141
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) All 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-AR108bis, Appeals Chamber,
29 October 1997, para. 25.
Case No.: -94-1-A
15 July 1999
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