Additional evidence on appeal

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

For the overview of the applicable law, please see paragraphs 6 – 12 of the Decision.

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Additional Evidence - 20.10.2011 POPOVIĆ et al.
(IT-05-88-A)

30. With respect to the document in Annex 6 to the Motion, which indeed appears to be a different translation of Exhibit P01310,[1] the Appeals Chamber recalls that when the original language version of an exhibit is already part of the trial record, “the English translation of the exhibit does not constitute ‘new’ or ‘additional’ evidence pursuant to Rule 115 of the Rules”.[2] Moreover, challenges concerning the Trial Chamber’s interpretation of a translated document in evidence are matters for the consideration of the merits of the appeal.[3] Without prejudice to Popović’s respective arguments in his Appeal Brief, the Appeals Chamber therefore declines to consider the document in Annex 6 to the Motion for the purposes of admission of additional evidence on appeal.

[1] See supra, paras 17, 21.

[2] Prosecutor v. Milan Lukić and Sredoje Lukić, Case No. IT-98-32/1-A, Decision on Milan Lukić’s First Motion to Admit Additional Evidence on Appeal, 6 July 2011, p. 1.

[3] Cf. Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Ferdinand Nahimana’s Motion for the Translation of RTLM Tapes in Exhibit C7, 20 November 2006, para. 13.

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
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. 

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Additional Evidence - 20.10.2011 POPOVIĆ et al.
(IT-05-88-A)

29. In addition to the specificity requirement recalled above,[1] the Appeals Chamber emphasizes that motions filed pursuant to Rule 115 of the Rules must include, inter alia, “a precise list of the evidence the party is seeking to have presented”.[2] The Appeals Chamber notes that the Motion contains no such list and as a result lacks sufficient clarity as to which of the annexed documents are being tendered for admission as additional evidence on appeal. Indeed, the Motion only refers to the Report[3] and an allegedly revised translation of Exhibit P01310.[4] There are no arguments regarding the admissibility of the documents contained in Annexes 2-5 to the Motion.[5] The Appeals Chamber therefore finds that the formal requirements applicable to a motion seeking to present additional evidence on appeal have not been satisfied in relation to the documents submitted as Annexes 2-5 to the Motion, and will not consider them for the purposes of admission of additional evidence on appeal.[6]

39. […] As recalled above, the significance and potential impact of the tendered material must be assessed in the context of the evidence presented at trial.[7] Apart from a mere reference to his Appeal Brief,[8] which falls short of fulfilling the requirements recalled above, Popović does not show how the Report refutes any of the evidence relied upon by the Trial Chamber.

40. […] Furthermore, the Appeals Chamber will not entertain Popović’s references to his arguments with respect to the credibility of Momir Nikolić and other challenges presented as part of his appeal against the Trial Judgement. The Appeals Chamber emphasizes that an applicant under Rule 115 of the Rules must fulfil all the requirements applicable to motions for additional evidence; this cannot be done through mere references to an appellant’s brief.[9]

[1] See supra, para. 11.

[2] Practice Direction on Formal Requirements for Appeals from Judgement, IT/201, 7 March 2002 (“Practice Direction”), para. 11(a).

[3] Motion [Vujadin Popovic’s [sic] Motion Pursuant to Rule 115, 2 June 2011 (confidential)], paras 5-10, Annex 1.

[4] Motion, para. 11, Annex 6. See also supra, para. 21.

[5] The Appeals Chamber notes that in footnote 3 of the Motion, Popović refers to these documents arguing that the Report was most likely prepared not by Popović but by Momir Nikolić. However, these submissions do not relate to the admissibility of these documents as additional evidence on appeal.

[6] Cf. Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Formal Requirements Applicable to the Parties’ Filings Related to the Appellant Jean-Bosco Barayagwiza’s Motion for Leave to Present Additional Evidence, 23 January 2006, pp. 6-7; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Appellant Jean-Bosco Barayagwiza’s Motion for Leave to Present Additional Evidence Pursuant to Rule 115, 5 May 2006 (“Nahimana et al. Decision of 5 May 2006”), paras 11-13, 18-19.

[7] See supra, para. 12.

[8] Motion, para. 9, referring to Popović’s Appeal Brief [Appeal Brief on Behalf of Vujadin Popovic [sic], 21 January 2011 (confidential; public redacted version filed on 14 April 2011)], paras 34-118. See also Reply, para. 7, referring to Popović’s Appeal Brief, paras 38-61, 65-73.

[9] The Appeals Chamber notes in this regard that while there is a requirement for the applicant to “identify each ground of appeal to which the additional evidence relates and clearly describe the relationship of the evidence to the respective ground of appeal” (Prosecutor v. Mladen Naletilić and Vinko Matinović, Case No. IT-98-34-A, Decision on Naletilić’s Amended Second Rule 115 Motion and Third Rule 115 Motion to Present Additional Evidence, 7 July 2005, para. 15), mere references to an appeal brief cannot replace the requirement to plead, in the motion, the alleged impact on the verdict in the context of the evidence admitted at trial (see supra, paras 9-12).

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Additional Evidence - 20.10.2011 POPOVIĆ et al.
(IT-05-88-A)

25. As recalled in the Decision of 1 June 2011, the 30-day time-limit prescribed under Rule 115 of the Rules was to expire that very day.[1] Consequently, for all motions filed after this deadline, the moving party must “demonstrate that it was not able to comply with the time limit set out in the Rule, and that it submitted the motion in question as soon as possible after it became aware of the existence of the evidence sought to be admitted.”[2]

26. Popović filed his Motion with the Registry of the Tribunal on 2 June 2011 at 00:05 a.m.,[3] and thus five minutes after the expiration of the 30-day deadline imposed by the Rules.[4] Although the Motion contains no arguments in relation to the delayed filing, the Appeals Chamber accepts the Motion as validly filed in light of the lack of opposition by the Prosecution to the Motion on this basis, and the nominal delay occasioned by the late filing.

27. […] The Appeals Chamber […] reiterates that any party wishing to tender additional evidence after this deadline must show good cause or, if the filing is made after the appeals hearing, cogent reasons for the delay in order for the untimely motion to be considered validly filed.[5] It is a separate and further requirement to demonstrate that the tendered material was unavailable at trial or could be discovered through the exercise of due diligence.[6]

fn. 78: […] In this regard, the Appeals Chamber notes that the Reply contains no arguments as to the timeliness of Popović’s request to submit another document as additional evidence on appeal. As correctly noted by the Prosecution, Popović must – but failed to – show good cause for filing a motion under Rule 115 of the Rules after the expiration of the prescribed time-limit […]. The arguments on this matter contained in Popović’s Second Reply are unconvincing as Popović simply states that while the document was disclosed to him on 22 December 2010, his Defence team had no time to analyse it in light of the amount of material disclosed after trial and purported lack of resources for the supporting staff, combined with the need to complete the briefing of his appeal […]. The Appeals Chamber considers that these circumstances are the realities of practically any case on appeal and do not constitute good cause for the late filing. Consequently, even if the Appeals Chamber were to accept the second request for admission of additional evidence as a valid motion despite it being filed as part of the Reply, it would have rejected it as untimely.

[1] Decision of 1 June 2011 [Decision on Defence Requests for Extension of Time to File Motions Pursuant to Rule 115, 1 June 2011], para. 10.

[2] Decision of 1 June 2011, para. 10 (emphasis omitted), and references cited therein.

[3] See ICTY Notification About Electronic Filing, D/A 8735, 2 June 2011.

[4] See Directive for the Court Management and Support Services Section Judicial Support Services Registry, IT/121/REV.2, 19 January 2011, Article 25.3.

[5] Decision of 1 June 2011, para. 11.

[6] See supra, paras 7, 9-10.

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Additional Evidence - 01.06.2006 SIMIĆ Blagoje
(IT-95-9-A)

The Appeals Chamber restated in a concise manner the standard of review for admission of additional evidence (footnotes rearranged to have full names of decisions):

12. The admission of additional evidence on appeal is regulated under Rule 115 of the Rules. In order to be admissible pursuant to this Rule, the evidence put forward must satisfy a number of requirements. The applicant must first demonstrate that the additional evidence tendered on appeal was not available to him at trial in any form,[1] or discoverable through the exercise of due diligence.[2] The applicant’s duty to act with reasonable diligence includes making “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.”[3]  He then must show that the evidence is both relevant to a material issue and credible, and that it could have had an impact on the verdict. In other words, the evidence must be such that, considered in the context of the evidence given at trial, it could demonstrate, in the case of a request by a defendant, that the conviction was unsafe.[4] A party seeking to admit additional evidence bears the burden of specifying with clarity the impact the additional evidence could have upon the Trial Chamber’s decision.[5]

13. If the evidence was available at trial, it may still be admissible on appeal if the applicant can meet the burden of establishing that exclusion of the evidence would lead to a miscarriage of justice, in that if it had been available at trial it would have affected the verdict.[6]

14. Whether the evidence was available at trial or not, the Appeals Chamber has repeatedly recognised that the evidence shall not be assessed in isolation, but in the context of the evidence given at the trial.[7]

[1] See, e.g., Prosecutor v. Krstić, Case No.: IT-98-33-A, Decision on Application for Subpoenas, 1 July 2003, para. 4; Prosecutor v. Ntagerura et al., Case No.: ICTR-99-46-A, Decision on Prosecution Motion for Admission of Additional Evidence, 10 December 2004, para. 9; Prosecutor v. Stanislav Galić, Case No.: IT-98-29-A, Decision on Defence Second Motion for Additional Evidence Pursuant to Rule 115, 21 March 2005 (“Galić Rule 115 Decision”), para. 9; Prosecutor v. Mejakić et al., Case No.: IT-02-65-AR11bis.1, Decision on Joint Defense Motion to Admit Additional Evidence before the Appeals Chamber Pursuant to Rule 115, 16 November 2005 (“Mejakić et al. Rule 115 Decision”), para. 8;  Prosecutor v. 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, para. 10.

[2] See, e.g., Prosecutor v. Krstić, Case No. IT-98-33-A, Decision on Application for Admission of Additional Evidence on Appeal, 5 August 2003 (“Krstić Rule 115 Decision”), p. 3; Galić Rule 115 Decision, para. 9.

[3] Prosecutor v. Dusko Tadić, Case No.: IT-94-1-A, Decision on Appellant’s Motion for the Extension of the Time- Limit and Admission of Additional Evidence, 15 October 1998, para. 47; Prosecutor v. Kupreškić et al., IT-95-16-A, Appeal Judgement, 23 Oct 2001 (“Kupreškić et al. Appeal Judgement), para. 50; Momir Nikolić v. Prosecutor, Case No.: IT-02-60/1-A, Decision on Motion to Admit Additional Evidence, 9 December 2004, public redacted version (“Nikolić Rule 115 Decision”), para. 21.

[4] See, e.g., Krstić Rule 115 Decision, p. 3; Ntagerura et al. Rule 115 Decision, para. 10; Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-A, Decision on Naletilić’s Amended Second Rule 115 Motion and Third Rule 115 Motion to Present Additional Evidence, 7 July 2005 (“Naletilić and Martinović Rule 115 Decision”), para. 12.

[5] Kupreškić et al. Appeal Judgement, para. 69.

[6] See, e.g., Krstić Rule 115 Decision, p. 4; Nikolić Rule 115 Decision, para. 24; Naletilić and Martinović Rule 115 Decision, para. 13.

[7] See, e.g., Kupreškić Appeal Judgement, paras 66 and 75; Krstić Rule 115 Decision, p. 4; Ntagerura et al. Rule 115 Decision, para. 12; Nikolić Rule 115 Decision, para. 25.  

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Additional Evidence - 03.12.2004 STANIŠIĆ & SIMATOVIĆ
(IT-03-69-AR65.1)

13.  Rule 115 does not, on its face, prohibit a party from adducing additional evidence in support of a factual finding of a Trial Chamber.  The Rule merely states that a party may file a motion to present additional evidence before the Appeals Chamber.  In circumstances such as these, where the Prosecution is alleging an error in the fact finding of a Trial Chamber in relation to an identified issue, and where its own application to adduce additional evidence relevant to that issue has been refused, on its face, the Rule does not appear to prohibit the Defence from seeking to admit additional evidence directed to that factual finding challenged by the Prosecution.

14. However, while the Rule does not expressly prohibit a party from seeking the admission of additional evidence on appeal to bolster challenged factual findings, in the practice of the International Tribunal, motions for additional evidence are directed towards supporting an argument of factual error, and if additional evidence is sought to be admitted in support of a factual finding, it is admitted as rebuttal material to that additional evidence admitted in support of a factual error.[1]  Neither the Prosecution nor Stanišić has advanced any arguments in support of a departure from this established practice in this case.  However, both parties seem to agree that Rule 115 does permit the admission of evidence in support of a factual finding that is the subject of appeal.

[1]     Prosecutor v Tihomir Blaškić, Case: IT-95-14-A, Decision on Evidence, 31 October 2003, pg.5.

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Additional Evidence - 13.02.2009 MRKŠIĆ & ŠLJIVANČANIN
(IT-95-13/1-A)

15. Vojnović did not testify in the Šešelj case until after the Trial Judgement had been rendered; however, in determining whether the information was available at trial, the Appeals Chamber must also consider whether any of the information sought to be admitted was available in any other form during trial or could be obtained through due diligence. The Appeals Chamber considers that unless Vojnović specified in his testimony in the Šešelj case that he learned about new information after his testimony in the Mrkšić et al. case, it may be presumed that all the information adduced in his testimony in the Šešelj case was also available at the time of his testimony in the Mrkšić et al. case. Apart from Vojnović’s testimony that he met the chief of the Security Administration in 2008, it has not been shown that any of the information contained in Vojnović’s testimony became available to Mrkšić  after the closure of his case and is therefore found to have been available at trial. However, to the extent that evidence sought to be admitted relates to Vojnović’s credibility, the Appeals Chamber considers that, while at trial Mrkšić had the opportunity to cross-examine Vojnović on all relevant points, any statements or testimony given by Vojnović after the closure of the Mrkšić et al. case that allegedly contradict his testimony at trial were prima facie not available for the purposes of testing his credibility. As a result if Vojnović’s testimony in Šešelj did undermine the credibility of his evidence in Mrkšić et al., it will be considered to be new evidence.

See also para. 27.

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Additional Evidence - 13.02.2009 MRKŠIĆ & ŠLJIVANČANIN
(IT-95-13/1-A)

11. […] The granting of an oral hearing is a matter for the discretion of a Chamber and an oral hearing may legitimately be regarded as unnecessary when, as in the present case, the information before the Appeals Chamber is sufficient to enable the Appeals Chamber to reach an informed decision.[1] […]

[1] See Prosecutor v. Fatmir Limaj et al., Case No. IT-03-66-AR65.2, Decision on Haradin Bala’s Request for  Provisional Release, 31 October 2003, para. 33. See also Ferdinand Nahimana et al. v. Prosecutor, Case No. ICTR-99-52-A, Decision on Appellant Jean-Bosco Barayagwiza’s Motion for Leave to Present Additional Evidence Pursuant to Rule 115, 5 May 2006 (“Nahimana et al. Rule 115 Decision of 5 May 2006”), para. 9.

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Appeal Judgement - 26.05.2003 RUTAGANDA George
(ICTR-96-3-A)

473. Pursuant to Article 24 of the Statute the Appeals Chamber shall hear appeals from persons convicted by the Trial Chambers or from the Prosecutor on the grounds of an error of law invalidating the decision or an error of fact which has occasioned a miscarriage of justice. Where additional evidence has been admitted on appeal, the Appeals Chamber is required to determine whether the additional evidence actually reveals an error of fact of such magnitude as to occasion a miscarriage of justice.[1] In accordance with Rule 118(A) of the Rules and the relevant jurisprudence,[2] the test to be applied by the Appeals Chamber in deciding whether or not to uphold a conviction  where additional evidence has been admitted is: has the appellant established that no reasonable tribunal of fact could have reached a conclusion of guilt based upon the evidence before the Trial Chamber together with the additional evidence admitted during the appellate proceedings?[3] Where the Appeals Chamber finds that a reasonable trier of fact could have reached a conclusion of guilt based on the evidence before the Trial Chamber together with the additional evidence, it must uphold the Trial Chamber decision.

