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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 recalled that the Prosecution’s disclosure obligations under Rule 68 of the Rules are positive and continuous and consist of its duty to, as soon as practicable, disclose to the Defence any material which in its actual knowledge may suggest the innocence or mitigate the guilt of the accused or affect the credibility of Prosecution evidence. The Appeals Chamber also noted that the assessment of such material lies with the Prosecution’s discretion which is presumed to be exercised bona fide, unless proven to be abusive.

7. La Chambre d’appel rappelle que les éléments de preuve relevant de l’article 68 du Règlement sont ceux de nature à disculper en tout ou en partie l’accusé ou à porter atteinte aux éléments de preuve du Procureur[1] et que l’obligation de communiquer ces éléments est une obligation permanente qui subsiste après le procès en première instance, y compris durant la procédure d’appel[2]. Etant donné que c’est au Procureur qu’il appartient de déterminer quels sont les documents qui répondent aux critères énoncés par l’article 68 du Règlement, la Chambre d’appel présume que le Procureur agit de bonne foi et elle n’intervient pas dans l’exercice de cette appréciation discrétionnaire à moins qu’il ne soit démontré que le jugement du Procureur en la matière est abusif[3]. […]

[1] Le Procureur c/ Radislav Krstić, affaire n° IT-98-33-A, Arrêt, 19 avril 2004 (ci-après « Arrêt Krstić »), par. 178. See also 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 décembre 2006 (« Décision Barayagwiza du 8 décembre 2006 »), par. 34.

[2] Decision on Appellant Jean-Bosco Barayagwiza’s Motion Requesting that the Prosecution Disclosure of the Interview of Michel Bagaragaza Be Expunged from the Record, 30 octobre 2006, (ci-après “Décision Barayagwiza du 30 octobre 2006”), par. 6; Decision on Motions Relating to the Appellant Hassan Ngeze’s and Prosecution’s Requests for Leave to Present Additional Evidence of Witnesses ABC1 and EB, 27 novembre 2006 (« Décision Ngeze du 27 novembre 2006 »), par. 11; Le Procureur c/ Radoslav Brdjanin, affaire n°IT-99-36-A, Décision relative aux requêtes par lesquelles l’Appelant demande que l’Accusation s’acquitte de ses obligations de communication en application de l’article 68 du Règlement et qu’une ordonnance impose au Greffier de communiquer certains documents, 7 décembre 2004 (ci-après « Décision Brđanin du 7 décembre 2004 »), p. 3 ; Prosecutor v. Miroslav Bralo, Case No. IT-95-17-A, Decision on Motions for Access to Ex Parte Portions of the Record on Appeal and for Disclosure of Mitigating Material, 30 août 2006 (ci-après “Décision Bralo du 30 août 2006”), par. 29;

[3] Décision Barayagwiza du 8 décembre 2006, par. 34 ; Décision Barayagwiza du 30 octobre 2006, par. 6 ; Georges Rutaganda v. The Prosecutor, Case No. ICTR-96-3-A, Decision on Urgent Defence Motion for Disclosure and Admission of Additional Evidence and Scheduling Order, 12 décembre 2002, pp 4-5 ; Alfred Musema v. The Prosecutor, Case No. ICTR-96-13-A, Decision on the Appellant’s Motions for the Production of Material, Suspension of Extension of the Briefing Schedule, and Additional Filings, 18 mai 2001, p. 4; Décision Brđanin du 7 décembre 2004, p. 3 ; Décision Bralo du 30 août 2006, par. 30-31 ; Prosecutor v. Edouard Karemera et al., Case No. ICTR-98-44-AR73.6, Decision on Joseph Nzirorera’s Interlocutory Appeal, 28 avril 2006, par. 16; Décision Brđanin du 7 décembre 2004 , p. 3-4; Le Procureur c/ Tihomir Blaškić, affaire n° 95-14-A, Arrêt, 29 juillet 2004 (“Arrêt Blaškić”), par. 264 ; Prosecutor v. Tihomir Blaškić, Case No IT-95-14-A, Decision on Prosecution’s Application to Seek Guidance from the Appeals Chamber regarding Redaction of the Statement of “Witness Two” for the purposes of Disclosure to Dario Kordić under Rule 68, 4 mars 2004, (« Décision Blaškić du 4 mars 2004 »), par. 44 ; Prosecutor v. Tihomir Blaškić, Case No IT-95-14-A, [Confidential] Decision on Prosecution’s Application to Seek Guidance from the Appeals Chamber regarding Redaction of the Statement of “Witness Two” for the purposes of Disclosure to Paško Ljubičić under Rule 68, 30 mars 2004 (« Décision Blaškić du 30 mars 2004 »), par. 31-32 ; Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Decision on the Appellant’s Motions for the Production of Material, Suspension or Extension of the Briefing Schedule, and Additional Filings, 26 septembre 2000 (« Décision Blaškić du 26 septembre 2000 »), par. 38, 39 et 45 ; Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-A, Decision, 22 mars 2004, p. 3. 

