52. The Appeals Chamber has already held that the right to cross-examination is not absolute.[1] It further noted that

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.[2]

Of even more relevance for the issue at hand, since the Tribunal’s first cases, the jurisprudence has been constant in holding that, under the Tribunal’s system, a statement of a person made otherwise than in the proceedings in which it is tendered, whether orally by a witness or in writing is not inadmissible, in particular when the source of hearsay is known and subject to potential evaluation by a Chamber.[3] In particular, the Appeals Chamber found that Trial Chambers have a wide discretion in admitting hearsay evidence, although establishing the reliability of this type of evidence is of paramount importance when hearsay evidence is admitted as substantive evidence in order to prove the truth of its contents.[4]

53. A different matter is, of course, what weight a trier of fact is allowed to give to evidence not subjected to the testing of cross-examination. It is in this matter that the jurisprudence of the ECtHR is valuable, as it has authoritatively stated the principle that “all the evidence must normally be produced at a public hearing, in the presence of the accused, with a view to adversarial argument. There are exceptions to this principle, but they must not infringe the rights of the defence.”[5] Unacceptable infringements of the rights of the defence, in this sense, occur when a conviction is based solely, or in a decisive manner, on the depositions of a witness whom the accused has had no opportunity to examine or to have examined either during the investigation or at trial.[6] The ECtHR applied this reasoning to the statement of a co-accused in pre-trial proceedings in a case where neither the applicant nor his lawyer had been given the opportunity to question the co-accused at any stage of the proceedings.[7] The Appeals Chamber has already had occasion to elaborate on the fact that these principles serve as guidelines before the Tribunal.[8]

The Appellant was arguing that the Trial Chamber erred in finding that it could regulate the cross-examination of witnesses. In his view, this would violate both his right to cross-examine witnesses under Article 21(4)(e) of the Statute and Rule 82(A) of the Rules according to which in “joint trials, each accused shall be accorded the same rights as if such accused were being tried separately.”

The Appeals Chamber found the following:

29. […] The Trial Chamber was correct to note that in a joint trial, a Trial Chamber has discretion to regulate the examination of witnesses so as to avoid repetitive questioning during cross-examination. Rule 90(F) specifically provides that “[t]he Trial Chamber shall exercise control over the mode and order of interrogating witnesses and presenting evidence so as to (i) make the interrogation and presentation effective for the ascertainment of the truth; and (ii) avoid needless consumption of time.” Of course, this power is subject to Trial Chamber’s obligation to respect the rights of an accused, including the right to cross-examine witnesses under Article 21(4)(e) of the Statute.[1] The Appellant fails to show how the Trial Chamber’s regulation of the cross-examination of witnesses in this joint trial by, for example, avoiding repetitive questioning, would result in prejudice to him. Rather, the Trial Chamber’s regulation should mitigate any potential prejudice to him. At trial, the Appellant will have the opportunity to object where he feels that the Trial Chamber has erred in finding that another Accused’s cross-examination of a witness is sufficient to cover his defence such that he does not need to also engage in cross-examination of that same witness. The Trial Chamber will consider each objection carefully under its obligation to respect norms of due process and the rights of the Appellant. 

162. The Appeals Chamber recalls that Article 21(4)(e) of the ICTY Statute guarantees the right of the accused to examine or have examined the witnesses against him. However, this right is not absolute and may be limited, for instance, in accordance with Rule 92 bis of the ICTY Rules.[1] In this respect, a decision to accept evidence without cross-examination is one which trial chambers should arrive at only after careful consideration of its impact on the rights of the accused.[2] As with any issue regarding the admission or presentation of evidence, trial chambers enjoy broad discretion in this respect.[3]

[…]

164. […] Rule 92 bis of the ICTY Rules does not prohibit the admission of written evidence in circumstances where it might be appropriate for the witness to be cross-examined but provides instead that such circumstances would weigh against admission. The Trial Chamber did not err in considering that there was no reason for requiring the witness’s attendance as the witness’s anticipated evidence, which concerned underlying crime base events, did not appear to have “any” bearing on Karadžić’s acts and conduct as charged and could not materially assist his case.[4] […]

[…]

177. Under Rule 92 bis of the ICTY Rules, a trial chamber may dispense with the attendance of a witness in person in certain circumstances and instead admit the witness’s evidence in the form of a written statement. […]