Law and Jurisprudence of the International Criminal Tribunals and Courts

Vladimir Tochilovsky (PhD) is Vice-Chairperson of the UN Working Group on Arbitrary Detention. Formerly a Trial Attorney and Investigation Team Leader in the ICTY (1994-2010), he was a representative of the ICTY at the UN Preparatory Committee and Commission for the International Criminal Court. He taught at Mechnikov National University (Ukraine) and authored numerous publications, including books, on international criminal justice and human rights in criminal procedure.

• CONTENTS I. RIGHT TO BE INFORMED ON THE NATURE AND CAUSE OF THE CHARGE 21 INTRODUCTION ... 21 Applicability to the Proceedings in the ICC ... 22 STATEMENT OF THE FACTS IN THE INDICTMENT ... 23 ECtHR Jurisprudence ... 23 General Requirements ... 25 Material Facts ... 27 Generally ... 27 Material Facts and Evidence ... 30 Material Facts Related to the Nature of the Criminal Responsibility of the Accused . 31 Generally ... 31 Pleading Relevant Acts and Conducts ... 32 Material Facts Related to State of Mind (mens rea) ... 32 Legal Prerequisites as Material Facts ... 34 Additional Facts in the Indictment ... 34 CHARGES IN THE INDICTMENT ... 35 Counts ... 36 Cumulative and Alternative Charging (ad hoc Tribunals) ... 37 PARTICULARS IN THE INDICTMENT ... 40 General Provisions ... 40 Particulars Related to the Nature of the Criminal Responsibility of the Accused ... 43 Other Particulars ... 45 Particulars Related to Victims ... 45 Particulars Related to Physical Perpetrators and Subordinates ... 46 Particulars Related to Co-Conspirators ... 47 Particularity of Other Information ... 47 Schedules to the Indictment ... 49 Use of Some Terms in the Indictment ... 49 ADDITIONAL PARTICULARS REGARDING THE OFFENCES CHARGED ... 51 CONFIRMATION AND AMENDMENT OF THE INDICTMENT ... 52 Prosecutor's Discretion to Investigate and Prosecute ... 52 Division of Functions Between the Confirming Judge and the Trial Chamber ... 54 Confirmation of Charges Hearing at the ICC ... 55 Generally ... 55 Adjournment of the Confirmation Hearing ... 57 Standard of Proof Under the ad hoc Tribunals' Statutes ... 58 Generally ... 58 "Most Senior Leaders"... 59 Standard of Proof Under the ICC Statute ... 60 Generally ... 60 Evidence ... 62 Amendment of the Indictment ... 63 ECtHR Jurisprudence ... 63 Generally ... 64 Procedural Consequences on the New Charges ... 66 "Interest of Justice" ... 67 Withdrawal of Charges ... 67 Judicial Discretion ... 68 Factors to be Considered by the Trial Chamber ... 69 Prejudice to the Accused ... 72 Undue Delay ... 75 Timing ... 77 "Prima Facie" Standard of Proof for Amendment, ICTY ... 78 Supporting Material ... 79 Standard of Proof for Amendment, ICTR and SCSL ... 80 Amendment of the Charges and Changing the Legal Characterisation of Facts (ICC) ... 81 JOINDER OF ACCUSED ... 86 Generally ... 86 "Same Transaction" ... 88 Trial Chamber's Discretion and Relevant Factors ... 91 Generally ... 91 Judicial Economy ... 92 Avoiding Serious Prejudice to the Accused ... 93 Conflict of Interests... 94 Minimising Hardship to Witnesses ... 95 Consistency in Evaluation of Evidence, Verdicts and Sentences ... 95 CHALLENGES TO THE FORM OF THE INDICTMENT ... 96 Generally ... 96 Timing of the Filing... 96 Challenges to the Form of the Amended Indictment ... 98 "New Charges" ... 98 CURING DEFECTIVE INDICTMENT ... 102 Generally ... 102 Prejudicial Effect of a Defective Indictment ... 105 Remedies ... 105 Appeals Chamber's Role ... 110 Assessment of Whether the Indictment has been Cured ... 111 II. ACCUSED ACCESS TO THE PROSECUTION MATERIAL (DISCLOSURE BY THE PROSECUTOR) ... 113 INTRODUCTION ... 113 Generally ... 113 Some Specific Features in the ICC proceedings ... 116 ECtHR Jurisprudence ... 117 DISCLOSURE OF THE SUPPORTING MATERIAL AND STATEMENTS OF THE ACCUSED (AD HOC TRIBUNALS) ... 118 Supporting Material ... 118 Generally ... 118 Disclosure by the Prosecutor of the Material Supporting New Charges in the Amended Indictment ... 118 Prior Statements of the Accused ... 