PARTIAL DISSENTING OPINION OF JUDGE SHAHABUDDEEN
- As observed in paragraph 20 of the Appeals Chamber’s decision, “[n]o question
arises in this appeal as to the admissibility, in principle, of what has been
called summarising evidence – the summarising of material which is relevant
to the issues of the case. It has been admitted on many occasions in appropriate
cases.” The statement goes on to say, “Whether it is appropriate in the particular
case for the evidence to be admitted will depend on the circumstances of the
case”. So the principle of admitting summarising evidence is accepted, and
there have been many cases in which such evidence has been admitted; the narrow
question is whether it is appropriate to admit it in this particular case.
- In answering that question, it is helpful to notice the circumstances of
the Tribunal. They involve the management of cases which sprawl over time
and space and stretch over the testimony of hundreds of witnesses. That difficulty
has long troubled international tribunals. It was a problem at Nuremberg.
It is believed that, though in practice free of the difficulty, at one stage
within the recent past the International Court of Justice was faced with the
perplexing prospect. And of course the problem is well known to this Tribunal:
if allowed to run in the ordinary way, some trials at first instance could
extend to five years and beyond .
- In the circumstances, the Tribunal has had to take power to determine the
time available to a party for presenting evidence,1
it being understood that the power has to be exercised subject to the superior
requirement that the trial has to be fair to both sides,2
any necessary variations of a previous exercise of the power being
made from time to time.3 To their credit, parties
generally recognise the need for these restrictions; in my view, the present
question does not concern the legality of the power to impose limits or whether
these should have been extended. The limits in force at any one time can,
however, give rise to problems. Some of these are involved in the question
which now arises.
- The question, in concrete terms, is whether an oral witness in the employ
of the prosecution may summarise the written statements of uncalled witnesses,
the summarising evidence including the oral witness’s observations and conclusions
on those statements. I agree in part with the answer now given by the Appeals
Chamber . However, I have the misfortune to be of another opinion on another
part, and respectfully offer the following explanation of my difficulty.
B. The background
- The accused is indicted in respect of Croatia, Bosnia and Kosovo, and in
relation to events occurring over much time. Subject to the exercise of its
discretion to vary, the Trial Chamber has had to impose a limit of 14 months
on the prosecution for the presentation of its evidence in relation to all
three territories. With regard to Kosovo, the indictment concerns 24 sites,
including one at Racak. To respect the time limit imposed by the Trial Chamber,
the prosecution has had in turn to limit the number of witnesses it would
call per site. Generally, it would restrict itself to five witnesses per site.
Of these, it would call one or two as live witnesses ; in respect of the remaining
four or three, it would tender witness statements under the procedure prescribed
by Rule 92bis.4 It could call more witnesses
if it wished, but must bear in mind the consequences of doing so on its obligation
to keep within the overall period fixed by the Trial Chamber.
- The Trial Chamber accepts that Racak “was a significant incident”. The
prosecution allegation is that over 40 unarmed people were killed there, apart
from others who were wounded. The killings allegedly occurred in six locations
comprising 13 scenes . The prosecution says that a limited number of witnesses
cannot give a whole view of the events. It has many witnesses. It will not
call all of them; it will, however , be easier for it to work within the time
limit fixed by the Trial Chamber if one of its witnesses is allowed to summarise
the evidence contained in the written statements of 605
of the other witnesses and to give his observations and conclusions
thereon in a report to be submitted by him . Mr Kelly, the witness in question,
was an investigator attached to the office of the Prosecutor. In respect of
some of the statements, he had personally interviewed the witnesses concerned;
in respect of other statements, the interviews were conducted by his colleagues;
but he had read them all. All of the witness statements were footnoted in
his report, though not appended thereto; they were not in evidence but were
available to the accused and to the Trial Chamber.
C. The Trial Chamber’s decision
- These were the circumstances in which the prosecution offered the evidence
of Mr Kelly. The Trial Chamber declined the offer. It did not take the position
that the prosecution should have come under Rule 92bis and not under
Rule 89(C) as the prosecution did. Its decision rested on the view that “for
a witness to give his or her conclusions upon the evidence is to trespass
on the function of the Trial Chamber” and on the fact that Mr Kelly was employed
by the office of the Prosecutor. It concluded that Mr Kelly’s evidence was
unreliable, of “little or no probative value”, and therefore inadmissible.
