Credibility

Notion(s) Filing Case
Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

1228. […] As the Appeals Chamber has previously observed, witnesses testify about what they see or hear from a particular vantage point at the time of the events.[1] It is for the Trial Chamber to evaluate inconsistencies in a witness’s evidence or discrepancies between the evidence of several witnesses, to consider whether the evidence taken as a whole is reliable and credible, and ultimately to accept or reject the fundamental features of the evidence.[2] […]

[1]           See Karera Appeal Judgement, para. 173.

[2]           Nizeyimana Appeal Judgement, para. 174; Munyakazi Appeal Judgement, para. 71. See supra, para. 137.

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Notion(s) Filing Case
Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

131. The Appeals Chamber recalls that a trial chamber is best placed to assess the credibility of a witness and reliability of the evidence adduced,[1] and therefore has broad discretion in assessing the appropriate weight and credibility to be accorded to the testimony of a witness.[2] Indeed, the ICTR Appeals Chamber has previously noted that it “is loathe to disturb such credibility assessments”.[3] As with other discretionary decisions, the question before the Appeals Chamber is not whether it “agrees with that decision” but “whether the trial chamber has correctly exercised its discretion in reaching that decision”.[4] The party challenging a discretionary decision by the trial chamber must demonstrate that the trial chamber has committed a discernible error. The Appeals Chamber will only overturn a trial chamber’s discretionary decision where it is found to be: (1) based on an incorrect interpretation of governing law; (2) based on a patently incorrect conclusion of fact; or (3) so unfair or unreasonable as to constitute an abuse of discretion.[5] In such cases the Appeals Chamber will deem that the witness evidence relied on by the Trial Chamber could not have been accepted by any reasonable tribunal of fact or that the evaluation of the evidence was “wholly erroneous”, and proceed to substitute its own finding for that of the Trial Chamber.[6]

132. The Appeals Chamber is mindful that when exercising its broad discretion, a trial chamber has to consider relevant factors on a case-by-case basis, including the witness’s demeanour in court; his role in the events in question; the plausibility and clarity of his testimony; whether there are contradictions or inconsistencies in his successive statements or between his testimony and other evidence; any prior examples of false testimony; any motivation to lie; and the witness’s responses during cross-examination.[7] The Appeals Chamber recalls that the many potential factors relevant to the trial chamber’s assessment of a witness’s credibility include corroboration,[8] the witness’s close personal relationship to an accused,[9] and the witness’s criminal history.[10] The application of these factors, and the positive or negative impact they may have on the witness’s credibility, varies according to the specific circumstances of each case.[11] Finally, a trial chamber can reasonably accept certain parts of a witness’s testimony and reject others.[12]

133. The Appeals Chamber recalls that a trial chamber is not required to set out in detail why it accepted or rejected a particular testimony,[13] and that an accused’s right to a reasoned opinion does not ordinarily demand a detailed analysis of the credibility of particular witnesses.[14] However, a trial chamber must provide reasons for accepting testimony despite alleged or material inconsistencies when it is the principal evidence relied upon to convict an accused.[15]

[…]

136. The Appeals Chamber recalls that it is not an error of law per se to accept and rely on evidence that is inconsistent with a prior statement or other evidence adduced at trial.[16] A trial chamber has the discretion to accept a witness’s evidence, notwithstanding inconsistencies between the said evidence and his previous statements.[17] However, a trial chamber must take into account any explanations offered for such inconsistencies when determining the probative value of the evidence.[18]

137. Similarly, a trial chamber has the discretion to evaluate any inconsistencies that may arise within or among witnesses’ testimonies and to determine whether, in the light of the overall evidence, the witnesses were reliable and credible.[19] Considering that minor inconsistencies commonly occur in witness testimony without rendering it unreliable, it is within the discretion of a trial chamber to evaluate discrepancies and to consider the credibility of the evidence as a whole, without explaining its decision in every detail.[20]

[1]           Šainović et al. Appeal Judgement, paras 437, 464, 1296; Lukić and Lukić Appeal Judgement, para. 296. See Đorđević Appeal Judgement, para. 395.

[2]           Đorđević Appeal Judgement, paras 781, 797, 819; Ndahimana Appeal Judgement, paras 43, 93; Lukić and Lukić Appeal Judgement, paras 86, 235, 363, 375.

