Availability of the proffered evidence at trial

Notion(s) Filing Case
Decision on Additional Evidence - 20.10.2011 POPOVIĆ et al.
(IT-05-88-A)

32. The Appeals Chamber notes that it is not disputed that the Report was made available to Popović in early 2010.[1] The Appeals Chamber recalls that the presentation of the Defence cases at trial started with Popović’s case, which commenced on 2 June 2008 and concluded on 8 July 2008.[2] The last Defence case concluded on 12 March 2009.[3] The cases of the Prosecution, Popović, Miletić, and Gvero were subsequently re-opened on several occasions.[4] In its Decision of 22 July 2009, the Trial Chamber rejected further evidence and submissions as it was not persuaded that those specific arguments and evidence warranted re-opening and admission, respectively.[5] It also issued a notice that it would “not entertain any further Motions seeking the introduction of additional evidence.”[6] Popović made his closing argument on 7 September 2009.[7]

33. In the Motion, Popović does not offer any argument as to why he did not attempt to have the Report admitted by the Trial Chamber, including through a motion to re-open the case as suggested by the Prosecution.[8] […] The Appeals Chamber rejects Popović’s argument that the Decision of 22 July 2009 categorically barred him from filing another request to re-open the case and have new evidence admitted at the risk of being sanctioned. The Appeals Chamber considers that Popović could have explored other avenues that were still open to him, including a request for certification to appeal against the Decision of 22 July 2009 or a request for reconsideration before or after he received the disclosed Report.[9] In this sense, Popović has not fulfilled his obligation to exercise due diligence in at least attempting to bring the evidence before the Trial Chamber.[10]

34. […] In the Blagojević Decision of 21 July 2005, the Appeals Chamber clarified that

evidence is “available at trial” if it becomes available at a stage when it is still reasonably possible for the relevant party to seek to introduce it before the Trial Chamber. Depending on the circumstances, evidence received after closing arguments in a case may meet this standard.[11]

The Appeals Chamber is of the view that this logic applies to any considerations of availability at trial in the sense of Rule 115 of the Rules, and in particular the due diligence requirement.[12] In light of its findings above, the Appeals Chamber concludes that it could have been reasonably possible for Popović to seek to introduce the Report before the Trial Chamber.[13]

36. In sum, the Appeals Chamber is not convinced that Popović has demonstrated that he fulfilled his duty to act with due diligence and made “the best case in the first instance”[14] by bringing the evidence that he considers crucial before the Trial Chamber.[15] Therefore, the Appeals Chamber finds that the Report was available at trial for the purposes of Rule 115 of the Rules. […]

[1] Motion, para. 6; Response, para. 4.

[2] Trial Judgement [Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-T, Judgement, 10 June 2010 (public redacted version)], Annex 2, para. 19.

[3] Trial Judgement, Annex 2, para. 25.

[4] Trial Judgement, Annex 2, paras 28-35.

[5] Decision of 22 July 2009 [Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-T, Consolidated Decision on Motions for the Admission of Evidence and Other Related Motions, 22 July 2009], p. 3.

[6] Decision of 22 July 2009, p. 3.

[7] Trial Judgement, Annex 2, para. 36.

[8] Response [Prosecution Response to Vujadin Popović’s Motion Pursuant to Rule 115, 30 June 2011 (confidential; public redacted version filed on the same date)], paras 3, 5-6.

[9] See Prosecutor. v. Jadranko Prlić et al., Case No. IT-04-74-AR73.16, Decision on Jadranko Prlić’s Interlocutory Appeal Against the Decision on Prlić Defence Motion for Reconsideration of the Decision on Admission of Documentary Evidence, 3 November 2009, para. 18. In addition, once Popović received the Report, he could have filed a motion for re-opening of the case and admission of the Report despite the notice in the Decision of 22 July 2009 and, had the Trial Chamber denied it, he could have filed for certification of an appeal against such a decision and/or challenge it as part of his appeal against the Trial Judgement (cf. Siméon Nchamihigo v. The Prosecutor, Case No. ICTR-01-63-A, Decision on Siméon Nchamihigo’s Second Motion for Leave to Present Additional Evidence on Appeal, 28 September 2009, paras 13-14). If Popović had succeeded in showing how crucial the Report was for his case, it is unlikely that he would have run a risk of being sanctioned at that stage.

[10] See supra, para. 7.

[11] Blagojević Decision of 21 July 2005 [Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Decision on Appellant Vidoje Blagojević’s Motion for Additional Evidence Pursuant to Rule 115, 21 July 2005 (confidential)], para. 10.

[12] Contrary to Popović’s submission that he cannot be “fairly bound” by that jurisprudence (Reply, fn. 2). In fact, the holding in Blagojević 21 July 2005 Decision is not a new jurisprudential development but a mere clarification of Rule 115 of the Rules.

