Burden of proof

Notion(s) Filing Case
Decision on Application for Leave to Appeal - 18.11.2002 MARTIĆ Milan
(IT-95-11-AR65)

[T]he burden does lie upon the accused in an application for provisional release to satisfy the Trial Chamber that, if released, he will appear for trial;

 

Download full document
ICTR Rule Rule 65(B) ICTY Rule Rule 65(B)
Notion(s) Filing Case
Appeal Judgement - 28.11.2006 SIMIĆ Blagoje
(IT-95-9-A)

If an appellant raises the vagueness of an indictment as a ground of appeal and it turns out that he never raised this issue at trial, then he has the burden of proving at the appellate stage that his ability to prepare his defence was materially impaired as a result of the defect in the indictment. If however he did raise this issue at trial, then the Prosecution has the burden of proving that the appellant’s defence was not materially impaired. See paragraph 25.

25. In considering whether a defect in the indictment has been cured by subsequent disclosure, the question arises as to which party has the burden of proof on the matter.[1] In general, a party should not be permitted to refrain from making an objection to a matter which was apparent during the course of the trial, and to raise it only in the event of an adverse finding against that party. Failure to object in the Trial Chamber will usually result in the Appeals Chamber disregarding the argument on grounds of waiver.[2] However, the importance of the right of an accused to be informed of the charges against him and the possibility that he will incur serious prejudice if material facts crucial to the Prosecution are communicated for the first time at trial suggest that the waiver doctrine should not entirely foreclose an accused from raising an indictment defect for the first time on appeal.[3] Where, in such circumstances, an appellant raises a defect in the indictment for the first time on appeal, he bears the burden of proving that his ability to prepare his defence was materially impaired.[4] On the other hand, when an accused has previously raised the issue of lack of notice before the Trial Chamber, the burden rests on the Prosecution to prove on appeal that the ability of the accused to prepare a defence was not materially impaired.[5] 

[1] Niyitegeka Appeal Judgement, para. 198.

[2] Niyitegeka Appeal Judgement, para. 199 referring to Kayishema and Ruzindana Appeal Judgement, para. 91.

[3] Niyitegeka Appeal Judgement, para. 200.

[4] Ntagerura et al. Appeal Judgement, para. 31; Kvočka et al. Appeal Judgement, para. 35; Niyitegeka Appeal Judgement, para. 200.

[5] Ntagerura et al. Appeal Judgement, para. 31; Kvočka et al. Appeal Judgement, para. 35, Niyitegeka Appeal Judgement, para. 200.

Download full document
Notion(s) Filing Case
Appeal Judgement - 04.02.2013 MUGENZI AND MUGIRANEZA (Government II)
(ICTR-99-50-A)

122. […] The Appeals Chamber has previously held that “objections based on lack of notice should be specific and timely”.[1] Furthermore, when an objection based on lack of notice is raised at trial, a trial chamber may consider whether it was so untimely as to shift the burden of proof to the Defence to demonstrate that the accused’s ability to defend himself has been materially impaired.[2] In the absence of any explanation for Mugenzi’s and Mugiraneza’s failure to make a contemporaneous objection, the Appeals Chamber is satisfied that it was reasonable for the Trial Chamber to consider the delay in bringing challenges to the Indictment and conclude that such challenges were untimely. Therefore, Mugenzi and Mugiraneza bear the burden of demonstrating that their ability to prepare a defence was materially impaired.

[1] The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-AR73, Decision on Aloys Ntabakuze’s Interlocutory Appeal on Questions of Law Raised by the 29 June 2006 Trial Chamber I Decision on Motion for Exclusion of Evidence, 18 September 2006 (“Bagosora et al. Appeal Decision of 18 September 2006”), para. 46.

[2] Bagosora et al. Appeal Decision of 18 September 2006, paras. 45, 46. 

Download full document
Notion(s) Filing Case
Appeal Judgement - 17.07.2008 STRUGAR Pavle
(IT-01-42-A)

56. Finally, the Appeals Chamber notes its agreement with the Trial Chamber’s finding that an accused claiming to be unfit to stand trial bears the burden of so proving by a preponderance of the evidence.[1] In this regard, the Appeals Chamber notes that this approach is consistent with the one used in common law jurisdictions where the burden of proof generally lies on the party which alleges the accused’s unfitness to stand trial and is considered to be discharged if this party can show its claim on the balance of probabilities.[2]

[1] Decision of 26 May 2004, para. 38; see supra, para. 43.

[2] R. v. Podola [1959] 3 W.L.R. 718.

The Appeals Chamber also takes note of the aforementioned Nahak Decision in which the SPSC determined that the preponderance standard governs determinations of an accused’s fitness to stand trial (Nahak Decision, paras 57-59 referring to the Decision of 26 May 2004, para. 38: “[…] competence to stand trial is not an element of the offence with which the Defendant is charged” and, consequently, “it is not required that a defendant’s competence be proved by 'a higher standard as is required of the prosecutor when proving guilt in criminal cases’”; and paras 59-60, 67, 152 referring to the requirement that “proof that it is more probable than not […] has been demonstrated.”). The Appeals Chamber finally notes that the SPSC declined to define who bears the burden of proof and decided to evaluate the evidence on the matter “without depending on any 'onus of proof’ that might otherwise be imposed on the Defendant.” (ibid., paras 61-67).

Download full document
Notion(s) Filing Case
Decision on Continuation of Appellate Proceedings for Gvero - 16.01.2013 POPOVIĆ et al.
(IT-05-88-A)

21. […] An appellant claiming to be unfit to participate in the proceedings bears the burden of so proving by a preponderance of the evidence.[1]

[1] See Strugar Appeal Judgement, para. 56.

Download full document
Notion(s) Filing Case
Appeal Judgement - 28.09.2011 MUNYAKAZI Yussuf
(ICTR-97-36A-A)

24. The Appeals Chamber recalls that an accused does not bear the burden of proving his alibi beyond reasonable doubt. When an alibi is properly raised, the Prosecution must establish beyond reasonable doubt that, despite the alibi, the facts alleged are nevertheless true. The Appeals Chamber observes that the Trial Chamber correctly recalled the law and burden of proof to be applied in the assessment of alibi.

25. Furthermore, the Appeals Chamber has held that “Trial Chambers are endowed with the discretion to require corroboration”.[4] In this respect, it was not unreasonable for the Trial Chamber to question the credibility of Munyakazi’s alibi in the absence of corroboration given the inherent self-interest of his testimony and the introduction of the alibi at the close of the case. Furthermore, the fact that the death of Kabungo and the mourning period were not specifically challenged during cross-examination does not prevent the Trial Chamber from doubting their veracity and taking the lack of corroboration into account when assessing the evidence. The Appeals Chamber has previously emphasized that a Trial Chamber is not required to accept as true statements unchallenged during cross-examination.[5] Therefore, the Trial Chamber has not shifted the burden of proof in assessing Munyakazi’s alibi; all that it has done, and this quite properly, is to note that there was no supporting evidence of the alibi.

[1] Zigiranyirazo Appeal Judgement, para. 17.

[2] Zigiranyirazo Appeal Judgement, para. 18. See also Renzaho Appeal Judgement, para. 303.

[3] Trial Judgement, para. 35, quoting Zigiranyirazo Appeal Judgement, paras. 17, 18.

[4] Nchamihigo Appeal Judgement, para. 45.

[5] Karera Appeal Judgement, para. 29.

Download full document
Notion(s) Filing Case
Appeal Judgement I - 29.08.2008 MUVUNYI Tharcisse
(ICTR-2000-55A-A)

123. A review of the trial record, including the evidence of Witness YAQ, reveals that Muvunyi did not object to the form of this paragraph before trial or during the witness’s testimony. Nonetheless, he challenged the form of paragraph 3.24 of the Indictment at the trial stage in his motion for judgement of acquittal, although his submissions did not take specific issue with the evidence of Witness YAQ.[1] In this respect, the Appeals Chamber has held:

[O]bjections based on lack of notice should be specific and timely. The Appeals Chamber agrees with the Prosecution that blanket objections that “the entire indictment is defective” are insufficiently specific. As to timeliness, the objection should be raised at the pre-trial stage (for instance in a motion challenging the indictment) or at the time the evidence of a new material fact is introduced. However, an objection raised later at trial will not automatically lead to a shift in the burden of proof: the Trial Chamber must consider relevant factors, such as whether the Defence provided a reasonable explanation for its failure to raise the objection earlier in the trial.[2]

The Trial Chamber did not consider Muvunyi’s objection to the form of paragraph 3.24 of the Indictment to be timely.[3] Muvunyi has not advanced any reason suggesting that this conclusion was erroneous. It therefore falls to him to demonstrate that the preparation of his defence was prejudiced by the omission from the Indictment of the approximate time and place of the Gikonko meeting.[4]

124. Muvunyi has failed to make such a demonstration. Indeed, the Appellant’s Brief does not address the question of prejudice suffered from the leading of evidence about the Gikonko meeting.[5] In these circumstances, the Appeals Chamber finds that Muvunyi has not discharged his burden to demonstrate prejudice. Consequently, this sub-ground of appeal is dismissed.

[1] Motion for Judgement of Acquittal, para. 59 (“With respect to the sensitization meetings, the Prosecutor offered the testimony of Witnesses CCP, YAI, CCR, YAP. These sensitizing meetings as alleged in the indictment are not sufficiently plead as to victims of the crimes of genocide in each instance or what specific acts of genocide occurred in order to give the Accused notice of what Count 1 or Count 2 acts he must specifically defend against.”).

[2] Bagosora et al., Decision on Aloys Ntabakuze’s Interlocutory Appeal on Questions of Law Raised by the 29 June 2006 Trial Chamber I Decision on Motion for Exclusion of Evidence, para. 46 (internal citation omitted).

[3] Muvunyi, Decision on Tharcisse Muvunyi’s Motion for Judgement of Acquittal pursuant to Rule 98bis [The Prosecutor v. Tharcisse Muvunyi, Case No. ICTR-00-55A-T, Decision on Tharcisse Muvunyi’s Motion for Judgement of Acquittal pursuant to Rule 98bis, 13 October 2005], para. 41.

[4] Gacumbitsi Appeal Judgement, para. 51, quoting Niyitegeka Appeal Judgement, paras. 199, 200. See also Bagosora et al., Decision on Aloys Ntabakuze’s Interlocutory Appeal on Questions of Law Raised by the 29 June 2006 Trial Chamber I Decision on Motion for Exclusion of Evidence, paras. 45-47.

