Nature of Rule 84bis

Notion(s) Filing Case
Decision on Accused's Statement - 20.04.2009 PRLIĆ et al.

28. […] While statements made under Rule 84 bis are a type of evidence – the probative value of which is decided by the Trial Chamber[1]– the admission of such statements, or their scope, are subject to the authority and control of the Trial Chamber.

29. The Rules do not provide explicitly for a written supplement to an accused’s Rule 84 bis statement to be admitted into evidence in the trial of that person and other accused. A Chamber is therefore called in such a case to apply rules of evidence that “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”.[2] As the Appeals Chamber has previously noted, “[t]his is a delicate exercise for, while the system under which the Tribunal’s rules of evidence operates is predominantly adversarial, the jurisprudence – and the Rules themselves – have recognized from the beginning the necessity, and desirability, of certain features which do not accord with a strictly adversarial criminal procedure.”[3] Rule 84 bis is one such feature.[4] […]

[1] See, e.g., Prosecutor v. Milan Martić, Case No. IT-95-11-T, Judgement, 12 June 2007, para. 23, in which the Trial Chamber considered whether the accused’s Rule 84 bis statement had any probative value, and concluded that it did not.

[2] Rule 89(B).

[3] Prosecution v. Jadranko Prlić et al., 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. 40. 

[4] See Giuliano Turone, The Denial of the Accused’s Right to Make Unsworn Statements in Delalić, 2 J. Int’l Crim. J. (2004) 455-458. The Appeals Chamber, notes, however, that the possibility of an accused to make an unsworn statement is not purely a creature of the civil law, and in fact was part of the common law system in many countries, although the tendency has been to abolish the rule. The US Army Manual for Courts Martial (2008), R.C.M. 1001(c)(2)(C) provides for the possibility of an accused to make an unsworn statement, either orally or in writing, though the statement is not considered as evidence and an accused making an unsworn statement is not a “witness”. See Trial of Albert Bury and Wilhelm Hafner, United States Military Commission, Freising, Germany, 15 July 1945, Law Reports of Trials of War Criminals, The United Nations War Crimes Commission, Vol. III, London, HMSO, 1948, p. 63. 

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ICTY Rule Rule 84 bis