False testimony

Notion(s) Filing Case
Appeal Judgement - 27.11.2007 SIMBA Aloys
(ICTR-01-76-A)

31. Turning to the Appellant’s contention in relation to Witness YH,[1] the Appeals Chamber recalls that the Prosecutor has independent authority to initiate investigations on statutory crimes and to assess whether the information forms a sufficient basis to proceed against persons suspected of having committed such crimes.[2] However, Rule 91(B)(i) of the Rules specifically provides that “[i]f a Chamber has strong grounds for believing that a witness has knowingly and wilfully given false testimony, it may direct the Prosecutor to investigate the matter with a view to the preparation and submission of an indictment for false testimony”. Such action lies within the discretion of the Trial Chamber and is contingent on its conviction that a witness “has knowingly and wilfully given false testimony”.[3] On the other hand, a credibility determination may be based, but does not necessarily depend, on a judicial finding that a witness has given false testimony.[4]

32. The Appeals Chamber stresses that the mere existence of discrepancies between a witness’s testimony and his earlier statements does not constitute strong grounds for believing that a witness may have knowingly and wilfully given false testimony.[5] […]

33. In any event, the Appeals Chamber is only required to grant relief for a violation of the Rules where a party has objected in a timely manner and has suffered material prejudice.[6] The Appellant clearly fails to show how the Oral Decision of 23 September 2004 has prejudiced him. The Appeals Chamber recalls that an investigation for false testimony is only ancillary to proceedings and does not necessarily affect the rights of an accused.

[1] Simba Notice of Appeal, III-3 and III-6.

[2] See Articles 15(2) and 17(1) of the Statute.

[3] The Appeals Chamber finds the following statement persuasive: “[F]alse testimony is a deliberate offence which requires wilful intent on the part of the perpetrator to mislead the Judge and thus to cause harm” (Rutaganda Trial Judgement, para. 20).

[4] The Prosecutor v. Georges Anderson Nderumwe Rutaganda, Case No. ICTR 96-3-A, Decision on Appeals Against the Decisions by Trial Chamber I Rejecting the Defence Motions to Direct the Prosecutor to Investigate the Matter of False Testimony by Witnesses “E” and “CC”, 8 June 1998 (“Rutaganda Decision Rejecting the Defence Motions to Direct the Prosecutor to Investigate the Matter of False Testimony by Witnesses “E” and “CC” of 8 June 1998”), para. 28.

[5] Rutaganda Trial Judgement, para. 20.

[6] Gacumbitsi Appeal Judgement, para. 11, fn. 24, referring to Rule 5 of the Rules.

[7] See The Prosecutor v. Georges Anderson Nderumwe Rutaganda, Case No. ICTR 96-3-A, Decision on Appeals Against the Decisions by Trial Chamber I Rejecting the Defence Motions to Direct the Prosecutor to Investigate the Matter of False Testimony by Witnesses “E” and “CC”, 8 June 1998, para. 28.

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Notion(s) Filing Case
Decision Regarding False Testimony - 02.03.2016 NTAKIRUTIMANA and NTAKIRUTIMANA
(MICT-12-17)

9.       Rule 108(B) of the Rules provides:

If a Chamber or Single Judge has strong grounds for believing that a witness has knowingly and wilfully given false testimony, it shall refer the matter to the President who shall designate a Single Judge who may:

(i) direct the Prosecutor to investigate the matter with a view to the preparation and submission of an indictment for false testimony; or    

(ii) where the Prosecutor, in the view of the Single Judge, has a conflict of interest with respect to the relevant conduct, direct the Registrar to appoint an amicus curiae to investigate the matter and report back to the Single Judge as to whether there are sufficient grounds for instigating proceedings for false testimony.

10.     What constitutes “strong grounds” represents a heightened threshold for initiating investigations into allegations of false testimony,[1] and has been distinguished from the “sufficient grounds” standard applied to initiating the prosecution of an individual for false testimony or contempt.[2] […]

11.     A party seeking to institute proceedings for false testimony bears “the onus to prove the alleged falsehood”.[3] Despite having been instructed to provide references to transcripts from the Ntakirutimana case that, in his view, amounted to false testimony,[4] Ntakirutimana does not specify which portions of Witness HH’s testimony he alleges are false. This omission weighs against establishing that strong grounds exist for believing that Witness HH knowingly and wilfully gave false testimony before the ICTR.