[13] Cf. Blagojević Decision of 21 July 2005, para. 12: “[M]otions to reopen closed proceedings, which are unusual, might well be denied in the Trial Chamber’s discretion, including circumstances in which Rule 115 consideration of the evidence in question remains appropriate on appeal. Had the Trial Chamber refused to reopen the proceedings (on grounds not otherwise disposing of any subsequent Rule 115 motion), the Appellant could then reasonably have argued that the evidence should be considered unavailable at trial for Rule 115 purposes. As it is, however, having not made any effort to introduce the evidence before the Trial Chamber, he cannot claim to have exercised due diligence, taking advantage of all procedural mechanisms available under the Statute and Rules of the […] Tribunal.”

[14] Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-A, Decision on Naletilić’s Consolidated Motion to Present Additional Evidence, 20 October 2004, para. 30, citing Prosecutor v. Zoran Kupreškić et al., Case No. IT-95-16-A, Decision on the Admission of Additional Evidence Following Hearing of 30 March 2001, 11 April 2001 (confidential), para. 12.

[15] See supra, para. 7. Cf. Prosecutor v. Nikola Šainović et al., Case No. IT-05-87-A, Decision on Sreten Lukić’s First Motion to Admit Additional Evidence on Appeal, 11 March 2010, paras 17, 20. 

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ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Additional Evidence - 28.09.2009 NCHAMIHIGO Siméon
(ICTR-01-63-A)

The Appellant, Nchamihigo, sought the admission on appeal of proffered evidence pursuant to Rule 115 of the Rules, which he unsuccessfully sought to have admitted at trial. The Appeals Chamber stated:

13. […] It is thus clear that the material sought for admission was available at trial, and the Appeals Chamber is satisfied that Mr. Nchamihigo exercised due diligence in his attempts to have this evidence admitted at trial. 

14. However, the Appeals Chamber observes that Mr. Nchamihigo has not appealed the Trial Chamber’s denial of his requests to admit this material either in his Notice of Appeal or Appeal Brief.[1] As such, the Appeals Chamber finds that Mr. Nchamihigo has failed to exercise due diligence in relation to these documents.[2] It remains to be considered whether denial of the admission of this evidence would result in a miscarriage of justice.

The Appeals Chamber then established that Nchamihigo had not demonstrated that the admission of the evidence in question “would have had an impact on the Trial Chamber’s findings” (paras 15-18) and concluded “that the denial of the admission of the proposed additional evidence on appeal will not result in a miscarriage of justice.” (para. 19).

[1] See [Siméon Nchamihigo v. The Prosecutor, Case No. ICTR-2001-63-A,] Acte d’appel de la défense révisé, 11 May 2009; [Siméon Nchamihigo v. The Prosecutor, Case No. ICTR-2001-63-A,] Mémoire d’appel de la défense, 20 May 2009.

[2] The Appeals Chamber notes the Zigiranyirazo Rule 115 Decision in which Zigiranyirazo sought to admit the evidence of a witness whom he had already sought permission to examine by video-link at trial. The Trial Chamber in that case had denied the request and the witness was therefore not heard at trial. The Appeals Chamber in the Zigiranyirazo Rule 115 Decision considered that Zigiranyirazo had exercised due diligence in attempting to adduce the evidence at trial and accordingly the Appeals Chamber applied the “could” standard rather than the “would” standard in deciding the Zigiranyirazo Rule 115 motion (see Zigiranyirazo Rule 115 Decision [Protais Zigiranyirazo v. The Prosecutor, Case No. ICTR-01-73-A, Decision on Zigiranyirazo’s Motion for Admission of Additional Evidence on Appeal, 16 September 2009], paras. 34-38). However, the Appeals Chamber considers that the present case is distinguishable from that case because in the Zigiranyirazo Rule 115 Decision, Zigiranyirazo also appealed the Trial Chamber’s decision in his appeal on the merits, whereas in the present case Nchamihigo did not. The Appeals Chamber was given the opportunity to assess whether the Trial Chamber erred in its decision not to order a video link at trial because the Trial Chamber’s decision in Zigiranyirazo was appealed. In this case, the Appeals Chamber has not been asked to consider whether the Trial Chamber’s decisions were correct.

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ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision Regarding Disclosure and Additional Evidence - 21.11.2014 NGIRABATWARE Augustin
(MICT-12-29-A)

34.     Further, the Appeals Chamber recalls that the duty to act with due diligence requires the parties to make the best case in the first instance,[1] and includes making use of all mechanisms of protection and compulsion available under the Statute and the Rules to bring evidence on behalf of an accused before the trial chamber.[2] […]

[1] Lukić Appeal Decision of 11 March 2010 [Prosecutor v. Milan Lukić and Sredoje Lukić,, Case No. IT-98-32/1-A, Decision on Urgent Motions to Disclose Confidential Material to Defence Counsel, 11 March 2010 (confidential and ex parte)], para. 20, citing Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-A, Decision on Naletilić’s Consolidated Motion to Present Additional Evidence, 20 October 2004, para. 30, and references cited therein.