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ICTR Rule Rule 68 ICTY Rule Rule 68
Notion(s) Filing Case
Decision on Further Investigations - 08.12.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

The Appeals Chamber recalled that a party seeking authorization for additional investigation on appeal under Rule 115 of the Rules has to show that the potential evidence at issue could not have been discovered at trial even through the exercise of due diligence. It also reiterated that it would only allow for funding of such investigations on appeal in exceptional circumstances and in order to avoid a miscarriage of justice. In the present case, the Appeals Chamber was not satisfied that the required criteria were met.

23. La Requête du 10 octobre 2006 vise l’autorisation d’une enquête complémentaire au stade de l’appel au titre de l’article 115 du Règlement. Dans ce cas, le requérant doit démontrer que la preuve recherchée était indisponible lors du procès en première instance, bien qu’il ait alors exercé la diligence requise[1]. La Chambre d’appel rappelle également que ce n’est que dans des circonstances exceptionnelles, qu’elle ordonnera au Greffe de prendre en charge les frais afférents aux enquêtes lors de la procédure d’appel. De telles circonstances pourront être constatées, par exemple, si la partie requérante établit qu’elle est en possession d’une information spécifique, qui n’était pas disponible au moment du procès et n’aurait pu être découverte malgré l’exercice de la diligence requise, nécessitant une enquête plus approfondie afin d’éviter un déni de justice[2]. Or, en l’espèce la Chambre d’appel considère que l’Appelant n’a pas démontré qu’il existe de telles circonstances exceptionnelles justifiant l’autorisation de l’enquête sollicitée.

24. Premièrement, le critère de l’indisponibilité de la pièce lors du procès en première instance et de diligence requise en vue de se la procurer, implique nécessairement que la partie en question doit démontrer avoir cherché à utiliser à bon escient tous les mécanismes de protection et de contrainte prévus par le Statut et le Règlement afin de pouvoir présenter les moyens de preuve à la Chambre de première instance[3]. […] Dans ces conditions, quand bien même la Chambre d’appel considère que les démarches de l’Appelant en première instance manquaient de précision et de promptitude, elle est satisfaite que l’enregistrement en question était indisponible au procès en dépit de la diligence exercée à l’époque par l’Appelant.

25. Toutefois, la Chambre d'appel n'est pas convaincue que l'Appelant justifie de circonstances exceptionnelles permettant de faire droit à sa demande. En effet, l’Appelant ne fait état d’aucune démarche ultérieure auprès des autorités rwandaises en vue d’obtenir l’enregistrement litigieux et ce n’est que le 10 avril 2006, soit presque deux ans après le dépôt de son Acte d’appel, qu’il a introduit sa première demande, depuis le prononcé du Jugement, visant à ordonner aux autorités rwandaises de transmettre l’intégralité de l’enregistrement en question. […] L’Appelant, à qui il appartient de démontrer, dans le cadre de son appel au fond, que la Chambre de première instance aurait commis une erreur en admettant cette pièce au dossier et/ou en s’y appuyant dans le Jugement, se devait d’évaluer lors de la rédaction de son Acte d’appel et de son Mémoire d’appel l’intérêt de renouveler les démarches entreprises au procès en vue d’obtenir l’enregistrement litigieux. La Chambre d’appel réitère que la présente décision ne préjuge pas de son appréciation ultérieure au fond à ce sujet[4].

26. Par ailleurs, la Chambre d’appel ne voit pas en quoi les enquêtes nécessitent le déplacement au Rwanda du conseil principal, du co-conseil et d’un assistant pour obtenir une copie de l’enregistrement alors que l’Appelant se prévaut d’en connaître la source exacte et qu’il pourrait adresser sa demande aux détenteurs de celui-ci directement par voie écrite.

27. Au vu de ce qui précède, la Chambre d’appel est d’avis que l’Appelant n’a pas établi l’existence de circonstances exceptionnelles justifiant l’assistance du Greffe en vue d’entamer, plus de deux ans et demi après le prononcé du Jugement, une enquête complémentaire au stade de l’appel.

[1] Décision du 12 septembre 2006, par. 13; Decision on Appellant Hassan Ngeze’s Motions for Approval of Further Investigations on Specific Information Relating to the Additional Evidence of Potential Witnesses, 20 juin 2006, par. 4-5; [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 février 2006 («Décision Ngeze du 23 février 2006»), par. 5 et 9; Decision on Jean-Bosco Barayagwiza’s Extremely Urgent Motion for Leave to Appoint an Investigator, 4 octobre 2005, p. 4 ; Décision Ngeze du 3 mai 2005, p. 3 ; Decision on Appellant Ferdinand Nahimana’s Motion for Assistance from the Registrar in the Appeals Phase, 3 mai 2005 («Décision Nahimana du 3 mai 2005»), par. 2.