See also paragraph 17 and footnote 57.

[1] See The Prosecutor v. Eliézer Niyitegeka, Case No. MICT-12-16, Decision on Request to Initiate Proceedings against Witness GGH in Niyitegeka for Giving False Testimony under Solemn Declaration and for Interfering with the Administration of Justice, 26 February 2014 (“Niyitegeka Decision of 26 February 2014”), para. 10; The Prosecutor v. Eliézer Niyitegeka, Case No. MICT-12-16, Decision on Request to Initiate Proceedings against Witness KJ in Niyitegeka for Giving False Testimony under Solemn Declaration and for Interfering with the Administration of Justice, 28 January 2014 (“Niyitegeka Decision of 28 January 2014”), para. 17.

[2] See The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR.91, Decision on “Joseph Nzirorera’s Appeal from Refusal to Investigate [a] Prosecution Witness for False Testimony” and on Motion for Oral Arguments, 22 January 2009 (“Karemera et al. Decision of 22 January 2009”), paras. 17-20.

[3] Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-A, Judgement, 9 July 2004, para. 253.

[4] See Order of 13 October 2015 [Prosecutor v. Elizaphan and Gérard Ntakirutimana, Case No. MICT-12-17, Order for Submissions, 13 October 2015 (confidential)], para. 10; Order of 12 November 2014 [Prosecutor v. Elizaphan and Gérard Ntakirutimana, Case No. MICT-12-17, Order for Submissions in Relation to the Motion to Appoint an Amicus Curiae to Investigate the Apparent Recantation of a Witness Testifying before the ICTR Pursuant to Rule 108(B), 12 November 2014 (confidential)], paras. 12, 13.

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Notion(s) Filing Case
Decision Regarding False Testimony - 02.03.2016 NTAKIRUTIMANA and NTAKIRUTIMANA
(MICT-12-17)

10.     […] False testimony has been defined by the Appeals Chamber of the ICTR as “a deliberate offence which requires wilful intent on the part of the perpetrator to mislead the Judge and thus to cause harm”.[1]

[1] Aloys Simba v. The Prosecutor, Case No. ICTR-01-76-A, Judgement, 27 November 2007, n. 68. The elements of false testimony have also been defined by trial chambers of the ICTR and the International Criminal Tribunal for the former Yugoslavia (“ICTY”) as: (i) the witness must make a solemn declaration; (ii) a false statement must be contrary to the solemn declaration; (iii) the witness must believe at the time that it was false; and (iv) there must be a relationship between the statement and a material matter within the case. See, e.g., The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Decision on Defence Motion for Investigation of Prosecution Witness Ahmed Mbonyunkiza for False Testimony, 29 December 2006, para. 6; Prosecutor v. Mile Mrkšić et al., Case No. IT-95-13/1-T, Decision on Reconsideration of the Decision on Protective Measures for Witness P024 and Initiation of the Proceedings pursuant to Rule 91, 13 July 2006 (confidential), para. 3.

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MICT Rule Rule 108(B)
Notion(s) Filing Case
Appeal Judgement - 18.03.2010 BIKINDI Simon
(ICTR-01-72-A)

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

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

[1] Simba Appeal Judgement, para. 31.

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

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

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Decision on False Testimony - 16.02.2010 KAREMERA et al.
(ICTR-98-44-AR91.2)

19. With respect to the fact that the Amicus Report[1] did not establish when Witness BTH gave false testimony or which portions of his evidence were false, and the Trial Chamber’s finding that as a result any indictment would necessarily be insufficiently precise, the Appeals Chamber finds that the Trial Chamber applied the incorrect legal test. The legal test is whether there are “sufficient grounds to proceed against a person for giving false testimony”.[2] The ICTY Appeals Chamber in the Šešelj case held that “the ‘sufficient grounds’ standard under Rule 77(D) of the ICTY Rules only requires the Trial Chamber to establish whether the evidence before it gives rise to a prima facie case of contempt of the Tribunal and not to make a final finding on whether contempt has been committed”.[3] While the Šešelj Decision concerned the initiation of contempt proceedings under Rule 77 of the ICTY Rules rather than proceedings for false testimony under Rule 91 of the Rules, the Appeals Chamber observes that the language in the two rules is identical with respect to the initiation of proceedings.[4] It therefore considers that since the “sufficient grounds” requirement, as prescribed in Rule 77 of the ICTY Rules, is satisfied where the evidence establishes a prima facie case, the “sufficient grounds” requirement of Rule 91(C) of the Rules is also satisfied by the existence of evidence which establishes a prima facie case. Accordingly, the Appeals Chamber finds that the Trial Chamber erred in basing its decision upon the fact that the Amicus Report did not determine when Witness BTH gave false testimony or which portions of his evidence were false because this does not necessarily preclude the existence of a prima facie case of false testimony.