[2] See supra para. 24.

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Decision on Additional Evidence - 08.12.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

25. With respect to availability of the proffered evidence at trial, the Appeals Chamber is not satisfied that the Appellant was unable to obtain it in spite of the exercise of due diligence. As, the Prosecution points out, the declassifying process of U.S. documents started in 1998 and many unclassified documents were accessible on the National Security Archive webpage in 2001.[1] The Appeals Chamber finds that the Appellant’s reply to this argument, that the Prosecution failed to prove that the documents were declassified before his trial,[2] is misguided; it is for the Appellant to show that the documents were available to him only recently. On the contrary, the Appellant’s own arguments seem to suggest that the documents were accessible earlier than 2003: the compilation of documents which the Appellant received is the result of research carried out between 1994 and 2003.[3]

26. In addition, the Appeals Chamber notes that both messages in their relevant parts refer to conversations between the Appellant and Ambassador Rawson.[4] […] Given the Appellant’s contacts with Ambassador Rawson, the Appellant could have attempted to contact Ambassador Rawson, either to learn about his reports to the U.S. government in 1994 as a reliable and independent source of political information on Rwanda, or with the objective to adduce his live testimony about the Appellant’s role in the CDR at trial.

27. Regarding the letter signed by Théoneste Nahimana, the Appellant’s submissions show that he was aware of the existence of this letter at trial. The Appeals Chamber also notes that the report by Ambassador Rawson dated 28 March 1994 suggests that the Appellant was at least involved in the drafting of the letter signed by Théoneste Nahimana, as he was informed about his content before it was signed and took suggestions from Ambassador Rawson as to its content.[5] Furthermore, it was the Appellant himself who gave a copy of this letter to Ambassador Rawson in 1994.[6] The Appeals Chamber notes that a number of CDR documents were adduced at trial on behalf of the Appellant.[7] The Appellant has thus not shown that the letter was unavailable to him at trial or that he had made efforts to obtain a copy thereof in the exercise of due diligence.

28. In light of the above, while the Appeals Chamber finds that the proffered evidence is prima facie relevant and credible, it will admit it as additional evidence on appeal only if it concludes that its exclusion would result in a miscarriage of justice, i.e. it would have had an impact on the verdict if it had been adduced at trial. The Appeals Chamber notes that the Appellant only suggests the proffered evidence could have been a decisive factor for the Trial Chamber’s finding with respect to the Appellant’s position in the CDR.[8]

40. […] The Appeals Chamber recalls that the party adducing additional evidence must establish that the said evidence was not available at trial in any form whatsoever.[9] As in the Second Rule 115 Motion, the Appellant again merely asserts that the documents “have been declassified only recently” without giving any further details about the declassification process or any earlier attempts to access the material.[10] As the Prosecution points out, unclassified U.S. documents were available during the Appellant’s trial, and the possibility to access classified documents through a Freedom of Information Act application also existed.[11] Further, the Appellant has not shown that he tried to contact Ambassador Rawson to adduce his live testimony at trial. Finally, the Appeals Chamber notes that the Appellant acknowledges that other evidence concerning the date of the demonstration, the most important point of the documents proffered as additional evidence, was available to him.[12]

[1] Response to the Second Rule 115 Motion, para. 10.

[2] Reply to the Second Rule 115 Motion, para. 6.

[3] Second Rule 115 Motion, para. 8, fn. 7, referring to a statement by the “National Archive”.

[4] Ibid., Annex 1: [REDACTED]

[5] Second Rule 115 Motion, Annex 3: [REDACTED].

[6] Ibid., para. 15.

[7] Response to the Second Rule 115 Motion, para. 16, referring to Exhibits 2D12 to 2D34.

[8] Second Rule 115 Motion, paras 19, 23; see also para. 25: “The newly discovered evidence enhances the exculpatory value of the existing material and renders all the more obvious that the finding and the conviction against the Appellant, based on the fact that he succeeded Bucyana as the National President of CDR, are baseless and should be quashed.”

[9] Prosecutor v. Sylvestre Gacumbitsi, Case No. ICTR-2001-64-A, Decision on “Requête en extrême urgence aux fins d’admission de moyen de preuve supplémentaire en appel”, 9 February 2006, para. 6.

[10] Third Rule 115 Motion, para. 17. See supra, para 25.

[11] Response to the Third Rule 115 Motion, para. 10, referring to T. 8 July 2002, p. 42 and T. 9 July 2002, pp. 42-44, 69, 75.

[12] Reply to the Third Rule 115 Motion, para. 18, referring to Response to the Third Rule 115 Motion, para. 12. The evidence in question includes transcripts from Radio Rwanda broadcasts of 21 February 1994.

