Evidence untested through cross-examination

Notion(s) Filing Case
Appeal Judgement - 23.07.2009 HARAQIJA & MORINA

61. The right to cross-examination is not absolute.[1] The Appeals Chamber has held that "as a matter of principle nothing bars the admission of evidence that is not tested or might not be tested through cross-examination."[2] Nevertheless, the Appeals Chamber has recognized that "[u]nacceptable infringements of the rights of the defence [...] occur when a conviction is based solely, or in a decisive manner, on the depositions of a witness whom the accused has had no opportunity to examine or to have examined either during the investigation or at trial."[3] Therefore, "[i]t would run counter to the principles of fairness [...] to allow a conviction based on evidence of this kind without sufficient corroboration."[4]

62. Whether untested evidence is sufficiently corroborated is necessarily a fact specific inquiry and varies from case to case. Accordingly, the Appeals Chamber declines to impose any specific legal requirement as to the source of the corroboration. Therefore, the Appeals Chamber can identify no error of law in the above quoted legal principles adopted by the Trial Chamber for assessing untested evidence. The main question, however, is whether the conviction rests decisively on untested evidence. Furthermore, it follows from jurisprudence that not all evidence characterized as hearsay can be considered untested or unreliable.[5] Indeed, as a matter of law, it is permissible to base a conviction on hearsay or circumstantial evidence, but caution is warranted in such circumstances.[6]

[1] 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 Babic, 14 September 2006, para. 12. See also Prlić Appeal Decision [Prosecutor v. Jadranko Prlić, Case No. IT-04-74-AR73.6, Decision on Appeals Against Decision Admitting Transcript of Jadranko Prlić’s Questioning into Evidence, 23 November 2007], para. 41; Popović Appeal Decision [Prosecutor v. Vujadin Popović, Case No. IT-05-88-AR73.1, Decision on Appeals Against Decision Admitting Material Related to Borovčanin’s Questioning, 14 December 2007], para. 48.

[2] Prlić Appeal Decision, para. 55. See also Popović Appeal Decision, para. 48..

[3] Prlić  Appeal Decision, para. 53.

[4] Prlić Appeal Decision, para. 59. See also Popović Appeal Decision, para. 48.

[5] See, e.g., Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement, 17 December 2004 (“Kordić and Čerkez Appeal Judgement”), paras 276, 281-284, 291-294; Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-AR73, Decision on Prosecutor’s Appeal on Admissibility of Evidence, 16 February 1999, paras 15, 19, 27. See also The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Judgement, 1 June 2001, para. 287.

[6] Kordić and Čerkez Appeal Judgement, para 294 (affirming conviction based on hearsay and circumstantial evidence where Trial Chamber exhaustively considered credibility issues and surrounding circumstances). See also Tharcisse Muvunyi v. The Prosecutor, Case No. ICTR-2000-55A-A, Judgement, 29 August 2008, para. 70 (overturning a conviction based on hearsay and circumstantial evidence where hearsay lacked detail).

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Notion(s) Filing Case
Decision Concerning Rule 92bis(C) - 07.06.2002 GALIĆ Stanislav

Fn. 34: [W]here 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[.]

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ICTR Statute Article 20(4)(e) ICTY Statute Article 21(4)(e) Other instruments European Convention on Human Rights Article 6(3)(d).