119 DISCLOSURE RELATING TO PROSECUTION WITNESSES ... 120 Generally ... 120 Ad hoc Tribunals ... 120 ICC ... 122 Disclosure of Witness Statements ... 123 Meaning and Forms of Witness Statements ... 124 Interview Notes, Will-Say Statements and Notes Taken During Proofing Sessions127 Absence of a Written Witness's Statement ... 130 Disclosure of the Identity and Whereabouts of Witnesses ... 132 Generally ... 132 Balancing Protective Measures with Inquiries ... 134 Delayed Disclosure of the Witness's Identity ... 135 Delayed Disclosure of the Whereabouts of Witnesses ... 140 Disclosure of the Material Protected in Prior Proceedings ... 141 Non-Disclosure under Rules 53 and 69 ... 141 Specific features under the ICC Rules ... 143 Generally ... 143 Restrictions on Disclosure ... 144 DISCLOSURE RELATING TO EXPERT WITNESSES ... 147 DISCLOSURE OF EXCULPATORY MATERIAL ... 152 Prosecution Obligation to Disclose Exculpatory Material ... 152 Generally ... 152 ICC ... 156 "Essential Obligation" ... 157 Determination Whether Material is Exculpatory ... 158 Disclosure ... 160 Positive and Continuing Obligation ... 161 Office of the Prosecutor and Prosecution Teams' Obligations ... 163 Types of Material Subject to Disclosure ... 164 Generally ... 164 Record of Payments ... 165 Favourable Arrangements and Assistance to Witness ... 168 Testimony in Other Cases ... 168 LATE DISCLOSURE ... 169 SANCTIONS AND REMEDIES FOR VIOLATION OF DISCLOSURE OBLIGATION ... 171 Generally ... 171 Exculpatory Material ... 174 A Defence Request Based on Rule 68 ... 174 Remedies and Sanctions ... 176 INSPECTION OF DOCUMENTS AND OBJECTS MATERIAL TO THE PREPARATION OF THE DEFENCE ... 180 Generally ... 180 "Material to the Defence" ... 183 Generally ... 183 Documents and Information Related to the Defence Witnesses ... 186 Domestic Judicial Records of Prosecution Witnesses and Evidence of a Pattern of Conduct ... 188 MATTERS NOT SUBJECT TO DISCLOSURE ... 189 Information Provided on a Confidential Basis ... 189 Ad Hoc Tribunals ... 189 ICC ... 191 Exculpatory Material ... 192 Internal Documents ... 194 Generally ... 194 Exculpatory Material ... 198 Protection of other Information ... 199 Further or Ongoing Investigations ... 199 Exculpatory Material ... 199 OTHER MATTERS RELATED TO DISCLOSURE ... 200 Disclosure in Audio Format ... 200 Disclosure in Electronic Format ... 202 Generally ... 202 Disclosure of Exculpatory Material ... 204 Disclosure on Appeal ... 205 Other Relevant Matters ... 206 III. DEFENCE ACCESS TO PROTECTED MATERIAL IN ANOTHER CASE .. 207 Generally ... 207 Access to Inter Partes Confidential Material ... 210 Generally ... 210 Access to Confidential Filings, Submissions, and Decisions ... 215 Protective Measures ... 216 Other Relevant Matters ... 218 Access to Ex Parte Confidential Material ... 219 Access to Information Provided on a Confidential Basis ... 220 IV. PROSECUTION ACCESS TO THE DEFENCE MATERIAL (DISCLOSURE BY THE DEFENCE) ... 223 Disclosure by the Defence in ad hoc Tribunals ... 223 Disclosure of Witness Statements ... 223 Disclosure of the Identity of Witnesses ... 224 Other Information Related to Defence Witnesses ... 226 Inspection of Documents and Other Defence Material ... 226 Alibi Notice ... 228 Information Provided on a Confidential Basis ... 234 Other Relevant Matters ... 234 Disclosure by the Defence in the ICC ... 237 Generally ... 237 Disclosure of Witness Statements ... 238 Disclosure and Inspection of Documents ... 238 V. DISCLOSURE OF OTHER MATERIAL AND INFORMATION... 240 PRE-TRIAL BRIEFS ... 240 Prosecution Pre-Trial Brief ... 240 Defence Pre-Trial Brief ... 243 LISTS OF WITNESSES AND SUMMARY OF THE FACTS ON WHICH WITNESSES WILL TESTIFY ... 246 List of witnesses ... 246 Summary of the Facts on which Witnesses Will Testify ... 247 Generally ... 247 Prosecution Witness Summaries ... 248 Defence Witness Summaries ... 249 LISTS OF EXHIBITS ... 251 VARIATION OF THE LISTS OF WITNESSES AND EXHIBITS ... 253 Witnesses ... 253 Generally ... 253 Prosecution List ... 254 Defence List ... 