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ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Additional Evidence - 16.09.2009 BIKINDI Simon
(ICTR-01-72-A)

10. […] The allocation of investigative resources is a matter of trial strategy which rests squarely within the discretion of Counsel: it cannot provide the basis for claiming that material was “not available” for the purposes of Rule 115 of the Rules. […] Finally, the Appeals Chamber is not convinced by Mr. Bikindi’s claim that ineffective assistance of counsel explains the failings in earlier investigations. In this respect, the Appeals Chamber notes that Mr. Bikindi changed Lead Counsel during the course of the trial. His suggestion that a further investigative mission would not have been approved is simply speculation.[1]

25. The Appeals Chamber is not satisfied that Mr. Bikindi exercised due diligence in obtaining and presenting this material at trial. As stated above, the allocation of defence resources cannot justify a delay in bringing evidence before the Tribunal.[2] While it is true that the records of the Gacaca proceedings which occurred after Mr. Bikindi’s trial were not available, Mr. Bikindi has not justified why the underlying evidence could not have been obtained at trial. Mr. Bikindi has also failed to demonstrate why he could not have raised his concerns with respect to the ineffective assistance of counsel at trial, in particular bearing in mind that he obtained a new Lead Counsel during the course of the proceedings. Finally, Mr. Bikindi made no submissions related to the availability of the evidence concerning Witness AKK’s schooling or the distances between Kayove and Kivumu.

[1] First Motion [Simon Bikindi v. The Prosecutor, Case No. ICTR-01-72-A, Defence Motion to Admit Additional Evidence on Bikindi's Presence in Germany, 9 June 2009], para. 33.

[2] See supra para. 10.

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Decision on Additional Evidence - 20.08.2008 KRAJIŠNIK Momčilo
(IT-00-39-A)

23. As for the remainder of the documents sought to be admitted, the Appeals Chamber finds that, with the exception of documents 40-K-0066 and 49-K-0208, the Appellant fails to demonstrate that they were not available to him at trial in any form, or discoverable through the exercise of due diligence. The Appellant either merely states that he did not have, or was not aware of the respective document at trial.[1] However, the Appellant does not provide any further information as to why he did not have, or was not aware of, documents at trial such as to establish that despite the exercise of due diligence he failed to uncover the documents. A simple assertion that the Appellant was unaware of the documents is insufficient to demonstrate that due diligence was exercised. Accordingly, in the circumstances, the Appeals Chamber is not persuaded that the Appellant has met his burden of establishing that the documents were in fact unavailable to him at trial.

[1] The Appeals Chamber notes that some of the documents in question were disclosed to the Appellant by the Prosecution at trial, see Response, Appendix B.

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ICTR Rule Rule 115 ICTY Rule Rule 115
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Decision on Additional Evidence - 29.04.2010 ŠAINOVIĆ et al.
(IT-05-87-A)

20. […] The mere assertion that the document was found by the Defence only after the rendering of the Trial Judgement is not sufficient for demonstrating that due diligence had been exercised. […]

[1] See also supra, para. 7.

[2] See Krajišnik Rule 115 Decision of 20 August 2008, para. 23.

[3] Prosecutor v. Mile Mrkšić and Veselin [ljivančanin, Case No. IT-95-13/1-A, Decision on Mile Mrkšić’s Second Rule 115 Motion, 13 February 2009, para. 6, referring to Prosecutor v. Ramush Haradinaj et al., Case No. IT-04-84-AR65.2, Decision on Lahi Brahimaj’s Request to Present Additional Evidence under Rule 115, 3 March 2006 (“Haradinaj et al. Rule 115 Decision”), para. 16.

[4] See supra, para. 5.

[5] Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-A, Decision on Naletilić’s Consolidated Motion to Present Additional Evidence, 20 October 2004 (“Naletilić Rule 115 Decision”), para. 30, citing Prosecutor v. Zoran Kupreškić et al., Case No. IT-95-16-A, Decision on the Admission of Additional Evidence Following Hearing of 30 March 2001, 11 April 2001 (confidential), para. 12.

[6] Naletilić Rule 115 Decision, para. 30, referring to Prosecutor v. Hazim Delić, Case No. IT-96-21-R-R119, Decision on Motion for Review, 25 April 2002, para. 15.

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ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Additional Evidence - 26.02.2001 KUPREŠKIĆ et al.
(IT-95-16-A )

55. Where the Prosecution “makes” a person a Prosecution witness and at a late stage in the proceedings decides not to call that witness, leaving insufficient time or means to enable the defence to take steps towards making that person a defence witness in order to call the witness on its own behalf, and where subsequently, following the provision of testimony by the witness, that witness brings to the attention of the defence the fact that it could have provided further elucidation upon an issue at trial, it would not be fair to say that the defence should have been aware of the existence of that further information at the time of the trial proceedings. In the circumstances of this case, the Appeals Chamber finds that the further information was “not available” for the purpose of Rule 115. 