[1] The Appeals Chamber could have remitted the case to the Trial Chamber for it to consider any new evidence. In the instant case, the Appeals Chamber decided to rule on the matter (Kupreskic Appeal Judgement, para. 70).

[2] See mainly Kupreskic and Musema Appeal Judgements.

[3] Musema Appeal Judgement, paras. 185 and 186; Kupreskic Appeal Judgement, paras. 75 and 76.

Download full document
Notion(s) Filing Case
Decision on Rebuttal Material - 13.12.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

7. Rule 115(A) of the Rules provides that rebuttal material may be presented by any party affected by a motion to present additional evidence before the Appeals Chamber. The Appeals Chamber recalls 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] […]

[1] [Confidential Decision on Motions Relating to the Appellant Hassan Ngeze’s and the Prosecution’s Requests for Leave to Present Additional Evidence of Witnesses ABC1 and EB, 27 November 2006], para. 42 [see Public Redacted Version filed on 1 December 2006]; 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] Decision of 27 November 2006, para. 42; Haradinaj Decision, para. 44; Kvočka Decision, p. 3.

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Rebuttal Material - 13.12.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

7. […] The Appeals Chamber also recalls that a hearing under Rule 115 of the Rules “is intended to be a sharply delimited proceeding for entering discrete, specific evidence into the record” and “is not intended to be a trial within a trial that opens the door to the exploration of every issue that might be raised during the hearing”.[1]

[1] Jean de Dieu Kamuhanda v. The Prosecutor, Case No. ICTR-99-54A-A, Oral Decision (Rule 115 and Contempt of False Testimony), 19 May 2005 (Cf. T. 19 May 2002 (Appeals Hearing), p. 49, lines 34-36). 

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Additional Evidence - 15.11.2000 JELISIĆ Goran
(IT-95-10-A)

CONSIDERING […] that the Appeals Chamber maintains an inherent power to admit […] evidence even if it was available at trial, in cases in which its exclusion would lead to a miscarriage of justice;

Download full document
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.]

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

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

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

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

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

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

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

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Further Investigations - 20.06.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

The Appeals Chamber restated the applicable law with respect to the admissibility of the additional evidence on appeal:

5. Further, according to Rule 115 of the Rules of Procedure and Evidence of the Tribunal (“Rules”), for additional evidence to be admissible on appeal, the following requirements must be met. 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 will be 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.[1]

With regard 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 admit evidence at this stage only if it appears to be reasonably capable of belief or reliance. Admission of the evidence is without prejudice to the later determination of the weight that the new evidence will be afforded.[2]

6. 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.”[3] To satisfy this, the evidence must be such that it could have had an impact on the verdict, i.e. it, in the case of a request by a defendant, it could have shown that a conviction was unsafe.[4] Accordingly, the additional evidence must be directed at a specific finding of fact related to a conviction or to the sentence.

7. The Appeals Chamber has considered that, where the additional evidence is relevant and credible, but was available at trial, or could have been discovered through the exercise of due diligence, the evidence may still be admitted if the moving party establishes that its exclusion would amount to a miscarriage of justice, inasmuch as, had it been adduced at trial, it would have had an impact on the verdict.[5]

8. The Appeals Chamber recalls that, whether the additional evidence was available at trial or not, it must always be assessed in the context of the evidence presented at trial, and not in isolation.[6]

[1] Prosecutor v. 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].

[2] See, e.g., Decision on Six Motions, para. 7; Prosecutor v. 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.

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

[4] Decision on Six Motions, para. 8; Prosecutor v. Kupreškić et al., Case No. IT-95-16-A, Appeal Judgement, 23 October 2001, para. 68; Prosecutor v. 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; Prosecutor v. Blaškić, Case No. IT-95-14-A, Decision on Evidence, 31 October 2003 (“Blaškić Decision of 31 October 2003”), p. 3.

[5] Decision on Six Motions, para. 9; 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. See also Prosecution v. Delić, Case No. IT-96-21-R-R119, Decision on Motion for Review, 25 April 2002, para. 18; Prosecution v. Krst, Case No. IT-98-33-A, Decision on Application for Subpoenas, 1 July 2003, para. 16; Krstić Decision of 5 August 2003, p. 4, Blaškić Decision of 31 October 2003, p. 3.

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

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Rejoinder Evidence - 12.01.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

6. The Appeals Chamber reiterates that an appeal pursuant to Article 24 of the Statute the Tribunal is not a trial de novo.[1] Rule 115 of the Rules specifically governs the admission of additional evidence on appeal, as well as rebuttal material, where the particular circumstances in the case so require. However, no provision is made under Rule 115 for seeking admission of rejoinder evidence to rebuttal material. Moreover, the Appeals Chamber does not consider that Rule 85(A) of the Rules, which specifically governs the presentation of evidence at trial, can be directly transposed to the presentation of additional evidence on appeal, which is covered by the provisions of Rule 115. While Rule 89(B) read in conjunction with Rule 107 of the Rules[2] generally stipulates that the Appeals Chamber, in cases not specifically provided for under the section of the Rules on evidence, “shall apply rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law”, it does not require that the Appeals Chamber allow for the admission of rejoinder evidence in Rule 115 proceedings. Thus, nothing in the Rules explicitly entitles parties to seek admission of rejoinder evidence on appeal and the Appeals Chamber will only allow admission of such evidence where the particular circumstances of the case so require for a fair determination of the matter before it.

7. In the present case, the Appeals Chamber recalls that the substance of the additional evidence admitted by the Appeals Chamber relates to Witness EB’s purported wish to recant his testimony provided at trial, notably with respect to the Appellant’s participation in the killings in Gisenyi on 7 – 9 April 1994.[3] The material admitted in rebuttal is anticipated to directly relate to the substance of the additional evidence, in particular with respect to the Prosecution’s investigation into the circumstances of the purported recantation of Witness EB’s trial testimony.[4] In light of the documentary material already admitted in this appeal, the Appeals Chamber is not convinced that the anticipated testimony of the three witnesses referred to by the Appellant would make a material difference to his case, that it would be helpful in assessing the rebuttal material, or that it is necessary for a fair determination of the issue of Witness EB’s purported recantation.[5]

[1] 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 (“Decision of 8 December 2006”), para. 4; Confidential Decision on Appellant Hassan Ngeze’s Six Motions for Admission of Additional Evidence on Appeal and/or Further Investigation at the Appeal Stage, 23 February 2006 (“Decision of 23 February 2006”), para. 5; Decision on Jean-Bosco Barayagwiza’s Extremely Urgent Motion for Leave to Appoint an Investigator, 4 October 2005 (“Decision of 4 October 2005”), p. 3; Decision on Appellant Hassan Ngeze’s Motion for Approval of the Investigation at the Appeal Stage, 3 May 2005, p. 3 (“Decision of 3 May 2005”); Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Judgement, 1 June 2001, para. 177.

[2] Rule 107 of the Rules provides that “[t]he Rules of Procedure and Evidence that govern proceedings in the Trial Chambers shall apply mutatis mutandis to proceedings in the Appeals Chamber.

[3] [Decision on Prosecution’s Motion for Leave to Call Rebuttal Material, 13 December 2006], para. 8.

[4] [Decision on Prosecution’s Motion for Leave to Call Rebuttal Material, 13 December 2006, para. 8].

[5] See by analogy, Jean de Dieu Kamuhanda v. The Prosecutor, Case No. ICTR-99-54A-A, Oral Decision (Rule 115 and Contempt of False Testimony), 19 May 2005 – cf. T. 19 May 2005 (Appeals Hearing), p. 49 et seq.

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

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

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

[2] See supra para. 24.

Download full document
MICT Rule Rule 142
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.

Download full document
MICT Rule Rule 142
Notion(s) Filing Case
Oral Decision on Additional Evidence - 19.05.2005 KAMUHANDA Jean de Dieu
(ICTR-99-54A-A)

Transcript of 19 May 2005, pp. 49-50:

Over the past two days, we have heard from two Defence witnesses under Rule 115, provisions for hearing additional evidence on appeal.  We have also heard from two Prosecution witnesses who were presented in the rebuttal to the Appellant's additional evidence, and we are now presented with a new motion by the Appellant to call yet two more witnesses who, the Appellant alleges, will challenge the testimony of one of the Prosecution's rebuttal witnesses. […]

At today's Rule 115 hearing a Prosecution witness alleged that two Tribunal employees approached her at the United Nations safe house where she was staying while testifying before this Tribunal in another case.  She further alleged that these two Tribunal employees offered to pay her money and give her substantial assistance in other ways if she would come back to this Court and recant her trial testimony in the Kamuhanda case.  The Appellant would now like to call these two Tribunal employees, presumably, for the purpose of getting them to deny having offered any bribes to the Prosecution witness in question.

For two reasons, the Appeals Chamber is not persuaded that this is appropriate.  First, this is a Rule 115 hearing, which is intended to be a sharply delimited proceeding for entering discrete, specific evidence into the record; it is not intended to be a trial within a trial that opens the door to the exploration of every issue that might be raised during the hearing.  Presenting these two witnesses would be a rejoinder to a rebuttal to the Defence's original Rule 115 evidence, and there is no guarantee that it would end there.

Second, the Appeals Chamber is not convinced that the witness's testimony will make a material difference to the Defence's case.  The Appeals Chamber simply does not believe that such evidence on the record would be at all helpful in assessing the credibility of the Prosecution's rebuttal witnesses.  The Appeals Chamber does not foreclose the possibility that if sufficiently compelling or unexpected evidence surfaces during a Rule 115 hearing, it might be required in the interests of justice to expand the hearing beyond its original scope.  But under the circumstances of this case the Appellant has failed to convince the Chamber that such truly exceptional circumstances exist.  The Appellant's motion is denied.

The Appeals Chamber decided to refer the allegations of contempt and false testimony, which arose during the course of the Rule 115 proceedings, to the Prosecution for general investigation. See pp. 50-51.

Download full document
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)

27. Subject to the limitations imposed by Rule 115, the Appeals Chamber may, in the same way as a Trial Chamber, admit evidence which is relevant and probative of the issues which it has to determine.[1]  Rule 115, however, limits the admissibility of such evidence in the Appeals Chamber where it relates to an issue or a fact litigated in the trial, and where it is additional to the evidence presented at the trial.  The Appeals Chamber will admit such additional evidence upon application by the party seeking to tender it where it was not available to that party at the trial by the exercise of reasonable diligence, and where the Appeals Chamber considers that the interests of justice require its admission in the appeal.  It is in the interests of justice to admit such evidence where it is relevant to a material issue, it is credible, and it is such that it would probably show that the conviction or sentence was unsafe (in the sense that, had the Trial Chamber had such evidence before it, it would probably have come to a different result).  The Appeals Chamber also has the inherent power to admit such evidence even when it was available at trial where its exclusion would lead to a miscarriage of justice.  The party seeking the admission of additional evidence carries the burden of persuasion in relation to these matters.[2]

[1]    Rule 89(C).

[2]    These propositions are taken from the following decisions of the Appeals Chamber:  Prosecutor v Tadić, Decision on Appellant’s Motion for the Extension of the Time-Limit and Admission of Additional Evidence, 15 Oct 1998, pars 32, 44, 48, 50, 52;  Prosecutor v Delalić et al, Order on Motion of Esad Landžo to Admit as Additional Evidence the Opinion of Francisco Villobos Brenes, 14 Feb 2000, p 3;  Ibid, Order on Motion of Appellant, Esad Landžo, to Admit Evidence on Appeal, and for Taking of Judicial Notice, 31 May 2000, p 2;  Prosecutor v Jelisić, Decision on Request to Admit Additional Evidence, 15 Nov 2000, p 3;  Prosecutor v Kupreškić et al, (Confidential) Decisions on the Motions of Vlatko Kupreškić, Drago Josipović, Zoran Kupreškić and Mirjan Kupreškić to Admit Additional Evidence, 26 Feb 2001, pars 11-15;  Ibid, (Confidential) Decision on the Admission of Additional Evidence Following Hearing of 30 March 2001, 11 Apr 2001, pars 5-9.

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Additional Evidence - 01.09.2008 KANYARUKIGA Gaspard
(ICTR-2002-78-R11bis)

The Appeals Chamber recalls the criteria of admissibility of additional evidence on appeal under Rule 115:

5. Rule 115 of the Rules provides a mechanism for admission of additional evidence on appeal 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 Rule 115(A) of the Rules, a motion for additional evidence shall clearly identify with precision the specific finding of fact made by the Trial Chamber to which the additional evidence is directed. In addition, Rule 115(B) of the Rules provides that the additional evidence must not have been available at trial and must be relevant and credible. When determining the availability at trial, the Appeals Chamber will consider whether the party tendering the evidence has shown 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.” Once it has been determined that the additional evidence meets these conditions, the Appeals Chamber will determine in accordance with Rule 115(B) of the Rules whether it could have been a decisive factor in reaching the decision at trial.

6. Furthermore, in accordance with established jurisprudence, where the proffered evidence is relevant and credible, but was available at trial, or could have been discovered through the exercise of due diligence, the Appeals Chamber may still allow it to be admitted on appeal provided the moving party can establish that its exclusion would amount to a miscarriage of justice.[3] That is, it must be demonstrated that had the additional evidence been adduced at trial, it would have had an impact on the verdict.[4]

The Appeals Chamber also noted, in footnote 24, that:

The Appeals Chamber notes that a party seeking the admission of additional evidence on appeal must provide to the Appeals Chamber the evidence sought to be admitted to allow it to determine whether the evidence meets the requirements of relevance and credibility. See Muvunyi Decision, para. 8; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Appellant Jean-Bosco Barayagwiza’s Motion for Leave to Present Additional Evidence Pursuant to Rule 115, 5 May 2006, para. 18; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Appellant Hassan Ngeze’s Motion for Leave to Present Additional Evidence, 14 February 2005, p. 3. See also 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, para. 5.

It therefore held that:

9. The affidavits that Kanyarukiga seeks to have admitted may be relevant to establishing that the witnesses’ fear about testifying is not simply subjective, but that there is evidence of actual interference by the Rwandan security services in the administration of justice, and thus that the Trial Chamber erred in finding that witnesses will not generally face risks if they testify. However, Kanyarukiga has not attached the affidavits to his Motion, nor has he described the content of these affidavits in sufficient detail which would allow the Appeals Chamber to assess whether they are relevant to demonstrating actual interference in the administration of justice, or whether they simply address the witnesses’ subjective fears, which would be relevant only in the sense of supporting the Trial Chamber’s findings rather than in showing that it erred. The Appeals Chamber also does not have enough information to assess the credibility of the affidavits.

[1] The Prosecutor v. Tharcisse Muvunyi, Case No. ICTR-00-55A-A, Decision on a Request to Admit Additional Evidence, 27 April 2007, para. 6 (“Muvunyi Decision”); 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, para. 4 (“Nahimana et al. Rule 115 Decision”).

[2] See Muvunyi Decision, para. 6 and Nahimana et al. Rule 115 Decision, para. 5, quoting 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. 9 (internal references omitted).

[3] Muvunyi Decision, para. 7; Nahimana et al. Rule 115 Decision, para. 6 (with further references).

[4] Muvunyi Decision, para. 7; Nahimana et al. Rule 115 Decision, para. 6.

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Additional Evidence - 04.12.2014 POPOVIĆ et al.
(IT-05-88-A)

In this decision, the Appeals Chamber dealt with a motion by the Defence for Vujadin Popović, seeking the admission, as additional evidence on appeal, of his statement given pursuant to Rule 92 ter of the Rules of Procedure and Evidence of the Tribunal and his testimony on 5 and 6 November 2013 in the case of Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T.

