46. Additionally, a document such as the December 2001 Transcript, after a suspect has become an accused, does not merely provide the judges in his case with a written summary of the answers of a person about whom they know nothing. In the normal course of events, during the proceedings those judges will hear evidence on the individual who was questioned and, by the end of the trial, they will therefore be able – and required – to put the questioning in context in order to assess it in light of the rest of the information received. This does not happen with witness statements, which are based on evidence proffered by an individual about whom the trier of fact knows little, even considering the possibility that he be called for cross-examination.

48. […] In the case at hand, however, the witness is theoretically able to attend – as shown by the fact that he can choose to testify – but is not required to do so in order to protect his own fundamental rights. In this sense, his rights are weighed ex ante against the other interests involved and actually form part of wider considerations falling within the “interests of justice”. […]

50. In construing the “spirit of the Statute and the general principles of law” pursuant to Rule 89(B), the Appeals Chamber will also note that, due to the nature of the issue at hand, domestic legal systems do not provide much guidance. In a very broad sense, in systems that allow an accused to testify in his own trial under a solemn declaration – and not merely expressing himself as an accused – a document such as the December 2001 Transcript would be inadmissible because it could not be tested by cross-examination.[1] On the contrary, those systems where declarations gathered in the pre-trial stages according to certain procedures may be admitted in writing at trial are also the ones that generally do not allow accused persons to testify as witnesses in their own trials – they may be questioned, not in a manner equivalent to an examination under a solemn declaration.[2] Thus, no discernible “general principle” may be inferred from domestic practice in this area.

19. Regarding the Appellant’s contention that special rules should apply when assessing an accused’s testimony, the Appeals Chamber recalls that the Tribunal’s Chambers are not bound by national rules of evidence or national case law.[1] While “[t]here is a fundamental difference between being an accused, who might testify as a witness if he so chooses, and a witness”,[2] this does not imply that the rules applied to assess the testimony of an accused are different from those applied with respect to the testimony of an “ordinary witness”. A trier of fact shall decide which witness’s testimony to prefer, without necessarily articulating every step of its reasoning in reaching this decision.[3] In so doing, as for any witness, a trier of fact is required to determine the overall credibility of an accused testifying at his own trial[4] and then assess the probative value of the accused’s evidence in the context of the totality of the evidence.[5] There is no requirement in the Tribunal’s jurisprudence that the accused’s credibility be assessed first and in isolation from the rest of the evidence in the case.

21. A review of the Trial Judgement reveals that the Trial Chamber did consider the Appellant’s testimony and made assessments of the probative value of that evidence.[6] It was not obliged to systematically justify why it rejected each part of that evidence. The Appellant’s claim that the Trial Chamber erred by failing to explain why it did not believe him is therefore dismissed.

At paras 17-20, the Appeals Chamber addressed the issue whether a Trial Chamber can decide when an accused can testify in his own trial. It concluded:

20. […] Trial Chambers have discretion pursuant to Rule 90(F) of the Rules to determine when an accused may testify in his own defence, but this power must nevertheless be exercised with caution, as it is, in principle, for both parties to structure their cases themselves, and to ensure that the rights of the accused are respected, in particular his or her right to a fair trial.