The top chamber of the International Criminal Court (ICC) has determined that previously recorded statements of five prosecution witnesses who recanted those statements or failed to show up in court cannot be used as evidence in the trial of Deputy President William Samoei Ruto and former journalist Joshua arap Sang.

Presiding Judge Piotr Hofmanski said the Appeals Chamber unanimously decided on Friday to reverse Trial Chamber V(a)’s majority decision made on August 19. The Appeals Chamber said the majority decision erred in determining that Rule 68 of the court’s Rules of Procedure and Evidence could be used to admit those statements as evidence.

Judge Hofmanski read a summary of the chamber’s decision in open court. He was the only judge in court and read the summary on behalf of the other four judges of the Appeals Chamber.

“The ‘Decision on Prosecution Request for Admission of Prior Recorded Testimony’ is reversed to the extent that prior recorded testimony was admitted under amended Rule 68 of the Rules for the truth of its contents,” said the Appeals Chamber in its decision.

Judge Hofmanski said once the Appeals Chamber decided Trial Chamber V(a) erred on the issue of Rule 68, the judges found it was unnecessary to say anything further on the other six grounds of appeal that the defense teams of Ruto and Sang had filed. These other six grounds of appeal include what standard of proof judges should use when evaluating allegations of witness interference and whether the statements in question satisfied the criteria set out in Rule 68 for their admission as evidence.

The current Rule 68 has a provision that witness statements can be admitted as evidence against the accused if there is evidence of witness interference. This is one of the provisions the majority of Trial Chamber V(a) used to allow the statements of four out of the five prosecution witnesses to be admitted as evidence.

The Appeals Chamber’s decision has weakened the prosecution’s case against Ruto and Sang. There is no further opportunity of appeal at the ICC once the Appeals Chamber has made a decision. How much this decision has weakened the prosecution’s case is difficult to say, but the prosecution’s options to further bolster its case are limited. The prosecution has already formally notified the court that it has closed the case against Ruto and Sang. In addition to that, Trial Chamber V(a) has received and is considering applications for the defense not to present its case.

In its decision, the Appeals Chamber did observe that Article 69 of the ICC’s founding law, the Rome Statute, has a provision that gives a trial chamber discretion in what evidence it can receive in the determination of the truth. The provision is subsection three of Article 69. This particular provision was not the subject of the majority’s decision or the prosecution’s original application in the matter. The prosecution may consider making a new application on the matter to the trial chamber using Article 69(3).

Judge Hofmanski said on Friday the Appeals Chamber determined that only the “procedural regime” in force when the trial of Ruto and Sang began in September 2013 could apply. The chamber said the provisions in Rule 68 Trial Chamber V(a) relied on to admit the statements as evidence did not exist in September 2013. It observed the provisions on allowing statements to be admitted in cases where there was evidence of witness interference came into force after the Assembly of State Parties (ASP) amended Rule 68 in November 2013.

The appeals judges determined that applying Rule 68 in its current form in the trial of Ruto and Sang would be using it retroactively. Judge Hofmanski said that on its own would not prevent the use of Rule 68. The judge said the Appeals Chamber found that retroactively applying Rule 68 to the detriment of the accused was what was wrong.

He said Trial Chamber V(a) narrowly interpreted detriment to mean prejudice to the rights of the accused. He said the Appeals Chamber found that detriment should be more broadly defined as disadvantage or loss in the overall position of the accused in relation to the charges facing the accused.

Judge Hofmanski said the Appeals Chamber concluded not only had Rule 68 been applied retroactively, but Ruto and Sang had suffered disadvantage or loss in their overall position when Trial Chamber V(a) decided to use the rule to allow the statements of the five witnesses to be admitted as evidence.

He said the Appeals Chamber noted that Article 69(3) of the Rome Statute gives a trial chamber discretion to receive any evidence it may think necessary for it to determine the truth. He said Trial Chamber V(a) did not say anything about Article 69(3) in its August 19 decision. He said the prosecution had also not asked the trial chamber to admit the statements on the basis of Article 69(3), choosing instead to seek relief through other provisions of Article 63.

Judge Hofmanski said the Appeals Chamber considered that in the circumstances it would be speculative on their part to comment further whether Article 69(3) would have been the way to admit the witness statements as evidence since Article 63 in its current form existed when the trial of Ruto and Sang began in September 2013.

During the course of his summary of the Appeals Chamber’s decision, Judge Hofmanski referred only to the majority decision of Trial Chamber V(a). In his partially concurring opinion, Trial Chamber V(a)’s Presiding Judge Chile Eboe-Osuji had disagreed with fellow Judges Olga Herrera Carbuccia and Robert Fremr that Rule 68 could be used in this case. He said Article 69(3) was the right provision to use in admitting witness statements as evidence. His position seems vindicated by the Appeals Chamber’s decision.

Judge Hofmanski said the Appeals Chamber also considered whether the ASP made a decision in November 2013 that the amended Rule 68 would not be used in the Kenya case. He said the Appeals Chamber found that no record of that session of the ASP contained such a decision. He said that there were “unilateral declarations” of some state parties to that effect, but other state parties did not adopt those declarations.