Additional evidence

Notion(s) Filing Case
Decision on Additional Evidence - 01.06.2006 SIMIĆ Blagoje
(IT-95-9-A)

At para. 26, the Appeals Chamber recalled that Rule 94 of the Rules cannot be used to circumvent the requirements of Rule 115:

26. […] [T]he Appeals Chamber recalls that “Rule 94 of the Rules is not a mechanism that may be employed to circumvent the general Rules governing the admissibility of evidence and litter the record with matters which would not be admitted otherwise.”[1] The Appeals Chamber emphasises that to admit on appeal a fact capable of judicial notice, the requirements provided for by Rule 115 of the Rules must also be satisfied,[2] which is not the case in this instance. Had the Medical Reports and the Silverman Report met the requirements of Rule 94(A), they would not have been admitted on appeal.

[1] Ibid, para. 17.

[2] Ibid, paras 17, 18.

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ICTR Rule Rule 94;
Rule 115
ICTY Rule Rule 94;
Rule 115
Notion(s) Filing Case
Decision on Additional Evidence - 01.12.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

34. The fact that there had been a meeting held at Samvura’s house on the morning of 7 April 1994 involving the Appellant and distribution of arms is not in itself decisive for the Trial Chamber’s conclusion as to the Appellant’s responsibility for killings of the Tutsi civilians in Gisenyi. In fact, the Trial Chamber concluded that there was no evidence that the Appellant was present during the killings of 7 April 1994 and that, on that morning, the Appellant ordered the Interahamwe to kill the Tutsi and to prepare graves in Commune Rouge. Consequently, the principal issue is whether, should the Trial Chamber have had the benefit of hearing the testimony of Witness ABC1, it would have disbelieved Witness EB with respect to the events that took place on the morning of 7 April 1994. In the presence of contradictory accounts of the two witnesses, the Trial Chamber would have had to determine which of the accounts was reliable and, in light of evidence provided by Witness ABC1 in the Bagosora et al. case and the fact that [REDACTED], the Appeals Chamber is not satisfied that a reasonable trier of fact would have found this witness credible to the detriment of the account provided by Witness EB. Moreover, Witness ABC1 in the Bagosora et al. case only testified to the fact that the Appellant was not at [Samvura’s] house that morning and that there was no meeting there. The mere fact that [Witness ABC1] did not witness or hear him ordering the killings does not mean that this could not have occurred.The Appeals Chamber notes to this extent that Witness EB testified that the Appellant ordered the killing through a loudspeaker from his vehicle and not during the meeting at Samvura’s house.Consequently, and in light of the findings above concerning Witnesses AHI and AGX, the Appeals Chamber is not satisfied that the exclusion of the proffered additional evidence would amount to a miscarriage of justice inasmuch as, had it been adduced at trial, it would not have had an impact on the verdict.

[1] Trial Judgement, para. 825.

[2] Id.

[3] See Jean de Dieu Kamuhanda v. The Prosecutor, Case No. ICTR-99-54A-A, Judgement, 19 September 2005, para. 158.

[4] At the same time, the Appeals Chamber recalls that the credibility of Witness EB, the only witness to have testified to the ordering of the killings by the Appellant (the only relevant part of Omar Serushago’s testimony that was considered corroborated by the Trial Chamber, and thus reliable, referred to the fact that the Appellant “was transporting arms in a red Hilux vehicle on the morning of 7 April 1994” but not the fact that he ordered that attack), is yet to be re-assessed on the basis of his testimony at the appeals hearing to the subject of his purported Recantation Statement.

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ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Additional Evidence - 01.12.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

28. However, with respect to the availability of the proffered evidence at trial, the Appeals Chamber agrees with the Prosecution that the Appellant failed to exercise the due diligence required for the evidence to be admissible on appeal. The Appeals Chamber recalls that “the mere fact that [a witness] gave evidence in another case and that the Appellant was not aware that [the witness was] in possession of this information until then does not in itself suffice to demonstrate unavailability of the evidence at trial.” The Appellant must demonstrate that the “proffered evidence was not available to him at trial in any form” and that he had made use of all mechanisms of protection and compulsion available under the Statute and the Rules to bring the evidence before the Trial Chamber. In the present case, the Appellant has not shown why he could not call [Witness ABC1] [REDACTED] as a Defence witness at trial in order to refute the evidence provided by Witness EB stating that, on the morning of 7 April 1994, he saw the Appellant go into the compound of Samvura’s house together with many Interahamwe. Therefore, the Appeals Chamber is not satisfied that this evidence was unavailable at trial.

