Applicable law

Notion(s) Filing Case
Decision on Assignment of Counsel - 20.10.2006 ŠEŠELJ Vojislav
(IT-03-67-AR73.3)

The Appeals Chamber recalled that Article 21(4)(d) of the Statute provides the accused before the International Tribunal with the presumptive right of self representation. However, this right is not absolute and can be restricted where a defendant’s self-representation is substantially and persistently obstructing the proper and expeditious conduct of his trial.[1] The right of  self-representation can be restricted irrespectively from the actual intention of the accused to obstruct the proceedings.[2] The Appeals Chamber recalled that, for the right to self-representation to be restricted, it is upon the Trial Chamber to decide

“Whether the appropriate circumstances exist and what they are is a matter for the Trial Chamber to determine on a case by case basis when considering the particular facts of a case as a whole.”[3]

In view of this principle, the Appeals Chamber affirmed that the Trial Chamber, in order to assign a Counsel to an accused who chose to self-represent himself, did not have to find that the accused’s behaviour the Trial Chamber had been “extremely disruptive to the point of rendering continuation of the proceedings practically impossible” but that “[a]ll that the Trial Chamber was required to do was find that appropriate circumstances, rising to the level of substantial and persistent obstruction to the proper and expeditious conduct of the trial exist, thereby warranting restriction of Šešelj’s right to self-representation.”[4]

[1] Decision, para. 8. The principle was first established in Milošević, Decision on Defence Counsel, paras 11-13.

[2] Milošević Decision on Defence Counsel ,para. 14.

[3] Decision, para. 20. In affirming this principle, the Appeals Chamber explicitly recalled Prosecutor v. Goiko Janković & Radovan Stanković, Case No. IT-96-23/2-PT, Decision Following Registrar’s Notification of Radovan Stanković’s Request for Self-Representation, 19 August 2005, para.10.

[4] Decision, para. 21.

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ICTR Statute Article 20(4)(d) ICTY Statute Article 21(4)(d)
Notion(s) Filing Case
Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

343. The Appeals Chamber recalls that an alibi does not constitute a defence in its proper sense.[1] Where an accused raises an alibi he is merely denying that he was in a position to commit the crime with which he was charged.[2] It is settled jurisprudence of both the ICTY and the ICTR that an accused does not bear the burden of proof beyond reasonable doubt in relation to establishing an alibi[3] but only needs to produce evidence likely to raise a reasonable doubt in the Prosecution’s case.[4] If the alibi is reasonably possibly true, it must be accepted.[5] Where the alibi evidence does prima facie account for the accused’s activities at the relevant time of the commission of the crime, the onus remains on the Prosecution to eliminate any reasonable possibility that the alibi is true.[6] The Prosecution must establish beyond reasonable doubt that, despite the alibi, the facts alleged are nevertheless true.[7]

[1]           Zigiranyirazo Appeal Judgement, para. 17; Ndindabahizi Appeal Judgement, para. 66, citing Kamuhanda Appeal Judgement, para. 167. See Čelebići Appeal Judgement, para. 581.

[2]           Renzaho Appeal Judgement, para. 303; Zigiranyirazo Appeal Judgement, para. 17. See Čelebići Appeal Judgement, para. 581.

[3]           Nizeyimana Appeal Judgement, para. 35; Ndahimana Appeal Judgement, para. 91; Setako Appeal Judgement, para. 224; Renzaho Appeal Judgement, para. 303.

[4]           Ndahimana Appeal Judgement, para. 91; Lukić and Lukić Appeal Judgement, paras 72, 361; Setako Appeal Judgement, para. 224.

[5]           Ndahimana Appeal Judgement, para. 91; Renzaho Appeal Judgement, para. 303. See Nizeyimana Appeal Judgement, para. 38.

[6]           Nizeyimana Appeal Judgement, para. 35; Kanyarukiga Appeal Judgement, para. 167; Setako Appeal Judgement, para. 224; Zigiranyirazo Appeal Judgement, para. 18; Limaj et al. Appeal Judgement, para. 64.

[7]           Ndahimana Appeal Judgement, para. 91; Kanyarukiga Appeal Judgement, para. 167.

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Notion(s) Filing Case
Decision on Assignment of Counsel - 01.11.2004 MILOŠEVIĆ Slobodan
(IT-02-54-AR73.7)

11. Both the Trial Chamber and the Prosecutor recognize that defendants have a presumptive right to represent themselves before the Tribunal.  It is not hard to see why.  Article 21 of the ICTY Statute, which tracks Article 14 of the International Convention on Civil and Political Rights,[1] recognizes that a defendant is entitled to a basic set of “minimum guarantees, in full equality,” including the right “to defend himself in person or through legal assistance of his own choosing.”[2] This is a straightforward proposition:  given the text’s binary opposition between representation “through legal assistance” and representation “in person,” the Appeals Chamber sees no reasonable way to interpret Article 21 except as a guarantee of the right to self-representation.  Nor should this right be taken lightly.  The drafters of the Statute clearly viewed the right to self-representation as an indispensable cornerstone of justice, placing it on a structural par with defendants’ right to remain silent,[3] to confront the witnesses against them,[4] to a speedy trial,[5] and even to demand a court-appointed attorney if they cannot afford one themselves.[6]  In the words of the United States Supreme Court in Faretta v. California, which was recognized by the Trial Chamber as the classic statement of the right to self-representation,[7] an “unwanted counsel ‘represents’ the defendant only through a tenuous and unacceptable legal fiction,” such that “counsel [becomes] not an assistant, but a master.”[8] Defendants before this Tribunal, then, have the presumptive right to represent themselves notwithstanding a Trial Chamber’s judgment that they would be better off if represented by counsel.

12. While this right to self-representation is indisputable, jurisdictions around the world recognize that it is not categorically inviolable.  In Faretta itself, the United States Supreme Court noted that, since “[t]he right of self-representation is not a license to abuse the dignity of the courtroom,” a trial judge “may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct.”[9]  Recognizing this same basic contingency of the right, England,[10] Scotland,[11] Canada,[12] New Zealand,[13] and Australia[14] have all developed the principle that, in order to protect vulnerable witnesses from trauma, courts may severely restrict the right of defendants to represent themselves in sexual assault trials.  Scotland goes so far as to forbid such defendants from conducting any portion of their defenses in person.[15] And while this Appellate Chamber has not previously passed on the question, existing precedent from contemporary war crimes tribunals is unanimous in concluding that the right to self-representation “is a qualified and not an absolute right.”[16]

13. Recognizing that a defendant’s right to represent himself is subject to some limitations, however, does not resolve this case.  It must further be decided whether the right may be curtailed on the grounds that a defendant’s self-representation is substantially and persistently obstructing the proper and expeditious conduct of his trial.  The Appeals Chamber believes that, under the appropriate circumstances, the Trial Chamber may restrict the right on those grounds.  It is particularly instructive in this regard to consider the parallel statutory right of an accused before the Tribunal “to be tried in his [own] presence”[17] – a right that is found in the very same clause of the ICTY Statute as the right to self-representation.  Notwithstanding the express enunciation of this right in the Statute, Rule 80(B) of the Rules of Procedure and Evidence allows a Trial Chamber to “order the removal of an accused from the courtroom and continue the proceedings in the absence of the accused if the accused has persisted in disruptive conduct.”  If a defendant’s right to be present for his trial – which, to reiterate, is listed in the same string of rights and indeed in the same clause as the right to self-representation – may thus be restricted on the basis of substantial trial disruption, the Appeals Chamber sees no reason to treat the right  to self-representation any differently.

[1] See Report of the Secretary General Pursuant to Paragraph 2 of Security Council Resolution 808, 3 May 1993, S/25704, para. 106.

[2] Statute of the International Criminal Tribunal for the former Yugoslavia (hereinafter “ICTY Statute”), Art. 21, §4.

[3] ICTY Statute, Art. 21 §4(g).

[4] ICTY Statute, Art. 21 §4(e)

[5] ICTY Statute, Art. 21 §4(c).

[6] ICTY Statute, Art. 21 §4(d).

[7] Reasons for Assigning Counsel [Reasons for Decision on Assignment of Defence Counsel, 22 September 2004], para. 45.

[8] 422 U.S. 806, 820-821 (1975) (United States Supreme Court).

[9] 422 U.S. 806, 834 n.46 (1975) (United States Supreme Court).

[10] Youth Justice and Criminal Evidence Act (England) 1999, secs. 34-35

[11] Criminal Procedure (Scotland) Act 1995, sec. 288C(1), as amended by the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002

[12] Criminal Code, RS 1985, sec. 486(2.3)

[13] Evidence Act 1908 (NZ), sec. 23F

[14] Crimes Act 1914 (Cth), secs 15YF, 15YG, 15YH; Evidence Act 1906 (Cth), sec. 106G; Criminal Procedure Act 1986 (NSW), sec. 294A; Sexual Offences (Evidence and Procedure) Act 1983 (NT), sec. 5; Evidence Act 1977 (Qld), sec. 21(L)-(S).

[15] Criminal Procedure (Scotland) Act 1995, sec. 288C(1), as amended by the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002.  Civil law jurisdictions, of course, go further still:  as the Trial Chamber noted, defendants often have no choice but to accept representation by counsel in serious criminal cases.  E.g., Article 274 of the French Code of Criminal Procedure; Section 140 of the German Code of Criminal Procedure; Article 294 of the Belgian Code of Criminal Procedure; Article 71(1) of the Yugoslavian Code of Criminal Procedure; Articles 282 and 283 of the Code of Criminal Procedure of the Republic of Korea.

[16] Prosecutor v. Norman, Case No. SCSL-2004-14-T, Decision on the Application of Samuel Hinga Norman for Self Representation under Article 17(4)(d) of the Statute of the Special Court, 8 June 2004, paras. 9, 15 (Special Court for Sierra Leone) (denying defendant’s request to represent himself in significant part because of the “long adjournments” that would be necessary if the request were granted); see also Prosecutor v. Šešelj, Case No. IT-03-67-PT, Decision on Prosecution’s Motion for Order Appointing Counsel to Assist Vojislav Šešelj with his Defence,” 9 May 2003, para. 20 (recognizing that right to self-representation “is not absolute” and may be restricted on the basis of the Tribunal’s “legitimate interest in ensuring that the trial proceeds in a timely manner without interruptions, adjournments, or disruptions”).

[17] ICTY Statute, Art. 21 §4(d).

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ICTR Statute Article 20(4)(d) ICTY Statute Article 21(4)(d)
Notion(s) Filing Case
Appeal Judgement - 28.09.2011 SETAKO Ephrem
(ICTR-04-81-A)

224. Neither the Trial Chamber nor the parties on appeal designated Setako’s evidence concerning his whereabouts between 24 April and 11 May 1994 as alibi evidence.[1] However, Setako clearly denies having been in a position to commit the 25 April and 11 May Killings at Mukamira camp because he was not there at the time. This amounts to raising an alibi.[2] The Appeals Chamber recalls that an accused does not bear the burden of proving his alibi beyond reasonable doubt. He must simply produce evidence that is likely to raise a reasonable doubt about the Prosecution’s case.[3] Where an alibi is properly raised, the Prosecution must establish beyond reasonable doubt that, despite the alibi, the facts alleged are nevertheless true. Where the alibi evidence does prima facie account for the accused’s activities at the time of the commission of the crime, the Prosecution must eliminate the reasonable possibility that the alibi is true.[4]

[1] At trial, Setako only provided notice of an alibi for the periods 6 to 12 April and 12 to 21 April 1994. See Setako’s Notice of Alibi. See also Setako Pre-Trial Brief, paras. 16, 17. This alibi evidence is discussed in paragraphs 275-319 of the Trial Judgement. While the Trial Chamber accorded limited evidentiary value to Setako’s alibi for the period of 6 to 12 April 1994 (see Trial Judgement, para. 305), it found that the Prosecution had not eliminated the reasonable possibility that Setako was on a mission in Kinshasa from 12 until 21 April 1994 (see Trial Judgement, para. 319).

[2] Renzaho Appeal Judgement, para. 303; Zigiranyirazo Appeal Judgement, para. 17; Karera Appeal Judgement, para. 330; Niyitegeka Appeal Judgement, para. 60; Kajelijeli Appeal Judgement, para. 42.

[3] Renzaho Appeal Judgement, para. 303; Zigiranyirazo Appeal Judgement, para. 17; Karera Appeal Judgement, para. 330; Niyitegeka Appeal Judgement, para. 60; Kajelijeli Appeal Judgement, para. 42.

[4] Renzaho Appeal Judgement, para. 303; Zigiranyirazo Appeal Judgement, para. 18. The Appeals Chamber recalls that, according to Rule 67(A)(ii)(a) of the Rules, the Defence shall notify the Prosecution of its intent to raise an alibi as early as reasonably practical and before the commencement of the trial. The Appeals Chamber further recalls that a trial chamber may take the failure to give a notice of alibi timely into account when weighing the credibility of the alibi. See Nchamihigo Appeal Judgement, para. 97. Here, the Prosecution did not object to Setako’s alibi evidence based on lack of notice.

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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.

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ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Appeal Judgement - 27.11.2007 SIMBA Aloys
(ICTR-01-76-A)

328. The Appeals Chamber recalls that neither the Statute nor the Rules exhaustively define the factors which may be considered as mitigating factors.[1] Consequently, under the jurisprudence of this Tribunal, “what constitutes a mitigating circumstance is a matter for the Trial Chamber to determine in the exercise of its discretion.”[2] The burden of proof which must be met by an accused with regard to mitigating circumstances is not, as with aggravating circumstances, proof beyond reasonable doubt,[3] but proof on the balance of probabilities – the circumstance in question must exist or have existed “more probably than not”.[4] Once a Trial Chamber determines that certain evidence constitutes a mitigating circumstance, the decision as to the weight to be accorded to that mitigating circumstance also lies within the wide discretion afforded to the Trial Chamber at sentencing.[5]

[1] Kajelijeli Appeal Judgement, para. 294.

[2] Musema Appeal Judgement, para. 395.

[3] Delalić et al. Appeal Judgement, para. 763.

[4] Delalić et al. Appeal Judgement, para. 590.

[5] Niyitegeka Appeal Judgement, para. 266, referring to Musema Appeal Judgement, para. 396 and Kayishema and Ruzindana Appeal Judgement, para. 366; Kajelijeli Appeal Judgement, para. 294.

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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.  

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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)

See para. 25:

25. The Appeals Chamber has held that the basis on which judicial notice is taken pursuant to this sub-Rule is that the material is notorious.[1] Facts of common knowledge under Rule 94(A) of the Rules have been considered to encompass common or universally known facts, such as general facts of history, generally known geographical facts and the laws of nature, as well as those facts that are generally known within a tribunal’s territorial jurisdiction.[2] Once a Chamber deems a fact to be of common knowledge, it must also determine that the matter is not the subject of reasonable dispute.[3] […]

[1] Momir Nikolić v. Prosecutor, Case No.: IT-02-60/1-A, Decision on Appellant’s Motion for Judicial Notice, 1 April 2005 (“Nikolić Judicial Notice Decision”), para. 10, referring to Prosecutor v. Slobodan Milošević, Case No.: IT-02-54-AR73.5, Decision on the Prosecution’s Interlocutory Appeal Against the Trial Chamber’s 10 April 2003 Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts, 28 October 2003, pp. 3 and 4.

[2] Nikolić Judicial Notice Decision, para. 10.

[3] Idem.   

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ICTR Rule Rule 94 ICTY Rule Rule 94
Notion(s) Filing Case
Review Decision - 14.07.2010 ŠLJIVANČANIN Veselin
(IT-95-13/1-R.1)

On 5 May 2009, the Appeals Chamber issued a judgement which, inter alia, upheld the conviction of Veselin Šljivančanin (“Šljivančanin”) for aiding and abetting torture as a violation of the laws or customs of war and added, Judges Pocar and Vaz dissenting, a new conviction for aiding and abetting murder as a violation of the laws or customs of war. The new conviction was based in part on the Appeals Chamber’s new factual findings concerning a conversation between Šljivančanin and Mile Mrkšić (“Conversation”).[1]

In an application for review filed on 28 January 2010,[2] Šljivančanin asserted that Miodrag Panić was prepared to offer testimony that invalidated Šljivančanin’s conviction for aiding and abetting murder as a violation of the laws or customs of war, and that the content of the Conversation that would be the subject of this testimony constituted a “new fact” in the context of Rule 119 of the Rules of Procedure and Evidence of the Tribunal.

At pages 2 and 3, the Appeals Chamber stated:

CONSIDERING that, pursuant to Article 26 of the Statute of the Tribunal (“Statute”) and Rules 119 and 120 of the Rules, for a party to succeed in persuading the Appeals Chamber to review a judgement, the party must first satisfy the following cumulative requirements:

a)     there is a new fact;

b)     the new fact was not known to the moving party at the time of the original proceedings;

c)     the failure to discover the new fact was not due to a lack of due diligence on the part of the  moving party; and

d)     the new fact could have been a decisive factor in reaching the original decision;[3]

[…]

CONSIDERING that what is relevant in evaluating an application for review is not “whether [a] new fact already existed before […] original proceedings or during such proceedings” but, rather, “whether the deciding body and the moving party knew about the fact or not” in arriving at its decision;[4]

CONSIDERING that, in “wholly exceptional circumstances”, review may still be permitted even though the “new fact” was known to the moving party or was discoverable by it through the exercise of due diligence if a Chamber is presented with “a new fact that is of such strength that it would affect the verdict”[5] and determines that “review of its judgement is necessary because the impact of the new fact on the decision is such that to ignore it would lead to a miscarriage of justice”;[6]

[1] Prosecutor v. Mile Mrkšić and Veselin Šljivančanin, Case No. IT-95-13/1-A, Judgement, 5 May 2009 (“Mrkšić and Šljivančanin Appeal Judgement”), para. 62.

[2] Application on Behalf of Veselin Šljivančanin for Review of the Appeals Chamber Judgment of 5 May 2009, 28 January 2010.

[3] Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-R, Decision on Prosecutor’s Request for Review or Reconsideration, 23 November 2006 (public redacted version) (“Blaškić Decision”), para. 7. See also Mladen Naletilić, a.k.a “Tuta” v. Prosecutor, Case No. IT-98-34-R, Decision on Mladen Naletilić’s Request for Review, 19 March 2009 (“Naletilić Decision”), para. 10; Georges Anderson Nderubumwe Rutaganda v. The Prosecutor, Case No. ICTR-96-03-R, Decision on Requests for Reconsideration, Review, Assignment of Counsel, Disclosure, and Clarification, 8 December 2006 (“Rutaganda Decision”), para. 8.

[4] Prosecutor v. Duško Tadić, Case No. IT-94-1-R, Decision on Motion for Review, 8 August 2002 (“Tadić Decision”), para. 25. See also Naletilić Decision, para. 11; Rutaganda Decision, para. 9.

[5] Tadić Decision, para. 27 (emphasis added). See also Rutaganda Decision, para. 8; Blaškić Decision, para. 8.

[6] Blaškić Decision, para. 8 (citation omitted). See also Naletilić Decision, para. 10; Rutaganda Decision, para. 8; Jean Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision (Prosecutor’s Request for Review or Reconsideration), 31 March 2000 (“Barayagwiza Decision”), paras 63-69.

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ICTR Statute Article 25 ICTY Statute Article 26 ICTR Rule Rule 120;
Rule 121
ICTY Rule Rule 119;
Rule 120
Notion(s) Filing Case
Review Judgement - 08.12.2010 ŠLJIVANČANIN Veselin
(IT-95-13/1-R.1)

12. The Appeals Chamber recalls that review proceedings are provided for by Article 26 of the Statute, and that according to Rules 119 and 120 of the Rules, if the Appeals Chamber determines that a judgement should be reviewed, it shall “pronounce a further judgement after hearing the parties.”[1]

[1] Rule 120 of the Rules.

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ICTR Statute Article 25 ICTY Statute Article 26 ICTR Rule Rule 120;
Rule 121
ICTY Rule Rule 119;
Rule 120
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.

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ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Reopening Appeal - 07.06.2007 STRUGAR Pavle
(IT-01-42-Misc.1)

21. [… ] The Decision Accepting Withdrawals can be considered a “final judgement” for purposes of Article 26 because it “terminates the proceedings”.[1]  Strugar nowhere suggests, however, that he is bringing a motion for review, and he fails to address how he satisfies the basic requirements for review.  He nowhere explains, for example, how an apparent legal impediment constitutes a “fact”[2] or how it can be deemed “new” where the matter of legal impediments was plainly at issue in the earlier proceedings.[3]  Accordingly, the Appeals Chamber does not consider the Defence Request to constitute a motion for review.

[1] Jean-Bosco Barayagwiza v. Prosecutor, Case No. ICTR-97-19-AR72, Decision (Prosecutor’s Request for Review or Reconsideration), 31 March 2000 (“Barayagwiza Decision”), para. 49.

[2] See Prosecutor v. Goran Jelisić, Case No. IT-95-10-R, Decision on Motion for Review, 2 May 2002, p. 3 (rejecting the convicted person’s argument that a change in the governing legal standard constituted a “new fact” of “an evidentiary nature”).

[3] See ibid. [Prosecutor v. Goran Jelisić, Case No. IT-95-10-R, Decision on Motion for Review, 2 May 2002, p. 3] (stating that the term “new fact” refers to “new information of an evidentiary nature of a fact that was not in issue during the trial or appeal proceedings”).

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ICTR Statute Article 25 ICTY Statute Article 26
Notion(s) Filing Case
Appeal Judgement - 28.09.2011 MUNYAKAZI Yussuf
(ICTR-97-36A-A)

17. The Appeals Chamber recalls that Rule 67(A)(ii)(a) of the Rules requires the defence to notify the Prosecution before the commencement of trial of its intent to enter a defence of alibi. According to this provision, “the notification shall specify the place or places at which the accused claims to have been present at the time of the alleged crime and the names and addresses of witnesses and any other evidence upon which the accused intends to rely to establish the alibi.”º[…]

18. […] The Appeals Chamber has held that the manner in which an alibi is presented may impact its credibility.[1] Therefore, it was within the Trial Chamber’s discretion to take into account Munyakazi’s failure to provide timely and adequate notice in assessing the alibi evidence.[2]

19. In a similar vein, the Trial Chamber acted in accordance with the Rules in taking the manner in which an alibi was presented into account together with its assessment of the underlying evidence. Contrary to Munyakazi’s submission, Rules 67(A)(ii) and 67(B) of the Rules are not mutually exclusive. A Trial Chamber may reasonably consider the circumstances surrounding the notice provided by the accused for his alibi when assessing the alibi on the merits.