[3]           Nizeyimana Appeal Judgement, para. 56; Hategekimana Appeal Judgement, para. 202; Second Muvunyi Appeal Judgement, para. 26, citing Ntakirutimana and Ntakirutimana Appeal Judgement, para. 244. See Šainović et al. Appeal Judgement, para. 1384.

[4]           Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-AR73.1, Decision on Miroslav Šeparović’s Interlocutory Appeal Against Trial Chamber’s Decisions on Conflict of Interest and Finding of Misconduct, 4 May 2007, para. 11; Prosecutor v. Milan Lukić and Sredoje Lukić, Case No. IT-98-32/1-AR65.1, Decision on Defence Appeal Against Trial Chamber’s Decision on Sredoje Lukić’s Motion for Provisional Release, 16 April 2007, para. 4; Prosecutor v. Mico Stanišić, Case No. IT-04-79-AR65.1, Decision on Prosecution’s Interlocutory Appeal of Mićo Stanišić’s Provisional Release, 17 October 2005, para. 6.

[5]           See supra, para. 74.

[6]           Kupreškić et al. Appeal Judgement, paras 30, 41, 130, 225. See also supra, para. 20.

[7]           Nzabonimana Appeal Judgement, para. 45; Nchamihigo Appeal Judgement, para. 47, referring to Nahimana et al. Appeal Judgement, para. 194. See Nizeyimana Appeal Judgement, para. 92.

[8]           Nchamihigo Appeal Judgement, para. 47, referring to Simba Appeal Judgement, para. 24.

[9]           Nizeyimana Appeal Judgement, para. 57; Kanyarukiga Appeal Judgement, para. 121, referring to Bikindi Appeal Judgement, para. 117.

[10]          Nzabonimana Appeal Judgement, para. 93, referring to Bagosora and Nsengiyumva Appeal Judgement, para. 264, Kamuhanda Appeal Judgement, para. 142.

[11]          Nchamihigo Appeal Judgement, para. 47, referring to Simba Appeal Judgement, para. 24.

[12]          Šainović et al. Appeal Judgement, paras 294, 336, 342, 382, 437, 564, 644; Ndahimana Appeal Judgement, para. 183; Boškoski and Tarčulovski Appeal Judgement, para. 59 and references cited therein. See Bagosora and Nsengiyumva Appeal Judgement, para. 253.

[13]          Gatete Appeal Judgement, para. 136; Ntabakuze Appeal Judgement, para. 161; Bagosora and Nsengiyumva Appeal Judgement, para. 269. See Lukić and Lukić Appeal Judgement, para. 112.

[14]          Kajelijeli Appeal Judgement, para. 60.

[15]          Haradinaj et al. Appeal Judgement, paras 129, 134, 252; Kupreškić et al. Appeal Judgement, paras 135, 202. See First Muvunyi Appeal Judgement, paras 144, 147. See also Bizimungu Appeal Judgement, para. 64; Kajelijeli Appeal Judgement, para. 61.

[16]          Šainović et al. Appeal Judgement, para. 424; Nchamihigo Appeal Judgement, para. 201 and references cited therein.

[17]          Đorđević Appeal Judgement, para. 422; Rukundo Appeal Judgement, para. 86 and references cited therein.

[18]          Šainović et al. Appeal Judgement, para. 424; Nchamihigo Appeal Judgement, para. 201 and references cited therein.

[19]          See Karemera and Ngirumpatse Appeal Judgement, paras 179, 467-468; Đorđević Appeal Judgement, paras 395, 422; Ndahimana Appeal Judgement, para. 93; First Muvunyi Appeal Judgement, para. 144.

[20]          Đorđević Appeal Judgement, para. 797; Lukić and Lukić Appeal Judgement, paras 112, 135; Kvočka et al. Appeal Judgement, para. 23. Cf. supra, note 376.

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

85. […] As the Appeals Chamber has previously stated, “to suggest that if something were true a witness would have included it in a statement or a confession letter is obviously speculative and, in general, it cannot substantiate a claim that a Trial Chamber erred in assessing the witness’s credibility.”[1]

[1] Kajelijeli Appeal Judgement, para. 176.

