Testimony given through an interpreter
|Decision on Substitute Judge and New Material - 22.10.2004||
KAREMERA et al.
59. The Appeals Chamber also finds that in reaching the Impugned Decision the remaining Judges took into account an immaterial consideration, namely, the fact that the testimonies were given in a language not understood by the Bench […]
60. The Tribunal has repeatedly emphasized the importance of observing the demeanour of witnesses and, indeed, it is this first-hand observation which is the basis for the Appeals Chamber’s deference to the factual findings of Trial Chambers. The Appeals Chamber considers that the importance of evaluation of the demeanour of witnesses by the triers of fact cannot be discounted on the ground that the witnesses may speak through an interpreter. Even when this is the case, the Judges observing the witness testify have an opportunity to see his or her demeanour, assess it, and weigh the evidence accordingly.
 For example in Rutaganda, the Appeals Chamber stated the following: “It is an established principle that a high degree of deference must be shown to the factual findings of a Trial Chamber, and the Appeals Chamber has regularly recalled that it will not lightly disturb findings of fact by a Trial Chamber. Such deference is based essentially on the fact that the Trial Chamber has the advantage of observing witnesses in person and hearing them when they are testifying, and so are better placed to choose between divergent accounts of one and the same event. Trial Judges are better placed than the Appeals Chamber to assess witness reliability and credibility, and to determine the probative value to ascribe to the evidence presented at trial.” Rutaganda v. Prosecutor, Case No. ICTR-96-3-A, Judgement, 26 May 2003, para. 21 (citations omitted, emphasis added). The Appeals Chamber also observed that in reviewing the factual findings of Trial Chambers it only has at its disposal transcripts of the testimonies. Id. n. 36.
|Appeal Judgement - 14.12.2015||
NYIRAMASUHUKO et al. (Butare)
140. Turning to Nyiramasuhuko’s contention that Judge Bossa could not assess the demeanour of witnesses based on the audio-recordings, the Appeals Chamber is of the view that the importance of observing first-hand the demeanour of witnesses in court cannot be discounted on the ground that audio-recordings exist. Although the preference for live testimony to be heard by each judge does not represent an “unbending requirement”, the Appeals Chamber is not convinced that audio‑recordings alone allow a substitute judge to thoroughly assess all aspects of the witness’s demeanour in court, in particular when the judge is not proficient in the language spoken by the witness.
148. The Appeals Chamber is of the view that transcripts or audio recordings of a witness’s testimony in court do not necessarily always allow a judge to assess thoroughly the witness’s possible aggressiveness, reluctance to answer questions, lack of emotion, silences, and arrogance. […]
164. The Appeals Chamber reiterates that, while there is a clear preference for live testimony to be heard by each and every judge, this preference does not represent an unbending requirement. […]
 The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR15bis.3, Decision on Appeals pursuant to Rule 15bis(D), 20 April 2007 (“Karemera et al. 20 April 2007 Appeal Decision”), para. 42, quoting Appeal Decision on Continuation of Trial [The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A15bis, Decision in the Matter of Proceedings under Rule 15bis(D), 24 September 2003], para. 25. See also Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-AR15bis, Decision on Appeal Against Decision on Continuation of Proceedings, 6 June 2014, para. 37; Appeal Decision on Continuation of Trial, para. 33 (“But [the substitute judge] may feel that, even in the absence of video‑recordings, the record of proceedings is enough to enable him to appreciate what has happened. Failure to review video-recordings which, because they are non-existent, do not form part of the record of the proceedings, does not mean that the judge has not familiarized himself with the record of the proceedings as the record stands and therefore does not disqualify him from joining the bench. He may decide to join the bench with any questions of demeanour being left to be resolved”.).
 The Appeals Chamber notes that the Oxford Dictionary defines “demeanour” as the “manner of comporting oneself outwardly or towards others”.
 See supra, para. 140.