Trial Chambers
The Prosecutor v. Blagoje Simic et al. - Case No. IT-95-9-AR73.6 & AR73 .7

“Decision on Prosecution Interlocutory Appeals on the Use of Statements not Admitted into Evidence Pursuant to Rule 92 bis as a Basis to Challenge Credibility and to Refresh Memory”

23 May 2003
Appeals Chamber (Judges Meron [Presiding], Pocar, Schomburg, Shahabuddeen and Güney)

Cross-examination of a witness on a part of his statement given but not admitted under Rule 92 bis.

Cross-examination of a witness on a part of his statement given but not admitted under Rule 92 bis: the purpose of Rule 92 bis of the Rules is to determine whether a particular statement meets the requirements for admission into evidence (with or without cross-examination) as an alternative or complement to viva voce evidence and not to limit the scope of cross-examination or to regulate the types of statements or documents which may be referred to in cross-examination. Rule 92 bis does not bar the use in cross-examination of portions of statements not admitted into evidence under this Rule.

Procedural Background

The present Decision of the Appeals Chamber is concerned with two appeals closely related in terms of the procedural background and legal issues involved. It is therefore a joint decision in relation to both appeals. The issue is whether a portion of a Rule 92 bis1 written statement not admitted into evidence can be used to cross-examine the witness who made the statement. The First Appeal2 was filed by the Prosecution with regard to Trial Chamber II’s oral decision of 2 April 2003 and written decision of 28 April 2003.3 The Second Appeal4 was filed by the Prosecution with regard to Trial Chamber II’s oral decision of 15 April 2003 and written decision of 2 May 2003.5

The Decision

The Appeals Chamber granted both appeals and quashed the appealed decisions.

The Reasoning

The Appeals Chamber referred to its previous decision in the Milosevic case6 whereby it held that:

“To avoid any misunderstanding, however, it is perhaps necessary to add that there is nothing in the Galic Decision which prevents a written statement given by prospective witnesses to OTP investigators or others for the purposes of legal proceedings being received in evidence notwithstanding its non-compliance with Rule  92bis – (i) where there has been no objection taken to it, or (ii) where it has otherwise become admissible – where, for example, the written statement is asserted to contain a prior statement inconsistent with the witness’s evidence”.7

According to the Appeals Chamber, it is clear from the wording of this Decision that “Rule 92 bis does not bar the use of such statements in cross-examination”.8 It held that “[t]he purpose of Rule 92 bis of the Rules is to determine whether a particular statement meets the requirements for admission into evidence (with or without cross-examination) as an alternative or complement to viva voce evidence and not to limit the scope of cross-examination, or to regulate the types of statements or documents which may be referred to in cross-examination”.9

The Appeals Chamber therefore found that the Trial Chamber erred in law by holding that a party cannot cross-examine a witness on the basis of his prior statement given but not admitted pursuant to Rule 92 bis. It held that “the Trial Chamber should in a manner it finds appropriate give the Prosecution, should it so request, an opportunity to complete the cross-examination of these two witnesses”.10

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1. Rule 92 bis is entitled “Proof of Facts other than by Oral Evidence” and concerns evidence of a witness which may be admitted by the Trial Chamber in a written form in lieu of orally. For the latest developments as regards Rule 92 bis see Milosevic, IT-02-54-AR73.2, Decision on Admissibility of Prosecution’s Investigator Evidence (“Milosevic Decision”), 30 September 2002, Judicial Supplement No. 37.
2. Prosecution’s Interlocutory Appeal Against the Trial Chamber’s 28 April 2003 “Decision on Prosecutor’s Motion for Trial Chambers Redetermination of its Decision of 2 April 2003 Relating to Cross-examination of Defence Rule 92bis Witnesses or Alternatively Certification Under Rule 73(B) of the Rules of Procedure and Evidence”, filed 5 May 2003.
3. Decision on Prosecutor’s Motion for Trial Chambers Redetermination of its Decision of 2 April 2003 Relating to Cross-examination of Defence Rule 92bis Witnesses or Alternatively Certification Under Rule 73(B) of the Rules of Procedure and Evidence (“First Decision”), 28 April 2003. The Trial Chamber held that a statement which has not been admitted under Rule 92 bis could “not be treated as a prior representation for cross-examination purposes as they exist only for the purpose of the Rule 92 bis procedure and do not stand alone”.
4. Prosecution’s Interlocutory Appeal Against the Trial Chamber’s 2 May 2003 “Decision on Prosecutor’s Motion for Redetermination of Decision of 15 April 2003 Preventing Witnesses from Refreshing Memory From a Statement Declared Pursuant to Rule 92bis of the Rules of Procedure and Evidence, or Alternatively Certification Under Rule 73(B) and a Variation of Time for Filing of Rule 73(B) Motion Pursuant to Rule 127”, 9 May 2003.
5. Decision on Prosecutor’s Motion for Redetermination of Decision of 15 April 2003 Preventing Witnesses From Refreshing Memory from a Statement Declared Pursuant to Rule 92bis(B) of the Rules of Procedure and Evidence, or Alternatively Certification Under Rule 73(B) And Variation of Time for Filing of Rule 73(B) Motion Pursuant to Rule 127 (“Second Decision”), 2 May 2003. The Trial Chamber held that “the reasoning and finding of the Trial Chamber [in the First Decision] which prevent the Prosecution from referring a witness portion that has been struck out by the Trial Chamber of a statement prepared pursuant to Rule 92 bis of the Rules, applies to [the present Motion]”.
6. See supra note 1.
7. Milosevic Decision, pages 10-11.
8. Para. 15.
9. Ibid.
10. Para. 21.