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Notion(s) Filing Case
Appeal Judgement II - 01.04.2011 MUVUNYI Tharcisse
(ICTR-2000-55A-A)

26. The Trial Chamber also noted the demeanour of the witnesses when confronted with the suggestion that Nteziryayo was not in fact the prefect in May 1994, which, in the Trial Chamber’s view, indicated that “they were confronted with an incorrect recollection rather than a lie.”[1] The assessment of the demeanour of witnesses in considering their credibility is one of the fundamental functions of a Trial Chamber to which the Appeals Chamber must accord considerable deference.[2] The Appeals Chamber has previously noted that it “is loathe to disturb such credibility assessments on review”.[3] The Appeals Chamber further recalls that it is not unreasonable for a trier of fact to accept some, but reject other parts of a witness’s testimony.[4] The Appeals Chamber, Judges Liu and Meron dissenting, is not convinced that it was unreasonable for the Trial Chamber, in the circumstances noted above, to have rejected the portion of the witnesses’ accounts relating to Nteziryayo’s position during the meeting as prefect. Consequently, Muvunyi has not shown that the Trial Chamber’s findings are wholly erroneous or that no reasonable trier of fact could have concluded that the meeting described by the Prosecution witnesses occurred in May 1994.[5]

[1] Trial Judgement, para. 57.

[2] See Nchamihigo Appeal Judgement, para. 47; Bikindi Appeal Judgement, para. 114; Simba Appeal Judgement, para. 9; Nahimana et al. Appeal Judgement, paras. 14, 194; Ndindabahizi Appeal Judgement, para. 34; Ntagerura et al. Appeal Judgement, paras. 12, 213; Semanza Appeal Judgement, para. 8; Ntakirutimana Appeal Judgement, paras. 12, 204, 244; Kamuhanda Appeal Judgement, para. 138; Kayishema and Ruzindana Appeal Judgement, para. 222. See also Edouard Karemera et al. v. The Prosecutor, Case No. ICTR-98-44-AR15bis.2, Reasons for Decision on Interlocutory Appeals Regarding the Continuation of Proceedings with a Substitute Judge and on Nzirorera’s Motion for Leave to Consider New Material, 22 October 2004, para. 60.

[3] Ntakirutimana Appeal Judgement, para. 244.

[4] Muvunyi I Appeal Judgement, para. 128.

[5] The Appeals Chamber finds no merit to Muvunyi’s contention that the allegation in the Indictment refers to a meeting involving Aloys Simba. The Indictment does not identify Simba as the Chairman of Civil Defence in Butare Prefecture. See Indictment, para. 3.24.

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Notion(s) Filing Case
Appeal Judgement - 26.05.2003 RUTAGANDA George
(ICTR-96-3-A)

219. On this point, the Appeals Chamber refers to the opinion of the ICTY Appeals Chamber, which considers that in matters of evidence, there is no established rule that traumatic circumstances endured by a witness necessarily render his or her evidence unreliable.[1] In the instant case, it has not been demonstrated how the “trauma” would have rendered Witnesses AA and Q incapable of giving an accurate account of the events they experienced. Consequently, the Appeals Chamber considers that the Trial Chamber correctly held that the fact that a witness may forget or mix up small details is often as a result of trauma suffered and does not necessarily impugn his evidence in relation to the central facts of the crime.[2] Hence, the Appellant, by merely citing two paragraphs of the Judgement and raising general considerations, has in no way demonstrated the basis for his contention that the Trial Chamber in general discounted many contradictions in the evidence on grounds of trauma.

[1] Kunarac Appeal Judgement, para. 324. “[I]n principle, there could be cases in which the trauma experienced by a witness may make her unreliable as a witness and […] a Trial Chamber must be especially rigorous in assessing identification evidence. However, there is no recognised rule of evidence that traumatic circumstances necessarily render a witness’s evidence unreliable. It must be demonstrated in concreto why “the traumatic context” renders a given witness unreliable. It is the duty of the Trial Chamber to provide a reasoned opinion adequately balancing all the relevant factors. […]”[1] (Emphasis added).

[2] Čelebići Appeal Judgement, para. 497.

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Notion(s) Filing Case
Decision on Additional Evidence - 15.11.2000 JELISIĆ Goran
(IT-95-10-A)

CONSIDERING that the admission of evidence is in the interests of justice if it is relevant to a material issue, if it is credible and if it is such that it would probably show that the conviction or sentence was unsafe;

[RULE 115 OF THE RULES OF PROCEDURE AND EVIDENCE WAS AMENDED ON 12 JULY 2002.]

