Statement of a witness who later becomes suspect / accused
|Appeal Judgement - 16.10.2007||
The Trial Chamber had denied admission of a statement given by Halilović to the Prosecution at a time when he was questioned only as a witness, which was not taped or video-recorded according to Rule 43. On appeal, both parties agreed that the procedure under Rules 42 and 43 had not been followed since the Prosecution did not consider Halilović a suspect at that time, although it did inform him of his rights to counsel and to remain silent.
36. The Trial Chamber found that:
in order to protect the right of the Accused to a fair trial, in accordance with Article 21 of the Statute, it should be taken into account whether the safeguards of Rules 42, 43 and 63 of the Rules have been fully respected when deciding on the admission of any former statement of an accused irrespective of the status of the accused at the time of taking the statement.
The Trial Chamber’s understanding of the protections afforded by the Statute and the Rules is consistent with the principles expressed in the case law of the International Tribunal and the ICTR as well as the law of other jurisdictions.
37. The Decision of 8 July 2005 dealt with the issue of whether the Statement had been taken in accordance with Rules 42, 43, 63, 89 and 95 of the Rules. The Trial Chamber reasoned that the main question at issue was “what safeguards should have been applied by the Prosecution in order for a former statement of a now accused person to be admissible into evidence”. The Trial Chamber concluded that:
[…] In the present case, Rule 43 [of the Rules] was not applied at the time of taking the Statement. Sefer Halilović has not chosen to waive his right to remain silent during trial. Thus, the Trial Chamber finds that the admission of the Statement would infringe upon the Accused’s right to a fair trial.
38. Whether the statement would also be inadmissible due to a retroactive reading of Rule 43 of the Rules was not a decisive consideration in the Trial Chamber’s reasoning. […]
 Decision of 8 July 2005 [Prosecutor v. Sefer Halilović, Case No. IT-01-48-T, Decision on Motion for Exclusion of Statement of Accused, 8 July 2005], para. 21.
 See, for example, Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Decision on Defendant’s Motion for Summonses and Protection of Witnesses called by the Defence, 17 February 1998; Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Decision on Zdravko Mucić’s Motion for the Exclusion of Evidence, 2 September 1997.
 The European Court of Human Rights (“ECtHR”) has dealt with this issue mostly in the context of punishment (in a broad sense) of accused persons relying on their right to remain silent. However, the Appeals Chamber finds the ECtHR case law to be informative of the principles that “[t]he right not to incriminate oneself is primarily concerned … with respecting the will of an accused person to remain silent” (Heaney and McGuinness v. Ireland, Reports of Judgments and Decisions 2000-XII, para. 40) and that the status of a person (not yet formally charged) is modified when that individual’s situation has been “substantially affected” therefore anticipating the right to remain silent, the right against self-incrimination and the related warnings (Id., 41-42, 45). See also Serves v. France, Reports 1997-VI, para. 42; Saunders v. the United Kingdom, Reports 1996-VI, para. 74; Shannon v. United Kingdom, no. 6563/03, judgement of 4 October 2005 (consulted in the Internet).
 Decision of 8 July 2005, paras 21 and 24.
 Decision of 8 July 2005, para. 19.
 Decision of 8 July 2005, para. 26.
 See, in this respect, Čelebići Appeal Judgement, para. 533 and Kvočka Appeal Judgement, para. 128.