257 Exhibits ... 258 Relevant Factors ... 261 The Consequences of Withdrawal of a Witness from the List ... 264 Other Relevant Matters ... 265 VI. OTHER PRE-TRIAL MATTERS ... 267 Pre-Trial Delivery of Witness Statements and Other Information to the Chamber ... 267 Pre-Trial Meetings ... 268 VII. RIGHT TO SUBPOENA AND BINDING ORDERS ... 270 INTRODUCTION ... 270 BINDING ORDERS TO STATES AND INTERNATIONAL ORGANISATIONS ... 270 Binding Orders to States ... 270 States' Obligation to Cooperate ... 270 Binding Orders to States Generally ... 271 Protection of State Interests ... 273 Orders Under Rule 54 bis and Rule 54 ... 277 Binding Orders to International Organisations ... 277 Binding Orders to State Officials ... 279 Request for an Order ... 280 Generally ... 280 Requirements to Requests ... 281 SUBPOENAS (SUMMONS) TO INDIVIDUALS ... 283 Generally ... 283 Determining Whether to Issue a Subpoena ... 285 Chamber's Discretion ... 286 Relevant Factors ... 287 Request for a Subpoena ... 289 Role of National Authorities in Execution of Tribunal Orders ... 291 Subpoenas to Opposing Party's Witnesses ... 292 Subpoenas to State Officials ... 294 Subpoenas to other Individuals ... 296 War Correspondents ... 296 UN and Tribunal's Staff ... 297 VIII. PROTECTION OF VICTIMS AND WITNESSES ... 300 Generally ... 300 Balance Between Rights of the Accused and Protection of Witnesses ... 302 Judicial Discretion ... 306 A "Genuine Fear" ... 307 Protective Measures Based on Witnesses' Location ... 308 Witness Anonymity ... 309 ECtHR Jurisprudence ... 309 Generally ... 310 Protection of Some Categories of Witnesses ... 311 Safe Conduct ... 312 Protective Measures under Rule 75 and Rule 70 ... 314 Delay of Transmission of the Proceedings and Redaction of Public Transcripts and Broadcasts ... 315 Variation of Protective Measures for the Subsequent and Other Cases ... 316 Variation of Protective Measures for National Jurisdictions ... 318 Protection of Persons Other than Witnesses and Victims ... 320 Other Relevant Matters ... 324 IX. PLEA AGREEMENTS ... 330 Introduction ... 330 Generally ... 333 Accused Co-operation ... 337 Trial Chamber's Discretion ... 337 X. LEGAL ASSISTANCE OF COUNSEL ... 339 INTRODUCTION ... 339 ECtHR Jurisprudence ... 340 UNHRC Practice ... 342 RIGHT TO CHOOSE A COUNSEL ... 343 Generally ... 343 Indigent Accused ... 345 Generally ... 345 Legal Aid ... 347 Assignment of Co-Counsel ... 347 Conflict of Interest ... 348 Generally ... 348 Former Staff Member of the Office of the Prosecutor as a Defence Counsel ... 352 REVIEW OF THE DECISIONS CONCERNING ASSIGNMENT OF COUNSEL ... 354 Generally ... 354 Trial Chamber's Power to Review Registrar's Decisions ... 354 Appeals Chamber's Power to Review President's Decisions ... 356 President's Power to Review Registrar's Decisions ... 356 PROTECTION OF DEFENCE IMMUNITIES ... 357 Defence Functional Immunity ... 357 Functional Immunity of the Members of the Defence ... 358 RIGHT TO SELF-REPRESENTATION ... 359 Generally ... 359 Legal Associates ... 363 Judicial Discretion ... 365 Waiver of the Right to Counsel during a Custodial Questioning ... 366 ASSIGNMENT OF COUNSEL AGAINST THE WISHES OF THE ACCUSED ... 368 Generally ... 368 Accused's Refusal to Cooperate with the Counsel and Withdrawal of Assigned Counsel ... 371 Potential Disruption to Proceedings ... 373 The Role of the Represented Accused in the Proceedings ... 376 XI. TRIAL PROCEEDINGS ... 379 INTRODUCTION ... 379 PRINCIPLE OF EQUALITY OF ARMS, FAIR TRIAL ... 384 ECtHR Jurisprudence ... 384 Generally ... 384 Appeals Proceedings ... 386 UNHRC Practice ... 387 Fair Trial ... 388 Presumption of Innocence ... 390 ECtHR Jurisprudence and UNHRC Practice ... 390 Prosecutor's Public Statements ... 393 Naming in the Judgement a Co-Accused Who have not been Tried ... 395 Equality of Arms ... 396 Generally ... 396 Resources ... 399 Equality of Time and Number of Witnesses ... 400 Adequate Time and Facilities for Preparation the Case ... 401 Generally ... 401 Adequate Time ... 401 Adequate Facilities ... 