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ICTR Rule Rule 115 ICTY Rule Rule 115
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Decision on Additional Evidence - 26.02.2001 KUPREŠKIĆ et al.
(IT-95-16-A )

15. [...] The “code of conduct” referred to in the Rules is the Code of Professional Conduct for Defence Counsel Appearing Before the International Tribunal (IT/125), of which, Article 5 provides that “in providing representation to a Client, Counsel must...act with competence, skill, care, honesty and loyalty”. Article 6 provides “Counsel must represent a Client diligently in order to protect the Client’s best interests”. Consequently, defence counsel is under a duty, when representing an accused, to act with competence, skill and diligence when investigating a potential defence on behalf of an accused. The duty also applies when gathering and presenting evidence before the Tribunal. The counsel would not be required to do everything conceivably possible in performing these tasks, but would be expected to act with reasonable diligence in discharging the duty. 

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ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Additional Evidence and Judicial Notice - 08.05.2001 KUPREŠKIĆ et al.
(IT-95-16-A)

16. [I]t is the view of the Appeals Chamber that where defence counsel are gathering evidence in support of an accused’s defence, either at a pre-trial stage or during the course of a trial, and are aware of a potential witness and decide not to approach that person, for whatever reason, whether because counsel believe that the potential witness will not cooperate, or the witness may be placed in an invidious position, when the accused is subsequently convicted by the Trial Chamber, the defence cannot claim that the witness was “not available” at trial within the meaning of Rule 115, or ask for that witness to be called at the appellate stage.

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ICTR Rule Rule 115 ICTY Rule Rule 115
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Decision on Additional Evidence Following Hearing - 11.04.2001 KUPREŠKIĆ et al.
(IT-95-16-A)

23. The Appeals Chamber interprets the Tadić standard for admission of additional evidence based on unavailability at trial due to gross negligence to require that gross negligence must be shown to justify the unavailability that the first prong of Rule 115 requires and that in addition the Chamber must decide if that gross negligence resulted in the omission of evidence that meets the “interests of justice” test of Rule 115, i.e. that it would probably have changed the outcome of the trial. This is definitely not the same standard Vlatko Kupreškić advances in that he would allow the evidence to be admitted if it were shown to be “in the interests of justice” under Rule 115(B) and only a prima facie case made out that it was unavailable because of gross negligence. The Appeals Chamber thinks both the Tadić test and Rule 115 envisages a more stringent one: gross negligence must be proven in fact and its prejudice to the “interests of justice” shown. And unavailability – whether from justifiable lack of knowledge or ability to obtain new evidence earlier or, as in Vlatko Kupreškić’s case an alleged gross negligence on the part of his former counsel – is a factual matter unlike the judgmental inquiry involved in a decision on the “interests of justice”. Thus if the key components of unavailability are disputed, there may need to be a factual inquiry, otherwise parties would be invited to submit all kinds of dubious material to show unavailability, in safe knowledge that it would not be probed. Accordingly, troublesome as it may be to the expedition of trial, if unavailability is contested and the Appeals Chamber initially finds that a prima facie case has been made out, but the opposition presents persuasive material to counter the factual basis for unavailability, the Appeals Chamber will conduct a specific hearing on that issue.

24. In determining whether a prima facie case of gross negligence exists the Appeals Chamber considers that there is a strong presumption that counsel at trial acted with due diligence, or putting it another way, that the performance of counsel fell within the range of reasonable professional assistance. In assessing whether trial counsel were “grossly negligent”, the Chamber examining the allegation applies an objective standard of reasonableness. In determining whether the performance of counsel actually fell below that standard, an assessment must be made of counsel’s conduct in the circumstances as they stood at that time. The Prosecution is correct when it argues that hindsight has no role to play in this assessment.

 

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ICTR Rule Rule 115 ICTY Rule Rule 115
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Decision on Additional Evidence - 26.01.2010 ŠAINOVIĆ et al.
(IT-05-87-A)

26. […] [A] tactical decision not to seek the admission of certain evidence due to the expectation that evidence of greater probative value might become available later in the proceedings does not render the first evidence unavailable at trial in terms of its assessment for the purposes of admission under Rule 115 of the Rules.[1] […]

[1] See also supra, para. 7.

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ICTR Rule Rule 115 ICTY Rule Rule 115
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Decision on Additional Evidence - 12.02.2010 ŠAINOVIĆ et al.
(IT-05-87-A)

21. […] In this regard, the Appeals Chamber recalls that the party seeking the admission of evidence pursuant to Rule 115 of the Rules bears the burden of demonstrating how it exercised due diligence.[1] The Appeals Chamber finds that the simple assertion that he lacked sufficient time between the Trial Chamber’s order for the witness to testify and his appearance in court is per se insufficient to meet this burden.