While excluding Mr Kelly’s evidence , the Trial Chamber did say that “SsChould
significant issues be raised during the Defence case, it will always be open
to the Prosecution to call further evidence in rebuttal, not that we are encouraging
this course”. The prosecution was not encouraged , and for the reason, I would
think, that evidence in rebuttal is more restricted than evidence in chief:
with variations which are not relevant, the decision of the court rests on
the ex improviso principle. The fact that an issue is significant may
well suggest that it was anticipated by the prosecution and could not therefore
be the subject of rebuttal evidence. The rebuttal course would also erode
the time available for the presentation of the evidence of the prosecution
D. The basic position taken in this opinion
- I support the Appeals Chamber’s decision that the conclusions offered by
Mr Kelly on his summary of the written statements of the absent witnesses
were inadmissible . As recalled in paragraph 10 of the decision of the Appeals
Chamber, the prosecution concedes that, if the conclusions trespass on the
Trial Chamber’s function, the Trial Chamber could admit only the summary and
exclude the conclusions. But the Appeals Chamber holds that the summary is
also inadmissible. It is this holding which gives me difficulty.
E. Applicable provisions
- Rule 89 (C) was adopted in February 1994; it reads: “A Chamber may admit
any relevant evidence which it deems to have probative value”. It is common
ground that , under this Rule, hearsay evidence is admissible. Rule 89(F)
was adopted in December 2001; it reads: “A Chamber may receive the evidence
of a witness orally or, where the interests of justice allow, in written form”.
Rule 92bis, also adopted in December 2001, reads:
Rule 92 bis
Proof of Facts other than by Oral Evidence
- 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.
- 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:
- is of a cumulative nature, in that other witnesses will give
or have given oral testimony of similar facts;
- relates to relevant historical, political or military background;
- consists of a general or statistical analysis of the ethnic
composition of the population in the places to which the indictment
- concerns the impact of crimes upon victims;
- relates to issues of the character of the accused; or
- relates to factors to be taken into account in determining
- Factors against admitting evidence in the form of a written statement
include whether :
- there is an overriding public interest in the evidence in question
being presented orally;
- a party objecting can demonstrate that its nature and source
renders it unreliable , or that its prejudicial effect outweighs
its probative value; or
- there are any other factors which make it appropriate for the
witness to attend for cross-examination.
- 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
- the declaration is witnessed by:
- a person authorised to witness such a declaration in accordance
with the law and procedure of a State; or
- a Presiding Officer appointed by the Registrar of the Tribunal
for that purpose; and
- the person witnessing the declaration verifies in writing:
- that the person making the statement is the person identified
in the said statement ;
- 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;
- 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
- the date and place of the declaration.
The declaration shall be attached to the written statement presented
to the Trial Chamber.
- 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:
- is so satisfied on a balance of probabilities; and
- finds from the circumstances in which the statement was made and
recorded that there are satisfactory indicia of its reliability.
- 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.
- 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.
F. The decision of the Appeals Chamber
- The decision of the Appeals Chamber takes the view that Mr Kelly’s summarising
evidence cannot be admitted because -
- the summarising evidence did not provide an opportunity to cross-examine
the maker of the summarised statements and was prepared by a person employed
by the prosecution . For these and other reasons, it was unreliable; it
was therefore not probative and not admissible. Thus, it was not admissible
as hearsay evidence even under Rule 89(C), on which the prosecution relied.
This was enough to put an end to the case;
- even apart from (a), the written witness statements summarised by Mr
Kelly had been prepared for purposes of legal proceedings; written witness
statements of that special type were now admissible only under Rule 92bis.
The prosecution did not move under this Rule;
- the prosecution was indirectly attempting to argue that the Trial Chamber
had erred in the exercise of its discretion to impose a time limit; but
this matter was already settled.
