Reliance on the jurisprudence of the European Court of Human Rights

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Decision on Evidence of Milan Babić - 14.09.2006 MARTIĆ Milan

18. […] In such a case [when neither the Statute nor the Rules envisage a situation], Rule 89(B) provides that “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.” The Appeals Chamber therefore considers that, to the extent that the Trial Chamber relies on the jurisprudence of the ECHR, its reliance is entirely appropriate in the circumstances.

19. The Appeals Chamber recalls in this respect that the right to cross-examination in Article 21(4)(e) of the Statute is in pari materia with Article 6(3)(d) of the European Convention on Human Rights and its importance has been repeatedly stressed and its violation sanctioned by the ECHR.[1] The Appeals Chamber considers that the jurisprudence of the ECHR provides a useful source of guidance for the interpretation of the right to cross-examination and the scope of its permissible limitations.

20. The Appeals Chamber observes in any event that the two principles that the Trial Chamber derived from the jurisprudence of the ECHR, namely that (1) a complete absence of, or deficiency in, the cross-examination of a witness will not automatically lead to exclusion of the evidence,[2] and (2) evidence which has not been cross-examined and goes to the acts and conduct of the Accused or is pivotal to the Prosecution case will require corroboration if used to establish a conviction,[3] are consistent with the jurisprudence of the International Tribunal as well as that of national jurisdictions.[4] […]

[1] This point is conceded by the Appellant in his Interlocutory Appeal at paragraph 14.

[2] Impugned Decision, para. 66.

[3] Ibid., para. 67.

[4] Impugned Decision, para. 69. With respect to the first principle the Trial Chamber notes the decision in Brđanin, in which the testimony of a witness who was unable to appear for cross-examination was retained in the trial record (Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Oral Decision, 24 February 2004, T.25083). With regard to the second principle, the Trial Chamber refers to the Appeals Chamber’s decision in Galić in which it states that “where 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” (Prosecutor v. Stanislav Galić, Case No. IT-98-29-AR73.2, Decision on Interlocutory Appeal Concerning Rule 92 bis, 7 June 2002, fn.34, referring to Judgements of the ECHR).

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ICTR Rule Rule 89(B) ICTY Rule Rule 89(B)