23. […] [T]he Appeals Chamber considers that, in the particular circumstances of this case, it is conceivable that these documents remained undiscovered at trial despite the exercise of required due diligence. […] Consequently and for reasons of fairness, the Appeals Chamber is satisfied that the abovementioned documents were unavailable to Pavković for the purposes of Rule 115 of the Rules.

[1] See Krajišnik Rule 115 Decision of 20 August 2008, para. 23.

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Decision on Additional Evidence - 11.03.2010 ŠAINOVIĆ et al.
(IT-05-87-A)

17. The Appeals Chamber recalls that, for the purposes of Rule 115 of the Rules, whether the proffered evidence was available at trial is not merely a question of whether the evidence was “available” in a literal sense.[1] The applicant bears the burden of demonstrating that he acted with due diligence in obtaining the evidence and bringing it before the Trial Chamber.[2]

18. […] In order to establish whether, in seeking the admission of the untranslated documents Lukić acted with due diligence, the Appeals Chamber will need to address Lukić’s submission that the Trial Chamber obstructed his efforts to obtain appropriate translations. However, given that the latter issue bears on the merits of Lukić’s appeal, the Appeals Chamber will refrain from making such a determination at this juncture. […] Therefore, in light of the particular circumstances of this case, the pending resolution of Lukić’s appeal on the merits, and the interests of fairness, the Appeals Chamber finds that documents […] should be regarded as having been unavailable to Lukić for the purposes of Rule 115 of the Rules. […]

20. […] Considering that the duty to act with due diligence requires the parties “to make the best case in the first instance”,[3] the Appeals Chamber finds Lukić’s argument that he could not have anticipated the Trial Chamber’s interpretation of the evidence unpersuasive. Moreover, the Appeals Chamber recalls that it is the settled jurisprudence of this Tribunal that the appeal process is not designed for the purpose of allowing the parties to remedy their own failings or oversights during trial.[4]

[1] Prosecutor v. Mile Mrkšić and Veselin [ljivančanin, Case No. IT-95-13/1-A, Decision on Mile Mrkšić’s Second Rule 115 Motion, 13 February 2009, para. 6, referring to Prosecutor v. Ramush Haradinaj et al., Case No. IT-04-84-AR65.2, Decision on Lahi Brahimaj’s Request to Present Additional Evidence under Rule 115, 3 March 2006 (“Haradinaj et al. Rule 115 Decision”), para. 16.

[2] See supra, para. 5.

[3] Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-A, Decision on Naletilić’s Consolidated Motion to Present Additional Evidence, 20 October 2004 (“Naletilić Rule 115 Decision”), para. 30, citing Prosecutor v. Zoran Kupreškić et al., Case No. IT-95-16-A, Decision on the Admission of Additional Evidence Following Hearing of 30 March 2001, 11 April 2001 (confidential), para. 12.

[4] Naletilić Rule 115 Decision, para. 30, referring to Prosecutor v. Hazim Delić, Case No. IT-96-21-R-R119, Decision on Motion for Review, 25 April 2002, para. 15.

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ICTR Rule Rule 115 ICTY Rule Rule 115
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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)

36.     Rule 115 (A) provides that a “party may apply by motion to present before the Appeals Chamber additional evidence which was not available to it at the trial”. That relates to appeals. Rule 119 enables a party to seek a review “[w]here a new fact has been discovered which was not known to the moving party at the time of the proceedings before a Trial Chamber or the Appeals Chamber, and could not have been discovered through the exercise of due diligence”. The Appellant submits that the reference to “diligence” in the latter but not in the former means that diligence is not required under Rule 115. However, whilst the Rules can illustrate the meaning of the Statute under which they are made, they cannot vary the Statute. If there is a variance, it is the Statute which prevails. But, for the reasons explained below, there is no variance in this case. In the view of the Appeals Chamber, there is a requirement for the exercise of due diligence by a party moving under Rule 115.

37.     Article 25, paragraph 1, of the Statute provides for appeals on two grounds, namely, “an error on a question of law invalidating the decision” and “an error of fact which has occasioned a miscarriage of justice”. The first error is clearly an error committed by the Trial Chamber. That, in principle, would seem to be also the case with the second error. But it is difficult to see how the Trial Chamber may be said to have committed an error of fact where the basis of the error lies in additional evidence which, through no fault of the Trial Chamber, was not presented to it. Where evidence was sought to be presented to the Trial Chamber but was wrongly excluded by it, there is no need for recourse to the provisions relating to the production of additional evidence to the Appeals Chamber; there the Trial Chamber would have committed an error appealable in the ordinary way.