FINDING that the testimony of an appellant in another case, being sought to be tendered in his own case on appeal, merely constitutes the appellant’s own version of events, which he had the opportunity to present at the trial against him for the trial chamber to consider,[1] and as such does not qualify as additional evidence on appeal;

[1] Cf. Prosecutor v. Duško Tadić, Case No. IT-94-1-A, Decision on Appellant’s Motion for the Extension of the Time-Limit and Admission of Additional Evidence, 16 October 1998, paras 42, 44, 50. See also Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Appellants Jean-Bosco Barayagwiza’s and Ferdinand Nahimana’s Motions for Leave to Present Additional Evidence Pursuant to Rule 115, 12 January 2007, para. 5.

Download full document
ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Additional Evidence - 04.12.2014 POPOVIĆ et al.
(IT-05-88-A)

In this decision, the Appeals Chamber dealt with a motion by the Defence for Vujadin Popović, seeking the admission, as additional evidence on appeal, of his statement given pursuant to Rule 92 ter of the Rules of Procedure and Evidence of the Tribunal and his testimony on 5 and 6 November 2013 in the case of Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T.

CONSIDERING that Popović could have exercised his right to testify in his own defence at trial;[1]

[1] Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Judgement, 9 May 2007, para. 27; Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Judgement, 30 November 2006, paras 19, 22.

Download full document
ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Additional Evidence - 07.02.2011 BAGOSORA et al. (Military I)
(ICTR-98-41-A)

8. […] As repeatedly held, a party seeking the admission of additional evidence on appeal must provide the Appeals Chamber with the evidence sought to be admitted.[1] Where a party seeks to call a witness at the appellate stage, it needs to provide a statement or other documentation of the potential witness’s proposed evidence,[2] which the Appeals Chamber may admit as additional evidence pursuant to Rule 115 and on the basis of which it may determine whether calling the witness to testify on appeal is necessary.[3]

[1] See, e.g., 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. 18; 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. 13; The Prosecutor v. Ildephonse Hategekimana, Case No. ICTR-00-55B-R11bis, Decision on Request to Admit Additional Evidence, 2 October 2008, para. 7; The Prosecutor v. Tharcisse Muvunyi, Case No. ICTR-00-55A-A, Decision on a Request to Admit Additional Evidence, 27 April 2007, para. 8; Nahimana et al. Decision of 5 May 2006, para. 18; Nahimana et al. Decision of 14 February 2005, p. 3. See also Practice Direction, para. 7(e), which provides that a motion under Rule 115 should contain an appendix with copies of the evidence the party is applying to present.

[2] Cf. Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Decision on the First and Third Rule 115 Defence Motions to Present Additional Evidence Before the Appeals Chamber, 30 June 2005, para. 87; Kupreškić et al. Decision of 29 May 2001, para. 19.

[3] See Nahimana et al. Decision of 23 February 2006; Prosecutor v. Milomir Stakić, Case No. IT-97-24-A, Decision to Summon a Witness Proprio Motu, 20 September 2005; Jean de Dieu Kamuhanda v. The Prosecutor, Case No. ICTR-99-54A-A, Decision on Appellant’s Motion for Admission of Additional Evidence on Appeal, confidential, 12 April 2005; Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-A, Decision on Appellants’ Motions to Admit Additional Evidence Pursuant to Rule 115, 16 February 2004; Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Judgement, 29 July 2004, Chapter XVI “Annex A – Procedural Background”, para. 41; Georges Anderson Nderubumwe Rutaganda v. The Prosecutor, Case No. ICTR-96-3-A, Decision on the Consolidated Defence Motion for an Order Varying the Grounds of Appeal, for the Rehearing of Oral Arguments in the Appeal and for the Admission of Additional Evidence, and Scheduling Order, signed on 19 February 2003, filed on 14 May 2003; Prosecutor v. Radislav Krstić, Case No. IT-98-33-A, Decision on the Defence Supplemental Motion to Present Additional Evidence, 20 November 2003; Laurent Semanza v. The Prosecutor, Case No. ICTR-97-20-A, Decision on Defence Motion for Leave to Present Additional Evidence and to Supplement Record on Appeal, 12 December 2003; Prosecutor v. Zoran Kupreškić et al., Case No. IT-95-16-A, Appeal Judgement, 23 October 2001, para. 505. Cf. also Prosecutor v. Radislav Krstić, Case No. IT-98-33-A, Decision on the Admissibility of Material Presented by the Prosecution in Rebuttal to Rule 115 Evidence Admitted on Appeal, 19 November 2003. The Appeals Chamber observes that the Appeals Chamber of the International Tribunal for the Former Yugoslavia departed from this settled jurisprudence in the particular circumstances of the Momčilo Krajišnik case. See 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, paras. 15, 20, Disposition.

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Additional Evidence - 07.02.2011 BAGOSORA et al. (Military I)
(ICTR-98-41-A)

8. The Appeals Chamber recalls that “it has the authority to summon a witness, in appropriate circumstances, to testify before the Chamber so as to facilitate the effective conduct of appeal proceedings, and especially Rule 115’s power to admit additional evidence”.[1] However, the purpose of Rule 115 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.”[2] The Appeals Chamber considers that Rule 115 of the Rules does not permit a party to merely request a particular person to be summoned as a witness to give evidence at the appellate stage.[3] As repeatedly held, a party seeking the admission of additional evidence on appeal must provide the Appeals Chamber with the evidence sought to be admitted.[4] Where a party seeks to call a witness at the appellate stage, it needs to provide a statement or other documentation of the potential witness’s proposed evidence,[5] which the Appeals Chamber may admit as additional evidence pursuant to Rule 115 and on the basis of which it may determine whether calling the witness to testify on appeal is necessary.[6]

9. In the present case, Bagosora has not provided the Appeals Chamber with any statement from Gatsinzi or any documentation that may be admissible as additional evidence and the contents of which would prompt the Appeals Chamber to call the witness to testify in person. Bagosora explains that he could not procure a statement from Gatsinzi because Gatsinzi was unwilling to cooperate with his Defence.[7] In addition, although Bagosora provides no alternative documentation on appeal, the Appeals Chamber notes that Bagosora introduced aspects of Gatsinzi’s potential testimony into evidence at trial in the form of Exhibits DB256 (Gatsinzi Pro Justitia Statement dated 16 June 1995), DB274 (Audio-recording of Jean Kambanda’s Speech and portion of Gatsinzi’s Interview with a journalist of Radio Rwanda of 10 April 1994), and DB284 (Book written by Jacques Roger Booh-Booh titled “Le Patron de Dallaire parle”). In the absence of any material from Gatsinzi that Bagosora can legitimately seek to admit as “additional evidence”, the Appeals Chamber considers that Bagosora’s request for an order to call Gatsinzi as a witness pursuant to Rule 115 of the Rules cannot be granted.

[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. See also Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Appellant Jean-Bosco Barayagwiza’s Motion for Leave to Present Additional Evidence Pursuant to Rule 115, 5 May 2006 (“Nahimana et al. Decision of 5 May 2006”), para. 20.

[2] Kupreškić et al. Decision of 8 May 2001, para. 5 (emphasis added). See also Nahimana et al. Decision of 5 May 2006, para. 20; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Appellant Hassan Ngeze’s Six Motions for Admission of Additional Evidence on Appeal and/or Further Investigation at the Appeal Stage, confidential, 23 February 2006 (“Nahimana et al. Decision of 23 February 2006”), para. 6; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Jean-Bosco Barayagwiza’s Extremely Urgent Motion for Leave to Appoint an Investigator, 4 October 2005, p. 4; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Appellant Hassan Ngeze’s Motion for Leave to Present Additional Evidence, 14 February 2005 (“Nahimana et al. Decision of 14 February 2005”), fn. 5. See also, e.g., Tharcisse Renzaho v. The Prosecutor, Case No. ICTR-97-31-A, Decision on Tharcisse Renzaho’s Motions for Admission of Additional Evidence and Investigation on Appeal, 27 September 2010, para. 3; Emmanuel Rukundo v. The Prosecutor, Case No. ICTR-01-70-A, Decision on Rukundo’s Motion for the Admission of Additional Evidence on Appeal, 4 June 2010, para. 5; Protais Zigiranyirazo v. The Prosecutor, Case No. ICTR-01-73-A, Decision on Zigiranyirazo’s Motion for Admission of Additional Evidence on Appeal, 16 September 2009, para. 5; Kupreškić et al. Decision of 8 May 2001, para. 10; Prosecutor v. Zoran Kupreškić et al., Case No. IT-95-16-A, Decision on Motions to Admit Material Relating to Witness AT into Evidence Pursuant to Rule 115 and to Call Additional Witnesses, confidential, 29 May 2001 (“Kupreškić et al. Decision of 29 May 2001”), para. 19.

[3] Nahimana et al. Decision of 5 May 2006, para. 20; Nahimana et al. Decision of 14 February 2005, fn. 5; Kupreškić et al. Decision of 8 May 2001, para. 5.

[4] See, e.g., 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. 18; 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. 13; The Prosecutor v. Ildephonse Hategekimana, Case No. ICTR-00-55B-R11bis, Decision on Request to Admit Additional Evidence, 2 October 2008, para. 7; The Prosecutor v. Tharcisse Muvunyi, Case No. ICTR-00-55A-A, Decision on a Request to Admit Additional Evidence, 27 April 2007, para. 8; Nahimana et al. Decision of 5 May 2006, para. 18; Nahimana et al. Decision of 14 February 2005, p. 3. See also Practice Direction [Practice Direction on Formal Requirements for Appeals from Judgement, 4 July 2005], para. 7(e), which provides that a motion under Rule 115 should contain an appendix with copies of the evidence the party is applying to present.

[5] Cf. Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Decision on the First and Third Rule 115 Defence Motions to Present Additional Evidence Before the Appeals Chamber, 30 June 2005, para. 87; Kupreškić et al. Decision of 29 May 2001, para. 19.

[6] See Nahimana et al. Decision of 23 February 2006; Prosecutor v. Milomir Stakić, Case No. IT-97-24-A, Decision to Summon a Witness Proprio Motu, 20 September 2005; Jean de Dieu Kamuhanda v. The Prosecutor, Case No. ICTR-99-54A-A, Decision on Appellant’s Motion for Admission of Additional Evidence on Appeal, confidential, 12 April 2005; Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-A, Decision on Appellants’ Motions to Admit Additional Evidence Pursuant to Rule 115, 16 February 2004; Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Judgement, 29 July 2004, Chapter XVI “Annex A – Procedural Background”, para. 41; Georges Anderson Nderubumwe Rutaganda v. The Prosecutor, Case No. ICTR-96-3-A, Decision on the Consolidated Defence Motion for an Order Varying the Grounds of Appeal, for the Rehearing of Oral Arguments in the Appeal and for the Admission of Additional Evidence, and Scheduling Order, signed on 19 February 2003, filed on 14 May 2003; Prosecutor v. Radislav Krstić, Case No. IT-98-33-A, Decision on the Defence Supplemental Motion to Present Additional Evidence, 20 November 2003; Laurent Semanza v. The Prosecutor, Case No. ICTR-97-20-A, Decision on Defence Motion for Leave to Present Additional Evidence and to Supplement Record on Appeal, 12 December 2003; Prosecutor v. Zoran Kupreškić et al., Case No. IT-95-16-A, Appeal Judgement, 23 October 2001, para. 505. Cf. also Prosecutor v. Radislav Krstić, Case No. IT-98-33-A, Decision on the Admissibility of Material Presented by the Prosecution in Rebuttal to Rule 115 Evidence Admitted on Appeal, 19 November 2003. The Appeals Chamber observes that the Appeals Chamber of the International Tribunal for the Former Yugoslavia departed from this settled jurisprudence in the particular circumstances of the Momčilo Krajišnik case. See 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, paras. 15, 20, Disposition.

[7] Reply, para. 8. See also Subpoena Decision [The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Decision on Request for a Subpoena, 11 September 2006], para. 7, in which the Trial Chamber ordered the issuance of a subpoena for Gatsinzi’s appearance because, inter alia, Bagosora had made reasonable efforts to secure Gatsinzi’s voluntary cooperation, without success.

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Additional Evidence - 07.02.2011 BAGOSORA et al. (Military I)
(ICTR-98-41-A)

9. […] In the absence of any material from Gatsinzi that Bagosora can legitimately seek to admit as “additional evidence”, the Appeals Chamber considers that Bagosora’s request for an order to call Gatsinzi as a witness pursuant to Rule 115 of the Rules cannot be granted.

10. Gatsinzi’s testimony could, however, assist the Appeals Chamber’s adjudication of Bagosora’s submissions under his first ground of appeal in relation to the Trial Chamber’s alleged violation of his fair trial rights by failing to enforce a subpoena for Gatsinzi’s live testimony,[1] in particular with regard to Bagosora’s superior responsibility between 6 and 9 April 1994. Given that the Trial Chamber indeed issued a subpoena for Gatsinzi’s appearance and that Gatsinzi never testified, the Appeals Chamber considers the circumstances in this case to be appropriate to summon Gatsinzi pursuant to Rules 98 and 107 of the Rules in order to determine whether or to what extent such failure to testify violated Bagosora’s right to a fair trial or caused him the prejudice he purports.

[1] Notice of Appeal, Ground 1(I), p. 7; Appeal Brief, paras. 101-114; Reply Brief, paras. 38-43.

Download full document
ICTR Rule Rule 98 ICTY Rule Rule 98
Notion(s) Filing Case
Decision on Additional Evidence - 05.05.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

11. Due to the apparent inconsistencies of the Rule 115 Motion with the formal requirements set out in Paragraph 7 of the Practice Direction on Formal Requirements for Appeals from Judgement (“Practice Direction”),[1] the Pre-Appeal Judge ordered the Appellant to “re-file, no later than 30 January 2006, appendices to the Rule 115 Motion which should be copies of the evidence that he is applying to present before the Appeals Chamber in strict accordance with the precise list of such evidence already contained in his Rule 115 Motion”.[2]

13. The Appeals Chamber accepts the documents annexed to the Corrigendum to Rule 115 Motion only inasmuch as they correspond to the pieces of evidence mentioned in the Rule 115 Motion itself but omitted from its annexes. Indeed, the Corrigendum to Rule 115 Motion cannot be used to widen the scope of the Rule 115 Motion.

18. The Appeals Chamber recalls that a party seeking the admission of additional evidence on appeal must provide the Appeals Chamber with the evidence sought to be admitted.[3] For the sake of clarity and in light of the Appeals Chamber’s findings above,[4] the Appeals Chamber notes that not all of the materials referred to in the Rule 115 Motion and/or contained in the Annexes thereto can in fact be considered as meeting the formal requirements for submission of additional evidence to be considered for admission on appeal.

19. In particular, pursuant to Article 7 of the Practice Direction,[5] the following documents should fall out of the consideration by the Appeals Chamber since they were either not annexed to the Rule 115 Motion and not later submitted with the Corrigendum or were annexed to the Rule 115 Motion but not listed therein and the Rule 115 Motion thus contains no arguments as to their admissibility: […] While he admits that these two documents “fall within the generic description” contained in the Rule 115 Motion,[6] he persists that they “should be considered as evidence which may undermine the convictions”[7] but does not make any argument as to their admissibility in his Rule 115 Motion.[8] The Appellant re-filed these documents in his Corrigendum to the Rule 115 Motion despite a clear indication of the discrepancy between the contents of his Rule 115 Motion and Annexes thereto made to him by the Pre-Appeal Judge.[9] Therefore, the Appeals Chamber does not consider Annex 1 and Annex 2 as documents tendered as additional evidence on appeal.

21. Finally, the Appellant tenders a number of documents (all referred to in the Rule 115 Motion but not attached as Annexes),[10] which were in fact already admitted into evidence at trial and therefore do not constitute “additional evidence” to be admitted in this case. The Appeal Chamber notes that it is consequently not necessary to examine them in considering the Rule 115 Motion.[11]

[1]16 September 2002.

[2] [Decision on Formal Requirements Applicable to the Parties’ Filings Related to the Appellant Jean-Bosco Barayagwiza’s Motion for Leave to Present Additional Evidence, 23 January 2006 (“Decision of 23 January 2006”)], p. 7.

[3] Decision on Appellant Hassan Ngeze’s Motion for Leave to Present Additional Evidence, 14 February 2005, p. 3.

