Right to cross-examination and fair trial

Notion(s) Filing Case
Decision on Evidence of Milan Babić - 14.09.2006 MARTIĆ Milan

12. […] [T]he right of an accused to cross-examine a witness is not absolute.[1] The Appeals Chamber recalls that the right to cross-examination may, for instance, be limited in accordance with Rule 92bis and that its exercise remains subject to the control of the Trial Chamber pursuant to Rule 90(F).[2]

13. The Appeals Chamber further rejects the Appellant’s claim that the fairness of a trial is uniquely predicated on the fairness accorded to the Accused.  The Appeals Chamber has previously observed that the

application of a fair trial in favour of both parties is understandable because the Prosecution acts on behalf of and in the interests of the community, including the victims of the offences charged (in cases before the Tribunal the Prosecutor acts on behalf of the international community) […] Seen in this way, it is difficult to see how a trial could ever be considered fair where the accused is favoured at the expense of the Prosecution beyond a strict compliance with those fundamental protections.[3]

Although, proceedings must be conducted with full respect for the rights enumerated in Article 21 of the Statute, restrictions on the right to cross-examination will not necessarily entail a violation of that provision or be inconsistent with a fair trial.

14. […] The Appeals Chamber agrees with the Trial Chamber that the right to cross-examination is subject to the duty of the Trial Chamber to ensure the fairness and expeditiousness of the proceedings.

[1] Prlić Decision on Cross-Examination, p. 3; Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-AR73, Decision on Prosecutor’s Appeal on Admissibility of Evidence, 16 February 1999, para. 27 (“Aleksovski Decision on Admissibility of Evidence”) (finding that the denial of the opportunity to cross-examine occasioned by the admission of hearsay evidence was tempered by the previous cross-examination of the witness in other proceedings and that any residual disadvantage was outweighed by the disadvantage which would be occasioned to the Prosecution by the exclusion of the evidence in the circumstances of the case); Prosecutor v. Milan Milutinović et al., Case No. IT-05-87-PT, Decision on Prosecution’s Rule 92bis Motion, 4 July 2006, para. 11; Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, First Decision on Prosecution’s Motion for Admission of Witness Statements and Prior Testimony Pursuant to Rule 92bis, 12 June 2003, para. 14 (referring to Rule 92bis (E), “the right to cross-examine witnesses is not an absolute right, although the decision to accept evidence without cross-examination is one which the Trial Chamber shall arrive at only after careful consideration”); Prosecutor v. Zdravko Mucić et al., Case No. IT-96-21-T, Decision on the Motion of the Joint Request of the Accused Persons Regarding the Presentation of Evidence, 24 May 1998 (“Čelebići Exclusion Decision”), para. 32; Impugned Decision, para. 56.

[2] Decision on Radivoje Miletić’s Interlocutory Appeal, para. 29, referring to the Trial Chamber’s discretion pursuant to Rule 90(F) to regulate the examination of witnesses so as to avoid repetitive questioning during cross-examination.

[3] Aleksovski Decision on Admissibility of Evidence, para. 25, see also Čelebići Exclusion Decision, para. 44 (“compliance with the specific rights set out in Article 21 alone may not necessarily guarantee that there has been a fair trial” and that “a fair trial can only be considered within the plenitude of the trial as a whole”).

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Notion(s) Filing Case
Appeal Judgement - 29.09.2014 NIZEYIMANA Ildéphonse

Fn. 709. The Appeals Chamber recalls in this regard that the right to cross-examination is not absolute. See, e.g., 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 Babić, 14 September 2006, para. 12.

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