[1] See Kalimanzira Appeal Judgement, para. 56.

[2] See Kalimanzira Appeal Judgement, para. 56.

[3] See, e.g., Kalimanzira Appeal Judgement, para. 70 (affirming assessment of alibi based on the notice provided as well as the credibility of testimony).

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ICTR Rule Rule 67(A)(ii)(a) ICTY Rule Rule 67(B)(i)(a)
Notion(s) Filing Case
Decision on Refusal to Grant Access - 23.04.2002 HADŽIHASANOVIĆ et al.
(IT-01-47-AR73)

CONSIDERING that a party may not engage in a fishing expedition, but that, provided it does not do so, it may seek access to confidential material in another case if it is able to describe the documents sought by their general nature as clearly as possible even though it cannot describe them in detail, and if it can show that such access is likely to assist his case materially;

 

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Notion(s) Filing Case
Review Decision - 31.10.2006 RADIĆ Mlađo
(IT-98-30/1-R.1)

At paras 9-11, the Appeals Chamber recalled the law applicable to review proceedings:

9. Review proceedings are governed by the following provisions of the Statute and Rules:

Article 26 of the Statute provides that:

Where a new fact has been discovered which was not known at the time of the proceedings before the Trial Chambers or the Appeals Chamber and which could have been a decisive factor in reaching the decision, the convicted person or the Prosecutor may submit to the International Tribunal an application for review of the judgement.

Rule 119 deals with the request for review and stipulates that:

Where 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 defence or, within one year after the final judgement has been pronounced, the Prosecutor, may make a motion to that Chamber for review of the judgement. If, at the time of the request for review, any of the Judges who constituted the original Chamber are no longer Judges of the Tribunal, the President shall appoint a Judge or Judges in their place.

Rule 120 provides for a preliminary examination and states that:

If a majority of Judges of the Chamber constituted pursuant to Rule 119 agrees that the new fact, if proved, could have been a decisive factor in reaching a decision, the Chamber shall review the judgement, and pronounce a further judgement after hearing the parties.

10. The combined effect of these provisions of the Statute and the Rules is that in order for a Chamber to proceed to the review of its decision, the moving party must demonstrate that:

there is a new fact;

the new fact was not known to the moving party at the time of the proceedings before the Trial Chamber or the Appeals Chamber;

the lack of discovery of the new fact was not due to a lack of diligence on the part of the moving party; and

the new fact, if proved, could have been a decisive factor in reaching the original decision.[1]

11. In "wholly exceptional circumstances", where the impact of a new fact on the decision would be such that to ignore it would lead to a miscarriage of justice, the Chambers may review their decision even though the new fact was known to the moving party, or was discoverable by it through the exercise of due diligence.[2] As stated in the Tadić Review:

the Appeals Chamber, whenever it is presented with a new fact that is of such strength that it would affect the verdict, may, in order to prevent a miscarriage of justice, step in and examine whether or not the new fact is a decisive factor, even though the second and third criteria under Rule 119 of the Rules may not be formally met.[3]

[1] Prosecutor v. Niyitegeka, Case No. ICTR-96-14-R, Decision on Request for Review (“Niyitegeka Review”), para. 6; Prosecutor v. Josipović, Case No. IT-95-16-R.2, Decision on Motion for Review, 7 March 2003 ("Josipović Review"), para. 12; Prosecutor v. Delić, Case No. IT-96-21-R-R119, Decision on Motion for Review, 25 April 2002 ("Delić Review"), para. 8; Prosecutor v. Tadić, Case No. IT-94-1-R, Decision on Motion for Review, 30 July 2002, ("Tadić Review"), para. 20; Prosecutor v. Barayagwiza, Case No. ICTR-97-19-AR72, Decision on Prosecutor’s Request for Review or Reconsideration, 31 March 2000, ("Barayagwiza Review"), para 41.

[2] Josipović Review, para. 13 citing Barayagwiza Review, para. 65. See also Niyitegeka Review, para. 7.

[3] Tadić Review, para 27.

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ICTR Statute Article 25 ICTY Statute Article 26 ICTR Rule Rule 120;
Rule 121
Notion(s) Filing Case
Appeal Judgement I - 29.08.2008 MUVUNYI Tharcisse
(ICTR-2000-55A-A)

The Appeals Chamber ordered a retrial for one count of direct and public incitement to commit genocide:

148. These aggregate errors in addressing the apparently inconsistent testimony of Witnesses YAI, CCP, and MO78 prevent the Appeals Chamber from determining whether the Trial Chamber assessed the entire evidence on this point exhaustively and properly. In such circumstances, the Appeals Chamber is forced to conclude that Muvunyi’s conviction for direct and public incitement to commit genocide on the basis of his alleged speech at the GikoreTradeCenter is not safe and, accordingly, quashes it. The Appeals Chamber further finds that the present situation gives rise to appropriate circumstances for retrial pursuant to Rule 118(C) of the Rules, limited to the allegations considered under this ground of appeal. The Appeals Chamber stresses that an order for retrial is an exceptional measure to which resort must necessarily be limited. In the present situation, the Appeals Chamber is well aware that Muvunyi has already spent over eight years in the Tribunal’s custody. At the same time, the alleged offence is of the utmost gravity and interests of justice would not be well served if retrial were not ordered to allow the trier of fact the opportunity to fully assess the entirety of the relevant evidence and provide a reasoned opinion. 

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ICTR Rule Rule 118(C) ICTY Rule Rule 117(C)
Notion(s) Filing Case
Appeal Judgement - 26.05.2003 RUTAGANDA George
(ICTR-96-3-A)

240. The procedure to be followed where an accused intends to enter an alibi in his defence is covered by Rule 67(A)(ii) and (B) of the Rules which provide inter alia that:

Subject to the provisions of Rules 53 and 69:

(A) As early as reasonably practicable and in any event prior to the commencement of the trial:

[...]

(ii) The defence shall notify the Prosecutor of its intent to enter:

(a) The defence of alibi; in which case the notification shall specify the place or places at which the accused claims to have been present at the time of the alleged crime and the names and addresses of witnesses and any other evidence upon which the accused intends to rely to establish the alibi;

[...]

(B) Failure of the defence to provide such notice under this Rule shall not limit the right of the accused to rely on the above defences.

241. Rule 67(A)(ii) relates to the reciprocal disclosure of evidence at the pre-trial stage of the case and places upon the Defence the obligation to notify the Prosecution of its intent to enter a defence of alibi and to specify the evidence upon which it intends to rely to establish the alibi.[1] This allows the Prosecution to organise its evidence and to prepare its case prior to the commencement of the trial on the merits. As the Appeals Chamber explained in Kayishema and Ruzindana:

[…] the purpose of entering a defence of alibi or establishing it at the stage of reciprocal disclosure of evidence is only to enable the Prosecutor to consolidate evidence of the accused’s criminal responsibility with respect to the crimes charged. Thus during the trial, it is up to the accused to adopt a defence strategy enabling him to raise a doubt in the minds of the Judges as to his responsibility for the said crimes, and this, by adducing evidence to justify or prove the alibi.[2]

242. Rule 67(A)(ii) does not require the Defence to produce the probative evidence to be used to establish the accused’s whereabouts at the time of the commission of the offence. The extent and nature of the evidence that the Defence uses to cast doubt on the prosecution case is a matter of strategy which is for the Defence to decide.[3] The Appeals Chamber recalls that the strategy adopted by the person who raises an alibi may have an impact on a Trial Judge in reaching his or her conclusion.[4] Nevertheless, the requirements of Rule 67(A)(ii) are satisfied when the Defence has notified the Prosecution of the required particulars of the alibi, without necessarily producing the evidence.

243. To ensure a good administration of justice and efficient judicial proceedings, any notice of alibi should be tendered in a timely manner, ideally before the commencement of the trial. However, were the Defence to fail in this regard, Rule 67(B) provides that the Defence may still rely on evidence in support of an alibi at trial. Consequently, the obligations laid down by Rule 67 (A)(ii) must be read in conjunction with the caveat provided for by Rule 67(B).[5]

244. There is no requirement under Rule 67(A)(ii) for the Defence to notify the Chamber, in addition to the Prosecutor, of its intent to enter an alibi. A fortiori, the Defence is not required to provide the Chamber with details of the alibi witnesses and of the locations at which the accused is said to have been at the time the alleged crimes were committed. Prior to the commencement of the trial, the Defence is obliged to disclose alibi evidence only to the Prosecution and not to the Trial Chamber.

245. Considering the foregoing, unless one of the parties chooses to make the notice available to the Chamber or to file it with the Registry, there will be no written record of the notice within the case file at the pre-trial stage of the proceedings. It is only prior to the commencement of the Defence case that the Rules, specifically Rule 73ter (Pre-Defence Conference), require the Defence to provide details of its evidence to the Chamber.[6]

246. It is at this stage of the proceedings that the Trial Chamber will receive information relevant to the alibi. Although the Rules do not specify that a notice of alibi be provided, the materials filed in conformity with Rule 73ter should enable the Trial Chamber to avail itself of the Defence’s intention to enter an alibi. Furthermore, read together, the list of witnesses, the summary of their testimonies and the points in the indictment as to which they will testify, should provide the Chamber with particulars sufficient to determine the extent of the alibi.

[1] Kayishema and Ruzindana Appeal Judgement, para. 109.

[2] Ibid., para. 111.

[3] Ibid., para. 110.

[4] Musema Appeal Judgement, para. 201.

[5] Despite the provisions of Rule 67(B) and depending on the circumstances, failure to raise an alibi in a timely manner can impact on Trial Chambers findings.

[6] Rule 73ter was applicable at the time of trial. Rule 73ter provides:

 

(A) The Trial Chamber may hold a Conference prior to the commencement by the defence of its case.

(B) At that Conference, the Trial Chamber or a Judge, designated from among its members, may order that the defence, before the commencement of its case but after the close of the case for the prosecution, file the following:

(i) Admissions by the parties and a statement of other matters which are not in dispute;

(ii) A statement of contested matters of fact and law;

(iii) A list of witnesses the defence intends to call with:

(a) The name or pseudonym of each witness;

(b) A summary of the facts on which each witness will testify;

(c) The points in the indictment as to which each witness will testify; and

(d) The estimated length of time required for each witness;

(iv) A list of exhibits the defence intends to offer in its case, stating where possible whether or not the Prosecutor has any objection as to authenticity.

 

The Trial Chamber or the Judge may order the Defence to provide the Trial Chamber with copies of the written statements of each witness whom the Defence intends to call to testify.

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ICTR Rule Rule 67(A)(ii);
Rule 67(B);
Rule 73 ter
ICTY Rule Rule 67(A)(ii);
Rule 67(B);
Rule 73 ter
Notion(s) Filing Case
Appeal Judgement - 26.05.2003 RUTAGANDA George
(ICTR-96-3-A)

301. An Indictment is aimed at providing the accused with “a description of the charges against him with sufficient particularity to enable him to mount his defence.”[1] Accordingly, the indictment must be sufficiently specific, meaning that it must reasonably inform the accused of the material charges, and their criminal characterisation. The materiality of an alleged fact depends, above all, on the nature of the alleged criminal conduct charged to the accused.[2] Before the ICTY, these principles derive from Articles 17(4), 20(2), 20(4)(a) and (b) of the Statute, and Rule 47(C) of the Rules.

302. Although, a priori, the Prosecution is required to prove the facts alleged in the Indictment, the Appeals Chamber holds the view that the Indictment cannot have the degree of specificity of the evidence underpinning it. The Appeals Chamber therefore considers that, in general, minor differences between the indictment and the evidence presented at trial are not such as to prevent the Trial Chamber from considering the indictment in the light of the evidence presented at trial. Moreover, the Appeals Chamber notes that in Kunarac, the ICTY Appeals Chamber held that “minor discrepancies between the dates in the Trial Judgement and those in the Indictment […] go to prove […] that the events charged in the Indictment did not occur.”[3]

303. Such doctrines must, however, be assessed in the light of paragraphs 20(2), (4)(a) and (b) of the Statute, and take into account the specific circumstances of each case. Indeed, the Appeals Chamber is of the opinion that the right of the accused to be informed of the nature of the charge against him and the right to have adequate time for the preparation of his defence imply that an accused must be able to identify the criminal acts and conduct alleged in the indictment in all circumstances. Before holding that an event charged is immaterial[4] or that there are minor discrepancies between the indictment and the evidence presented at trial, a Chamber must normally satisfy itself that no prejudice shall, as a result, be caused to the accused. An example of such prejudice is the existence of inaccuracies likely to mislead the accused as to the nature of the charges against him. Depending on the specific circumstances of each case, the question to be to determined is whether an accused was reasonably able to identify the crime and criminal conduct alleged in each of the paragraphs of the Indictment.[5]

[…]

306. It is the opinion of the Appeals Chamber that the alleged variance between the evidence presented at trial and the Indictment in relation to the date of the commission of the offence cannot lead to invalidation of the Trial Chamber’s findings unless the said date is actually an essential part of the Appellant’s alleged offence.[6]

[…]

401. […] [W]here the Appellant makes serious allegations regarding the integrity of the judicial process, […], he must, inter alia, demonstrate the prejudice caused by the divergences between the facts alleged in the Indictment and the evidence adduced at trial in accordance with the relevant jurisprudence […].[7]

[1] Kupreskic Appeal Judgement, para. 95; see also para. 88, and the Furundzija Appeal Judgement, para. 61.

[2] Kupreskic Appeal Judgement, para. 89.

[3] Kunarac Appeal Judgement, para. 217.

[4] Non-material facts are, by nature, superfluous; in other words, it is not, in principle, necessary to prove them in order to establish the culpability of an accused for a given crime.

[5] Moreover, it goes without saying that where an accused considers that the evidence at trial falls outside the scope of the indictment, he may raise an objection as to lack of fair notice and/or seek appropriate remedy from the Trial Chamber, either by way of an adjournment of the proceedings or by excluding the challenged evidence. (Furundzija Appeal Judgement, para. 61).

[6] See Dossi (1918) 13 Cr App R 158.

[7] See Part VI: Distribution of Weapons.

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Notion(s) Filing Case
Decision on Further Investigations - 08.12.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

The Appeals Chamber reiterated that a party is always entitled to seek material from any source, including from another case before the Tribunal, to assist in the preparation of its case if the material sought has been identified or described by its general nature and if a legitimate forensic purpose for such access has been shown. The Appeals Chamber specified the criteria for granting such access and considered that it had jurisdiction under Rule 75(G)(ii) to grant to the Appellant access to a confidential guilty plea entered in another case after having consulted with the Judges of the Trial Chamber concerned and afforded the Prosecution the possibility to apply for redactions.[1]

12. La Chambre d’appel a affirmé de manière constante qu’une partie a toujours le droit de chercher à obtenir des documents provenant de n’importe quelle source afin de l’aider à préparer son dossier, à condition d’identifier les documents recherchés, ou de décrire leur nature générale, et de démontrer l’existence d’un but légitime juridiquement pertinent justifiant l’obtention de cet accès[2]. La pertinence des pièces demandées par une partie peut être établie du fait de l’existence d’un lien entre l’affaire de ladite partie et la ou les affaires dans le cadre desquelles ces pièces ont été présentées, par exemple, lorsque ces affaires découlent d’événements qui auraient eu lieu dans la même région et à la même époque ou s’il existe d’autres recoupements[3]. Il suffit que la partie requérante démontre que l’accès à ces pièces est susceptible de l'aider de manière substantielle à présenter sa cause ou, tout au moins, qu'il existe de bonnes chances pour qu'il en soit ainsi[4]. En se prononçant sur une telle demande, il appartient à la Chambre d’appel de trouver un juste équilibre entre le respect du droit d’une partie à avoir accès à des pièces nécessaires à la préparation de sa cause et l’obligation du Tribunal de garantir la protection et la préservation d’informations confidentielles[5].

13. La Chambre d’appel considère qu’elle est compétente, en vertu de l’article 75(G)(ii), pour statuer sur la demande relative à la convention de plaidoyer de Joseph Serugendo, puisque aucune Chambre n’est saisie de la première affaire[6], la procédure ayant été terminée par le prononcé du Jugement le 12 juin 2006 et le décès de Joseph Serugendo le 22 août 2006. Ainsi, la Chambre d’appel se voit habilitée à modifier le niveau de classification des documents protégés[7].

14. La Chambre d’appel est satisfaite que l’Appelant a, d’une part, décrit avec suffisamment de précision la pièce demandée comme il lui incombait de le faire et, d’autre part, démontré l’existence d’un but légitime juridiquement pertinent justifiant la consultation de ladite pièce. Conformément à l’article 75(H) du Règlement, la Chambre d’appel a obtenu toutes les informations nécessaires des Juges composant la Chambre de première instance I qui a prononcé le Jugement dans l’affaire Serugendo et décide d’accorder à l’Appelant l’accès à la convention de plaidoyer de Joseph Serugendo.

15. La Chambre d’appel accorde au Procureur quatorze (14) jours à compter de la date de la présente décision pour déposer une requête aux fins d’expurgation, s’il peut établir l’existence de motifs suffisants justifiant l’expurgation de certaines informations contenues dans ledit document. Les mesures de protection que la Chambre de première instance a adoptées s’agissant de cette pièce restent en vigueur.

[1] See also para. 29 of the present Decision for specific conditions of granting the access to the confidential document in question.

[2] Prosecutor v. Blagoje Simić, Case No It-95-9-A, Decision on Defence Motion by Franko Simatovic for Access to Transcripts, Exhibits, Documentary Evidence and Motion Filed by the Parties in the Simic et al. Case, 13 avril 2005  (« Décision Simić du 13 avril 2005 »), p. 3 ; Momir Nikolic c/ Le Procureur, affaire n° IT-02-60/1-A, Décision relative à la Requête urgente aux fins d’obtenir l’accès à des documents confidentiels, 4 février 2005, p. 6 ; Prosecutor v. Tihomir Blaškic, Case No IT-95-14-A, Decision on Dario Kordić and Mario Čerkez’s Request for Access to Tihomir Blaškic’s Fourth Rule 115 Motion and Associated Documents, 28 janvier 2004, p. 4; Le Procureur c/ Mladen Naletilić, alias “Tuta”, & Vinko Martinović, alias“Stela”, Affaire n° IT-98-34-A, Décision relative à la Requête conjointe déposée par la Défense de Enver Hadžihasanovic et Amir Kubura aux fins d’accès à tous les documents, écritures, comptes rendus d’audience et pièces à conviction confidentiels de l’affaire Naletilić et Martinović, 7 novembre 2003, p. 3-4.

[3] Prosecutor v. Tihomir Blaškić, Case No IT-95-14-R, Decision on “Defence Motion on Behalf of Rasim Delić Seeking Access to all Confidential Material in the Blaškić Case”, 1 juin 2006 (« Décision Blaškić du 1 juin 2006 »), p. 9 ; Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Decision on Momčilo Perišić’s Motion Seeking Access to Confidential Material in the Galić Case, 16 février 2006 ((« Décision Galić du 16 février 2006 »), par. 3 ; Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No IT-02-60-A, Decision on Momčilo Perišić Motion Seeking Access to Confidential Material in the Blagojević and Jokić Case”, 18 janvier 2006 (« Décision Blagojević du 18 janvier 2006 »), par. 4 ; Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No IT-02-60-A, Decision on Motions for Access to Confidential Materials, 16 novembre 2005, par. 8 ; Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Decision on Motion by Hadžihasanović, Alagić and Kubura for Access to Confidential Supporting Material, Transcripts and Exhibits in the Kordić and Čerkez Case, 23 janvier 2003, pp. 4-5 ; Le Procureur c/ Tihomir Blaškić, affaire n° IT-95-14-A, Décision relative à la Requête des Appelants Dario Kordić et Mario Čerkez aux fins de consultation de Mémoires d’appel, d’écritures et de comptes rendus d’audience confidentiels postérieurs à l’appel déposés dans l’affaire Le Procureur c/ Blaškić, 16 mai 2002 (« Décision Blaškić du 16 mai 2002 »), par. 15.

[4] The Prosecutor v. Fatmir Limaj et al., Case No. IT-03-66-A, Decision on Ojdanić’s application for access to exhibit P92, 3 novembre 2006, par. 6; Décision Blaškić du 1 juin 2006, p. 9 ; Décision Galić du 16 février 2006, par. 3 ; Décision Blagojević du 18 janvier 2006, par. 4 ; Décision Blagojević du 16 novembre 2005, par. 8 ; Décision Simić du 13 avril 2005, p. 3 ; Le Procureur c/ Miroslav Kvočka et al., affaire n° IT-98-30/1-A, Décision relative à la requête des Momćilo Gruban aux fins d’accéder à des pieces, 13 janvier 2003 (« Décision du 13 janvier 2003 »), par. 5 ; Le Procureur c/ Milan Milutinović et consorts, affaire n° IT-99-37-I, Décision relative à la Requête de Dragoljub Ojdanić aux fins de communication de conclusions ex parte, 8 novembre 2002, par. 18 ; Décision Blaškić du 16 mai 2002, par. 14.

[5] Miroslav Bralo v. The Prosecutor, Case No. IT-95-17-A, Decision on Motion of Miroslav Bralo for Access to Certified Trial Record, 2 mai 2006, p. 4 ; Le Procureur c/ Vidoje Blagojević et Dragan Jokić, affaire n° IT-02-60-A, Décision [confidentielle] relative à la Requête de l’Accusation aux fins d’expurger les documents confidentiels communiqués à Momčilo Perišić, 9 mars 2006, p. 2 ; Décision Galić du 16 février 2006, par. 10 ; Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, [Confidential] Decision on Prosecution request for Redactions, 17 janvier 2006, p. 1 ; Décision Blaškić du 16 mai 2002, par. 29.

[6] Prosecutor v. Blagoje Simić, Case No IT-95-9-A, Order Proprio Motu Granting Access to Confidential Material, 3 février 2006, p. 1.