[5] Muvunyi Appeal Brief, paras. 80-81 (where he simply objects to the lack of notice). A similar situation occurred in Niyitegeka. In that case, the Appeals Chamber found that the Indictment was defective, that Niyitegeka had not objected to this during trial, and that the burden of showing prejudice was therefore on him. Since he had made no submissions as to how he was prejudiced, the Appeals Chamber held that the Trial Chamber did not err in convicting him. Niyitegeka Appeal Judgement, paras. 200, 207, 211.

Download full document
Notion(s) Filing Case
Appeal Judgement - 01.04.2011 RENZAHO Tharcisse
(ICTR-97-31-A)

125. […] The Appeals Chamber recalls that a defect in the Indictment, not cured by timely, clear, and consistent notice, constitutes a prejudice to the accused.[1] The defect may only be deemed harmless through a demonstration that the accused’s ability to prepare his or her defence was not materially impaired.[2] When an appellant raises a defect in the indictment for the first time on appeal, the appellant bears the burden of showing that his or her ability to prepare his or her defence was materially impaired.[3] When, however, an accused has previously raised the issue of lack of notice before the Trial Chamber, the burden rests on the Prosecution to prove on appeal that the ability of the accused to prepare his or her defence was not materially impaired. The Appeals Chamber therefore turns to consider this issue.

126. In the pre-trial stage, Renzaho challenged the Indictment on the basis of vagueness, a challenge that was dismissed by the Trial Chamber.[4] Although Renzaho did not object to Witnesses AWO’s and AWN’s evidence that he encouraged rapes upon the filing of the Prosecution Pre-Trial Brief or at the time of their testimony, the Appeals Chamber considers that Renzaho’s confusion regarding the import of this evidence, discussed below, reasonably explains his failure to object. Further, in his Closing Brief, Renzaho renewed his challenge to the Indictment on the basis that it failed to plead the material facts necessary to establish his superior responsibility.[5] Renzaho also contended that the charges alleging his responsibility for sexual violence were impermissibly vague, and noted that the evidence that he made encouraging statements about rapes was not included in the Indictment.[6] The Appeals Chamber therefore finds that Renzaho raised an adequate objection to the failure to properly plead his reason to know.[7] Consequently, the Prosecution has the burden of establishing that Renzaho’s defence was not materially impaired by the defect in the Indictment.[8]

127. The Appeals Chamber finds that the Prosecution has not met its burden. It notes that, when Witness AWN testified that it was Renzaho who encouraged rapes, rather than another individual, the Defence did not object to the introduction of the new material fact. At the Appeal Hearing, the Defence indicated that it failed to do so because it “did not make the link at that time”[9] and suffered prejudice from the introduction of this new material fact because it did not understand that this evidence was relevant to the charge under Article 6(3) of the Statute.[10] The strategy adopted at trial by the Defence and in particular the cross-examination of Witnesses AWO and AWN convinces the Appeals Chamber that Renzaho understood that he was to defend himself against knowledge of rapes through receipt of reports as pleaded in the Indictment.[11] He was therefore prejudiced by the Prosecution’s failure to cure the defect in the Indictment through adequate notice.

128. The Appeals Chamber also notes with concern that the relevant paragraphs of the Indictment are extremely broad, and fail to specify the dates and locations of the meetings at which Renzaho encouraged the rapes; the dates and locations of the rapes; and the names of the victims. The provision of these material facts only in post-indictment documents impacts upon the ability of the accused to know the case he or she has to meet and to prepare his or her defence,[12] and is particularly troubling when the Prosecution was in a position to include them in the Indictment.[13]

[1] Ntagerura et al. Appeal Judgement, para. 30.

[2] Ntagerura et al. Appeal Judgement, para. 30.

[3] Nahimana et al. Appeal Judgement, para. 327.

[4] See Preliminary Motion, paras. 38, 58-123, 158, 167, 173; Decision on Preliminary Motion [The Prosecutor v. Tharcisse Renzaho, Case No. ICTR-97-31-I, Décision sur la requête en exception préjudicielle pour vices de forme de l’acte d’accusation, 5 September 2006]. Renzaho requested certification to appeal the Decision on Preliminary Motion, which was dismissed by the Trial Chamber. See Decision on Certification of Decision on Preliminary Motion [The Prosecutor v. Tharcisse Renzaho, Case No. ICTR-97-31-I, Décision relative à la demande aux fins de certification d’appel de la décision du 5 septembre 2006 en vertu de l’article 72(B), 25 October 2006].

[5] Defence Closing Brief, paras. 86-144.

[6] Defence Closing Brief, paras. 179, 188, 194, 934, 936, 1136.

[7] Cf. Muhimana Appeal Judgement, para. 219; Gacumbitsi Appeal Judgement, para. 54.

[8] See supra, Chapter IV (Alleged Lack of Notice), Section A (Applicable Law), para. 56; Niyitegeka Appeal Judgement, para. 200.

[9] AT. 16 June 2010 p. 57 (“I think we […] became aware of that [inconsistency] during the testimony of the witness. At that stage as well things proceeded very fast during testimony in-chief. We did not link this to what was said in the pre-trial brief and which was attributed to Mr. Munanira. We did not make the link at that time.”).

[10] AT. 16 June 2010 p. 58 (“When the witness appeared before the Court, indeed, we immediately had the feeling that those utterances were incriminating. […] But what we did not understand – and this is where we suffered prejudice – is that on the basis of this statement, the Prosecutor wanted to attribute responsibility to Mr. Renzaho on the basis of [Article] 6(3). […] And, indeed, the Chamber pointed out that this fact failed [sic] under 6(1) and not 6(3). […] We did not understand that that was the objective pursued. We cross-examined the witness with the limited information we had only as regards the materiality of the events.”).

[11] The Appeals Chamber recalls that this basis for Renzaho’s knowledge of rapes committed by subordinates was pleaded in paragraphs 41, 53, and 63 of the Indictment.

[12] Cf. Bagosora et al. Interlocutory Appeal on Questions of Law Decision [The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-AR73, Decision on Aloys Ntabakuze’s Interlocutory Appeal on Questions of Law Raised by the 29 June 2006 Trial Chamber I Decision on Motion for Exclusion of Evidence, 18 September 2006], para. 26; The Prosecution v. Tharcisse Muvunyi, Case No. ICTR-00-55A-AR73, Decision on Prosecution Interlocutory Appeal Against Trial Chamber II Decision of 23 February 2005, 12 May 2005, para. 22; Ntagerura et al. Appeal Judgement, para. 114.

[13] The Appeals Chamber notes that the many of these details were included in the Prosecution Pre-Trial Brief, filed just 12 days after the Indictment. Although, at the time, the Prosecution assured the Trial Chamber that it had included as much detail as it was able in the Indictment, it concedes on appeal that it was in fact possible to include this information in the Indictment. See The Prosecutor v. Tharcisse Renzaho, Case No. ICTR-97-31-I, The Prosecutor’s Response to the Accused’s ‘Requ[ê]te en exception pr[é]judicielle pour vices de forme de l’acte d’accusation’, 10 April 2006 (confidential), para. 12; AT. 16 June 2010 p. 31 (“Your Honours, it was actually possible for us to include in the indictment the specific evidence that the two witnesses would testify to [and] […] in view of the fact that we already had this information before we gave our second amended indictment, it would have been desirable to actually include these statements in the indictment. However, […] the Appellant was not prejudiced by the lack […] of these statements in the indictment.”).

Download full document
Notion(s) Filing Case
Appeal Judgement - 01.04.2011 RENZAHO Tharcisse
(ICTR-97-31-A)

196. When the Defence asserts that the trial was unfair because witnesses crucial to the Defence refused to testify due to interference, it is incumbent on the Defence to, first, demonstrate that such interference has in fact taken place and, second, exhaust all available measures to secure the taking of the witnesses’ testimony.[1] When a party alleges on appeal that the right to a fair trial has been infringed, it must prove that the violation caused such prejudice as to amount to an error of law invalidating the judgement.[2] Thus, the element of prejudice is an essential aspect of the proof required of an appellant alleging a violation of his or her fair trial rights.[3]

210. Recalling that when a party alleges on appeal that the right to a fair trial has been infringed, it must prove that the violation caused such prejudice as to amount to an error of law invalidating the judgement,[4] the Appeals Chamber will consider whether the Trial Chamber’s failure to ensure the timely completion of the Renzaho Investigation prior to the delivery of the Trial Judgement caused Renzaho prejudice of this gravity. […].

[1] Simba Appeal Judgement, para. 41. See also Tadić Appeal Judgement, para. 55.

[2] Hadžihasanović and Kubura Appeal Judgement, para. 130; Galić Appeal Judgement, para. 21; Kordić and Čerkez Appeal Judgement, para. 119.

[3] Hadžihasanović and Kabura Appeal Judgement, para. 130.

[4] See supra, Chapter V (Alleged Violations of the Right to a Fair Trial), Section C (Violation of the Right to Equality of Arms), para. 196.

Download full document
Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

414. Before considering in turn the various errors alleged by the Appellant, the Appeals Chamber notes that the Trial Chamber correctly enunciated the law applicable to alibi in paragraph 99 of the Judgement, which reads as follows:

With respect to alibi, the Chamber notes that in Musema, it was held that “[i]n raising the defence of alibi, the Accused not only denies that he committed the crimes for which he is charged but also asserts that he was elsewhere than at the scene of these crimes when they were committed. The onus is on the Prosecution to prove beyond a reasonable doubt the guilt of the Accused. In establishing its case, when an alibi defence is introduced, the Prosecution must prove, beyond any reasonable doubt, that the Accused was present and committed the crimes for which he is charged and thereby discredit the alibi defence. The alibi defence does not carry a separate burden of proof. If the defence is reasonably possibly true, it must be successful”[footnote omitted].

417. The Appeals Chamber recalls that, in raising an alibi defence, the defendant is claiming that, objectively, he was not in a position to commit the crime.[1] It is for the accused to decide what line of defence to adopt in order to raise doubt in the mind of the judges as to his responsibility for the offences charged, in this case by producing evidence tending to support or to establish the alleged alibi.[2] The only purpose of an alibi is to cast reasonable doubt on the Prosecutor’s allegations, which must be proven beyond reasonable doubt. In alleging an alibi, the accused merely obliges the Prosecution to demonstrate that there is no reasonable likelihood that the alibi is true. In other words, the Prosecution must establish beyond a reasonable doubt that, “despite the alibi, the facts alleged are nevertheless true”.[3]

418. There is thus no obligation on the Prosecution to investigate the alibi. […]

In the present case, the Appeals Chamber found that the Trial Chamber’s assessment of the alibi evidence was erroneous and concluded that it had not been established beyond reasonable doubt that the Appellant committed the crimes in question (paras 413-474 of the Appeal Judgement).

