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.[1]

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[2] as well as the law of other jurisdictions.[3]

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.[4] 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”.[5] 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.[6]

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.[7] […]