Statement of an accused (ICTY Rule 84bis)
| Notion(s) | Filing | Case |
|---|---|---|
| Decision on Accused's Statement - 20.04.2009 |
PRLIĆ et al. (IT-04-74-AR73.15) |
|
|
23. While the Appeals Chamber considers that a statement made pursuant to Rule 84 bis may touch upon any aspect of the case against the accused, including expert reports, the scope and length of such statements remain under the control of the Trial Chamber. |
ICTY Rule Rule 84 bis | |
| Notion(s) | Filing | Case |
| Decision on Accused's Statement - 20.04.2009 |
PRLIĆ et al. (IT-04-74-AR73.15) |
|
|
28. […] While statements made under Rule 84 bis are a type of evidence – the probative value of which is decided by the Trial Chamber[1]– the admission of such statements, or their scope, are subject to the authority and control of the Trial Chamber. 29. The Rules do not provide explicitly for a written supplement to an accused’s Rule 84 bis statement 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”.[2] As the Appeals Chamber has previously noted, “[t]his 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.”[3] Rule 84 bis is one such feature.[4] […] [1] See, e.g., Prosecutor v. Milan Martić, Case No. IT-95-11-T, Judgement, 12 June 2007, para. 23, in which the Trial Chamber considered whether the accused’s Rule 84 bis statement had any probative value, and concluded that it did not. [2] Rule 89(B). [3] Prosecution v. Jadranko Prlić et al., Case No. IT-04-74-AR73.6, Decision on Appeals Against Decision Admitting Transcript of Jadranko Prlić’s Questioning into Evidence, 23 November 2007, para. 40. [4] See Giuliano Turone, The Denial of the Accused’s Right to Make Unsworn Statements in Delalić, 2 J. Int’l Crim. J. (2004) 455-458. The Appeals Chamber, notes, however, that the possibility of an accused to make an unsworn statement is not purely a creature of the civil law, and in fact was part of the common law system in many countries, although the tendency has been to abolish the rule. The US Army Manual for Courts Martial (2008), R.C.M. 1001(c)(2)(C) provides for the possibility of an accused to make an unsworn statement, either orally or in writing, though the statement is not considered as evidence and an accused making an unsworn statement is not a “witness”. See Trial of Albert Bury and Wilhelm Hafner, United States Military Commission, Freising, Germany, 15 July 1945, Law Reports of Trials of War Criminals, The United Nations War Crimes Commission, Vol. III, London, HMSO, 1948, p. 63. |
ICTY Rule Rule 84 bis | |
| Notion(s) | Filing | Case |
| Decision on Accused's Statement - 20.04.2009 |
PRLIĆ et al. (IT-04-74-AR73.15) |
|
|
15. With respect to the timing of giving such statements, the Appeals Chamber is persuaded that the placement of this Rule as part of Rule 84 pertaining to opening statements, together with the clear wording of the Rule itself that such statements be made “[a]fter the opening statements of the parties or, if the defence elects to defer its opening statement pursuant to Rule 84, after the opening statement of the Prosecutor” indicate that statements under this Rule should take place prior to the presentation of evidence by the Prosecution. This conclusion is also supported by the original purpose of the Rule – to “improve case management” by narrowing issues in dispute at the outset at trial[1] – which suggests that such statements should take place prior to the presentation of the prosecution case. 16. In practice, however, while most statements made pursuant to Rule 84 bis of the Rules have taken place at the end of opening statements of the parties,[2] Trial Chambers have on occasion allowed accused persons to make such statements at later stages of the trial proceedings.[3] The Trial Chamber in this case has also indicated that it would allow an accused person to make more than one Rule 84 bis statement.[4] In general, Trial Chambers enjoy a wide margin of discretion in determining matters relating to the admissibility of certain types of evidence at trial, as well as in defining the modalities of the exercise of the rights of the Defence.[5] Recognising that there may be situations in which it may be appropriate to allow a Rule 84 bis statement after the presentation of the Prosecution case, the Appeals Chamber considers that Trial Chambers retain the discretion to allow an accused to make Rule 84 bis statements in later stages of the trial in the interests of justice. [1] Report of the Expert Group to Conduct a Review of the Effective Operation and Functioning of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, UN Doc. A/54/634, para. 87. [2] In Prosecutor v. Slobodan Milosević, Case No. IT-01-54, the accused made a three day Rule 84 bis statement at the end of the Prosecution’s opening statement (T. 225-509). In Prosecutor v. Baton Haxhiu, Case No. IT-04-84-R77.5, the accused made a short unsworn statement after the opening statements of the parties (T. 20). In Prosecutor v. Milan Martić, Case No. IT-95-11, the