Cross-examination
| Notion(s) | Filing | Case |
|---|---|---|
| Decision on Evidence of Milan Babić - 14.09.2006 |
MARTIĆ Milan (IT-95-11-AR73.2) |
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18. […] In such a case [when neither the Statute nor the Rules envisage a situation], Rule 89(B) provides that “a Chamber shall apply rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law.” The Appeals Chamber therefore considers that, to the extent that the Trial Chamber relies on the jurisprudence of the ECHR, its reliance is entirely appropriate in the circumstances. 19. The Appeals Chamber recalls in this respect that the right to cross-examination in Article 21(4)(e) of the Statute is in pari materia with Article 6(3)(d) of the European Convention on Human Rights and its importance has been repeatedly stressed and its violation sanctioned by the ECHR.[1] The Appeals Chamber considers that the jurisprudence of the ECHR provides a useful source of guidance for the interpretation of the right to cross-examination and the scope of its permissible limitations. 20. The Appeals Chamber observes in any event that the two principles that the Trial Chamber derived from the jurisprudence of the ECHR, namely that (1) a complete absence of, or deficiency in, the cross-examination of a witness will not automatically lead to exclusion of the evidence,[2] and (2) evidence which has not been cross-examined and goes to the acts and conduct of the Accused or is pivotal to the Prosecution case will require corroboration if used to establish a conviction,[3] are consistent with the jurisprudence of the International Tribunal as well as that of national jurisdictions.[4] […] [1] This point is conceded by the Appellant in his Interlocutory Appeal at paragraph 14. [2] Impugned Decision, para. 66. [3] Ibid., para. 67. [4] Impugned Decision, para. 69. With respect to the first principle the Trial Chamber notes the decision in Brđanin, in which the testimony of a witness who was unable to appear for cross-examination was retained in the trial record (Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Oral Decision, 24 February 2004, T.25083). With regard to the second principle, the Trial Chamber refers to the Appeals Chamber’s decision in Galić in which it states that “where the witness who made the statement is not called to give the accused an adequate and proper opportunity to challenge the statement and to question that witness, the evidence which the statement contains may lead to a conviction only if there is other evidence which corroborates the statement” (Prosecutor v. Stanislav Galić, Case No. IT-98-29-AR73.2, Decision on Interlocutory Appeal Concerning Rule 92 bis, 7 June 2002, fn.34, referring to Judgements of the ECHR). |
ICTR Rule Rule 89(B) ICTY Rule Rule 89(B) | |
| Notion(s) | Filing | Case |
| Decision on Evidence of Milan Babić - 14.09.2006 |
MARTIĆ Milan (IT-95-11-AR73.2) |
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12. […] [T]he right of an accused to cross-examine a witness is not absolute.[1] The Appeals Chamber recalls that the right to cross-examination may, for instance, be limited in accordance with Rule 92bis and that its exercise remains subject to the control of the Trial Chamber pursuant to Rule 90(F).[2] 13. The Appeals Chamber further rejects the Appellant’s claim that the fairness of a trial is uniquely predicated on the fairness accorded to the Accused. The Appeals Chamber has previously observed that the application of a fair trial in favour of both parties is understandable because the Prosecution acts on behalf of and in the interests of the community, including the victims of the offences charged (in cases before the Tribunal the Prosecutor acts on behalf of the international community) […] Seen in this way, it is difficult to see how a trial could ever be considered fair where the accused is favoured at the expense of the Prosecution beyond a strict compliance with those fundamental protections.[3] Although, proceedings must be conducted with full respect for the rights enumerated in Article 21 of the Statute, restrictions on the right to cross-examination will not necessarily entail a violation of that provision or be inconsistent with a fair trial. 14. […] The Appeals Chamber agrees with the Trial Chamber that the right to cross-examination is subject to the duty of the Trial Chamber to ensure the fairness and expeditiousness of the proceedings. [1] Prlić Decision on Cross-Examination, p. 3; Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-AR73, Decision on Prosecutor’s Appeal on Admissibility of Evidence, 16 February 1999, para. 27 (“Aleksovski Decision on Admissibility of Evidence”) (finding that the denial of the opportunity to cross-examine occasioned by the admission of hearsay evidence was tempered by the previous cross-examination of the witness in other proceedings and that any residual disadvantage was outweighed by the disadvantage which would be occasioned to the Prosecution by the exclusion of the evidence in the circumstances of the case); Prosecutor v. Milan Milutinović et al., Case No. IT-05-87-PT, Decision on Prosecution’s Rule 