G. The argument that Mr Kelly’s summarising evidence is not admissible
- As to (a), there is, in my view, no substance in arguments other than those
relating to cross-examination and employment by the prosecution. One small
point which may be picked up concerns an apparent absence of connection between
Mr Kelly and the written statements taken by his colleagues. The gap could
have been filled by oral evidence from him. He was in the box; had he been
allowed to reach the matter , he could have shown that his colleagues had
passed on the written statements to him with explanations. Subject to weight,
hearsay upon hearsay can be admitted and has been admitted. Thus, a connection
could have been made. This point apart, consideration will be limited to the
two matters mentioned.
- First, then, as to cross-examination. In a preliminary way, it may be recalled
that the Appeals Chamber’s decision accepts that summarising evidence “has
been admitted on many occasions in appropriate cases”. It seems to me that
the objection that there is no maker of an original statement to be cross-examined
in the case of summarising evidence should, if sound, have applied to bar
admissibility in those cases.
- The argument is not advanced by a contention that, if Mr Kelly’s evidence
was received, there would be a denial of the right of the accused to examine
witnesses , as conferred by Article 21(4)(e) of the Statute of the Tribunal.
Where hearsay evidence is allowed to be given by a witness, it is the settled
jurisprudence of the Tribunal that, if the other party wishes to challenge
anything in the evidence he must do so by cross-examining the witness giving
the hearsay evidence, and, or , by producing witnesses in his own turn. The
rest is addressed by the duty of the Trial Chamber to weigh the evidence,
especially in the light of the fact that the original sources were not tested
in cross-examination. The Trial Chamber may of course require the attendance
of the original witness; but, to the extent that it does so, the evidence
is not really hearsay evidence. The approach to hearsay evidence proper is
as mentioned above. That approach is consistent with the practice of judges
in many legal systems who evaluate the evidence, including hearsay material,
on the basis of their “intimate conviction”. For the reasons given later,
that practice cannot be disregarded.
- Paragraph 1 of the Appeals Chamber’s decision, and much in the remaining
text , correctly note that the prosecution did not tender the witness statements
summarised in Mr Kelly’s report. The defence is entitled to verify the accuracy
of a summary upon reference to the full witness statements on which the summary
is based. So, the point in question draws on a principle of weight; but, with
respect, it does so without substance. The prosecution pointed out that the
witness statements were footnoted in Mr Kelly’s summary. They were not formally
in evidence, but were available both to the Trial Chamber and to the accused.
Indeed, the prosecution twice asked the Trial Chamber to read them.6
Thus , on the basis of Mr Kelly’s own report, both the Trial Chamber
and the defence would have been directed to available means of verifying the
accuracy of the summary .
- That is what is important – the opportunity to verify the accuracy of the
summary . But to do that, it is not necessary to cross-examine the maker of
the original written statement; and so, for this purpose, it was not necessary
for the statement to be in evidence. To verify the accuracy of the summary
it was sufficient to cross -examine Mr Kelly himself: it was he who made the
summary. To cross-examine him, it was necessary for the original statements
to be available to the cross-examiner , as distinct from being in evidence.
A party may have a right to material being made available to it by the other
side; whether the material goes into evidence is another matter. Thus, even
if the witness statements were not in evidence, the fact that they were at
the disposal of the defence – and indeed of the Trial Chamber - was not without
legal value. The right to have the material available was respected .
- In my respectful view, it is not relevant to the question of law concerning
admissibility, which is being examined, to take account of the fact that the
accused was legally unrepresented. If prosecution evidence is admissible in
the case of a legally represented accused, I have difficulty in appreciating
how it can be inadmissible in the case of a legally unrepresented accused.
Respect is due to the right of an accused to choose to be legally unrepresented.
I do not appreciate how the exercise of that right affects admissibility.
Weight is another matter. Otherwise, there would be an incongruity in the
case of two co-accused, one having elected to be legally unrepresented, the
other being legally represented. Material which would be admissible in the
case of the latter would be inadmissible in the case of the former, and this
solely by reason of the circumstance of legal representation.
