1. Legal provisions governing the taking of witness statements
ROME STATUTE
Rules of Procedure and Evidence
International Criminal Court
Legal provisions governing the taking of witness statements

2. Rome Statute
Article 54(1) - Duties and powers of the Prosecutor with respect to investigations
The Prosecutor shall:
(a) In order to establish the truth, extend the investigation to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under this Statute, and, in doing so, investigate incriminating and exonerating circumstances equally;
(b) Take appropriate measures to ensure the effective investigation and prosecution of crimes within the jurisdiction of the Court, and in doing so, respect the interests and personal circumstances of victims and witnesses, including age, gender as defined in article 7, paragraph 3, and health, and take into account the nature of the crime, in particular where it involves sexual violence, gender violence or violence against children; and
(c) Fully respect the rights of persons arising under this Statute.

3. Rome Statute
Article 54 – Duties and powers of the Prosecutor with respect to investigations
3. The Prosecutor may:
(a) Collect and examine evidence;
(b) Request the presence of and question persons being investigated, victims and witnesses;

4. Article 55 – Rights of persons during an investigation
Art. 55(1) - In respect of an investigation under this Statute, a person:
Shall not be compelled to incriminate himself or herself or to confess guilt;
Shall not be subjected to any form of coercion, duress or threat, to torture or to any other form of cruel, inhuman or degrading treatment or punishment;
Shall, if questioned in a language other than the language, the person fully understands and speaks, have free of cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness; and
Shall not be subjected to arbitrary arrest or detention, and shall not be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established in this Statute.

5. Article 55 – Rights of persons during an investigation
Article 55 (2) Where there are grounds to believe that a person has committed a crime within the jurisdiction of the Court and that person is about to be questioned, either by the Prosecutor or by national authorities, that person shall also have the following rights of which he or she shall be informed prior to being questioned:
(a) be informed, prior to being questioned, that there are grounds to believe that he or she has committed a crime within the jurisdiction of the Court;
(b) to remain silent without such silence being a consideration in the determination of guilt or innocence;
(c) to have legal assistance of the person’s choosing, or, if the person does not have a legal assistance, to have legal assistance assigned to him or her, in any case where the interests of justice so require and without payment by the person in any such case if the person does not have sufficient means to pay for it; and [see also Rule 21]
(d) to be questioned in the presence of counsel unless the person has voluntarily waived his or her right to counsel.

6. Recording of witness statements
Rule Record of questioning in general:
A record shall be made of formal statements;
That record needs to be signed by the person who records and conducts the questioning and by the person who is questioned and his or her counsel, if present, and, where applicable, the Prosecutor or the judge who is present;
The record shall note:
The date, time and place of the interview;
Identification of all persons present during the questioning;
It shall also be noted in the record when someone has not signed it as well as the reasons therefor.
In interviews under art. 55(2) it needs to be noted on the records that the person was informed of his or her rights as listed in that article.

7. Recording of witness statements
Rule Record of questioning in particular cases
Situations for audio- or video-recorded questioning:
Compulsory - person to whom art. 55(2), applies; person against whom an warrant of arrest or a summons to appear has been issued – Rule 112(1);
As an option: Other persons, in particular where the use of such procedures could assist in reducing any subsequent traumatization of a victim of sexual or gender violence, a child or a person with disabilities in providing their evidence; procedure: choice of the Prosecutor who makes for that effect an application to the relevant Chamber – Rule 112(4);
Pre-Trial Chamber decision: in the context of an unique investigative opportunity - 56(2) - the PTC may order that the procedure in rule 112 be applied to the questioning of any person – Rule 112(5).

8. Recording of witness statements
Rule Record of questioning in particular cases
Exceptions to the audio- or video-recorded questioning:
The Prosecutor shall make every reasonable effort to record the questioning in accordance with sub-rule 1 – Rule 112(2)
As an exception, a person may be questioned without the questioning being audio- or video-recorded where the circumstances prevent such recording taking place – Rule 112(2)
In this case, the reasons for not recording the questioning shall be stated in writing and the procedure in rule 111 shall be followed – Rule 112(2)
When, pursuant to sub-rule 1 (a) or 2, the questioning is not audio- or video-recorded, the person questioned shall be provided with a copy of his or her statement – Rule 112(3);
If the person questioned refuses to be audio- or video-recorded, the procedure in rule 111 shall be followed – Rule 112(1)(a).

