22. The Appellant submits that the Trial Chamber erred in law in failing to conclude that those portions of his testimony that the Prosecution did not cross-examine were established.[1] Referring to Rule 90(G)(ii) of the Rules, the Rutaganda Appeal Judgement,[2] and Canadian jurisprudence, he submits that the “failure to cross-examine a witness on an aspect of his testimony implies a tacit acceptance of the truth of the witness’s evidence on the matter”.[3]

24. The Appeals Chamber finds that Rule 90(G)(ii) of the Rules does not support the Appellant’s contention [. The rule merely states that “[i]n the cross-examination of a witness who is able to give evidence relevant to the case for the cross-examining party, counsel shall put to that witness the nature of the case of the party for whom that counsel appears which is in contradiction of the evidence given by the witness.” The ICTY Appeals Chamber has previously stated, regarding the similarly worded Rule 90(H)(ii) of the ICTY Rules, that it:

seeks to facilitate the fair and efficient presentation of evidence whilst affording the witness being cross-examined the possibility of explaining himself on those aspects of his testimony contradicted by the opposing party’s evidence, so saving the witness from having to reappear needlessly in order to do so and enabling the Trial Chamber to evaluate the credibility of his testimony more accurately owing to the explanation of the witness or his counsel.[4]

The central purpose of this rule is to “promote the fairness of the proceedings by enabling the witness […] to appreciate the context of the cross-examining party’s questions, and to comment on the contradictory version of the events in question”.[5]

26. For the requirements of this rule to be fulfilled, there is no need for the cross-examining party to explain every detail of the contradictory evidence. Furthermore, the rule allows for some flexibility depending on the circumstances at trial.[6] This therefore implies that if it is obvious in the circumstances of the case that the version of the witness is being challenged, there is no need for the cross-examining party to waste time putting its case to the witness.[7]

27. The Appeals Chamber notes that the term “witness” under Rule 90 of the Rules does not always equate to an accused who chooses to testify. There is a fundamental difference between the accused, who might testify as a witness if he so chooses, and a witness. The Tribunal “does not reflexively apply rules governing any other witness to an accused who decides to testify in his own case”.[8] When an accused testifies in his own defence, he is well aware of the context of the Prosecution’s questions and of the Prosecution’s case, insofar as he has received sufficient notice of the charges and the material facts supporting them.[9] Furthermore, the accused’s version of the events is for the most part challenged by the Prosecution, while his testimony is aimed at responding to Prosecution’s evidence and allegations. In these circumstances, it would serve no useful purpose to put the nature of the Prosecution’s case to the accused in cross-examination. The Appeals Chamber therefore does not find that Rule 90(G)(ii) of the Rules was intended to apply to an accused testifying as a witness in his own case. The Appeals Chamber notes that, in any event, Rule 90(G)(ii) of the Rules is silent on any inferences that may be drawn by a Trial Chamber from a witness’s testimony that is not subject to cross-examination.

28. The Appeals Chamber further notes that the relevant holding of the Appeals Chamber in Rutaganda reads: 

La Chambre d’appel estime que, d’une manière générale, une partie qui ne contre-interroge pas un témoin sur une déclaration donnée admet tacitement la véracité de la déposition dudit témoin sur ce point. La Chambre de première instance n’aurait donc pas commis une erreur de droit en l’espèce, en induisant du fait que l’Appelant n’avait pas contre-interrogé le témoin Q sur la distribution d’armes, que celui-ci ne contestait pas la véracité de la déposition dudit témoin sur ce point. Ceci étant dit, il ne ressort pas clairement du Jugement que la Chambre de première instance est effectivement parvenue à une telle conclusion. Il semble plutôt qu’elle se soit limitée à noter que l’Appelant n’avait pas contre-interrogé le témoin Q sur la question visée, sans toutefois en tirer quelques conséquences que ce soit dans ses conclusions factuelles. De l’avis de la Chambre d’appel, cet argument est dépourvu de fondement.[10]

29. The Appeals Chamber recalls that in Kamuhanda, the Appeals Chamber stated that this holding in Rutaganda “does not stand for the proposition that a trier of fact must infer that statements not challenged during cross-examination are true,” and that it is within the discretion of a Trial Chamber to decline to make such an inference.[11] Thus, the Appeals Chamber emphasizes that a Trial Chamber has the discretion to infer (or not) as true statements unchallenged during cross-examination, and to take into account the absence of cross-examination of a particular witness when assessing his credibility.[12]

30. The Appeals Chamber notes that in this instance, the Appellant, who testified at the end of the case, had consistently denied the allegations against him throughout the proceedings and claimed that he did not know anything about the crimes alleged.[13] The Prosecution cross-examined the Appellant on a number of issues.[14] Under this sub-ground of appeal, the Appellant has failed to point to any finding allegedly affected by the lack of cross-examination by the Prosecution but merely makes a general reference to his oral arguments at trial.[15] In these circumstances, the Appellant has not demonstrated that the Trial Chamber committed an error of law in not considering as established those portions of his testimony on which the Prosecution did not cross-examine him.[16]

See also, below under “Development of the existing case-law”.