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

41.     The Appeals Chamber recalls that, in relation to the credibility of Mugiraneza’s 1999 and 2014 statements and Nyiramasuhuko’s 2010 Testimony, it is required to ascertain whether the proposed evidence appears to be reasonably capable of belief or reliance, and need not at this stage make a finding as to the weight to be accorded to it.[1] The identification of the provenance of the evidence is important in this regard.[2] […]

[1] Lazarević Appeal Decision of 26 January 2010 [ Prosecutor v. Nikola Šainović et al., Case No. IT-05-87-A, Decision on Vladimir Lazarević’s Motion to Present Additional Evidence and on Prosecution’s Motion for Order Requiring Translations of Excerpts of Annex E of Lazarević’s Rule 115 Motion, 26 January 2010], para. 27, referring, inter alia, to Prosecutor v. Dragomir Milošević, Case No. IT-98-29/1-A, Decision on Dragomir Milošević’s Further Motion to Present Additional Evidence, 9 April 2009, para. 6; Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-A, Decision on Appellant Momčilo Krajišnik’s Motion to Present Additional Evidence, 20 August 2008, para. 6.

[2] Lukić Appeal Decision of 11 March 2010, para. 48.

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MICT Rule Rule 142
Notion(s) Filing Case
Appeal Judgement - 08.05.2012 KANYARUKIGA Gaspard
(ICTR-02-78-A)

150. The Appeals Chamber recalls the finding in the Zigiranyirazo Appeal Judgement that “evidence concerning specific travel details taken after several years can only be of limited assistance in establishing the time and exact itinerary” of a trip taken in April 1994.[1] However, it also recalls that, in the circumstances of that case, the observations of the Trial Chamber on the site visit were found to be a relevant factor in assessing the credibility of the alibi.[2] As such, although it is true that observations from a site visit taken several years after an event may only be of limited assistance, their relevance will depend on the circumstances of each case. Therefore, the Appeals Chamber does not find that the Trial Chamber erred in law by comparing its observations during the site visit with the evidence of the alibi witnesses. The Appeals Chamber will therefore turn to consider whether the Trial Chamber was reasonable in this comparison.

[1] Zigiranyirazo Appeal Judgement, para. 69. Although the Zigiranyirazo case concerned not only the question of timing but also the route taken, the Appeals Chamber considers that the reasoning in that case is equally applicable to the general timing of a trip along a given route.

[2] Zigiranyirazo Appeal Judgement, para. 69.

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Notion(s) Filing Case
Appeal Judgement - 18.03.2010 BIKINDI Simon
(ICTR-01-72-A)

115. As for the Appellant’s claim that the Prosecution bears the burden of establishing that a Defence witness is giving false evidence, the Appeals Chamber recalls that a credibility determination may be based, but does not necessarily depend, on a judicial finding that a witness has given false testimony.[1] The fact that the Prosecution did not prove or even allege that Defence witnesses were giving false testimony did not prevent the Trial Chamber from exercising its discretion in assessing the weight to be attached to their evidence. The Appellant’s argument that unless the Prosecution established that Defence witnesses gave false testimony the Trial Chamber was compelled to believe their evidence is misguided.

116. With respect to the Appellant’s assertion that the Trial Chamber erred in considering the evidence of Defence witnesses with caution due to their “close relationship” with him, whereas the same criterion was not applicable to Prosecution evidence, the Appeals Chamber disagrees. In determining the weight to attach to the evidence of any witness, the Trial Chamber has a broad discretion to consider all relevant factors, as noted above.[2] The fact that a criterion for assessing the credibility of the Defence witnesses was not equally applicable to the Prosecution witnesses did not invalidate the application of this factor. The right to have Defence witnesses examined under the same conditions as Prosecution witnesses relates to the right to call witnesses, and the right to cross-examine witnesses called by the Prosecution under the same conditions as the Prosecution.[3] It does not encompass the factors that a Trial Chamber may consider relevant in assessing the credibility of those witnesses.

[1] Simba Appeal Judgement, para. 31.

[2] Nahimana et al. Appeal Judgement, para. 194.

[3] Nahimana et al. Appeal Judgement, para. 181.

