Statement of a suspect / accused

Notion(s) Filing Case
Decision on Admission of Transcript - 23.11.2007 PRLIĆ et al.

40. The Rules do not provide explicitly for the case of a transcript of the questioning of a suspect 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”.[1] This 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.

41. One of the central tenets of the procedure before the Tribunal is the right of all accused to a fair and public hearing.[2] While such a hearing generally entails the examination of evidence against the accused, this principle is not absolute.[3] In fact, there are various provisions that, by balancing the rights of the accused against other relevant interests, safeguard the overall fairness of the proceedings. The Appeals Chamber recalls that this is a complex feat, since under the cloak of “fairness”, a court may be led to construe troublesome curtailments of the rights of the accused in specific instances, which in turn might impact on fundamental rights of the accused. Trial Chambers are called to be vigilant and effective in protecting these rights.

43. The Appeals Chamber considers the analysis of Rule 92bis inapposite to the present situation. Rule 92bis provides an answer to a question different, both in aim and in scope, from the one posed by the present situation. […]

44. Moreover, as the Trial Chamber correctly noted, the transcript of a questioning taken pursuant to Rules 42 and 43 is not a “statement” according to Rule 92bis.[4] A recorded questioning includes, by definition, all questions, all answers, every pause and request for clarifications by all attendees. The parties and the Judges also have the possibility to listen to the audio recording itself, which might provide additional guidance in the understanding of the overall demeanor of the questioned person as well as of those questioning him. The danger that the Prosecution uses this type of questioning to “craft” evidence against the (other) accused persons at trial as argued by the Joint Defence is, in such instances, reduced to a minimum. In this sense, a recorded questioning may be considered more reliable than a statement prepared and then admitted under Rule 92bis.

45. […] Conversely, the questioning of a suspect pursuant to Rules 42 and 43 affords stringent safeguards in order to protect the questioned individual’s right not to incriminate himself.[5] Thus, the suspect is motivated to be more circumspect in his responses and, while he might wish to try and shift the blame to other individuals if he considers himself in a difficult position,[6] he will certainly bear in mind that the Prosecution has, at its disposal, a variety of sources to check the accuracy of his words. In other words, and bearing in mind the different purpose behind the questioning of a suspect as opposed to the gathering of a witness statement by the Prosecution, in cases similar to the one under review here there is undoubtedly less concern about a “collaborative effort” between the suspect and the Prosecution, than in cases where the Prosecution approaches a prospective witness. Of course, this does not say much about the veracity of the answers and explanations provided by the suspect who was being questioned – but this is not determinative of the issue, in this case.

47. A trier of fact is of course called upon to carefully consider the context in which the suspect was questioned. Nonetheless, a transcript of a suspect questioning is different from a statement introduced at trial pursuant to Rule 92bis. This shows that there are substantial differences between the transcript of a questioning conducted according to Rules 42 and 43 and a statement prepared with a view to introducing it into the trial proceedings pursuant to Rule 92bis.

[1] Rule 89(B).

[2] Article 21(2) of the Statute.

[3] See, e.g., Prosecutor v. Žejnil Delalic et al., Case No. IT-96-21-AR73.2, Decision on Application of Defendant Zejnil Delalić for Leave to Appeal Against the Decision of the Trial Chamber of 19 January 1998 for the Admissibility of Evidence, 4 March 1998, para. 22.

[4] Impugned Decision [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-T, Decision on Request for Admission of the Statement of Jadranko Prlić, 22 August 2007], paras 26-28.

[5] See, for example, Halilović Appeal Judgement, especially paras 36-40, on the reliability of a summarized statement and Rules 42 and 43.

[6] Joint Defence Appeal, para. 16.

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ICTY Rule Rule 42;
Notion(s) Filing Case
Decision on Admission of Record of Interview - 19.08.2005 HALILOVIĆ Sefer

The Accused appealed against a Decision of the Trial Chamber admitting into evidence from the bar table the record of the Prosecution’s interview with him. When considering whether the Trial Chamber erred in exercising its discretion to admit the record of the interview pursuant to Rule 89(D) of the ICTY Rules of Procedure and Evidence, the Appeals Chamber made the following findings:

14.     With respect to the Appellant’s first argument, that the Rules do not permit a record of an interview with the accused to be tendered into evidence unless the accused has chosen to testify or has consented to the tender, the Appeals Chamber does not agree that the Rules impose such a categorical restriction.  The Rules instead grant Trial Chambers considerable discretion on evidentiary matters; in particular Rule 89(C) states that a “Chamber may admit any relevant evidence which it deems to have probative value”.  Here the Trial Chamber was satisfied that the record of interview was relevant and probative, and the Appellant does not dispute these points.  The Trial Chamber therefore had the discretion to admit the record, at least so long as doing so did not violate any of the specific restrictions outlined in the remainder of the Rules, nor the general principle of Rule 89(B) requiring application of “rules of evidence which will best favour a fair determination of the matter before it andare consonant with the spirit of the Statute and the general principles of law”.

