C. Conclusion
VIII. The Fifth Ground of Cross-Appeal by the Prosecution:
2. The Power to Order the Disclosure of Prior Defence Witness Statements
318. The Appeals Chamber is of the view that the Defence witness statement referred to would be a recorded description of events touching upon the indictment, made and, normally, signed by a person with a view to the preparation of the Defence case.
319. There is no blanket right for the Prosecution to see the witness statement of a Defence witness. The Prosecution has the power only to apply for disclosure of a statement after the witness has testified, with the Chamber retaining the discretion to make a decision based on the particular circumstances in the case at hand.
320. The power of a Trial Chamber to order the disclosure of a prior Defence witness statement relates to an evidentiary question. Strictly speaking, the principle of equality of arms is not relevant to the problem. Also, since the Statute and the Rules do not expressly cover the problem at hand, the broad powers conferred by Sub-rule 89(B) may come into play.388 The question to be addressed is whether those powers include the power of a Trial Chamber to order the disclosure of a prior Defence witness statement.
321. The mandate of the International Tribunal, as set out in Article 1 of the Statute, is to prosecute persons responsible for serious violations of international humanitarian law committed in the former Yugoslavia. To fulfil its mandate, a Trial Chamber has to ascertain the credibility of all the evidence brought before it. A Trial Chamber must also take account of the following provisions of the Statute: Article 20(1), concerning the need to ensure a fair and expeditious trial, Article 21 dealing with the rights of the accused, and Article 22, dealing with the protection of victims and witnesses. Further guidance may be taken from Article 14 of the International Covenant on Civil and Political Rights389 and
388 Sub-rule 89(B) provides:
“In cases not otherwise provided for in this Section, a Chamber shall apply Rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law.”
389 Article 14 provides in part:
Article 6 of the European Convention on Human Rights,390 which are similar to Article 21 of the Statute.
322. With regard to the present case, once a Defence witness has testified, it is for a Trial Chamber to ascertain the credibility of his or her testimony. If he or she has made a prior statement, a Trial Chamber must be able to evaluate the testimony in the light of this statement, in its quest for the truth and for the purpose of ensuring a fair trial. Rather than deriving from the sweeping provisions of Sub-rule 89(B), this power is inherent in the jurisdiction of the International Tribunal, as it is within the jurisdiction of any criminal court, national or international. In other words, this is one of those powers mentioned by the Appeals Chamber in the Bla{kic (Subpoena) decision which accrue to a judicial body even if not explicitly or implicitly provided for in the statute or rules of procedure of such a body, because they are essential for the carrying out of judicial functions and ensuring the fair administration of justice.391
323. It would be erroneous to consider that such disclosure amounts to having the Defence assist the Prosecution in trying the accused. Nor does such disclosure undermine the essentially adversarial nature of the proceedings before the International Tribunal,
“(1) A ll persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. […].
(2) Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.
(3) In the determination of any criminal charge against him, everyone 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; […]; (c) to be tried without undue delay; (d) to be tried in his presence, and to defend himself in person or through legal assistance […];
(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; […];
(g) not to be compelled to testify against himself or to confess guilt. […].”
390 Article 6 provides in part:
“(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. […].
(2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
(3) Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; […]; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; […].”
391 See “Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997”, The Prosecutor v. Tihomir Bla{ki } , Case No.: IT-95-14-A R108bis, Appeals Chamber, 29 October 1997, para. 25.
including the basic notion that the Prosecution has to prove its case against the accused.
Although this provision was not in force at the time relevant to the present enquiry, it is worth noting that Sub-rule 73ter(B) provides that should a Pre-Defence Conference be held:
[…] the Trial Chamber may order that the defence, before the commencement of its case but after the close of the case for the prosecution, file the following:
[…];(iii) a list of witnesses the defence intends to call with:
(a) the name or pseudonym of each witness;
(b) a summary of the facts on which each witness will testify;
[…]
This Sub-rule does not require that the Defence file its witness statements. But the substance is not far removed: the provision has been designed to assist a Trial Chamber in preparing for hearing the Defence case, and the Prosecution in preparing for cross-examination of the witnesses.
324. As stated above, once the Defence has called a witness to testify, it is for a Trial Chamber to ascertain his or her credibility. If there is a witness statement, in the sense referred to above, it would be subject to disclosure only if so requested by the Prosecution and if the Trial Chamber considers it right in the circumstances to order disclosure. The provisions of Rule 68 are limited to the Prosecution and do not extend to the Defence.
Disclosure would follow only once the Prosecution’s case has been closed. Even then, Sub-rules 89(C),392 (D)393 and (E)394 would still apply to such a disclosed witness statement, with the consequence that a Trial Chamber might still exclude it. Furthermore, the provisions of Sub-rule 90(F) relating to self-incrimination would of course apply.
325. The Appeals Chamber is also of opinion that no reliance can be placed on a claim to privilege. Rule 97395 relates to lawyer-client privilege; it does not cover prior Defence witness statements.
392 Sub-rule 89(C) provides: “ A Chamber may admit any relevant evidence which it deems to have probative value.”
393 Sub-rule 89(D) provides: “ A Chamber may exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial.”
394 Sub-rule 89(E) provides: “ A Chamber may request verification of the authenticity of evidence obtained out of court.”
395 Rule 97 provides in part: “ A ll communications between lawyer and client shall be regarded as privileged, and consequently not subject to disclosure at trial […].”
C. Conclusion
326. For the reasons set out above, it is the opinion of the Appeals Chamber that a Trial Chamber may order, depending on the circumstances of the case at hand, the disclosure of Defence witness statements after examination-in-chief of the witness.