[1] Kayishema and Ruzindana Appeal Judgement, para. 106. See also Niyitegeka Appeal Judgement, para. 60; Musema Appeal Judgement, para. 200.

[2] Musema Appeal Judgement, para. 202; Kayishema and Ruzindana Appeal Judgement, paras. 110-111.

[3]Musema Appeal Judgement, para. 202. See also Limaj et al. Appeal Judgement, para. 63; Kamuhanda Appeal Judgement, para. 167; Kajelijeli Appeal Judgement, paras. 41-42.

Download full document
Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

326. When the Appellant raises a defect in the indictment for the first time on appeal, then he bears the burden of showing that his ability to prepare his defence was materially impaired. When, however, an accused has previously raised the issue of lack of notice before the Trial Chamber, the burden rests on the Prosecutor to prove on appeal that the ability of the accused to prepare a defence was not materially impaired.[1] All of this is subject to the inherent jurisdiction of the Appeals Chamber to do justice in the case.[2]

[1] Muhimana Appeal Judgement, paras. 80 and 199; Simić Appeal Judgement, para. 25; Ntagerura et al. Appeal Judgement, para. 31; Kvočka et al. Appeal Judgement., para. 35; Niyitegeka Appeal Judgement, para. 200.

[2] Ntagerura et al. Appeal Judgement, para. 31; Niyitegeka Appeal Judgement, para. 200.

Download full document
Notion(s) Filing Case
Appeal Judgement - 23.05.2005 KAJELIJELI Juvénal
(ICTR-98-44A-A)

42. […] The Appeals Chamber has recently confirmed that when a defendant pleads an alibi, he is denying that he was in a position to commit the crimes with which he is charged because he was elsewhere than at the scene of the crime at the time of its commission.[1] The Appeals Chamber recalls that:

It is settled jurisprudence before the two ad hoc Tribunals that in putting forward an alibi, a defendant need only produce evidence likely to raise a reasonable doubt in the Prosecution’s case. The burden of proving beyond reasonable doubt the facts charged remains squarely on the shoulders of the Prosecution. Indeed, it is incumbent on the Prosecution to establish beyond reasonable doubt that, despite the alibi, the facts alleged are nevertheless true.[2]

43. Nothing in the foregoing requires the Prosecution, however, specifically to disprove each alibi witness’s testimony beyond reasonable doubt. Rather, the Prosecution’s burden is to prove the accused’s guilt as to the alleged crimes beyond reasonable doubt in spite of the proffered alibi.

[1] See Niyitegeka Appeal Judgement, para. 60 citing Kayishema and Ruzindana Appeal Judgement, para. 106.

[2] Niyitegeka Appeal Judgement, para. 60 (internal citations omitted). See also Čelebići Case Appeal Judgement, para. 581; Musema Appeal Judgement, para. 202; Kayishema and Ruzindana Appeal Judgement, para. 113.

Download full document
Notion(s) Filing Case
Appeal Judgement - 16.12.2013 NDAHIMANA Grégoire
(ICTR-01-68-A)

91. The Appeals Chamber recalls that an accused does not bear the burden of proving his alibi beyond reasonable doubt.[1] Rather, he must simply produce evidence tending to show that he was not present at the time of the alleged crime.[2] If the alibi is reasonably possibly true, it must be accepted.[3] Where an alibi is properly raised, the Prosecution must establish beyond reasonable doubt that, despite the alibi, the facts alleged are nevertheless true.[4]

[1] See, e.g., Nchamihigo Appeal Judgement, para. 92; Zigiranyirazo Appeal Judgement, para. 17; Nahimana et al. Appeal Judgement, para. 414.

[2] See, e.g., Nchamihigo Appeal Judgement, para. 92; Zigiranyirazo Appeal Judgement, para. 17; Musema Appeal Judgement, para. 202.

[3] See, e.g., Nchamihigo Appeal Judgement, para. 92; Zigiranyirazo Appeal Judgement, para. 17; Nahimana et al. Appeal Judgement, para. 414.

[4] See, e.g., Nchamihigo Appeal Judgement, para. 93; Zigiranyirazo Appeal Judgement, para. 18; Karera Appeal Judgement, para. 330.

Download full document
Notion(s) Filing Case
Appeal Judgement - 27.02.2014 NDINDILYIMANA et al. (Military II)
(ICTR-00-56-A)

195. The Appeals Chamber recalls that where the Indictment is found to be defective, an appellant who raises a defect in the indictment for the first time on appeal bears the burden of showing that his ability to prepare his defence was materially impaired. Where, however, an accused had already raised the issue of lack of notice before the Trial Chamber, the burden rests on the Prosecution to demonstrate on appeal that the accused’s ability to prepare a defence was not materially impaired.

196. With regard to the Trial Chamber’s finding that Sagahutu issued an operational instruction in relation to the Belgian peacekeepers’ access to the Prime Minister’s residence and sent an armoured unit and supplies to his subordinates on the ground, the Trial Chamber relied on the evidence of Prosecution Witnesses AWC, ALN, DA, and HP.[3] The Appeals Chamber notes that, in his closing arguments, Sagahutu made a general objection in relation to the pleading in the Indictment of the charge regarding the killing of the Prime Minister.[4] Nonetheless, Sagahutu did not take specific issue with the introduction of particular material facts during the testimony of Witnesses AWC, ALN, DA, and HP.[5] Therefore, the Appeals Chamber considers that Sagahutu did not make a specific and timely objection at trial to the lack of pleading in the Indictment of these material facts. In such circumstances, it falls on Sagahutu to demonstrate that the preparation of his defence was materially impaired by these omissions in the Indictment.[6]

[1] Ntagerura et al. Appeal Judgement, paras. 31, 138; Kvočka et al. Appeal Judgement, para. 35; Niyitegeka Appeal Judgement, para. 200.

[2] Muvunyi I Appeal Judgement, para. 41; Ntagerura et al. Appeal Judgement, paras. 31, 138; Kvočka et al. Appeal Judgement, para. 35; Niyitegeka Appeal Judgement, para. 200.

[3] See Trial Judgement, paras. 1715-1720, 1740, 1744. See also Trial Judgement, paras. 1625-1628, 1632-1635, 1638, 1642, 1643.

[4] Sagahutu Closing Arguments, T. 25 June 2009 p. 83 (“Concerning the murder of [the] Prime Minister […] [i]n the Ntagerura [et al.] case, it was held that the Accused was charged [with] having planned, incited, committed, ordered or aided and abetted, and executed the alleged crimes. The Prosecutor should spell out the actions and the line of conduct of the Accused which give rise to the charges that are brought against him. This was not proven by the Prosecutor insofar as Captain Innocent Sagahutu is concerned”.). In his Closing Brief, Sagahutu generally objected to the Prosecution’s failure to plead in the Indictment his “role” in the killing of the Prime Minister. See Sagahutu Closing Brief [The Prosecutor v. Augustin Ndindiliyimana et al., Case No. ICTR-00-56-T, Mémoire final du Capitaine Innocent Sagahutu (confidential), 31 March 2009 (English translation filed on 16 June 2009)], para. 55 (“[a]ux paragraphes 78, 103 à 107, le Procureur ne montre pas le rôle que le Capitaine Sagahutu aurait joué en tant que commandant de l’Escadron A ou comme supérieur hiérarchique”.).

[5] On the issue of the armoured unit: Witness ALN, T. 29 September 2004 pp. 45, 47; Witness DA, T. 11 January 2005 pp. 40-44, 53; Witness AWC, T. 18 January 2006 pp. 29-31. On the issue of supplies: Witness DA, T. 11 January 2005 pp. 56-58, 65, 71; T. 12 January 2005 p. 7; T. 13 January 2005 p. 10; Witness HP, T. 9 May 2005 pp. 21, 22, 24. Sagahutu did not challenge the pleading of these material facts in the Indictment at trial. See Sagahutu Closing Brief, paras. 54-57, 71-74, 76-79, 225-230, 234, 236, 240, 509, 516, 663. The Appeals Chamber notes further that Sagahutu challenged the credibility of the testimonies of Witnesses DA, HP, and AWC relating to the allegation of sending supplies and an armoured unit. See Sagahutu Closing Brief, paras. 240, 242, 243, 246, 287, 289-292, 509, 516, fn. 241; Sagahutu Closing Arguments, T. 25 June 2009 pp. 83, 84. The Appeals Chamber notes that during examination-in-chief, Witness DA attributed the instruction regarding the access of the Belgian peacekeepers to the Prime Minister’s residence to Nzuwonemeye. See Witness DA, T. 11 January 2005 pp. 48 (“There was a message from Bizimungu and addressed to Sagahutu stating that Belgian soldiers wanted to get in where he was, and he was asking him to say whether he should allow those Belgian soldiers to get in”.), 49 (“Warrant Officer Bizimungu said that the vehicles on board which were -- where he was, wanted to get in where he was, that is, in the [P]rime [M]inister’s residence, and he was asking whether he should be allowed to let those vehicles get in where he was. That was the content of that message. […] That message was meant for Sagahutu, and the person who responded to it was the commander of the battalion, who said that they should let them in but that they shouldn’t be let out with anything whatsoever”.). However, during cross-examination, Witness DA attributed this instruction to Sagahutu. See Witness DA, T. 24 January 2005 p. 38 (“Q. Are you able then to say who was in charge of the radio during the day of 7th April 1994? […] Q. […] Are you able to tell the Court – let me rephrase my question. You heard Bizimungu call Major Nzuwonemeye? A. No, he was speaking, rather, to Sagahutu and not to Nzuwonemeye.”). It should be noted that the Trial Chamber in its summary of Witness DA’s evidence only referred to his evidence given during examination-in-chief. See Trial Judgement, paras. 1624-1631.

[6] See Ntagerura et al. Appeal Judgement, paras. 31, 138; Kvočka et al. Appeal Judgement, para. 35; Niyitegeka Appeal Judgement, para. 200.

