Evidence rebutting judicially noted facts
|Decision on Rebuttal Evidence - 29.05.2009||
KAREMERA et al.
7. The Trial Chamber’s decision in this case to deny admission of a transcript of evidence under Rule 92bis(D) of the Rules to rebut a judicially noticed fact is a discretionary decision to which the Appeals Chamber accords deference.
14. In the Karemera et al. Appeal Decision on Judicial Notice, the Appeals Chamber held that the Defence may rebut the presumption by introducing “reliable and credible” evidence to the contrary. The requirement that the evidence be “reliable and credible” must be understood in its proper context, through the lens of the general standard for admission of evidence at trial set out in Rule 89(C) of the Rules: “[a] Chamber may admit any relevant evidence which it deems to have probative value”. Only evidence that is reliable and credible may be considered to have probative value.
15. It follows that, as for any other evidence for which no additional requirements have been specified in the Rules, the threshold for admission of this type of rebuttal evidence is relatively low: what is required is not the definitive proof of reliability or credibility of the evidence, but the showing of prima facie reliability and credibility on the basis of sufficient indicia. The final evaluation of the reliability and credibility, and hence the probative value of the evidence, will only be made in light of the totality of the evidence in the case, in the course of determining the weight to be attached to it.
16. In the present case, the Trial Chamber found that “evidence which has already been considered and rejected by another Trial Chamber in making a finding of fact should not be admissible in a later proceeding to rebut that same finding of fact”. [...]
20. Lastly, the Trial Chamber reasoned that “the very purpose of admitting adjudicated facts would be undermined by permitting a party to admit such evidence” because “[j]udicial economy would not be achieved if parties were entitled to challenge adjudicated facts with evidence that has already been rejected in relation to that finding.” In this respect, the Appeals Chamber underscores that the principle of judicial economy must yield to the fundamental right of the accused to a fair trial. A Trial Chamber cannot deny the Defence its right to put the adjudicated fact into question by introducing evidence to the contrary simply because it would frustrate judicial economy. Further, the Appeals Chamber emphasizes that Rule 94(B) of the Rules fosters judicial economy by avoiding the need for evidence in chief to be presented in support of a fact already previously adjudicated. Hence, the purpose of judicial economy underlying Rule 94(B) of the Rules is not frustrated by the admission of rebuttal evidence.
21. Similarly, the fact that the judicial notice mechanism was also created to favour consistency and uniformity of the case-law cannot be a matter that weighs against the admissibility of rebuttal evidence. In this respect, the Appeals Chamber stresses that adjudicated facts that are judicially noticed by way of Rule 94(B) of the Rules remain to be assessed by the Trial Chamber to determine what conclusions, if any, can be drawn from them when considered together with all the evidence brought at trial. The Rule 94(B) mechanism does not allow a Chamber to simply defer to the assessment of the evidence by another Chamber on the ground that this mechanism was fashioned to favour consistency and uniformity in the Tribunal’s case-law.
22. The Appeals Chamber concludes that the Trial Chamber incorrectly applied the governing law in finding that “evidence which has already been considered and rejected by another Trial Chamber in making a finding of fact should not be admissible in a later proceeding to rebut that same finding of fact”. This approach would have the effect of denying to the opposite party its fundamental right to contest the material admitted by rebutting the presumption created by the admission of the adjudicated fact. In deferring to the assessment of the reliability of Ntakirutimana’s testimony by the Ntakirutimana Trial Chamber, the Trial Chamber not only failed to fulfil its obligation to examine whether the evidence may have probative value in the circumstances of the case before it, but also misapplied the standard for admission of evidence which only requires prima facie indicia of reliability and credibility.
 As regards the general discretion afforded to Trial Chambers in determining the admissibility of evidence, see, e.g.: Prosecutor v. Jadranko Prlić et al., Case No. IT-04-14-AR73.13, Decision on Jadranko Prlić’s Consolidated Interlocutory Appeal Against the Trial Chamber’s Orders of 6 and 9 October 2008 on Admission of Evidence, 12 January 2009 (“Prlić et al. Appeal Decision”), para. 5; Prosecutor v. Popović et al., Case No. IT-05-88-AR73.3, Decision on Appeals Against Decision on Impeachment of a Party’s Own Witness, 1 February 2008, para. 31; Aloys Simba v. The Prosecutor, Case No. ICTR-01-76-A, Judgement, 27 November 2007 (“Simba Appeal Judgement”), para. 19; Pauline Nyiramasuhuko v. The Prosecutor, Decision on Pauline Nyiramasuhuko’s Appeal on the Admissibility of Evidence, Case No. ICTR-98-42-AR73.2, 4 October 2004 (“Nyiramasuhuko Appeal Decision”), para. 7.