9. Recording of witness statements
Procedures for audio- or video-recorded questioning:
Person questioned shall be informed, in a language he or she fully understands and speaks, that the questioning is to be audio- or video-recorded – Rule 112(1)(a);
The person concerned may object if he or she so wishes – Rule 112(1)(a);
The fact that this information has been provided and the response given by the person concerned shall be noted in the record – Rule 112(1)(a);
The person may, before replying, speak in private with his or her counsel, if present – Rule 112(1)(a);
In the event of an interruption in the course of questioning, the fact and the time of the interruption shall be recorded before the audio- or video-recording ends as well as the time of resumption of the questioning;
The time of conclusion of the questioning shall be noted - Rule 112(1)(b);
At the conclusion of the questioning, the person questioned shall be offered the opportunity to clarify anything he or she has said and to add anything he or she may wish - Rule 112(1)(b).

10. Recording of witness statements
Procedures for audio- or video-recorded questioning - Rule 112(1):
A waiver of the right to be questioned in the presence of counsel shall be recorded in writing and, if possible, be audio- or video-recorded - Rule 112(1)(b);
The tape shall be transcribed as soon as practicable after the conclusion of the questioning and a copy of the transcript supplied to the person questioned together with a copy of the recorded tape or, if multiple recording apparatus was used, one of the original recorded tapes - Rule 112(1)(e);
The original tape or one of the original tapes shall be sealed in the presence of the person questioned and his or her counsel, if present, under the signature of the Prosecutor and the person questioned and the counsel, if present - Rule 112(1)(f).

11. Unique investigative opportunity
Rome Statute
Unique investigative opportunity
Identify relevant situations:
Where the Prosecutor considers an investigation to present a unique opportunity to take testimony or a statement from a witness or to examine, collect or test evidence, which may not be available subsequently for the purposes of a trial, the Prosecutor shall so inform the Pre- Trial Chamber - art.56(1)(a).
Criteria – foreseeable risk of witness not able to attend trial:
Witnesses with short-life expectancy or illness (physical and psychological);
Witnesses operating actively in open conflict zones;
Witnesses living in highly unsecure areas;
Detained witnesses who once freed will not be reachable;
Other
Investigators should identify situations and report back to the team for proper action to be taken.

12. Article 56 – Unique investigative opportunity
Rome Statute
Article 56 – Unique investigative opportunity
Procedure:
Prosecutor informs Pre- Trial Chamber of the situation and requests measures – art. 56(1)(a) and (1)(b)
Unless the Pre-Trial Chamber orders otherwise, the Prosecutor shall provide the relevant information to defendant(s), in order that he or she may be heard on the matter – art. 56(1)(c) [Prosecutor may request non-disclosure to the Defence when justified]
Pre-Trial Chamber decides on such measures as may be necessary to ensure the efficiency and integrity of the proceedings and, in particular, to protect the rights of the defence - art. 56(1)(a) and (1)(b)
Rule 114(1) – consultation process and majority decision

13. Article 56 – Unique investigative opportunity
Rome Statute
Article 56 – Unique investigative opportunity
Measures - art 56(2):
2. The measures referred to in paragraph 1 (b) may include:
(a) Making recommendations or orders regarding procedures to be followed;
(b) Directing that a record be made of the proceedings;
(c) Appointing an expert to assist;
(d) Authorizing counsel for a person who has been arrested, or appeared before the Court in response to a summons, to participate, or where there has not yet been such an arrest or appearance or counsel has not been designated, appointing another counsel to attend and represent the interests of the defence;
(e) Naming one of its members or, if necessary, another available judge of the Pre-Trial or Trial Division to observe and make recommendations or orders regarding the collection and preservation of evidence and the questioning of persons;
(f) Taking such other action as may be necessary to collect or preserve evidence.

