"Decision on Prosecution's Application to Admit Transcripts under Rule 92 bis"

23 May 2001
Trial Chamber III (Judges Robinson [Presiding], May and Fassi Fihri)

Procedural Background

• On 2 May 2001, the Trial Chamber rendered its oral Decision1 on a Motion of the Prosecution seeking admission of the transcript testimony of certain witnesses pursuant to Rule 92 bis of the Rules of Procedure2.

• The Trial Chamber pointed out that "Rule 92 bis (D) is designed to allow the admission of evidence given by a witness in proceedings before another Chamber, without requiring that witness to give evidence again." It added that "[t]his provision permits the admission of transcripts where the evidence goes to proof of matters other than the acts and conduct of the accused."

• The Trial Chamber emphasised that "Rule 92 bis does not supplant or modify the general requirements for the admissibility of evidence set out in sub-Rules 89(C) and (D) of the Rules3, namely that a Chamber 'may admit any relevant evidence which it deems to have probative value' and may exclude evidence 'if its probative value is substantially outweighed by the need to ensure a fair trial'." The Trial Chamber stressed that "[t]hese requirements must be met in any case."

• It further held that "[t]he principal criterion for determining whether, pursuant to Rule 92 bis (E), a witness should be required to appear for cross-examination is the overriding obligation of a Chamber to ensure a fair trial" under Articles 204 and 215 of the Statute. Lastly, the Trial Chamber found that "among the matters for consideration are whether the transcript goes to proof of a critical element of the Prosecution's case against the accused and whether the cross-examination of the witness in the other proceedings dealt adequately with the issues relevant to the defence in current proceedings."

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1. See Weekly Update No. 171.
2. (A) A Trial Chamber may admit, in whole or in part, the evidence of a witness in the form of a written statement in lieu of oral testimony which goes to proof of a matter other than the acts and conduct of the accused as charged in the indictment.

(i) Factors in favour of admitting evidence in the form of a written statement include but are not limited to circumstances in which the evidence in question:

(a) is of a cumulative nature, in that other witnesses will give or have given oral testimony of similar facts;
(b) relates to relevant historical, political or military background;
(c) consists of a general or statistical analysis of the ethnic composition of the population in the places to which the indictment relates;
(d) concerns the impact of crimes upon victims;
(e) relates to issues of the character of the accused; or
(f) relates to factors to be taken into account in determining sentence.

(ii) Factors against admitting evidence in the form of a written statement include whether:

(a) there is an overriding public interest in the evidence in question being presented orally;
(b) a party objecting can demonstrate that its nature and source renders it unreliable, or that its prejudicial effect outweighs its probative value; or
(c) there are any other factors which make it appropriate for the witness to attend for cross-examination.

(B) A written statement under this Rule shall be admissible if it attaches a declaration by the person making the written statement that the contents of the statement are true and correct to the best of that person's knowledge and belief and

(i) the declaration is witnessed by:

(a) a person authorised to witness such a declaration in accordance with the law and procedure of a State; or
(b) a Presiding Officer appointed by the Registrar of the Tribunal for that purpose; and

(ii) the person witnessing the declaration verifies in writing:

(a) that the person making the statement is the person identified in the said statement;
(b) that the person making the statement stated that the contents of the written statement are, to the best of that person's knowledge and belief, true and correct;
(c) that the person making the statement was informed that if the content of the written statement is not true then he or she may be subject to proceedings for giving false testimony; and (d) the date and place of the declaration. The declaration shall be attached to the written statement presented to the Trial Chamber.

(C) A written statement not in the form prescribed by paragraph (B) may nevertheless be admissible if 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, if the Trial Chamber:

(i) is so satisfied on a balance of probabilities; and
(ii) finds from the circumstances in which the statement was made and recorded that there are satisfactory indicia of its reliability.

(D) A Chamber may admit a transcript of evidence given by a witness in proceedings before the Tribunal which goes to proof of a matter other than the acts and conduct of the accused.

(E) Subject to Rule 127 or any order to the contrary, a party seeking to adduce a written statement or transcript shall give fourteen days notice to the opposing party, who may within seven days object. The Trial Chamber shall decide, after hearing the parties, whether to admit the statement or transcript in whole or in part and whether to require the witness to appear for cross-examination."

Rule 92 bis was adopted at the 23d Plenary Session held on 12 January 2001 (IT/183) to replace Rule 94 ter which was deleted. On the purpose behind Rule 94 ter, see The Prosecutor v. Dario Kordic & Mario Cerkez (“Lasva River Valley”), Case No. IT-95-14/2-AR73.6, Appeals Chamber, Decision on Appeal Regarding the Admission into Evidence of Seven Affidavits and one Formal Statement, 18 September 2000 (summarised and analysed in Judicial Supplement No. 18). See also The Prosecutor v. Mladen Naletilic and Vinko Martinovic (“Tuta & Stela”), Case No. IT-98-34-PT, Trial Chamber I, Decision on Prosecution Amended Motion for Approval of Rule 94 ter Procedure (Formal Statements), 10 November 2000 (summarised and analysed in Judicial Supplement No. 20).
3. On the admissibility and reliability of a witness's evidence and on the distinction between the two notions, see The Prosecutor v. Dario Kordic and Mario Cerkez ("Lasva River Valley"), Case No. IT-95-14/2-AR73.5, Appeals Chamber, Decision on Appeal Regarding Statement of a Deceased Witness, 21 July 2000 (summarised and analysed in Judicial Supplement No. 18).
4. "1. The Trial Chambers shall ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with the rules of procedure and evidence, with full respect for the rights of the accused and due regard for the protection of victims and witnesses.
2. A person against whom an indictment has been confirmed shall, pursuant to an order or an arrest warrant of the International Tribunal, be taken into custody, immediately informed of the charges against him and transferred to the International Tribunal.
3. The Trial Chamber shall read the indictment, satisfy itself that the rights of the accused are respected, confirm that the accused understands the indictment, and instruct the accused to enter a plea. The Trial Chamber shall then set the date for trial.
4. The hearings shall be public unless the Trial Chamber decides to close the proceedings in accordance with its rules of procedure and evidence."
5. "1. All persons shall be equal before the International Tribunal.
2. In the determination of charges against him, the accused shall be entitled to a fair and public hearing, subject to article 22 of the Statute.
3. The accused shall be presumed innocent until proved guilty according to the provisions of the present Statute.
4. In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality:

(a) to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;
(b) to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;
(c) to be tried without undue delay;
(d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;
(e) to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (f) to have the free assistance of an interpreter if he cannot understand or speak the language used in the International Tribunal;
(g) not to be compelled to testify against himself or to confess guilt."