38.     It is only by construing the reference to “an error of fact” as meaning objectively an incorrectness of fact disclosed by relevant material, whether or not erroneously excluded by the Trial Chamber, that additional material may be admitted. Such an extension of the concept of an “error of fact” as being not restricted to an error committed by the Trial Chamber may be required by justice; but justice would also require the accused to show why the additional evidence could not be presented to the Trial Chamber in exercise of the rights expressly given to him by the Statute. It would be right to hold that the purpose of the Statute in giving those rights was that the accused should exercise due diligence in utilising them. This would exclude cases in which the failure to exercise those rights was due to lack of diligence.

[…]

40.     The compulsory and protective machinery of the International Tribunal may not always be able to give total assurance that witnesses will be both available and protected if necessary. That is all the more reason why the machinery at the disposal of the International Tribunal should be used. A party seeking leave to present additional evidence should show that it has sought protection for witnesses from the Trial Chamber where appropriate, and that it has requested the Trial Chamber to utilise its powers to compel witnesses to testify if appropriate. Any difficulties, including those arising from intimidation or inability to locate witnesses, should be brought to the attention of the Trial Chamber.

[…]

42.     By the time proceedings have reached the Appeals Chamber, evidence relevant to the culpability of the accused has already been submitted to a Trial Chamber to enable it to reach a verdict and a sentence, if he is found guilty. From the judgement of the Trial Chamber there lies an appeal to the Appeals Chamber. The corrective nature of that procedure alone suggests that there is some limitation to any additional evidentiary material sought to be presented to the Appeals Chamber; otherwise, the unrestricted admission of such material would amount to a fresh trial. Further, additional evidence should not be admitted lightly at the appellate stage, considering that Rule 119 provides a remedy in circumstances in which new facts are discovered after the trial.

43.     Consideration may be given to the consequences of the opposite holding that additional evidence may be presented to the Appeals Chamber even where, through lack of diligence, it was not presented to the Trial Chamber though available. The Prosecutor can appeal from an acquittal. She may seek to reverse the acquittal on the basis of an error of fact disclosed by additional evidence. If the additional evidence was available to her but not presented to the Trial Chamber through lack of diligence, the accused is in effect being tried a second time. In substance, the non bis in idem prohibition is breached.

44.     The Appeals Chamber therefore finds that the position under the Statute is as indicated above and cannot be cut down by reference to any apparent discrepancy in the wording of Rules 115 and 119 of the Rules. The word “apparent” is used because, on a proper construction, Rule 115 is to be read in the light of the Statute; it is therefore subject to requirements of the Statute which have the effect of imposing a duty to be reasonably diligent. Where evidence is known to an accused person, but he fails through lack of diligence to secure it for the Trial Chamber to consider, he is of his own volition declining to make use of his entitlements under the Statute and of the machinery placed thereunder at his disposal; he certainly cannot complain of unfairness.

45.     In summary, additional evidence is not admissible under Rule 115 in the absence of a reasonable explanation as to why it was not available at trial. Such an explanation must include compliance with the requirement that the moving party exercised due diligence. This conclusion is consistent with the Statute and with the jurisprudence of many countries; it is not, however, dependent on that jurisprudence.

[…]

3.       Material which existed at trial but of which the Defence was unaware

[…]

58.     […] While the Defence is required to use due diligence to identify and seek out witnesses, there are limits to this obligation. The Appeals Chamber finds that the Appellant has provided sufficient indication that these witnesses and materials were unknown to the Defence, despite the exercise of due diligence, and thus not available at the time of trial […].

4.       Material which the Appellant was unable to adduce at trial

59.     This category relates to witnesses of whom the Defence was aware at the time of trial but whose evidence they were unable to produce. The material under this heading may be divided into three sub-categories: witnesses who were unwilling or unable to come forward at the trial stage, for example, witnesses who were imprisoned at the time; witnesses alleged to have been intimidated; and potential witnesses who could not be located at the time of trial.

60.     First, then, there is the category of potential witnesses who were simply unwilling to come forward at the trial stage but are now willing to do so at the appeal stage. […] No evidence has been submitted to the Appeals Chamber to indicate that any request was made to the Trial Chamber for the issue of subpoenas to compel the attendance of these witnesses. Despite the obvious practical difficulties in obtaining the evidence of such witnesses, a party cannot later seek to have such material admitted as additional evidence unavailable at trial unless it has raised the issue with the Trial Chamber at the time. As discussed above, the requirement of due diligence is not satisfied where there is insufficient attempt to invoke such coercive measures as were at the disposal of the International Tribunal. Therefore, it cannot be said that the evidence of these three witnesses was not available at trial.

[…]

62.     The second category is a substantial one. It relates to potential witnesses who were known to the Defence at the time of trial but who are said to have been intimidated by persons in authority in the former Yugoslavia. […] Again, in the absence of any evidence to demonstrate that attempts were made to obtain such protection for these witnesses as the International Tribunal could offer, the Appeals Chamber finds that reasonable diligence was not exercised. Consequently, the testimony of these witnesses cannot be said to have been unavailable at trial.