[7] La Chambre d’appel considère qu’il convient d’appliquer mutatis mutandis la même procédure que celle prévue pour la modification des mesures de protection accordées à des témoins en vertu de l’article 75 du Règlement dans le cas de documents protégés, tel l’accord sur le plaidoyer ; à ce sujet voir Le Procureur c/ Slobodan Milosević, affaire n°IT-02-54-T, Décision aux fins de lever la confidentialité de l’accord sur le plaidoyer conclu dans l’affaire Erdemović, 26 août 2003, p. 2. L’article 75 (G) du Règlement est rédigé en des termes similaires à celui du Règlement du TPIY : « (…) Une partie à la deuxième affaire, qui souhaite obtenir l’annulation, la modification ou le renforcement de mesures ordonnées dans la première affaire, doit soumettre sa demande : i) à toute Chambre encore saisie de la première affaire, quelle que soit sa composition, ou ii) à la Chambre saisie de la deuxième affaire, si aucune Chambre n’est plus saisie de la première affaire. ». 

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ICTR Rule Rule 75 ICTY Rule Rule 75
Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

414. Before considering in turn the various errors alleged by the Appellant, the Appeals Chamber notes that the Trial Chamber correctly enunciated the law applicable to alibi in paragraph 99 of the Judgement, which reads as follows:

With respect to alibi, the Chamber notes that in Musema, it was held that “[i]n raising the defence of alibi, the Accused not only denies that he committed the crimes for which he is charged but also asserts that he was elsewhere than at the scene of these crimes when they were committed. The onus is on the Prosecution to prove beyond a reasonable doubt the guilt of the Accused. In establishing its case, when an alibi defence is introduced, the Prosecution must prove, beyond any reasonable doubt, that the Accused was present and committed the crimes for which he is charged and thereby discredit the alibi defence. The alibi defence does not carry a separate burden of proof. If the defence is reasonably possibly true, it must be successful”[footnote omitted].

417. The Appeals Chamber recalls that, in raising an alibi defence, the defendant is claiming that, objectively, he was not in a position to commit the crime.[1] It is for the accused to decide what line of defence to adopt in order to raise doubt in the mind of the judges as to his responsibility for the offences charged, in this case by producing evidence tending to support or to establish the alleged alibi.[2] The only purpose of an alibi is to cast reasonable doubt on the Prosecutor’s allegations, which must be proven beyond reasonable doubt. In alleging an alibi, the accused merely obliges the Prosecution to demonstrate that there is no reasonable likelihood that the alibi is true. In other words, the Prosecution must establish beyond a reasonable doubt that, “despite the alibi, the facts alleged are nevertheless true”.[3]

418. There is thus no obligation on the Prosecution to investigate the alibi. […]

In the present case, the Appeals Chamber found that the Trial Chamber’s assessment of the alibi evidence was erroneous and concluded that it had not been established beyond reasonable doubt that the Appellant committed the crimes in question (paras 413-474 of the Appeal Judgement).

[1] Kayishema and Ruzindana Appeal Judgement, para. 106. See also Niyitegeka Appeal Judgement, para. 60; Musema Appeal Judgement, para. 200.

[2] Musema Appeal Judgement, para. 202; Kayishema and Ruzindana Appeal Judgement, paras. 110-111.

[3]Musema Appeal Judgement, para. 202. See also Limaj et al. Appeal Judgement, para. 63; Kamuhanda Appeal Judgement, para. 167; Kajelijeli Appeal Judgement, paras. 41-42.

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Notion(s) Filing Case
Decision on Consolidated Motion - 08.12.2006 RUTAGANDA George
(ICTR-96-03-R)

8. Review proceedings are governed by Article 25 of the Statute and Rules 120 and 121 of the Rules. Review of a final judgement is an exceptional procedure and is not meant to provide an additional opportunity for a party to remedy its failings at trial or on appeal.[1] Review may be granted only when the moving party satisfies the following cumulative criteria: (1) there is a new fact; (2) the new fact was not known to the moving party at the time of the original proceedings; (3) the lack of discovery of that new fact was not the result of lack of due diligence by the moving party; and (4) the new fact could have been a decisive factor in reaching the original decision.[2] In wholly exceptional circumstances, the Appeals Chamber may grant review, even where the second or third criteria are not satisfied, if ignoring the new fact would result in a miscarriage of justice.[3]

9. The Appeals Chamber recalls that a “new fact” refers to new information of an evidentiary nature of a fact that was not in issue during the trial or appeal proceedings.[4] By the phrase “not in issue”, the Appeals Chamber has held that “it must not have been among the factors that the deciding body could have taken into account in reaching its verdict.”[5] In other words, what is relevant is whether the deciding body knew about the fact or not in arriving at the decision.[6]

[1] Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R, Decision on Request for Review, 30 June 2006, paras 5-7 (“Niyitegeka Review Decision”). See also Jean-Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision (Prosecutor’s Request for Review or Reconsideration), 31 March 2000, para. 43 (“Barayagwiza Review Decision”).

[2] Niyitegeka Review Decision, paras 5-7. See also Blaškić Review Decision [ Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-R, Decision on Prosecutor’s Request for Review or Reconsideration, 23 November 2006], para. 7; The Prosecutor v. Zoran Žigić, Case No. IT-98-30/1-R.2, Decision on Zoran Žigić’s Request for Review under Rule 119, 25 August 2006, para. 8 (“Žigić Review Decision”); The Prosecutor v. Mlađo Radić, Case No. IT-98-30/1-R.1, Decision on Defence Request for Review, 31 October 2006, paras 9-11 (“Radić Review Decision”).

[3] Niyitegeka Review Decision, para. 7; Blaškić Review Decision, para. 8; Radić Review Decision, para. 11; The Prosecutor v. Duško Tadić, Case No. IT-94-1-R, Decision on Request for Review, 30 July 2002, paras 26, 27 (“Tadić Review Decision”).

[4] Niyitegeka Review Decision, para. 6. See also Blaškić Review Decision, paras 14, 15; Tadić Review Decision, para. 25.

[5] Niyitegeka Review Decision, para. 6. See also Blaškić Review Decision, paras 14, 15; Tadić Review Decision, para. 25.

[6] Blaškić Review Decision, para. 14.

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ICTR Statute Article 25 ICTY Statute Article 26 ICTR Rule Rule 120;
Rule 121;
Rule 122
ICTY Rule Rule 119;
Rule 120;
Rule 121
Notion(s) Filing Case
Decision on Access to Confidential Material - 22.04.2009 RUTAGANDA George
(ICTR-96-3-R)

10. The Appeals Chamber recalls that where a party requests access to confidential material from another case, such material must be identified or described by its general nature and a legitimate forensic purpose for accessing it must be demonstrated.[1] Consideration must be given to the relevance of the material sought, which may be demonstrated by showing the existence of a nexus between the requesting party’s case and the case from which such material is sought.[2] Such a factual nexus may be established, for example, “if the cases stem from events alleged to have occurred in the same geographic area at the same time,”[3] although this may not always be necessary or sufficient.[4] Rather, a case-specific analysis is required in each instance.[5] A Chamber must be satisfied that the requesting party has established that this material is likely to assist its case materially or that there is at least a good chance that it would.[6]

11. Once it is determined that confidential material filed in another case may materially assist an applicant, the Chamber shall determine which protective measures shall apply to the material, as it is within the Chamber’s discretionary power to strike a balance between the rights of a party to have access to material to prepare its case, and guaranteeing the protection and integrity of confidential information.[7] Failure by the Trial Chamber to apply this approach amounts to a discernible error based on an incorrect interpretation of the governing law.[8]

[1] Nahimana et al. Decision, para. 12.

[2] See Niyitegeka Decision of 23 October 2008 [Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R75, Decision on Eliézer Niyitegeka’s Appeal Concerning Access to Confidential Materials in the Muhimana and Karemera et al. Cases, 23 October 2008], para. 21, referring to Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Decision on Appellants Dario Kordić and Mario Čerkez’s Request for Assistance of the Appeals Chamber in Gaining Access to Appellate Briefs and Non-Public Post Appeal Pleadings and Hearing Transcripts filed in the Prosecutor v. Blaškić, 16 May 2002 (“Blaškić Decision”), para. 15.

[3] See Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Decision on Momčilo Perišić’s Motion Seeking Access to Confidential Material in the Blagojević and Jokić Case, 18 January 2006 (“Blagojević and Jokić Decision”), para. 4 (internal quotations and citations omitted); Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Decision on Momcilo Perisić’s Motion Seeking Access to Confidential Material in the Galić Case, 16 February 2006, para. 3.

[4] Prosecutor v. Fatmir Limaj et al., Case No. IT-03-66-A, Decision on Haradinaj Motion for Access, Balaj Motion for Joinder, and Balaj Motion for Access to Confidential Materials in the Limaj Case, 31 October 2006 (“Limaj et al. Decision”), para. 7, citing Blaškić Decision, paras. 15, 16.

[5] Limaj et al. Decision, para. 7.

[6] Niyitegeka Decision of 23 October 2008, referring to Blaškić Decision Decision, para. 15. For discussion of the circumstances which would be relevant to establishing the requisite nexus, see, e.g., Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-A, Decision on Motion by Mićo Stanišić for Access to All Confidential Material in the Krajišnik Case, 21 February 2007, p. 5; Blagojević and Jokić Decision, para. 5; Blaškić Decision, para. 16; Prosecutor v. Milan Martić, Case No. IT-95-11-A, Decision on Motion by Jovica Stanišić for Access to Confidential Testimony and Exhibits in the Martić Case, 22 February 2008, para. 10.

[7] See Niyitegeka Decision of 23 October 2008, para. 21, citing Prosecutor v. Mladen Naletilić et al., Case No. IT-98-34-A, Decision on “Slobodan Praljak’s Motion for Access to Confidential Testimony and Documents in Prosecutor v. Naletilić and Martinović” and “Jadranko Prlić’s Notice of Joinder to Slobodan Praljak’s Motion for Access”, 13 June 2005, p. 7; Blagojević and Jokić Decision, para. 7.

[8] Niyitegeka Decision of 23 October 2008, para. 23.

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ICTR Rule Rule 75 ICTY Rule Rule 75
Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

322. Under Articles 17(4), 20(2), 20(4)(a) and 20(4)(b) of the Statute and Rule 47(C) of the Rules, the Prosecutor must state the material facts underpinning the charges in the indictment, but not the evidence by which such facts are to be proved.[1] The indictment is pleaded with sufficient particularity only if it sets out the material facts of the Prosecution case with enough detail to inform a defendant clearly of the charges against him or her so that he or she may prepare his or her defence.[2] An indictment which fails to duly set forth the specific material facts underpinning the charges against the accused is defective.[3] The Appeals Chamber emphasises that the issue as to whether a fact is material or not cannot be determined in the abstract: whether or not a fact is considered “material” depends on the nature of the Prosecution's case.[4]

[1] See, inter alia, Simić Appeal Judgement, para. 20; Ntagerura et al. Appeal Judgement, para. 21; Kupreškić et al. Appeal Judgement, para. 88.

[2] Simić Appeal Judgement, para. 20; Ntagerura et al. Appeal Judgement, para. 22; Kupreškić et al. Appeal Judgement, para. 88.

[3] Ntagerura et al. Appeal Judgement, para. 22; Niyitegeka Appeal Judgement, para. 195; Kupreškić et al. Appeal Judgement, para. 114.

[4] Ndindabahizi Appeal Judgement, para. 16; Ntagerura et al. Appeal Judgement, para. 23.

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ICTR Statute Article 17(4) ICTY Statute Article 18(4) ICTR Rule Article 47(C) ICTY Rule Article 47(C)
Notion(s) Filing Case
Decision on Review - 19.03.2009 NALETILIĆ Mladen
(IT-98-34-R)

10. The combined effect of Article 26 of the Statute and Rules 119 and 120 of the Rules is such that for a moving party to succeed in persuading a Chamber to review its judgement, the party must show that: (1) there is a new fact; (2) the new fact was not known to the moving party at the time of the original proceedings; (3) the lack of discovery of that new fact was not the result of a lack of due diligence by the moving party; and (4) the new fact could have been a decisive factor in reaching the original decision.[1] In wholly exceptional circumstances, review may still be permitted even though the new fact was known to the moving party at the time of the original proceedings or was discoverable by it through the exercise of due diligence, if ignoring such new fact would result in a miscarriage of justice.[2] Review of a final judgement is an exceptional procedure and not an additional opportunity for a party to re-litigate arguments that failed at trial or on appeal.[3]

[1] Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-R, Decision on Prosecutor’s Request for Review or Reconsideration (Public Redacted Version), 23 November 2006 (“Blaškić Review Decision”), para. 7; Prosecutor v. Mlađo Radić, Case No. IT-98-30/1-R.1, Decision on Defence Request for Review (Public Redacted Version), 31 October 2006 (“Radić Review Decision”), paras 9-10; Prosecutor v. Zoran Žigić, Case No. IT-98-30/1-R.2, Decision on Zoran Žigić’s Request for Review under Rule 119, 25 August 2006, para. 8; Prosecutor v. Duško Tadić, Case No. IT-94-1-R, Decision on Request for Review, 30 July 2002 (French), 8 August 2002 (English) (“Tadić Review Decision”), para. 20. See also George A. N. Rutaganda v. The Prosecutor, Case No. ICTR-96-03-R, Decision on Requests for Reconsideration, Review, Assignment of Counsel, Disclosure, and Clarification, 8 December 2006 (“Rutaganda Review Decision”), para. 8; The Prosecutor v. Aloys Simba, Case No. ICTR-01-76-A, Decision on Aloys Simba’s Requests for Suspension of Appeal Proceedings and Review, 9 January 2007, para. 8; Eliezer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R, Decision on Third Request for Review, 23 January 2008 (“Niyitegeka Review Decision”), para. 13.

[2] Blaškić Review Decision, para. 8; Radić Review Decision, para. 11; Tadić Review Decision, paras 26-27. See also Rutaganda Review Decision, para. 8; Niyitegeka Review Decision, para. 13.

[3] Vidoje Blagojević v. Prosecutor, Case No. IT-02-60-R, Decision on Vidoje Blagojević’s Request for Review, 15 July 2008, para. 4; Rutaganda Review Decision, para. 8. See also Niyitegeka Review Decision, para. 13; Jean-Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision (Prosecutor’s Request for Review or Reconsideration), 31 March 2000, para. 43.

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ICTR Statute Article 25 ICTY Statute Article 26 ICTR Rule Rule 120;
Rule 121
ICTY Rule Rule 119;
Rule 120
Notion(s) Filing Case
Appeal Judgement - 18.03.2010 NCHAMIHIGO Siméon
(ICTR-01-63-A)

92. […] the Appeals Chamber recalls the basic principles of the assessment of alibi evidence before considering the specific contentions raised under each ground. The Appeals Chamber recalls that an alibi does not constitute a defence in its proper sense.[1] By raising an alibi, an accused is simply denying that he was in a position to commit the crime with which he was charged.[2] An accused does not bear the burden of proving his alibi beyond reasonable doubt.[3] Rather, “[h]e must simply produce the evidence tending to show that he was not present at the time of the alleged crime.”[4] If the alibi is reasonably possibly true, it must be accepted.[5]

93. Where an alibi is properly raised, the Prosecution must establish beyond reasonable doubt that, despite the alibi, the facts alleged are nevertheless true.[6] The Prosecution may do so, for instance, by demonstrating that the alibi does not in fact reasonably account for the period when the accused is alleged to have committed the crime. Where the alibi evidence does prima facie account for the accused’s activities at the time of the commission of the crime, the Prosecution must “eliminate the reasonable possibility that the alibi is true,”[7] for example, by demonstrating that the alibi evidence is not credible.

97. In certain circumstances, failure to raise an alibi in a timely manner can impact a Trial Chamber’s findings,[8] as it may take such failure into account when weighing the credibility of the alibi.[9] Therefore, the Trial Chamber was entitled to take into account the Appellant’s late submission of the Notice of Alibi when assessing the credibility of the alibi.[10]

[1] Zigiranyirazo Appeal Judgement, para. 17, citing Ndindabahizi Appeal Judgement, para. 66; Kajelijeli Appeal Judgement, paras. 41, 42; Kayishema and Ruzindana Appeal Judgement, para. 106; Čelebići Appeal Judgement, para. 581.

[2] Zigiranyirazo Appeal Judgement, para. 17, citing Nahimana et al. Appeal Judgement, para. 414; Ndindabahizi Appeal Judgement, para. 66; Kajelijeli Appeal Judgement, paras. 41, 42; Niyitegeka Appeal Judgement, para. 60; Musema Appeal Judgement, paras. 205, 206; Kayishema and Ruzindana Appeal Judgement, para. 106; Čelebići Appeal Judgement, para. 581.

[3] Zigiranyirazo Appeal Judgement, para. 17, citing Nahimana et al. Appeal Judgement, para. 414; Simba Appeal Judgement, para. 184; Karera Appeal Judgement, para. 331; Musema Appeal Judgement, para. 202; Kayishema and Ruzindana Appeal Judgement, para. 107.

[4] Zigiranyirazo Appeal Judgement, para. 17, quoting Musema Appeal Judgement, para. 202.

[5] Zigiranyirazo Appeal Judgement, para. 17, citing Nahimana et al. Appeal Judgement, para. 414; Kamuhanda Appeal Judgement, para. 38; Kajelijeli Appeal Judgement, para. 41; Musema Appeal Judgement, paras. 205, 206.

[6] Zigiranyirazo Appeal Judgement, para. 18, citing Karera Appeal Judgement, para. 330; Nahimana et al. Appeal Judgement, para. 414; Simba Appeal Judgement, para. 184; Kajelijeli Appeal Judgement, para. 42; Niyitegeka Appeal Judgement, para. 60; Musema Appeal Judgement, paras. 205, 206; Kayishema and Ruzindana Appeal Judgement, para. 107; Limaj et al. Appeal Judgement, para. 64.

[7] Zigiranyirazo Appeal Judgement, para. 18, citing Kajelijeli Appeal Judgement, para. 41; Kayishema and Ruzindana Appeal Judgement, para. 106. See also Limaj et al. Appeal Judgement, paras. 64, 65; Čelebići Appeal Judgement, para. 581.

[8] Rutaganda Appeal Judgement, fn. 392.

[9] Kajelijeli Trial Judgement, para. 164; Kamuhanda Trial Judgement, para. 82; Musema Trial Judgement, para. 107; Niyitegeka Trial Judgement, para. 50; Kayishema and Ruzindana Trial Judgement, para. 237; Semanza Trial Judgement, para. 82.

[10] Trial Judgement, para. 20. 

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Notion(s) Filing Case
Appeal Judgement - 05.07.2001 JELISIĆ Goran
(IT-95-10-A)

36. [T]he notion of proof of guilt beyond reasonable doubt must be retained in the operation of Rule 98bis(B). This was recognised by Trial Chamber II’s decision in Kunarac.  The test applied in that case was correctly stated to be “whether there is evidence (if accepted) upon which a reasonable tribunal of fact could convict - that is to say, evidence (if accepted) upon which a reasonable tribunal of fact could be satisfied beyond reasonable doubt of the guilt of the accused on the particular charge in question. If the evidence does not reach that standard, then the evidence is, to use the words of Rule 98bis(B), ‘insufficient to sustain a conviction’”.[1] […]

37. The next question is how should the test of guilt beyond reasonable doubt be applied in this situation. The Appeals Chamber considers that the reference in Rule 98bis to a situation in which “the evidence is insufficient to sustain a conviction” means a case in which, in the opinion of the Trial Chamber, the prosecution evidence, if believed,[2] is insufficient for any reasonable trier of fact to find that guilt has been proved beyond reasonable doubt. In this respect, the Appeals Chamber follows its recent holding in the Delalić appeal judgement, where it said: “[t]he test applied is whether there is evidence (if accepted) upon which a reasonable tribunal of fact could be satisfied beyond reasonable doubt of the guilt of the accused on the particular charge in question”.[3] The capacity[4] of the prosecution evidence (if accepted) to sustain a conviction beyond reasonable doubt by a reasonable trier of fact is the key concept; thus the test is not whether the trier would in fact arrive at a conviction beyond reasonable doubt on the prosecution evidence (if accepted) but whether it could.  At the close of the case for the prosecution, the Chamber may find that the prosecution evidence is sufficient to sustain a conviction beyond reasonable doubt and yet, even if no defence evidence is subsequently adduced, proceed to acquit at the end of the trial, if in its own view of the evidence, the prosecution has not in fact proved guilt beyond reasonable doubt.

See also paras. 33–35, 68.

[1] Prosecutor v. Dragoljub Kunarac et al, Case Nos.: IT-96-23-T, IT-23-1-T, Decision on motion for acquittal, 3 July 2000 (“the Kunarac decision”), para. 3, p. 3 (emphasis in original). And see, ibid., paras 7 - 8, pp. 4-5.

[2] As to the permissibility of drawing inferences at the close of the case for the prosecution, see Monteleone v. The Queen [1987] 2 S.C.R. 154, in which McIntyre J., for the court, said: “It is not for the trial judge to draw inferences of fact from the evidence before him”.  And see the reference to “inferences” in Her Majesty v. Al Megrahi and Another, infra. Cf. Kvočka decision, para. 12, p. 5, in which the Trial Chamber said: “The Chamber prefers an objective standard, under which it is entitled at this stage to apply any reasonable inferences and presumption or legal theories when reviewing the Prosecution evidence”.  The issue thus posed is not passed upon here.

[3]Delalić appeal judgement, para. 434, p. 148 (emphasis in original).  Or, as it was correctly put by Trial Chamber II in the Kunarac decision, para. 10, p. 6, the “prosecution needs only to show that there is evidence upon which a reasonable tribunal of fact could convict, not that the Trial Chamber itself should convict” (emphasis in original).

[4] According to MacKinnon A.C.J.O. in R. v. Syms (1979) 47 C.C.C. (2d) 114 at 117, a trial judge should withdraw a case from the jury only where “the evidence was so slight or tenuous that it would be incapable of supporting a verdict of guilty”.

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ICTR Rule Rule 98 bis ICTY Rule Rule 98 bis
Notion(s) Filing Case
Appeal Judgement - 05.07.2001 JELISIĆ Goran
(IT-95-10-A)

Following its finding that the Trial Chamber’s acquittal for genocide did not meet the standard set forth in Rule 98bis(B), the Appeals Chamber used its discretion pursuant to Rule 117(C) of the Rules to order that there be no retrial on the one count of genocide:

 

73. […] [T]his discretion is recognised as well in the wording of Rule 117(C) of the Rules which provides that in “appropriate circumstances the Appeals Chamber may order that the accused be retried according to law”.[1] Similarly, national case law gives discretion to a court to rule that there should be no retrial.[2] The discretion must of course be exercised on proper judicial grounds, balancing factors such as fairness to the accused, the interests of justice, the nature of the offences, the circumstances of the case in hand and considerations of public interest.  These factors (and others) would be determined on a case by case basis. […]

 

[1] Cf. Rigby v. Woodward [1957] 1 WLR 250, and Griffith v. Jenkins and another, (1991) 156 JP 29.