[2] Décision Nahimana du 3 mai 2005, par. 3 ; Décision Ngeze du 3 mai 2005, pp. 3-4. Voir Sylvestre Gacumbitsi v. The Prosecutor, Case No. ICTR-01-64-A, Decision on the Appellant’s Rule 115 Motion and Related Motion by the Prosecution, 21 octobre 2005, par. 13.

[3] Voir à ce sujet Le Procureur c/ Duško Tadić, affaire n° IT-94-1-A, Décision relative à la requête de l’Appelant aux fins de prorogation de délai et d’admission de moyens de preuve supplémentaires, 15 octobre 1998, par. 40, 44, 45 et 47 ; Le Procureur c/ Zoran Kupreškić et consorts, affaire n° IT-95-16-A, Arrêt, 23 octobre 2001, par. 50.

[4] Voir aussi Décision du 12 septembre 2006, par. 5.

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ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Consolidated Motion - 08.12.2006 RUTAGANDA George
(ICTR-96-03-R)

At para. 6, the Appeals Chamber confirmed that it has no power to reconsider final judgments.

See Prosecutor v. Zoran Žigić, Case No. IT-98-30/1-A, Decision on Zoran Žigić’s “Motion for Reconsideration of Appeals Chamber Judgement IT-98-30/1-A Delivered on 28 February 2005”, 26 June 2006; Prosecutor v. Eliézer Niyitegeka, Case No. ICTR-96-14-R, Decision on Request for Reconsideration of the Decision on Request for Review, 27 September 2006 (“Niyitegeka Reconsideration Decision”).

 

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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 Consolidated Motion - 08.12.2006 RUTAGANDA George
(ICTR-96-03-R)

41. The Appeals Chamber recalls that review is an exceptional remedy and that an applicant is only entitled to assigned counsel, at the Tribunal’s expense, if the Appeals Chamber authorizes the review.[1] Nonetheless, counsel may be assigned at the preliminary examination stage, normally for a very limited duration, if it is necessary to ensure the fairness of the proceedings.[2] Mr. Rutaganda has already made extensive and detailed submissions supported by a number of exhibits in his Request for Review. The Appeals Chamber is not satisfied that additional briefing would be of assistance in the present inquiry. In such circumstances, Mr. Rutaganda’s Request for Review does not warrant the assignment of counsel under the auspices of the Tribunal’s legal aid system.

42. Nonetheless, as a general matter, Mr. Rutaganda may be assisted by counsel in connection with a request for review at his own expense or on a pro bono basis provided the counsel files a power of attorney with the Registrar and satisfies the requirements to appear before the Tribunal. The Registry informed Mr. Rutaganda of this in its letter dated 21 October 2004, explaining that his former counsel could contact him.[3] Thereafter, Mr. Rutaganda filed a notice to the Deputy Registrar indicating that he had retained his former counsel to assist him.[4] Even putting aside that Rule 44(A) of the Rules refers to the counsel filing a power of attorney, Mr. Rutaganda has not pointed to any instance after that point where he was denied access to his counsel.[5] The Appeals Chamber further observes that, in his request, he refers to the pro bono assistance which he received from his former counsel during this period.[6] Accordingly, the Appeals Chamber declines to consider further Mr. Rutaganda’s alleged violations of his right to communicate with counsel. In any event, as a general rule, such matters should first and foremost be addressed by the Registrar.[7]

[1] Eliézer Niyitegeka v. The Prosecutor, Case No. 96-14-R, Decision on Niyitegeka’s Urgent Request for Legal Assistance, 20 June 2005 (“Niyitegeka Counsel Decision”).

[2] Niyitegeka Counsel Decision.

[3] The Registry informed Mr. Rutaganda of as much in its letter to him dated 21 October 2004, explaining that his former counsel could contact him. See Consolidated Request, Annex XVI (Letter from Aminatta N’gum, Acting Chief of the Tribunal’s Defence Counsel and Detention Management Section, to Mr. Rutaganda, dated 21 October 2004).

[4] Consolidated Request, para. 261, Exhibit XVIII.

[5] Mr. Rutaganda refers to an incident in March 2005. However, his correspondence refers to a communication with his sister. See Consolidated Request, para. 262, Exhibit XIX.

[6] See Consolidated Request, para. 114 (noting that the Démé and Yaache Affidavits were obtained as a result of the “persistent and voluntary research carried out by his former Defence team.”).