[4] See paras 13 and 15-16 above.

[5] Pursuant to this provision, a motion applying to present additional evidence shall contain:

“ (a) a precise list of the evidence the party is seeking to have presented;

(b) an identification of each ground of appeal to which the evidence relates and, where applicable, a request to submit any additional grounds of appeal based on such evidence;

(c) arguments in relation to the requirements of non-availability at trial, relevance and credibility;

(d) arguments in relation to the requirement that the admission of the additional evidence could have been a decisive factor in reaching the decision made by the Trial Chamber to which the additional evidence is directed;

(e) an appendix with copies of the evidence the party is applying to present before the Appeals Chamber”.

[6] Reply to the Prosecution Request of 10 February 2006, para. 10.

[7] Reply to the Prosecution Request of 10 February 2006, para. 11.

[8] Rule 115 Motion, paras 18 – 28.

[9] Decision of 23 January 2006, p. 6.

[10] [footnote omitted]

[11] Cf. e.g., Kambanda Decision of 13 June 2000, pp. 2-3 and Rule 109 (A) of the Rules.

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115 Other instruments Practice Direction on Formal Requirements for Appeals from Judgement (ICTR): Para.7
Notion(s) Filing Case
Decision on Additional Evidence - 05.05.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

20. […] The Appeals Chamber recalls that it has “the authority to summon a witness, in appropriate circumstances, to testify before the Chamber so as to facilitate the effective conduct of appeal proceedings, and especially Rule 115’s power to admit additional evidence.”[1] Similarly, the Appeals Chamber has the power to request a State to provide judicial assistance by producing certain evidence under Article 28(2)(b) of the Statute of the Tribunal. However, the purpose of Rule 115 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.”[2] The Rule does not permit a party to merely request a particular person to be summoned as a witness to give evidence or that a State be requested to produce certain documentation.[3] In this case, the Appellant has failed to provide material in his possession that would be admissible as additional evidence directed to a specific finding of fact of the Trial Chamber.[4] Therefore, the Appellant’s request falls out of the scope of a motion filed pursuant to Rule 115.

[1] Prosecutor v. 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 Decision”), para. 5.

[2] Kupreškić Decision, para. 5; Decision on Appellant Hassan Ngeze’s Six Motions for Admission of Additional Evidence on Appeal and /or Further Investigation, 23 February 2006 (“Decision of 23 February 2006”), para. 40.

[3] Kupreškić Decision, para. 5.

[4] [Kupreškić Decision, para. 5.]

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Additional Evidence - 05.05.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

22. As to the remainder of the material tendered as additional evidence on appeal, under Rule 115 (A) of the Rules, a motion to present additional evidence on appeal must be filed “not later than seventy-five days from the date of the judgement”, which in this case was 16 February 2004, “unless good cause is shown for further delay.”

25. The Appeals Chamber considers that the Appellant has failed to show good cause for the late filing of his Rule 115 Motion. […]

26. Even if the Appeals Chamber were to count the seventy-five days period from the date on which the Appellant claims that the current Defence team was complete (13 June 2005), such that the deadline for filing the Rule 115 Motion would have been 27 August 2005, the Rule 115 Motion would still have been filed 123 days late. The Appeals Chamber reiterates that “a Counsel, when accepting assignment as Lead Counsel in a case before the Tribunal, is under an obligation to give absolute priority to observe the time limits as foreseen in the Rules.”[1] The Appeals Chamber is not convinced by the Appellant’s argument that the Defence team could not file a timely motion for admission of additional evidence under Rule 115 because it had to focus on preparation of the Amended Notice of Appeal and Amended Appellant’s Brief. The Appeals Chamber recalls that the Appellant was granted generous extensions of time for filing these submissions as early as May 2005, such that both were accepted as timely filed on 12 October 2005. The additional time allowed for preparing the Amended Notice of Appeal and Amended Appellant’s Brief should have allowed for the Appellant to work with his Defence team to prepare a timely motion pursuant to Rule 115. 

[1] Decision on Clarification of Time Limits and on Appellant Barayagwiza’s Extremely Urgent Motion for Extension of Time to File his Notice of Appeal and his Appellant’s Brief, 2 September 2005, p. 5.

[2] Decision on “Appellant Jean-Bosco Barayagwiza’s Urgent Motion for Leave to Have Further Time to File the Appeals Brief and the Appeal Notice, 17 May 2005, p. 4. The Appellant was granted a further extension of time by the Decision of 2 September 2005 (p. 3). 

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Additional Evidence - 05.05.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

9. […] Pursuant to Rule 115(C) of the Tribunal’s Rules of Procedure and Evidence (“Rules”), the Appeals Chamber may decide a motion for leave to present additional evidence on appeal “with or without an oral hearing”. Generally, the granting of an oral hearing is a matter for the discretion of a Chamber and may legitimately be regarded as unnecessary when the information before the Chamber is sufficient to enable it to reach an informed decision.[1] In the instant case, the Appeals Chamber finds that the Appellant has not put forward any convincing reasons justifying that written submissions are inadequate to put forward his arguments in relation to the Rule 115 Motion and thus, does not consider that the efficient conduct of the present proceeding requires an oral hearing prior to rendering its decision on the Rule 115 Motion.[2]

[1] Prosecutor v. Fatmir Limaj et al., Case No. IT-03-66-AR65, Decision on Fatmir Limaj Request for Provisional Release, 31 October 2003, para. 17; Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-AR73.1, Decision on Interlocutory Appeal of Decision on Second Defence Motion for Adjournment, 25 April 2005, para. 4; Prosecutor v. Mitar Rašević and Savo Todović, Case No. IT-97-25/1-AR65.1, Decision on Interlocutory Appeal from Trial Chamber Decision Denying Savo Todović’s Application for Provisional Release, 7 October 2005, para. 29.

[2] The Appeals Chamber has on numerous occasions determined the admissibility of evidence without a separate oral hearing on a Rule 115 motion, including cases where evidence of gross negligence of counsel was involved: Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Decision (On the Consolidation or Summarization of Motions not yet Disposed of), 22 August 2000, p. 6; Prosecutor v. Jean Kambanda, Case No. ICTR-97-23-A, Decision on the Appellant’s Motion for Admission of New Evidence, 13 June 2000 (Kambanda Decision of 13 June 2000); See also Prosecutor v. Zoran Kupreškić et al., Decision on the Motions of Appellants Vlatko Kupreškić, Drago Josipović, Zoran Kupreškić and Mirjan Kupreškić to Admit Additional Evidence, issued confidentially on 26 February 2001, paras 52, 62, 66.

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Additional Evidence - 08.12.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

9. As recalled above, the time-limit for the filing of a motion to admit additional evidence is thirty days from the date for filing of the brief in reply, unless good cause is shown for delay.[1] The Appeals Chamber understands that through the Motion Giving Notice of Delay, the Appellant seeks to show good cause for the delayed filing of his First Rule 115 Motion. The Appeals Chamber notes that where arguments are made demonstrating good cause for a late filing after the filing deadline has passed, as a matter of practice, that showing is normally made as part of the Rule 115 motion itself with a request that the motion be recognized as validly filed. Thus, the Appeals Chamber will consider the arguments contained in the Motion Giving Notice of Delay when disposing of the Appellant’s submissions concerning good cause for the late filing of his First Rule 115 Motion as follows.

16. […] The Appeals Chamber recalls that “the good cause requirement obliges the moving party to demonstrate that it was not able to comply with the time limit set out in the Rule, and that it submitted the motion in question as soon as possible after it became aware of the existence of the evidence sought to be admitted”.[2]

20. In light of the above, the Appeals Chamber concludes that the Appellant has not shown good cause for the late filing of any of the documents proffered as additional evidence. The Appeals Chamber thus finds no need to consider the merits of the First Rule 115 Motion[3] and dismisses it in its entirety.

24. As with the First Rule 115 Motion, the Second Rule 115 Motion was filed eight months after the expiry of the time period stipulated under Rule 115(A) of the Rules. The Appellant submits that the documents proffered as additional evidence were obtained by him during the month of July 2006, when he received an electronic file called [REDACTED], a non-governmental research institute based in the United States which “collects and publishes declassified documents obtained through the Freedom of Information Act”.[4] The Appeals Chamber is therefore satisfied that there is good cause justifying the late filing of the Second Rule 115 Motion.

38. As a preliminary matter, the Appeals Chamber observes that the Reply to the Third Rule 115 Motion was filed after the time-limit for its filing had expired. The Appeals Chamber notes the Appellant’s explanation that he received the Prosecution’s Response to the Third Rule 115 Motion only on 27 November 2006, and thus accepts it as validly filed.

39. […] Considering that the Appellant received the material in August 2006 only, the Appeals Chamber is satisfied that the Appellant has shown good cause for the late filing of the Third Rule 115 Motion.

[1] The Appeals Chamber notes that, under the provision applicable at the time of the filing of the Motion Giving Notice of Delay, the deadline was set to seventy-five days after the trial judgement.

[2] Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Decision on Prosecution’s Motion to Admit Additional Evidence in Relation to Dario Kordić and Mario Čerkez, 17 December 2004, p. 2; Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-A, Decision on Naletilić’s Motion for Leave to File His Second Rule 115 Motion to Present Additional Evidence Pursuant to Rule 115, 27 January 2005, p. 3.

[3] Cf. [Decision on Appellant Jean-Bosco Barayagwiza’s Motion for Leave to Present Additional Evidence Pursuant to Rule 115, 5 May 2006], para. 27.

[4] Second Rule 115 Motion, para. 8.

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Additional Evidence - 08.12.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

30. […] In light of the evidence adduced at trial, the Appeals Chamber is not satisfied that the Trial Chamber would have arrived at a different conclusion upon examination of the two messages in question. The Appellant has not shown that the Trial Chamber would necessarily opt for the evidence that he now proffers instead of the totality of the evidence that it chose to rely on to conclude that Barayagwiza held the position of a superior in the CDR including that, after the assassination of Bucyana in February 1994, Barayagwiza succeeded him as President of the CDR at the national level.[1]

[1] See, inter alia Trial Judgement, para. 258 referring to Exhibit 2D9; para. 260 referring to Alison Des Forges’ testimony and Exhibit P141; para. 261 referring to the testimony of Alison Des Forges, Omar Serushago, Fançois-Xavier Nsanzuwera and Exhibits P142, P107/37; para. 263 referring to Witness B3; para. 264 referring to the testimony of Thomas Kamilindi, Alison Des Forges, Jean-Pierre Chrétien, Witness AHI, Witness EB, Witness AFX, Witness Omar Serushago; para. 266 referring to the testimony of Witness ABC, Witness LAG, Omar Serushago, Kamilindi, Kabanda and Alison Des Forges and that of Hassan Ngeze; para. 267 referring to Exhibit 2D35 (the book written by the Appellant “Le Sang Hutu est-il rouge?”; and paras 273, 276, 977.

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Additional Evidence - 08.12.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

31. […] While it is true that, where the failure resulted solely from counsel negligence or inadvertence, the Appeals Chamber can permit admission of additional evidence to remedy for such negligence or inadvertence, this would only be allowed if the proffered evidence is of such substantial importance to the success of the appeal such as its exclusion would lead to a miscarriage of justice.[1] In these exceptional cases, the Appeals Chamber has reasoned, the interests of justice require that an appellant not be held responsible for the failures of counsel.[2] However, in light of the findings above, the Appeals Chamber is not satisfied that non-admission of the proffered evidence would amount to a miscarriage of justice.

[1] See, by analogy, Decision on Appellant Jean-Bosco Barayagwiza’s Motions for Leave to Submit Additional Grounds of Appeal, to Amend the Notice of Appeal and to Correct his Appellant’s Brief, 17 August 2006, para. 12; Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Decision on Motion of Dragan Jokić for Leave to File Third Amended Notice of Appeal and Amended Appellate Brief, 26 June 2006, para. 9; Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Decision on Motions Related to the Pleadings in Dragan Jokić’s Appeal, 24 November 2005, para. 8; Blagojević Decision of 14 October 2005, para. 8; Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Decision Granting Leave to Dario Kordić to Amend His Grounds of Appeal, 9 May 2002, para. 5.

[2] Decision on Appellant Jean-Bosco Barayagwiza’s Motions for Leave to Submit Additional Grounds of Appeal, to Amend the Notice of Appeal and to Correct his Appellant’s Brief, 17 August 2006, para. 12.

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Additional Evidence - 08.12.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

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

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

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

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

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

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

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

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

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

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

[6] Ibid., para. 15.

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

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

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

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

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

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

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Additional Evidence - 08.12.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

The Appeals Chamber has clearly restated the applicable law on admissibility of additional evidence on appeal: 

4. The Appeals Chamber recalls that under the jurisprudence of the Tribunal and that of the International Criminal Tribunal for the Former Yugoslavia (“ICTY”), an appeal pursuant to Article 24 of the Statute of the Tribunal (Article 25 of the Statute of the ICTY) is not a trial de novo[1] and is not an opportunity for a party to remedy any “failures or oversights” made during the pre-trial and trial phases.[2] Rule 115 of the Rules of Procedure and Evidence of the Tribunal (“Rules”) provides for a mechanism to address “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”.[3]

5. According to Rule 115, 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 a delay.[4] Second, the Appeals Chamber must find “that the additional evidence was not available at trial and is relevant and credible”.[5] When determining the availability at trial, the Appeals Chamber will consider whether the party tendering the evidence has shown 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.”[6] In this respect, the Appeals Chamber has held that

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” and that “[t]he 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.[7]

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 does not appear to be reasonably capable of belief or reliance, without prejudice to a determination of the weight to be afforded.[8]

6. 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.”[9] To satisfy this requirement, 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.[10] Accordingly, the additional evidence must be directed at a specific finding of fact related to a conviction or to the sentence.[11] Although Rule 115 of the Rules does not explicitly provide for this, where the evidence is relevant and credible, but was available at trial, or could have been discovered through the exercise of due diligence, the Appeals Chamber may still allow it to be admitted on appeal provided the moving party can establish that the exclusion of it would amount to a miscarriage of justice. That is, it must be demonstrated that had the additional evidence been adduced at trial, it would have had an impact on the verdict.[12]

7. The Appeals Chamber recalls that, whether the additional evidence was or was not available at trial, the additional evidence must always be assessed in the context of the evidence presented at trial, and not in isolation.[13]

[1] Confidential Decision on Appellant Hassan Ngeze’s Six Motions for Admission of Additional Evidence on Appeal and/or Further Investigation at the Appeal Stage, 23 February 2006 (“Decision of 23 February 2006”), para. 5; Decision on Jean-Bosco Barayagwiza’s Extremely Urgent Motion for Leave to Appoint an Investigator, 4 October 2005 (“Decision of 4 October 2005”), p. 3; Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Judgement, 1 June 2001, para. 177.

[2] Decision on Appellant Hassan Ngeze’s Motion for the Approval of the Investigation at the Appeal Stage, 3 May 2005, p. 3; Prosecutor v. Drazen Erdemović, Case No. IT-96-22-A, Judgement, 7 October 1997, para. 15.

[3] Decision of 23 February 2006, para. 6; Decision of 4 October 2005, p. 4; 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.

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

[5] Rule 115(B).

[6] 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 (“Ntagerura et al. Decision of 10 December 2004”), para. 9 [internal references omitted].

[7] Id.

[8] Decision of 23 February 2006, para. 7; 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; Prosecutor v. Zoran Kupreškić et al., Case No. IT-95-16-A, Appeal Judgement, 23 October 2001 (“Kupreškić Appeal Judgement”), para. 63; Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Decision on Evidence, 31 October 2003 (“Blaškić Decision of 31 October 2003”), p. 3; Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-A, Decision on Naletilić’s Amended Second Rule 115 Motion and Third Rule 115 Motion to Present Additional Evidence, 7 July 2005, para. 12.

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

[10] Zoran 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.

[11] Decision of 23 February 2006, para. 8.

