On the Admissibility of Statements Made by the Defendant Prior to Trial: Remarks on the ICTY Appeals Chamber's Decisions in Halilovic and Prlic et al.

Abstract

The purpose of this article is to focus on a number of procedural issues related to the admission of statements made by the accused that have recently been discussed before the International Criminal Tribunal for the former Yugoslavia (ICTY). Considering that not every possible evidentiary matter is specifically provided for in the Statute or in the Rules of Procedure and Evidence, and bearing in mind the debate on and the move towards the admissibility of written evidence in complex international proceedings, on several occasions a tension has occurred between the adversarial and the inquisitorial approach to the admission of evidence. However, analysis of recent decisions of the Appeals Chamber of the ICTY demonstrates that the absence of specific rules did not affect the fairness of the trial and the protection of the rights of suspects and accused in all stages of the proceedings. The reasoning supporting the decisions of the Appeals Chamber attempts to provide clear guidance on different aspects of the rights of the accused and, more generally, of the right to a fair trial, interpreted in light of the particularities and the scope of trials before international jurisdictions.