[2] For a solution of this kind, see inter alia, Cosier case, Barking case.  See also United States v. Hooper, 432 F.2nd 604, 139 U.S.App.D.C.171 (1970), United States v. Lindsey, 47 F.3d 440, 310 U.S. App.D.C.300 (1995).

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ICTR Rule Rule 118(C) ICTY Rule Rule 117(C)
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.

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ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Additional Evidence - 01.12.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

At paras 19-22, the Appeals Chamber recalls the criteria of admissibility of additional evidence on appeal under Rule 115, inter alia, the time limit, the unavailability at trial, the relevance, the credibility and the impact on the verdict:

19. Rule 115 of the Rules provides for a corrective measure on appeal, and its purpose 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”.[1] According to this provision, 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 further delay”.[2] Second, 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 is 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.[3]

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 is devoid of any probative value in relation to a decision pursuant to Rule 115”[4], without prejudice to a determination of the weight to be afforded.[5]

20. 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.”[6] To satisfy this, 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.[7] Accordingly, the additional evidence must be directed at a specific finding of fact related to a conviction or to the sentence.

21. Although Rule 115 of the Rules does not explicitly provide for this, the Appeals Chamber has considered that, where the evidence is relevant and credible, but was available at trial, or could have been discovered through the exercise of due diligence, the additional evidence may still be admitted if the moving party establishes that the exclusion of the additional evidence would amount to a miscarriage of justice inasmuch as, had it been adduced at trial, it would have had an impact on the verdict.[8]

22. Finally, the Appeals Chamber recalls that, whether the evidence was available at trial or not, the additional evidence must always be assessed in the context of the evidence presented at trial, and not in isolation.[9]

[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; Barayagwiza Decision of 4 October 2005, p. 4; Ngeze Decision on Additional Evidence, para. 6.

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

[3] Prosecutor v. André 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].

[4] Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Decision on the First and Third Rule 115 Motions to Present Additional Evidence Before the Appeals Chamber, 30 June 2005 (“Galić 30 June 2005 Decision”), para. 95; Emmanuel Ndindabahizi v. The Prosecutor, Case No. ICTR-01-71-A, Decision on the Admission of Additional Evidence, 14 April 2005, p. 6; See also Prosecutor v. Mladen Naletilić & Vinko Martinović, Case No. IT-98-34-A, Judgement, 3 May 2006, para. 402; 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. 22; Georges Anderson Nderubumwe Rutaganda v. The Prosecutor, Case No. ICTR-96-3-A, Judgement, 23 May 2003, para. 266.

[5] 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; Kupreškić Appeal Judgement, para. 63; Prosecutor v. Blaškić, Case No. IT-95-14-A, Decision on Evidence, 31 October 2003 (“Blaškić Decision of 31 October 2003”), p. 3; Ngeze Decision on Additional Evidence, para. 7; Ngeze Decision on Further Investigations, para. 5.

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

[7] 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; Ngeze Decision on Additional Evidence, para. 8; Ngeze Decision on Further Investigations, para. 6.

[8] 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; Ngeze Decision on Additional Evidence, para. 9; Ngeze Decision on Further Investigations, para. 7.

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

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ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Appeal Judgement - 19.09.2005 KAMUHANDA Jean de Dieu
(ICTR-99-54A-A)

167. The Trial Chamber correctly[1] stated that an alibi “does not constitute a defence in its proper sense”.[2] In general, a defence comprises grounds excluding criminal responsibility although the accused has fulfilled the legal elements of a criminal offence. An alibi, however, is nothing more than the denial of the accused’s presence during the commission of a criminal act. In that sense, an alibi differs from a defence in the above-mentioned sense in one crucial aspect. In the case of a defence, the criminal conduct has already been established and is not necessarily disputed by the accused who argues that due to specific circumstances he or she is not criminally responsible, e.g. due to a situation of duress or intoxication. In an alibi situation, however, the accused “is denying that he was in a position to commit the crimes with which he is charged because he was elsewhere than at the scene of the crime at the time of its commission”.[3] An alibi, in contrast to a defence, is intended to raise reasonable doubt about the presence of the accused at the crime site, this being an element of the prosecution’s case, thus the burden of proof is on the prosecution

[1] See also Kajelijeli Appeal Judgement, para. 41.

[2] This has been agreed upon in similar terms by the Prosecution upon a question from Judge Schomburg, cf.T. 19 May 2005 p. 93:

Judge Schomburg: “So you agree that alibi has no longer to be seen as a specific Defence?”

Ms. Reichman: “[I]t isn’t raised as a specific defence here. I would say that is true.”

[3] Kajelijeli Appeal Judgement, para. 42.

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Notion(s) Filing Case
Decision on Review - 12.03.2009 NIYITEGEKA Eliézer
(ICTR-96-14-R)

21. The Appeals Chamber recalls that review proceedings are governed by Article 25 of the Statute of the Tribunal (“Statute”) and Rules 120 and 121 of the Rules. The Appeals Chamber strongly emphasizes that review of a final judgement is an exceptional procedure and not an additional opportunity for a party to re-litigate arguments that failed at trial or on appeal.[1] In order for review to be granted, the moving party must show that: (i) there is a new fact; (ii) the new fact was not known to the moving party at the time of the original proceedings; (iii) the lack of discovery of that new fact was not the result of a lack of due diligence by the moving party; and (iv) the new fact could have been a decisive factor in reaching the original decision.[2] In wholly exceptional circumstances, the Appeals Chamber may nonetheless grant review, even where the new fact was known to the moving party at the time of the original proceedings or the lack of discovery of the fact was the result of a lack of due diligence by the moving party, if ignoring the new fact would result in a miscarriage of justice.[3]

[1] Decision on Third Request for Review, 23 January 2008 (“Third Review Decision”), para. 13; Georges Anderson Nderubumwe Rutaganda v. The Prosecutor, Case No. ICTR-96-03-R, Decision on Requests for Reconsideration, Review, Assignment of Counsel, Disclosure, and Clarification, 8 December 2006 (“Rutaganda Review Decision”), para. 8. See also First Review Decision, paras. 5-7; Jean-Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision (Prosecutor’s Request for Review or Reconsideration), 31 March 2000, para. 43.

[2] Third Review Decision, para. 13; Rutaganda Review Decision, para. 8; The Prosecutor v. Aloys Simba, Case No. ICTR-01-76-A, Decision on Aloys Simba’s Requests for Suspension of Appeal Proceedings and Review, 9 January 2007, para. 8; First Review Decision, paras. 5-7. See also Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-R,  Decision on Prosecutor’s Request for Review or Reconsideration, 23 November 2006 (“Blaškić Review Decision”), para. 7; Prosecutor v. Mlađo Radić, Case No. IT-98-30/1-R.1, Decision on Defence Request for Review, 31 October 2006, paras. 9-11; Prosecutor v. Zoran Žigić, Case No. IT-98-30/1-R.2, Decision on Zoran Žigić’s Request for Review under Rule 119, 25 August 2006, para. 8; Prosecutor v. Duško Tadić, Case No. IT-94-1-R, Decision on Request for Review, 30 July 2002 (“Tadić Review Decision”), para. 20.

[3] Third Review Decision, para. 13; Rutaganda Review Decision, para. 8; Blaškić Review Decision, para. 8; Tadić Review Decision, paras. 26, 27. 

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ICTR Statute Article 25 ICTY Statute Article 26 ICTR Rule Rule 120;
Rule 121
ICTY Rule Rule 119;
Rule 120
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.

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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.

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ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Appeal Judgement - 08.05.2012 KANYARUKIGA Gaspard
(ICTR-02-78-A)

97. The Appeals Chamber recalls that Rule 67(A)(ii)(a) of the Rules requires the Defence to notify the Prosecution before the commencement of trial of its intent to rely on an alibi. The notification is to “specify the place or places at which the accused claims to have been present at the time of the alleged crime and the names and addresses of the witnesses and any other evidence upon which the accused intends to rely to establish the alibi”.[1] In certain circumstances, failure to raise an alibi in a timely manner can impact a trial chamber’s findings, as the trial chamber may take such failure into account when weighing the credibility of the alibi.[2] The Appeals Chamber recalls that it has previously upheld trial chambers’ inferences that the failure to raise an alibi in a timely manner suggested that the alibi was invented to respond to the Prosecution case.[3]

[1] Rule 67(A)(ii)(a) of the Rules [Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda].

[2] Munyakazi Appeal Judgement, para. 18; Nchamihigo Appeal Judgement, para. 97; Kalimanzira Appeal Judgement, para. 56; Ndindabahizi Appeal Judgement, para. 66.

[3] Cf. Kalimanzira Appeal Judgement, paras. 54-58; Nchamihigo Appeal Judgement, paras. 94-99.

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Notion(s) Filing Case
Decision on Adequate Facilities - 07.05.2009 KARADŽIĆ Radovan
(IT-95-5/18-AR73.2)

13.     […] The Trial Chamber concluded, relying on the Krajišnik Appeal Decision, that:

[s]hould the Accused lack the ability to present his defence efficiently or effectively because of his lack of knowledge of law and legal procedures, or because of the complexities of the case, the solution envisaged by the Appeals Chamber was not the provision of experienced, high-level professional assistants but “restriction of his right to self representation”.[1]

The Appellant submits that the Krajišnik Appeal Decision did not contemplate that the remedy to an accused’s inability to undertake his own defence without high-level legal support was the restriction of his right to self-representation because the relevant portion of the Krajišnik Appeal Decision cites the Šešelj Appeal Decision which was concerned with the imposition of counsel in a situation of disruptive behaviour rather than a need for legal assistance.[2] Accordingly, the Appellant submits that the imposition of counsel referred to in the Krajišnik Appeal Decision addresses a situation in which “either through disruptive behaviour or continued poor health, [the accused] exhibits conduct which substantially obstructs the conduct of the trial” not a situation of lack of knowledge of the law or legal procedures.[3] However, the Appeals Chamber finds that, read in context, the Krajišnik Appeal Decision was indeed addressing an accused’s ability to conduct his own trial, not a situation of misconduct or ill health. The Krajišnik Appeal Decision reads:

Moreover, the Appeals Chamber considers that where an accused elects to self-represent, he is asserting his ability to conduct his case without legal assistance and thus Tribunal funding for legal aid for him can be presumed to be unnecessary to the conduct of fair trial. To the extent that an accused lacks the ability to conduct his own case and his self-representation is thus “substantially and persistently obstructing the proper and expeditious conduct of his trial”, then the remedy is the restriction of his right to self-representation. To allow an accused to self-represent and yet also receive full legal aid funding from the Tribunal would, as the saying goes, let him have his cake and eat it too.[4]

14. Accordingly the Appeals Chamber finds no error in the Trial Chamber’s interpretation of the Krajišnik Appeal Decision to the effect that where an accused lacks the requisite knowledge of the law or legal procedures to the extent that it will substantially and persistently obstruct the proper and expeditious conduct of the trial, the solution is not the funding of highly experienced legal associates, but rather the curtailment of his right to self-representation.

[1] Impugned Decision [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-PT, Decision on Accused Motion for Adequate Facilities and Equality of Arms: Legal Associates, 28 January 2009 (“Impugned Decision”)], para. 31, citing Krajišnik Appeal Decision [Prosecutor v. Momčilo Krajišnik, Case No. IT-0039-A, Decision on Krajišnik Request and on Prosecution Motion, 11 September 2007 (“Krajišnik Appeal Decision”)], para. 41.

[2] Appeal [Appeal of the Trial Chamber’s Decision on Adequate Facilities, 5 March 2009 (“Appeal”)], paras 16-17, citing Krajišnik Appeal Decision, para. 41; Prosecutor v. Vojislav [ešelj, Case No. IT-03-67-AR73.3, Decision on Appeal Against the Trial Chamber’s Decision on Assignment of Counsel, 20 October 2006 (“[ešelj Appeal Decision”), para. 20.

[3] Appeal, para. 17.

[4] Krajišnik Appeal Decision, para. 41, citing [ešelj Appeal Decision, para. 20. 

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ICTR Statute Article 20(4)(d) ICTY Statute Article 21(4)(d)
Notion(s) Filing Case
Decision on Joinder - 27.01.2006 TOLIMIR et al.
(IT-04-80-AR73.1)

The Appeals Chamber recalled the definition of the “same transaction” under Rule 2 of the Rules. It then set out the factors that a Trial Chamber may consider in deciding whether to join two or more accused in one case:

7. The Appeals Chamber considers that pursuant to Rule 48 of the Rules, “persons accused of the same or different crimes committed in the course of the same transaction may be jointly charged and tried.” Thus, the fundamental question for the Trial Chamber under Rule 48 is whether the two or more persons at issue for possible joinder in one trial are charged with: (1) having committed crimes, regardless of whether those crimes are alleged to be the same crimes, (2) “in the course of the same transaction.” A transaction is defined under Rule 2 of the Rules as “[a] number of acts or omissions whether occurring as one event or a number of events, at the same or different locations and being part of a common scheme, strategy or plan.” Pursuant to Rule 2 therefore, a common scheme, strategy or plan includes one or a number of events at the same or different locations.[1] Furthermore, there is no requirement under Rules 2 and 48 that the events constituting the “same transaction” take place at the same time or be committed together.[2] The Appeals Chamber agrees with the Trial Chamber that “[i]n deciding whether charges against more than one accused should be joined pursuant to Rule 48, the Chamber should base its determination upon the factual allegations contained in the indictments and related submissions.”[3]

8. Where a Trial Chamber finds that two or more persons have allegedly committed crimes in the course of the same transaction, it then considers various factors, which it weighs in the exercise of its discretion as to whether joinder should be granted. Rule 82 (A) provides that “[i]n joint trials, each accused shall be accorded the same rights as if such accused were being tried separately.” The rights of an accused at trial are explicitly listed under Article 21 of the Statute of the International Tribunal. Rule 82(B) further provides that a Trial Chamber “may order that persons accused jointly under Rule 48 be tried separately if it considers it necessary in order to avoid a conflict of interests that might cause serious prejudice to an accused, or to protect the interests of justice.” Therefore, in light of Rule 82, it is appropriate for a Trial Chamber deciding whether to join two or more accused into one case pursuant to Rule 48 to take into consideration and weigh the following: (1) protection of the rights of the accused pursuant to Article 21 of the Statute; (2) avoidance of any conflict of interests that might cause serious prejudice to an accused; and (3) protection of the interests of justice. A Trial Chamber may, of course, look to other factors in its discretion, which it deems important for considering whether joinder under Rule 48 would be appropriate. For example, in this case, in addition to weighing the first two factors mentioned previously, the Trial Chamber also considered that a single trial would better ensure the interests of justice by (1) avoiding the duplication of evidence; (2) promoting judicial economy; (3) minimising hardship to witnesses and increasing the likelihood that they will be available to give evidence; and (4) ensuring consistency of verdicts.[4]

See also Pandurević Decision on Joinder of Accused, paras 7-8.

[1] Milošević Decision on Joinder, para. 14.

[2] Ibid.

[3] Impugned Decision, para. 8. Cf. Milošević Decision on Joinder, paras 19-21 (wherein the Appeals Chamber only looked to facts alleged in the three indictments against the Accused to determine whether the events alleged therein formed part of the same transaction pursuant to Rule 49).

[4] Impugned Decision, para. 34. Some, if not all, of these factors have also been considered in other Trial Chamber decisions on joinder under Rule 48. See, e.g., Prosecutor v. Milan Martić, Case No. IT-95-11-PT, Prosecutor v. Jovica Stanišić & Franko Simatović, Case No. IT-03-69-PT, Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-PT, Decision on Prosecution Motion for Joinder, 10 November 2005, para. 9; Prosecutor v. Milan Milutinović et al., Case No. IT-99-37-PT, Prosecutor v. Nebojša Pavković et al., Case No. IT-03-70-PT, Decision on Prosecution Motion for Joinder; Prosecutor v. Rahim Ademi, Case No. IT-01-46-PT, Prosecutor v. Mirko Norac, Case No. IT-04-76-I, Decision on Motion for Joinder of Accused, 30 July 2004;  Prosecutor v. Mejakić et al., Case No. IT-02-65-PT, Decision on Prosecution’s Motion for Joinder of Accused, 17 September 2002, para. 24; Prosecutor v. Momir Nikolić et al., Case No. IT-02-56-PT, Prosecutor v. Vidoje Blagojević et al., Case No. IT-02-53-PT, Decision on Prosecution’s Motion for Joinder, 17 May 2002, para. 14.

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ICTR Rule Rule 3;
Rule 48;
Rule 49;
Rule 82(A);
Rule
ICTY Rule Rule 3;
Rule 48;
Rule 49;
Rule 82(A);
Rule
Notion(s) Filing Case
Decision on Indictment - 16.11.2011 UWINKINDI Jean
(ICTR-01-75-AR72(C))

4. The general principles governing the form of indictments are well established. Articles 17(4), 20(2), 20(4)(a), and 20(4)(b) of the Statute of the Tribunal (“Statute”) and Rule 47(C) of the Rules require the Prosecution to state the material facts underpinning the charges in the indictment, but not the evidence by which such facts are to be proved.[1] Whether a fact is “material” depends on the nature of the Prosecution’s case.[2]

5. The charges against an accused and the material facts supporting those charges must be pleaded with sufficient precision in the indictment in order to provide clear notice to the accused.[3] Decisive factors in determining the degree of specificity with which the Prosecution must plead the material facts of its case are the Prosecution’s characterisation of the alleged criminal conduct and the proximity of the accused to the underlying offence.[4] The Prosecution is expected to know its case before it goes to trial and cannot omit material aspects of its main allegations in the indictment with the aim of moulding the case against the accused in the course of the trial depending on how the evidence unfolds.[5] While it may be impracticable to require a high degree of specificity due to the sheer scale of the alleged crimes,[6] the indictment must particularise the material facts in such a way that the accused can prepare his defence.[7] In particular, the accused must be adequately informed about his role in the alleged crime.[8] An indictment which fails to set forth material facts in sufficient detail is defective.[9]

[1] The Prosecutor v. André Ntagerura et al., Case No. ICTR-99-46-A, Judgement, 7 July 2006 (“Ntagerura et al. Appeal Judgement”), para. 21 (the English translation of the French original was filed on 29 March 2007). See also Prosecutor v. Blagoje Simić, Case No. IT-95-9-A, Judgement, 28 November 2006 (“Simić Appeal Judgement”), para. 20.

[2] Tharcisse Renzaho v. The Prosecutor, Case No. ICTR-97-31-A, Judgement, 1 April 2011 (“Renzaho Appeal Judgement”), para. 53; François Karera v. The Prosecutor, Case No. ICTR-01-74-A, Judgement, 2 February 2009 (“Karera Appeal Judgement”), para. 292.

[3] Renzaho Appeal Judgement, para. 53; Emmanuel Rukundo v. The Prosecutor, Case No. ICTR-01-70-A, Judgement, 20 October 2010 (“Rukundo Appeal Judgement”), para. 29; Callixte Kalimanzira v. The Prosecutor, Case No. ICTR-05-88-A, Judgement, 20 October 2010 (“Kalimanzira Appeal Judgement”), para. 46; Tharcisse Muvunyi v. The Prosecutor, Case No. ICTR-00-55A-A, Judgement, 29 August 2008 (“Muvunyi I Appeal Judgement”), para. 18; The Prosecutor v. Athanase Seromba, Case No. ICTR-01-66-A, Judgement, 12 March 2008 (“Seromba Appeal Judgement”), para. 27; Aloys Simba v. The Prosecutor, Case No. ICTR-01-76-A, Judgement, 27 November 2007 (“Simba Appeal Judgement”), para. 63. See also Simić Appeal Judgement, para. 20; Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Judgement, 29 July 2004 (“Blaškić Appeal Judgement”), para. 209; Prosecutor v. Zoran Kupreškić et al., Case No. IT-95-16-A, Appeal Judgement, 23 October 2001 (“Kupreškić et al. Appeal Judgement”), para. 88.

[4] Ntagerura et al. Appeal Judgement, para. 23.

[5] Kupreškić et al. Appeal Judgement, para. 92. See also Muvunyi I Appeal Judgement, para. 18; Ntagerura et al. Appeal Judgement, para. 27.

[6] Kupreškić et al. Appeal Judgement, para. 89.

[7] Ntagerura et al. Appeal Judgement, para. 22; Simić Appeal Judgement, para. 20.

[8] Cf. Kupreškić et al. Appeal Judgement, para. 98.

[9] Renzaho Appeal Judgement, para. 55; Rukundo Appeal Judgement, para. 29; Kalimanzira Appeal Judgement, para. 46; Ntagerura et al. Appeal Judgement, para. 22.

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ICTR Statute Article 17(4) ICTY Statute Article 18(4) ICTR Rule Rule 47(C) ICTY Rule Rule 47(C)
Notion(s) Filing Case
Rule 98bis Judgement - 11.07.2013 KARADŽIĆ Radovan
(IT-95-5/18-AR98bis.1)

37. The Appeals Chamber recalls that a judgement of acquittal shall only be entered pursuant to Rule 98 bis of the Rules “if there is no evidence capable of supporting a conviction”.[1] Moreover, the Appeals Chamber recalls that pursuant to Rule 98 bis of the Rules, a trial chamber is required to “assume that the prosecution’s evidence [is] entitled to credence unless incapable of belief” and “take the evidence at its highest”.[2] The Appeals Chamber notes that the evidence reviewed by the Trial Chamber, taken at its highest, indicates that Bosnian Muslims and/or Bosnian Croats suffered injuries, including rape and severe non-fatal physical violence which are, on their face, suggestive of causing serious bodily harm.[3] While the commission of individual paradigmatic acts does not automatically demonstrate that the actus reus of genocide has taken place, the Appeals Chamber considers that no reasonable trial chamber reviewing the specific evidence on the record in this case, including evidence of sexual violence and of beatings causing serious physical injuries,[4] could have concluded that it was insufficient to establish the actus reus of genocide in the context of Rule 98 bis of the Rules. Accordingly, the Trial Chamber failed to take the evidence at its highest.