403 ROLE OF THE PROSECUTOR ... 404 Generally ... 404 Independence of the Prosecutor ... 406 Prosecutor and Judiciary ... 406 Prosecution and Governments ... 408 Other Relevant Matters ... 409 Scope of Investigation ... 410 Misconduct of the Prosecutor ... 411 Specific Role of the Prosecutor and Investigating Judges in the ECC ... 412 JUDICIAL IMPARTIALITY ... 413 ECtHR Jurisprudence ... 413 UNHRC Practice ... 416 Generally ... 416 Principles of Application of the Impartiality Requirement ... 421 Presumption of Impartiality ... 425 Some Specific Circumstances ... 426 Appeal from Decisions on a Motion for Disqualification of a Judge ... 431 Legal Consequences of the Disqualification ... 432 REASONABLENESS OF THE LENGTH OF THE PROCEEDINGS ... 433 ECtHR Jurisprudence ... 433 UNHRC Practice ... 435 Generally ... 435 Relevant Factors ... 437 ACCUSED'S RIGHT TO BE TRIED IN HIS PRESENCE ... 439 ECtHR Jurisprudence ... 439 Generally ... 439 Appeals Proceedings ... 439 Generally ... 440 A Trial in the Absence of the Accused ... 441 Accused's Participation in the Proceedings via Video-Link ... 445 PUBLIC HEARING, CLOSED SESSIONS AND EX PARTE PROCEEDINGS ... 445 ECtHR Jurisprudence ... 445 Generally ... 446 Closed Sessions ... 447 Protection of Witnesses ... 448 Protection of the Interests of Justice ... 450 Generally ... 450 Protection of Confidential Information ... 450 Ex Parte Proceedings ... 451 OPENING STATEMENTS AND CLOSING ARGUMENTS ... 453 Opening Statements ... 453 Closing Arguments and Closing Briefs ... 455 Closing Arguments ... 455 Closing (Final) Briefs ... 456 ORDER OF PRESENTATION OF EVIDENCE GENERALLY ... 458 Ad hoc Tribunals ... 458 ICC ... 459 EXAMINATION IN CHIEF ... 460 Generally ... 460 Using Prior Witness Statements ... 461 Refreshing the Witness's Memory ... 461 Use of Prior Consistent Statements ... 462 CROSS-EXAMINATION ... 462 ECtHR Jurisprudence ... 463 Generally ... 465 The Right to Cross-Examine Witnesses ... 465 Not an Absolute Right ... 467 Scope and Modalities of the Cross-Examination Generally ... 468 Scope of the Prosecution's Cross-Examination ... 471 Cross-Examination in Multi-Accused Trials ... 472 Other Relevant Matters ... 475 Testing the Witness's Credibility ... 476 Generally ... 476 Questioning Related to Proofing and Pre-Trial Interviews ... 478 Disclosure and Use of Material in Cross-Examination ... 479 Use of Prior Statements in Cross-Examination ... 481 Use of Other Witnesses' Statements ... 481 Use of Prior Statements of the Testifying Witness ... 483 Hostile Witness and Impeaching Party's Own Witness... 484 Use of Prior Statements of the Accused ... 488 Putting to the Witness the Nature of the Case of the Cross-Examining Party ... 490 Generally ... 490 Right of the Accused to Remain Silent ... 494 Consequences of the Failure to Comply with Rule 90(H)(ii) ... 495 Admissibility of the Material Presented During Cross-Examination ... 497 Generally ... 497 Admission of Prosecution's Evidence During the Course of the Defence Case ... 497 RE-EXAMINATION ... 505 Generally ... 505 Recalling Witnesses for Re-Examination... 506 ACCUSED TESTIMONY ... 509 Accused as a Witness in his Defence ... 509 Generally ... 509 Timing of the Accused Testimony ... 512 Accused's Communications During the Testimony ... 513 Unsworn Statement of the Accused ... 515 Statement of the Accused ... 515 "Last Word" of the Accused ... 519 IMMUNITY FROM TESTIFYING AND EXAMINATION OF A WITNESS IN POSSESSION OF CONFIDENTIAL INFORMATION ... 519 Immunity from Testifying ... 519 ICRC Employees ... 519 Journalists and War Correspondents ... 520 Examination of a Witness in Possession of Confidential Information ... 522 Generally ... 522 Scope of Examination ... 525 PRESENTATION OF EXHIBITS ... 526 Generally ... 527 Admission of Documents through Witnesses ... 529 Admission of Evidence through the Bar Table Motions ... 533 Advance Disclosure of the Documentary Evidence ... 541 REBUTTAL, REJOINDER, AND REOPENING THE CASE ... 545 Generally ... 545 Rebuttal and Rejoinder ... 