- Second, as to the argument of unreliability because of employment by the
prosecution . Again, there is a preliminary observation: if sound, the argument
should also have barred admissibility in other cases in which summarising
evidence was admitted if that evidence was also produced through prosecution
- As to the soundness of the argument, the jurisprudence in some domestic
jurisdictions rightly regards the fact that a witness is a member of the prosecution
team, or is associated with it, as going to weight and not, as held by the
Trial Chamber, as going to admissibility. The Prosecutor is a party, but it
is recognised that she represents the public interest of the international
community and has to act with objectivity and fairness appropriate to that
circumstance.7 She is in a real sense a minister
of justice. Her mission is not to secure a conviction at all costs; the Rules
relating to disclosure of exculpatory evidence show that . This in substance
applies within common law systems.8 It is equally
visible in continental systems. It is an aspect which a criminal tribunal
acting on the international plane has to bear in mind, more especially in
view of the solemn declaration taken by the witness.
- Distinctions in matching precedents are often possible and must of course
be regarded; yet it is thought that the broad sweep of previous practice9
in the Tribunal corresponds with the view that summarising evidence
given by prosecution personnel is admissible. So too in the case of courts
in The Netherlands and in Spain; to attempt, as the Trial Chamber did, to
distinguish their experience on the basis that it belongs to non-adversarial
jurisdictions is to exaggerate the common law character of the Tribunal and
to relegate the respectable habits of other legal systems. For, when it is
said that the Statute established the Tribunal on the adversarial model, it
has to be remembered that it also established the Tribunal as an international
- In this respect, the Statute established the Tribunal on the basis that
its judiciary was to be composed of judges coming from all legal systems and
that they should all be able to function as from the first day. This they
could not do if they were also required immediately to shed their basic traditions
and instantly to don a new one. Also, it has to be borne in mind that the
Tribunal was set up to deal with problems arising in non-common law areas.
It follows that the Statute itself falls to be construed on the footing that,
although it was framed on the basis of the adversarial model, it did not intend
that model to be exclusive of other influences. There is nothing which compels
that exclusion, as much in the jurisprudence of the Tribunal shows.
H. The argument that Mr Kelly’s summarising evidence was admissible
only under Rule 92bis
- As to (b), I gather from paragraph 17(3) of the Appeals Chamber’s decision
that it is considered that the prosecution was obliged to proceed under Rule
92bis. The argument is that the written witness statements were prepared
for the purpose of legal proceedings, that that is a special purpose, and
that (with exceptions which do not seem applicable) written witness statements
prepared for that special purpose can only be given under Rule 92bis where,
as was apparently the case here, such evidence “goes to proof of a matter
other than the acts and conduct of the accused as charged in the indictment”
With respect, I am not persuaded that there is such a restriction.
- Written witness statements prepared for the purpose of legal proceedings
can of course be given in evidence under Rule 92bis, but it is difficult
to locate a basis for the further proposition that such statements can only
be given in evidence under that Rule. The Rule does not say, or reasonably
imply, that written witness statements prepared for the purpose of legal proceedings
can be given in evidence only under that Rule; if that was the intent of the
Rule, it might have been made clear and not left to be inferred, with some
difficulty as it seems to me, by an international readership drawn from different
- Rule 92bis imposes no compulsion on the moving party to use the
procedure which it establishes. There would be compulsion only if it was the
case that the Rule required, as distinct from permitted, a party
to move under the procedure which it established. As is shown by the text
reproduced above, the Rule is directed to the competence of a Trial
Chamber to receive evidence in certain cases; it is not directed to the obligation
of a party to use the machinery which it lays down.
- The position being that Rule 92bis does not impose an obligation
on a party who wishes to adduce evidence of the contents of a written witness
statement (in the cases visualised by that Rule) to do so only under the procedure
which it establishes, the correct interpretation of the Rule is that it does
not prohibit a party from adopting an alternative procedure under another
Rule. No doubt, a party who desires the advantages afforded by Rule 92bis
is obliged to observe the particular procedure prescribed by that Rule.
But that obligation does not apply where he proposes to seek an alternative
solution under another provision. This being the case, no benefit is derivable
from an analogy with the lex specialis principle.
