Evidence relating to the acts and conduct of the accused

Notion(s) Filing Case
Decision on Admission of Transcript - 23.11.2007 PRLIĆ et al.

57. The Appeals Chamber notes that the Trial Chamber did refer to the principle according to which untested evidence relating to the acts and conduct of the accused may be admitted into the trial record, but must be corroborated by other evidence in order to form, if it comes to that, a basis for a conviction of an accused.[1] This principle is undoubtedly premised on the recognition that professional judges are better able to weigh evidence and consider it in its proper context than members of a jury. Furthermore, as opposed to a jury’s verdict, professional judges have to write a reasoned decision, which is subject to appeal.

58. The principle of fairness that a conviction may not be based solely or in a decisive manner on the deposition of an individual whom the accused has had no opportunity to examine[2] is not equivalent to the restriction that material related to the acts and conduct of the accused is inadmissible except through “live” testimony.[3] The former principle is both wider and narrower in scope.

59. On the one hand, “acts and conduct” of the accused have been interpreted extensively in the jurisprudence of the Tribunal.[4] The scope of the principle expressed above, however, appears to cover more than just this material: it clearly applies to any “critical element” of the Prosecution case,[5] that is, to any fact which is indispensable for a conviction (including those used as an aggravating circumstance in sentencing).[6] These are, in fact, the findings that a trier of fact has to reach beyond reasonable doubt. It would run counter to the principles of fairness discussed above to allow a conviction based on evidence of this kind without sufficient corroboration. In other words, the scope of the rule that sufficient corroboration is necessary has to be expanded to cover evidence beyond that relating to the acts and conduct of the accused stricto sensu.

60. On the other hand, a transcript of the questioning of an accused might contain evidence of his acts and conduct that do not relate to the allegations in the case at hand and may not, as such, form any basis for his conviction.

[1] Impugned Decision, para. 18. On the contrary, evidence that could be subject to cross-examination at trial does not require corroboration under Tribunal’s law (Aleksovski Appeal Judgement, paras 62-63).

[2] A.M. v. Italy, supra, note 5

[3] Rule 92bis.

[4] See, in general, Galić Decision [Prosecutor v. Stanislav Galić, Case No IT-98-29-AR73.2, Decision on Interlocutory Appeal Concerning Rule 92bis(C) , 7 June 2002]

[5] Prosecutor v. Duško Sikirica et al., Case No. IT-95-8-T, Decision on Prosecution’s Application to Admit Transcripts under Rule 92bis, 23 May 2001, paras 4, 8, 11.

[6] See, inter alia, Halilović Appeal Judgement, [Prosecutor v. Sefer Halilović, Case No. IT-01-48-A Judgment, 16 October 2007], para. 125; Blagojević and Jokić Appeal Judgement, [Prosecutor v. Vidoje Blagojević and Dragan Halilović, Case No. IT-02-60-A, Judgment, 9 May 2007], para. 226.

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ICTR Rule Rule 92 bis ICTY Rule Rule 92 bis