[1] Rule 98 bis of the Rules. See also supra [Judgement], para. 9.

[2] Jelisić Appeal Judgement, para. 55.

[3] Seromba Appeal Judgement, para. 46. See also Seromba Appeal Judgement, para. 48 (referring to “heinous crimes that obviously constitute serious bodily or mental harm, such as rape and torture”).

[4] See supra [Judgement], nn. 86-107. 

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ICTR Rule Rule 98 bis ICTY Rule Rule 98 bis
Notion(s) Filing Case
Decision on Judicial Notice - 16.06.2006 KAREMERA et al.
(ICTR-98-44-AR73(C))

After recalling the case-law on judicial notice of facts of common knowledge,[1] the Appeals Chamber held:

23. Whether a fact qualifies as a “fact of common knowledge” is a legal question.  By definition, it cannot turn on the evidence introduced in a particular case, and so the deferential standard of review ordinarily applied by the Appeals Chamber to the Trial Chamber’s assessment of and inferences from such evidence has no application. Mr. Nzirorera suggests that the Appeals Chamber should defer to the Trial Chamber’s discretion as to “admissibility of evidence” and “the manner in which facts are to be proven at trial”.[2] But the general rule that the Trial Chamber has discretion in those areas is superseded by the specific, mandatory language of Rule 94(A); as noted above, the Trial Chamber has no discretion to determine that a fact, although “of common knowledge”, must nonetheless be proven through evidence at trial.  For these reasons, a Trial Chamber’s decision whether to take judicial notice of a relevant[3] fact under Rule 94(A) is subject to de novo review on appeal.

[1] Decision, para. 22, referring to Prosecutor v. Semanza, Case No. ICTR-97-20-A, Judgement, 20 May 2005, para. 194.

[2] Nzirorera’s Response, para. 41-42.

[3] As Mr. Nzirorera suggests, see Nzirorera’s Response, para. 41, a Trial Chamber is not obligated to take judicial notice of facts that are not relevant to the case, even if they are “facts of common knowledge”.  Of course, it remains the case that the Trial Chamber “shall not require proof” of such facts, see Rule 94(A), since evidence proving an irrelevant fact would in any event be inadmissible under Rule 89(C) of the Rules.  Cf. Prosecutor v. Hadzihasanović and Kubura, Case No. IT-01-47-T, Final Decision on Judicial Notice of Adjudicated Facts, 20 April 2004 (holding that “before taking judicial notice of these four Definitively Proposed Facts the Chamber is obliged to verify their relevance, pursuant to Rule 89(C) of the Rules”).  Relevance determinations are circumscribed by various standards of law, but within the appropriate legal framework the Trial Chamber enjoys a margin of discretion.

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ICTR Rule Rule 94 ICTY Rule Rule 94
Notion(s) Filing Case
Decision on Interlocutory Appeal on Questions of Law - 18.09.2006 BAGOSORA et al. (Military I)
(ICTR-98-41-AR73)

Para. 18:

18. When the Defence is of the view that the Prosecution introduces evidence of material facts of which it had no notice, it can make an objection to the admission of such evidence for lack of notice.[1] If the Trial Chamber agrees with the Defence that insufficient notice has been given, it should exclude the challenged evidence in relation to the unpleaded material facts,[2] require the Prosecution to amend the indictment, grant an adjournment to allow the Defence adequate time to respond to the additional allegations,[3] or take other measures to preserve the rights of the accused to a fair trial.[4]  

[1] Prosecutor v. Anto Furund‘ija, Case No. IT-95-17/1-A, Judgement of 21 July 2000 (“Furund‘ija Appeal Judgement”), para. 61.

[2] In this connection, the Appeals Chamber recalls that a Chamber can find the particular evidence inadmissible to prove a material fact of which the accused was not on notice, but admissible with respect to other allegations sufficiently pleaded: Arsène Shalom Ntahobali & Pauline Nyiramasuhuko v. The Prosecutor, Case No. ICTR-97-21-AR73, “Decision of the Appeals by Pauline Nyiramasuhuko and Arsène Shalom Ntahobali on the ‘Decision on Defence Urgent Motion to Declare Parts of the Evidence of Witnesses RV and QBZ inadmissible’”, 2 July 2004, para. 15; Pauline Nyiramasuhuko v. The Prosecutor, Case No. ICTR-98-42-AR73, “Decision on Pauline Nyiramasuhuko’s Request for Reconsideration”, 27 September 2004, para. 12; Muvunyi Decision, para. 55 (“If evidence is relevant to a charge in the current indictment and is probative of that charge, then subject to any other ground for exclusion that may be advanced by the Defence, that evidence should be admissible.”).

[3] Kupreškić et al. Appeal Judgement, para. 92; Kvočka et al. Appeal Judgement, para. 31; Naletilić & Martinović Appeal Judgement, para. 25.

[4] For instance, in certain circumstances, the Trial Chamber could allow the Defence to recall witnesses for cross-examination after the Defence has completed further investigations: see The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73, “Decision on Prosecutor’s Interlocutory Appeal Against Trial Chamber III Decision of 8 October 2003 Denying Leave to File an Amended Indictment”, 19 December 2003 (“Karemera Decision”), para. 28. 

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Appeal Judgement - 07.07.2006 NTAGERURA et al. (Cyangugu)
(ICTR-99-46-A)

At paras 21-32, the Appeals Chamber recalled its previous case-law regarding the necessary elements of an indictment. It confirmed that, in exceptional cases, defects in an indictment can be “cured” if the Prosecution provides the accused with timely, clear and consistent information (para. 28). In an obiter dictum, the Appeals Chamber expressed concern about the extent to which the Prosecution tried to rely on this jurisprudence in the present case, and stressed that this jurisprudence applies only in a limited number of cases (para. 114):

114.    The Appeals Chamber wishes to express its concern regarding the Prosecution’s approach in the present case. The Appeals Chamber recalls that the indictment is the primary accusatory instrument and must plead the Prosecution case with sufficient detail. Although the Appeals Chamber allows that defects in an indictment may be “remedied” under certain circumstances, it emphasizes that this should be limited to exceptional cases. In the present case, the Appeals Chamber is disturbed by the extent to which the Prosecution seeks to rely on this exception. Even if the Prosecution had succeeded in arguing that the defects in the Indictments were remedied in each individual instance, the Appeals Chamber would still have to consider whether the overall effect of the numerous defects would not have rendered the trial unfair in itself.

[1] Kupreškić et al. Appeal Judgement, para. 114; see also Ntakirutimana Appeal Judgement, para. 125; Kvočka et al. Appeal Judgement, para. 33.

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Appeal Judgement - 20.10.2010 RUKUNDO Emmanuel
(ICTR-2001-70-A)

29. The Appeals Chamber has previously emphasized that “[t]he charges against an accused and the material facts supporting those charges must be pleaded with sufficient precision in an indictment so as to provide notice to the accused”.[1] An indictment which fails to duly set forth the specific material facts underpinning the charges against the accused is defective.[2] The defect may be cured if the Prosecution provides the accused with timely, clear, and consistent information detailing the factual basis underpinning the charge. However, a clear distinction has to be drawn between vagueness in an indictment and an indictment omitting certain charges altogether.[4] While it is possible, as stated above, to remedy the vagueness of an indictment, omitted charges can be incorporated into the indictment only by a formal amendment pursuant to Rule 50 of the Rules.[5] Finally, in reaching its judgement, a Trial Chamber can only convict the accused of crimes that are charged in the indictment.[6]

[1] Muvunyi Appeal Judgement, para. 18, referring to Seromba Appeal Judgement, paras. 27, 100, Simba Appeal Judgement para. 63, Muhimana Appeal Judgement, paras. 76, 167, 195, Gacumbitsi Appeal Judgement, para. 49, Ndindabahizi Appeal Judgement, para. 16.

[2] Nahimana et al. Appeal Judgement, para. 322; Ntagerura et al. Appeal Judgement, para. 22; Niyitegeka Appeal Judgement, para. 195; Kupreškić et al. Appeal Judgement, para. 114.

[3] Muvunyi Appeal Judgement, para. 20, referring to Seromba Appeal Judgement, para. 100; Simba Appeal Judgement, para. 64; Muhimana Appeal Judgement, paras. 76, 195, 217; Gacumbitsi Appeal Judgement, para. 49. See also Ntagerura et al. Appeal Judgement, paras. 28, 65.

[4] Karera Appeal Judgement, para. 293; Ntagerura et al. Appeal Judgement, para. 32. See also Muvunyi Appeal Judgement, para. 20, citing The Prosecutor v. Bagosora et al., Case No. ICTR-98-41-AR73, Decision on Aloys Ntabakuze’s Interlocutory Appeal on Questions of Law Raised by the 29 June 2006 Trial Chamber I Decision on Motion for Exclusion of Evidence, 18 September 2006 (“Bagosora et al. Decision of 18 September 2006”), para. 30.

[5] Karera Appeal Judgement, para. 293; Ntagerura et al. Appeal Judgement, para. 32. See also Muvunyi Appeal Judgement, para. 20, citing Bagosora et al. Decision of 18 September 2006, para. 30.

[6] Muvunyi Appeal Judgement, para. 18; Nahimana et al. Appeal Judgement, para. 326; Ntagerura et al. Appeal Judgement, para. 28; Kvočka et al. Appeal Judgement, para. 33.

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Judgement on Sentencing Appeal - 18.07.2005 BABIĆ Milan
(IT-03-72-A)

43. Neither the Statute nor the Rules exhaustively define the factors which may be taken into account by a Trial Chamber in mitigation or aggravation of a sentence. Rule 101(B)(ii) of the Rules only states that in determining a sentence, a Trial Chamber shall take into account “any mitigating circumstances including the substantial cooperation with the Prosecutor by the convicted person before or after conviction”.[1] Factors that have previously been taken into account by the International Tribunal as evidence in mitigation include: (1) co-operation with the Prosecution;[2] (2) the admission of guilt or a guilty plea;[3] (3) the expression of remorse;[4] (4) voluntary surrender;[5] (5) good character with no prior criminal convictions;[6] (6) comportment in detention;[7] (7) personal and family circumstances;[8] (8) the character of the accused subsequent to the conflict;[9] (9) duress[10] and indirect participation;[11] (10) diminished mental responsibility;[12] (11) age;[13] and (12) assistance to detainees or victims.[14] Poor health is to be considered only in exceptional or rare cases.[15] This list is not exhaustive and Trial Chambers are “endowed with a considerable degree of discretion in deciding on the factors which may be taken into account”.[16] They are not required to “articulate every step” of their reasoning in reaching particular findings,[17] and failure to list in a judgement “each and every circumstance” placed before them and considered “does not necessarily mean that [they] either ignored or failed to evaluate the factor in question.”[18] For instance, a Trial Chamber’s express reference to the parties' written submissions concerning mitigating circumstances is prima facie evidence that it was cognisant of these circumstances and took them into account.[19] The standard of proof with regard to mitigating circumstances is not, as with aggravating circumstances, proof beyond reasonable doubt,[20] but proof on a balance of probabilities: the circumstance in question must have existed or exists “more probably than not”.[21]

44. Proof of mitigating circumstances “does not automatically entitle [an] [a]ppellant to a ‘credit’ in the determination of the sentence; it simply requires the Trial Chamber to consider such mitigating circumstances in its final determination”.[22]  An appellant challenging the weight given by a Trial Chamber to a particular mitigating factor thus bears “the burden of demonstrating that the Trial Chamber abused its discretion”.[23] The Appellant has to demonstrate that the Trial Chamber gave weight to extraneous or irrelevant considerations, failed to give weight or sufficient weight to relevant considerations, made a clear error as to the facts upon which it exercised its discretion, or that the Trial Chamber’s decision was so unreasonable or plainly unjust that the Appeals Chamber is able to infer that the Trial Chamber must have failed to exercise its discretion properly.[24]

[1] As stated in the Serushago Sentencing Appeal Judgement, Trial Chambers are “required as a matter of law to take account of mitigating circumstances.” See para. 22; see also Musema Appeal Judgement, para. 395.

[2] Jokić Sentencing Judgement, paras 95-96; Todorović Sentencing Judgement, para. 88; Rule 101(B)(ii).

[3] Jelisić Appeal Judgement, para. 122; Jokić Sentencing Judgement, para. 76.

[4] Jokić Sentencing Judgement, para. 89; Erdemović 1998 Sentencing Judgement, para. 16(iii).

[5] Jokić Sentencing Judgement, para. 73.

[6] Erdemović 1998 Sentencing Judgement, para. 16(i); Kupreškić et al. Appeal Judgement, para. 459.

[7] Jokić Sentencing Judgement, para. 100; Dragan Nikolić Sentencing Judgement, para. 268.

[8] Kunarac et al. Appeal Judgement, paras 362 and 408.

[9] Jokić Sentencing Judgement, paras 90-91 and 103.

[10] Erdemović 1998 Sentencing Judgement, para. 17 (stating that duress “may be taken into account only by way of mitigation.”).

[11] Krstić Appeal Judgement, para. 273.

[12] Čelebići Appeal Judgement, para. 590.

[13] Jokić Sentencing Judgement, para. 100.

[14] Sikirica et al. Sentencing Judgement, paras 195 and 229.

[15] Simić et al. Trial Judgement, para. 98. All the above mentioned mitigating circumstances have been mentioned at para. 696 of the Blaskić Appeal Judgement.

[16] Čelebići Appeal Judgement, para. 780.

[17] Ibid., para. 481.

[18] Kupreškić et al. Appeal Judgement, para. 458.

[19] Ibid., para. 430.

[20] Čelebići Appeal Judgement, para. 763.

[21] Ibid., para. 590.

[22] Niyitegeka Appeal Judgement, para. 267.

[23] Kayishema and Ruzindana Appeal Judgement, para. 366; Niyitegeka Appeal Judgement, para. 266. A Trial Chamber’s decision may be disturbed on appeal “if an appellant shows that the Trial Chamber either took into account what it ought not to have, or failed to take into account what it ought to have taken into account, in the weighing process involved in this exercise of the discretion.” Čelebići Appeal Judgement, para. 780.

[24] See 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. 7. See also Prosecutor v. Slobodan Milošević, Case No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber's Decision on the Assignment of Defence Counsel, 1 November 2004, para. 9; Prosecutor v. Slobodan Milošević, Case Nos. IT-99-37-AR73, IT-01-50-AR73, and IT-01-51-AR73, Decision on Prosecution Interlocutory Appeal from Refusal to Order Joinder, 1 February 2002, paras 5-6.

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Appeal Judgement - 14.12.2011 BAGOSORA et al. (Military I)
(ICTR-98-41-A)

277. The Appeals Chamber recalls that ordering under Article 6(1) of the Statute requires that a person in a position of authority instruct another person to commit an offence.[1] As previously held, “the actus reus of ordering cannot be established in the absence of a prior positive act because the very notion of ‘instructing’, pivotal to the understanding of the question of ‘ordering’, requires ‘a positive action by the person in a position of authority’”.[2]

283. The Appeals Chamber considers that, in the absence of any evidence that Nsengiyumva gave any instructions,[3] the mere involvement of three soldiers in civilian attire under his command[4] and the existence of a pattern of crimes being committed in and around his area of control immediately after the death of the President could not lead a reasonable trier of fact to find that the only reasonable inference was that Nsengiyumva ordered the killings perpetrated in Gisenyi town on 7 April 1994.

323. The Appeals Chamber finds that in the absence of evidence of military involvement and coordination between the military and the civilian attackers, the mere fact that the killing took place in Gisenyi town the day following President Habyarimana’s death is insufficient for a reasonable trier of fact to find that the only reasonable inference was that the unidentified civilian assailants acted upon Nsengiyumva’s orders. […]

571. Turning to the Trial Chamber’s finding that Bagosora ordered the killing of Maharangari, the Appeals Chamber observes that the Trial Chamber’s factual findings do not support its legal conclusion. In its factual findings, the Trial Chamber concluded that:

Bagosora had authority over the Rwandan army at the time of the attack […]. There is no credible evidence directly showing that Bagosora was aware of the murder of Maharangari. However, given the widespread killing throughout Kigali perpetrated by or with the assistance of military personnel, including the targeted killings on the morning of 7 April […], the Chamber is satisfied that Bagosora was aware that personnel under his authority were participating in killings.[5]

While the Trial Chamber discussed Bagosora’s awareness of the killing of Maharangari and Bagosora’s superior position, at no point did it discuss evidence that Bagosora ordered the crimes. The Trial Chamber’s factual findings therefore appear to correspond only to those which would normally be entered in relation to superior responsibility.

[1] See, e.g., Setako Appeal Judgement, para. 240; Kalimanzira Appeal Judgement, para. 213; Milošević Appeal Judgement, para. 290; Nahimana et al. Appeal Judgement, para. 481. The Appeals Chamber recalls that responsibility is also incurred when an individual in a position of authority orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, and if that crime is effectively committed subsequently by the person who received the order. See Renzaho Appeal Judgement, para. 315; Nahimana et al. Appeal Judgement, para. 481. See also Boškoski and Tarčulovski Appeal Judgement, para. 68.

[2] Milošević Appeal Judgement, para. 267, citing Galić Appeal Judgement, para. 176. See also Nahimana et al. Appeal Judgement, para. 481; Gacumbitsi Appeal Judgement, para. 182.

[3] With respect to the Prosecution’s reliance on Witness ZF’s testimony that Nsengiyumva ordered Lieutenant Bizumuremyi to begin operations to kill Tutsis, the Appeals Chamber notes that the Trial Chamber merely accepted that Witness ZF was present at the Gisenyi military camp for various periods from 6 to 7 April 1994 and declined to rely on Witness ZF’s further testimony in the absence of corroboration. While the Trial Chamber did not explicitly articulate that it refused to rely on the witness’s account on Nsengiyumva’s alleged order to Bizumuremyi, its discussion of the witness’s credibility and its general “questions about the credibility of Witness ZF’s uncorroborated account” clearly suggest that the Trial Chamber also refused to rely on Witness ZF’s testimony on Nsengiyumva’s alleged order to Bizumuremyi along with his testimony concerning Nsengiyumva’s alleged meeting with Interahamwe or conversations with Bagosora on that matter. This is reflected in the Trial Chamber’s factual and legal findings on Nsengiyumva’s responsibility, which do not refer to Nsengiyumva’s alleged order to Bizumuremyi. See Trial Judgement, paras. 1051-1054, 1065, 2142.

[4] Witness DO specifically implicated three soldiers in civilian attire in the killings of 7 April 1994. See Witness DO, T. 30 June 2003 pp. 26, 32, 62, T. 1 July 2003 p. 48, and T. 2 July 2003 pp. 36, 37, 39, 54. See also Trial Judgement, para. 1016. As regards Nsengiyumva’s authority over these soldiers, the Appeals Chamber refers to its discussion infra, paras. 292-294, 297.

[5] Trial Judgement, para. 962.

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ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Decision on Review - 31.03.2000 BARAYAGWIZA Jean-Bosco
(ICTR-97-19-AR72)

41.     […] [I]t is clear from the Statute and the Rules[1] that, in order for a Chamber to carry out a review, it must be satisfied that four criteria have been met. There must be a new fact; this new fact must not have been known by the moving party at the time of the original proceedings; the lack of discovery of the new fact must not have been through the lack of due diligence on the part of the moving party; and it must be shown that the new fact could have been a decisive factor in reaching the original decision.

42.     The Appeals Chamber of the International Tribunal for the former Yugoslavia has highlighted the distinction, which should be made between genuinely new facts which may justify review and additional evidence of a fact [2]. In considering the application of Rule 119 of the Rules of the International Tribunal for the former Yugoslavia (which mirrors Rule 120 of the Rules [of the International Tribunal for Rwanda]), the Appeals Chamber held that:

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…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”.[3]

Further, the Appeals Chamber stated 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.[4]

43.     The Appeals Chamber would also point out at this stage, that although the substantive issue differed, in Prosecutor v. Dra‘en Erdemović,[5] the Appeals Chamber undertook to warn both parties that “[t]he appeal process of the International Tribunal is not designed for the purpose of allowing parties to remedy their own failings or oversights during trial or sentencing”. The Appeals Chamber confirms that it notes and adopts both this observation and the test established in Prosecutor v. Duško Tadić in consideration of the matter before it now.

44.     […] [A] “new fact” cannot be considered as failing to satisfy the criteria simply because it occurred before the trial. What is crucial is satisfaction of the criteria which the Appeals Chamber has established will apply. If a “new” fact satisfies these criteria, and could have been a decisive factor in reaching the decision, the Appeals Chamber can review the Decision.

[1] Article 25, Rules 120 and 121.

[2] Prosecutor v. Duško Tadić, Decision of Appellant’s Motion for the extension of the time-limit and admission of additional evidence, Case no, IT-94-1-A, 15th October 1998.

[3] Ibid., at 30.

[4] Ibid., at 32.

[5] Judgement, Case no IT-96-22-A, 7 October 1997 at § 15. 

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Notion(s) Filing Case
Decision on Review and Reconsideration - 23.06.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

The Appeals Chamber clarified that, under Article 25 of the Statute and according to Rules 120-123, a party may submit an application for review if it satisfies the following conditions: a new fact has been discovered which was not known at the time of the initial proceedings and which could not been discovered earlier through the exercise of due diligence; and this new fact could have been a decisive factor in reaching the decision. The Appeals Chamber emphasized that only a definitive judgement can be reviewed under the said provisions.

20. […] Pour obtenir la révision conformément aux articles 25 du Statut et 120 à 123 du Règlement, la partie intéressée doit au préalable satisfaire quatre conditions:

1) un fait nouveau doit avoir été découvert,

2) ce fait nouveau ne doit pas avoir été connu de la partie intéressée lors de la procédure initiale,

3) la non-découverte de ce fait nouveau ne doit pas être due à un manque de diligence de la partie intéressée, et

4) le fait nouveau aurait pu être un élément décisif de la décision initiale[1].

21. La Chambre d’appel réitère en outre que « seul un jugement définitif peut être révisé en vertu des articles 25 du Statut et 120 du Règlement, et [qu’]un jugement définitif est une décision qui met fin à une procédure »[2].

23. La Chambre d’appel rappelle que la Décision du 14 septembre 2000 a rejeté la révision ainsi que le réexamen de la Requête du 28 juillet 2000 aux motifs que l’Arrêt du 31 mars 2000 n’avait pas mis fin à la procédure, que le réexamen de ladite requête ne pouvait être utilisé comme pouvoir de révision dans les cas où celle-ci n’était pas prévue et qu’il n’était pas justifié en l’espèce ; elle a dirigé l’Appelant vers la Chambre de première instance en vue de lui soumettre, le cas échéant, des faits nouveaux de nature à établir l’incompétence du Tribunal[3].