- In effect, the Rules provide for a choice, as the Rules could; they provide
for alternative solutions for a basic problem. Even taking into account the
exceptions provided by paragraph (C) of Rule 92bis, the moving party
may for good reason not be in a position to satisfy the conditions prescribed
by paragraph (B) of the Rule for direct adduction: without resiling from the
contents of his written witness statement, the original witness may simply
be reluctant to provide a declaration as required by paragraph (B), or there
may be some other difficulty in completing the procedures which is not covered
by paragraph (C). Because of reasons of this kind, the moving party may not
be in a position to invoke the Rule. It is difficult to see why he should
not be permitted give hearsay evidence through another witness of the contents
of the witness statement under Rule 89(C). The only restraint proceeds from
the requirement for the trial to be fair as stated in paragraphs (B) and (D
) of Rule 89. But that requirement did not preclude recourse to Rule 89(C)
before the adoption of Rule 92bis, the question being one of weight;
I am unable to see why it should preclude recourse now.
- As to discretion, it may be recalled that the Trial Chamber itself did
not dispute the prosecution’s submissions, referred to in paragraph 10 of
the Appeals Chamber’s decision, that Mr Kelly’s summarising evidence did not
“relate to an ultimate issue in the case, because it ‘did not discuss the
guilt or individual criminal responsibility of the accused …’”.
- There is no question that prior to the adoption of Rule 92bis, Rule
89(C) did allow for hearsay evidence to be given by an oral witness (such
as Mr Kelly) of the contents of a written statement of an absent witness,
whether or not the statement had been prepared for the purpose of legal proceedings.
Rule 92bis does not address such a case, namely, one in which an oral
witness is testifying as to the contents of the written statement of an absent
witness; it provides for direct adduction of the written witness statement.
Any impact which it has on Rule 89(C) – a very broad provision - is directed
to the latter only in so far as the latter concerns a question of direct adduction
of a written witness statement, a matter now treated of also in Rule 89(F).
- It is worth considering also that, if the Rule 92bis procedure excluded
recourse to Rule 89(C), it would by implication be repealing Rule 89(C) pro
tanto . Was there such a repeal?
- It may be remembered that “repeal by implication is not favoured… If, therefore
, earlier and later statutes can reasonably be construed in such a way that
both can be given effect to, this must be done”.10
Prior to the adoption of Rule 92bis, the provisions of Rule 89(C) did
authorise the giving of hearsay evidence by a witness of the contents of written
statements of prospective witnesses prepared for the purpose of legal proceedings.
To hold that it is no longer possible to take that course notwithstanding
that Rule 89(C ) continues in the same shape as before necessarily means that
the operation of the Rule has been impliedly repealed to that extent. No doubt,
the sixteen permanent judges of the Tribunal can impliedly repeal their own
Rule as to an aspect of its earlier operation even though they continue it
in the same textual form as before ; and a smaller body of the same judges,
acting judicially, can say that this is what the full body, acting legislatively,
intended. But I am not persuaded that that is what the full body had in mind.
- It may be added that there does not appear to be a basis for a view that
the prosecution is opposed to the prospect of cross-examination presented
by Rule 92bis(E), as may be suggested in paragraph 18 of the Appeal
Chamber’s decision . As has been seen, the Trial Chamber imposed a time limit
of 14 months on the prosecution for the presentation of its evidence. To respect
that limit, the prosecution limited itself in general to presenting five witnesses
in respect of each site. It puts one or two witnesses in the box and then
submits written witness statements in respect of the remaining four or three
under Rule 92bis.11 In respect of all
such witnesses, both “live” and “non-live”, it regularly faces the possibility
of cross-examination. Further, if there were no time limit, it has to be presumed
that the prosecution would be prepared in the ordinary way to have all its
other witnesses cross-examined. So it would not be correct to ascribe to the
prosecution any reluctance to face cross-examination under Rule 92bis
- But the prospect of cross-examination under Rule 92bis(E) could
have operated in another way: it could have lengthened out the process, as
indicated by the position of the prosecution which is recalled in paragraph
3 of the Appeals Chamber’s decision. Dealing with 60 witness statements under
Rule 92bis, complete with cross-examination, could occupy some time
– especially if any necessary re-examination were taken into account. The
case concerned the particular site at Racak. Apart from that, there were 23
sites to be dealt with in Kosovo. A fair interpretation is that the prosecution
considered that the Rule 92bis procedure could not be employed in relation
to the 60 witness statements consistently with the overall time limit of 14
months fixed by the Trial Chamber. The motivation was not to avoid cross-examination
but to find a way of presenting the necessary material within the available
- Finally, the Trial Chamber did not say that Rule 92bis stood in
the way. It would seem that the Trial Chamber did not consider that
it was open to the prosecution to proceed under that Rule and that, not having
done so, the prosecution was barred from proceeding under Rule 89(C). I respectfully
disagree with the Trial Chamber on some things, but I share its assumption
that Rule 92bis did not preclude recourse to Rule 89(C). Were it otherwise,
one has only to think of the innumerable objections which may be raised whenever
hearsay evidence is being given in the course of the testimony of an oral
witness who is dealing with several matters: on each occasion, if it happens
that recourse could have been made to Rule 92bis, it could be argued
that the particular hearsay evidence is not receivable because it could have
been given under that Rule.