[1] [The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Final Report of Amicus Curiae of the Investigations into the False Testimony of Prosecution Witness BTH/GFA in The Prosecutor v. Édouard Karemera et al. and The Prosecutor v. Casimir Bizimungu et al., filed confidentially on 17 April 2009.]

[2] Rule 91(C) of the Rules [of Procedure and Evidence].

[3] Prosecutor v. Vojislav [ešelj, Case No. IT-03-67-AR77.2, Decision on the Prosecution’s Appeal Against the Trial Chamber’s Decision of 10 June 2008, 25 July 2008 (“[ešelj Decision”), para. 16. See also Karemera et al. Decision on Refusal to Investigate a Witness for False Testimony, para. 17; Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Order Concerning Allegations Against Milka Maglov, 15 April 2003, p. 3.

[4] Rule 77(D) of the ICTY and Tribunal Rules states: “If the Chamber considers that there are sufficient grounds to proceed against a person for contempt, the Chamber may: (i) in circumstances described in paragraph (C)(i), direct the Prosecutor to prosecute the matter; or (ii) in circumstances described in paragraph (C)(ii) or (iii), issue an order in lieu of an indictment and either direct amicus curiae to prosecute the matter or prosecute the matter itself.”

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Notion(s) Filing Case
Decision on False Testimony - 16.02.2010 KAREMERA et al.
(ICTR-98-44-AR91.2)

20. The Appeals Chamber further finds that the Trial Chamber erred in concluding that ordering the prosecution of Witness BTH was premature because an assessment of his credibility will be undertaken when deliberating on the Karemera et al. case and that such prosecution would risk causing serious prejudice to the Karemera et al. proceedings. An assessment of a witness’s credibility is a separate inquiry from that of the prosecution of a witness for false testimony.[1] The Trial Chamber hearing the case in which the witness testified will assess the witness’s credibility in its consideration of the evidence adduced in that case.[2] Prosecution for false testimony is a separate trial conducted by a separate chamber of judges, who will consider evidence relating to the allegation of false testimony.[3] Therefore, proceedings for false testimony need not be deferred until the completion of the trial in which the false testimony was allegedly given but can proceed contemporaneously. In this respect, the Appeals Chamber recalls the finding in Rutaganda that:

A credibility determination may be based, but does not necessarily depend, on a judicial finding that a witness has given false testimony. The testimony of a witness may lack credibility even if it does not amount to false testimony within the meaning of Rule 91. Thus, an investigation for false testimony is ancillary to the proceeding and does not impact on the accused’s right to a fair trial.[4]

[…]

[1] The Prosecutor v. Georges Rutaganda, Case No. ICTR-96-3-A, Decision on Appeals of the Decisions by Trial Chamber I Rejecting the Defence Motions to Direct the Prosecutor to Investigate the Matter of False Testimony by Witnesses “E” and “CC”, 8 June 1998, (“Rutaganda Decision”), para. 28.

[2] See, e.g., Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-A, Judgement, 28 February 2005, para. 659 (“The Appeals Chamber considers that the Trial Chamber was entitled to exercise discretion in its assessment of evidence presented by all parties to the case, in accordance with the relevant Rules of Procedure and Evidence. Whether all of the Defence or Prosecution witnesses were credible was a matter for the Trial Chamber to decide.”)

[3] Rule 91(F) of the Rules stipulates that “[n]o Judge who sat as a member of the Trial Chamber before which the witness appeared shall sit for the trial of the witness for false testimony.”