Download full document
Notion(s) Filing Case
Decision Regarding Disclosure and Additional Evidence - 21.11.2014 NGIRABATWARE Augustin
(MICT-12-29-A)

15.     Under Rule 73(A) of the Rules, the Prosecution has a positive and continuous obligation to, “as soon as practicable, disclose to the Defence any material that in [its] actual knowledge […] may suggest the innocence or mitigate the guilt of the accused or affect the credibility of Prosecution evidence”.[1] The determination as to which material is subject to disclosure under this provision is a fact-based enquiry made by the Prosecution.[2] Therefore, the Appeals Chamber will not intervene in the exercise of the Prosecution’s discretion unless it is shown that the Prosecution abused it and, where there is no evidence to the contrary, will assume that the Prosecution is acting in good faith.[3] The Appeals Chamber recalls that the Prosecution’s obligation to disclose exculpatory material is essential to a fair trial, and notes that this obligation has always been interpreted broadly.[4]

16.     In order to establish that the Prosecution is in breach of its disclosure obligations, the applicant must: (i) identify specifically the material sought; (ii) present a prima facie showing of its probable exculpatory nature; and (iii) prove that the material requested is in the custody or under the control of the Prosecution.[5] If the Appeals Chamber determines that the Prosecution is in breach of its disclosure obligations, the Appeals Chamber must examine whether the defence has been prejudiced by that failure before considering whether a remedy is appropriate.[6]

[1] See also Rule 68(A) of the ICTR Rules.

[2] See, e.g., Decision on Augustin Ngirabatware’s Motion for Sanctions for the Prosecution and for an Order for Disclosure, 15 April 2014 (“Appeal Decision of 15 April 2014”), para. 12, referring to Justin Mugenzi and Prosper Mugiraneza v. The Prosecutor, Case No. ICTR-99-50-A, Decision on Motions for Relief for Rule 68 Violations, 24 September 2012 (“Mugenzi Appeal Decision of 24 September 2012”), para. 7, Ephrem Setako v. The Prosecutor, Case No. ICTR-04-81-A, Decision on Ephrem Setako’s Motion to Amend his Notice of Appeal and Motion to Admit Evidence, filed confidentially on 23 March 2011, public redacted version filed on 9 November 2011 (“Setako Appeal Decision of 9 November 2011”), para. 13, Jean de Dieu Kamuhanda v. The Prosecutor, Case No. ICTR-99-54A-R68, Decision on Motion for Disclosure, 4 March 2010 (“Kamuhanda Appeal Decision of 4 March 2010”), para. 14, Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgment, 17 December 2004, para. 183.

[3] See, e.g., Appeal Decision of 15 April 2014, para. 12, referring to Mugenzi Appeal Decision of 24 September 2012, para. 7, Kamuhanda Appeal Decision of 4 March 2010, para. 14; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Appellant Jean-Bosco Barayagwiza’s Motions for Leave to Present Additional Evidence Pursuant to Rule 115 of the Rules of Procedure and Evidence, 8 December 2006 (“Barayagwiza Appeal Decision of 8 December 2006”) para. 34.

[4] See, e.g., Appeal Decision of 15 April 2014, para. 12, referring to Mugenzi Appeal Decision of 24 September 2012, para. 7; Setako Appeal Decision of 9 November 2011, para. 12; Callixte Kalimanzira v. The Prosecutor, Case No. ICTR-05-88-A, Judgement, 20 October 2010 (“Kalimanzira Appeal Judgement”), para. 18.

[5] See, e.g., Appeal Decision of 15 April 2014, para. 13, referring to Justin Mugenzi and Prosper Mugiraneza v. The Prosecutor, Case No. ICTR-99-50-A, Judgement, 4 February 2013 (“Mugenzi and Mugiraneza Appeal Judgement”), para. 39; Théoneste Bagosora et al. v. The Prosecutor, Case No. ICTR-98-41-A, Decision on Aloys Ntabakuze’s Motions for Disclosure, 18 January 2011, para. 7; Kamuhanda Appeal Decision of 4 March 2010, para. 14.

[6]See, e.g., Appeal Decision of 15 April 2014, para. 13, referring to Mugenzi and Mugiraneza Appeal Judgement, para. 39; Setako Appeal Decision of 9 November 2011, para. 14; Kalimanzira Appeal Judgement, para. 18.

Download full document
MICT Rule Rule 73
Notion(s) Filing Case
Appeal Judgement - 19.09.2005 KAMUHANDA Jean de Dieu
(ICTR-99-54A-A)

21. In Niyitegeka, the Appeals Chamber ruled that, in order to succeed in challenging the exclusion of a material fact from an indictment, an accused must make a timely objection to the admission of evidence of the material fact in question before the Trial Chamber:

In the case of objections based on lack of notice, the Defence must challenge the admissibility of evidence of material facts not pleaded in the indictment by interposing a specific objection at the time the evidence is introduced. The Defence may also choose to file a timely motion to strike the evidence or to seek an adjournment to conduct further investigations in order to respond to the unpleaded allegation.[1]

Failure to object before the Trial Chamber will usually result in the Appeals Chamber disregarding the argument. Here, the Defence did not object to the introduction of Witness GEK’s testimony at trial; rather, it challenged her credibility during cross-examination. However, even in such a case, the Appeals Chamber may choose to intervene proprio motu, considering the importance of the accused’s right to be informed of the charges against him and the possibility of serious prejudice to the accused if the Prosecution informs him about crucial facts for the first time at trial. In such circumstances the accused has the burden of proving on appeal that his ability to prepare his case was materially impaired.[2]

22. In Ntakirutimana, the Appeals Chamber treated a challenge to the Indictment as properly raised, although the Appellant did not object to the error at the time of the introduction of the evidence at trial, because the Trial Chamber had concluded that the challenges to the vagueness of the Indictment had subsequently been properly presented before it.[3]

[1] Niyitegeka Appeal Judgement, para. 199. See also Kayishema and Ruzindana Appeal Judgement, para. 91.

[2] Niyitegeka Appeal Judgement, paras. 199, 200.

[3] Ntakirutimana Appeal Judgement, para. 52.

Download full document
Notion(s) Filing Case
Appeal Judgement - 19.09.2005 KAMUHANDA Jean de Dieu
(ICTR-99-54A-A)

38. The Appeals Chamber notes that with regard to alibi, the Trial Chamber stated that:

when an alibi is submitted by the Accused the burden of proof rests upon the Prosecution to prove its case beyond a reasonable doubt in all aspects. Indeed, the Prosecution must prove “that the accused was present and committed the crimes for which he is charged and thereby discredit the alibi defence”. If the alibi is reasonably possibly true, it will be successful.[1]

This definition is legally beyond reproach and shows that the Trial Chamber was aware of the applicable burden of proof.

[1] Trial Judgement, para. 84, referring to Musema Appeal Judgement, para. 205 (citations omitted).

Download full document
Notion(s) Filing Case
Appeal Judgement - 09.07.2004 NIYITEGEKA Eliézer
(ICTR-96-14-A)

198. In considering whether a defect in the indictment has been cured by subsequent disclosure, the question arises as to which party has the burden of proof on the matter. Although the Judgement in Kupreškić did not address this issue expressly, the Appeals Chamber’s discussion indicates that the burden in that case rested with the Prosecution. Kupreškić stated that, in the circumstances of that case, a breach of “the substantial safeguards that an indictment is intended to furnish to the accused” raised the presumption “that such a fundamental defect in the … Indictment did indeed cause injustice.”[1] The defect could only have been deemed harmless through a demonstration “that [the Accused’s] ability to prepare their defence was not materially impaired.”[2] Kupreškić clearly imposed the duty to make that showing on the Prosecution, since the absence of such a showing led the Appeals Chamber to “uph[o]ld the objections” of the accused.[3]

[1] Kupreškić et al. Appeal Judgement, para. 122.

[2] Ibid.

[3] Kupreškić et al. Appeal Judgement, paras. 124-125.

Download full document
Notion(s) Filing Case
Decision on Disclosure - 19.02.2010 KANYARUKIGA Gaspard
(ICTR-02-78-AR73)

16. The Appeals Chamber recalls that, in order to show that the Prosecution is in breach of its disclosure obligation pursuant to Rule 68(A) of the Rules, the Defence must identify specifically the materials sought, present a prima facie showing of their probable exculpatory nature, and prove the Prosecutor’s custody or control of the materials requested.[1] Thus, contrary to the Appellant’s submission,[2] his burden of proof could not be met by merely showing a prima facie case of custody or advancing a “presumption of possession”.

[1] See, e.g., Karemera Decision [The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73.13, Decision on “Joseph Nzirorera’s Appeal From Decision on Tenth Rule 68 Motion”, 14 May 2008], para. 9; Prosecutor v. Miroslav Bralo, Case No. IT-95-17-A, Decision on Motions for Access to Ex Parte Portions of the Record on Appeal and For Disclosure of Mitigating Material, 30 August 2006, para. 31; Juvénal Kajelijeli v. The Prosecutor, Case No. ICTR-98-44A-A, Judgement, 23 May 2005, para. 262.

[2] Appeal [Appeal of the 30 October 2009 Trial Chamber II[’s] ‘Decision on Defence Motion for Disclosure and Return of Exculpatory Documents Seised from the Accused’, 27 November 2009], paras. 70, 73, 74; Reply [Reply to Respondent’s Response to Appeal of the 30 October 2009 Trial Chamber II[’s] ‘Decision on Defence Motion for Disclosure and Return of Exculpatory Documents Seised from the Accused’, 7 December 2009], paras. 12, 13. Referring to paragraph 17 of the Response, the Appellant notes that the Prosecution acknowledges that custody and control need only be shown on a prima facie basis (see Reply, para. 12). It is nevertheless clear from paragraphs 16, 18, and 19 of the Response [Respondent’s Response to Appeal of the 30 October 2009 Trial Chamber II’s ‘Decision on Defence Motion for Disclosure and Return of Exculpatory Documents Seised from the Appellant’, 1 December 2009] that the Prosecution has made a technical error. 

Download full document
ICTR Rule Rule 68 ICTY Rule Rule 68
Notion(s) Filing Case
Referral Decision - 16.12.2011 UWINKINDI Jean
(ICTR-01-75-AR11bis)

28. The Appeals Chamber is not convinced that the Referral Chamber erred in failing to address the issue of which party bears the burden of proof, or that it placed an inappropriate burden on the Defence in this respect. In its submissions, the Prosecution acknowledged that it bore the burden of proof to demonstrate that Mr. Uwinkindi’s trial in Rwanda will be fair.[1] The Appeals Chamber considers that, in cases where the Prosecution requests referral, it bears the burden of proof to demonstrate that the conditions set out in Rule 11bis of the Rules are met. However, the Appeals Chamber recalls that a designated trial chamber may also rely on any information and orders it reasonably finds necessary in determining whether the proceedings following the transfer will be fair.[2] A review of the Impugned Decision as a whole reflects that the Referral Chamber correctly regarded the burden of proof as falling on the Prosecution and also acted within its discretion in relying on other information or its own orders to satisfy itself that Mr. Uwinkindi’s trial in Rwanda will be fair.

[1] [Prosecutor’s Response Brief, 28 September 2011 (“Response Brief”)], para. 10.