I. The argument that the prosecution was indirectly contending that
the Trial Chamber had erred in the exercise of its discretion to impose
a time limit
- As to (c), in the past the prosecution did complain about the exercise
of the power of the Trial Chamber to impose a time limit; the complaint was
settled, and it would be wrong for the prosecution now to seek to reopen it
indirectly. But I do not think that that is being done. The Trial Chamber
has a competence to extend the time limit; but the time limit, as it stands
at any given moment, is still a time limit. As such, it exerts constraint.
What the prosecution is saying is that it would help to stay within the existing
time limit if it were allowed to adduce in evidence Mr Kelly’s summary of
the written statements of the 60 other witnesses ; if the procedure of Rule
92bis were to be adopted, the time limit for the time being in force
would be exceeded. It appears to me that that is not the same thing as an
indirect attempt to argue that the Trial Chamber erred in exercising its discretion
to fix the existing time limit.
- As has been seen, paragraph 20 of the Appeals Chamber’s decision accepts
that summarising evidence is in principle admissible in the Tribunal and “has
been admitted on many occasions in appropriate cases”. I am not able to appreciate
why this is not an appropriate case. The case spans vast swaths of territory,
much time and endless lists of witnesses; it obviously calls for special evidential
machinery. Some domestic systems and the Nuremberg trials suggest models which
may be drawn upon. Variations are possible; but the common idea is to avoid
unsafe conclusions based on partial evidence. That idea is realised by a method
which enables the court to appreciate the fullness of all relevant evidence
within a reasonable time and which is yet consistent with essential notions
of justice. Both parties are entitled to an expeditious hearing; but this
is not a reason for sacrificing evidential completeness . The desirable solution
is one that permits speed to be reconciled with comprehensiveness .
- In this respect, the principle of the procedures employed at Nuremberg
would enable an international criminal court to receive the testimony of witnesses
although it was conveyed in the form of summarising evidence to the court
through prosecution personnel, provided that the accused had the possibility
of access to the original statements. In these and other ways those procedures
would enable the court to form an overall view of the situation in question
without an oppressive extension of time.
- There is much in the argument that the telescoped approach taken at Nuremberg
has been overtaken by the increasing emphasis which has since been given to
human rights. But the problem at Nuremberg remains, and so does the need to
find a solution . A solution which violates fundamental norms is of course
not satisfactory. But there need be no conflict if essentials are regarded.
The essentials show that the duty to be fair is not a duty to be infallible.12
The fairness of a trial is the result of the fairness of the system
of justice employed . The latter depends on the striking of a balance between
two competing public interests . First, there is the justly publicised public
interest in respecting the rights of the accused. Second, there is the less
proclaimed but equal public interest in ensuring that crimes are properly
investigated and duly prosecuted.
- I do not see how both of these important public interests can be satisfied
if a position is taken which effectively means that the Trial Chamber’s appreciation
will rest on partial material; even taking into account possible variations,
it is not credible to argue that that will not be the practical result in
this case . If that is the result, the Trial Chamber will have less than a
full grasp of what took place and will not be in a position to make a judgement
that can stand objective scrutiny. The exclusion of Mr. Kelly’s summarising
evidence will have that artificial effect. More importantly, it will put in
doubt the viability of the Tribunal.
