The Appeals Chamber found that a statement admitted pursuant to Rule 92 bis may only be used as the sole basis for a conviction when the accused was provided a chance to cross-examine the witness in question.

FN486. [… The] Trial Chamber admitted this witness statement under Rule 92 bis of the Rules, without providing Martić the opportunity to cross-examine the witness in question.[1] As noted above, much of the findings in relation to the crimes in Cerovljani […] depend exclusively on this statement, with no corroboration. Thus, this evidence is pivotal to Martić’s responsibility and, lacking sufficient corroboration, Martić should have been granted the opportunity to cross-examine the witness in question.[2] The Appeals Chamber finds that the failure to accord Martić a right to cross-examine this witness constitutes a miscarriage of justice and accordingly his convictions for the crimes in Cerovljani would have been reversible on this ground, too.

10. [...] Rule 92bis(A) excludes any written statement which goes to proof of any act or conduct of the accused upon which the prosecution relies to establish –

(a)      that the accused committed (that is, that he personally physically perpetrated) any of the crimes charged himself,^[…] or

(b)      that he planned, instigated or ordered the crimes charged, or

(c)      that he otherwise aided and abetted those who actually did commit the crimes in their planning, preparation or execution of those crimes, or

(d)      that he was a superior to those who actually did commit the crimes, or

(e)      that he knew or had reason to know that those crimes were about to be or had been committed by his subordinates, or

(f)       that he failed to take reasonable steps to prevent such acts or to punish those who carried out those acts.

Where the prosecution case is that the accused participated in a joint criminal enterprise, and is therefore liable for the acts of others in that joint criminal enterprise,[1] Rule 92bis(A) excludes also any written statement which goes to proof of any act or conduct of the accused upon which the prosecution relies to establish –

(g)      that he had participated in that joint criminal enterprise, or

(h)      that he shared with the person who actually did commit the crimes charged the requisite intent for those crimes.[2]

Those are the “acts and conduct of the accused as charged in the indictment”, not the acts and conduct of others for which the accused is charged in the indictment with responsibility.[3]

11. The “conduct” of an accused person necessarily includes his relevant state of mind, so that a written statement which goes to proof of any act or conduct of the accused upon which the prosecution relies to establish that state of mind is not admissible under Rule 92bis.  In order to establish that state of mind, however, the prosecution may rely upon the acts and conduct of others which have been proved by Rule 92bis statements.  An easy example would be proof, in relation to Article 5 of the Tribunal’s Statute, of the knowledge by the accused that his acts fitted into a pattern of widespread or systematic attacks directed against a civilian population.[4]  Such knowledge may be inferred from evidence of such a pattern of attacks (proved by Rule 92bis statements) that he must have known that his own acts (proved by oral evidence) fitted into that pattern.  The “conduct” of an accused person may also in the appropriate case include his omission to act.

12. [...] Far from being an “exception” to Rule 89, […] Rule 92bis identifies a particular situation in which, once the provisions of Rule 92bis are satisfied, and where the material has probative value within the meaning of Rule 89(C), it is in principle in the interests of justice within the meaning of Rule 89(F) to admit the evidence in written form.[5] […]

13. The fact that the written statement goes to proof of the acts and conduct of a subordinate of the accused or of some other person for whose acts and conduct the accused is charged with responsibility does, however, remain relevant to the Trial Chamber’s decision under Rule 92bis. That is because such a decision also involves a further determination as to whether the maker of the statement should appear for cross-examination.[6] [...] 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.[7]  An easy example of where the exercise of that discretion would lead to the rejection of a written statement would be where the acts and conduct of a person other than the accused described in the written statement occurred in the presence of the accused.

See also paras 14-16.

[...]

19. […] [I]t would be preferable that a Trial Chamber should […] always give consideration to the exercise of the discretion given by Rule 92bis whenever the prosecution seeks to use that Rule in the special and sensitive situation posed by a charge of command responsibility under Article 7.3 where the evidence goes to proof of the acts and conduct of the accused’s immediately proximate subordinates.

[...]

28. Rules 92bis(A) and Rule 92bis(C) are directed to written statements prepared for the purposes of legal proceedings. […] Rule 92bis(D), permitting the transcript of a witness’s evidence in proceedings before the Tribunal to be admitted as evidence, is similarly directed to material produced for the purposes of legal proceedings.  Rule 92bis as a whole, therefore, is concerned with hearsay evidence such as would previously have been admissible under Rule 89(C).  But it is hearsay material of a very special type, with very serious issues raised as to its reliability.

[...]

31. A party cannot be permitted to tender a written statement given by a prospective witness to an investigator of the OTP under Rule 89(C) in order to avoid the stringency of Rule 92bis.  The purpose of Rule 92bis is to restrict the admissibility of this very special type of hearsay to that which falls within its terms. By analogy, Rule 92bis is the lex specialis which takes the admissibility of written statements of prospective witnesses and transcripts of evidence out of the scope of the lex generalis of Rule 89(C), although the general propositions which are implicit in Rule 89(C) – that evidence is admissible only if it is relevant and that it is relevant only if it has probative value – remain applicable to Rule 92bis.  But Rule 92bis has no effect upon hearsay material which was not prepared for the purposes of legal proceedings. [...]

[...]

33. [...] What Rule 92bis(C)(i) requires is that the Trial Chamber be satisfied on a balance of probabilities that the written statement was “made by a person who has subsequently died, or by a person who can no longer with reasonable diligence be traced, or by a person who is by reason of bodily or mental condition unable to testify orally”. That is made clear by the use of the words “if the Trial Chamber […] is so satisfied” immediately following those words.[8]  The requirements of Rule 92bis(C)(i) have nothing to do with the “probability” or any other characteristic of the statement itself. The assessment of the reliability of that statement is the subject of Rule 92bis(C)(ii).

[...]

46. It must be emphasised that Rule 92bis(C) makes specific provision for the admission of part only of a written statement of a witness,[9] and that it is for the Trial Chamber to decide, after hearing the parties, whether to admit the statement in whole or in part.[10] […] [I]t is not [the Prosecution’s] “prerogative” to determine how much of the statement is to be admitted.  Where that part of the written statement not tendered by the prosecution modifies or qualifies what is stated in the part tendered, or where it contains material relevant to the maker’s credit, the absence of any opportunity to cross-examine the witness (which must be the case where Rule 92bis(C) is concerned) would usually necessitate the admission of those parts of the statement as well.  There is no foundation for the appellant’s argument that, if the statement includes material which is irrelevant, the whole of the statement must be rejected.^[…]

[RULE 92bis OF THE ICTY’S RULES OF PROCEDURE AND EVIDENCE WAS AMENDED ON 13 SEPTEMBER 2006.]