500. Counts 21 and 22 related to repeated incidents of forcible sexual intercourse and rape of Witness A (Ms Antic)773 over six weeks by Delic. Count 21 charged Delic with a grave breach of the Geneva Conventions (torture) under Article 2 of the Statute. Count 22 charged him with a violation of the laws or customs of war, based on common Article 3 of the Geneva Conventions (torture), under Article 3 of the Statute.
501. Based upon the testimony of Ms Antic, the Trial Chamber identified and discussed in the Judgement three occasions when Ms Antic was raped by Delic. The first time was on the night of her arrival in the Celebici camp, in Building B, when Delic interrogated her and threatened to shoot her or transfer her to another camp if she did not comply with his orders.774 The second time occurred in Building A, after Deli} had ordered Ms Antic to wash herself in Building B. On that occasion Delic was found to have penetrated her both anally and vaginally.775 The third rape occurred in Building A during the day.776 The Trial Chamber noted that on the three occasions Delic was in uniform and armed and threatened her.777 The Trial Chamber also observed that the victim was constantly crying and had to be treated with tranquilizers, and concluded that “there can be no question that these rapes caused severe mental and physical pain and suffering to Ms Antic”.778 The Trial Chamber found that the rape and severe emotional and psychological suffering of Ms Antic was corroborated by the testimony of Ms Cecez and Dr Gruba~.779 It also concluded that the purpose of the first rape was to obtain some information and that the rapes were perpetrated by Delic with a
772 Aleksovski Appeal Judgement, para 64.
773 The witness referred to as Witness A in the Indictment did not seek protective measures at trial and was
subsequently referred to as Ms Milojka Antic in the Judgement; See para 945, Trial Judgement.
774 Trial Judgement, para 958. 775 Ibid, para 960.
776 Ibid, para 961. 777 Ibid, para 963. 778 Ibid, para 964. 779 Ibid, para 959.
discriminatory intent.780 The Trial Chamber accordingly found Delic guilty of torture under Counts 21 and 22 of the Indictment.781
502. Deli} contends that the Trial Chamber erred in relying on the testimony of the victim only, which was not consistent and not credible. He further argues that the Trial Chamber wrongly relied on a “presumption of reliability” in favour of the rape victim who gave testimony in court, thus shifting the burden of proof to the defence to rebut that presumption. He submits that Rule 96(i) of the Rules merely removes a presumption of unreliability of victims of sexual offence but does not create a legal presumption that victims are reliable witnesses, which would be contrary to Article 21(2) of the Statute. Deli} submits that acquittals should be substituted on these counts or that a new trial should be ordered.782
503. The Prosecution submits that the testimony of a single witness on a material fact may be sufficient to establish guilt beyond reasonable doubt. Contrary to Deli}’s contention, the Trial Chamber’s reference to a presumption of reliability in relation to victims of sexual assault does not imply that the accused is presumed guilty. In the Prosecution’s submission, Deli}’s arguments as to unreliability do not demonstrate that the Trial Chamber’s findings were unreasonable.783
504. The arguments put forward by Deli} are primarily concerned with the standard used by the Trial Chamber to assess the testimony of the victim of the sexual assaults perpetrated by him. The relevant paragraph of the Judgement reads:
The Trial Chamber notes that sub-Rule 96(i) of the Rules, provides that no corroboration of the victim’s testimony shall be required. It agrees with the view of the Trial Chamber in the Tadi} Judgement, quoted in the Akayesu Judgement, that this sub-Rule:
accords to the testimony of a victim of sexual assault the same presumption of reliability as the testimony of other crimes, something long been denied to victims of sexual assault by the common law.784
505. The Trial Chamber in this paragraph was expressing its agreement with the holding of another Trial Chamber that victims of sexual assault should be considered as reliable as victims of other crimes. The use of the term “presumption of reliability” was inappropriate as there is no such presumption. However, the Appeal Chamber interprets that holding as simply affirming that the purpose of Rule 96(i) is to set forth clearly that, contrary to the position taken
780 Ibid, para 963.
781 The Trial Chamber dismissed Count 23, a violation of the laws or customs of war, with which Deli} was charged
in the alternative; See para 965.
782 Deli} Brief, paras 308-319; Deli} Reply, paras 124-128, and Appeal Transcript, pp 502-503. 783 Prosecution Response, paras 11.15-11.17, and Appeal Transcript, pp 535-538.
in some domestic jurisdictions, the testimony of victims of sexual assault is not, as a general rule, less reliable than the testimony of any other witness. The appellant’s argument that the Trial Chamber shifted the burden of proof to the Defence is thus misconceived, as the Trial Chamber did not rely on any “presumption of reliability” to assess the evidence before it. In the paragraph following the one just quoted the Trial Chamber assessed the evidence of Ms Anti} as follows:
Despite the contentions of the Defence, the Trial Chamber accepts Ms. Anti}’s testimony, and finds, on this basis, and the supporting evidence of Ms. ]e}ez, Witness P and Dr. Petko Gruba~, that she was subjected to three rapes by Hazim Deli}. The Trial Chamber finds Ms. Anti}’s testimony as a whole compelling and truthful, particularly in light of her detailed recollection of the circumstances of each rape and her demeanour in the court room in general and, particularly, under cross-examination. The alleged inconsistencies between her evidence at trial and prior statements are immaterial and were sufficiently explained by Ms. Anti}. She consistently stated under cross-examination that, when she made those prior statements, she was experiencing the shock of reliving the rapes that she had “kept inside for so many years”. Further, the probative value of these prior statements is considerably less than that of direct sworn testimony which has been subjected to cross-examination.785
506. As already stated, there is no legal requirement that the testimony of a single witness on a material fact be corroborated before it can be accepted as evidence.786 What matters is the reliability and credibility accorded to the testimony. Contrary to Deli}’s assertion, the Trial Chamber did not presume that the testimony of Ms Anti} was reliable and credible as it discussed it carefully, and identified particular reasons why it considered her credible. Clearly, the testimony of Ms Anti} was ascertained on its individual merit, and treated as the testimony of any other witness, and the Trial Chamber was careful to discuss the inconsistencies between prior and live testimony.787 Moreover, as held above and also in this Judgment, the hearing, assessing and weighing of the evidence presented at trial is primarily vested with the Trial Chamber, which is best placed to ascertain whether a witness is reliable in the circumstances of the case.788
507. The Appeals Chamber is of the view that the appellant has failed to demonstrate that the Trial Chamber erred in its evaluation of the evidence, and reached a conclusion that no reasonable tribunal could have reached. Accordingly, these grounds of appeal must fail.
784 Trial Judgement, para 956 (footnote omitted). 785 Trial Judgement, para 957 (emphasis added). 786 See above para 492.
787 Trial Judgement, para 957.