Applicability of rules of admission of additional evidence on appeal to referral and revocation decisions

Notion(s) Filing Case
Decision on Additional Evidence - 25.02.2013 MUNYAGISHARI Bernard
(ICTR-05-89-AR11bis)

5. Rule 115 of the Rules provides for the admission of additional evidence on appeal where a party is in possession of material that was not before the trial chamber and which represents additional evidence of a fact or issue litigated at trial.[1] The Appeals Chamber considers that Rule 115 of the Rules is equally applicable to appeals from referral decisions under Rule 11 bis of the Rules.[2] […]

[1] See, e.g., Augustin Ndindiliyimana et al. v. The Prosecutor, Case No. ICTR-00-56-A, Decision on Augustin Bizimungu's Rule 92Bis Motion and on His Rule 115 Motion for Admission of Additional Evidence, 11 June 2012 ("Ndindiliyimana et al. Decision"), para. 8; Théoneste Bagosora et al. v. The Prosecutor, Case No. ICTR-98-41-A, Decision on Anatole Nsengiyumva's Motions for the Admission of Additional Evidence, 21 March 2011 ("Bagosora et al. Decision of 21 March 2011"), para. 5; The Prosecutor v. Ildephonse Hategekimana, Case No. ICTR-00-55B-R11bis, Decision on Request to Admit Additional Evidence, signed on 2 October 2008, filed on 3 October 2008 (“Hategekimana Decision"), para. 5.

[2] See Prosecutor v. Željko Mejakić et al., Case No. IT-02-65-AR11bis.1, Decision on Joint Defense Motion to Admit Additional Evidence Before the Appeals Chamber Pursuant to Rule 115, 16 November 2005, para. 6, in which it was held that additional evidence may be admitted pursuant to Rule 115 of the Rules of Procedure and Evidence of the International Criminal Tribunal for the former Yugoslavia in the course of Rule 11 bis appeal proceedings. See also Hategekimana Decision.

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ICTR Rule Rule 11 bis;
Rule 115
ICTY Rule Rule 11 bis;
Rule 115
Notion(s) Filing Case
Decision on Additional Evidence - 22.09.2016 UWINKINDI Jean
(MICT-12-25-AR14.1)

5.       Rule 142 of the Rules provides for the admission of additional evidence on appeal, and the Appeals Chamber finds that, in accordance with the jurisprudence of the ICTR and the International Tribunal for the former Yugoslavia (“ICTY”), this provision is applicable to appeals of decisions issued pursuant Rule 14 of the Rules.[1] According to Rule 142(A) of the Rules, a motion for the admission of additional evidence shall clearly identify with precision the specific finding of fact made by the trial chamber to which the evidence is directed. For additional evidence to be admissible under Rule 142(C) of the Rules, the applicant must demonstrate that the additional evidence was not available at trial in any form, or discoverable through the exercise of due diligence.[2] The applicant must also show that the additional evidence is relevant to a material issue at trial and credible.[3] Once it has been determined that the additional evidence meets these conditions, the Appeals Chamber will determine in accordance with Rule 142(C) of the Rules whether it could have been a decisive factor in reaching the Impugned Decision.[4]

6.       Where, however, the evidence was available during the revocation proceedings or could have been discovered through the exercise of due diligence, it may still be admissible on appeal pursuant to Rule 142(C) of the Rules if the applicant shows that the exclusion of the additional evidence would lead to a miscarriage of justice, in that, if it had been admitted at trial, it would have had an impact on the Impugned Decision.[5]

7.       In both cases, the applicant bears the burden of identifying with precision the specific finding of fact made by the trial chamber to which the additional evidence pertains, and of specifying with sufficient clarity the impact the additional evidence could or would have had upon the trial chamber’s decision.[6] An applicant who fails to do so runs the risk that the tendered material will be rejected without detailed consideration.[7]

See also para. 39.

[1] See Bernard Munyagishari v. The Prosecutor, Case No. ICTR-05-89-AR11bis, Decision on Bernard Munyagishari’s First and Second Motions for Admission of Additional Evidence, 25 February 2013 (“Munyagishari Decision of 25 February 2013”), para. 5; Prosecutor v. Željko Mejakić et al., Case No. IT-02-65-AR11bis.1, Decision on Joint Defence Motion to Admit Additional Evidence before the Appeals Chamber pursuant to Rule 115, 16 November 2005 (“Mejakić et al. Decision of 16 November 2005”), para. 6.

[2] Augustin Ngirabatware v. Prosecutor, Case No. MICT-12-29-A, Decision on Ngirabatware’s Motions for Relief for Rule 73 Violations and Admission of Additional Evidence on Appeal, 21 November 2014 (“Ngirabatware Decision of 21 November 2014”), para. 24; Munyagishari Decision of 25 February 2013, para. 5.

[3] Ngirabatware Decision of 21 November 2014, para. 25; Munyagishari Decision of 25 February 2013, para. 5; Mejakić et al. Decision of 16 November 2005, para. 10.

[4] Munyagishari Decision of 25 February 2013, para. 5; Mejakić et al. Decision of 16 November 2005, para. 10. Cf. Ngirabatware Decision of 21 November 2014, para. 26.

[5] Cf. Ngirabatware Decision of 21 November 2014, para. 27; Munyagishari Decision of 25 February 2013, para. 6; Mejakić et al. Decision of 16 November 2005, para. 12.

[6] Cf. Ngirabatware Decision of 21 November 2014, para. 28 and references cited therein.

[7] Ngirabatware Decision of 21 November 2014, para. 28 and references cited therein.

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ICTR Rule Rule 115 ICTY Rule Rule 115 MICT Rule Rule 142