92bis Motion, 4 July 2006, para. 11; Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, First Decision on Prosecution’s Motion for Admission of Witness Statements and Prior Testimony Pursuant to Rule 92bis, 12 June 2003, para. 14 (referring to Rule 92bis (E), “the right to cross-examine witnesses is not an absolute right, although the decision to accept evidence without cross-examination is one which the Trial Chamber shall arrive at only after careful consideration”); Prosecutor v. Zdravko Mucić et al., Case No. IT-96-21-T, Decision on the Motion of the Joint Request of the Accused Persons Regarding the Presentation of Evidence, 24 May 1998 (“Čelebići Exclusion Decision”), para. 32; Impugned Decision, para. 56. [2] Decision on Radivoje Miletić’s Interlocutory Appeal, para. 29, referring to the Trial Chamber’s discretion pursuant to Rule 90(F) to regulate the examination of witnesses so as to avoid repetitive questioning during cross-examination. [3] Aleksovski Decision on Admissibility of Evidence, para. 25, see also Čelebići Exclusion Decision, para. 44 (“compliance with the specific rights set out in Article 21 alone may not necessarily guarantee that there has been a fair trial” and that “a fair trial can only be considered within the plenitude of the trial as a whole”). |
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| Notion(s) | Filing | Case |
| Decision on Interlocutory Appeal - 04.07.2006 |
PRLIĆ et al. (IT-04-74-AR73.2) |
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Further, the Appeals Chamber felt that the Trial Chamber’s decision would help to avoid “undue delays” in order to complete the trial “within a reasonable time”, therefore preserving the right to due process, which is fundamental in human rights law.[1] In conclusion, the Appeals Chamber found that the Trial Chamber acted in compliance with Rule 90(F) and subsequently dismissed the Defence’s interlocutory appeal.[2] [1] Article 14(3)(c) International Covenant on Civil and Political Rights; Article 6.1 European Convention on Human Rights; Article 8(l) American Convention on Human Rights; see Human Rights Committee General Comment No. 13 of 1984 para. 10: "Subparagraph 3(c) provides that the accused shall be tried without undue delay. This guarantee relates not only to the time by which trial should commence, but also the time by which it should end and judgement be rendered: all stages must take place 'without undue delay'. To make this right effective, a procedure must be available in order to ensure that the trial will proceed 'without undue delay', both in first instance and on appeal."; Moreira de Avezedo v. Portugal, European Court of Human Rights, Application No. 11296/90, Judgement, 23 October 1990, para.74: "By requiring that cases be heard 'within a reasonable time', the Convention stresses the importance of administering justice without delays which might jeopardise its effectiveness and credibility"; see also H. v. France, European Convention on Human Rights, Application No. 10073/82, Judgement, 24 October 1989, para. 58. [2] Decision, p. 4-5. |
ICTR Rule Rule 90(F) ICTY Rule Rule 90(F) | |
| Notion(s) | Filing | Case |
| Decision on Interlocutory Appeal - 04.07.2006 |
PRLIĆ et al. (IT-04-74-AR73.2) |
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In its Oral Decision of 8 May 2006, the Trial Chamber adopted three principles concerning cross-examination guidelines for the six accused in this case. They included 1) the total time limit of cross-examination by the Defence shall not in principle exceed the Prosecution’s direct-examination and if Defence cannot agree the time will be allocated equally, 2) the Defence will rotate their order of cross-examining witnesses, and 3) the allocation of time for cross-examination will be altered if a witness’s testimony goes to the responsibility of one of the accused.[1] In their interlocutory Appeal, the Appellants submit that the Trial Chamber abused its discretion by committing the following: (a) severely restricting the fundamental right of the Accused to cross-examine the witnesses against them; (b) applying rigid time-constraints in preference to using less restrictive methods of control; (c) effectively requiring the Accused to exercise the right of cross-examination as a group rather than individually, regardless of conflicts of interest, and to bargain with each other for time to cross-examine; (d) preventing Defence Counsel from affording effective assistance of counsel to the Accused; and (e) failing to exercise judicial independence by subjugating the fight of the Accused to a fair trial to the political and economic pressures imposed upon the Trial Chamber by the UN Security Council through the Completion Strategy.[2] The Prosecution submitted that the Trial Chamber decision was rather “a practical and flexible guideline that ensures a fair and expeditious trial, discourages unfocused and irrelevant cross-examination, and facilitates the scheduling of witnesses who must travel internationally to testify before the International Tribunal”.