[2] Stanković Appeal Decision, para. 50. See also Impugned Decision, para. 16.

Download full document
ICTR Rule Rule 11 bis ICTY Rule Rule 11 bis
Notion(s) Filing Case
Appeal Judgement - 13.12.2004 NTAKIRUTIMANA and NTAKIRUTIMANA
(ICTR-96-10-A and ICTR-96-17-A)

77. […] Although the evidence at trial sometimes turns out to be different from the Prosecution’s expectations, the accused are generally entitled to proceed on the basis that the material facts disclosed to them are “exhaustive in nature” unless and “until given sufficient notice that evidence will be led of additional incidents.”[1] Given that “the Prosecution is expected to know its case before it goes to trial,” the question is whether it was fair to the Appellant to be tried and convicted based on an allegation as to which neither he nor the Prosecution had actual or specific notice.[2] On this question, as on the question of whether communications of information sufficed to cure an indictment defect, the Prosecution bears the burden of demonstrating that the new incidents that became known at trial caused no prejudice to the Appellant.

[…]

112. [I]n circumstances where the Prosecution relies on material facts that were revealed for the first time at trial, the Prosecution bears the burden of showing that there was no unfairness to the Accused.

[1] Prosecutor v. Brðanin and Talić, Case No. IT-99-36-PT, Decision on Form of Further Amended Indictment and Prosecution Application to Amend, 26 June 2001, para. 63.

[2] Kupreškić et al. Appeal Judgement, para. 92.

Download full document
Notion(s) Filing Case
Appeal Judgement - 14.12.2011 NTAWUKULILYAYO Dominique
(ICTR-05-82-A)

103. The Appeals Chamber recalls that the Prosecution bears the burden of establishing facts material to the guilt of an accused beyond reasonable doubt, and that suggesting that the Defence should present evidence proving the contrary would be an impermissible shift of such burden.[1] In this case, the Trial Chamber essentially took the view that the Defence evidence on the events at Gisagara market was not inconsistent with the Prosecution evidence. It reasoned that since two credible and reliable Prosecution witnesses saw Ntawukulilyayo at the market, the fact that the Defence witnesses did not see him or hear of his presence at the market did not necessarily suggest that he was not there.[2]

104. The Appeals Chamber finds no error in the Trial Chamber’s preference for positive eyewitness testimony, and does not consider that the Trial Chamber’s assessment of the Defence evidence in this regard suggests that Ntawukulilyayo was required to present witnesses who were able to negate the Prosecution evidence. The Trial Chamber found that “Witnesses AYQ and BAU provided convincing and consistent accounts of Ntawukulilyayo’s order to refugees to go to Kabuye hill.”[3] It then considered the evidence that Ntawukulilyayo presented to show that he was not at the market that day.[4] The Trial Chamber also considered Ntawukulilyayo’s evidence that the refugees had already left the market before he allegedly instructed them to move.[5] In the Appeals Chamber’s view, the fact that the Trial Chamber considered that such evidence was “of limited probative value”[6] and did “not raise doubt”[7] or “concerns”[8] about the Prosecution evidence does not constitute a reversal of the burden of proof.

[1] Milošević Appeal Judgement, para. 231.

[2] See Trial Judgement, paras. 253-262. See also ibid., para. 250.

[3] Trial Judgement, para. 240.

[4] Trial Judgement, paras. 247-262. The Appeals Chamber notes that, in analyzing the Defence evidence seeking to discredit Witness AYQ based on her association with Avega and alleged procurement of false testimony, the Trial Chamber explicitly bore “in mind that the Defence carries no independent burden when seeking to raise doubt with elements of the Prosecution case.” See ibid., para. 245.

[5] Trial Judgement, para. 255. See also ibid., paras. 159, 161, 167, 179.

[6] Trial Judgement, paras. 253, 259, 261. See also ibid., para. 12.

[7] Trial Judgement, para. 250. See also ibid., para. 12.

[8] Trial Judgement, para. 258.

Download full document
Notion(s) Filing Case
Decision on Additional Grounds of Appeal - 17.08.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A )

14. Finally, the Appeals Chamber notes that it is the Appellant’s burden to demonstrate that each amendment should be permitted under the standards outlined above, including establishing lack of prejudice to the Prosecution.[1]

[1] Blagojević Decision of 26 June 2006, para. 14.

Download full document
ICTR Rule Rule 108 ICTY Rule Rule 108
Notion(s) Filing Case
Appeal Judgement - 09.05.2007 BLAGOJEVIĆ & JOKIĆ
(IT-02-60-A)

226. The standard of proof at trial requires that a Trial Chamber may only find an accused guilty of a crime if the Prosecution has proved each element of that crime and of the mode of liability, and any fact which is indispensable for the conviction, beyond reasonable doubt.[1] This standard applies whether the evidence evaluated is direct or circumstantial.[2] The Appeals Chamber has previously endorsed an approach where, similar in parts to the present case, a Trial Chamber individually examined evidence with respect to a number of incidents and subsequently assessed the accused’s criminal responsibility for those incidents.[3]

[1] See, e.g., Stakić Appeal Judgement, para. 219 (“A Trial Chamber may only find an accused guilty of a crime if the Prosecution has proved each element of that crime (as defined with respect to the relevant mode of liability) beyond a reasonable doubt.”); Ntagerura et al. Appeal Judgement, para. 174.

[2] Stakić Appeal Judgement, para. 219; Kupreškić et al. Appeal Judgement, para. 303; Kordić and Čerkez Appeal Judgement, para. 834.

[3] Kvočka et al. Appeal Judgement, para. 70 (citing with approval the approach of the Trial Chamber in Prosecutor v. Stanislav Galić to determine whether certain incidents occurred beyond reasonable doubt before determining Galić’s individual criminal responsibility for those incidents).

Download full document
Notion(s) Filing Case
Appeal Judgement - 16.11.2009 ZIGIRANYIRAZO Protais
(ICTR-01-73-A)

17. An alibi does not constitute a defence in its proper sense.[1] By raising an alibi, an accused is simply denying that he was in a position to commit the crime with which he was charged.[2] An accused does not bear the burden of proving his alibi beyond reasonable doubt.[3] Rather, “[h]e must simply produce the evidence tending to show that he was not present at the time of the alleged crime”[4] or, otherwise stated, present evidence “likely to raise a reasonable doubt in the Prosecution case.”[5] If the alibi is reasonably possibly true, it must be accepted.[6]

18. Where an alibi is properly raised, the Prosecution must establish beyond reasonable doubt that, despite the alibi, the facts alleged are nevertheless true.[7] The Prosecution may do so, for instance, by demonstrating that the alibi does not in fact reasonably account for the period when the accused is alleged to have committed the crime. Where the alibi evidence does prima facie account for the accused’s activities at the relevant time of the commission of the crime, the Prosecution must “eliminate the reasonable possibility that the alibi is true,”[8] for example, by demonstrating that the alibi evidence is not credible.

19. The Appeals Chamber has considered on several occasions whether Trial Chambers have erroneously shifted the burden of proof to the accused with respect to their alibis. Appellants have frequently pointed to language in the assessment of alibi evidence intimating that they were required to disprove the Prosecution’s evidence through their alibis. The Appeals Chamber has recognized that language which suggests, inter alia, that an accused must “negate” the Prosecution’s evidence,[9] “exonerate” himself,[10] or “refute the possibility” that he participated in a crime[11] indicates that the Trial Chamber misapplied the burden of proof. Indeed, as stated in the Musema Appeal Judgement, “[i]n considering the manner in which the Trial Chamber applied the burden and standard of proof, the Appeals Chamber must start off by assuming that the words used in the Trial Judgement accurately describe the approach adopted by the Trial Chamber.”[12]

20. In assessing whether a Trial Chamber, when using this type of language, has in fact shifted the burden of proof, the Appeals Chamber carries out an in-depth analysis of the specific findings related to a given incident.[13] The Appeals Chamber has generally found that such language, while inappropriate, is not fatal when viewed in the broader context of a Trial Chamber’s findings. This is especially the case where the Trial Chamber accurately refers elsewhere in the judgement to the appropriate burden of proof for the evaluation of alibi evidence, its overall approach evinces a careful assessment of the alibi evidence, and its conclusion that the alibi evidence is ultimately not credible is reasonable when weighed against the evidence of participation in a crime.[14]

38. The Appeals Chamber observes that the Trial Chamber correctly stated that the Prosecution bears the burden of establishing the accused’s guilt beyond reasonable doubt[15] and that it would consider each piece of evidence in light of the totality of the evidence admitted at trial.[16] […]

39. Nonetheless, the Appeals Chamber finds that the Trial Chamber’s assessment of Zigiranyirazo’s alibi involves three serious errors that, taken together, invalidate his convictions based on the events at Kesho Hill. Specifically, the Trial Chamber erred by misapprehending the burden of proof in the context of alibi, failing to consider or provide a reasoned opinion with respect to relevant circumstantial evidence, and misconstruing key evidence which, properly considered, bolstered Zigiranyirazo’s alibi.

42. The Appeals Chamber emphasizes that a successful alibi does not require conclusive proof of an accused’s whereabouts.[17] Indeed, there is no requirement that an alibi “exclude the possibility” that the accused committed a crime.[18] The alibi need only raise reasonable doubt that the accused was in a position to commit the crime.[19]

[1] Ndindabahizi Appeal Judgement, para. 66; Kajelijeli Appeal Judgement, paras. 41, 42; Kayishema and Ruzindana Appeal Judgement, para. 106; Delalić et al. Appeal Judgement, para. 581.

[2] Nahimana et al. Appeal Judgement, para. 414; Ndindabahizi Appeal Judgement, para. 66; Kajelijeli Appeal Judgement, paras. 41, 42; Niyitegeka Appeal Judgement, para. 60; Musema Appeal Judgement, paras. 205, 206; Kayishema and Ruzindana Appeal Judgement, para. 106; Delalić et al. Appeal Judgement, para. 581.

[3] Nahimana et al. Appeal Judgement, para. 414; Simba Appeal Judgement, para. 184; Karera Appeal Judgement, para. 331; Musema Appeal Judgement, para. 202; Kayishema and Ruzindana Appeal Judgement, para. 107.

[4] Musema Appeal Judgement, para. 202.

[5] Karera Appeal Judgement, para. 331 (internal citation omitted); Simba Appeal Judgement, para. 184 (internal citation omitted); Kajelijeli Appeal Judgement, para. 42 (internal citation omitted); Niyitegeka Appeal Judgement, para. 60.

[6] Nahimana et al. Appeal Judgement, para. 414; Kamuhanda Appeal Judgement, para. 38; Kajelijeli Appeal Judgement, para. 41; Musema Appeal Judgement, paras. 205, 206.

