Due diligence

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[10] See supra, para. 7.

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

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

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

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

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

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

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

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

[2] See supra para. 24.

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MICT Rule Rule 142
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Decision - 01.06.2000 SEMANZA Laurent
(ICTR-97-23-A)

120. The Appeals Chamber would emphasise that Defence Counsel appearing before the Tribunal have a duty of diligence. This duty is expressly set forth in the Code of Professional Conduct for Defence Counsel (the "Code of Conduct") adopted by the Judges of the Tribunal under Article 14 of the Statute. Article 6 of the Code of Conduct states that:

"Counsel must represent a client diligently in order to protect the client’s best interests. Unless the representation is terminated, Counsel must carry through to conclusion all matters undertaken for a client within the scope of his legal representation." (Emphasis added.)

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Other instruments Code of Professional Conduct for Defence Counsel (ICTR);
Article 6
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Decision on Additional Evidence - 08.12.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

33. […] The Appeals Chamber […] observes “that the Prosecution may be relieved of its Rule 68 obligation if the existence of the relevant exculpatory material is known to the Defence and if it is reasonably accessible through the exercise of due diligence”.[1] As noted above, the document was known to the Appellant, and he has not demonstrated that the document was not reasonably accessible to him.

[1] Prosecutor v. Edouard Karemera et al., Case No. ICTR-98-44-AR73.7, Decision on Interlocutory Appeal Regarding the Role of the Prosecutor’s Electronic Disclosure Suite in Discharging Disclosure Obligations, 30 June 2006, para. 15; Prosecutor v. Tihomir Blaškic, Case No. IT-95-14-A, Appeal Judgement, 29 July 2004 (“Blaškić Appeals Judgement”), para. 296.

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Decision on Subpoena Application - 01.07.2003 KRSTIĆ Radislav
(IT-98-33-A)

8. The Appeals Chamber accepts that, in a situation where the defence is unaware of the precise nature of the evidence which a prospective witness can give and where the defence has been unable to obtain his voluntary cooperation, it would not be reasonable to require the defence to use “all mechanisms of protection and compulsion available” to force the witness to give evidence “cold” in court without first knowing what he will say.  That would be contrary to the duty owed by counsel to their client to act skilfully and with loyalty.[1]  Accordingly, it is generally inappropriate in this situation to consider orders to the prospective witness to attend to give evidence (Rule 54) or for taking his evidence by way of deposition for use later in the trial (Rule 71).[2]

9. The Reply, however, wrongly assumes that Rule 54 is limited to making orders that the prospective witness attend to give evidence before the relevant Chamber. It is clear, both from the terms of the Rule itself and from what the Appeals Chamber said in the Tadić Rule 115 Decision,[3] that the requirement that “all mechanisms of protection and compulsion available” be used by the defence was not intended to be limited to the situation where the defence is aware of what evidence the prospective witness can give but where the prospective witness is unwilling (for whatever reason) to cooperate. In the exercise of due diligence, the appropriate mechanisms must also be used in the situation where the defence is unaware of the precise nature of the evidence the prospective witness can give and where the defence is unable to obtain his cooperation by speaking to it.

See also paragraphs 14-16.

[1]    Code of Professional Conduct for Defence Counsel Appearing Before the International Tribunal (IT/125 Rev 1) 12 July 2002, Article 3(ii) and (iii).  That duty of loyalty must, of course, be discharged consistently with the duty owed by counsel to the Tribunal to act with independence in the administration of justice.

[2]    In par 12, infra, it is suggested that Rule 54 could be utilised so that a judge could explain to the prospective witness the importance of his cooperation and how he will be afforded protection by the Tribunal if it is required.

[3]    See footnote 6, supra [Prosecutor v Tadić, IT-94-1-A, Decision on Appellant’s Motion for the Extension of the Time Limit and Admission of Additional Evidence, 15 Oct 1998 (“Tadić Rule 115 Decision”)]. 

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ICTR Rule Rule 54;
Rule 71
ICTY Rule Rule 54;
Rule 71
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Decision on Additional Evidence - 29.04.2010 ŠAINOVIĆ et al.
(IT-05-87-A)

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

[1] See also supra, para. 7.

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

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

[4] See supra, para. 5.

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

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

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

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

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

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

[1] See also supra, para. 7.

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

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

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

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

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ICTR Rule Rule 115 ICTY Rule Rule 115
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Decision on Additional Evidence - 11.03.2010 ŠAINOVIĆ et al.
(IT-05-87-A)

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

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

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

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

[2] See supra, para. 5.

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

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

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ICTR Rule Rule 115 ICTY Rule Rule 115
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Decision - 03.11.1999 BARAYAGWIZA Jean-Bosco
(ICTR-97-19-AR72)

See paragraphs 91-92, 99 of the decision.

Disclaimer: No Word version of the present decision is currently available. It has therefore not been possible to include the text of the decision. Instead, the reader is directed to the relevant paragraphs of the decision.

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Decision on Additional Evidence - 16.10.1998 TADIĆ Duško
(IT-94-1-A)

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

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

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

[…]

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

[…]

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

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

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

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

[…]

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

[…]

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

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

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

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

[…]

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

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

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ICTR Statute Article 24 ICTY Statute Article 25 ICTR Rule Rule 115 ICTY Rule Rule 115
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Decision on Additional Evidence - 16.10.1998 TADIĆ Duško
(IT-94-1-A)

6.       Material not called by Defence counsel

[…]

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

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

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

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Decision on Additional Evidence - 16.10.1998 TADIĆ Duško
(IT-94-1-A)

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

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

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Decision on Additional Evidence - 16.10.1998 TADIĆ Duško
(IT-94-1-A)

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

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

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

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

See also para. 65.

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

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

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