accused made a 45 minute Rule 84 bis statement after the opening statements of the parties (T. 295-319). In Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, the accused made a four hour statement under Rule 84 bis after the opening statement of the Prosecution (T. 1855). In Prosecutor v. Mile Mrkšić et al., the accused [ljivančanin made a Rule 84 bis statement of about 20 minutes and the accused Radić made a Rule 84 bis statement of two or three minutes after the opening statements of the parties (T. 520-530). In Prosecutor v. Momčilo Perišić, Case No. IT-04-81, the accused made a 45 minute Rule 84 bis statement at the conclusion of the Prosecution’s opening statement (T. 424-432). In Prosecutor v. Vlastimir Ðorđevic, Case No. IT-05-87/1, the accused made a 25 minute Rule 84 bis statement after the opening statement of the Prosecution (T. 227-242). [3] See, e.g, Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1, T. 9449-9473 (the accused Žigić gave a 45 minute Rule 84 bis statement at the beginning of his defence case, on 26 March 2001); Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39, T. 27500-27534 (the accused made a 45 minute Rule 84 bis statement at the end of the trial proceedings, on 31 August 2006); Stanišić and Simatović Decision of 9 April 2008, para. 14 (noting that if the accused Stanišić was too ill to attend court, he could make a statement pursuant to Rule 84 bis of the Rules at a later stage of the trial); Prosecutor v. Milomir Stakić, Case No. IT-97-24-PT, Order for Filing of Motions and Related Matters, 7 March 2003, p. 3 and Prosecutor v. Mile Mrkšić et al., Case No. IT-95-13/1-PT, Order for Filing of Motions and Related Matters, 28 November 2003, p. 3 (both finding that Rule 84 bis applies throughout the proceedings in accordance with the accused’s right to be heard in person by the Trial Chamber, and that “this right is granted from the outset whenever a witness has finalized his or her testimony and at the end of a party’s presentation of a case, notwithstanding further rights of the accused, as laid down in the Statute and Rules, and notwithstanding other directives of the Trial Chamber if the interests of justice so demand”); Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, Decision on Vidoje Blagojević’s Oral Request, 30 July 2004, p. 7, quoting Motion Hearing, 17 June 2004, T. 10922-25 (finding that although “an unsworn statement is generally made after the opening statement of the parties, the Trial Chamber does not find any reason to deny you the opportunity to make an unsworn statement at a later time”). [4] During the Rule 98 bis ruling on 28 January 2008 in this case, the Trial Chamber stated that although the accused Praljak had already made a Rule 84 bis statement before the beginning of the Prosecution case on 27 April 2006, it would be ready to authorize him to take the floor once more to make a statement at the time when the Defence is presenting its case (T. 26873). [5] 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. 6; Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.2, Decision on Joint Defence Interlocutory Appeal against the Trial Chamber’s Oral Decision of 8 May 2006 Relating to Cross-Examination By Defence and on Association of Defence Counsel’s Request for Leave to File an Amicus Curiae Brief, 4 July 2006, p. 3; Prosecutor v. Zdravko Tolimir et al., Case No. IT-04-80-AR73.1, Decision on Radivoje Miletić’s Interlocutory Appeal Against the Trial Chamber’s Decision on Joinder of Accused, 27 January 2006, para. 4; Prosecutor v. Milošević, Case Nos.: IT-99-37-AR73, IT-01-50-AR73, IT-01-51-AR73, Reasons for Decision on Prosecution Interlocutory Appeal from Refusal to Order Joinder, 18 April 2002, para. 3. |
ICTY Rule Rule 84 bis | |
| Notion(s) | Filing | Case |
| Decision on Accused's Statement - 20.04.2009 |
PRLIĆ et al. (IT-04-74-AR73.15) |
|
|
14. In regard to Prlić’s contention that such statements may be given in writing, the Appeals Chamber notes that while the plain wording of Rule 84 bis suggests that such statements would ordinarily be made orally in court,[1] the Rule does not prohibit such statements being given by an accused in written form. In principle, therefore, a statement made under Rule 84 bis might be given in written form, although its admission would remain subject to the authorisation of the Trial Chamber, and under its control.[2] [1] See also Salvatore Zappalà, Human Rights in International Criminal Proceedings (Oxford: OUP, 2005), p. 142: “[…] it is doubtful whether the [Rule 84 bis] statement can be written”. [2] The Appeals Chamber notes that this is the first time that an accused before the Tribunal has submitted a written document pursuant to Rule 84 bis of the Rules. The Appeals Chamber is also conscious of Article 67(1)(h) of the Rome Statute of the International Criminal Court, which explicitly provides for a right of an accused to make an unsworn oral or written statement in his or her defence. |
ICTY Rule Rule 84 bis | |