Evidence favourable to the Defence

Notion(s) Filing Case
Appeal Judgement - 22.04.2008 HADŽIHASANOVIĆ & KUBURA

55. The Appeals Chamber considers that the Trial Chamber’s finding that it “did not consider evidence which might be favourable to the Accused”,[1] if interpreted as implying that it completely ignored the evidence presented by the Defence in its favour during the Prosecution case, would amount to an error of law. For example, where the Defence has cross-examined a witness to good effect or has obtained evidence in an accused’s favour during cross-examination, this evidence must be used to assess whether the Prosecution evidence is incapable of belief. In the present case, the Trial Chamber not only recognised this principle,[2] but also referred in its Rule 98bis Decision to the entirety of the testimonies without excluding the cross-examination of the witnesses. Further, the Rule 98bis Decision is replete with references to Hadžihasanović’s Motion for Acquittal, which in turn is replete with references to evidence adduced by the Defence during the Prosecution case.[3]

[1] Rule 98bis Decision, para. 18.

[2] Rule 98bis Decision, paras 16-17.

[3] Motion for Acquittal of Enver Hadžihasanović (“Hadžihasanović’s Motion for Acquittal”), 11 August 2004.

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ICTR Rule Rule 98 bis ICTY Rule Rule 98 bis