Rule 115 Motion
|Decision on Additional Evidence - 20.10.2011||
POPOVIĆ et al.
29. In addition to the specificity requirement recalled above, 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”. 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 and an allegedly revised translation of Exhibit P01310. There are no arguments regarding the admissibility of the documents contained in Annexes 2-5 to the Motion. 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.
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. Apart from a mere reference to his Appeal Brief, 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.
 See supra, para. 11.
 Practice Direction on Formal Requirements for Appeals from Judgement, IT/201, 7 March 2002 (“Practice Direction”), para. 11(a).
 Motion [Vujadin Popovic’s [sic] Motion Pursuant to Rule 115, 2 June 2011 (confidential)], paras 5-10, Annex 1.
 Motion, para. 11, Annex 6. See also supra, para. 21.
 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.
 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.
 See supra, para. 12.
 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.
 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).
|ICTR Rule Rule 115 ICTY Rule Rule 115|
|Decision on Additional Evidence - 05.05.2006||
NAHIMANA et al. (Media case)
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”), 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”.
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. For the sake of clarity and in light of the Appeals Chamber’s findings above, 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, 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, he persists that they “should be considered as evidence which may undermine the convictions” but does not make any argument as to their admissibility in his Rule 115 Motion. 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. 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), 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.
16 September 2002.
 [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.
 Decision on Appellant Hassan Ngeze’s Motion for Leave to Present Additional Evidence, 14 February 2005, p. 3.
 See paras 13 and 15-16 above.
 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”.
 Reply to the Prosecution Request of 10 February 2006, para. 10.
 Reply to the Prosecution Request of 10 February 2006, para. 11.
 Rule 115 Motion, paras 18 – 28.
 Decision of 23 January 2006, p. 6.
 [footnote omitted]
 Cf. e.g., Kambanda Decision of 13 June 2000, pp. 2-3 and Rule 109 (A) of the Rules.
|ICTR Rule Rule 115 ICTY Rule Rule 115 Other instruments Practice Direction on Formal Requirements for Appeals from Judgement (ICTR): Para.7|