547 Rebuttal ... 547 Rejoinder ... 550 Re-Opening the Case ... 552 Generally ... 552 Fresh Evidence ... 554 A Two-Step Procedure ... 555 Reasonable Diligence ... 556 Probative Value of the Proposed Evidence ... 557 The Chamber's Discretion ... 557 EVIDENCE RELEVANT TO SENTENCING ... 559 VIDEO-LINK TESTIMONY AND DEPOSITION EVIDENCE ... 560 Testimony via Video-Conference Link ... 560 Generally ... 560 Witness Unwilling to Attend ... 565 Video-Link Procedure ... 566 Deposition Evidence ... 567 SITE VISIT ... 569 TRIAL CHAMBER'S CONTROL OVER THE PRESENTATION OF EVIDENCE . 572 Generally ... 572 Trial Chamber's Discretion and the Right to be Heard ... 574 Chamber's Discretion ... 574 Right to be Heard ... 574 Disclosure to the Chamber ... 575 Chamber's Authority to set Constraints on the Case ... 576 Generally ... 577 Prosecution Case ... 580 Defence Case ... 581 Directing the Prosecutor to Reduce the Scope of the Indictment ... 582 Severance of the Indictment against a Single Accused ... 587 Chamber's Proprio Motu Order for Production Additional Evidence ... 589 Generally ... 589 Ordering the Prosecution to Obtain Material for the Defence ... 592 Questioning Witnesses by the Judges ... 594 Chamber's Witnesses ... 596 RIGHT NOT TO INCRIMINATE ONESELF ... 600 ECtHR Jurisprudence ... 600 UNHRC Practice ... 602 Right to Silence ... 602 Witness ... 604 Accused ... 606 Suspect ... 607 Counsel for a Witness in Court ... 609 Convicted Person as a Witness in Other Case ... 609 Accused as a Witness in Other Case ... 609 Witness who May Incriminate Himself ... 609 OTHER RELEVANT MATTERS ... 610 "Proofing" Witnesses ... 610 Generally ... 610 ICC Approach ... 615 Providing Witnesses with the Copies of their Statements ... 617 Contacting Witnesses of the Other Party ... 618 Generally ... 618 Contacting Protected Witnesses ... 620 Prosecution Contacting Defence Witnesses ... 621 Defence Contacting Prosecution Witnesses ... 623 The ICC Approach ... 626 Communication with a Witness after Commencement of his Testimony ... 627 Witness Referring to his Notes ... 629 Fitness to Stand Trial ... 630 XII. VICTIMS' PARTICIPATION IN THE PROCEEDINGS (ICC) ... 633 Generally ... 633 Role of the Office of Public Counsel for Victims ... 635 Victims' Participation in the Trial Proceedings ... 636 Generally ... 636 Examination of Evidence ... 637 Presentation of Evidence ... 638 Disclosure by the Victims ... 640 Victims' Anonymity ... 641 Participation in Appeal ... 641 XIII. ADMISSIBILITY OF EVIDENCE AND THE RIGHTS OF THE ACCUSED 643 INTRODUCTION ... 643 GENERAL PROVISIONS ... 645 "A Unique Mixture of Common-law and Civil-Law Rules" ... 645 "Chambers shall not be Bound by National Rules of Evidence" ... 646 Application of National Rules of Evidence ... 647 "Extensive Admissibility" of Evidence ... 648 Discretion of the Trial Chamber ... 650 Pre-trial Chambers of the ad hoc Tribunals' role ... 652 Relevance and Probative Value ... 652 Reliability ... 657 Generally ... 657 Prima Facie Proof and Definite Proof ... 658 Indicia of Reliability ... 659 Hearsay Evidence ... 660 EXCLUSION OF CERTAIN EVIDENCE ... 662 ECtHR Jurisprudence ... 662 International Courts ... 663 DOCUMENTARY EVIDENCE AND INTERCEPTS ... 667 Documentary Evidence ... 667 Generally ... 667 The "Best Evidence" Rule ... 672 Relevance and Probative Value ... 673 Reliability ... 675 Credibility ... 676 Authenticity ... 677 Admissibility of Documents not Listed on Exhibit List ... 680 Other Relevant Matters ... 681 Agreed Documents ... 685 Documents of Common Knowledge ... 686 Rule 92 bis of the SCSL Rules ... 686 Intercepts ... 689 WITNESS STATEMENTS AND SUMMARIES ... 692 Principle of Orality and Admissibility of Written Statements ... 692 Categories of Witness Statements and Summaries ... 693 Admissibility of the Prior Written Statements ... 695 Generally, ad hoc Tribunals ... 695 Generally, ICC ... 697 Prior Statements of Witnesses who Appear in Court ... 699 Statements of Witnesses who have not Testified in the Case ... 702 Prior Statement and Testimony of the Accused ... 