[12] Juvénal Kajelijeli v. The 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. See also Prosecution v. Rasim Delić, Case No. IT-96-21-R-R119, Decision on Motion for Review, 25 April 2002, para. 18; Prosecution v. Radislav Krst, Case No. IT-98-33-A, Decision on Application for Subpoenas, 1 July 2003, para. 16; Krstić Decision of 5 August 2003, p. 4; Blaškić Decision of 31 October 2003, p. 3.

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

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

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

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

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

[2] See supra para. 10.

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

19.     In his Third Motion, Mr. Bikindi seeks leave to admit extracts of legislation from various domestic jurisdictions and two Rwandan judgements[1] which relate to his appeal against sentencing.[2] The Appeals Chamber notes that both parties agree that the Third Motion should be considered moot on the basis that the material does not fall within the scope of Rule 115 of the Rules.[3] The Appeals Chamber agrees that Rule 115 of the Rules does not apply to case law or legislation used for the purpose of illustrating sentencing practices in national jurisdictions.[4] The Appeals Chamber will consider this material when determining the merits of the case.

[1] Third Motion [Simon Bikindi v. The Prosecutor, Case No. ICTR-01-72-A, Defence Motion to Admit Additional Evidence on Sentencing, 9 June 2009], para. 14. The proffered legislation and jurisprudence are contained in Annexures A-E.

[2] Third Motion, paras. 15-22; Reply to Third Motion [Simon Bikindi v. The Prosecutor, Case No. ICTR-01-72-A, Defence Reply Re the Admission of Additional Evidence on Bikindi’s Sentence, 22 July 2009], paras. 12-16.

[3] Third Motion, paras. 3, 15; Response to Third Motion [Simon Bikindi v. The Prosecutor, Case No. ICTR-01-72-A, Prosecutor’s Response to “Defence Motion to Admit Additional Evidence on Sentencing”, 9 July 2009], para. 3; Reply to Third Motion, paras. 2, 5.

[4] This material is already before the Appeals Chamber. See [Simon Bikindi v. The Prosecutor, Case No. ICTR-01-72-A] Corrigendum to Defense [sic] Appellant’s Brief, Annexures A-E; [Simon Bikindi v. The Prosecutor, Case No. ICTR-01-72-A] Defense [sic] Respondent’s Brief, para. 54, Annexures A and B. 

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Judgement on Sentencing Appeal - 02.04.2007 BRALO Miroslav
(IT-95-17-A)

At para. 53, the Appeals Chamber recalled the applicable law when additional evidence is admitted on appeal, and specified that findings pertaining to mitigating circumstances are reached “on a balance of probabilities”:

53. In light of the above, the Appeals Chamber will now determine whether the Trial Chamber correctly assessed the evidence before it when evaluating the Appellant’s cooperation. The Appeals Chamber will then assess the value, if any, of the additional evidence admitted on appeal, and itself determine whether this material, when considered together with the materials before the Trial Chamber, warrants, on a balance of probabilities,[1] a finding of substantial cooperation and a reduction of sentence.

See also para. 8 and footnote 23.

[1] See supra para. 8 and fn. 23.

Download full document
ICTR Rule Rule
101(B)(ii)
ICTY Rule Rule
101(B)(ii)
Notion(s) Filing Case
Order on Additional Evidence - 14.02.2000 DELALIĆ et al. (Čelebići)
(IT-96-21-A)

The Appellant sought to have admitted pursuant to Rule 115 of the Rules of Procedure and Evidence a document described as an “expert opinion” on the interpretation of the Constitution of Costa Rica.

CONSIDERING that Rule 115 is not applicable to the material now sought to be admitted into evidence, which relates to the Second Ground of Appeal concerned with the ineligibility of one of the members of the Trial Chamber to serve as a Judge of the International Tribunal and not with the guilt or innocence of the Appellant;

CONSIDERING that the Appeals Chamber possesses the competence to receive evidence of this nature, provided that it meets the general criteria for admissibility under sub-Rule 89(C);

[…]

CONSIDERING that points of national law are questions of fact to be decided by the Judges of the International Tribunal;

CONSIDERING that the International Tribunal may receive evidence, including expert evidence, on such questions where relevant;

Download full document
ICTR Rule Rules 89(C);
Rule 115
ICTY Rule Rule 89(C);
Rule 115
Notion(s) Filing Case
Order re Witnesses on Appeal - 19.05.2000 DELALIĆ et al. (Čelebići)
(IT-96-21-A)

CONSIDERING that, while Rule 115 of the Rules of Procedure and Evidence limits the extent to which evidence upon matters relating to the guilt or innocence of the accused may be given before the Appeals Chamber (being the issue litigated in the Trial Chamber), when the Appeals Chamber is hearing evidence which relates to matters other than the issues litigated in the Trial Chamber, the Appeals Chamber is in the same position as a Trial Chamber, so that Rule 107 applies to permit the Appeals Chamber to admit any relevant or probative evidence pursuant to Rule 89 (C) and, pursuant to Rule 90 (G), to exercise control over the mode of presenting evidence to avoid needless consumption of time;

Download full document
ICTR Rule Rule 89(C);
Rule 107;
Rule 115
ICTY Rule Rule 89(C);
Rule 107;
Rule 115
Notion(s) Filing Case
Decision on Additional Evidence - 09.04.2009 MILOŠEVIĆ Dragomir
(IT-98-29/1-A)

18. The Appeals Chamber reiterates that a party seeking the admission of additional evidence on appeal must provide the Appeals Chamber with the evidence sought to be admitted.[1] […]

[1] Mrkšić Rule 115 Decision [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. 13; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Appellant Jean-Bosco Barayagwiza’s Motion for Leave to Present Additional Evidence Pursuant to Rule 115, 5 May 2006, para. 18; Ferdinand Nahimana et al., Case No. ICTR-99-52-A, Decision on Appellant Hasan Ngeze’s Motion for Leave to Present Additional Evidence, 14 February 2005, p. 3. 

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Additional Evidence - 09.04.2009 MILOŠEVIĆ Dragomir
(IT-98-29/1-A)

The Appeals Chamber dismissed Milošević’s previous motion seeking to have the same evidence admitted because he did not identify the manner in which that evidence could have affected the Trial Chamber’s findings referred to in the First Motion “or even which particular portions of the Diary would be relevant to such findings”. However, considering the special circumstances related to disclosure of the evidence by the Prosecution, the Appeals Chamber decided to give Milošević a further opportunity to substantiate his claim (see D. Milošević Decision on First Rule 115 Motion).

In this decision, the Appeals Chamber found

19. […] that the Second Motion also fails to meet the requirements of the specificity recalled above.[1] In particular, instead of “specifying with sufficient clarity the impact the additional evidence could have had upon the Trial Chamber’s decision”, Milošević provides a list of the Diary portions identified by dates, often with no reference to a particular part of the entry, which, in his view, could contradict certain paragraphs of the Trial Judgement. Significantly, he does not specify why the Trial Chamber could have come to a different conclusion despite the existence of the evidence it relied upon in the Trial Judgement. This approach does not meet the requirements for the purposes of a motion filed pursuant to Rule 115 of the Rules. In the instances where Milošević refers to the arguments presented in the Defence Appeal Brief regarding the alleged impact on the civilian status of Sarajevo,[2] the Appeals Chamber finds these references insufficient for the purposes of a motion under Rule 115 of the Rules, given that those paragraphs mainly reiterate his arguments rejected by the Trial Judgement without explaining why the Trial Chamber’s relevant conclusions could be different.[3]

20. Consequently, the Appeals Chamber rejects Milošević’s request to have the portions of the Diary admitted as additional evidence on appeal without further analysis. […]

[1] See supra, para. 8 [“The applicant bears the burden of identifying with precision the specific finding of fact made by the Trial Chamber to which the additional evidence is directed, and of specifying with sufficient clarity the impact the additional evidence could have had upon the Trial Chamber’s decision. The evidence may otherwise be summarily rejected.” (footnotes omitted)].

[2] See supra, para. 10.

[3] In particular, Milošević does not address the fact that the Trial Chamber took into account the fact that there were military targets, population fluctuations and confrontation lines within Sarajevo but concluded that they did not ultimately alter the civilian status of the relevant urban areas (Trial Judgement, paras 889-913, as well as paras 141-173, describing the supporting evidence).

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Additional Evidence - 08.09.2009 MILOŠEVIĆ Dragomir
(IT-98-29/1-A)

16. The Appeals Chamber recalls that because Milošević filed his Motion on 3 August 2009, that is, after the Appeals Hearing, he must show cogent reasons for the delayed filing.[1] In this respect, the Appeals Chamber observes that the evidence sought to be admitted was obtained by Milošević on 14 July 2009,[2] seven days before the Appeals Hearing and 21 days before the date of filing of the Motion. The Appeals Chamber notes Milošević’s claim that the Order was unavailable during trial on account of his having recently received it from the Ministry of Defence of Serbia and Montenegro.[3] It recalls, however, that in order to have additional evidence admitted at this highly advanced stage of the proceedings, Milošević has the responsibility of demonstrating that he (i) could not have obtained the proffered material despite the exercise of the due diligence and (ii) submitted the present motion as soon as possible after he became aware of the existence of the evidence he seeks to admit.[4] Milošević fails to elaborate on the due diligence requirement and does not provide any reasons whatsoever for the delay of 21 days following the receipt of the document, a delay which occurred despite the clarifications provided to him by the Presiding Judge during the Appeals Hearing urging him to tender the material.[5] Consequently, the Appeals Chamber finds that Milošević has not demonstrated cogent reasons for the delayed filing of the Motion.

[1] See supra, para. 6.

[2] Motion [Motion to Present Additional Evidence with Confidential Annex A, 3 August 2009], para. 3.

[3] Motion, para. 3.

[4] Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Decision on Prosecution’s Motion to Admit Additional Evidence in Relation to Dario Kordić and Mario Čerkez, 17 December 2004, p. 2.

[5] AT. 87-88 […].

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Additional Evidence - 08.09.2009 MILOŠEVIĆ Dragomir
(IT-98-29/1-A)

17. Moreover, the Appeals Chamber notes that the Motion contains no arguments as to the conditions of admissibility of additional evidence on appeal recalled above. The general assertion that the proffered material is relevant to an argument raised on appeal and is likely to prove a fact that the Trial Chamber considered immaterial for the conviction, does not suffice for these purposes. […]

See remainder of para. 17, para. 21.

[1] See supra, paras 6-12.

[2] See Trial Judgement [Prosecutor v. Dragomir Milošević, Case No. IT-98-29/1-T, Trial Judgement, 12 December 2007], para. 975. 

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Additional Evidence - 08.09.2009 MILOŠEVIĆ Dragomir
(IT-98-29/1-A)

18. The Appeals Chamber recalls however that an appellant should not be held responsible for the negligence of his counsel. The Appeals Chamber further recalls that it invited the parties to elaborate during the Appeals Hearing on the issue of Milošević’s temporary replacement.[2] Considering that the tendered material appears relevant to this issue and that the trial record does not contain a similar source, the Appeals Chamber finds that in order to avoid a possible miscarriage of justice, it should examine whether, if the Order had been before the Trial Chamber, it would have affected the verdict.

[1] Cf. Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICRT-99-52-A, Decision on Appellant Jean-Bosco Barayagwiza’s Motion for Leave to Present Additional Evidence Pursuant to Rule 115 of the Rules of Procedure and Evidence, 8 December 2006, para. 31, referring to Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Appellant Jean-Bosco Barayagwiza’s Motions for Leave to Submit Additional Grounds of Appeal, to Amend the Notice of Appeal and to Correct his Appellant’s Brief, 17 August 2006, para. 12.

[2] Addendum to the Order Scheduling the Appeals Hearing, 6 July 2009, p. 3, para. 2.

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Additional Evidence - 20.08.2008 KRAJIŠNIK Momčilo
(IT-00-39-A)

The Appeals Chamber recalled the applicable law in paragraphs 5-9 of its decision. 

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Additional Evidence - 20.08.2008 KRAJIŠNIK Momčilo
(IT-00-39-A)

With respect to the exercise of the applicant’s and counsel’s duty to act with due diligence in relation to the availability of evidence at trial, the Appeals Chamber recalled:

5. For additional evidence to be admissible under Rule 115 of the Rules it must satisfy the following requirements. The applicant must first demonstrate that the additional evidence tendered on appeal was not available to him at trial in any form, or discoverable through the exercise of due diligence.[1] The applicant’s duty to act with reasonable diligence includes making “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.”[2] With respect to the exercise of counsel’s due diligence during trial the Appeals Chamber recalls its finding in Tadić that

[c]ounsel 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.[3]

The Applicant argued that a number of documents he sought to be admitted on appeal were not tendered into evidence at trial due to oversight by his former Counsel. When considering whether these documents were unavailable to the Applicant at trial, the Appeals Chamber first analysed documents which could demonstrate Counsel’s incompetence to conduct the defence:

12. With respect to the alleged unavailability at trial of the statements in document 69-K-0005, the Appeals Chamber recalls that a defence counsel has the duty to act with reasonable diligence to bring evidence on behalf of an accused before the Trial Chamber.[4] The information contained in the four statements could be considered as having been available at trial, because it could have been gathered with reasonable diligence.[5] However, failure of Counsel to exercise due diligence in order to obtain documents which could demonstrate his own incompetence to conduct the defence should not be to the detriment of the Appellant.[6] Moreover, whether or not the Appellant himself had a duty to act with reasonable diligence to make the Trial Chamber aware of the information contained in the four statements, the Appeals Chamber considers that in his oral request for self-representation at trial, the Appellant stated that his Defence team was unable to assist him because of the conditions prevailing at the time, adding that if the Trial Chamber wished that he provide more detailed explanations, he would gladly do so.[7] However, he was never requested to do so. In light of these circumstances, the Appeals Chamber finds that the information contained in the four statements was unavailable to the Appellant at trial. Consequently, they can be admitted if they are relevant, credible and could have had an impact on the verdict had they been considered at trial.

18. In addition, it appears that the Trial Chamber was never fully informed of the Appellant’s complaints regarding his former Counsel. […]

19. The Appeals Chamber considers that, as a general principle, an accused’s right to a fair trial is infringed when counsel admittedly does not understand the case of his client and fails to prepare a proper defence strategy. […]

The Appeals Chamber then analysed the documents which were not aimed at proving the alleged incompetence of Counsel to conduct the defence:

21. As previously noted, the Appellant argues in relation to a number of documents that his former Counsel failed to tender them as evidence at trial, although for many of them the Appellant told him to do so. The Appeals Chamber will only consider these documents as being unavailable at trial where the Appellant can show gross negligence of Counsel.[8]

22. The Appeals Chamber considers that […] it does not necessarily follow that former Counsel acted with gross negligence in all the respects now alleged. Indeed, “[c]ounsel 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”.[9] Moreover, the Appellant does not substantiate his assertion that the documents at issue were unavailable at trial beyond bare assertions that former Counsel failed to tender them. Therefore, he fails to sufficiently demonstrate that these documents were unavailable at trial. As such, the other admissibility criteria being met, they will only be admitted if the Appellant can show that they would have affected the verdict.

[1] Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-AR65.4, Decision on Prosecution Appeal of Decision on Provisional Release and Motions to Present Additional Evidence Pursuant to Rule 115, 26 June 2008, para. 6; Prosecutor v. Blagoje Simić, Case No. IT-95-9-A, Decision on Blagoje Simić’s Motion for Admission of Additional Evidence, Alternatively for Taking of Judicial Notice, 1 June 2006 (“Simić Rule 115 Decision”), para. 12; Prosecutor v. Radislav Krstić, Case No. IT-98-33-A, Decision on Applications for Admission of Additional Evidence on Appeal, 5 August 2003 (“Krstić Rule 115 Decision”), p. 3; Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Decision on Evidence, 31 October 2003, p. 2.

[2] Simić Rule 115 Decision, para. 12; Krstić Rule 115 Decision, p. 2; Kupreškić et al. Appeal Judgement, para. 50; Prosecutor v. Duško Tadić, Case No. IT-94-1-A, Decision on Appellant’s Motion for the Extension of the Time-Limit and Admission of Additional Evidence, 16 October 1998 (“Tadić Decision on Extension of Time Limit”), para. 47.