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Notion(s) Filing Case
Decision on Additional Evidence - 20.08.2008 KRAJIŠNIK Momčilo
(IT-00-39-A)

The Appeals Chamber found that a statement made by Radovan Karadžić and given to one of the Applicant’s investigators lacked credibility for the purposes of Rule 115:

108. With respect to the statement’s credibility, the Appeals Chamber notes that according to the Appellant, “it was impossible to get in direct contact with Mr Karadžić”.[1] Apart from this reference, the Appellant provides no further information as to the circumstances under which this document was produced and how it was communicated to him. As a result, the Appeals Chamber finds that 33-K-0088 is still of dubious credibility. The Appeals Chamber notes that it is yet unknown whether Radovan Karadžić will provide evidence in relation to the credibility of his alleged statement. Therefore, the Appeals Chamber dismisses the request to have the statement admitted at this juncture. This is, however, without prejudice to any renewed request to admit it in the context of a potential motion under Rule 115 of the Rules relating to evidence by Radovan Karadžić.[2]

[1] Motion to Present Additional Evidence Pursuant to Rule 115 to the Appeal By Momčilo Krajišnik to the ICTY Judgement of 27 September 2006, 29 May 2008, para. 33(A).

[2] Motion to interview Radovan Karadžić with a view to then calling him as a witness pursuant to Rule 115, 13 August 2008.

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Notion(s) Filing Case
Decision on Additional Evidence - 29.04.2010 ŠAINOVIĆ et al.
(IT-05-87-A)

27. […] The Appeals Chamber notes that document 6DA19 contains sufficient indicia of credibility, such as a date, reference number, and the signature of Vlastimir Đorđević.[1] Accordingly, the Appeals Chamber finds document 6DA19 to be prima facie credible.[2] […]

33. […] Given that the document bears sufficient indicia of credibility, such as a date, reference number, and a handwritten confirmation of receipt, the Appeals Chamber finds it to be prima facie credible.[3] […]

40. The Appeals Chamber notes that although the original, untranslated version of document 6DA22 in Annex D of the Motion does not include the page containing the relevant stamps and signatures, the Appeals Chamber is apprised of the name of the court and the date on which the judgement was rendered. The Appeals Chamber further notes that the Prosecution does not contest its credibility. Accordingly, the Appeals Chamber finds document 6DA22 to be prima facie credible. […]

[1] Ibid.

[2] The Appeals Chamber notes that the Prosecution does not challenge the credibility of any of the proposed documents […].

[3] Ibid.

[4] Milošević Rule 115 Decision, para. 8; Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-A, Decision on Appellant Momčilo Krajišnik’s Motion to Call Radovan Karadžić pursuant to Rule 115, 16 October 2008 (“Krajišnik Rule 115 Decision of 16 October 2008”), para. 5; Prosecutor v. Ramush Haradinaj et al., Case No. IT-04-84-AR65.1, Decision on Prosecution’s Application to Present Additional Evidence in Its Appeal Against the Re-Assessment Decision, 10 March 2006 (confidential), para. 16; Prosecutor v. Zoran Kupreškić et al., Case No. IT-95-16-A, Appeal Judgement, 23 October 2001, para. 63.

[5] The Appeals Chamber observes that the copies of documents 6DA5 through 6DA9 contained in Annex E of the Motion are of very poor quality. In this particular instance, the Appeals Chamber was able to compare the currently submitted versions of the documents with those tendered at trial in relation to Lukić’s Motion of 7 May 2008 (documents MNA 6D1262, MNA 6D1263, MNA 6D1264, MNA 6D1265, MNA 6D1266) and is satisfied that the documents are indeed the same. Therefore, the fact that in this case the submitted copies of the documents were of poor quality does not affect the Appeals Chamber’s finding in relation to the credibility of the documents. The Appeals Chamber however notes that it is Counsel’s duty to ensure that the documentary evidence sought to be admitted is of good quality.

[6] See supra, para. 6.

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

28. As to the requirement that the evidence be credible, minor inconsistencies between the statements of the proposed witnesses will not render them incredible, as is suggested by the Prosecution in its response. What is important in deciding if a piece of evidence is credible is that it appears to be reasonably capable of belief or reliance.