703 Challenges to the Accuracy of a Statement ... 711 Reliability of the Statement ... 712 Testimony with Incomplete Cross-Examination ... 714 Admissibility of Written Statements and Transcripts in Lieu of Oral Testimony ... 714 Generally ... 715 Discretion of the Trial Chamber ... 718 The Acts and Conduct of the Accused ... 719 Acts and Conduct of Subordinates ... 720 Relevant Factors ... 722 Statements and Transcripts of Persons Subjected to Interference ... 724 Transcripts ... 725 Exhibits Accompanying Transcripts or Written Statements ... 727 Appearance for Cross-Examination ... 728 Relationship between Rules 92 bis and 89 of the ICTY Rules ... 733 Statement of an Unavailable Person ... 735 Admissibility of Statements that Go to the Acts and Conduct of the Accused ... 742 Admissibility of Written Statements of Witnesses Present in Court ... 745 Admissibility of Witness Statements under 92 ter of the ICTY and SCSL Rules ... 745 Admissibility of Witness Statements under Rule 68(b) of the ICC Rules ... 757 Admissibility of Witness Statements under Rule 156 of the STL Rules ... 759 Admissibility of Testimony Disclosed in Will-Say Statements ... 759 Summaries of Witness Statements at the Confirmation Hearing in the ICC ... 760 Generally ... 760 Use of Summaries as a Protective Measure ... 760 SUMMARISED MATERIAL ... 761 Summarised Documents ... 761 Summarised Statements ... 763 EXPERT ... 764 Qualifications of an Expert ... 764 Impartiality of an Expert ... 767 Expert Evidence ... 770 ECtHR Jurisprudence ... 770 Generally ... 771 Expert Testimony ... 774 Expert Report Generally ... 774 Sources Used by Expert ... 776 Admissibility of Documentary Souces ... 778 Admissibility of Expert Reports Generally ... 779 Opinion on Legal Matters ... 783 "Ultimate Issue" Rule ... 784 Expert Witness and Factual Witness ... 785 Cross-Examination of the Expert ... 786 Expert Assisting Party in the Courtroom ... 787 Application of Rule 92 bis and 92 ter to Expert Witnesses ... 788 FACTS ADMISSIBLE FOR JUDICIAL NOTICE AND AGREED FACTS ... 791 Judicial Notice ... 791 Generally ... 791 Applicability to Appeal Proceedings ... 793 Facts of Common Knowledge ... 793 Generally ... 793 Definition ... 795 Some Specific Types of the Facts ... 796 Reasonably Indisputable ... 797 Adjudicated Facts or Documentary Evidence from Other Proceedings ... 798 Generally ... 798 The Legal Effect of Judicially Noticing an Adjudicated Fact ... 802 Rebuttal of the Judicially Noticed Facts ... 804 Presumption of Innocence ... 806 Conditions for Admissibility of Adjudicated Facts Generally ... 807 Facts Related to the Guilt of the Accused ... 816 Facts Related to the Core of the Case ... 818 Chamber's Discretion ... 818 Interests of Justice ... 822 A Request for Judicial Notice ... 822 Legal Conclusions ... 823 Documentary Evidence ... 824 Difference Between Judicial Notice of Facts of Common Knowledge and that of Adjudicated Facts ... 828 Agreed Facts ... 829 EVIDENCE IN REBUTTAL AND REJOINDER ... 832 Rebuttal and Reopening the Case ... 832 Generally ... 832 Rebuttal Material Before the Appeals Chamber ... 833 Rejoinder Evidence ... 834 EVIDENCE OUTSIDE THE SCOPE OF THE INDICTMENT ... 834 Evidence of the Material Facts not Pleaded in the Indictment ... 834 Evidence Related to the Facts or Period not Covered in the Indictment ... 838 EVIDENCE IN CASES OF SEXUAL VIOLENCE ... 840 SOME OTHER TYPES OF EVIDENCE ... 841 Tu Quoque Evidence ... 841 Identification Evidence ... 843 Other Types of Evidence ... 844 VOIR DIRE EVIDENTIARY HEARING ... 845 Generally ... 845 Voluntariness of Interview ... 847 Expert's Qualifications ... 848 Evidentiary Hearing on Other Matters ... 849 XIV. DEFENCES... 850 Generally ... 850 Burden of Proof ... 851 Diminished Mental Responsibility ... 853 XV. DECISIONS AND JUDGEMENTS ... 854 ECtHR Jurisprudence ... 854 GENERALLY ... 854 DECISIONS ... 855 Generally ... 855 General Requirements ... 855 Reasons for a Decision ... 858 Separate Opinions ... 