Providing evidence

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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.

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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. 

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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.

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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.

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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.

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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. 

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