15.     The Appeals Chamber does not find that fairness or the “spirit of the Statute and general principles of law” require that the admissibility of an accused’s prior statements turn on whether he has agreed to testify or consented to the admission.  The Appellant’s argument to the contrary rests implicitly on the right of an accused against self-incrimination.  An accused has the right to refuse to give statements incriminating himself prior to trial, and he had the right to refuse to testify at trial.  But where the accused has freely and voluntarily made statements prior to trial, he cannot later on choose to invoke his right against self-incrimination retroactively to shield those statements[1] from being introduced, provided he was informed about his right to remain silent before giving this statement; there is, however, a presumption that he knows about this right if he is assisted by counsel.  Nor does the Appellant point to any provision of the Rules or rules of customary international law that specifically imposes such a restriction on the admission of an accused’s prior statements.  The Appeals Chamber therefore concludes that no such rules exists.

16.     The Appellant’s second complaint, that the method of introducing the evidence (via tender from the bar table) breached the principle of orality, is misplaced.  There is to be sure, a general principle that witnesses before the Tribunal should give their evidence orally rather than have their statement entered into the record.  The principle has its origin in the Roman law requirement that parties before a tribunal make submissions orally rather than in writing, and exists in various forms in common and civil law traditions today.  The principle of orality and its complement, the principle of immediacy, act as analogues to common law hearsay rules and are meant to ensure the adversarial nature of criminal trials, and the right of the accused to confront witnesses against him.  

17.     However, the principle of orality, as reflected in the Rules, is not an absolute restriction, but instead simply constitutes a preference for the oral introduction of evidence.  Rule 89(F) states that a “Chamber may receive the evidence of a witness orally or, where the interests of justice allow, in written form.[2] The Tribunal’s jurisprudence recognises that the interests of justice may often allow for the admission of prior statements of the accused.  The principle of orality is weaker in application to the accused’s own statements than to the testimony of other witnesses.  As the Appeals Chamber explained in the Kvočka case, the rules of evidence applicable to witness testimony do not always apply to the statements of an accused: “[t]here is a fundamental difference between an accused, who might testify as a witness if he so chooses, and a witness”. [3]  The principle of orality is intended principally to ensure the accused’s right to confront the witnesses against him, and in this respect its logic is not applicable to the accused’s own statements.  Moreover, to the extent that the principle of orality ensures that in-court witness testimony (generally understood to be more reliable) is used instead of those witnesses’ out-of-court statements where possible, that logic is also less applicable to the accused’s statements, for the accused may, as the Appellant did, refuse to testify.

[1] Cf. Niyitegeka v Prosecutor, ICTR-96-14-A, Judgement, 9 July 2004, paras. 30-36.

[2] In addition Rules 92 bis specifically authorises and provides procedures for the admission of written witness statements under certain circumstances not applicable here (involving witness statements that go “to proof of a matter other than the acts and conducts of the accused as charged in the indictment”).

[3] Prosecutor v. Kvočka, Case No. IT-98-30/1-A, Judgement, 28 February 2005, paras. 122-126 (“Kvočka Appeals Judgement”).

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ICTY Rule Rule 42;
Rule 43
Notion(s) Filing Case
Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)

249. As to Ntahobali’s contention that Exhibit P113 lacked sufficient probative value to be admitted under Rule 89(C) of the Rules, the Appeals Chambers considers that the mere fact that a statement is made by a co-accused does not ipso facto render the document’s contents so unreliable that it could not be admitted under Rule 89(C) of the Rules.[1]

See also para. 260.

[1] See Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-AR73.1, Decision on Appeals against Decision Admitting Material Related to Borovčanin’s Questioning, 14 December 2007, para. 50 (“However, it would be wrong to exclude certain evidence solely because of the supposedly intrinsic lack of reliability of the content of a suspect’s questioning in relation to persons who later became that suspect’s co-accused.”).

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ICTR Rule Rule 89 ICTY Rule Rule 89