[1] Le Procureur c. Duško Tadić, affaire n°IT-94-1-R, Arrêt relatif à la demande en révision, 30 juillet 2002 (« Affaire Tadić, Décision »), par. 20.

[2] Affaire Semanza, Arrêt (Requête en révision de la décision de la Chambre d’appel du 31 mai 2000), 4 mai 2001, p. 4,

[Laurent Semanza c. le Procureur, affaire n°ICTR-97-20-A]. Voir également, le Procureur c. Imanishimwe, affaire n°ICTR-97-36-AR72, Arrêt (Requête en révision), 12 juillet 2000, p. 2 ; le Procureur c. Bagilishema, affaire n°ICTR-95-1A-A, Arrêt (Requête en demande de révision des ordonnances rendues par le Juge de la mise en état les 30 novembre et 19 décembre 2001), 6 février 2002, p. 2 ; Décision du 14 septembre 2000, p. 3 ; Arrêt du 31 mars 2000, par. 49. Voir également, affaire Tadić, Décision, par. 22 ; le Procureur c. Hazim Delić, Affaire n°IT-96-21-R-R119, Décision relative à la requête en révision, 25 avril 2002 (« Affaire Delić, Décision »), par. 8.

[3] Décision du 14 septembre 2000, p. 3.

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ICTR Statute Article 25 ICTY Statute Article 26 ICTR Rule Rule 120
Rule 121
Rule 122
Rule 123
ICTY Rule Rule 119
Rule 120
Rule 121
Rule 122
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.

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Appeal Judgement - 18.03.2010 BIKINDI Simon
(ICTR-01-72-A)

99. […] Rule 94(A) of the Rules states: “[a] Trial Chamber shall not require proof of facts of common knowledge but shall take judicial notice thereof.” This standard is not discretionary; if a Trial Chamber determines that a fact is “common knowledge”, it must take judicial notice of it.[1] […]

[1] Karemera et al., Decision on Judicial Notice [The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73(C), Decision on Prosecutor’s Interlocutory Appeal of Decision on Judicial Notice, 16 June 2006], para. 22.

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ICTR Rule Rule 94 ICTY Rule Rule 94
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Decision on Access - 16.05.2002 BLAŠKIĆ Tihomir
(IT-95-14-A)

14. Access to confidential material may be granted whenever the Chamber is satisfied that the party seeking access has established that such material may be of material assistance to his case.[1] A party is always entitled to seek material from any source to assist in the preparation of his case if the material sought has been identified or described by its general nature and if a legitimate forensic purpose for such access has been shown.[2]

15. The relevance of the material sought by a party may be determined by showing the existence of a nexus between the applicant’s case and the cases from which such material is sought, i.e. if the cases stem from events alleged to have occurred in the same geographic area and at the same time.[3] It is sufficient that access to the material sought is likely to assist the applicant’s case materially, or that there is at least a good chance that it would.[4]

16. Not always would mere geographical and temporal overlap between two cases be sufficient in every instance to conclude that there is a legitimate forensic purpose. […]

[1] Prosecutor v. Enver Hadžihasanović, et al, Decision on Motion by Mario Čerkez for Access to Confidential Supporting Material, Case No. IT-01-47-PT, 10 October 2001, at para 10.

[2] Ibidem.

[3] See Prosecutor v. Radoslav Brđanin and Momir Talić, Case No. IT-99-36-PT, Decision on Motion by Momir Talić for Access to Confidential Documents, 31 July 2000, at para 8.

[4] See The Prosecutor v. Blaškić, Decision on Appellant’s Motion Requesting Assistance of the Appeals Chamber in Gaining Access to Non-Public Transcripts and Exhibits From the Aleksovski Case, 8 March 2002, at page 3. Where the Appeals Chamber held that the Appellant had described the documents sought by their general nature as clearly as he possibly could, and had shown that such access was likely to assist his appeal materially.

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Decision on Access to Aleksovski case - 08.03.2002 BLAŠKIĆ Tihomir
(IT-95-14-A)

CONSIDERING that the Appeals Chamber is satisfied that the Appellant is entitled to access the material sought since he has described the documents sought by general nature as clearly as he possibly could, and has shown that such access is likely to assist his appeal materially;

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Decision on Challenge by Croatia - 29.11.2002 BOBETKO Janko
(IT-02-62-AR54bis & IT-02-62-AR108bis)

11. [...] Rule 108bis was adopted to permit States directly affected by an interlocutory decision to seek a review where it is claimed that an interlocutory decision of a Trial Chamber has impacted upon its legal rights, such as when a State is ordered to produce documents or records from its archives. This provision is not available where the State claims that its legitimate political interests have been affected, or where it has a genuine concern that the facts alleged in the indictment are historically accurate.[] The time for the investigation into the truth of the facts alleged in an indictment does not arise until the trial.

12. Article 29 of the Tribunal’s Statute provides that all States shall cooperate with the Tribunal and comply without undue delay with any request for assistance or order issued by this Tribunal. In particular, Article 29(d) expressly provides that this general obligation includes a duty to comply with any such request or order relating to “the arrest or detention of persons”. Croatia’s role in complying with such a request or order is the purely ministerial one of executing the warrants and carrying out such arrest and detention as ordered by the Tribunal. A State which is ordered to arrest or detain an individual pursuant to Article 29(d) has no standing to challenge the merits of that order. 

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ICTR Statute Article 28 ICTY Statute Article 29 ICTR Rule Rule
108 bis
ICTY Rule Rule
108 bis
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Decision on Access to Ex Parte Materials and Disclosure of Mitigating Materials - 30.08.2006 BRALO Miroslav
(IT-95-17-A)

19. The Appeals Chamber recalls that the protective measures in question were ordered in the Blaškić Review Proceedings.[1] Consequently, pursuant to Rule 75(G) of the Rules, the Appellant should bring any motion for variation of protective measures before the Blaškić Appeals Chamber. The Appeals Chamber in the present case has no jurisdiction to decide on the Appellant’s respective request and therefore finds that it should be dismissed.

[1] Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-R, Decision on Prosecution’s Proposed Public Redacted Version of its Request for Review or Reconsideration, 29 June 2006, The Appeals Chamber in Blaškić Review Proceedings has specifically ordered, inter alia, that paragraphs 63 and 76 of the Blaškić be redacted as proposed by the Prosecution (Ibid., pp. 8-9).

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Review Decision - 25.08.2006 ŽIGIĆ Zoran
(IT-98-30/1-R.2)

8. To establish circumstances warranting a review pursuant to Rule 119, the moving party must demonstrate that there is a new fact, that that new fact was not known to the moving party at the time of the original proceedings, that lack of discovery of that new fact was not the result of lack of due diligence by the moving party and that the new fact could have been a decisive factor in reaching the original decision.[1]

[1] Prosecutor v. Josipović, Case No. IT-95-16-R2, Decision on Motion for Review, 7 March 2003, para. 12; Prosecutor v. Delić, Case No. IT-96-21-R-R119, Decision on Motion for Review, 25 April 2002, para. 8; Prosecutor v. Tadić, Case No. IT-94-1-R, Decision on Motion for Review, 30 July 2002, para. 20; Prosecutor v. Barayagwiza, Case No. ICTR-97-19-AR72, Decision on Prosecutor’s Request for Review or Reconsideration, 31 March 2000, para. 41;  Prosecutor v. Eliézer Niyitegeka, Case No. ICTR-96-14-R, Decision on Request for Review, 30 June 2006.

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Appeal Judgement - 16.11.2009 ZIGIRANYIRAZO Protais
(ICTR-01-73-A)

17. An alibi does not constitute a defence in its proper sense.[1] By raising an alibi, an accused is simply denying that he was in a position to commit the crime with which he was charged.[2] An accused does not bear the burden of proving his alibi beyond reasonable doubt.[3] Rather, “[h]e must simply produce the evidence tending to show that he was not present at the time of the alleged crime”[4] or, otherwise stated, present evidence “likely to raise a reasonable doubt in the Prosecution case.”[5] If the alibi is reasonably possibly true, it must be accepted.[6]

18. Where an alibi is properly raised, the Prosecution must establish beyond reasonable doubt that, despite the alibi, the facts alleged are nevertheless true.[7] The Prosecution may do so, for instance, by demonstrating that the alibi does not in fact reasonably account for the period when the accused is alleged to have committed the crime. Where the alibi evidence does prima facie account for the accused’s activities at the relevant time of the commission of the crime, the Prosecution must “eliminate the reasonable possibility that the alibi is true,”[8] for example, by demonstrating that the alibi evidence is not credible.

19. The Appeals Chamber has considered on several occasions whether Trial Chambers have erroneously shifted the burden of proof to the accused with respect to their alibis. Appellants have frequently pointed to language in the assessment of alibi evidence intimating that they were required to disprove the Prosecution’s evidence through their alibis. The Appeals Chamber has recognized that language which suggests, inter alia, that an accused must “negate” the Prosecution’s evidence,[9] “exonerate” himself,[10] or “refute the possibility” that he participated in a crime[11] indicates that the Trial Chamber misapplied the burden of proof. Indeed, as stated in the Musema Appeal Judgement, “[i]n considering the manner in which the Trial Chamber applied the burden and standard of proof, the Appeals Chamber must start off by assuming that the words used in the Trial Judgement accurately describe the approach adopted by the Trial Chamber.”[12]

20. In assessing whether a Trial Chamber, when using this type of language, has in fact shifted the burden of proof, the Appeals Chamber carries out an in-depth analysis of the specific findings related to a given incident.[13] The Appeals Chamber has generally found that such language, while inappropriate, is not fatal when viewed in the broader context of a Trial Chamber’s findings. This is especially the case where the Trial Chamber accurately refers elsewhere in the judgement to the appropriate burden of proof for the evaluation of alibi evidence, its overall approach evinces a careful assessment of the alibi evidence, and its conclusion that the alibi evidence is ultimately not credible is reasonable when weighed against the evidence of participation in a crime.[14]

38. The Appeals Chamber observes that the Trial Chamber correctly stated that the Prosecution bears the burden of establishing the accused’s guilt beyond reasonable doubt[15] and that it would consider each piece of evidence in light of the totality of the evidence admitted at trial.[16] […]

39. Nonetheless, the Appeals Chamber finds that the Trial Chamber’s assessment of Zigiranyirazo’s alibi involves three serious errors that, taken together, invalidate his convictions based on the events at Kesho Hill. Specifically, the Trial Chamber erred by misapprehending the burden of proof in the context of alibi, failing to consider or provide a reasoned opinion with respect to relevant circumstantial evidence, and misconstruing key evidence which, properly considered, bolstered Zigiranyirazo’s alibi.

42. The Appeals Chamber emphasizes that a successful alibi does not require conclusive proof of an accused’s whereabouts.[17] Indeed, there is no requirement that an alibi “exclude the possibility” that the accused committed a crime.[18] The alibi need only raise reasonable doubt that the accused was in a position to commit the crime.[19]

[1] Ndindabahizi Appeal Judgement, para. 66; Kajelijeli Appeal Judgement, paras. 41, 42; Kayishema and Ruzindana Appeal Judgement, para. 106; Delalić et al. Appeal Judgement, para. 581.

[2] Nahimana et al. Appeal Judgement, para. 414; Ndindabahizi Appeal Judgement, para. 66; Kajelijeli Appeal Judgement, paras. 41, 42; Niyitegeka Appeal Judgement, para. 60; Musema Appeal Judgement, paras. 205, 206; Kayishema and Ruzindana Appeal Judgement, para. 106; Delalić et al. Appeal Judgement, para. 581.

[3] Nahimana et al. Appeal Judgement, para. 414; Simba Appeal Judgement, para. 184; Karera Appeal Judgement, para. 331; Musema Appeal Judgement, para. 202; Kayishema and Ruzindana Appeal Judgement, para. 107.

[4] Musema Appeal Judgement, para. 202.

[5] Karera Appeal Judgement, para. 331 (internal citation omitted); Simba Appeal Judgement, para. 184 (internal citation omitted); Kajelijeli Appeal Judgement, para. 42 (internal citation omitted); Niyitegeka Appeal Judgement, para. 60.

[6] Nahimana et al. Appeal Judgement, para. 414; Kamuhanda Appeal Judgement, para. 38; Kajelijeli Appeal Judgement, para. 41; Musema Appeal Judgement, paras. 205, 206.

[7] Karera Appeal Judgement, para. 330; Nahimana et al. Appeal Judgement, para. 414; Simba Appeal Judgement, para. 184; Kajelijeli Appeal Judgement, para. 42; Niyitegeka Appeal Judgement, para. 60; Musema Appeal Judgement, paras. 205, 206; Kayishema and Ruzindana Appeal Judgement, para. 107. See also Limaj et al. Appeal Judgement, para. 64, quoting Limaj et al. Trial Judgement, para. 11 (“[A] finding that an alibi is false does not in itself ‘establish the opposite to what it asserts’. The Prosecution must not only rebut the validity of the alibi but also establish beyond reasonable doubt the guilt of the Accused as alleged in the Indictment.”).

[8] Kajelijeli Appeal Judgement, para. 41 (internal citation omitted); Kayishema and Ruzindana Appeal Judgement, para. 106 (internal citation omitted). See also Limaj et al. Appeal Judgement, paras. 64, 65 (internal citation omitted); Delalić et al. Appeal Judgement, para. 581.

[9] See Limaj et al. Appeal Judgement, para. 65 (“When evaluating Haradin Bala’s alibi evidence, the Trial Chamber observed that ‘the testimony of most of the witnesses for the Defence for Haradin Bala does not necessarily negate the evidence that Haradin Bala remained in Llapushnik/Lapušnik after the end of May.’ The use of the phrase ‘to negate the evidence’ could be read in the sense that the Trial Chamber required Haradin Bala to negate the Prosecution evidence”), quoting Limaj et al. Trial Judgement, para. 647.

[10] See Kamuhanda Appeal Judgement, para. 39 (“the Appeals Chamber notes that in some instances the Trial Chamber applied language which prima facie supports the Appellant’s arguments [that the Trial Chamber shifted the burden of proof], for example in paragraph 174 of the [Kamuhanda] Trial Judgement: ‘[…] the evidence of Witness ALB does not exonerate the Accused from being present at Gikomero.’”) (emphasis in original).

[11] See Musema Appeal Judgement, para. 295 (“The wording ‘are by themselves, insufficient to refute the possibility’ used by the Trial Chamber with respect to alibi evidence might be an error on a point of law, had Musema’s evidence been sufficient to sustain a potential alibi.”)(emphasis in original), quoting Musema Trial Judgement, para. 740.

[12] Musema Appeal Judgement, para. 209.

[13] See, e.g., Musema Appeal Judgement, paras. 210, 211.

[14] See, e.g., Limaj et al. Appeal Judgement, para. 65; Kamuhanda Appeal Judgement, paras. 38-44; Musema Appeal Judgement, paras. 317, 318.

[15] Trial Judgement, para. 89 (“Pursuant to Article 20(3) of the Statute, an accused shall be presumed innocent until proven guilty. This presumption places on the Prosecution the burden of establishing the guilt of the accused, a burden which remains on the Prosecution throughout the entire trial. A finding of guilt may be reached only when a majority of the Trial Chamber is satisfied that guilt has been proved beyond reasonable doubt.”) (internal citation omitted).

[16] Trial Judgement, paras. 87, 88.

[17] See Simba Appeal Judgement, para. 185 (“The Appeals Chamber is further satisfied that the Trial Chamber correctly applied [the legal standard on alibi evidence] in its subsequent findings on alibi. The Trial Chamber first found that, although the alibi evidence for the period of 6-13 April 1994 ‘[did] not account for every moment of [the Appellant’s time]], viewed as a whole and when weighed against the Prosecution evidence, it [provided]] a reasonable and satisfactory explanation for [the Appellant’s]] activities [for this period]].’ The Appeals Chamber notes that this wording reflects that in assessing the alibi evidence for this period the Trial Chamber did not require the Defence to prove its case beyond reasonable doubt.”), quoting Simba Trial Judgement, para. 349. See also Nahimana et al. Appeal Judgement, paras. 428-431, 473, 474 (reversing a Trial Chamber finding that an alibi based on hearsay had not been established).

[18] See supra Section III.A.1 (Burden of Proof in the Assessment of Alibi). See also Muhimana Appeal Judgement, para. 18 (“An accused does not need to prove at trial that a crime ‘could not have occurred’ or ‘preclude the possibility that it could occur’.”).

[19] See supra Section III.A.1 (Burden of Proof in the Assessment of Alibi).

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Decision on Rebuttal Evidence - 29.05.2009 KAREMERA et al.
(ICTR-98-44-AR73.17)

13. The Appeals Chamber recalls that facts judicially noticed pursuant to Rule 94(B) of the Rules are merely presumptions that may be rebutted with evidence at trial.[1] The legal effect of judicially noticing an adjudicated fact is only to relieve the Prosecution of its initial burden to produce evidence on the point; the defence may put the adjudicated fact into question by introducing evidence to the contrary.[2]

[1] Prosecutor v. Dragomir Milošević, Case No. IT-98-29/1-AR73.1, Decision on Interlocutory Appeals Against Trial Chamber’s Decision on Prosecution’s Motion for Judicial Notice of Adjudicated Facts and Prosecution’s Catalogue of Agreed Facts, 26 June 2007 (“Dragomir Milošević Appeal Decision”), para. 16, citing Karemera et al. Appeal Decision on Judicial Notice, para. 42;  See also Momir Nikolić v. Prosecutor, Case No. IT-02-60/1-A, Decision on Appellant’s Motion for Judicial Notice, 1 April 2005 (“Nikolić Appeal Decision”), para. 11; Prosecutor v. Slobodan Milošević, Case No. IT-02-54-AR73.5, Decision on the Prosecution’s Interlocutory Appeal Against Trial Chamber’s 10 April 2003 Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts, 28 October 2003 (“Slobodan Milošević Appeal Decision”), p. 4.

[2] Dragomir Milošević Appeal Decision, para. 16; Karemera et al. Appeal Decision on Judicial Notice, paras. 42, 49. 

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ICTR Rule Rule 94 ICTY Rule Rule 94
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Decision on Amending Notice of Appeal - 02.09.2009 ŠAINOVIĆ et al.
(IT-05-87-A)

4. Pursuant to Rule 108 of the Tribunal’s Rules of Procedure and Evidence (“Rules”), the Appeals Chamber “may, on good cause being shown by motion, authorize a variation of the grounds of appeal” contained in the notice of appeal. Such a motion should be submitted “as soon as possible after identifying the new alleged error” or after discovering any other basis for seeking a variation of the notice of appeal.[1] It is the appellant’s burden to explain precisely what amendments are sought and to demonstrate that each proposed amendment meets the “good cause” requirement of Rule 108.[2]

5. The jurisprudence of the Tribunal establishes that the concept of “good cause” encompasses both good reason for including the new or amended grounds of appeal sought and good reason showing why those grounds were not included (or were not correctly articulated) in the original notice of appeal.[3] The Appeals Chamber has considered, inter alia, the following factors in determining whether “good cause” exists: (i) the variation is minor and it does not affect the content of the notice of appeal; (ii) the opposing party would not be prejudiced by the variation or has not objected to it; and (iii) the variation would bring the notice of appeal into conformity with the appeal brief.[4] Where an appellant seeks a substantive amendment broadening the scope of the appeal, “good cause” may also, under certain circumstances, be established.[5] The Appeals Chamber recalls that it has never established a cumulative list of requirements that must be met each time a substantive amendment is to be granted.[6] Rather, each proposed amendment is to be considered in light of the particular circumstances of the case.[7]

6. In certain exceptional cases, notably where the failure to include the new or amended grounds of appeal resulted from counsel’s negligence or inadvertence, the Appeals Chamber has allowed variations even though “good cause” has not been shown by the appellant, provided that the variation sought is of substantial importance to the success of the appeal such as to lead to a miscarriage of justice if it is excluded.[8] In such limited circumstances, the Appeals Chamber has reasoned, the interests of justice require that an appellant not be held responsible for the failures of his counsel.[9] However, it must be shown that the previous pleadings failed to address the issue adequately and that the amendments sought would correct that failure.[10]

[1] Prosecutor v. Astrit Haraqija and Bajrush Morina, Case No. IT-04-84-R77.4-A, Decision on Bajrush Morina’s Application for a Variation of the Grounds of Appeal, 19 March 2009 (“Haraqija and Morina Decision of 19 March 2009”), para. 5, 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 (“Nahimana et al. Decision of 17 August 2006”), para. 9; Prosecutor v. Mladen Naletilić, a.k.a. “Tuta”, and Vinko Martinović, a.k.a. “[tela”, Case No. IT-98-34-A, Decision on Mladen Naletilić’s Motion for Leave to File Pre-Submission Brief, 13 October 2005, pp. 2-3.

[2] Haraqija and Morina Decision of 19 March 2009, para. 5, referring to Nahimana et al. Decision of 17 August 2006, para. 9; Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Decision on Dragan Jokić’s Motion to Amend Notice of Appeal, 14 October 2005, para. 7; see also Practice Direction on Formal Requirements for Appeals from Judgement (IT/201), 7 March 2002, paras 2-3.

[3] Prosecutor v. Ljube Boškoski and Johan Tarčulovski, Case No. IT-04-82-A, Decision on Johan Tarčulovski’s Motion for Leave to Present Appellate Arguments in Order Different from that Presented in Notice of Appeal, to Amend the Notice of Appeal, and to File Sur-Reply, and on Prosecution Motion to Strike, 26 March 2009 (“Boškoski and Tarčulovski Decision of 26 March 2009”), para. 17, referring to The 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 (“Blagojević and Jokić Decision of 26 June 2006”), para. 7.

[4] Nahimana et al. Decision of 17 August 2006, para. 10, referring to Blagojević and Jokić Decision of 26 June 2006, para. 7; The Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Decision on Prosecution’s Request for Leave to Amend Notice of Appeal in Relation to Vidoje Blagojević, 20 July 2005 (“Blagojević and Jokić Decision of 20 July 2005”), pp. 3-4.