[1] Galić 30 June 2005 Decision, para. 115; Krstić Decision of 5 August 2003, p. 3; Prosecutor v. Radislav Krstić, Case No. IT-98-33-A, Decision on Application for Subpoenas, 1 July 2003, paras 4-5: “The defence often seeks to satisfy this requirement by asserting that an attempt had been made before or during the trial to ascertain from such prospective witnesses what evidence they could give, but that the prospective witnesses had either failed or declined to co-operate. However, before additional evidence will be admitted pursuant to Rule 115, the defence is obliged to demonstrate not only that the evidence was not available at trial but also that the evidence could not have been discovered through the exercise of due diligence […]. This obligation of due diligence is therefore directly relevant to the procedures of the Tribunal (in particular, Rule 54) both before and during trial, as well as on appeal.” See also para. 19 supra.

[2] Galić 30 June 2005 Decision, para. 115; Krstić Decision of 5 August 2003, p. 3; Prosecutor v. Radislav Krstić, Case No. IT-98-33-A, Decision on Application for Subpoenas, 1 July 2003, paras 4-5.

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ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Additional Evidence - 01.12.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

At paras 19-22, the Appeals Chamber recalls the criteria of admissibility of additional evidence on appeal under Rule 115, inter alia, the time limit, the unavailability at trial, the relevance, the credibility and the impact on the verdict:

19. Rule 115 of the Rules provides for a corrective measure on appeal, and its purpose is to deal “with the situation where a party is in possession of material that was not before the court of first instance and which is additional evidence of a fact or issue litigated at trial”.[1] According to this provision, for additional evidence to be admissible on appeal, the following requirements must be met. First, the motion to present additional evidence should be filed “not later than thirty days from the date for filing of the brief in reply, unless good cause or, after the appeal hearing, cogent reasons are shown for further delay”.[2] Second, the Appeals Chamber must find “that the additional evidence was not available at trial and is relevant and credible.” When determining the availability at trial, the Appeals Chamber is mindful of the following principles:

[T]he party in question must show that it sought to make “appropriate use of all mechanisms of protection and compulsion available under the Statute and the Rules of the International Tribunal to bring evidence […] before the Trial Chamber.” In this connection, Counsel is expected to apprise the Trial Chamber of all the difficulties he or she encounters in obtaining the evidence in question, including any problems of intimidation, and his or her inability to locate certain witnesses. The obligation to apprise the Trial Chamber constitutes not only a first step in exercising due diligence but also a means of self-protection in that non-cooperation of the prospective witness is recorded contemporaneously.[3]

With regards to relevance, the Appeals Chamber will consider whether the proposed evidence sought to be admitted relates to a material issue. As to credibility, the Appeals Chamber will only refuse to admit evidence at this stage if “it is devoid of any probative value in relation to a decision pursuant to Rule 115”[4], without prejudice to a determination of the weight to be afforded.[5]

20. Once it has been determined that the additional evidence meets these conditions, the Appeals Chamber will determine whether the evidence “could have been a decisive factor in reaching the decision at trial.”[6] To satisfy this, the evidence must be such that it could have had an impact on the verdict, i.e. it could have shown that a conviction was unsafe.[7] Accordingly, the additional evidence must be directed at a specific finding of fact related to a conviction or to the sentence.

21. Although Rule 115 of the Rules does not explicitly provide for this, the Appeals Chamber has considered that, where the evidence is relevant and credible, but was available at trial, or could have been discovered through the exercise of due diligence, the additional evidence may still be admitted if the moving party establishes that the exclusion of the additional evidence would amount to a miscarriage of justice inasmuch as, had it been adduced at trial, it would have had an impact on the verdict.[8]

22. Finally, the Appeals Chamber recalls that, whether the evidence was available at trial or not, the additional evidence must always be assessed in the context of the evidence presented at trial, and not in isolation.[9]

[1] Prosecutor v. Zoran Kupreškić et al., Case No. IT-95-16-A, Decision on the Motions of Drago Josipović, Zoran Kupreškić and Vlatko Kupreškić to Admit Additional Evidence Pursuant to Rule 115 and for Judicial Notice to be Taken Pursuant to Rule 94 (B), 8 May 2001 (“Kupreškić et al. Decision of 8 May 2001”), para. 5; Barayagwiza Decision of 4 October 2005, p. 4; Ngeze Decision on Additional Evidence, para. 6.

[2] Rule 115 (A) of the Rules as amended on 10 November 2006.

[3] Prosecutor v. André Ntagerura, et al., ICTR-99-46-A, Decision on Prosecution Motion for Admission of Additional Evidence, 10 December 2004 (“Ntagerura et al. Decision of 10 December 2004”), para. 9. [internal references omitted].