[3] The Appeals Chamber noted that each of the Defence teams had 1/6 of the time allocated to Prosecution (unless another agreement was reached),[4] and the Trial Chamber could allocate the time differently depending on whether a witness’ testimony spoke directly to the culpability of the one of the accused.[5] Additionally, the Appeals Chamber referred to the Tribunal’s established practice of avoiding “rigid time limits”[6] for cross-examination, “in particular, since the Trial Chamber reserves its power to modify the time allowed for cross-examination as necessary and allows the Appellants to adjust the specified time allocation by agreement among themselves.”[7] Therefore, the Appeals Chamber found that the Trial Chamber was “sufficiently flexible”[8] in preserving the Defendant’s right to cross-examination as stated in the Statute, while also balancing the needs and right to a fair trial of each individual defendant. [1] Decision on Defence Request Filed Jointly by the Six Accused for Certification of Interlocutory Appeal Against the Oral Decision of 8 May on Time Allocated for Cross-Examination by Defence, 29 May 2006; see also Transcript, 8 May 2006, pp. 1475-76, 1485-86. [2] Joint Defence Interlocutory Appeal Against the Trial Chamber’s Oral Decision of 8 May 2006 Relating to Cross-Examination by Defence, 15 June 2006, para. 1. [3] Prosecution Response to Joint Defence Interlocutory Appeal Against the Trial Chamber’s Decision Relating to Cross-Examination by Defence, 22 June 2006, para. 1.1. [4] Oral Decision on Cross-Examination by Defence, 8 May 2006, T. 1474-1476. [5] Decision, p. 3. [6] Decision, p. 4. [7] Decision, page 4, referring to: Prosecutor v. Milan Martić, Case No. IT-95-11-T, Decision Adopting Guidelines on the Standards Governing the Presentation of Evidence and The Conduct of Counsel in Court, 13 April 2006, Annex A, para. 11: “In the interest of ensuring fair and expeditious conduct of the trial proceedings, the parties are requested to adhere to the principle that the time for cross-examination of a witness should not exceed the time allotted for the examination-in-chief of that witness, unless there are particular circumstances requiring that the cross-examination be extended”; see also Prosecutor v. Goran Jelisić, Case No. IT-95-10-T, T. 1063, 7 September 1999; Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, T. 12248, 10 June 2002 (closed session); Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-T, T. 2652, 23 April 2004, where the Trial Chamber indicated as a guideline that the cross-examination of witnesses should take approximately 60 percent of the time allocated for the examination-in-chief; Prosecutor v. Slobodan Milošević, Case No. IT-02-54-T, Third Order on the Use of Time in the Defence Case and Decision on Prosecution's Further Submissions on the Recording and Use of Time during the Defence Case, 19 May 2005, p. 1, where the judges ordered that 60 percent of the time allocated to the Accused to present his case-in-chief would be allocated to the Prosecution for cross-examination during the Defence case. [8] Id. |
ICTR Rule Rule 90(F) ICTY Rule Rule 90(F) | |
| Notion(s) | Filing | Case |
| Decision on Interlocutory Appeal - 04.07.2006 |
PRLIĆ et al. (IT-04-74-AR73.2) |
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Decision, pp. 2-3: Article 21(4) of the Statute of the Tribunal provides the right to cross-examine a witness, which is recognised as a basic element under international human rights law.[1] Additionally, the Trial Chamber has control over the examination of witnesses in the Tribunal under Rule 90(F) of the Rules. The precedent of the Tribunal has given the Trial Chamber “considerable discretion” in guiding this right of the Defence.[2] [1] Article 14(3)(e) International Covenant on Civil and Political Rights; article 6(3)(d) European Convention on Human Rights; article 8(2)(f) American Convention on Human Rights; see also e.g. Human Rights Committee General Comment No. 13 of 1984, para. 12; Peart and Peart v. Jamaica, Human Rights Committee, Communication No. 482/199 1, UN Doc. CCPR/C/54/D/482/1991, 24 July 1995, paras. 1 1.4-11.5; Saidi v. France, European Court of Human Rights, Application No. 1933/1992, Judgement, 23 August 1993, paras. 43-44; van Mechelen v. The Netherlands, European Court of Human Rights, Application No. 55/1996, Judgement, 18 March 1997, para. 51; Krasniki v. The Czech Republic, European Court of Human Rights, Application No. 51277/99, Judgement, 28 February 2006, para. 75; Kostovski v. The Netherlands, European Court of Human Rights, Application No. 1145/85, Judgement, 20 November 1989, para. 41; P.S. v. Germany, European Court of Human Rights, Application No. 33900/96, Judgement, 20 December 200 1, para. 2 1. [2] Decision, p. 2, see also Milosević v. Prosecutor, Case No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber's Decision on the Assignment of Defence Counsel, I November 2004 ("Milosević Decision on the Assignment of Defence Counsel") para. 9; Prosecutor v. Zdravko Tolimir, Radivoje Miletić & Milan Gvero, Case No. IT-04-80-AR73. 1, Decision on Radivoje Miletićs Interlocutory Appeal Against the Trial Chamber's Decision on Joinder of accused, 27 January 2006 ("Decision on Radivoje Miletić's Interlocutory Appeal") para. 4. |
