15. The Appeals Chamber recalls that, while Rule 89 of the Rules grants Trial Chambers a broad discretion in assessing admissibility of evidence they deem relevant, this discretion is not unlimited, considering that the test to be met before ruling evidence inadmissible is rigorous.[1] A piece of evidence may be so lacking in terms of the indicia of reliability that it is not probative and is therefore inadmissible. This principle should not be interpreted to mean that definite proof of reliability must necessarily be shown for evidence to be admissible. Prima facie proof of reliability on the basis of sufficient indicia is enough at the admissibility stage.[2] This indicium of reliability is in turn “a factor in the assessment of its relevance and probative value”.[3] Furthermore, as the Appeals Chamber has held, “evidence is admissible only if it is relevant and […] it is relevant only if it has probative value”.[4] The determination as to whether the proffered material conforms to the criteria of Rule 89 has to be made on a case-by-case basis.[5]

19. With respect to the nine remaining documents falling within the scope of the Appeal, the Appeals Chamber notes that they were rejected on the ground that the witnesses could not comment on the reliability, relevance or probative value of the exhibits.[6] Under the first ground of appeal, the Appellant does not present any arguments with respect to the Trial Chamber’s alleged errors in this evaluation, apart from some general submissions according to which the final assessment of the relevance, reliability or probative value should be done at the end of the trial rather then during its course.[7] The Appeals Chamber reiterates that these are the established criteria of admissibility of evidence and emphasizes that they should not be confused with the assessment of the evidence performed at the stage of deliberations on the judgement.[8]

22. With respect to the Appellant’s references to the previous statements made by the Pre-Trial and Trial Chambers in relation to the admission of evidence,[9] the Appeals Chamber similarly finds that the Appellant misconstrues them. Indeed, the Trial Chamber explained that the final assessment of the relevance, reliability and probative value of the admitted exhibits (i.e. weight to be given to the evidence on the record) would be performed at the end of the trial. This can in no way be interpreted as suggesting that the criteria for admissibility of tendered material may not be assessed during the trial when ruling on the admission. Moreover, when admitting the documents into evidence – subject to the assessment of weight to be given to them at a later stage – the Trial Chamber explicitly concluded that they bore “sufficient indicia of relevance, probative value and reliability”,[10] thus consistently applying the criteria of Rule 89 of the Rules.

33. The Appeals Chamber emphasizes that the Rules of both this Tribunal and the ICTY generally reflect a preference for direct, live, in-court testimony. Nevertheless, the jurisprudence of both ad hoc Tribunals admits that Rule 89(C) of the Rules grants a Trial Chamber a broad discretion in assessing admissibility of evidence it deems relevant, including indirect evidence.[1] This discretion is not unlimited, considering that the test to be met before ruling evidence inadmissible is rigorous. It was thus ruled that “a piece of evidence may be so lacking in terms of the indicia of reliability that it is not 'probative’ and is therefore inadmissible.”[2] The Appeals Chamber is of the opinion that this principle should not be interpreted to mean that definite proof of reliability must necessarily be shown for evidence to be admissible. At the stage of admissibility, the beginning of proof that evidence is reliable, in other words, that sufficient indicia of reliability have been established, is quite admissible.[3]

See also para. 266.

13. As the Appellant has noted, pursuant to Guidelines 9(a)(iii) and 9(a)(vi) issued by the Trial Chamber, in seeking the admission of the documents, the party is required to provide references to the relevant paragraphs of the Indictment and reasons why it considered the documents important for the determination of the case. […] However, the Appeals Chamber underscores that the Guidelines must be interpreted in the light of the Rules and the jurisprudence. When introducing documentary evidence pursuant to Rule 89(C) of the Rules, the parties must explain how the content of the document relates to a material issue.[1] This issue is a question of fact and depends upon the circumstances of each case. The Appeals Chamber must accord considerable deference to the Trial Chamber’s discretion in its evaluation of the relevance of the documentary evidence.

20. Rule 89(C) grants the Trial Chambers broad discretion. The bounds of this discretion, however, are suggested by Rule 89(B), which provides that “[i]n cases not otherwise provided for in this Section, 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.” A Trial Chamber’s exercise of discretion under Rule 89(C) ought, pursuant to Rule 89(B), to be in harmony with the Statute and the other Rules to the greatest extent possible.

[…]

22. […] Rule 89(C) must be interpreted so that safeguards are provided to ensure that the Trial Chamber can be satisfied that the evidence is reliable. A starting point is the requirements of these other rules [Rules 71, 71bis, 94bis, 94ter] that expressly allow for departures from the principle of live evidence. Rule 89(C) may indeed permit some relaxation of these requirements, but it would be odd to find that a statement that met none of the requirements of those other rules was nonetheless admissible under Rule 89(C) without any other compensating evidence of reliability.  […]

[…]

24. […] [T]he reliability of a statement is relevant to its admissibility, and not just to its weight. A piece of evidence may be so lacking in terms of the indicia of reliability that is not “probative” and is therefore inadmissible.