[7] Karera Appeal Judgement, para. 330; Nahimana et al. Appeal Judgement, para. 414; Simba Appeal Judgement, para. 184; Kajelijeli Appeal Judgement, para. 42; Niyitegeka Appeal Judgement, para. 60; Musema Appeal Judgement, paras. 205, 206; Kayishema and Ruzindana Appeal Judgement, para. 107. See also Limaj et al. Appeal Judgement, para. 64, quoting Limaj et al. Trial Judgement, para. 11 (“[A] finding that an alibi is false does not in itself ‘establish the opposite to what it asserts’. The Prosecution must not only rebut the validity of the alibi but also establish beyond reasonable doubt the guilt of the Accused as alleged in the Indictment.”).

[8] Kajelijeli Appeal Judgement, para. 41 (internal citation omitted); Kayishema and Ruzindana Appeal Judgement, para. 106 (internal citation omitted). See also Limaj et al. Appeal Judgement, paras. 64, 65 (internal citation omitted); Delalić et al. Appeal Judgement, para. 581.

[9] See Limaj et al. Appeal Judgement, para. 65 (“When evaluating Haradin Bala’s alibi evidence, the Trial Chamber observed that ‘the testimony of most of the witnesses for the Defence for Haradin Bala does not necessarily negate the evidence that Haradin Bala remained in Llapushnik/Lapušnik after the end of May.’ The use of the phrase ‘to negate the evidence’ could be read in the sense that the Trial Chamber required Haradin Bala to negate the Prosecution evidence”), quoting Limaj et al. Trial Judgement, para. 647.

[10] See Kamuhanda Appeal Judgement, para. 39 (“the Appeals Chamber notes that in some instances the Trial Chamber applied language which prima facie supports the Appellant’s arguments [that the Trial Chamber shifted the burden of proof], for example in paragraph 174 of the [Kamuhanda] Trial Judgement: ‘[…] the evidence of Witness ALB does not exonerate the Accused from being present at Gikomero.’”) (emphasis in original).

[11] See Musema Appeal Judgement, para. 295 (“The wording ‘are by themselves, insufficient to refute the possibility’ used by the Trial Chamber with respect to alibi evidence might be an error on a point of law, had Musema’s evidence been sufficient to sustain a potential alibi.”)(emphasis in original), quoting Musema Trial Judgement, para. 740.

[12] Musema Appeal Judgement, para. 209.

[13] See, e.g., Musema Appeal Judgement, paras. 210, 211.

[14] See, e.g., Limaj et al. Appeal Judgement, para. 65; Kamuhanda Appeal Judgement, paras. 38-44; Musema Appeal Judgement, paras. 317, 318.

[15] Trial Judgement, para. 89 (“Pursuant to Article 20(3) of the Statute, an accused shall be presumed innocent until proven guilty. This presumption places on the Prosecution the burden of establishing the guilt of the accused, a burden which remains on the Prosecution throughout the entire trial. A finding of guilt may be reached only when a majority of the Trial Chamber is satisfied that guilt has been proved beyond reasonable doubt.”) (internal citation omitted).

[16] Trial Judgement, paras. 87, 88.

[17] See Simba Appeal Judgement, para. 185 (“The Appeals Chamber is further satisfied that the Trial Chamber correctly applied [the legal standard on alibi evidence] in its subsequent findings on alibi. The Trial Chamber first found that, although the alibi evidence for the period of 6-13 April 1994 ‘[did] not account for every moment of [the Appellant’s time]], viewed as a whole and when weighed against the Prosecution evidence, it [provided]] a reasonable and satisfactory explanation for [the Appellant’s]] activities [for this period]].’ The Appeals Chamber notes that this wording reflects that in assessing the alibi evidence for this period the Trial Chamber did not require the Defence to prove its case beyond reasonable doubt.”), quoting Simba Trial Judgement, para. 349. See also Nahimana et al. Appeal Judgement, paras. 428-431, 473, 474 (reversing a Trial Chamber finding that an alibi based on hearsay had not been established).

[18] See supra Section III.A.1 (Burden of Proof in the Assessment of Alibi). See also Muhimana Appeal Judgement, para. 18 (“An accused does not need to prove at trial that a crime ‘could not have occurred’ or ‘preclude the possibility that it could occur’.”).

[19] See supra Section III.A.1 (Burden of Proof in the Assessment of Alibi).

Download full document
Notion(s) Filing Case
Decision on Disclosure - 18.05.2010 KAREMERA et al.
(ICTR-98-44-AR73.18)

 12. Pursuant to Rule 66(B) of the Rules, the Prosecutor shall permit the Defence, upon request, to inspect documents and other records in his custody or control if these records (i) are material to the preparation of the Defence case; (ii) are intended for use by the Prosecution as evidence at trial; or (iii) were obtained from or belonged to the accused. If the Defence is not satisfied with the Prosecution’s response to a request pursuant to Rule 66(B), it may request the Trial Chamber to order the inspection. 

13. However, the Defence bears the burden of proving an alleged breach of the Prosecution’s obligations pursuant to a request under Rule 66(B) of the Rules. It must therefore (i) demonstrate that the material sought is in the custody or control of the Prosecution; (ii) establish prima facie the materiality of the document sought to the preparation of the defence case; and (iii) specifically identify the requested material.[1]

[1] Jean de Dieu Kamuhanda v. The Prosecutor, Case No. ICTR-99-54A-R68, Decision on Motion for Disclosure, 4 March 2010 (“Kamuhanda Disclosure Decision”), para. 14; The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73.11, Decision on the Prosecution’s Interlocutory Appeal Concerning Disclosure Obligations, 23 January 2008 (“First Karemera Decision”), para 12. See also The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-AR73, Decision on Interlocutory Appeal Relating to Disclosure Under Rule 66(B) of the Tribunal’s Rules of Procedure and Evidence, 25 September 2006 (“Bagosora Decision”), paras. 10, 11.

Download full document
ICTR Rule Rule 66(B) ICTY Rule Rule 66(B)
Notion(s) Filing Case
Appeal Judgement - 12.11.2009 MILOŠEVIĆ Dragomir
(IT-98-29/1-A)

22. The Appeals Chamber further observes that in several instances, the Trial Chamber uses confusing language which could be viewed as shifting of the burden of proof onto the Defence to disprove the Prosecution’s case. In such instances, the Trial Chamber stated that “nothing in the evidence suggests” that a conclusion opposite to the one adopted by the Trial Chamber could be reached.[1] The Appeals Chamber finds this language misleading and stresses that the Trial Chamber is required not only to apply the appropriate standard but also to articulate it correctly. That said, the Appeals Chamber considers that, subject to the analysis of the parties’ specific challenges below, the Trial Chamber in fact meant to state that all reasonable doubt was eliminated on the basis of the evidence cited in all such instances.

231. […] It recalls that the Prosecution bears the burden of establishing beyond reasonable doubt facts material to the guilt of an accused and suggesting that the Defence should present evidence proving the contrary would be an impermissible shift of such burden.[2] […]

[1] E.g., Trial Judgement, paras 250, 266, 276, 289, 310, 324, 341, 354, 364, 393.

[2] See supra, Section III.A.1.

Download full document
Notion(s) Filing Case
Appeal Judgement - 16.11.2001 MUSEMA Alfred
(ICTR-96-13-A)

205.   In setting out its general findings in the Section entitled “Evidentiary Matters,” the Trial Chamber stated as follows:

In raising the defence of alibi, the Accused not only denies that he committed the crimes for which he is charged but also asserts that he was elsewhere than at the scene of these crimes when they were committed. The onus is on the Prosecution to prove beyond a reasonable doubt the guilt of the Accused. In establishing its case, when an alibi defence is introduced, the Prosecution must prove, beyond any reasonable doubt, that the accused was present and committed the crimes for which he is charged and thereby discredit the alibi defence. The alibi defence does not carry a separate burden of proof. If the defence is reasonably possibly true, it must be successful.[1]

206. Musema accepts the above observation as a correct statement of the law as regards the burden and standard of proof. The Appeals Chamber is of the same opinion.

[1] Trial Judgement, para. 108 (emphasis added).

Download full document
Notion(s) Filing Case
Appeal Judgement - 27.09.2007 LIMAJ et al.
(IT-03-66-A)

24. […] The burden of proof on the Prosecution to establish facts beyond reasonable doubt does not necessarily require the Prosecution to establish that each piece of evidence independently establishes the relevant fact to that standard.

Download full document
Notion(s) Filing Case
Appeal Judgement - 27.09.2007 LIMAJ et al.
(IT-03-66-A)

At paras 63-64, the Appeals Chamber recalled the previous jurisprudence of the ICTR Appeals Chamber with respect to the consequences of a defence of alibi on the burden of proof of the accused’s guilt: raising a defence of alibi does not affect the onus incumbent on the Prosecution to establish beyond reasonable doubt, despite the alibi, the accused’s guilt. Consequently, the accused bears no onus to establish the alibi, but it is for the Prosecution to eliminate any reasonable possibility that the alibi is true. Moreover, the demonstration that an alibi is false is not sufficient to demonstrate the accused’s guilt:

63. The Appeals Chamber notes and agrees with the ICTR Appeals Chamber’s finding in Kamuhanda with respect to the burden of proof regarding alibi that:

[a]n alibi […] is intended to raise reasonable doubt about the presence of the accused at the crime site, this being an element of the prosecution’s case, thus the burden of proof is on the prosecution.[1]

Similarly, the ICTR Appeals Chamber held in Kajelijeli that:

[t]he burden of proving beyond reasonable doubt the facts charged remains squarely on the shoulders of the Prosecution. Indeed, it is incumbent on the Prosecution to establish beyond reasonable doubt that, despite the alibi, the facts alleged are nevertheless true.[2]

This does not, however, require the Prosecution to specifically disprove each alibi witness’s testimony beyond reasonable doubt. Rather, the Prosecution’s burden is to prove the accused’s guilt as to the alleged crimes beyond reasonable doubt in spite of the proffered alibi.

64. In light of the above, the Appeals Chamber is satisfied that the Trial Chamber correctly held that:

So long as there is a factual foundation in the evidence for that alibi, the Accused bears no onus to establish that alibi; it is for the Prosecution to “eliminate any reasonable possibility that the evidence of alibi is true”. Further, as has been held by another Trial Chamber, a finding that an alibi is false does not in itself “establish the opposite to what it asserts”. The Prosecution must not only rebut the validity of the alibi but also establish beyond reasonable doubt the guilt of the Accused as alleged in the Indictment.[3] 

65. […] Thus, the Appeals Chamber finds that when the Trial Chamber held that the alibi evidence did not “negate the evidence” of the Prosecution, it was not stating a legal requirement. Indeed, it was rather explaining the reasons why it did not find that Haradin Bala’s alibi raised a reasonable doubt in the Prosecution’s case. […]

[1] Kamuhanda Appeal Judgement, para. 167. See also Kajelijeli Appeal Judgement, paras 41-42, and Kayishema and Ruzindana Appeal Judgement, para. 111.