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

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6.       Material not called by Defence counsel

[…]

65.     As indicated above, when evidence was not called because of the advice of defence counsel in charge at the time, it cannot be right for the Appeals Chamber to admit additional evidence in such a case, even if it were to disagree with the advice given by counsel. The unity of identity between client and counsel is indispensable to the workings of the International Tribunal. If counsel acted despite the wishes of the Appellant, in the absence of protest at the time, and barring special circumstances which do not appear, the latter must be taken to have acquiesced, even if he did so reluctantly[1]. An exception applies where there is some lurking doubt that injustice may have been caused to the accused by gross professional incompetence. Such a case has not been made out by the Appellant. Consequently, it cannot be said that the witnesses and material were not available to the Appellant despite the exercise of due diligence.

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

[1]           The Directive on Assignment of Defence Counsel, IT/73/Rev. 5, provides for an accused person who is dissatisfied with his counsel to seek redress. Such redress includes requesting withdrawal of a defence counsel and assignment of new counsel (see Article 20).

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66.     Also in this category are the 11 expert witnesses whom the Appellant would now like to call. […] Barring exceptional circumstances, which are not made out in this case, it is difficult to think of circumstances which would show that expert witnesses were not available to be called at trial despite the exercise of reasonable diligence. The evidence of these experts, and the related documents […], cannot be said to have been unavailable at trial for the purposes of Rule 115.

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

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47.     Due diligence is a necessary quality of counsel who defend accused persons before the International Tribunal. The unavailability of additional evidence must not result from the lack of due diligence on the part of the counsel who undertook the defence of the accused. As stated above, the requirement of due diligence includes the appropriate use of all mechanisms of protection and compulsion available under the Statute and the Rules of the International Tribunal to bring evidence on behalf of an accused before the Trial Chamber.

48.     Thus, due diligence is both a matter of criminal procedure regarding admissibility of evidence, and a matter of professional conduct of lawyers. In the context of the Statute and the Rules, unless gross negligence is shown to exist in the conduct of either Prosecution or Defence counsel, due diligence will be presumed.

49.     In this case, the parties agree that due diligence might have been lacking in respect of certain evidence which was not presented at trial because of the decision of the Defence team to withhold it[1]. The Appeals Chamber is not, however, satisfied that there was gross professional negligence leading to a reasonable doubt as to whether a miscarriage of justice resulted. Accordingly, evidence so withheld is not admissible under Rule 115 of the Rules.

50.     The Appeals Chamber considers it right to add that no counsel can be criticised for lack of due diligence in exhausting all available courses of action, if that counsel makes a reasoned determination that the material in question is irrelevant to the matter in hand, even if that determination turns out to be incorrect. Counsel may have chosen not to present the evidence at trial because of his litigation strategy or because of the view taken by him of the probative value of the evidence. The determination which the Chamber has to make, except in cases where there is evidence of gross negligence, is whether the evidence was available at the time of trial. Subject to that exception, counsel’s decision not to call evidence at trial does not serve to make it unavailable.

See also para. 65.

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

[1]           See also Reply, supra n. 7 [Reply to Cross-Appellant’s Response to Appellant’s submissions since March 9, 1998, on the Motion for the presentation of additional evidence on appeal under Rule 115, 15 July 1998]], para. 33.

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2.       Material not in existence at the time of the trial

[…]

63.     The third category concerns potential witnesses who were known to the Defence but who could not be located at the time of trial. […] The Appellant claims that all three of these witnesses had fled abroad and could not be located. In view of the difficulties facing defence counsel in locating such witnesses, the Appeals Chamber finds that the Appellant has provided sufficient indication that these witnesses were not available at the time of trial. […]

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

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14.     […] [T]he Appeals Chamber recalls that a party must establish that the evidence sought to be admitted was not available at trial “in any form whatsoever”.[1] […]

[…]

27.     Notwithstanding, for additional evidence to have been unavailable in the first instance, it must not have been available at trial “in any form whatsoever”.[2] […]

[1] Tharcisse Renzaho v. The Prosecutor, Case No. ICTR-97-31-A, Decision on Tharcisse Renzaho’s Motions for Admission of Additional Evidence and Investigation on Appeal, 27 September 2010 (“Renzaho Decision of 27 September 2010”), para. 19 (emphasis omitted).

[2] Renzaho Decision of 27 September 2010, para. 19 (emphasis omitted).

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10.     […] The Appeals Chamber considers that evidence is “available at trial” if it becomes available at a stage when it is still reasonably possible for the relevant party to seek to introduce it before the Trial Chamber. Depending on the circumstances, evidence after closing arguments in a case may meet this standard.

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