Decision on Prosecution's Request to Have Written Statements Admitted Under Rule 92 bis

21 March 2002
Trial Chamber III (Judges May [Presiding], Robinson and Kwon)

Procedural Background

· On 25 January 2002, the Office of the Prosecutor disclosed three witness statements to the amici curiæ. It intended to request their admission pursuant to Rule 92 bis of the Rules of Procedure and Evidence1.

· On 20 February 2002, the three amici curiæ submitted a brief to which the Prosecution responded on 26 February and 11 March 2002.

· On 11 March 2002, the Trial Chamber held a hearing during which the Prosecution, the amici curiæ and the accused presented their views. The next day, it rendered its oral Decision and admitted the written statements under Rule 92 bis of the Rules subject to two cumulative conditions: (1) the Prosecution must limit the number of witness statements it intends to use and (2) the witnesses selected must appear for cross-examination.

The Reasoning

The Trial Chamber first held that there is "a discretion under Rule 92 bis whether to admit the evidence of a written form which does not relate to the acts and conduct of the accused charged in the indictment." It noted that there is some limited case-law on the application of Rule 92 bis2.

The Trial Chamber regarded the phrase "acts and conduct of the accused" in Rule 92 bis as "a plain expression" which should be given its ordinary meaning, i.e. "deeds and behaviour of the accused" and "should not be extended by fanciful interpretation." It noted that "[n]o mention is made of acts and conduct by alleged co-perpetrators, subordinates or, indeed, of anybody else."3 The Trial Chamber added that "[h]ad the rule been intended to extend to acts and conduct of alleged co-perpetrators or subordinates it would have said so." It considered that "[t]he fact that conduct is that of co-perpetrators or subordinates is relevant to whether cross-examination should be allowed and not to whether a statement should be admitted." Consequently, having examined the 23 written statements, the Trial Chamber found that "the statements go to proof of matters other than the acts and conduct of the accused."

It then turned to the issue of "whether the Trial Chamber should exercise its discretion in favour of admitting the written statements into evidence." It noted that among the factors set out in Rule 92 bis, the cumulative nature of the evidence constitutes "a factor in favour of admission."

The Trial Chamber considered that "[t]he evidence relates […] to a live and important issue between the parties, as opposed to a peripheral or marginally relevant issue." In these circumstances, it expressed the view that "the requirements of a fair trial demand that the accused be given the right to cross-examine the witnesses in order to fully test the Prosecution's case." The Trial Chamber specified that this course would "also address any concerns about the reliability of the evidence and any hearsay."

Keeping in mind their obligation to ensure that the trial is both fair and expeditious4, the Judges found that "[t]hese ends can best be achieved by admitting the witness statements under Rule 92 bis (E), thereby saving the substantial time taken in examination-in-chief and requiring the witnesses to attend for cross-examination."

Separate Opinion of Judge Patrick Robinson

Judge Robinson stated that he agreed with the Decision that the accused be allowed to cross-examine witnesses whose statements have been admitted but set out his own reasoning.

Declaration of Judge O-Gon Kwon

Judge Kwon expressed his agreement "with the Trial Chamber's decision to admit the written statements of 23 Prosecution witnesses into evidence under Rule 92 bis." The Judge also expressed his view that "the meaning of the phrase 'acts and conduct of the accused' as set out in Rule 92 bis (A) is clear and ought to be interpreted by the Trial Chamber to mean the deeds and behaviour of the accused." Judge Kwon underscored that he considered the "discretion to be closer to a duty upon the Trial Chamber" to call the witness "when the statements are related to important elements of the crime other than acts and conduct of the accused".

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1."(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."

2. See The Prosecutor v. Dusko Sikirica et al. ("Keraterm Camp"), Case No. IT-95-8-T, Trial Chamber III, Decision on Prosecution's Application to Admit Transcripts Under Rule 92 bis, 23 May 2001 (hereinafter the "Sikirica et al. Decision", summarised in Judicial Supplement No. 24); The Prosecutor v. Mladen Naletilic and Vinko Martinovic ("Tuta" & "Stela"), Case No. IT-98-34-T, Trial Chamber I Section A, Decision on the Admission of Witness Statements into Evidence, 14 November 2001 (summarised in Judicial Supplement No. 29); 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 (summarised in Judicial Supplement No. 31); The Prosecutor v. Radoslav Brdjanin and Momir Talic ("Krajina"), Case No. IT-99-36-PT, Trial Chamber II Section A, Decision on "Objection to Rule 92 bis Procedure and Motion to Quash and Exclude All Rule 92 bis Statements" Filed by Radoslav Brdjanin on 13 December 2001 (summarised in Judicial Supplement No. 31).
3. See also The Prosecutor v. Stanislav Galic ("Sarajevo"), Case No. IT-98-29-T, Trial Chamber I Section B, Decision on the Prosecutor's Motion for the Admission into Evidence of Written Statement by a Deceased Witness, and Related Report Pursuant to Rule 92 bis (C), 12 April 2002; Decision on the Prosecutor's Second Motion for the Admission into Evidence of Written Statement by Deceased Witness Bajram Sopi Pursuant to Rule 92 bis (C), 18 April 2002, in which the Trial Chamber referred to this Decision and found that the phrase "acts and conduct of the accused" covers only "the deeds and behaviour of the accused himself" and not "the acts and conduct of his co-perpetrators and/or subordinates".
4. Article 20(1) of the Statute provides inter alia that "[t]he Trial Chambers shall ensure that a trial is fair and expeditious". Regarding the combination of Rule 92 bis and Article 20(1) of the Statute, see the Sikirica et al. Decision.