[2] Niyitegeka Appeal Judgement, para. 60 (internal footnotes omitted). See also Čelebići Appeal Judgement, para. 581; Musema Appeal Judgement, para. 202 (with reference to Kunarac et al. Trial Judgement, para. 625); Kayishema and Ruzindana Appeal Judgement, para. 113.

[3] Trial Judgement, para. 11, citing Vasiljević Trial Judgement, para. 15, fn. 7. 

Download full document
Notion(s) Filing Case
Decision on Death of Co-Accused - 24.09.2010 KAREMERA et al.
(ICTR-98-44-AR50)

17. […] [The Trial Chamber] correctly recalled that “[t]here is clear statutory language and jurisprudence which emphasize the individual nature of criminal responsibility in this Tribunal [and that] [e]ven if Accused persons are joined together into one trial, this in no way diminishes the Prosecution’s burden to prove each element of each crime individually against each of the co-Accused.”[1][…]

21. […] As noted above, the Trial Chamber explicitly recalled the principle of individual criminal responsibility and that the Prosecution must prove each element of each crime individually against each of the co-Accused.[2] To the extent that they are charged with joint criminal enterprise and may thus be held accountable for acts of others in accordance with the common criminal purpose, the Appeals Chamber notes that Nzirorera’s death does not affect the burden to be met by the Prosecution in relation to Karemera and Ngirumpatse.

[1] Reasons for Impugned Decision, para. 14.

[2] Reasons for Impugned Decision, para. 14.

Download full document
Notion(s) Filing Case
Appeal Judgement - 04.12.2012 LUKIĆ & LUKIĆ
(IT-98-32/1-A)

70. With respect to MLD1, the Trial Chamber held that “[t]]here are a number of aspects of MLD1’s account that are difficult to believe”.[1] It further found that Vilić’s testimony “raise[s] serious questions as to the credibility of MLD10 in general and in respect of her alibi evidence regarding the Drina river and Varda factory incidents”.[2] The Trial Chamber also found MLD15’s evidence “somewhat strange and artificial”.[3] The Appeals Chamber considers that in making these findings, the Trial Chamber explained its reasons for concluding that the witnesses lacked credibility. Such language does not indicate a reversal of the burden of proof. On the contrary, it shows that the Trial Chamber carefully considered the evidence of these alibi witnesses.

71. The Trial Chamber considered that inconsistencies in witness testimonies “call into question the alibi as a whole, as [they cast] reasonable doubt on the alibi evidence” of MLD1, MLD10, and Marković.[4] It also found that an “inconsistency resulting from MLD24’s evidence casts further doubt upon the veracity of the alibi presented as a whole.”[5] The use of these phrases is unfortunate since, taken in isolation, they could be interpreted as requiring Milan Lukić to prove beyond reasonable doubt that he was in Belgrade at the time of the alleged crimes. However, the Appeals Chamber observes that such language must be viewed in the broader context of the Trial Chamber’s findings.[6] The fact that the Trial Chamber in some instances used language which may be misunderstood does not necessarily mean that the Trial Chamber fundamentally misplaced the burden of proof.[7]

72. The Trial Chamber articulated the correct legal standard applicable to the examination of alibi evidence. […] Thus, the Appeals Chamber considers that, when using this language, the Trial Chamber was explaining why it did not find that the proffered alibi raised a reasonable doubt in the Prosecution’s case. The Trial Chamber rejected Milan Lukić’s alibi after having considered the evidence as a whole.[8] In these circumstances, the Appeals Chamber finds that Milan Lukić has failed to show that the Trial Chamber erred in law in assessing his alibi for the DrinaRiver and Varda Factory Incidents.

361. The Appeals Chamber finds that the Trial Chamber correctly articulated the burden of proof applicable to alibi evidence. It stated that “in putting forward an alibi, an accused need only produce evidence likely to raise a reasonable doubt in the Prosecution’s case” and that “it remains incumbent on the Prosecution to establish beyond reasonable doubt that, despite the alibi, the facts alleged are nevertheless true.”[9]

362. The Appeals Chamber further finds that the Trial Chamber properly applied this burden of proof. Sredoje Lukić refers to the Trial Chamber’s finding that “certain aspects of the alibi evidence [were] difficult to believe”,[10] as well as the finding that witness accounts were “implausible”.[11] The Appeals Chamber is of the view that these considerations do not indicate a reversal of the burden of proof.

[1] Trial Judgement, para. 212.

[2] Trial Judgement, para. 216.

[3] Trial Judgement, para. 221.

[4] Trial Judgement, para. 223 (emphasis added).

[5] Trial Judgement, para. 226 (emphasis added).

[6] Cf. Zigiranyirazo Appeal Judgement, para. 20.

[7] Kamuhanda Appeal Judgement, para. 39.

[8] Trial Judgement, paras 230, 329.

[9] Trial Judgement, para. 28.

[10] Trial Judgement, para. 633.

[11] Trial Judgement, para. 634. 

Download full document
Notion(s) Filing Case
Appeal Judgement - 04.12.2001 KAYISHEMA & RUZINDANA
(ICTR-95-1-A)

128.    […] [T]he Chamber recalls that it is not conducting a trial de novo.[1]

[…]

137.    The Appeals Chamber notes at the outset that, in respect of alleged errors of fact, the burden of showing that the Trial Chamber’s findings were unreasonable is on Kayishema.  This standard of appellate review means that the “task of hearing, assessing and weighing the evidence presented at trial is left” to the Trial Chamber. Hence, the Appeals Chamber must give “a margin of deference” to factual findings reached by the Trial Chamber.[2]  One aspect of such burden is that it is up to the Appellant to draw the attention of the Appeals Chamber to the part of the record on appeal, which in his view supports the claim he is making.  From a practical standpoint, it is the responsibility of the Appellant to indicate clearly which particular evidentiary material he relies upon. Claims that are not supported by such precise references to the relevant parts of the record on appeal[3] will normally fail, on the ground that the Appellant has not discharged the applicable burden.

[…]

143.    […] As noted by ICTY Appeals Chamber, “two judges, both acting reasonably, can come to different conclusions on the basis of the same evidence”.[4] Accordingly, in his submissions, an appellant must not limit himself to proposing alternative conclusions that may have been open to the Trial Chamber on the basis of the evidence that was before it. In order for the Appeals Chamber to act, an appellant has to demonstrate that the particular findings made by the Trial Chamber were, in light of the evidence that was before it, unreasonable. […]

[…]

253.    […] The Chamber reiterates its position as regards the allegations of errors of fact and recalls that unless the Appellant shows the unreasonableness of the Chamber’s findings and the miscarriage of justice occasioned by the alleged errors, the Appeals Chamber does not find it necessary to review the trial judges’ findings established beyond reasonable doubt. […]

See also paras. 146, 237, 244, 255, 258, 295 and 320.

[1] See, for instance: “Decision relating to the Appellant’s motion for extension of time-limits and admission of additional evidence” in The Prosecutor v. Tadic, Case No. IT-94-I-A, 15 October 1998, ICTY Appeals Chamber, para. 41; see also, in the same connection, Furundžija Appeal Judgement, para. 40.

[2] Tadić Appeal Judgement, para. 64, Aleksovski Appeal Judgement, para. 63, and Čelebiči Appeal Judgement para. 506. 

[3] References should be made to relevant transcript page(s) and/or exhibit(s).

[4] Tadić Appeal Judgement, para. 64.  

Download full document
ICTR Statute Article 24 ICTY Statute Article 25
Notion(s) Filing Case
Appeal Judgement - 04.12.2001 KAYISHEMA & RUZINDANA
(ICTR-95-1-A)

106.    The Appeals Chamber considers that the defence of alibi implies that the person who raises it should establish before the Trial Chamber that objectively he was not in a position to commit the crime, particularly because he was in a place different from the one at which it was committed.  Rule 67 (A) (ii) of the Rules, same as the corresponding provision in ICTY Rules, covers the “Defence of alibi”. However, an alibi is based on evidence which the Accused intends to rely upon for an in-depth analysis of the Prosecution’s case in order to show that the Prosecution has failed to discharged the burden of proof that rests on it.  Now, since the Prosecution cannot anticipate the argument the Defence will raise, it is incumbent on the Defence to give the Prosecution notice of such argument. But this does not constitute an actual “defence”.  As ICTY Appeals Chamber pointed out in Čelebići:

“It is a common misuse of the word to describe an alibi as a “defence”.  If a defendant raises an alibi, he is merely denying that he was in a position to commit the crime with which he is charged.  That is not a defence in its true sense at all.  By raising that issue, the defendant does not more that require the Prosecution to eliminate the reasonable possibility that the alibi is true”.[1]  (Emphasis added)

107.    The Appeals Chamber stresses that this position was followed recently in the Foca case, where ICTY Trial Chamber held that

“The Prosecution bore the onus of establishing the facts alleged in the Indictment.  Having raised the issue of alibi, the accused bore no onus in establishing that alibi.  It was for the Prosecution to establish that, despite the evidence of the alibi, the facts alleged in the Indictment were nevertheless true”.[2]]

          The Appeals Chamber recalls that in conformity with the principle of presumption of innocence, as enunciated in the Judgement,[3] supra, it is the duty of the Prosecution to prove the guilt of the accused beyond reasonable doubt.

108.    […] [T]he Appeals Chamber recalls that in a criminal case, the accused’s role at the level of preparation of the case should not be confused with his role at the trial stage before the Trial Chamber.

109.    Indeed, the Appeals Chamber notes that Rule 67 (A) (ii) of the Rules of Procedure and Evidence provides that when the Defence intends to enter the defence of alibi, in addition to the duty to notify the Prosecutor thereof, the accused must also provide the evidence upon which he intends to rely to establish his alibi.[4] This rule, which applies at the level of case-preparation, only governs the reciprocal disclosure of evidence.