[3] Tadić Decision on Extension of Time Limit, para. 50. See also, 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 (“Nahimana et al. Decision”), para. 31.

[4] Simić Rule 115 Decision, para. 12; Krstić Rule 115 Decision, p. 2; Kupreškić et al. Appeal Judgement, para. 50; Tadić Decision on Extension of Time Limit, para. 47.

[5] Because the information contained in the statements concern events which all occurred during the trial, such information could have been put to the attention of the Trial Chamber at trial.

[6] Cf. Nahimana et al. Decision, para. 31: “[…] the interests of justice require that an appellant not be held responsible for the failures of counsel”.

[7] Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-T, Reasons for Oral Decision Denying Mr. Krajišnik’s Request to Proceed Unrepresented by Counsel, 18 August 2005, para. 2, referring to Momčilo Krajišnik, T.13399.

[8] Tadić Decision on Extension of Time Limit, para. 50.

[9] Tadić Decision on Extension of Time Limit, para. 50.

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Additional Evidence - 20.08.2008 KRAJIŠNIK Momčilo
(IT-00-39-A)

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

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

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
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.

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Appeal Judgement - 16.11.2001 MUSEMA Alfred
(ICTR-96-13-A)

185.   In Kupreškić, the Appeals Chamber of ICTY stated the role of the Appeals Chamber in cases where the factual findings of a Trial Chamber are likely to be reviewed in light of new evidence.  ICTY Appeals Chamber held in the above-mentioned case that:

“Where additional evidence has been admitted, the Appeals Chamber is then required to determine whether the additional evidence actually reveals an error of fact of such magnitude as to occasion a miscarriage of justice.”[1] 

“[…] miscarriage of justice may […] be occasioned where the evidence before a Trial Chamber  appears to be reliable but, in the light  of additional evidence presented upon appeal, is exposed as unreliable.  It is possible that the Trial Chamber may reach a conclusion of guilt based on the evidence presented at trial that is reasonable at the time […] but, in reality, is incorrect.”[2]

“[…] The test to be applied by the Appeals Chamber in deciding whether or not to uphold a conviction where additional evidence has been admitted before the Chamber is: has the appellant established that no reasonable tribunal of fact could have reached a conclusion of guilt based upon the evidence before the Trial Chamber together with the additional evidence admitted during the appellate proceedings.”[3]

186.   It is the Appeals Chamber’s view that such principles are also applicable before ICTR when the admission of new evidence entails a review of the Trial Chamber’s factual findings.  The Appeals Chamber finds this to be the case in this instance.

[1] Appeal Judgement, Prosecutor  v. Zoran Kupreškić  and others, Case No. IT-95-16-A, 23 October 2001, para. 72 (Kupreškić Appeal Judgement).

[2] Kupreškić Appeal Judgement, para. 44.

[3] Kupreškić Appeal Judgement; para. 75, see also para. 76.

Download full document
Notion(s) Filing Case
Decision on Clarification Regarding Karadžić's Testimony - 23.10.2008 KRAJIŠNIK Momčilo
(IT-00-39-A)

In its “Decision on Appellant Momčilo Krajišnik’s Motion to Call Radovan Karadžić Pursuant to Rule 115” of 16 October 2008 (“Decision”), the Appeals Chamber ordered Krajišnik to file a “summary of facts” upon which Radovan Karadžić would testify in order to give the Prosecution “an adequate opportunity to prepare for its cross-examination of Mr. Karadžić” during the evidentiary hearing.[1] It further considered that the expeditiousness of these proceedings would be advanced by a clarification of the meaning of the “summary of facts” referred to in the Decision an held as follows:

p. 2: CONSIDERING that, in order to provide the Prosecution with an adequate opportunity to prepare its cross-examination of Radovan Karadžić at the Evidentiary Hearing, while the Appellant is not required to set out in the summary of the facts each and every detail of Radovan Karadžić’s anticipated testimony, the summary must precisely indicate the specific factual findings in the abovementioned paragraphs of the Trial Judgement on which Radovan Karadžić is expected to testify, and the main content of his anticipated testimony in relation to these factual findings;

HEREBY GRANTS the request for clarification in the Motion; and

ORDERS the Appellant to include the following information in his summary of the facts on which Radovan Karadžić will testify during the Evidentiary Hearing:

1. The specific factual findings in paragraphs 176-182, 188-189, 893, 987, 994, 1001-1005, 1013, 1078-1119, 1121, and 1123-1124 of the Trial Judgement on which Radovan Karadžić is expected to testify; and

2. The main content of Radovan Karadžić’s anticipated testimony in relation to those factual findings, in particular indicating the new facts and additional evidence Radovan Karadžić is anticipated to give which could have an impact on the verdict.

 

[1] Decision, para. 21.

Download full document
Notion(s) Filing Case
Decision on Calling Karadžić to Testify on Appeal - 16.10.2008 KRAJIŠNIK Momčilo
(IT-00-39-A)

The Appeals Chamber recalled the applicable law in paragraphs 3-7 of its decision. With respect to the motion at stake, the Appeals Chamber found:

14. […] The Appeals Chamber has already recognised that Mr. Karadžić’s potential evidence was unavailable to the Appellant at trial.[1] Therefore, the Motion will succeed if the Appellant can show that Mr. Karadžić’s evidence is relevant, credible and could have had an impact on the verdict.

17. Second, the Appeals Chamber notes that the Prosecution does not specifically dispute that Mr. Karadžić potential evidence is credible. Furthermore, the Appeals Chamber will refuse to admit additional evidence that otherwise conforms to the criteria of Rule 115 of the Rules only if “it is devoid of any probative value”, without prejudice to a determination of the weight to be afforded to it.[2] For the purposes of the present decision, the Appeals Chamber is satisfied that the prima facie credibility requirement for admissibility of evidence under Rule 115 of the Rules is met.

Regarding the potential impact of Mr. Karadžić’s proposed evidence on the verdict, the Appeals Chamber noted that the Trial Chamber made extensive findings on his role in the present case, including in particular that (i) the Appellant contributed to a joint criminal enterprise (“JCE”) in which Mr. Karadžić was found to be a participant; (ii) the Appellant and Mr. Karadžić were “closest associate[s]”; (iii) the Appellant and Mr. Karadžić “ran Republika Srpska as a personal fief”; and (iv) Mr. Karadžić was “absolute number one” and the Appellant “was number two”. On this basis and in the context of the entirety of the evidence given at trial, the Appeals Chamber was satisfied that the proffered evidence, had it been heard by the Trial Chamber, could have had an impact on the said findings underlying the ultimate conclusion of guilt.

[1] Order on Motion to Interview Radovan Karadžić [Order on “Motion to Interview Radovan Karadžić with a View to Then Calling Him as a Witness Pursuant to Rule 115”, 20 August 2008], p. 3.

[2] Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Hassan Ngeze’s Motion for Leave to Present Additional Evidence of Potential Witness, 15 January 2007 (confidential), para. 6; Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Motions Relating to the Appellant Hassan Ngeze’s and the Prosecution’s Requests for Leave to Present Additional Evidence of Witnesses ABC1 and EB, 27 November 2006, para. 19.

[3] See references to the Trial Judgement [Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-T, Judgement, 27 September 2006], supra para. 16

[4] Trial Judgement, para. 1121.

[5] Trial Judgement, para. 893.

[6] Trial Judgement, para. 987.

[7] Trial Judgement, para. 1085.

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Calling Karadžić to Testify on Appeal - 16.10.2008 KRAJIŠNIK Momčilo
(IT-00-39-A)

The Appeals Chamber found that the Motion was filed in a timely manner because the cogent reasons requirement for filing the Motion later than authorised by Rule 115(A) of the Rules was fulfilled given that the potential evidence of Mr. Karadžić was unavailable to the Appellant until 20 August 2008, and he filed his Motion on 15 September 2008, which is within the time limit set out in the Order on Motion to Interview Radovan Karadžić. (para. 14 and fn. 42).

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Calling Karadžić to Testify on Appeal - 16.10.2008 KRAJIŠNIK Momčilo
(IT-00-39-A)

15. With respect to the Prosecution’s argument that the Motion should be dismissed on the ground that the Appellant has failed to file any statement or proof indicating the scope of Mr. Karadžić’s proposed evidence,[1] the Appeals Chamber recalls that in certain cases such material was found necessary to provide a basis on which the Appeals Chamber could evaluate whether additional evidence was admissible under Rule 115 of the Rules.[2] For reasons stated below, the Appeals Chamber considers that in the present case it can adjudicate the Motion without the written documentation referred to by the Prosecution.

The Appeals Chamber however authorised Krajišnik and his counsel on the matters of JCE to further meet with Radovan Karadžic in the United Nations Detention Unit.

[1] See supra, para. 11.

[2] Cf. Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Decision on the First and Third Rule 115 Defence Motions to Present Additional Evidence before the Appeals Chamber, 30 June 2005, para. 87. See also The Prosecutor v. Ideiphonse Hategekimana, Case No. ICTR-00-55B-R11bis, Decision on Request to Admit Additional Evidence, 2 October 2008, paras 7-8; The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-2002-78-R11bis, Decision on Request to Admit Additional Evidence of 18 July 2008, 1 September 2008, para. 9; Nahimana et al. v. The Prosecutor, Case No. IT-99-52-A, Decision on Appellant Jean-Bosco Barayagwiza’s Motion for Leave to Present Additional Evidence Pursuant to Rule 115, 5 May 2006, para. 20.

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Rule 115 Decision (Former Counsel) - 06.11.2008 KRAJIŠNIK Momčilo
(IT-00-39-A)

15. Because the Appellant filed his Motion on 15 October 2008, that is, after the Appeal Hearing on 21 August 2008, he must show cogent reasons for the delayed filing of the Motion.[1]

The tendered documents were communicated to Krajišnik to Amicus curiae together with other case-related material not on the trial record on 5 July 2007. In light of the volume of this material and the lack of any specification regarding its contents, the Appeals Chamber found that cogent reasons for the delayed filing existed (paras 16-17).

[1] Rule 115(A) of the Rules.

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Rule 115 Decision (Former Counsel) - 06.11.2008 KRAJIŠNIK Momčilo
(IT-00-39-A)

19. Turning to the alleged unavailability of Documents 1–6, the Appeals Chamber notes that Documents 1–3 were in the possession of former counsel Mr. Nicholas Stewart QC during trial. Moreover, they were either directly addressed to the Trial Chamber or put to its attention during trial. The Trial Chamber thus rendered its verdict in full awareness of their contents. The Appeals Chamber recalls that where the failure to have material admitted into evidence at trial resulted solely from counsel’s negligence or inadvertence, such material may be admissible on appeal if the Appellant can demonstrate that they are of such substantial importance to the success of the appeal that their exclusion would lead to a miscarriage of justice.[1]

See paras 20 et seq. for the case-specific analysis.

[1] See 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, para. 31, with further references.

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Rule 115 Decision (Former Counsel) - 06.11.2008 KRAJIŠNIK Momčilo
(IT-00-39-A)

25. As for the proposed testimony of former co-counsel Ms. Chrissa Loukas, the Appellant does not provide any material stemming from her personally relating to the issue of alleged ineffective assistance of former counsel Mr. Nicholas Stewart QC. Nor does the Appellant submit any other documentation from her on the basis of which the Appeals Chamber can determine the potential impact of her possible testimony on the verdict. Rather, the Appellant’s position appears to be that, since Ms. Chrissa Loukas is mentioned in Documents 1–3, she should be given an opportunity to testify on the issues therein.[1] In the Appeals Chamber’s view, this amounts to a fishing expedition and as such falls outside the ambit of Rule 115 of the Rules.[2] The Appellant’s request to call Ms. Chrissa Loukas under Rule 115 of the Rules is therefore dismissed.

26. […] However, these assertions do not clarify whether, and how, the admission of Mr. Alexander Zahar’s proposed testimony is in the interests of justice as being of substantial importance to the success of the appeal to the extent that its exclusion would lead to a miscarriage of justice. Indeed, the Appellant fails to provide any documentation stemming from Mr. Alexander Zahar himself on the basis of which the Appeals Chamber can determine his anticipated testimony’s potential impact on the verdict. The Appellant’s request to call Mr. Alexander Zahar as a witness under Rule 115 of the Rules is accordingly dismissed.

[1] See Motion, paras 8 and 38.

[2] See Order on “Motion to Interview Radovan Karadžić with a View to then Calling him as a Witness pursuant to Rule 115”, 20 August 2008, fn. 9.

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Subpoena Application - 01.07.2003 KRSTIĆ Radislav
(IT-98-33-A)

17.     Where […] an appellant seeks the issue of a subpoena to a prospective witness to be interviewed in anticipation of tendering that person’s evidence on appeal pursuant to Rule 115, the legitimate forensic purpose to be established must be slightly adapted.  An appellant must establish that there is a reasonable basis for his belief that there is a good chance that the prospective witness will be able to give information which will materially assist him in relation to clearly identified issues arising in his appeal against conviction, that the defence has been unable to obtain the cooperation of the witness, and that it is at least reasonably likely that an order would produce the degree of cooperation needed for the defence to interview the witness.  If those matters are established, then […] the appellant would be entitled to the orders which he seeks pursuant to Rule 54.

Download full document
ICTR Rule Rule 54;
Rule 115
ICTY Rule Rule 54;
Rule 115
Notion(s) Filing Case
Appeal Judgement - 23.10.2001 KUPREŠKIĆ et al.
(IT-95-16-A)

68. [….] The Appeals Chamber does, however, take this opportunity to clarify that, in its view, the more appropriate standard for the admission of additional evidence under Rule 115[1] on appeal is whether that evidence “could” have had an impact on the verdict, rather than whether it “would probably” have done so. 

69. The Appeals Chamber considers this change from the earlier Tadić formulation  [Prosecutor v Duško Tadić, Case No. IT-94-1-A, “Decision on Appellant’s Motion for the Extension of the Time-Limit and Admission of Additional Evidence”, 15 October 1998, para. 71] as more a matter of timing than substance.  The “would probably” standard is still basically appropriate for the ultimate determination of whether a miscarriage of justice has occurred requiring a reversal.  The Appeals Chamber emphasises too that, regardless of the standard used, it is a difficult task to determine whether the interests of justice require the admission of new evidence.  The Appeals Chamber, therefore, expects a party seeking to admit evidence to specify clearly the impact the additional evidence could have upon the Trial Chamber’s decision.  If it fails to do so, it runs the risk of the evidence being rejected without detailed consideration.

[1] AT THE TIME, RULE 115 PROVIDED:

(A) A party may apply by motion to present before the Appeals Chamber additional evidence which was not available to it at the trial. Such motion must be served on the other party and filed with the Registrar not less than fifteen days before the date of the hearing.

(B) The Appeals Chamber shall authorise the presentation of such evidence if it considers that the interests of justice so require.

RULE 155 WAS SUBSEQUENTLY AMENDED ON 12 JULY 2002, 30 SEPTEMBER 2002AND21 JULY 2005.

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Appeal Judgement - 23.10.2001 KUPREŠKIĆ et al.
(IT-95-16-A)

75. […] The test to be applied by the Appeals Chamber in deciding whether or not to uphold a conviction where additional evidence has been admitted before the Chamber is: has the appellant established that no reasonable tribunal of fact could have reached a conclusion of guilt based upon the evidence before the Trial Chamber together with the additional evidence admitted during the appellate proceedings.  In framing the test in this manner, the Appeals Chamber has been guided by Rule 117(A) which provides that “[t]he Appeals Chamber shall pronounce judgement on the basis of the record on appeal together with such additional evidence as has been presented to it”.