ICTR Statute Article 20(4)(e) ICTY Statute Article 21(4)(e) ICTR Rule Rule 90(F) ICTY Rule Rule 90(F) | |
| Notion(s) | Filing | Case |
| Appeal Judgement - 26.05.2003 |
RUTAGANDA George (ICTR-96-3-A) |
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310. The Appeals Chamber considers that a party who fails to cross-examine a witness upon a particular statement tacitly accepts the truth of the witness’s evidence on the matter. […] |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 29.09.2014 |
NIZEYIMANA Ildéphonse (ICTR-00-55C-A) |
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Fn. 709. The Appeals Chamber recalls in this regard that the right to cross-examination is not absolute. See, e.g., 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, para. 12. |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 01.06.2001 |
AKAYESU Jean Paul (ICTR-96-4-A) |
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323. The Appeals Chamber recalls that the Rules of the Tribunal have never contained any specific provision on the issue of leading questions. However, they do lay down general rules on examination and cross-examination of witnesses,[1] which appear to be patterned on the United States Federal Rules of Evidence.[2] True, under this system, leading questions are allowed and used during cross-examination whereas they are not permitted during examination-in-chief. Still in the opinion of the Appeals Chamber, the Rules take on a life of their own upon adoption. Interpretation of the provisions thereof may be guided by the domestic system it is patterned after, but under no circumstance can it be subordinated to it.[3] [1] These were adopted on 8 June 1998. Sub-Rule 90(F) provides that: “The Trial Chamber shall exercise control over the mode and order of interrogating witnesses and presenting evidence so as to: (i) Make the interrogation and presentation effective for ascertaining the truth; and (ii) needless consumption of time.” Sub-Rule 90(G) provides, on the other hand, that “Cross-examination shall be limited to points raised in the examination-in-chief or matters affecting the credibility of the witness. The Trial Chamber may, if it deems advisable, permit enquiry into additional matters, as if on direct examination. [SUB-RULE 90(G) WAS AMENDED ON 27 MAY 2003 SO AS TO READ: (G) (i) Cross-examination shall be limited to the subject-matter of the evidence-in-chief and matters affecting the credibility of the witness and, where the witness is able to give evidence relevant to the case for the cross-examining party, to the subject-matter of the case. (ii) In the cross-examination of a witness who is able to give evidence relevant to the case for the cross-examining party, counsel shall put to that witness the nature of the case of the party for whom that counsel appears which is in contradiction of the evidence given by the witness. (iii) The Trial Chamber may, in the exercise of its discretion, permit enquiry into additional matters.] [2] Rule 611 of the United States Federal Rules of Evidence reads as follows: “(a) Control by Court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make interrogation and presentation effective for the ascertainment of the truth; (2) avoid needless consumption of time; and (3) protect witnesses from harassment or undue embarrassment; (b) Scope of the cross-examination. Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may in the exercise of discretion, permit inquiry into additional matters as if on direct examination; (c) Leading questions. Leading questions should not be used on the direct examination of a witness testimony. Ordinary leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions”. [3] In this connection, the Appeals Chamber recalls Rule 89(A) of the Rules: “The rules of evidence set forth in this Section shall govern the proceedings before the Chambers. The Chambers shall not be bound by national rules of evidence.
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ICTR Rule Rule 90 ICTY Rule Rule 90 | |
| Notion(s) | Filing | Case |
| Decision on Right to Be Present - 05.10.2007 |
KAREMERA et al. (ICTR-98-44-AR73.10) |
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15. […] The Appeals Chamber holds that the Trial Chamber’s comparison between the limitations placed on the Appellant’s “access […] to the examination of a witness”[1] and the restrictions permitted under Rules 92bis and 94(B) of the Rules is misguided. Rules 92bis and 94(B) address the proof of facts of a matter other than the acts of the accused. In the present case, the issue was quite different, namely, whether the presence of an accused is required during the cross-examination of a witness by a co-accused or his counsel. In the circumstances of a joint trial, it is irrelevant for the purpose of that determination whether or not the witness’s testimony was likely to concern the alleged acts and conduct of a co-accused only. [1] Impugned Decision, para. 14. |
ICTR Rule
Rule 92 bis; Rule 94 ICTY Rule Rule 92 bis; Rule 94 |
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