859 A Decision of a Trial Chamber is not Binding for other Chamber ... 859 Reconsideration of Previous Decisions ... 861 Review of Administrative Decisions of the Registrar ... 866 JUDGEMENTS ... 869 Reasoned Opinion ... 869 Evaluation of Evidence, "Beyond Reasonable Doubt" Standard of Proof ... 873 Assessment of Evidence ... 876 Inconsistencies in Evidence ... 876 Credibility of Evidence ... 877 Corroboration of Evidence ... 878 Circumstantial Evidence ... 880 Accomplice Evidence ... 881 Hearsay Evidence ... 881 Evidence Related to Alibi ... 882 Cumulative Conviction ... 885 Sentencing ... 886 Generally ... 886 Purposes of Sentencing ... 888 Aggravating and Mitigating Factors ... 889 Standard of Proof ... 891 Gravity of the Offences ... 891 Guilty Plea ... 892 Co-operation with the Prosecution ... 893 MOTIONS FOR JUDGEMENT OF ACQUITTAL ... 895 Introduction ... 895 Generally ... 899 The Applicable Test ... 900 Generally ... 900 Sufficiency of Evidence ... 903 "Could" Convict ... 905 XVI. RIGHT TO APPEAL ... 907 STANDARD OF REVIEW BY THE APPEALS CHAMBER ... 907 APPEAL FROM JUDGEMENT ... 908 Generally ... 908 Error of Fact ... 910 Error of Law ... 912 Generally ... 912 Submissions of the Parties ... 914 New Sentence on Appeal ... 915 Proceedings upon the Death of an Appellant ... 916 Notice of Appeal from Judgement ... 917 Generally ... 917 Variation to the Notice of Appeal ... 919 ADDITIONAL EVIDENCE ON APPEAL ... 921 General Provisions ... 921 Tactical Decisions ... 925 Applicability to Interlocutory Appeals ... 925 Additional Evidence Bolstering Challenged Trial Chamber's Finding ... 926 Requirements in General ... 926 Admissibility if the Evidence was not Available at Trial ... 930 "Due diligence" ... 932 Admissibility if the Evidence was Available at Trial ... 935 "Gross Negligence" as an Exception ... 935 INTERLOCUTORY APPEALS ... 936 Generally ... 936 ICTY, ICTR, and ICC ... 936 SCSL ... 941 Requirements under ICTY, ICTR, and ICC Law ... 942 Two Cumulative Conditions ... 942 Chamber's Discretion ... 944 Request for Certification ... 945 Requirements under SCSL Law ... 946 Generally ... 946 "Exceptional Circumstances" ... 948 Application to Some Rulings ... 950 Admissibility of Evidence ... 950 Judgement on a Motion for Acquittal under Rule 98 bis ... 952 Other Rulings ... 953 REVIEW OF THE TRIAL CHAMBERS' DISCRETIONARY DECISIONS ... 960 Generally ... 960 Types of Discretionary Decisions ... 963 STATE REQUEST FOR REVIEW ... 964 Generally ... 964 Types of the Decisions Subject to Review ... 965 REVIEW OF A FINAL JUDGEMENT... 966 ECtHR Jurisprudence ... 966 Generally ... 967 The Types of Decisions Subject to Review ... 967 A New Fact ... 968 Difference between Additional Evidence on Appeal and New Facts in the Review Proceedings ... 971 XVII. REFERRAL OF THE CASE TO ANOTHER COURT AND THE RIGHTS OF THE ACCUSED... 973 INTRODUCTION ... 973 GENERALLY ... 976 DISCRETION OF THE REFERRAL BENCH ... 977 RELEVANT FACTORS ... 979 Level of Responsibility of the Accused and Gravity of the Crimes ... 979 Generally ... 979 Level of Responsibility ... 980 Gravity of Crimes ... 982 Adequate Legal Framework ... 983 Generally ... 983 Applicable Substantive Law ... 985 Protective Measures ... 986 DETERMINATION OF THE STATE OF REFERRAL ... 987 MONITORING MECHANISM... 988 OTHER RELEVANT MATTERS ... 990 Laws of Extradition ... 990 Other Matters ... 993 XVIII. CONTEMPT PROCEEDINGS AND FALSE TESTIMONY ... 995 CONTEMPT PROCEEDINGS ... 995 Generally ... 995 Applicable Standard ... 997 Disclosure of Protected Information ... 998 Violation of Protective Measures ... 998 Disclosure of Confidential Decisions ... 1000 Non-compliance with Subpoena ... 1001 Interference with a Witness ... 1002 Refusal to Testify ... 1003 Judicial Impartiality ... 1004 Procedural Matters ... 1005 Pre-Trial Brief ... 1005 Appeal Proceedings ... 1006 Other Procedural Matters ... 1008 FALSE TESTIMONY ... 1010 Generally ... 1010 Procedural Matters ... 1012 XIX. ARREST AND DETENTION ... 1015 Generally ... 1015 Sovereignty of a State ... 1016 Provisional Detention of Suspects ... 