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ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Nobilo Contempt Appeal Judgement - 30.05.2001 ALEKSOVSKI Zlatko
(IT-95-14/1-AR77)

47. […] Although there were many inconsistencies within the various statements made by Mr Nobilo concerning other issues which could have discredited him as a witness in relation to these issues, a mere disbelief of a witness’s denial of a particular fact does not by itself logically permit a tribunal of fact to accept beyond reasonable doubt the truth of fact which he denied. […]

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

41. Documents 6DA5 through 6DA9 bear some indicia of credibility, such as dates, recipients, and Lukić’s typed name as Head of Staff.[1] The Prosecution does not contest their credibility. Accordingly, the Appeals Chamber finds the documents to be prima facie credible. […]

48. The Appeals Chamber recalls that when assessing the credibility of a piece of evidence it will consider whether it appears to be reasonably capable of belief or reliance.[2] Identification of the provenance of the evidence is important in this respect. […] [The Appeals Chamber] notes that the documents in question are not signed and do not bare any proof of their origin, such as MUP insignia, contemporary stamps, or stamps from an archive. Also, no source for the facts contained in the documents is mentioned, and there is no indication of who authored the documents. […] The Appeals Chamber therefore finds that documents 6DA10 and 6DA11 do not bear sufficient indicia of credibility and therefore do not appear to be reasonably capable of belief or reliance. […]

[1] The Appeals Chamber observes that the copies of documents 6DA5 through 6DA9 contained in Annex E of the Motion are of very poor quality. In this particular instance, the Appeals Chamber was able to compare the currently submitted versions of the documents with those tendered at trial in relation to Lukić’s Motion of 7 May 2008 (documents MNA 6D1262, MNA 6D1263, MNA 6D1264, MNA 6D1265, MNA 6D1266) and is satisfied that the documents are indeed the same. Therefore, the fact that in this case the submitted copies of the documents were of poor quality does not affect the Appeals Chamber’s finding in relation to the credibility of the documents. The Appeals Chamber however notes that it is Counsel’s duty to ensure that the documentary evidence sought to be admitted is of good quality.

[2] See supra, para. 6.

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

28. The Appeals Chamber recalls that evidence is credible if it appears to be reasonably capable of belief or reliance.[1] […] As to the two remaining documents, 4DA2 and 4DA27, both bear sufficient indicia of credibility, such as stamps or signatures or both, and the Appeals Chamber finds them also to be prima facie credible in the sense of Rule 115(B) of the Rules.

[1] Milošević Rule 115 Decision, para. 8; Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-A, Decision on Appellant Momčilo Krajišnik’s Motion to Call Radovan Karadžić pursuant to Rule 115, 16 October 2008 (“Krajišnik Rule 115 Decision of 16 October 2008”), para. 5; Prosecutor v. Ramush Haradinaj et al., Case No. IT-04-84-AR65.1, Decision on Prosecution’s Application to Present Additional Evidence in Its Appeal Against the Re-Assessment Decision, 10 March 2006 (confidential), para. 16; Prosecutor v. Zoran Kupreškić et al., Case No. IT-95-16-A, Appeal Judgement, 23 October 2001, para. 63. 

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

G.      Interests of Justice

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

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

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

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

          (b) the evidence is credible; and

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

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

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

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

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ICTR Statute Article 24 ICTY Statute Article 25 ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Additional Evidence - 30.06.2005 GALIĆ Stanislav
(IT-98-29-A)

73.     The Appeals Chamber notes that it is normal for a witness who testified in several trials about the same event or occurrence to focus on different aspects of that event, depending on the identity of the person at trial and the questions posed to the witness.[1] Therefore, not every discrepancy may undermine a witness’s credibility. […]

[1] Prosecutor v. Elizaphan and Gérard Ntakirutimana, Case Nos. ICTR 96-10-A and ICTR-96-17-A, Reasons for the Decision on Request for Admission of Additional Evidence, 8 September 2004, para. 31.

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Notion(s) Filing Case
Decision on Additional Evidence - 30.06.2005 GALIĆ Stanislav
(IT-98-29-A)

95.     The Appeals Chamber recalls, with regards to credibility, that it will refuse to admit evidence only if it is so lacking in terms of credibility and reliability that it is devoid of any probative value in relation to a decision pursuant to Rule 115.[1] […]

[1] Prosecutor v. Ntagerura et al., Case No. ICTR-99-46-A, Decision on Prosecution Motion for Admission of Additional Evidence, 10 December 2004, para. 22; Prosecutor v. Emmanuel Ndindabahizi, Case No. ICTR-01-71-A, Decision on the Admission of Additional Evidence, 14 April 2005, p. 7.

