to whether the witness’ evidence will have probative value, is clearly in line with Rule 89(C) of the Rules which sets the standard for the admission of evidence before the Tribunal.

[1] Trial Judgement, para. 28.

[2] Ibid.

[3] Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Decision re Defence Motion to Terminate Proceedings, 26 May 2004.

[4] Ibid., para. 49.

[5] Ibid. Similarly, in Prosecutor v. Vladimir Kovačević, Case No. IT-01-42/2-I, Public Version of the Decision on Accused’s Fitness to Enter a Plea and Stand Trial, 12 April 2006, in the context of determining the Accused’s fitness to stand trial the Trial Chamber considered the Accused’s ability to testify and considered the following questions: “Is the Accused able to understand that he may choose to give testimony himself, i.e. to answer questions put to him by Defence Counsel on, i.e., his involvement or participation in the crimes for which he is charged, and that questions may also be put to him by the Prosecution and by the Judges, and that his answers can be taken into account when the Judges determine whether he is guilty; but also that he is entitled not to testify, in which case the Judges will decide the case without the information he might have given?” (para. 5).

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