1016 Duration of Pre-Trial Detention ... 1018 Detainee's Communication with the Outside World ... 1019 Generally ... 1019 Detainee's Contact with the Media ... 1019 Communication with Legal Associates ... 1021 XX. PROVISIONAL RELEASE ... 1022 ECtHR Jurisprudence and UNHRC Practice ... 1022 GENERALLY ... 1025 Factors that are Specific to the Functioning of the Tribunal ... 1025 General Principles ... 1027 Presumption of Innocence ... 1029 Timing of the Provisional Release Generally ... 1029 Provisional Release after Commencement of Trial ... 1030 Generally ... 1030 Release After Rule 98 bis Ruling ... 1031 Compelling Humanitarian Reasons ... 1032 Provisional Release of Convicted Persons ... 1035 Generally ... 1035 Release Pending Appeal ... 1038 Release After Proceedings Completed ... 1038 Removal of the "Exceptional Circumstances" Requirement from the Rule ... 1039 Burden of Proof ... 1040 Accused's Burden ... 1040 Prosecution's Burden ... 1043 Two Express Pre-Conditions ... 1044 PROVISIONAL RELEASE, THE RELEVANT FACTORS ... 1045 Generally ... 1045 Seriousness of the Charges ... 1048 Government's Guarantees ... 1050 Generally ... 1050 The Reliability of a Guarantee ... 1052 Prior Position of the Accused in the Hierarchy ... 1054 Accused's Co-operation with the Prosecution ... 1055 Circumstances of Surrender ... 1057 The Threat Posed to Victims and Witnesses ... 1058 Other Factors ... 1059 Some Specific Circumstances ... 1061 Trial Chamber's Discretion ... 1062 Generally ... 1062 Review by the Appeals Chamber ... 1064 TEMPORARY PROVISIONAL RELEASE AND MODIFICATION OF THE TERMS OF PROVISIONAL RELEASE... 1066 Temporary Provisional Release on Medical and Humanitarian Grounds ... 1066 Some Relevant Matters ... 1071 OTHER PROCEDURAL MATTERS ... 1073 Generally ... 1073 Stay of a Decision to Release ... 1074 MODIFICATION OF THE CONDITIONS OF DETENTION ... 1076 Generally ... 1076 House Arrest ... 1077 XXI. RIGHT TO JUDICIAL REVIEW OF THE LEGALITY OF DETENTION (HABEAS CORPUS) ... 1079 ECtHR Jurisprudence ... 1079 UNHRC Practice ... 1080 Ad hoc Tribunals ... 1081 ICC ... 1083 Generally ... 1083 Disclosure of Relevant Documents ... 1084 XXII. RIGHT TO INTERPRETATION AND TRANSLATION... 1086 ECtHR Jurisprudence ... 1086 UNHRC Practice ... 1087 Generally ... 1087 Working Languages of the Tribunals ... 1090 Translation of Disclosed Material ... 1091 Generally ... 1091 Exculpatory Material ... 1096 Translation of Exhibits ... 1096 XXIII. REMEDIES FOR VIOLATIONS OF THE ACCUSED'S RIGHTS ... 1099 ECtHR Jurisprudence ... 1099 Generally ... 1100 Remedies for a Person Detained by the National Authorities ... 1101 Abuse of Process (Setting Aside Jurisdiction) ... 1102 Generally ... 1102 Non-Compliance with Immunity/Amnesty Agreements ... 1107 Reduction of the Sentence ... 1108 Financial Compensation for an Acquitted Person ... 1108 XXIV. OTHER PROCEDURAL MATTERS ... 1111 Retrial ... 1111 Medical Examination of the Accused ... 1112 Amicus Curiae ... 1113 Generally ... 1113 Discretion ... 1114 Affected States and Organizations ... 1116 Self-Represented Accused ... 1117 Public, Confidential, and Ex Parte Filings ... 1118 Public filings ... 1118 Confidential filings ... 1121 Ex parte filings ... 1122 E-mail Communications between the Parties and Chamber ... 1126 Physical Evidence ... 1126 Generally ... 1127 Availability of the Exhibits to the Public ... 1128 Ongoing Investigations by the Prosecutor ... 1128 Reply to the Response ... 1131 Commutation of Sentences ... 1133 Generally ... 1133 Cooperation with the Prosecution After Conviction ... 1134 XXV. INTERNATIONAL HUMAN RIGHTS LAW AND INTERNATIONAL TRIBUNALS ... 1135 ECHR AND INTERNATIONAL TRIBUNALS ... 1135 Generally ... 1135 Inadmissibility of Complains Against the Tribunals' Judgements ... 1135 APPLICABILITY OF THE INTERNATIONAL HUMAN RIGHTS LAW IN PRACTICE OF THE AD HOC TRIBUNALS ... 1136 Generally ... 1136 Equality of Arms, Fair Trial ... 1138 Provisional Release (Burden of Proof) ... 1138 Right to Appeal ... 1139 INDEX ... 1141