 Karemera et al. Appeal Decision on Judicial Notice [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], paras. 42, 49. See also Dragomir Milošević Appeal Decision [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], para. 17.
See Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-A, Judgement (“Naletilić and Martinović Appeal Judgement”), para. 402, citing Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-AR73.2, Decision on Application of Defendant Zejnil Delalić for Leave to Appeal Against the Decision of the Trial Chamber of 19 January 1998 for the Admissibility of Evidence, 4 March 1998 (“Delalić et al. Appeal Decision”), para. 20: “The implicit requirement that a piece of evidence be prima facie credible – that it have sufficient indicia of reliability – is a factor in the assessment of its relevance and probative value.” See also Prosecutor v. Zlatko Aleksovski, Case No. IT- 95-14/1-AR73, Decision on Prosecution’s Appeal on Admissibility of Evidence, 16 February 1999, para. 15 (dealing with hearsay evidence); Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-AR73.5, Decision on Appeal Regarding Statement of a Deceased Witness, 21 July 2000 (“Kordić Appeal Decision”), paras. 22-24; The Prosecution v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Judgment, 1 June 2001 (“Akayesu Appeal Judgement”), para. 286; Alfred Musema v. The Prosecution, Case No. ICTR-96-13-A, Judgement, 16 November 2001 (“Musema Appeal Judgement”), para. 46; Prosecutor v. Popović et al., Case No. IT-05-88-AR73.2, Decision on Joint Defence Interlocutory Appeal Concerning the Status of Richard Butler as an Expert Witness, 30 January 2008 (“Popović et al. Appeal Decision”), para. 22; Prosecutor v. Popović et al., Case No. IT-05-88-AR73.3, Decision on Appeals Against Decision on Impeachment of a Party’s Own Witness, 1 February 2008, para. 31; Prlić et al. Appeal Decision, para. 15. In this respect, the Appeals Chamber repeatedly held that a piece of evidence may be so lacking in terms of the indicia of reliability that it is not probative: Prlić et al. Appeal Decision, para. 15; Nyiramasuhuko Appeal Decision, para. 7; Georges Rutaganda v. The Prosecution, Case No. ICTR-96-3-A, Judgement, 26 May 2003 (“Rutaganda Appeal Judgement”), paras. 33, 266; Musema Appeal Judgement, para. 46; Akayesu Appeal Judgement, para. 286; Kordić Appeal Decision, para. 24
 Naletilić and Martinović Appeal Judgement, para. 402; Delalić et al. Appeal Decision, paras. 17, 20. See also Prlić et al. Appeal Decision, para. 15; Popović et al. Appeal Decision, para. 22; Nyiramasuhuko Appeal Decision, para. 7; Rutaganda Appeal Judgement, paras. 33, 266; Musema Appeal Judgement, para. 47; Akayesu Appeal Judgement, para. 286. The Appeals Chamber notes that the large majority of the appeal decisions on the issue of admissibility of evidence at trial only refer to the requirement of “reliability”, without explicitly mentioning the requirement of “credibility”. Given the large meaning of the term “reliability”, the Appeals Chamber considers that the requirement of prima facie reliability indisputably encompasses the requirement of prima facie credibility.
 See, e.g., Popović et al. Decision, para. 21; Nyiramasuhuko Appeal Decision, para. 7; Rutaganda Appeal Judgement, fns. 63, 425.
 Impugned Decision [The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Decision on Joseph Nzirorera’s Application for Certification to Appeal the Decision Denying His Motion to Admit Testimony of Elizaphan Ntakirutimana, 24 March 2009], para. 12.
 Impugned Decision, para. 12.
 Impugned Decision, para. 12.
Rule 94 ICTY Rule Rule 89(C);