102.     The Appeals Chamber recalls that, pursuant to Rule 92bis(A) of the ICTR Rules, a trial chamber “may admit […] the evidence of a witness in the form of a written statement in lieu of written testimony which goes to proof of a matter other than the acts and conduct of the accused as charged in the indictment.” Pursuant to Rule 92bis(A)(ii) of the ICTR Rules, factors against admitting evidence in the form of a written statement include, inter alia, whether “there is an overriding public interest in the evidence in question being presented orally”. The ICTY Appeals Chamber has also held that:

Where the evidence is so pivotal to the prosecution case, and where the person whose acts and conduct the written statement describes is so proximate to the accused, the Trial Chamber may decide that it would not be fair to the accused to permit the evidence to be given in written form.[1] 

103.     The Appeals Chamber observes that the statements of Witnesses DWAN-48 and DWAN-78 relate to the acts of Witness ANAN as opposed to those of Ngirabatware.[2] The Appeals Chamber finds therefore that the Trial Chamber’s interpretation of matters going to proof of “the acts and conduct of the accused” is inconsistent with the clear distinction in the jurisprudence between the acts and conduct of the accused, as charged in the indictment, and the acts and conduct of others.[3] It is only the former that is excluded from the procedure laid down in Rule 92bis of the ICTR Rules which provides that only matters other than the acts and conduct of the accused can be admitted in written form. [4]

104. In any event, the Trial Chamber’s additional reason for denying admission of the proposed evidence in written form is compatible with Rule 92bis(A)(ii) of the ICTR Rules. The Appeals Chamber is satisfied that the Trial Chamber acted within its discretion in determining that there was an overriding public interest for such serious allegations, imputing to Witness ANAN conduct potentially undermining the integrity of the proceedings as a whole, to be presented orally. Ngirabatware has failed to demonstrate that he made any effort to call these witnesses to testify or that he had good reason for not doing so. Moreover, rather than articulating an error in the Trial Chamber’s reasoning, Ngirabatware merely focuses on the purported importance of the proposed evidence. Such arguments are clearly insufficient to discharge his burden on appeal. Ngirabatware’s submissions in this regard are therefore dismissed.

449. The Appeals Chamber recalls that under Article 21(4)(e) of the ICTY Statute an accused has the right to examine, or have examined, the witnesses against him. In relation to challenges to a trial chamber’s reliance on evidence admitted pursuant to Rule 92 bis of the ICTY Rules when the defendants did not have an opportunity to cross-examine the witness, the Appeals Chamber of the ICTY stated:

[A] conviction may not rest solely, or in a decisive manner, on the evidence of a witness whom the accused has had no opportunity to examine or to have examined either during the investigation or at trial. This principle applies “to any fact which is indispensable for a conviction”, meaning “the findings that a trier of fact has to reach beyond reasonable doubt”. It is considered to “run counter to the principles of fairness […] to allow a conviction based on evidence of this kind without sufficient corroboration”.[1]

The Appeals Chamber adopts this statement of the law.

[…]

458. […] The Appeals Chamber recalls that the principle that no conviction can rest solely or decisively on untested evidence without sufficient corroboration stems from the fundamental right of the accused to examine, or have examined, the witnesses against him, which is enshrined in Article 21(4)(e) of the ICTY Statute.[2] As Karadžić alleges a violation of his fair trial rights, he must demonstrate that such a violation occurred and show that it caused prejudice amounting to an error of law invalidating the trial judgement.[3]

See also paras. 460 to 473.

474. […] [T]he Appeals Chamber finds, Judges Joensen and de Prada dissenting, that Karadžić has established that the Trial Chamber violated his fundamental right to examine, or have examined, the witnesses against him under Article 21(4)(e) of the ICTY Statute by convicting him after having impermissibly relied solely or decisively on untested evidence in reaching findings in relation to Scheduled Incidents C.27.5, B.20.4, and E.11.1 as well as Scheduled Incident B.13.1 with respect to the killing of one detainee in Kula prison and Scheduled Incident C.22.5 in relation to the mistreatment of two Muslim men at the Magarice military facility. The Appeals Chamber finds that such violations prevented Karadžić from testing evidence related to these specific events which the Trial Chamber relied upon in convicting him. This has resulted in material prejudice invalidating the judgement to the extent that his convictions are based upon these findings. The Appeals Chamber, Judges Joensen and de Prada dissenting, considers that the only appropriate remedy is to set aside, in part, Karadžić’s convictions to the extent they rely on these findings. The impact, if any, such errors may have had on Karadžić’s sentence will be evaluated below.

See also paras. 475, 776, 777.