[4] Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Decision on the First and Third Rule 115 Motions to Present Additional Evidence Before the Appeals Chamber, 30 June 2005 (“Galić 30 June 2005 Decision”), para. 95; Emmanuel Ndindabahizi v. The Prosecutor, Case No. ICTR-01-71-A, Decision on the Admission of Additional Evidence, 14 April 2005, p. 6; See also Prosecutor v. Mladen Naletilić & Vinko Martinović, Case No. IT-98-34-A, Judgement, 3 May 2006, para. 402; The Prosecutor v. André Ntagerura et al., Case No. ICTR-99-46-A, Decision on Prosecution Motion for Admission of Additional Evidence, 10 December 2004, para. 22; Georges Anderson Nderubumwe Rutaganda v. The Prosecutor, Case No. ICTR-96-3-A, Judgement, 23 May 2003, para. 266.

[5] Prosecutor v. Zoran Kupreškić et al., Case No. IT-95-16-A, Decision on Motions for the Admission of Additional Evidence filed by the Appellants Vlatko Kupreškić, Drago Josipović, Zoran Kupreškić and Mirjan Kupreškić, 26 February 2001, para. 28; Kupreškić Appeal Judgement, para. 63; Prosecutor v. Blaškić, Case No. IT-95-14-A, Decision on Evidence, 31 October 2003 (“Blaškić Decision of 31 October 2003”), p. 3; Ngeze Decision on Additional Evidence, para. 7; Ngeze Decision on Further Investigations, para. 5.

[6] Rule 115 (B) of the Rules.

[7] Kupreškić Appeal Judgement, para. 68; Prosecutor v. Radislav Krstić, Case No. IT-98-33-A, Decision on Application for Admission of Additional Evidence on Appeal, 5 August 2003 (“Krstić Decision of 5 August 2003”), p. 3; Blaškić Decision of 31 October 2003, p. 3; Ngeze Decision on Additional Evidence, para. 8; Ngeze Decision on Further Investigations, para. 6.

[8] Kajelijeli v. Prosecutor, Case No. ICTR-98-44A-A, Decision on Defence Motion for the Admission of Additional Evidence Pursuant to Rule 115 of the Rules of Procedure and Evidence, 28 October 2004 (“Kajelijeli Decision of 28 October 2004”), para. 11; Ntagerura et al. Decision of 10 December 2004, para 11; Ngeze Decision on Additional Evidence, para. 9; Ngeze Decision on Further Investigations, para. 7.

[9] Juvénal Kajelijeli Decision of 28 October 2004, para. 12; Ntagerura et al. Decision of 10 December 2004, para. 12; Ngeze Decision on Additional Evidence, para. 10; Ngeze Decision on Further Investigations, para. See also Blaškić Decision of 31 October 2003, p. 3; Momir Nikolić v. Prosecutor, Case No. IT-02-60/1-A, Decision on Motion to Admit Additional Evidence, 9 December 2004, para. 25.

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ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Additional Evidence - 01.12.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

42. The Appeals Chamber finds that it is in the interests of justice to examine proprio motu whether the material tendered by the Prosecution in its Motion of 7 September 2006 can be admitted as rebuttal evidence on appeal. It has been well established by the jurisprudence that rebuttal material is admissible if it directly affects the substance of the additional evidence admitted by the Appeals Chamber[1] and, as such, has a different test of admissibility from additional evidence under Rule 115 of the Rules.[2] In light of its findings above with respect to the admissibility of the Additional Statement, the Appeals Chamber finds that copies of envelopes in which the copies of the Additional Statement were purportedly sent to various addressees within the Office of the Prosecutor are directly relevant to the issue of the authenticity of the Additional Statement and a fortiori that of the Recantation Statement. Therefore, the Appeals Chamber is satisfied that the proffered material affects the substance of the admitted additional evidence and is thus admissible as rebuttal evidence on appeal.

[1] Prosecutor v. Ramush Haradinaj et al., Case No. IT-04-84-AR65.2, Decision on Lahi Brahimaj’s Request to Present Additional Evidence under Rule 115, 3 March 2006 (“Haradinaj Decision”), para. 44; Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-A, Decision on Prosecution’s Motion to Adduce Rebuttal material, 12 March 2004 (“Kvočka Decision”), p. 3; The Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Decision on Evidence, 31 October 2003, p. 5.

[2] Haradinaj Decision, para. 44; Kvočka Decision, p. 3.

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ICTR Rule Rule 115 ICTY Rule Rule 115