[5] Nahimana et al. Decision of 17 August 2006, para. 10, referring to Blagojević and Jokić Decision of 26 June 2006, para.7; The Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No, Case No. IT-02-60-A, Decision on Motions Related to the Pleadings in Dragan Jokić’s Appeal, 24 November 2005 (“Blagojević and Jokić Decision of 24 November 2005”), para. 7; Blagojević and Jokić Decision of 20 July 2005, p. 4.

[6] Boškoski and Tarčulovski Decision of 26 March 2009, para. 17, citing Blagojević and Jokić Decision of 26 June 2006, para. 7.

[7] Blagojević and Jokić Decision of 26 June 2006, para. 7.

[8] Tharcisse Muvunyi v. The Prosecutor, Case No. ICTR-2000-55A-A, Decision on ‘Accused Tharcisse Muvunyi’s Motion for Leave to Amend His Grounds for Appeal and Motion to Extend Time to File His Brief on Appeal’ And “Prosecutor’s Motion Objecting to ‘Accused Tharcisse Muvunyi’s Amended Grounds for Appeal’”, 19 March 2007 (“Muvunyi Decision of 19 March 2007), para. 15, referring to Blagojević and Jokić Decision of 26 June 2006, para. 9; see also The Prosecutor v. Athanase Seromba, Case No. ICTR-2001-66-A, Decision of Defence Extremely Urgent Motion to Vary the Grounds of Appeal Contained in its Notice of Appeal, 26 July 2007 (“Seromba Decision of 26 July 2007”), para. 8; Nahimana et al. Decision of 17 August 2006, para.12.

[9] Nahimana et al. Decision of 17 August 2006, para. 12.

[10] Blagojević and Jokić, Decision of 26 June 2006, para. 23.

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ICTR Rule Rule 108 ICTY Rule Rule 108
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Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)
(IT-96-21-A)

777. As a matter of law, a Trial Chamber is obliged to take account of mitigating circumstances in imposing sentence.[1]  However, the weight to be attached is a matter within its discretion.  […]

[1]    Article 24 of the Statute and Rule 101 of the Rules.  Rule 101 (B) provides inter alia: “In determining sentence, the Trial Chamber shall take into account…(ii) any mitigating circumstances including the substantial co-operation with the Prosecutor by the convicted person before or after conviction.”

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Appeal Judgement - 02.02.2009 KARERA François
(ICTR-01-74-A)

292. The charges against an accused and the material facts supporting those charges must be pleaded with sufficient precision in an indictment so as to provide notice to an accused. Whether a fact is “material” depends on the nature of the Prosecution’s case.[2] The Appeals Chamber has previously held that where it is alleged that the accused planned, instigated, ordered, or aided and abetted in the planning, preparation, or execution of the alleged crimes, the Prosecution is required to identify the “particular acts” or “the particular course of conduct” on the part of the accused which forms the basis for the charges in question.

293. An indictment which fails to set forth the specific material facts underpinning the charges against the accused is defective.[4] The defect may be cured if the Prosecution provides the accused with timely, clear, and consistent information detailing the factual basis underpinning the charge. However, a clear distinction has to be drawn between vagueness in an indictment and an indictment omitting certain charges altogether.[6] While it is possible, as stated above, to remedy the vagueness of an indictment, omitted charges can be incorporated into the indictment only by a formal amendment pursuant to Rule 50 of the Rules. [7]

[1] Muvunyi Appeal Judgement, para. 18; Seromba Appeal Judgement, paras. 27, 100. See also Simba Appeal Judgement, para. 63, referring to Muhimana Appeal Judgement, paras. 76, 167, 195; Gacumbitsi Appeal Judgement, para. 49.

[2] Nahimana et al. Appeal Judgement, para. 322; Ndindabahizi Appeal Judgement, para. 16; Ntagerura et al. Appeal Judgement, para. 23.

[3] Seromba Appeal Judgement, para. 27, citing Ntagerura et al. Appeal Judgement, para. 25.

[4] Ntagerura et al. Appeal Judgement, para. 22; Niyitegeka Appeal Judgement, para. 195; Kupreškić et al. Appeal Judgement, para. 114.

[5] Muvunyi Appeal Judgement, para. 20, referring to Seromba Appeal Judgement, para. 100; Simba Appeal Judgement, para. 64; Muhimana Appeal Judgement, paras. 76, 195, 217; Gacumbitsi Appeal Judgement, para. 49. See also Ntagerura et al. Appeal Judgement, paras. 28, 65.

[6] Ntagerura et al. Appeal Judgement, para. 32. See also Muvunyi Appeal Judgement, para. 20, citing Bagosora et al., Decision on Aloys Ntabakuze’s Interlocutory Appeal on Questions of Law Raised by the 29 June 2006 Trial Chamber I Decision on Motion for Exclusion of Evidence, para. 30.

[7] Ntagerura et al. Appeal Judgement, para. 32. See also Muvunyi Appeal Judgement, para. 20, citing Bagosora et al., Decision on Aloys Ntabakuze’s Interlocutory Appeal on Questions of Law Raised by the 29 June 2006 Trial Chamber I Decision on Motion for Exclusion of Evidence, para. 30.

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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;

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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;

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ICTR Rule Rule 89(C);
Rule 107;
Rule 115
ICTY Rule Rule 89(C);
Rule 107;
Rule 115
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Appeal Judgement - 12.11.2009 MILOŠEVIĆ Dragomir
(IT-98-29/1-A)

267. […] The Appeals Chamber recalls that the actus reus of ordering cannot be established in the absence of a prior positive act because the very notion of “instructing”, pivotal to the understanding of the question of “ordering”, requires “a positive action by the person in a position of authority”.[1] The Appeals Chamber accepts that an order does not necessarily need to be explicit in relation to the consequences it will have.[2] […]

290. The Appeals Chamber recalls that ordering requires that a person in a position of de jure or de facto authority instructs another person to commit a crime.[3] It does not, however, require the physical presence of the perpetrator at the site of the crime.

[1] Galić Appeal Judgement, para. 176. See also, Nahimana et al. Appeal Judgement, para. 481, referring to Gacumbitsi Appeal Judgement, para. 182; Kamuhanda Appeal Judgement, para. 75; Semanza Appeal Judgement, para. 361; Ntagerura et al. Appeal Judgement, para. 365; Kordić and Čerkez Appeal Judgement, paras 28-30.

[2] Cf. Nahimana et al. Appeal Judgement, para. 481: “Responsibility is also incurred when an individual in a position of authority orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, and if that crime is effectively committed subsequently by the person who received the order.” See also, Galić Appeal Judgement, paras 152 and 157; Kordić and Čerkez Appeal Judgement, para. 30; Blaškić Appeal Judgement, para. 42.

[3] Trial Judgement, para. 957. See Kordić and Čerkez Appeal Judgement, para. 28.

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ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Decision on Access (Perišić) - 27.04.2009 MILOŠEVIĆ Dragomir
(IT-98-29/1-A)

4. The Appeals Chamber recalls that “a party is always entitled to seek material from any source, including from another case before the Tribunal, to assist in the preparation of its case if the material sought has been identified or described by its general nature and if a legitimate forensic purpose for such access has been shown”.[1]

5. The Appeals Chamber further notes that access to confidential material may be granted when a Chamber is satisfied that the party seeking access has established that such material “is likely to assist the [party’s] case materially, or […] there is a good chance that it would”.[2] This standard is met by showing the existence of a factual nexus between the two cases such as a “geographical, temporal or otherwise material overlap”.[3]

[1] See Prosecutor v. Milan Martić, Case No. IT-95-11-A, Decision on Motion by Jovica Stanišić for Access to Confidential Testimony and Exhibits in the Martić Case Pursuant to Rule 75(G)(i), 22 February 2008 (“Martić Decision”), para. 9; Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-A, Decision on “Motion by Mićo Stanišić for Access to All Confidential Materials in the Krajišnik Case”, 21 February 2007, p. 4.

[2] Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Decision on Motions for Access to Confidential Materials, 16 November 2005 (“Blagojević and Jokić Decision”), para. 8.

[3] Prosecutor v. Dario Kordić and Mario Ćerkez, Case No. IT-95-14/2-A, Decision on Motion by Hadžihasanović, Alagić and Kubura for Access to Confidential Supporting Material, Transcripts and Exhibits in the Kordić and Ćerkez Case, 23 January 2003, p. 4; see also Martić Decision, para. 9.

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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. 

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ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Appeal Judgement - 18.12.2014 NGIRABATWARE Augustin
(MICT-12-29-A)

19.       The Appeals Chamber notes that, in its Rule 98bis Decision, the Trial Chamber correctly recalled the applicable law.[1] With respect to Counts 1 and 5 of the Indictment, the Trial Chamber found that there was “evidence which, if accepted, could satisfy a reasonable trier of fact of Ngirabatware’s guilt beyond a reasonable doubt”.[2] In the Trial Judgement, the Trial Chamber granted the Prosecution’s request to withdraw the charge of conspiracy to commit genocide under Count 1,[3] and acquitted Ngirabatware of extermination as a crime against humanity under Count 5 of the Indictment.[4] In arguing that this is indicative of an error in the standard of proof applied by the Trial Chamber in its Rule 98bis Decision, Ngirabatware conflates the various evidentiary thresholds. As recalled above, a judgement of acquittal shall only be entered pursuant to Rule 98bis of the ICTR Rules if the evidence is insufficient to sustain a conviction. At that stage a trial chamber is required to “assume that the prosecution’s evidence [is] entitled to credence unless incapable of belief” and “take the evidence at its highest”.[5] In contrast, pursuant to Rule 87 of the ICTR Rules, at the end of the trial a trial chamber may reach a finding of guilt only if it is satisfied that the guilt of the accused has been proved beyond reasonable doubt.

20.       The standard “‘beyond reasonable doubt’ connotes that the evidence establishes a particular point and it is beyond dispute that any reasonable alternative is possible.”[6] It requires that the trial chamber be satisfied that there is no reasonable explanation of the evidence other than the guilt of the accused.[7] Accordingly, a dismissal of a request for a judgement of acquittal on a particular count at the close of the Prosecution case-in-chief is not incompatible with an acquittal of the accused on that same count at the end of the trial. In the same vein, a Prosecution’s decision to withdraw a charge at the end of the trial does not demonstrate that the evidence was insufficient to sustain a conviction in relation to that charge at the close of the Prosecution case-in-chief.[8] Ngirabatware thus fails to show that the Trial Chamber erred in law or fact in failing to grant his Rule 98bis Motion in relation to Counts 1 and 5 of the Indictment.[9]

[1] Rule 98bis Decision [The Prosecutor v. Augustin Ngirabatware, Case No. ICTR-99-54-T, Decision on Defence Motion for Judgement of Acquittal, 14 October 2010], paras. 22-23, 25.

[2] Rule 98bis Decision, paras. 32, 46.

[3] Trial Judgement, para. 17.

[4] Trial Judgement, para. 1379.

[5] Karad`ić Rule 98bis Judgement [Prosecutor v. Radovan Karad`ić, Case No. IT-95-5/18-AR98bis.1, Judgement, 11 July 2013 ], para. 21, citing Jelisi} Appeal Judgement, para. 55.

[6] Mrk{i} and [ljivan~anin Appeal Judgement, para. 220.

[7] D. Milo{evi} Appeal Judgement, para. 20, citing Mrk{i} and [ljivan~anin Appeal Judgement, para. 220. See also Martić Appeal Judgement, para. 61.

[8] Concerning Ngirabatware’s submission that the Prosecution impermissibly proceeded in relation to Count 1 (See Appeal Brief [Dr. Ngirabatware’s Appeal Brief (confidential), 18 June 2013; Corrigendum to Dr. Ngirabatware’s Appeal Brief (confidential), 16 July 2013; Dr. Ngirabatware’s Appeal Brief (amended public redacted version), 1 August 2013], para. 273), the Appeals Chamber notes that Ngirabatware fails to show that the Prosecution did not intend to prove this count in the course of the trial. See Ntakirutimana Appeal Judgement, para. 43.

[9] The Appeals Chamber need not address Ngirabatware’s submission that the Trial Chamber erred in the Rule 98bis Decision by failing to provide a reasoned opinion in relation to Count 5 of the Indictment, as the alleged error does not impact on Ngirabatware’s conviction. See Reply Brief [ Dr. Ngirabatware’s Brief in Reply to Prosecution Respondent’s Brief (Pursuant to Rule 140 of the Rules of Procedure and Evidence), 13 August 2013], para. 106(ii).

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ICTR Rule Rule 98 bis
Notion(s) Filing Case
Appeal Judgement - 21.07.2000 FURUNDŽIJA Anto
(IT-95-17/1-A)

61. Article 18(4) of the Statute and Rule 47(C) of the Rules require that an indictment contain a concise statement of the facts of the case and of the crime with which the suspect is charged.  That requirement does not include an obligation to state in the indictment the evidence on which the Prosecution has relied.  Where evidence is presented at trial which, in the view of the accused, falls outside the scope of the indictment, an objection as to lack of fair notice may be raised and an appropriate remedy may be provided by the Trial Chamber, either by way of an adjournment of the proceedings, allowing the Defence adequate time to respond to the additional allegations, or by excluding the challenged evidence. 

See also para. 147.

The Appeals Chamber further found:

153. […] the Appeals Chamber considers as correct the distinction made in Krnojelac between the material facts underpinning the charges and the evidence that goes to prove those material facts.  In terms of Article 18 of the Statute and Rule 47, the indictment need only contain those material facts and need not set out the evidence that is to be adduced in support of them.  In the instant case, the Appeals Chamber can find nothing wrong in the Trial Chamber’s admission of this evidence which supports the charge of torture, even though it was not specified in the Amended Indictment.  It would obviously be unworkable for an indictment to contain all the evidence that the Prosecutor proposes to introduce at the trial.

See also para. 162.

[1] Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-PT, Decision on the Defence Preliminary Motion on the Form of the Indictment, 24 Feb. 1999, para. 12.  See also Prosecutor v. Kvočka et al., Case No. IT-98-30-PT, Decision on Defence Preliminary Motions on the Form of the Indictment, 12 Apr. 1999, para. 14.

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ICTR Statute Article 17(4) ICTY Statute Article 18(4) ICTR Rule Rule 47(C) ICTY Rule Rule 47(C)
Notion(s) Filing Case
Decision on Access to Confidential Materials - 21.02.2007 KRAJIŠNIK Momčilo
(IT-00-39-A)

Pp. 4: CONSIDERING that a party is always entitled to seek material from any source, including from another case before the International Tribunal, to assist in the preparation of its case if the material sought has been identified or described by its general nature and if a legitimate forensic purpose for such access has been shown;[1]

CONSIDERING that “the relevance of the material sought by a party may be determined by showing the existence of a nexus between the applicant’s case and the cases from which such material is sought, i.e. if the cases stem from events alleged to have occurred in the same geographic area and at the same time”;[2]

CONSIDERING that “access to confidential material from another case may be granted wherever the Chamber is satisfied that the party seeking access has established that such material may be of material assistance to his case”[3] and that “it is sufficient that access to the material sought is likely to assist the applicant’s case materially, or that there is at least a good chance that it would”;[4]

P. 5: FINDING that the Applicant has sufficiently identified and described by its general nature the inter partes confidential material in the Prosecutor v. Krajišnik trial and appeals proceedings to which he seeks access;

FINDING FURTHER that there is a substantial geographical and temporal overlap between the Prosecutor v. Stanišić and Prosecutor v. Krajišnik cases such that the inter partes confidential material filed in the trial and appeals proceedings in Prosecutor v. Krajišnik is likely to be of material assistance in the preparation of the defence in Prosecutor v. Stanišić, and that therefore, the Applicant has demonstrated a legitimate forensic purpose for access to said confidential material;

P. 7: CONSIDERING that once an Appeals Chamber determines that confidential material filed in another case is likely to materially assist an applicant, the Appeals Chamber shall determine which protective measures shall apply to said material as it is within the Appeals Chamber’s discretionary power to strike a balance between the rights of a party to have access to material to prepare its case and guaranteeing the protection and the integrity of confidential information;[5]

[1] See Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-R, Decision on “Defence Motion on Behalf of Rasim Delić Seeking Access to All Confidential Material in the Blaškić Case”, 1 June 2006 (“Blaškić 2006 Decision”), p. 8 with further references in footnote 34.

[2] Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Decision on Appellants Dario Kordić and Mario Čerkez’s Request for Assistance of the Appeals Chamber in Gaining Access to Appellate Briefs and Non-Public Post Appeal Pleadings and Hearing Transcripts filed in the Prosecutor v. Blaškić, 16 May 2002 (“Blaškić 2002 Decision”), para. 15.

[3] Ibid., para. 14; see for further references Blaškić 2006 Decision, footnote 36.

[4] Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Decision on Momčilo Perišić’s Motion Seeking Access to Confidential Material in the Blagojević and Jokić Case, 18 January 2006 (“Blagojević and Jokić Decision”), para. 4; see for further references Blaškić 2006 Decision, footnote 37.

[5] Simić Decision [Prosecutor v. Blagoje Simić, Case No. IT-95-9-A, Decision on Defence Motion by Franko Simatović for Access to Transcripts, Exhibits, Documentary Evidence and Motions Filed by the Parties in the Simić et al. Case, 12 April 2005], p. 7. 

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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.

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ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Appeal Judgement - 17.09.2003 KRNOJELAC Milorad
(IT-97-25-A)

129.    The Appeals Chamber notes that, pursuant to Article 18(4) of the Statute, the indictment must set out “a concise statement of the facts and the crime or crimes with which the accused is charged”. Likewise, Rule 47(C) of the Rules provides that the indictment shall set out not only the name and particulars of the suspect but also “a concise statement of the facts of the case”.

130.    The Prosecution’s obligation to set out a concise statement of the facts of the case in the indictment must be interpreted in the light of the provisions of Articles 21(2), 21(4)(a) and 21(4)(b) of the Statute, which provide that, in the determination of charges against him, the accused shall be entitled to a fair hearing and, more specifically, to be informed of the nature and cause of the charges against him and to have adequate time and facilities for the preparation of his defence.

131.    In the case-law of the Tribunal, this translates into an obligation on the part of the Prosecution to state the material facts underpinning the charges in the indictment, but not the evidence by which such facts are to be proven.[1] Hence, the question of whether an indictment is pleaded with sufficient particularity is dependent upon whether it sets out the material facts of the Prosecution case with enough detail to inform a defendant clearly of the charges against him so that he may prepare his defence.

[1] Kupreškić Appeals Judgement quoting the Furundžija Appeals Judgement, para. 147;.

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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.

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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.

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ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Appeal Judgement - 20.10.2010 KALIMANZIRA Callixte
(ICTR-05-88-A)

56. Rule 67(A)(ii)(a) of the Rules requires the defence to notify the Prosecution before the commencement of trial of its intent to enter a defence of alibi. As the Trial Chamber noted, Kalimanzira intimated at his initial appearance and in his Pre-Trial Brief that he was in GitaramaPrefecture for much of the period covered by the Indictment.[1] However, as the Trial Chamber correctly determined,[2] this information did not conform to Rule 67(A)(ii)(a) of the Rules, which requires that “the notification shall specify the place or places at which the accused claims to have been present at the time of the alleged crime and the names and addresses of witnesses and any other evidence upon which the accused intends to rely to establish the alibi.” The Appeals Chamber has held that the manner in which an alibi is presented may impact its credibility.[3] Therefore, it was within the Trial Chamber’s discretion to take this into account in assessing the alibi evidence in this case.

[1] Trial Judgement, para. 62.

[2] Trial Judgement, paras. 62, 64.

[3] Rutaganda Appeal Judgement, para. 242; Musema Appeal Judgement, para. 201.

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ICTR Rule Rule 67(A)(ii)(a) ICTY Rule Rule 67(B)(i)(a)
Notion(s) Filing Case
Appeal Judgement - 20.10.2010 KALIMANZIRA Callixte
(ICTR-05-88-A)

213. The Appeals Chamber recalls that ordering requires that a person in a position of authority instruct another person to commit an offence. It is clear that the Trial Chamber found that Kalimanzira was in a position of authority.[2] The Trial Chamber, however, made no findings that he instructed anyone at Kabuye hill to commit a crime. Instead, it follows from the Trial Judgment that Kalimanzira’s role during his time at Kabuye hill involved “providing armed reinforcements.”[3] While it is possible that an order to attack could have been inferred from the surrounding circumstances, the Appeals Chamber is not satisfied that the Prosecution has demonstrated that this is the only reasonable inference from the evidence.

[1] Semanza Appeal Judgement, paras. 361, 363.

[2] Trial Judgement, paras. 97-99.

[3] Trial Judgement, para. 393.

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ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Decision on Motion to Vacate Appointment of Counsel - 12.02.2010 KARADŽIĆ Radovan
(IT-95-5/18-AR73.6)

26. The fundamental issue underlying the Appeal is the relation between Article 21(4)(d) of the Statute and the Trial Chamber’s appointment of standby counsel to Karadžić. Article 21(4) of the Statute reads, in relevant part:

In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality:

(d) […] to defend himself in person or through legal assistance of his own choosing […]

By their ordinary meaning, the rights provided for in Article 21(4)(d) of the Statute “stand in binary opposition”.[1] Accordingly, Article 21(4)(d) of the Statute does not provide an accused with the minimum guarantee of both the right to self-represent and the right to counsel of his own choosing; only the right to one or the other. Karadžić has elected to remain self-represented[2] and thus does not enjoy any rights that are derived from choosing to be represented by legal counsel.[3]

27. Karadžić’s contention that he should be accorded the rights of those who choose to be represented by legal counsel because the Trial Chamber has signalled its intention to override his election to self-represent is unpersuasive. The jurisprudence of the Tribunal establishes that the right to self-represent is not absolute and may be subject to certain limitations.[4] A Trial Chamber may restrict the right to self-representation in appropriate circumstances where “a defendant’s self-representation is substantially and persistently obstructing the proper and expeditious conduct of his trial”.[5] It is under this rubric of curtailing Karadžić’s right to self-representation that the Trial Chamber issued its Decision on Appointment of Counsel.[6] If the Trial Chamber ultimately decides to assign counsel to represent Karadžić’s interests at trial, it will not be because the Trial Chamber is recognizing a voluntary decision on behalf of Karadžić to cease his self-representation. Instead, it will be because the Trial Chamber has found that Karadžić’s persistent obstructive behaviour has made it necessary, in the interests of justice, to limit his right to self-representation by assigning counsel to represent his interests.