14. Article 56 – Unique investigative opportunity
Rome Statute
Article 56 – Unique investigative opportunity
Result
 Possibility of introducing the recorded statement at trial if the witness is not available at that stage of the proceedings, as predicted - art. 69(1) and Rule 68(1).
 The admissibility of evidence preserved or collected for trial pursuant article 56, or the record thereof, shall be governed at trial by article 69, and given such weight as determined by the Trial Chamber – art. 56(4).

15. Rome Statute
Article 68 – Protection of the victims and witnesses and their participation in the proceedings
The Prosecutor shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses – art. 68 (1)
In so doing, the Prosecutor shall have regard to all relevant factors, including age, gender as defined in article 7, paragraph 3, and health, and the nature of the crime, in particular, but not limited to, where the crime involves sexual or gender violence or violence against children – art. 68 (1)
The Prosecutor shall take such measures particularly during the investigation and prosecution of such crimes – art. 68 (1)
These measures shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial – art. 68 (1)

16. Evidence Admissibility and credibility of statements
The testimony of a witness at trial shall as a rule be given in person, with the following exceptions - art. 69(2):
Protective measures approved by Chamber under article 68 or RPE;
Viva voce (oral) or recorded testimony of a witness by means of video or audio technology – Rule 67;
Introduction of documents or written transcripts – Rule 68.
These measures shall not be prejudicial to or inconsistent with the rights of the accused.

17. Evidence Admissibility and credibility of statements
The Trial Chamber shall have, inter alia, the power on application of a party or on its own motion to rule on the admissibility or relevance of evidence – art. 64(9)
The Court may rule on the relevance or admissibility of any evidence, taking into account, inter alia, the probative value of the evidence and any prejudice that such evidence may cause to a fair trial or to a fair evaluation of the testimony of a witness, in accordance with the Rules of Procedure and Evidence - art. 69(4).
Evidence obtained by means of a violation of this Statute or internationally recognized human rights shall not be admissible if:
(a) The violation casts substantial doubt on the reliability of the evidence; or
(b) The admission of the evidence would be antithetical to and would seriously damage the integrity of the proceedings.

18. Admissibility of statements at Trial
Rule 68 - Prior recorded testimony
[As amended by resolution ICC-ASP/12/Res.7.]
Prior recorded testimony refers to previously recorded audio or video testimony of a witness, or the transcript or other documented evidence of such testimony (eg. written statement under Rule 111).
Possibilities of introducing a prior recorded testimony at trial:
Pre-Trial Chamber has taken measures under article 56 (UIO) – 68(1)
Trial Chamber, after hearing the parties, allows the introduction of prior recorded statements, provided that:
Is not be prejudicial to or inconsistent with the rights of the accused
the requirements of one or more of the following situations are met: .

19. Admissibility of statements at Trial (cont.)
Witness who gave the previously recorded testimony is not present at trial and one of the following instances occurs:
Both the Prosecutor and the defence had the opportunity to examine the witness during the recording – art. 68(2)(a);
The prior recorded testimony goes to proof of a matter other than the acts and conduct of the accused – art. 68(2)(b);
The prior recorded testimony comes from a person who has subsequently died, must be presumed dead, or is, due to obstacles that cannot be overcome with reasonable diligence, unavailable to testify orally – art. 68(2)(c);
The prior recorded testimony comes from a person who has been subjected to interference – art. 68(2)(d).
Witness who gave the previously recorded testimony is present at trial and:
The witness does not object to the submission of the previously recorded testimony;
The Prosecutor, the defence and the Chamber have the opportunity to examine the witness during the proceedings.
NOTE: If the witness objects to its submission, the previous statement is not introduced per se in the record, but any contradictions between the statement of the witness during trial and previous statements can still be dealt through examination/cross-examination - its content can be referred back to the witness by the Prosecution/Defence.

20. Article 70 Offences
Before testifying at trial, each witness shall, in accordance with the Rules of Procedure and Evidence, give an undertaking as to the truthfulness of the evidence to be given by that witness - art. 69(1).
The Court shall have jurisdiction over the following offences against its administration of justice when committed intentionally - art. 70(1)(a)
Giving false testimony when under an obligation pursuant to article 69, paragraph 1, to tell the truth.
NOTE: there is no criminal offence under art. 70 if during investigations witness contradicts a previous statement not given under oath.