- The last remark brings me to this point. In my understanding - if not also
the general understanding - a decision of the Appeals Chamber is in strict
law not a binding authority on that Chamber; but of course it is highly persuasive
on that Chamber and should only be departed from sparingly.13
I consider that the viability of the Tribunal and of other international
criminal courts established or to be established provides cogent reason for
exercising the power to depart from the particular case followed by the Appeals
Chamber if it means that Mr Kelly’s summarising evidence was inadmissible.
- Finally, I support the decision of the Appeals Chamber to dismiss the appeal
, but only in respect of Mr Kelly’s conclusions. As regards his summary, I
consider that this was admissible under Rule 89(C) and would allow the appeal
to this extent .
Done in both English and French, the English text being authoritative
Dated this 30th day of September 2002
At The Hague
1 - See Rule 73bis(E) and Rule 73ter(E)
of the Rules of Procedure and Evidence of the Tribunal. The former provides:
“After having heard the Prosecutor, the Trial Chamber shall determine the time
available to the Prosecutor for presenting evidence”. The latter relates in
corresponding terms to the defence.
2 - This is a large area, involving a discretionary consideration
of main and collateral issues in the case, cumulative and undisputed facts,
opinion matters, the size of exclusions in relation to the importance of the
particular issue, and other factors which are generally designed to exclude
arbitrariness. See a number of United States cases usefully collected in B.H.Glenn,
Limiting Number of Noncharacter Witnesses in Criminal Case, 5 A.L.R.
3 - Rule 73bis(F) of the Rules reads: “During a trial,
the Trial Chamber may grant the Prosecutor’s request for additional time to
present evidence if this is in the interests of justice”. Rule 73ter(F)
relates in corresponding terms to the defence.
4 - Transcript, Trial Chamber, 20 February 2002, pp. 661 and
665, Mr Nice for the prosecution.
5 - Transcript, Trial Chamber, 28 May 2002, pp. 5717, 5735
and 5934, Mr Nice.
6 - Transcript, Trial Chamber, 30 May 2002, pp. 5927 and 5933.
7 - The Prosecutor recognised this in her Regulation No. 2
of 1999 in which she said that prosecutors represent “the international community”
and should “promote principles of fairness and professionalism”.
8 - R v. Banks (1916( 2 KB 621 at 623, per Avory J.
9 - Collected in footnote 40 of “Interlocutory Appeal of the
Prosecution against Decision on Admission of Evidence of Summarizing Witness”
of 27 June 2002.
10 - Maxwell on Interpretation of Statutes, 12th ed.
(London, 1969), p. 191.
11 - Transcript, Trial Chamber, 20 February 2002, pp. 661
and 665, Mr Nice for the prosecution.
12 - See remarks of Judge Hackworth, dissenting, in Effect
of Awards of Compensation made by the United Nations Administrative Tribunal,
Advisory Opinion, I.C.J.Reports 1954, p. 47, at p. 86; of Lord Diplock in
Maharaj v. Attorney-General of Trinidad and Tobago (No. 2),  A.C.
385, P.C., at 399, stating that the “fundamental human right is not to a legal
system that is infallible but to one that is fair”; and of Lord Templeman in
Bell v. Director of Public Prosecutions (Jamaica),  1 A.C. 937,
13 - “The real question is whether … there is cause not to
follow the reasoning and conclusions of earlier cases”, as it was put by the
International Court of Justice in Land and Maritime Boundary between Cameroon
and Nigeria (Cameroon v.Nigeria), Preliminary Objections, I.C.J. Reports 1998,
p. 275, at p. 292, para. 28. In the view of the Appeals Chamber of the ICTY,
“in the interests of certainty and predictability, the Appeals Chamber should
follow its previous decisions, but should be free to depart from them for cogent
reasons in the interests of justice”. See Prosecutor v. Aleksovski, IT-95-14/1-A
of 24 March 2000, para. 107.