EXPLAINER: ICC Rules 68.2 and 68.3: How prior witness testimonies may be used in Duterte trial

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THE HAGUE — Rules 68.2 and 68.3 of the International Criminal Court's (ICC) Rules of Procedure and Evidence were mentioned during the fifth and final status conference in the case of former Philippine president Rodrigo Duterte on Monday.

The provisions concern the use of previously recorded witness testimony and this could affect how evidence is presented when Duterte's trial begins on November 30.

The key distinction between the two rules is whether the witness must appear before the Trial Chamber.

Under Rule 68.2, the court may allow previously recorded testimony to be introduced even if the witness is not present. This is permitted only under specific circumstances, including when both the prosecution and defense had the opportunity to examine the witness during the recording, or when the witness has died, is unavailable despite reasonable efforts, or has been subjected to improper interference.

The rule also allows the introduction of testimony concerning matters other than the accused's acts and conduct, subject to additional requirements.

Rule 68.3, meanwhile, applies when the witness is present before the Trial Chamber. Previously recorded testimony may be introduced if the witness does not object and the prosecution, defense and judges have the opportunity to examine them during the proceedings.

Atty. Kristina Conti, an ICC counsel representing the victims, explained that Rule 68.3 covers witnesses who already have recorded statements or other material on record.

“Ang ibig sabihin lang po nito, ang may 68.3, ito po ay mga witnesses na meron ng dating testimonya, dokumento o, ah, videos na sila'y nagsasalaysay. So kumbaga may affidavit na dati,” Conti said.

(What this means is that the 68.3 are witnesses who have previous testimonies, documents or, ah, videos of them giving their accounts. So there was an affidavit before.)

Conti said the existence of these materials could help shorten court proceedings because some of the witness's statements and supporting evidence have already been documented.

“Si 68.3, sisipot pa rin (68.3 will still show up),” she said, stressing that witnesses under this provision would still appear before the court.

For Rule 68.2, Conti explained: “Si 68.2, replacement of the testimony. Tanggapin yung testimonya nila pero hindi nasisipot yung witnesses (Their testimony is accepted but they will not appear).”

The use of previously recorded testimony may, however, be contested by the defense, which has raised concerns about its ability to question witnesses whose evidence is significant to the prosecution's case.

The defense has also pointed to the need to examine how certain reports and documents were produced, including the people involved in preparing them. It has indicated that it intends to present its own witnesses in response to the prosecution's evidence.

The Trial Chamber will ultimately decide whether a particular recorded testimony can be admitted under Rule 68 and whether the requirements have been met.

Duterte's trial is scheduled to begin on November 30. — BAP, GMA News