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Appeal Judgement - 23.10.2001 KUPREŠKIĆ et al.
(IT-95-16-A)

70. Where the Rule 115 evidence is accepted for consideration, the Appeals Chamber has, in effect, decided that the evidence is sufficiently important that, if it had been before the Trial Chamber at trial, the conclusion of guilt could have been different.  At that stage in the proceedings, the new evidence may not have been subjected to any form of adversarial scrutiny, save for the Appeals Chamber’s initial assessment as to whether it was, on its face, credible.  It may be that there is no dispute between the parties as to this issue.  But, in the more likely case that the opposing party challenges the veracity of the additional evidence, the Appeals Chamber is faced with a choice – either it can test the evidence itself to determine veracity, or order the case to be remitted to a Trial Chamber (either the Trial Chamber at first instance, or a differently constituted Trial Chamber) to hear the new evidence.  In the present case, the Prosecution wished to challenge the veracity of several pieces of additional evidence submitted by the Defendants[1] and the Appeals Chamber decided that the most appropriate course was to hold an evidentiary hearing.[2]  In another instance, it admitted two pieces of conflicting evidence without such a hearing, without prejudice to the determination of the weight to be attached thereto.[3]

71. Obviously, an Appeals Chamber may choose to delay its entire decision on the admissibility and weight of new evidence until the time of the main appeal and decide, at one stage, whether the new material will be admitted and whether it will reverse the conviction.  Such an approach has advantages since the Appeals Chamber will be making its decision on impact at the same time it considers all the other evidence in the case and after it has completed its study of the trial record.  The disadvantage to this procedure is that the parties, in making their main submissions on appeal, are not informed as to whether they can rely on the additional evidence or not.  In some cases, the final appeal hearing will be prolonged considerably.  The present Rule 115 does not require the admissibility of new evidence to be decided at any particular time.  Thus, the Appeals Chamber should choose whether it is most expeditious to postpone hearing the evidence until the time of the main appeal hearing, or to do it earlier, according to the complexity of the new material and of the trial record in the context of what will be assessed.  It should be noted that Rule 117 instructs the Chamber to pronounce judgement on the basis of the record on appeal along with any additional evidence it has received.  This suggests that, even if the decision to admit the evidence is made at the same time as the main appeal, a two-step process is nonetheless envisioned in which new evidence, once admitted, will then be assessed as to its effect upon the appeal as a whole.

[1] Prosecution’s Consolidated Response to the Motions by Zoran Kupreškić, Mirjan Kupreškić, Vlatko Kupreškić and Drago Josipovic to Admit Additional Evidence Pursuant to Rule 115 (Confidential), 20 Nov 2000, para. 5.4 (stating that “[i]n the event that, contrary to the Prosecution’s submission, any of the Motions are granted and the additional evidence admitted by the Appeals Chamber, the Prosecution expressly reserves its right to submit evidence in rebuttal and, if necessary, to request the right to cross-examine any witnesses from whom statements have been proffered”).

[2] The Evidentiary Hearing was held on 17, 18 and 25 May 2001.

[3] The statement of WitnessCA was admitted pursuant to the Rule 115 Decision of 26 February 2001.  The statement of Witness DD statement was admitted pursuant to the Decision on Prosecution Motion to Admit Additional Evidence in Rebuttal to Additional Evidence Admitted under Rule 115, 6 July 2001.

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Appeal Judgement - 28.02.2005 KVOČKA et al.
(IT-98-30/1-A)

426. The Appeals Chamber has granted in part a motion by Žigić to adduce additional evidence,[1] and has heard two additional witnesses and two rebuttal witnesses. In determining whether the additional evidence actually reveals an error of fact of such magnitude as to occasion a miscarriage of justice, the Appeals Chamber has set out the applicable test in the Kupreškić et al. Appeal Judgement:

The test to be applied by the Appeals Chamber in deciding whether or not to uphold a conviction where additional evidence has been admitted before the Chamber is: has the appellant established that no reasonable tribunal of fact could have reached a conclusion of guilt based upon the evidence before the Trial Chamber together with the additional evidence admitted during the appellate proceedings.[2]

In Blaskić, the Appeals Chamber cited and affirmed that test.  The Appeals Chamber noted that in the context of the Kupreškić case, the Appeals Chamber simply applied a deferential standard of review to the totality of the evidence admitted both at trial and on appeal, because the appellant had successfully established that no reasonable trier of fact could have reached a finding of guilt based on that evidence.[3]  However, as the Appeals Chamber in Blaškić further correctly noted, the Appeals Chamber in Kupreškić was not faced with the question of what test to apply where the outcome would be that in light of the trial evidence considered together with the additional evidence admitted on appeal, “a reasonable trier of fact could reach a conclusion of guilt beyond a reasonable doubt.”[4]  In that case, the Appeals Chamber in Blaškić concluded that “it should, in the interests of justice, be convinced itself, beyond reasonable doubt, as to the guilt of the accused, before confirming a conviction on appeal.”[5]  Consequently, the Appeals Chamber in Blaškić answered the question left open in Kupreškić, further developing the test first articulated therein. 

In reaching this conclusion, the Appeals Chamber in Blaškić underscored that such a standard of review is necessary in the interests of justice as well as for reasons of due process when considering a case before this International Tribunal because, if any lower standard were to be applied, “then the outcome would be that neither in the first instance, nor on appeal, would a conclusion of guilt based on the totality of the evidence relied upon in the case … be reached by either Chamber beyond reasonable doubt.”[6]    

The Appeals Chamber in Blaškić indicated, when summarizing the above test, the following two steps in a case where an error of fact is alleged and additional evidence proffered by the Defence is admitted: 

(i) The Appeals Chamber will first determine, on the basis of the trial record alone, whether no reasonable trier of fact could have reached the conclusion of guilt beyond reasonable doubt. If that is the case, then no further examination of the matter is necessary as a matter of law.[7]

(ii) If, however, the Appeals Chamber determines that a reasonable trier of fact could have reached a conclusion of guilt beyond reasonable doubt, then the Appeals Chamber will determine whether, in light of the trial evidence and additional evidence admitted on appeal, it is itself convinced beyond reasonable doubt as to the finding of guilt.[8]

427. It has of course to be borne in mind that, as the Appeals Chamber has noted several times, the task of hearing, assessing and weighing the evidence is left primarily to the Trial Chamber:

The reason that the Appeals Chamber will not lightly disturb findings of fact by a Trial Chamber is well known. The Trial Chamber has the advantage of observing witnesses in person and so is better positioned than the Appeals Chamber to assess the reliability and credibility of the evidence. Accordingly, it is primarily for the Trial Chamber to determine whether a witness is credible and to decide which witness’s testimony to prefer, without necessarily articulating every step of the reasoning in reaching a decision on these points.[9]

428. Therefore, the Appeals Chamber will uphold a conviction on the basis that a reasonable trier of fact could have arrived at a conviction on the evidence on the trial record in two cases:

(i) if there is no additional evidence admitted;

(ii) if additional evidence is admitted, but upon further review, is found to be not credible or irrelevant, so that it could not have been a decisive factor in reaching the decision at trial.[10]

See also Separate Opinion of Judge Weinberg de Roca and Separate Opinion of Judge Shahabuddeen.

[1] Decision on Appellants’ Motion to Admit Additional Evidence Pursuant to Rule 115, 16 February 2004.

[2] Kupreškić et al., Appeal Judgement, paras 75-76

[3] Blaškić Appeal Judgement, para. 22.  Cf. Musema Appeal Judgement, paras. 184-194.  In Musema, the Appeals Chamber applied that same deferential standard of review in quashing the accused’s conviction for rape because it found that on the basis of the totality of the evidence, a trier of fact would have reasonable doubt as to the accused’s guilt.      

[4] Blaškić Appeal Judgement, para. 23.

[5] Ibid.

[6] Ibid.

[7] The Appeals Chamber notes that this is a summary of the test developed in para. 23 of the Blaškić Appeal Judgement and must therefore be read taking into consideration the entire context of the decision with regard to this holding.  In light of the affirmation of the test first articulated in the Kupreškić Appeal Judgement and the reasoning found in paras 22-23 of the Blaškić Appeal Judgement, the Appeals Chamber considers that the Appeals Chamber in Blaškić obviously considered that if such a determination is also reached on the basis of the trial record taken together with the evidence admitted on appeal, then no further examination of the matter is needed.  

[8] Blaškić Appeal Judgement, para. 24(c). 

[9] Kupreškić et al. Appeal Judgement, para. 32 (footnote omitted). This was confirmed by Blaškić Appeal Judgement, para. 17.

[10] See e.g. Kupreškić et al. Appeal Judgement, paras 338-348.  In Kupreškić, the Appeals Chamber considered the testimony of Witness AT, admitted as additional evidence under Rule 115, as it pertained to Drago Josipović’s appeal.  The Appeals Chamber concluded that because Witness AT could not bring himself to tell the truth about his own involvement in the Ahmići attack and because Witness AT’s wife was a close relative of Josipović, Witness AT’s evidence was “so unreliable” as to Josipović’s appeal that it was incapable of making his conviction for participation in the attack on Ahmići unsafe.  Thus, the Appeals Chamber in Kupreškić did not need to take into consideration this additional evidence together with the evidence before the Trial Chamber and simply reviewed the safety of Josipović’s conviction on the basis of whether a reasonable trier of fact could have convicted him on the basis of the trial record alone.  It is true that the Appeals Chamber in Kupreškić then proceeded to assess Witness AT’s testimony together with the trial record as if it theoretically was reliable evidence and concluded that, even then, it would not challenge the safety of Josipović’s conviction.  However, the Appeals Chamber considers that this latter analysis was pure dicta given that Witness AT’s evidence had already been rejected as “so unreliable” by the Appeals Chamber in Kupreškić that it did not need to be considered any further with regard to reviewing Josipović’s conviction.  See also Rutaganda Appeal Judgement, paras.  473-489, wherein the Appeals Chamber found that the additional evidence admitted in support of the accused’s alibi was insufficiently probative for challenging the accused’s conviction because the evidence so lacked credibility.  The Appeals Chamber came to this conclusion because the evidence consisted of a personal opinion that was formulated upon underlying information that appeared to have no relevance for establishing that alibi.          

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Additional Evidence - 29.04.2010 ŠAINOVIĆ et al.
(IT-05-87-A)

44. […] The Appeals Chamber therefore finds that document 6DA23 is not relevant for the purposes of Rule 115 of the Rules. Considering that the requirements of Rule 115 of the Rules are cumulative, the Appeals Chamber will not consider the other requirements of that Rule. […]

[1] Motion [General Vladimir Lazarević’s Motion to Admit Additional Evidence Pursuant to Rule 115 with Annexes A, B, C, D, E, F”, 16 November 2009], paras 5, 8, 15.

[2] Ibid., para. 7.

[3] The jurisprudence relied upon by Lazarević refers to Rule 115 (B) prior to its amendment in July 2002 (Motion, paras 5, 8, referring to 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 (confidential), 11 April 2001, para 6; Prosecutor v. Zoran Kupreškić et al., IT-95-16-A, Appeal Judgement, 23 October 2001, paras 75-76). Prior to its amendment, Rule 115 (B) provided the following with respect to the admissibility of evidence that was unavailable at trial: “The Appeals Chamber shall authorize the presentation of such evidence if it considers that the interests of justice so require”. Following the amendment in 2002, the provision reads: “If the Appeals Chamber finds that the additional evidence was not available at trial and is relevant and credible, it will determine if it could have been a decisive factor in reaching the decision at trial”. Therefore, the “interests of justice” is no longer the applicable standard for admissibility of additional evidence on appeal (cf. Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Decision on the Fourth Defence Motion to Present Additional Evidence Before the Appeals Chamber (confidential), 29 August 2005, para. 19).

[4] See supra, paras 5-12.

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
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.

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
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.

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Additional Evidence - 29.04.2010 ŠAINOVIĆ et al.
(IT-05-87-A)

41. With regard to the issue of whether document 6DA22 could have affected the verdict, the Appeals Chamber recalls that Lukić bears the burden of not only identifying with precision specific finding(s) of fact made by the Trial Chamber to which the additional evidence pertains, but also of specifying with sufficient clarity the impact the additional evidence could or would have had upon the Trial Chamber’s verdict.[1] While the Appeals Chamber is satisfied that Lukić has identified the findings of fact to which the additional evidence pertains, […] he fails to elaborate with sufficient clarity on the impact the proffered material could have had on the verdict had it been admitted at trial. […]

[1] See supra para. 10. 

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

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

Download full document
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 )

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. 

Download full document
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 )

18. [...] In Jelisi}, it was held that the Appeals Chamber “maintains an inherent power to admit such evidence even if it was available at trial, in cases in which its exclusion would lead to a miscarriage of justice.”[1] It must be emphasised that only in wholly exceptional situations will the Appeals Chamber resort to such a course of action.

[1] Prosecutor v Jelisi}, Decision on Request to Admit Additional Evidence, 15 November 2000, p. 3.

Download full document
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.

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

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

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Additional Evidence Following Hearing - 11.04.2001 KUPREŠKIĆ et al.
(IT-95-16-A)

6. [...] The admission of evidence is in the “interests of justice” if it is relevant to a material issue, if it is credible and it is such that it would probably show that the conviction or sentence was unsafe. The Appeals Chamber has interpreted this latter criterion to mean that had the Trial Chamber had such evidence before it, it probably would have come to a different result. This is the standard we have applied in our earlier decisions and which we will apply in this case.[1]

8. The Appeals Chamber further notes that Rule 115(B)’s insistence that admission of new material be “in the interests of justice” is one that the Appeals Chamber should apply at a relatively early stage of the Appeal, that is before all the briefs have been received and argument taken place. That means in practical terms that the Appeals Chamber must give its best judgement as to the importance of the new material in light of its familiarity with the trial record at that time. This means that even after a finding that the material has satisfied the requirements of Rule 115(B) the Chamber on further consideration and in the light of briefs and arguments may decide that indeed it is not so important that it would have changed the result and requires the overturning of the verdict or the alteration of a sentence. This of course is why the word “probably” is used in defining the test of Rule 115(B). This cautionary note is included because in argument it seemed to the Appeals Chamber that some counsel assumed that because we had already stated that the new material met the “interests of justice” test, it would ensure a reversal of the verdict, if admitted. That is not true. New material will be considered alongside the material already in the trial record to see if the Trial Chamber’s judgement is sustainable by the newly enlarged record on appeal and the usual deference will be given to a Trial Chamber’s findings of fact insofar as they were based on the material before the court at the time. The job of the Appeals Chamber is thus to decide in a simulation of sorts: given the findings of the trial court made on the evidence before it (and assuming that they pass muster for if they do not the case must be reversed or sent back in any case, regardless of the new evidence) would the Trial Chamber have probably come to a different conclusion if this new evidence had been before it.

[1] Other cases have however discussed admission into the appeals record of new material by other means. Those rulings are not in any way viewed as in any way diminishing the primary authority of Rule 115 as governing additional material relative to issues litigated at trial In ^elebi}i evidence was held admissible under the residual authority of Rule 89(C) of the Rules which allows a Chamber ultimately to consider  any evidence it finds relative and probative. That case however dealt with the quite different situation of material offered to show extrinsic circumstances which may have affected the outcome of the trial, i.e. the conduct or bias of a judge, which were matters other than the issues litigated in the Trial Chamber.

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Additional Evidence Following Hearing - 11.04.2001 KUPREŠKIĆ et al.
(IT-95-16-A)

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

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

 

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Additional Evidence - 06.07.2011 LUKIĆ & LUKIĆ
(IT-98-32/1-A)

NOTING that Exhibit 1D39 was “inadvertently” admitted into evidence at trial in Bosnian/Serbian/Croatian (“B/C/S”) only[1] and that the English translation of this exhibit does not currently form part of the trial record;

CONSIDERING that since the B/C/S version of Exhibit 1D39 is already part of the trial record, the English translation of the exhibit does not constitute “new” or “additional” evidence pursuant to Rule 115 of the Rules;

NOTING that, if necessary for deciding the merits of Lukić’s appeal, the Appeals Chamber may at a later stage request, proprio motu, the Registry to provide a complete translation of Exhibit 1D39 into the working languages of the Tribunal;[2]

[1] Trial Judgement [Prosecutor v. Milan Lukić and Sredoje Lukić, Case No. IT-98-32/1-T, Judgement, 20 July 2009], para. 570.