[4] Rutaganda Decision, para. 28. The Appeals Chamber further recalls that contempt proceedings have, on a number of occasions, been instituted contemporaneously with the trial in which such contempt was alleged to have arisen. See, e.g., Prosecutor v. Slobodan Milošević, Contempt Proceedings Against Kosta Bulatović, Case No. IT-02-54-R77.4, Decision on Contempt of the Tribunal, 13 May 2005; Contempt Proceedings Against Dragan Jokić, Case No. IT-05-88-R77.1-A, Judgement on Allegations of Contempt, 25 June 2009 (arising from Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-T, proceedings which are ongoing).

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Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

295. It is not disputed by the parties that nothing in the Statute or the Rules imposes the mandatory communication to the parties to the main proceedings of an amicus curiae report requested pursuant to Rules 77(C)(ii) or 91(B)(ii) of the Rules.[1] The decision to communicate an amicus curiae report filed before the trial chamber pursuant to Rules 77 or 91 of the Rules to the parties of the main proceedings therefore falls within the discretion of the trial chamber. This discretion must be exercised consistently with Articles 19 and 20 of the Statute, which require trial chambers to ensure that trials are fair and expeditious.[2] […]

[…]

300. Mindful that the decision to communicate to the parties of the main proceedings an amicus curiae report filed pursuant to Rules 77 or 91 of the Rules falls within the discretion of the relevant chamber and that there may be instances where the communication of such reports is not in the interests of justice, the Appeals Chamber fails to understand why, in this case, the Trial Chamber decided to deprive the parties of information that might have been relevant to their cases in the absence of any circumstances that may have justified its non-communication. The Appeals Chamber therefore finds that the Trial Chamber’s decision not to communicate the Second Amicus Curiae Reports to the parties before the delivery of the Trial Judgement was unreasonable and constituted an abuse of the Trial Chamber’s discretion.[3]

[1] Both Rules 77(C)(ii) and 91(B)(ii) of the Rules state that the appointed amicus curiae is to “report back to the Chamber as to whether there are sufficient grounds for instigating” contempt or false testimony proceedings.

[2] See, e.g., Nizeyimana Appeal Judgement, para. 286; Ndahimana Appeal Judgement, para. 14; Setako Appeal Judgement, para. 19.

[3] In light of this outcome, the Appeals Chamber finds it unecessary to considers Nyiramasuhuko’s and Ntahobali’s contention that the Trial Chamber erred in stating in the Trial Judgement that the investigations against Witnesses QA, QY, and SJ were “on-going”.

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ICTR Rule Rule 77(C)(ii);
Rule 91(B)(ii)
ICTY Rule Rule 77(C)(ii);
Rule 91(B)(ii)
Notion(s) Filing Case
Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

331. Likewise, the Appeals Chamber finds no merit in Nyiramasuhuko’s and Ntahobali’s argument that the fact that the witnesses lied required that their testimonies be excluded. In support of this claim, Ntahobali refers to national jurisprudence.[1] However, the Appeals Chamber highlights that Rule 89(A) of the Rules specifically provides that the Tribunal is not bound by national rules of evidence,[2] and recalls that decisions on the admission or exclusion of evidence fall within the trial chambers’ discretion.[3] […]

[1] See Ntahobali Appeal Brief, para. 822 and references cited therein.

[2] See also Simba Appeal Judgement, para. 38; Akayesu Appeal Judgement, fn. 577.

[3] See Gaspard Kanyarukiga v. The Prosecutor, Case No. ICTR-02-78-AR73.2, Decision on Gaspard Kanyarukiga’s Interlocutory Appeal of a Decision on the Exclusion of Evidence, 23 March 2010 (“Kanyarukiga Appeal Decision”), para. 7; Prosecutor v. Jadranko Prliæ et al., Case No. IT-04-74-AR73.13, Decision on Jadranko Prlić Consolidated Interlocutory Appeal Against the Trial Chamber’s Orders of 6 and 9 October 2008 on Admission of Evidence, 12 January 2009 (“Prliæ et al. Appeal Decision”), para. 15; The Prosecutor v. Arsène Shalom Ntahobali and Pauline Nyiramasuhuko, Case No. ICTR-97-21-AR73, Decision on “Appeal of Accused Arsène Shalom Ntahobali Against the Decision on Kanyabashi’s Oral Motion to Cross-Examine Ntahobali Using Ntahobali’s Statements to Prosecution Investigators in July 1997”, 27 October 2006 (“27 October 2006 Decision”), para. 10.

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