Gotovina et al Judgement Volume I - ICTY

393022. Sources and use of evidence14. Standard of Proof. Pursuant to Article 21 (3) of the Statute, the Accused areentitled to a presumption of innocence. Pursuant to Rule 87 (A) of the Rules, thestandard for determining guilt is proof beyond a reasonable doubt. Accordingly, eachand every element of the offences charged against an accused must be proven beyond areasonable doubt. This burden remains with the Prosecution throughout the trial. 1 Anaccused must be acquitted if there is any reasonable explanation of the evidence otherthan the guilt of the accused. 2 In making findings, the Trial Chamber applied thestandard of beyond a reasonable doubt.15. Witnesses. Out of a total of 145 viva voce fact and expert witnesses that the TrialChamber heard, 81 were called by the Prosecution, 25 by the Gotovina Defence, 19 bythe Čermak Defence, 13 by the Markač Defence, and 7 by the Trial Chamber. Out of thetotal number of witnesses heard in court, 12 witnesses were subpoenaed and 3 weresummoned to appear before the Trial Chamber.16. The Trial Chamber admitted witnesses’ testimony or statements pursuant toRules 92 bis, ter, and quater. It admitted evidence tendered pursuant to Rule 92 ter ofthe Rules in relation to 122 witnesses. Rule 92 ter of the Rules allows for the admissionof evidence that goes to proof of acts and conduct of an accused. 3 Nevertheless, theTrial Chamber expressed a strong preference that such evidence, being importantevidence central and critical to the case, be elicited orally from a witness in court. 4 TheTrial Chamber admitted evidence of 20 witnesses pursuant to Rule 92 bis of the Rules. 5Rule 92 quater of the Rules also allows for the admission of evidence that goes to proofof acts and conduct of an accused, although this may be a factor weighing againstadmission. 6 The Trial Chamber admitted statements of 15 unavailable witnesses1 Brñanin Trial Judgement, para. 22.2 Čelebići Appeal Judgement, para. 458.3 Rule 92 ter (B) of the Rules.4 T. 2205.5 Decision on the First Batch of Rule 92 bis Witnesses, 3 June 2008; Decision on the Second Batch ofRule 92 bis Witnesses, 24 July 2008; Third Decision on Rule 92 bis Witnesses, 3 November 2008;Decision on Prosecution’s Third Motion for Admission of Evidence Pursuant to Rule 92 bis, 5 March2009; Decision on Defendant Ante Gotovina’s Motion for Admission of Evidence of One WitnessPursuant to Rule 92 bis, 16 September 2009; T. 21783-21786; Decision on Defendant Ivan Čermak’sMotion for Admission of Evidence of Two Witnesses Pursuant to Rule 92 bis and Decision on DefendantIvan Čermak’s Third Motion for Protective Measures for Witnesses IC-12 and IC-16, 11 November 2009.6 Rule 92 quater (B).13Case No.: IT-06-90-T 15 April 2011 `