Principle of finality

Notion(s) Filing Case
Decision on Additional Evidence - 16.10.1998 TADIĆ Duško
(IT-94-1-A)

34.     To be admissible under Rule 115 the material must meet two requirements: first, it must be shown that the material was not available at the trial and, second, if it was not available at trial, it must be shown that its admission is required by the interests of justice.

35.     The first issue, the “availability” of the material, turns on the question whether due diligence is required. This is addressed in the following section of this Decision. As to the second requirement, it is clear from the structure of Rule 115 that “the interests of justice” do not empower the Appeals Chamber to authorise the presentation of additional evidence if it was available to the moving party at the trial. Such an interpretation is supported by the principle of finality. Naturally, the principle of finality must be balanced against the need to avoid a miscarriage of justice; when there could be a miscarriage, the principle of finality will not operate to prevent the admission of additional evidence that was not available at trial, if that evidence would assist in the determination of guilt or innocence. It is obvious, however, that, if evidence is admitted on appeal even though it was available at trial, the principle of finality would lose much of the value which it has in any sensible system of administering justice. It is only to the extent that the Appeals Chamber is satisfied that the additional evidence in question was not available at trial that it will be necessary to consider whether the admission of the evidence is required by the interests of justice.

[RULE 115 OF THE ICTY RULES WAS SUBSEQUENTLY AMENDED ON 12 July 2002, 30 September 2002, and 21 July 2005]

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ICTR Statute Article 24 ICTY Statute Article 25 ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Additional Evidence - 16.10.1998 TADIĆ Duško
(IT-94-1-A)

G.      Interests of Justice

69.     As mentioned above, the Appeals Chamber finds that the following items were not available at trial within the meaning of Rule 115 (A): […] In relation to these items and […] the evidence of witness D.D., it will accordingly be necessary to consider the operation of the criteria relating to the interests of justice.

70.     If the Appeals Chamber at this stage authorises the presentation of additional evidence, it will be for the Chamber at a later stage to decide whether the evidence discloses an “error of fact which has occasioned a miscarriage of justice” within the meaning of Article 25, paragraph 1(b), of the Statute. At this stage, the Chamber cannot pre-empt this decision by definitively deciding that the proposed evidence does or does not disclose “an error of fact which has occasioned a miscarriage of justice”.

71.     The task of the Appeals Chamber at this stage is to apply the somewhat more flexible formula of Rule 115 of the Rules, which requires the Chamber to “authorise the presentation of such evidence if it considers that the interests of justice so require”. For the purposes of this case, the Chamber considers that the interests of justice require admission only if:

          (a) the evidence is relevant to a material issue;

          (b) the evidence is credible; and

          (c) the evidence is such that it would probably show that the conviction was unsafe.

72.     The Appeals Chamber would only add that, in applying these criteria, account has to be taken of the principle of finality of decisions. As mentioned above, the principle would not operate to prevent the admission of evidence that would assist in determining whether there could have been a miscarriage of justice. But clearly the principle does suggest a limit to the admissibility of additional evidence at the appellate stage.

73.     The Appeals Chamber also considers that, in applying these criteria, any doubt should be resolved in favour of the Appellant in accordance with the principle in dubio pro reo.

[RULE 115 OF THE ICTY RULES WAS SUBSEQUENTLY AMENDED ON 12 July 2002, 30 September 2002, and 21 July 2005]

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ICTR Statute Article 24 ICTY Statute Article 25 ICTR Rule Rule 115 ICTY Rule Rule 115