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Notion(s) Filing Case
Decision on Additional Evidence - 15.11.2000 JELISIĆ Goran
(IT-95-10-A)

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

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

34. The fact that there had been a meeting held at Samvura’s house on the morning of 7 April 1994 involving the Appellant and distribution of arms is not in itself decisive for the Trial Chamber’s conclusion as to the Appellant’s responsibility for killings of the Tutsi civilians in Gisenyi. In fact, the Trial Chamber concluded that there was no evidence that the Appellant was present during the killings of 7 April 1994 and that, on that morning, the Appellant ordered the Interahamwe to kill the Tutsi and to prepare graves in Commune Rouge. Consequently, the principal issue is whether, should the Trial Chamber have had the benefit of hearing the testimony of Witness ABC1, it would have disbelieved Witness EB with respect to the events that took place on the morning of 7 April 1994. In the presence of contradictory accounts of the two witnesses, the Trial Chamber would have had to determine which of the accounts was reliable and, in light of evidence provided by Witness ABC1 in the Bagosora et al. case and the fact that [REDACTED], the Appeals Chamber is not satisfied that a reasonable trier of fact would have found this witness credible to the detriment of the account provided by Witness EB. Moreover, Witness ABC1 in the Bagosora et al. case only testified to the fact that the Appellant was not at [Samvura’s] house that morning and that there was no meeting there. The mere fact that [Witness ABC1] did not witness or hear him ordering the killings does not mean that this could not have occurred.The Appeals Chamber notes to this extent that Witness EB testified that the Appellant ordered the killing through a loudspeaker from his vehicle and not during the meeting at Samvura’s house.Consequently, and in light of the findings above concerning Witnesses AHI and AGX, the Appeals Chamber is not satisfied that the exclusion of the proffered additional evidence would amount to a miscarriage of justice inasmuch as, had it been adduced at trial, it would not have had an impact on the verdict.

[1] Trial Judgement, para. 825.

[2] Id.

[3] See Jean de Dieu Kamuhanda v. The Prosecutor, Case No. ICTR-99-54A-A, Judgement, 19 September 2005, para. 158.

[4] At the same time, the Appeals Chamber recalls that the credibility of Witness EB, the only witness to have testified to the ordering of the killings by the Appellant (the only relevant part of Omar Serushago’s testimony that was considered corroborated by the Trial Chamber, and thus reliable, referred to the fact that the Appellant “was transporting arms in a red Hilux vehicle on the morning of 7 April 1994” but not the fact that he ordered that attack), is yet to be re-assessed on the basis of his testimony at the appeals hearing to the subject of his purported Recantation Statement.

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

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

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

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Notion(s) Filing Case
Decision on Additional Evidence - 26.02.2001 KUPREŠKIĆ et al.
(IT-95-16-A )

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

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

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

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

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

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Notion(s) Filing Case
Decision on Additional Evidence on Appeal - 02.03.2018 KARADŽIĆ Radovan
(MICT-13-55-A)

Pages 3-4:

 7.          Rule 142 of the Rules of Procedure and Evidence of the Mechanism (“Rules”) provides for the admission of additional evidence on appeal. 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.[1] The applicant must also show that the additional evidence is relevant to a material issue at trial and is credible. [2] 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 verdict.[3] Where the Appeals Chamber finds that the evidence was available at trial, it may still be admissible pursuant to Rule 142(C) of the Rules. However, in such a case, the applicant must demonstrate 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 verdict.[4]

8.          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 verdict.[5] An applicant who fails to do so runs the risk that the tendered material will be rejected without detailed consideration.[6]

[1] 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. See also Prosecutor v. Jean Uwinkindi, MICT-12-24-AR14.1, Decision on Requests for Admission of Additional Evidence on Appeal, 22 September 2016 (“Uwinkindi Decision of 22 September 2016”), para. 5.

[2] Ngirabatware Decision of 21 November 2014, para. 25. See also Uwinkindi Decision of 22 September 2016, para. 5. Evidence is relevant if it relates to findings material to the conviction or sentence, in the sense that those findings were crucial or instrumental to the conviction or sentence, and is credible if it appears to be reasonably capable of belief or reliance. Ngirabatware Decision of 21 November 2014, para. 25.

[3] Ngirabatware Decision of 21 November 2014, para. 26. Cf. Uwinkindi Decision of 22 September 2016, para. 5.

[4] Ngirabatware Decision of 21 November 2014. para. 27. Cf. Uwinkindi Decision of 22 September 2016, para. 6.

[5] Ngirabatware Decision of 21 November 2014, para. 28. Cf. Uwinkindi Decision of 22 September 2016, para. 7.

[6] Ngirabatware Decision of 21 November 2014, para. 28. See also Uwinkindi Decision of 22 September 2016, para. 7. 

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IRMCT Rule Rule 142