"Decision on the Prosecutor's Request for Public Version of Trial Chamber's 'Decision on the Motion to admit Statement of Deceased Witnesses […]' of 22 January 2002 "

27 February 2002
Trial Chamber I, Section A (Judges Liu [Presiding], Harding Clark and Diarra)

Procedural Background

· On 22 January 2002, Trial Chamber I, Section A, rendered a confidential Decision in which it denied the Motion to Admit Statement of Deceased Witnesses.

· On 1 February 2002, the Prosecution filed a Request in which it applied for a public version of the above-mentioned Decision. It argued that the Decision is one of the few rulings - the most recent one in fact - on the admission of statements of deceased witnesses and indicated that other Prosecution teams would wish to cite the Decision but cannot provide it to Defence counsel.

· On 27 February 2002, the Trial Chamber granted the Motion and attached the public version of the Decision in which the names of the deceased witnesses are redacted.

The Reasoning

The Trial Chamber noted that following the Decision on Appeals Regarding Statement of a Deceased Witness rendered by the Appeals Chamber on 21 July 2000 in the case The Prosecutor v. Dario Kordic and Mario Cerkez1, Rule 92 bis(C) of the Rules2 was incorporated into the Rules and that Rule 92 bis(C) "constitutes, as far as the admission of statements of deceased witnesses is concerned, the lex specialis to the 'general provisions' of Rule 89(C) of the Rules"3.

The Trial Chamber found that the two witness statements had not been "taken in the form of Rule 92 bis(B) of the Rules"4.

It reiterated that Rule 92 bis(A)5 and (D)6 both contain the material restriction to "matters other than the acts and conduct of the accused" for the admission of evidence. In addition, the Trial Chamber considered that the fact that Rule 92 bis(D) contemplates the admission of transcripts of such evidence "given by a witness in proceedings before the Tribunal itself" necessarily implies that the witness had "even already been subject to cross-examination in a different proceeding". It held that "a teleological interpretation of Rule 92 bis requires Rule 92 bis(C) to be read in the light of the material restriction laid down in Rule 92 bis(A)"; provided that the requirements set out in Rule 92 bis(C)(i) and (ii) are met, Rule 92 bis(C) "only allows for the admission of a written transcript of a deceased witness if it 'goes to proof of a matter other than the acts and conduct of the accused as charged in the indictment'". The Trial Chamber found that such was not the case for the statements of both deceased witnesses which "do not meet the chapeau requirement of Rule 92 bis(A) of the Rules since they go directly to proof of the acts and conduct of the Accused as charged in the indictment". Therefore, it did "not admit the written evidence of these witnesses in lieu of oral testimony since it would be prejudicial to the rights of the Accused to cross-examine his accuser and, consequently, his right to a fair trial"7.

The Trial Chamber noted that the Prosecution had (1) not submitted any detailed information as to the concrete procedure applied when the statements of the two witnesses were taken and (2) not informed it when both witnesses died nor provided it with any formal confirmation of their death. As a result of these findings on the circumstances in which the statements had been made and recorded, the Trial Chamber was "not satisfied on a balance of probabilities" and could not conclude that there were "satisfactory indicia of their reliability, as defined by Rule 92 bis(C)(i) and (ii)".

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1. The Prosecutor v. Dario Kordic and Mario Cerkez ("Lasva River Valley"), Case No. IT-95-14/2-AR73.5, Appeals Chamber, Decision on Appeals Regarding Statement of a Deceased Witness, 21 July 2000 (summarised in Judicial Supplement No. 18).
2. "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."

3. "A Chamber may admit any relevant evidence which it deems to have probative value."
4. "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."
5. "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."

6. "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."
7. Article 21(2) of the Statute on the rights of the accused provides inter alia that "[i]n the determination of charges against him, the accused shall be entitled to a fair and public hearing".
Regarding the determination whether a witness should be required to appear for cross-examination pursuant to Rule 92 bis and the right of the accused to a fair trial, see The Prosecutor v. Dusko Sikirica et al. ("Keraterm Camp"), Case No. IT-95-8-PT, Trial Chamber III, Decision on Prosecution's Application to Admit Transcripts under Rule 92 bis, 23 May 2001 (summarised in Judicial Supplement No. 24).