[2] Cf. Prosecutor v. Pavle Strugar, Case No. IT-01-42-A, Order for Translation, 3 October 2007, p. 2, referring to Aloys Simba v. The Prosecutor, Case No. ICTR-01-76-A, Order for Translation, 3 July 2007, p. 2.

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Conflict of Interest (Markač) - 04.05.2007 GOTOVINA et al.
(IT-06-90-AR73.1)

12. […] The Appeals Chamber notes that most of the Annexes, that is, except Annexes 2 and 3 in the addendum, are being introduced for the first time on appeal. In order for the said information to become part of the record, they have to be admitted as additional evidence pursuant to Rule 115 of the Rules.[1] Because the Appellant has failed to move for their admission pursuant to Rule 115, they will not be considered by the Appeals Chamber.

[1] Prosecutor v. Radovan Stanković, Case No. IT-96-23/2-AR11bis.1, Decision on Rule 11bis Referral, 1 September 2005, para. 37.

Download full document
Notion(s) Filing Case
Decision on Additional Evidence Regarding Provisional Release - 11.11.2004 STANIŠIĆ & SIMATOVIĆ
(IT-03-69-AR65.1, IT-03-69-AR65.2 )

4. While the Prosecution relies upon the authority of Šainović and Ojdanić as supporting its procedural right to bring a Rule 115 application, the observation made by the Appeals Chamber in that decision is not a clear statement that Rule 115 applies to interlocutory appeals made pursuant to Rule 65. However, the Appeals Chamber notes that past practice in previous decisions by the Appeals Chamber clearly indicates that Rule 115[1] is to be applied to interlocutory appeals made pursuant to Rule 65[2]. In each of those decisions, the Appeals Chamber proceeded on the basis that additional evidence could be admissible upon an appeal pursuant to Rule 65.[3]

5. A plain reading of the Rule suggests that the mechanism of additional evidence on appeal is only available on an appeal from judgment and is not applicable to interlocutory appeals. Rule 115(A), which specifies the time limits in which to file a Rule 115 application speaks of “the date of the judgment,” [NOTE: THE WORDS “THE DATE OF JUDGEMENT” DO NOT APPEAR IN RULE 115(A) OF THE ICTY RULES, AS AMENDED ON 21 JULY 2005.] and Rule 115(B), which specifies the test to be applied for that additional evidence to be admissible, speaks of the Appeals Chamber considering that evidence in order to arrive at a “final judgment”.

6. Further, Rule 107, which provides that:

The rules of procedure and evidence that govern proceedings in the Trial Chamber shall apply mutatis mutandis to proceedings in the Appeals Chamber.

is of no assistance here as the Prosecution is not seeking to apply a rule that applies to proceedings in a Trial Chamber to an appellate proceeding, but to apply an appellate proceeding applicable to appeals from judgment to an interlocutory appeal.

7. While the Rule does not on its face appear to be applicable to Rule 65 interlocutory appeals, the Appeals Chamber has, as noted above, considered it to be applicable in previous decisions. The Appeals Chamber finds that justification for this practice is to be found in the appellate function in reviewing Trial Chamber decisions for error. Where the Appeals Chamber does find an error in a Trial Chamber decision, and where it is sufficiently apprised of the issues in the case, the Appeals Chamber is free to substitute its own decision rather than sending it back to the Trial Chamber for reconsideration.[4] Where the Appeals Chamber adopts this approach to an error of the Trial Chamber, it is appropriate for the Appeals Chamber to receive evidence that was not available before the Trial Chamber.

[1] Rule 115, Additional Evidence provides:

(A) A party may apply by motion to present additional evidence before the Appeals Chamber. Such motion shall clearly indicate with precision the specific finding of fact made by the Trial Chamber to which the additional evidence is directed, and must be served on the other party and filed with the Registrar not later than seventy-five days from the date of the judgment, unless good cause is shown for further delay. Rebuttal material may be presented by any party affected by the motion. [NOTE: RULE 115(A) WAS AMENDED ON 21 JULY 2005.]

(B) If the Appeals Chamber finds that the additional evidence was not available at trial and is relevant and credible, it will determine if it could have been a decisive factor in reaching the decision at trial. If it could have been such a factor, the Appeals Chamber will consider the additional evidence and any rebuttal material along with that already on the record to arrive at a final judgement in accordance with Rule 117.

[2] Prosecutor v Nikola Šainović & Dragoljub Ojdanić, Case No: IT-99-37-AR65, Decision on Motion for Modification of Decision on Provisional Release And Motion to Admit Additional Evidence, 12 December 2002; Prosecutor v Vidoje Blagojević et al, Decision on Motion to Present Additional Evidence, 28 May 2002.

[3] Ibid.

[4] Prosecutor v Milošević, Case No: IT-99-37-AR73, IT-01-51-AR73 and IT-01-51 AR73, Reasons for Decision on Prosecution Interlocutory Appeals from Refusal to Order Joinder, 18 April 2002; Prosecutor v Blaškić, Case No:IT-95-14-AR73, Decision on Appellant’s Motions for the Production of Material, Suspension or Extension on the Briefing Schedule and Additional Filings, 26 September 2000; Prosecutor v Tadić, Case No: IT-94-1-AR73, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995.

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Additional Evidence Regarding Provisional Release - 11.11.2004 STANIŠIĆ & SIMATOVIĆ
(IT-03-69-AR65.1, IT-03-69-AR65.2 )

8. For additional evidence to be admissible on appeal pursuant to Rule 115 the moving party must establish that the evidence was unavailable at trial and could not have been discovered by the exercise of due diligence, that it is relevant to a material issue and credible, and that it could have had an impact on the verdict. If the moving party cannot establish that the evidence was unavailable at trial, the Appeals Chamber may still admit the evidence if the moving party shows that its exclusion would lead to a miscarriage of justice, in that, if it had been available at trial it would have affected the verdict.[1]

[1] Prosecutor v Krsti}, Case No: IT-98-33-A, Decision on Applications for Admission of Additional Evidence on Appeal, 5 August 2003; Prosecutor v Kupre{ki}, et al, Case No: IT-95- 16-A, Appeal Judgement, 23 October 2001.

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Rule 115 Decision (Former Counsel) - 06.11.2008 KRAJIŠNIK Momčilo
(IT-00-39-A)

The Appeals Chamber recalled the criteria applicable to the admission of additional evidence on appeal (paras 3-7).

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
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.

Download full document
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. 

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
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.

Download full document
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)

30.     Review proceedings under Article 26 of the Statute and Rule 119 are different from appellate proceedings under Article 25 and Rule 115. Where an applicant seeks to present a new fact which becomes known only after trial, despite the exercise of due diligence during the trial in discovering it, Rule 119 is the governing provision. In such a case, the Appellant is not seeking to admit additional evidence of a fact that was considered at trial, but rather a new fact. The proper venue for a review application is the Chamber that rendered the final judgement; it is to that Chamber that the motion for review should be made. In this case, it is for the Trial Chamber to review the Judgement and determine whether the new fact, if proved, could have been a decisive factor in reaching a decision.

[…]

32.     The Appeals Chamber will, however, observe that a distinction exists between a fact and evidence of that fact. The mere subsequent discovery of evidence of a fact which was known at trial is not itself a new fact within the meaning of Rule 119 of the Rules. […]

See also paras 36, 42.

Download full document
ICTR Statute Article 24;
Article 25
ICTY Statute Article 25;
Article 26
ICTR Rule Rule 115;
Rule 120
ICTY Rule Rule 115;
Rule 119
Notion(s) Filing Case
Decision on Additional Evidence - 16.10.1998 TADIĆ Duško
(IT-94-1-A)

34.     To be admissible under Rule 115 the material must meet two requirements: first, it must be shown that the material was not available at the trial and, second, if it was not available at trial, it must be shown that its admission is required by the interests of justice.

35.     The first issue, the “availability” of the material, turns on the question whether due diligence is required. This is addressed in the following section of this Decision. As to the second requirement, it is clear from the structure of Rule 115 that “the interests of justice” do not empower the Appeals Chamber to authorise the presentation of additional evidence if it was available to the moving party at the trial. Such an interpretation is supported by the principle of finality. Naturally, the principle of finality must be balanced against the need to avoid a miscarriage of justice; when there could be a miscarriage, the principle of finality will not operate to prevent the admission of additional evidence that was not available at trial, if that evidence would assist in the determination of guilt or innocence. It is obvious, however, that, if evidence is admitted on appeal even though it was available at trial, the principle of finality would lose much of the value which it has in any sensible system of administering justice. It is only to the extent that the Appeals Chamber is satisfied that the additional evidence in question was not available at trial that it will be necessary to consider whether the admission of the evidence is required by the interests of justice.

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

Download full document
ICTR Statute Article 24 ICTY Statute Article 25 ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Additional Evidence - 16.10.1998 TADIĆ Duško
(IT-94-1-A)

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

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

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

[…]

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

[…]

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

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

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

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

[…]

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

[…]

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

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

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

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

[…]

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

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

Download full document
ICTR Statute Article 24 ICTY Statute Article 25 ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Additional Evidence - 16.10.1998 TADIĆ Duško
(IT-94-1-A)

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).

Download full document
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)

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]

Download full document
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)

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.

Download full document
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)

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 - 16.10.1998 TADIĆ Duško
(IT-94-1-A)

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

[…]

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

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

Download full document
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]

Download full document
ICTR Statute Article 24 ICTY Statute Article 25 ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Additional Evidence - 25.02.2013 MUNYAGISHARI Bernard
(ICTR-05-89-AR11bis)

5. Rule 115 of the Rules provides for the admission of additional evidence on appeal where a party is in possession of material that was not before the trial chamber and which represents additional evidence of a fact or issue litigated at trial.[1] The Appeals Chamber considers that Rule 115 of the Rules is equally applicable to appeals from referral decisions under Rule 11 bis of the Rules.[2] […]

[1] See, e.g., Augustin Ndindiliyimana et al. v. The Prosecutor, Case No. ICTR-00-56-A, Decision on Augustin Bizimungu's Rule 92Bis Motion and on His Rule 115 Motion for Admission of Additional Evidence, 11 June 2012 ("Ndindiliyimana et al. Decision"), para. 8; Théoneste Bagosora et al. v. The Prosecutor, Case No. ICTR-98-41-A, Decision on Anatole Nsengiyumva's Motions for the Admission of Additional Evidence, 21 March 2011 ("Bagosora et al. Decision of 21 March 2011"), para. 5; The Prosecutor v. Ildephonse Hategekimana, Case No. ICTR-00-55B-R11bis, Decision on Request to Admit Additional Evidence, signed on 2 October 2008, filed on 3 October 2008 (“Hategekimana Decision"), para. 5.

[2] See Prosecutor v. Željko Mejakić et al., Case No. IT-02-65-AR11bis.1, Decision on Joint Defense Motion to Admit Additional Evidence Before the Appeals Chamber Pursuant to Rule 115, 16 November 2005, para. 6, in which it was held that additional evidence may be admitted pursuant to Rule 115 of the Rules of Procedure and Evidence of the International Criminal Tribunal for the former Yugoslavia in the course of Rule 11 bis appeal proceedings. See also Hategekimana Decision.

Download full document
ICTR Rule Rule 11 bis;
Rule 115
ICTY Rule Rule 11 bis;
Rule 115
Notion(s) Filing Case
Decision on Additional Evidence - 08.04.2004 NTAKIRUTIMANA and NTAKIRUTIMANA
(ICTR-96-10-A and ICTR-96-17-A )

5.       For evidence to be admitted pursuant to Rule 115(B), the Appellant must establish that (i) the evidence was not available at trial in any form and could not have been discovered though the exercise of due diligence, and (ii) that the evidence is relevant to a material issue, credible, and such that it could have had an impact on the verdict, i.e. could have shown that the conviction was unsafe.[1] Where the evidence was available at trial or could have been discovered through the exercise of due diligence, the moving party must show also that exclusion of the additional evidence would lead to a miscarriage of justice. The additional evidence must be considered in the context of the evidence which was given at the trial and not in isolation.

[ICTR Rule 115 was amended after this decision was issued.]

[1] Prosecutor v. Krstić, “Decision on Applications for Admission of Additional Evidence on Appeal”, Case No. IT-98-33-A, 5 August 2003, pp. 3-4. 

Download full document
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 Additional Evidence - 22.09.2016 UWINKINDI Jean
(MICT-12-25-AR14.1)

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

[…]

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

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

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

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115 MICT Rule Rule 142
Notion(s) Filing Case
Decision on Additional Evidence - 22.09.2016 UWINKINDI Jean
(MICT-12-25-AR14.1)

72.     The Appeals Chamber reiterates that the purpose of Rule 142 of the Rules is to address instances 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] As repeatedly held by the ad hoc Tribunals, a party seeking the admission of additional evidence on appeal must provide the Appeals Chamber with the evidence sought to be admitted to allow it to determine whether the evidence meets the requirements of relevance and credibility.[2]

[…]

76.     The Appeals Chamber has the authority to summon a witness, in appropriate circumstances, to testify before the Chamber so as to facilitate the effective conduct of appeal proceedings.[3] However, Rule 142 of the Rules does not permit a party to merely request a particular person to be summoned as a witness to give evidence at the appellate stage.[4] Where a party seeks to call a witness at the appellate stage, it needs to provide a statement or other documentation of the potential witness’s proposed evidence, which the Appeals Chamber may admit as additional evidence pursuant to Rule 142 of the Rules and on the basis of which it may determine whether calling the witness to testify on appeal is necessary.[5]

[1] See, e.g., Théoneste Bagosora et al. v. The Prosecutor, Case No. ICTR-98-41-A, Decision on Théoneste Bagosora’s Motion for Admission of Additional Evidence, 7 February 2011 (“Bagosora et al. Decision of 7 February 2011”), para. 8; Renzaho Decision of 27 September 2010, para. 3; Emmanuel Rukundo v. The Prosecutor, Case No. ICTR‑01‑70-A, Decision on Rukundo’s Motion for the Admission of Additional Evidence on Appeal, 4 June 2010, para. 5; The Prosecutor v. Ildephonse Hategekimana, Case No. ICTR-00-55B-R11bis, Decision on Request to Admit Additional Evidence, 2 October 2008 (“Hategekimana Decision of 2 October 2008”), para. 5; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Appellant Jean-Bosco Barayagwiza’s Motion for Leave to Present Additional Evidence Pursuant to Rule 115, 5 May 2006 (“Nahimana et al. Decision of 5 May 2006”), para. 20; 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.

[2] See, e.g., Bagosora et al. Decision of 7 February 2011, para. 8; 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. 18; Prosecutor v. Mile Mrkšić and Veselin Šljivančanin, Case No. IT-95-13/1-A, Decision on Mile Mrkšić’s Second Rule 115 Motion, 13 February 2009, para. 13; Hategekimana Decision of 2 October 2008, paras. 7, 8. See also Practice Direction on Requirements and Procedures for Appeals, MICT/10, 6 August 2013, para. 12(e), providing that a party applying to present additional evidence pursuant to Rule 142 of the Rules shall do so by way of a motion filed containing “an appendix with copies of the evidence the party is applying to present before the Appeals Chamber”.

[3] See, e.g., Bagosora et al. Decision of 7 February 2011, para. 8; Nahimana et al. Decision of 5 May 2006, para. 20. Kupreškić et al. Decision of 8 May 2001, para. 5.

[4] See, e.g., Bagosora et al. Decision of 7 February 2011, para. 8; Nahimana et al. Decision of 5 May 2006, para. 20; Kupreškić et al. Decision of 8 May 2001, paras. 5, 10.

[5] See, e.g., Bagosora et al. Decision of 7 February 2011, paras. 8, 9; Nahimana et al. Decision of 5 May 2006, para. 20. Cf. Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Decision on the First and Third Rule 115 Defence Motions to Present Additional Evidence before the Appeals Chamber, 30 June 2005 (“Galić Decision of 30 June 2005”), para. 87; Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-A, Decision on the Request for Presentation of Additional Evidence, 18 November 2003, para. 13. 

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115 MICT Rule Rule 142
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.

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Additional Evidence - 21.07.2005 BLAGOJEVIĆ & JOKIĆ
(IT-02-60-A)

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

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115