28. […] The text and structure of the Directive, Rules and Article 21 of the Statute confirm that the Directive does not apply to individuals who have chosen to self-represent. The Preamble of the Directive explicitly references Article 21 of the Statute, which encompasses the binary opposition of self-representation and appointment of counsel. In addition, the Directive’s text emphasizes that its focus is on the process of providing “legal assistance to indigent suspects or accused”. It also references Rule 45 of the Rules, which again focuses on the assignment of counsel to indigent suspects and accused. Self-represented individuals, whose ability to pay for counsel is by definition irrelevant, do not fall within its compass. By contrast, assignment of counsel to self-represented individuals is addressed by Rule 45ter of the Rules, which is not within the Directive’s scope.

29. Insofar as the Registrar took guidance from certain provisions of the Directive, his exercise of discretion did not render the Directive’s procedures binding on him with regard to the appointment of standby counsel for Karadžić.[12] As the Trial Chamber correctly noted, “there exists no specific set of guidelines to be followed by the Registrar” in relation to the appointment of counsel to represent the interests of an obstructive self-represented accused.[13] Considering related legal authorities in developing a procedure to select standby counsel, where such procedures were not outlined in any binding manner ex ante, was well within the Registrar’s discretion, and did not render those legal authorities binding.

[1] Krajišnik Decision [Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-A, Decision on Krajišnik Request and on Prosecution Motion, 11 September 2007], para. 40 (internal quotation omitted). See also Milošević Decision, para. 11. Cf. Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Scheduling Order for Appeals Hearing and Decision on Hassan Ngeze’s Motion of 24 January 2006, 16 November 2006, p. 3 (addressing Article 20(4)(d) of the Statute of the International Criminal Tribunal for Rwanda, which tracks Article 21(4)(d) of the Statute).

[2] Karadžić was provided the opportunity to choose whether to represent himself or be represented by counsel and chose to represent himself. Status Conference, T. 43, 17 September 2008. Karadžić currently retains and is exercising his right to self-representation. See Decision on Appointment of Counsel [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Decision on Appointment of Counsel and Order on Further Trial Proceedings, 5 November 2009], para. 25.

[3] See Prosecutor v. Slobodan Milošević, Case No. IT-02-54-AR73.6, Decision on the Interlocutory Appeal by the Amici Curiae Against the Trial Chamber Order Concerning the Presentation and Preparation of the Defence Case, 20 January 2004, para. 19. Rights Karadžić does not enjoy include, inter alia, the right to communicate with counsel of one’s own choosing guaranteed under Article 21(4)(b) of the Statute.

[4] Prosecutor v. Vojislav [ešelj, Case No. IT-03-67-AR73.3, Decision on Appeal Against the Trial Chamber’s Decision on Assignment of Counsel, 20 October 2006, para. 8, citing Miloševic Decision, paras 12-13.

[5] Milošević Decision, para. 13.

[6] Decision on Appointment of Counsel, paras 21, 25, 28.

[7] Directive [Directive on the Assignment of Defence Counsel, IT/73/Rev. 11, 11 July 2006], p. 4. See also supra, para. 26.

[8] Directive, Article 1(A).

[9] Id.

[10] Rule 45ter of the Rules provides that: “The Trial Chamber may, if it decides that it is in the interests of justice, instruct the Registrar to assign a counsel to represent the interests of the accused”.

[11] Article 2 of the Directive defines “Counsel” as “a person representing or eligible to represent a suspect or accused pursuant to Rules 44, 45 and 45 bis of the Rules”. Further evidence that Karadžić’s situation does not fall under the purview of the Directive is found in the Decision on Appointment of Counsel. This decision to order the Registrar to appoint standby counsel was rendered not pursuant to Rule 45 of the Rules and the Directive, but instead pursuant to Rule 54 of the Rules, which allows Trial Chambers to issue various orders related to the preparation and conduct of a trial. See Decision on Appointment of Counsel, para. 28.

[12] Cf. Krajišnik Decision, fn. 100, quoting Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-A, Decision on Momčilo Krajišnik’s Request to Self-Represent, on Counsel’s Motions in Relation to Appointment of Amicus Curiae, and on the Prosecution Motion of 16 February 2007, 11 May 2007, para. 18 (finding that although Krajišnik was not entitled as of right to amicus curiae counsel, such appointment was warranted under the circumstances).

[13] Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Decision on the Accused’s Motion to Vacate Appointment of Richard Harvey, 23 December 2009 (“Impugned Decision”), para. 30. 

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ICTR Statute Article 19(1);
Article 20(4)(d)
ICTY Statute Article 20(1);
Article 21(4)(d)
ICTR Rule Rule 45;
Rule 45 ter
ICTY Rule Rule 45;
Rule 45 ter
Other instruments Directive on the Assignment of Defence Counsel (ICTY).
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.

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ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Leave to Appeal (Defence) - 30.11.2001 GALIĆ Stanislav
(IT-98-29-AR72)

14. [A]n indictment must necessarily, in the absence of a special order, consist of the one document.  Its contents cannot properly or practicably be identified by reference to a number of documents in which statements made in one document are altered by statements made in another document. […]

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Notion(s) Filing Case
Decision on Reopening Prosecution Case - 01.07.2010 GOTOVINA et al.
(IT-06-90-AR73.6)

23. Relying upon the Appeals Chamber’s holding in the Čelebići Appeal Judgement, the Trial Chamber stated the law applicable to a request for reopening a party’s case as follows:

[W]hen considering an application for reopening a case to allow for the admission of fresh evidence, a Trial Chamber should first determine whether the evidence could, with reasonable diligence, have been identified and presented in the case-in-chief of the party making the application. If not, the Trial Chamber has the discretion to admit it, and should consider whether its probative value is substantially outweighed by the need to ensure a fair trial. When making this determination, the Trial Chamber should consider the stage in the trial at which the evidence is sought to be adduced and the potential delay that would be caused to the trial.[1]

24. The Appeals Chamber finds that the Trial Chamber correctly articulated the applicable legal standard. […] [T]he Appeals Chamber notes that an evaluation of what constitutes fresh evidence and whether the Prosecution has met its obligation of reasonable diligence is highly contextual, depending on the factual circumstances of each case. Thus, any assessment in this respect should be carried out on a case-by-case basis.[2]

[…]

35. [T]he Appeals Chamber recalls that in a case where the evidence is sought to be presented at a very advanced stage of the proceedings, the Prosecution should establish that the evidence could not have been obtained, even if after the close of its case, at an earlier stage in the trial.[3] […]

[1] Impugned Decision [Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-T, Decision on Prosecution’s Motion to Reopen its Case, 21 April 2010 (confidential)], para. 10 (footnotes omitted).

[2] Popović Decision of 24 September 2008 [Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-AR73.5, Decision on Vujadin Popović’s Interlocutory Appeal Against the Decision on the Prosecution’s Motion to Reopen its Case-in-Chief, 24 September 2008], para. 10.

[3] Čelebići Appeal Judgement [Prosecutor v. Zejnil Delalić, et al., Case No. IT-96-21-A, Judgement, 20 February 2001], para. 286.

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Decision on Review - 17.01.2008 GOTOVINA et al.
(IT-06-90-AR108bis.2)

On 28 November 2007, Trial Chamber I denied a motion by Ante Gotovina for provisional release. It considered that, in the specific circumstances of the case, the guarantees offered by the Government of Croatia were not sufficient to satisfy the Trial Chamber that Gotovina, if provisionally released, would return to the International Tribunal when ordered. In this respect, the Trial Chamber found that, whereas the incentives not to appear for trial remain unchanged, such guarantees “were not sufficiently effective”.

5. Rule 108 bis of the Rules of Procedure and Evidence (“Rules” or “Rule”) provides a mechanism by which a State affected by a decision of a Trial Chamber may request review of that decision by the Appeals Chamber. For such a request to be admissible, the State in question must demonstrate that (i) it is directly affected by the Trial Chamber’s Decision and
(ii) that the decision concerns issues of general importance relating to the powers of the Tribunal.[1] Only when this two-pronged test is met will the Appeals Chamber consider the merits of the State request for review.[2]

6. In particular, the Appeals Chamber recalls that Rule 108 bis was adopted for a State to seek review of a decision that has affected its legal rights. This remedy is unavailable to a State which claims that a decision has affected its legitimate political interests.[3]

12. The Appeals Chamber finds that Croatia is not affected by the Decision, since the principle of sovereign equality enshrined in Article 2(1) of the United Nations Charter is not actually at stake. The Trial Chamber’s consideration on what effect to be given to a State’s guarantees does not affect a State’s legal right, as such guarantees are not dispositive of provisional release determinations. Rather, the Trial Chamber is required to assess all relevant factors relating to individual circumstances of an accused.[4] Here, the Trial Chamber’s decision to reject Gotovina’s request for provisional release was based on Gotovina’s individual circumstances, of which Croatia’s guarantees were only a part.[5] Thus, a Trial Chamber’s provisional release decision is emphatically not an assessment of the reliability of any particular government or the guarantees that it offers.

13. Furthermore, the Trial Chamber’s assessment of the guarantees cannot be said to have affected Croatia’s legal rights since Croatia has no legally cognizable interest either in securing Gotovina’s provisional release or in ensuring that a Trial Chamber will assesses its guarantee in one particular manner.

[1] Rule 108 bis (A); see Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-AR108bis.1, Decision on Prosecution’s Motion to Strike Request for Review Under Rule 108bis, 13 December 2006 (“Gotovina First Review Decision”), para. 6.

[2] Id.

[3] Prosecutor v. Janko Bobetko, Case No. IT-02-62-AR54bis & IT-02-62-AR108bis, Decision on Challenge by Croatia to Decision and Orders of Confirming Judge, 29 November 2002 (“Bobetko Decision”), para. 11; see also Gotovina First Review Decision, paras 7-8.

[4] See, e.g., Prosecutor v. Vujadin Popović, Case No. IT-02-57-AR65.1, Decision on Interlocutory Appeal from Trial Chamber Decision Denying Vujadin Popović’s Application for Provisional Release, 28 October 2005, para. 10 (“The Trial Chamber, moreover, did not have to rely on the guarantees just because they had been offered by Governments with power to arrest the Appellant.  A Trial Chamber must evaluate government guarantees in light of the circumstances surrounding each individual applicant, and in some circumstances, it may be reasonable to place little weight on a government guarantee.  Indeed, here the Trial Chamber did not err by failing to find the government guarantees determinative notwithstanding the issuing authorities’ track record regarding compliance.) (citation omitted and emphasis added); Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-AR65.3, Decision on Interlocutory Appeal of Trial Chamber’s Decision Denying Ljubomir Borovčanin Provisional Release, 1 March 2007, para. 16 (noting that “the reliability of such a guarantee must always be determined in relation to the circumstances of an individual accused in each case”) (emphasis added); Prosecutor v. Milan Lukić and Sredoje Lukić, Case No. IT-98-32/1-AR65.1, Decision on Defence Appeal Against Trial Chamber’s Decision on Sredoje Lukić’s Motion for Provisional Release, 16 April 2007, para. 21 (observing that “the Trial Chamber duly considered the weight to be accorded to the guarantees in relation to the particular circumstances of the Appellant’s case”) (emphasis added).

[5] Cf. Gotovina First Review Decision, para. 8 and Bobetko Decision, para. 11.

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ICTY Rule Rule 108bis
Notion(s) Filing Case
Decision on Assignment of Counsel - 20.10.2006 ŠEŠELJ Vojislav
(IT-03-67-AR73.3)

In its Decision of 21 August 2006, Trial Chamber I had appointed a defence counsel to Šešelj and clarified that the accused could participate to the proceedings only through such counsel. The accused’s personal participation could only have been allowed by the Trial Chamber after having taken “into account all circumstances and after having heard from the Counsel”.[1] The Appeals Chamber, recalling a principle laid down in the Milošević case[2], affirmed that an accused can file submissions to the Appeals Chamber in an appeal filed by his Counsel, even if the authorization of the Trial Chamber is missing.[3]

[1] Impugned Decision, para. 80.

[2] Milošević Decision on Defence Counsel, paras. 7 and 16.

[3] Decision, paras. 11-12.

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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).

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

13. The Appeals Chamber first notes that with respect to the standard for admission of evidence on appeal, Lazarević submits that two prerequisites must be met: (i) the material must have been unavailable at trial and (ii) its consideration by the Appeals Chamber must be in the interests of justice.[1] Had the material been available at trial, Lazarević argues that the Appeals Chamber retains the inherent power to consider it, if a failure to do so would result in a miscarriage of justice.[2] The Appeals Chamber finds that Lazarević misapprehends the standard for admission of additional evidence on appeal, as the “interests of justice” test reflects neither the current requirements of Rule 115(B) of the Rules nor the established jurisprudence of the Tribunal.[3] The Appeals Chamber will therefore examine Lazarević’s submissions in accordance with the correct standard articulated above.[4]

[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.

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ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Appeal Judgement - 19.05.2010 BOŠKOSKI & TARČULOVSKI
(IT-04-82-A)

160. The Appeals Chamber recalls that the actus reus of ordering requires that a person in a position of authority instruct another person to commit an offence.[1] There is no requirement that the order be given in any particular form, and the existence of the order may be proven through circumstantial evidence.[2] Furthermore, it is sufficient to demonstrate that the order substantially contributed to the physical perpetrator’s criminal conduct.[3]

[1] Galić Appeal Judgement, para. 176; Kordić and Čerkez Appeal Judgement, para. 28; Nahimana et al. Appeal Judgement, para. 481; Semanza Appeal Judgement, para. 361. See also Trial Judgement, para. 400.

[2] Trial Judgement, para. 400 (citing, in particular, Kamuhanda Appeal Judgement, para. 76; Galić Appeal Judgement, paras 170-171; Limaj et al. Trial Judgement, para. 515; Blaškić Trial Judgement, para. 281).

[3] Nahimana et al. Appeal Judgement, para. 492; Strugar Trial Judgement, para. 332. See also Aleksovski Trial Judgement, para. 61; Tadić Trial Judgement, paras 673-674.  

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ICTR Statute Article 6(1) ICTY Statute Article 7(1)
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. 

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Decision on Access to Ex Parte Filings - 10.05.2016 KARADŽIĆ Radovan
(MICT-13-55-A)

CONSIDERING that, with regard to confidential material, the Mechanism must “find a balance between the right of a party to have access to material to prepare its case and the need to guarantee the protection of witnesses”;[1]

RECALLING that a request for access to confidential material from another case can only be granted if the material sought has been identified or described by its general nature and a legitimate forensic purpose for gaining such access is shown;[2]

RECALLING ALSO that the party seeking access to confidential material bears the burden to justify its request;[3]

RECALLING FURTHER that the requesting party must establish that such material is likely to assist its case materially, or that there is at least a good chance that it would, and that this standard may be met by showing the existence of a nexus between the applicant’s case and the cases from which such material is sought;[4]

[1] Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Decision on Mićo Stanišić’s Motion for Access to All Confidential Materials in the Brđanin Case, 24 January 2007 (“Brđanin Decision of 24 January 2007”), para. 10. See Prosecutor v. Nikola Šainović et al., Case No. IT-05-87-A, Decision on Vlastimir Đorđević’s Motion for Access to Transcripts, Exhibits and Documents, 16 February 2010 (“Šainović Decision of 16 February 2010”), para. 19.

[2] See, e.g., Prosecutor v. Vujadin Popović et al., Case Nos. IT-05-88-A & IT-09-92-T, Decision on Motion by Ratko Mladić for Access to Confidential Material, 20 February 2013 (“Popović Decision of 20 February 2013”), p. 2; Tharcisse Muvunyi v. The Prosecutor, Case No. ICTR-2000-55A-A, Decision on Ildephonse Nizeyimana’s Request for Access to Closed Session Transcripts, 31 March 2011 (“Muvunyi Decision of 31 March 2011”), para. 3; Šainović Decision of 16 February 2010, para. 9. See also Eliézer Niyitegeka v. Prosecutor, Case No. MICT-12-16, Decision on Niyitegeka’s Urgent Request for Orders Relating to Prosecution Witnesses, 29 January 2016, para. 8; Prosecutor v. Jean de Dieu Kamuhanda, Case No. MICT-13-33-R86.2, Second Decision on Motion for Access to Confidential Material from the Nshogoza Case, 9 November 2015, para. 4.

[3] See Brđanin Decision of 24 January 2007, para. 14.

[4] See Popović Decision of 20 February 2013, p. 2; Muvunyi Decision of 31 March 2011, para. 3; Brđanin Decision of 24 January 2007, para. 12.

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Notion(s) Filing Case
Decision on Access to Ex Parte Filings - 10.05.2016 KARADŽIĆ Radovan
(MICT-13-55-A)

EMPHASIZING that, with regard to ex parte confidential material, the requesting party must meet a higher standard in order to establish a legitimate forensic purpose for accessing such material[1] as it by its nature contains information that has not been disclosed inter partes because of, inter alia, “privacy interests of a person” and that, therefore, “the party on whose behalf the ex parte status has been granted enjoys a protected degree of trust that the ex parte material will not be disclosed”;[2]

[1] Brđanin Decision of 24 January 2007 [Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Decision on Mićo Stanišić’s Motion for Access to All Confidential Materials in the Brđanin Case, 24 January 2007], para. 14.  

[2] Šainović Decision of 16 February 2010 [Prosecutor v. Nikola Šainović et al., Case No. IT-05-87-A, Decision on Vlastimir Đorđević’s Motion for Access to Transcripts, Exhibits and Documents, 16 February 2010], para. 10 and references cited therein.

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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.

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ICTR Rule Rule 115 ICTY Rule Rule 115 MICT Rule Rule 142
Notion(s) Filing Case
Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

69. Joinder and severance of trials are governed by Rules 48 and 82 of the Rules. Rule 48 of the Rules provides that “[p]ersons accused of the same or different crimes committed in the course of the same transaction may be jointly charged or tried.” A transaction is defined under Rule 2 of the Rules as “[a] number of acts or omissions whether occurring as one event or a number of events, at the same or different locations and being part of a common scheme, strategy or plan.” It has been held that, pursuant to Rule 2 of the Rules, a common scheme, strategy, or plan therefore includes one or a number of events at the same or different locations.[1] There is no requirement under Rules 2 and 48 of the Rules that the events constituting the “same transaction” take place at the same time or be committed together.[2] In deciding whether the case against more than one accused should be joined pursuant to Rule 48 of the Rules, a trial chamber should base its determination upon the factual allegations contained in the indictments and related submissions.[3]

70. Where a trial chamber finds that two or more persons have allegedly committed crimes in the course of the same transaction, it then considers various factors, which it weighs in the exercise of its discretion as to whether joinder should be granted.[4] Rule 82 of the Rules provides:

(A) In joint trials, each accused shall be accorded the same rights as if he were being tried separately.

(B) The Trial Chamber may order that persons accused jointly under Rule 48 be tried separately if it considers it necessary in order to avoid a conflict of interests that might cause serious prejudice to an accused, or to protect the interests of justice.

71. In light of Rule 82 of the Rules, it is therefore appropriate for a trial chamber deciding on a motion for joinder pursuant to Rule 48 of the Rules to consider and weigh the following factors: (i) protection of the fair trial rights of the accused pursuant to Article 20 of the Statute; (ii) avoidance of any conflict of interests that might cause serious prejudice to an accused; and (iii) protection of the interests of justice. Factors that a trial chamber may look to in the interests of justice include: (i) avoiding the duplication of evidence; (ii) promoting judicial economy; (iii) minimising hardship to witnesses and increasing the likelihood that they will be available to give evidence; and (iv) ensuring consistency of verdicts.[5]

[1] Prosecutor v. Zdravko Tolimir et al., Case No. IT‑04‑80-AR73.1, Decision on Radivoje Miletić’s Interlocutory Appeal Against the Trial Chamber’s Decision on Joinder of Accused, 27 January 2006 (“Miletić Appeal Decision on Joinder”), para. 7; Prosecutor v. Vinko Pandurević and Milorad Trbić, Case No. IT‑05‑86‑AR73.1, Decision on Vinko Pandurević’s Interlocutory Appeal against the Trial Chamber’s Decision on Joinder of Accused, 24 January 2006 (“Pandurević Appeal Decision on Joinder”), para. 7.

[2] Cf. Prosecutor v. Ante Gotovina et al., Cases Nos. IT-01-45-AR73.1, IT‑03-73-AR73.1, IT-03-73-AR73.2, Decision on Interlocutory Appeals Against the Trial Chamber’s Decision to Amend the Indictment and for Joinder, 25 October 2006 (“Gotovina Appeal Decision on Joinder”), para. 16; Pandurević Appeal Decision on Joinder, para. 7. The Appeals Chamber considers that, although these decisions were taken in the context of joinder of cases where the Prosecution requested both joinder of the charges and consequently of the trials, this jurisprudence applies mutatis mutandis to cases, like the present case, where only joinder of trials was requested on the basis of several confirmed indictments.

[3] Gotovina Appeal Decision on Joinder, para. 16; Miletić Appeal Decision on Joinder, para. 7; Pandurević Appeal Decision on Joinder, para. 7.

[4] Miletić Appeal Decision on Joinder, para. 8; Pandurević Appeal Decision on Joinder, para. 8. See also Gotovina Appeal Decision on Joinder, para. 17.

[5] See Gotovina Appeal Decision on Joinder, para. 17; Miletić Appeal Decision on Joinder, para. 8; Pandurević Appeal Decision on Joinder, para. 8. Cf. also Ntabakuze Appeal Decision on Severance [Théoneste Bagosora et al. v. The Prosecutor, Case No. ICTR-98-41-A, Decision on Aloys Ntabakuze’s Motion for Severance, Retention of the Briefing Schedule and Judicial Bar to the Untimely Filing of the Prosecution’s Response Brief, 24 July 2009], para. 25.

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ICTR Rule Rule 48;
Rule 48bis;
Rule 82
ICTY Rule Rule 48;
Rule 82
Notion(s) Filing Case
Decision on Redacted Versions of Decisions - 18.07.2016 KARADŽIĆ Radovan
(MICT-13-55-A)

Page 3:

RECALLING that, with regard to confidential material, the Mechanism must find a balance between the right of a party to have access to material to prepare its case and the need to guarantee the protection of witnesses and the confidentiality of sensitive information;[1]

[1] See Decision on Motion for Access to Ex Parte Filings in Completed Cases, 10 May 2016 (“Appeals Chamber Decision of 10 May 2016”), p. 2 and references cited therein. 

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