Evidentiary issues and witnesses - Commentary

Most of the commented decisions are related to the typical problem of the International Criminal Tribunals, in the field of criminal evidence: ascertain the truth and come to a conclusion in a reasonable delay respecting at the same time the fundamental rights of the accused, first of all the right to examine the witnesses presented against her/him. It is well known that this is not an easy task. On one side, the sources of law do not offer, in most cases, the specific solution to the issue that must be decided. The Rules of Procedure and Evidence are often too vague, assigning a broad discretion to the judges. For this reason, the judges, instead of merely applying a provision, are obliged to establish a solution with some originality for the specific case devolved to their attention. Judicial discretion is indeed an indisputable source of power; however, at the same time, it is a font of great responsibility. The system of the International Criminal Tribunals relies more on the judiciary, than on the lege scripta. On the other, if applied literally, the Rules often may give rise to some criticism, due to the lack of sufficient protection of the right to confrontation of the Defence