110.    The Appeals Chamber is therefore of the opinion that this provision places no onus of proof on the Defence, in that it does not require the Defence to prove the existence of the facts, but rather provides for disclosure of evidence in support of the alibi.  Thus, as reflected in Rule 67 referred to above, the Defence is required to disclose to the Prosecutor the place or places at which the accused claims to have been present at the time of the alleged crimes and, if it so desires, produce probative evidence tending to show that since the accused was at a particular location at a specific time, there was cause for reasonable doubt as to his presence at the scene of the crime at the alleged time.  The accused is therefore at liberty to provide the Prosecution with such evidence as may establish the credibility of the alibi raised.

111.    Consequently, it is the opinion of the Appeals Chamber that the purpose of entering a defence of alibi or establishing it at the stage of reciprocal disclosure of evidence is only to enable the Prosecutor to consolidate evidence of the accused’s criminal responsibility with respect to the crimes charged. Thus, during the trial, it is up to the accused to adopt a defence strategy enabling him to raise a doubt in the minds of the Judges as to his responsibility for the said crimes, and this, by adducing evidence to justify or prove the alibi.

112.    […] The Appeals Chamber is aware of the fact that failure to prove an alibi must not be construed as an indication of the Accused’s guilt.[5] However, the Chamber affirms that the issue of disclosure of evidence falls within the preparation of the case and precedes the production of evidence at trial. If the Defence is not in a position to produce evidence of the accused’s whereabouts, it is, nevertheless, at liberty to disclose to the Prosecutor, and then produce before the Trial Chamber, all evidentiary material likely to raise doubts as to the accused’s responsibility for the crimes charged.  Accordingly, the Appeals Chamber holds that this cannot be considered as shifting the burden of proof at the trial.

113.    The Appeals Chamber recalls that at the trial stage, the Trial Chamber limited itself to assessing the evidence presented by the parties.  The Prosecutor must always prove the existence of the facts charged as well as the accused’s responsibility therefor.  The Defence, for its part, must produce evidence before the Chamber in support of its claims that the crimes charged cannot be imputed to the accused because of his alibi.  However, in that case, the burden of proof is not shouldered by the Defence. It is merely required to produce evidence likely to raise reasonable doubt regarding the case of the Prosecution.

[1] Čelebići Appeal Judgement, para. 581 : “It is a common misuse of the word to describe an alibi as a “defence”.  If a defendant raises an alibi, he is merely denying that he was in a position to commit the crime with which he is charged.  That is not a defence in its true sense at all.  By raising that issue, the defendant does no more than require the Prosecution to eliminate the reasonable possibility that the alibi is true”.

[2] Kunarac Trial Judgement, para. 625 : “The Prosecution bore the onus of establishing the facts alleged in the Indictment. Having raised the issue of alibi, the accused bore no onus in establishing that alibi. It was for the Prosecution to establish that, despite the evidence of the alibi, the facts alleged in the indictment were nevertheless true”.

[3] See also the section of this Judgement on fair trial (III, A, paras. 50-51).

[4] Rule 67 (A) (ii) provides that “As early as reasonably practicable and in any event prior to the commencement of the trial:

[…] (ii) The Defence shall notify the Prosecutor of its intention to enter:  (a) The Defence of alibi; in which case the notification shall specify the place or places at which the accused claims to have been present at the time of the alleged crime and the names and addresses of witnesses and any other evidence upon which the accused intends to rely to establish the alibi”.

[5] However, the Appeals Chamber is of the opinion that evidence showing solely that the accused was not present at the scene of the crime, without providing any specific alibi, does not, generally speaking, show proof of alibi.

Download full document
ICTR Rule Rule 67(A)(ii) ICTY Rule 67(B)(i)(a)
Notion(s) Filing Case
Decision on Additional Evidence - 16.10.1998 TADIĆ Duško
(IT-94-1-A)

52.     A preliminary matter of a general nature concerns the burden of proof. The question at issue in this Motion is whether the Appellant is entitled to a right given to him by the appeal process which he has invoked. It is for him to establish his entitlement to the right which he claims. Accordingly, it is for the Appellant to prove the elements of the entitlement.

53.     In the absence of any explanation as to why certain items now sought to be admitted were not available at trial, the Appeals Chamber finds that the Appellant has failed to discharge his burden of proof in respect of these items to its satisfaction. […]

Download full document
ICTR Rule Rule 115 ICTY Rule 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.

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115 MICT Rule Rule 142
Notion(s) Filing Case
Decision on Indigence - 24.06.2016 KARADŽIĆ Radovan
(MICT-13-55-A)

Page 3:

RECALLING that judicial review of an administrative decision made by the Registrar in relation to legal aid is concerned initially with the propriety of the procedure by which the decision was made and that the decision may be quashed if the Registrar: (i) has failed to comply with the relevant legal requirements; (ii) failed to observe any basic rules of natural justice or to act with procedural fairness towards the person affected by the decision; (iii) took into account irrelevant material or failed to take into account relevant material; or (iv) reached a conclusion which no sensible person who has properly applied his mind to the issue could have reached;[1]

RECALLING FURTHER that the party contesting the administrative decision bears the onus to show an error in the decision and that the error has significantly affected the decision to his detriment;[2]

[1] See The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A, Decision on Ntahobali’s Request for Review of Registrar’s Decisions, 21 February 2014 (confidential and ex parte), public redacted version issued on 23 May 2016 (“Nyiramasuhuko et al. Decision”), para. 16; Karadžić ICTY Appeals Chamber Decision of 25 July 2014 [Prosecutor v. Radovan Karadžić, Case No. IT-95-5-5/18-AR73.13, Decision on Appeal from Decision on Indigence, 25 July 2014 (confidential and ex parte), public redacted version issued on 2 December 2014], para. 4; Prosecutor v. Jadranko Prlić et al., Public Redacted Version of the 25 July 2013 Decision on Slobodan Praljka’s Motion for Review of the Registrar’s Decision on Means, 28 August 2013 (“Prlić et al. Decision”), paras. 6, 30; Prosecutor v. Zdravko Tolimir, Case No. IT-05-88/2-AR73.2, Decision on Zdravko Tolimir’s Appeal Against the Decision of Trial Chamber II on the Registrar’s Decision Concerning Legal Aid, 12 November 2009 (confidential and ex parte), public redacted version filed on 28 February 2013 (“Tolimir Decision”), para. 8; Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-A, Decision on Review of Registrar’s Decision to Withdraw Legal Aid from Zoran Žigić, 7 February 2003 (“Kvočka et al. Decision”), para. 13.

[2] Tolimir Decision, para. 9 and references cited therein.

Download full document
Other instruments MICT Directive on the Assignment of Defence Counsel
Notion(s) Filing Case
Decision on Indigence - 24.06.2016 KARADŽIĆ Radovan
(MICT-13-55-A)

Pages 4-5:

RECALLING that the Registry has the primary responsibility for matters relating to remuneration of counsel in respect of which it enjoys a margin of appreciation;[1]

REITERATING, however, that the Appeals Chamber has the inherent power to review matters affecting the rights of persons in proceedings before it, including the right to have adequate time and facilities for the preparation of defence, pursuant to its statutory obligation to ensure the fairness of the proceedings;[2]

CONSIDERING that the inherent power to review such matters encompasses the power to make determinations concerning such matters where necessary to give full effect to statutory rights;[3]

RECALLING the statutory right of an accused to have legal assistance assigned to him where the interests of justice so require and without payment if he does not have sufficient means to pay for it;[4]

RECALLING that the Directive was established to ensure legal assistance to indigent accused in the most efficient, economical, and equitable manner in order to safeguard the rights afforded under the Statute and the Rules;[5]

CONSIDERING the UN Guidelines on Access to Legal Aid, which provide that “[a] court may, having regard to the particular circumstances of a person and after considering the reasons for denial of legal aid, direct that that person be provided with legal aid, with or without his or her contribution, when the interests of justice so require”;[6]

[…]

CONSIDERING that the burden of proof is on the applicant for legal aid to demonstrate his inability to remunerate counsel and that once the applicant has provided information regarding his inability to do so the burden of proof shifts to the Registry to prove otherwise based on the balance of probablities;[7]

[1] Decision on the Registry’s Request for Observations Regarding Preparation of the Notice of Appeal, 4 May 2016, p. 1 (“the Registry has the primary responsibility in the determination of matters relating to remuneration of counsel”); Nyiramasuhuko et al. Decision [The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A, Decision on Ntahobali’s Request for Review of Registrar’s Decisions, 21 February 2014 (confidential and ex parte), public redacted version issued on 23 May 2016], para. 17; Tolimir Decision [Prosecutor v. Zdravko Tolimir, Case No. IT-05-88/2-AR73.2, Decision on Zdravko Tolimir’s Appeal Against the Decision of Trial Chamber II on the Registrar’s Decision Concerning Legal Aid, 12 November 2009 (confidential and ex parte), public redacted version filed on 28 February 2013], paras. 8, 9 and referenced cited therein.

[2] See Article 19 of the Statute of the Mechanism (“Statute”). See also Nyiramasuhuko et al. Decision, para. 14; Prosecutor v. Nikola Šainović et al., Case No. IT-05-87-A, Decision on Nebojša Pavković’s Motion for Stay of Proceedings, 2 March 2010, para. 12; In Re. André Ntagerura, Case No. ICTR-99-46-A28, Decision on Motion for Leave to Appeal the President’s Decision of 31 March 2008 and the Decision of Trial Chamber III Rendered on 15 May 2008, 11 September 2008, para. 12.

[3] Nyiramasuhuko et al. Decision, para. 21 (“[t]he Appeals Chamber is of the view that judicial economy is best served in the particular circumstances of this case by disposing of the merits of this part of the Request for Review rather than remitting the matter to the Registrar”).

[4] Article 19(4)(d) of the Statute. See also Rule 43 of the Rules of Procedure and Evidence of the Mechanism.

[5] Directive [Directive on the Assignment of Defence Counsel, MICT/5, 14 November 2012], Article 1. The Appeals Chamber also recalls that, under Articles 6(B) and 6(C) of the Directive, an accused who lacks the means to remunerate counsel shall have the right to have counsel assigned to him and paid for by the Mechanism and that, for an accused who has the means to partially remunerate counsel, the Mechanism shall pay that portion of his defence costs which the accused does not have sufficient means to cover, as determined in accordance with the Registry Policy for Determining the Extent to which an Accused is able to Remunerate Counsel.

[6] UN Guidelines on Access to Legal Aid, para. 41(e).

[7] Prlić et al Decision [Prosecutor v. Jadranko Prlić et al., Public Redacted Version of the 25 July 2013 Decision on Slobodan Praljka’s Motion for Review of the Registrar’s Decision on Means, 28 August 2013], para. 35; Kvočka et al. Decision [Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-A, Decision on Review of Registrar’s Decision to Withdraw Legal Aid from Zoran Žigić, 7 February 2003], para. 12.

Download full document