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ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Review - 12.03.2009 NIYITEGEKA Eliézer
(ICTR-96-14-R)

22. The Appeals Chamber further recalls that the term “new fact” refers to new evidentiary information supporting a fact that was not in issue during the trial or appeal proceedings.[1] The requirement that the fact was not in issue during the proceedings means that “it must not have been among the factors that the deciding body could have taken into account in reaching its verdict.”[2] Essentially, the moving party must show that the Chamber did not know about the fact in reaching its decision.[3]

47. This being said, the Appeals Chamber does not find it necessary to order Niyitegeka to file the Additional Statements or information concerning the identity of their authors. Niyitegeka makes clear that, in his view, the information contained in the Additional Statements reveals that Witness GGV was not credible. The Appeals Chamber notes that Witness GGV’s credibility is a matter that was litigated at trial and on appeal. While the Additional Statements may constitute material of an evidentiary nature, in light of what Niyitegeka discloses of their content they do not constitute “new facts” within the meaning of Article 25 of the Statute. Accordingly, Niyitegeka’s attempt to have them admitted as new facts for the purposes of review is bound to fail.  

[1] Third Review Decision, para. 14; Rutaganda Review Decision, para. 9; Blaškić Review Decision, paras. 14, 15; Tadić Review Decision, para. 25.

[2] Third Review Decision, para. 14; Rutaganda Review Decision, para. 9; Blaškić Review Decision, paras. 14, 15; Tadić Review Decision, para. 25.

[3] Third Review Decision, para. 14; Rutaganda Review Decision, para. 9; Blaškić Review Decision, para. 14.

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ICTR Statute Article 25 ICTY Statute Article 26 ICTR Rule Rule 120 ICTY Rule Rule 119
Notion(s) Filing Case
Decision on Review - 19.03.2009 NALETILIĆ Mladen
(IT-98-34-R)

25. The Appeals Chamber further recalls that the term “new fact” for the purposes of review refers to new evidentiary information supporting a fact that was not in issue or considered in the original proceedings.[1] Accordingly, as the issue of Simang’s credibility was considered during the trial and appeal proceedings in light of allegations regarding the promises made by the Prosecution to Simang and Mrachaz, the Appeals Chamber finds that the Applicant has failed to demonstrate that the evidence submitted in the Application regarding Simang’s credibility constitutes a new fact for the purposes of review.[2]

[1] See supra, para. 11, fn. [4].

[2] See Prosecutor v. Tholimir Blaškić, Case No. IT-95-14-R, Confidential Decision on Prosecutor’s Request for Review or Reconsideration, 23 November 2006, paras 15-17, 60-61. See also, Rutaganda Review Decision, paras 15-17, where the Appeals Chamber found that some information concerning the credibility of two witnesses constituted new facts, notwithstanding the circumstance that those witnesses’ credibility was already litigated throughout the case. In the Rutaganda Decision, the Appeals Chamber based its finding on the circumstance that, in contrast to the present case, the allegations presented by the moving party in relation to witness credibility were not in issue during the original proceedings and amounted to new facts.

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ICTR Statute Article 25 ICTY Statute Article 26
Notion(s) Filing Case
Appeal Judgement - 29.09.2014 NZABONIMANA Callixte
(ICTR-98-44D-A)

93.     […] The Appeals Chamber again recalls that a trial chamber has full discretion to assess witness credibility,[1] and notes that a witness’s criminal history may be a factor in assessing credibility.[2] […] 

[1] See supra, para. 45.

[2] Cf. Bagosora and Nsengiyumva Appeal Judgement, para. 264; Kamuhanda Appeal Judgement, para. 142. 

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Notion(s) Filing Case
Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

1405.            With respect to Ntahobali’s argument regarding the lack of caution exercised by the Trial Chamber in assessing his co-accused’s evidence, the Appeals Chamber considers that Ntahobali does not demonstrate that the Trial Chamber was required, as a matter of law, to treat all the evidence presented by his co-accused with caution[1] […]

See also para. 1292.

[1] Ntahobali again simply refers to a paragraph in the Nchamihigo Appeal Judgement, which concerns the treatment of accomplice witness evidence. However, Ntahobali does not demonstrate that any witness he contends the Trial Chamber failed to treat with caution was an accomplice witness whose evidence required a cautious assessment. See Ntahobali Appeal Brief, para. 412, referring to Nchamihigo Appeal Judgement, para. 46.

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