[7] Cf. The Prosecutor v. Zeljko Mejakić et al., Case No. IT-02-65-AR73.1, Decision on Appeal by the Prosecution to Resolve Conflict of Interest Regarding Attorney Jovan Simić, 6 October 2004, para. 7 (“The Registrar has the primary responsibility of determining matters relating to the assignment of counsel under the legal aid system.”).

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

10. [T]he Appeals Chamber recalls that a request for reconsideration of a decision in one case filed by an appellant who is not party to that case must fail for lack of standing to seek such reconsideration.[1][…]

[1] Aloys Ntabakuze v. The Prosecutor, Case No. ICTR-98-41-AR73, Decision on Motion for Reconsideration, 4 October 2006, paras 14-15. 

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

13. Turning to the Appellant’s request for variance of the Notice of Appeal and Appeal Brief, the Appeals Chamber considers that the Appellant, through his present Motion, in fact seeks to introduce a wholly new ground of appeal. Pursuant to Rule 108 of the Rules, the Appeals Chamber “may, on good cause being shown by motion, authorise a variation of the grounds of appeal” contained in the Notice of Appeal. The Appeals Chamber recalls its Decision of 17 August 2006, in which it outlined its jurisprudence concerning variation of grounds of appeal under Rule 108 of the Rules.[1] In particular, the Appeals Chamber recalls that the concept of “good cause” under this provision encompasses both good reason for including the new or amended grounds of appeal and good reason showing why these grounds were not included (or were not correctly phrased) in the original notice of appeal. The Appeals Chamber held specifically that the “good cause requirement” must be interpreted restrictively at late stages of appeal proceedings when amendments would necessitate a substantial slowdown in the progress of the appeal.[3] To hold otherwise, would leave appellants free to change their appeal strategy and essentially restart the appeal process at will, interfering with the expeditious administration of justice and prejudicing the other parties to the case.

14. […] The Appellant has not demonstrated any justification for failing to challenge the Trial Chamber’s findings on the existence of genocide in Rwanda in his Notice of Appeal. Moreover, the Appeals Chamber finds that the Appellant has not formulated any specific wording for the grounds he wishes to add in his Notice of Appeal,[5] but merely seeks to amend his Appeal Brief “by the addition of further grounds of appeal dealing specifically with the issues raised by the Karemera Decision”.[6] Pursuant to Rule 108 of the Rules, read in conjunction with paragraphs 2 and 3 of the Practice Direction on Formal Requirements for Appeals from Judgement,[7] a request to amend a notice of appeal must, at least, explain precisely what amendments are sought and why, with respect to each such amendment, the “good cause” requirement of Rule 108 of the Rules is satisfied.[8] The generic submissions of the Appellant fall well short of satisfying this requirement. Therefore, the request for leave to vary the Notice of Appeal and to amend the Appeal Brief is denied as unfounded.

[1] 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 (“Decision of 17 August 2006”), paras 9-14, referring, in particular, to 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 Decision of 26 June 2006”), para. 7; See also, e.g., Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Decision on Motions Related to the Pleadings in Dragan Jokić’s Appeal, 24 November 2005 (“Blagojević Decision of 24 November 2005”), para. 10; Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Decision on Defence Motion for Extension of Time in Which to File the Defence Notice of Appeal, 15 February 2005 (“Blagojević Decision on Defence Motion for Extension of Time”), pp. 2-3.

[2] Decision of 17 August 2006, para. 10; See also, e.g., Blagojević Decision of 26 June 2006, para. 7; Blagojević Decision of 24 November 2005, paras 7-8; Blagojević Decision on Defence Motion for Extension of Time, pp. 2-3.

[3] Decision of 17 August 2006, para. 11, referring to Blagojević Decision of 26 June 2006, para. 8.

[4] Id.

[5] Momir Nikolić v. The Prosecutor, Case No. IT-02-60/1-A, Decision on Motion for Leave to Vary Notice of Appeal, 30 September 2004, p. 4.

[6] Motion, para. 24.

[7] Practice Direction on Formal Requirements for Appeals from Judgement, 4 July 2005.

[8] The Prosecutor v. Vidoje Blagojević & Dragan Jokić, Case No. IT-02-60-A, Decision on Dragan Jokić’s Request to Amend Notice of Appeal, 14 October 2005, pp 3-4.

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ICTR Rule Rule 108 ICTY Rule Rule 108 Other instruments Practice Direction on Formal Requirements for Appeals from Judgement (ICTR): Paras 2-3
Notion(s) Filing Case
Decision on Clarification - 08.12.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

11. […] The Appeals Chamber […] stresses the need for a clear distinction between the issue of the existence of genocide in Rwanda in 1994, a fact judicially noticed by the Appeals Chamber in the Karemera Decision,[1] from the separate questions regarding the existence of a conspiracy to commit genocide between the three co-appellants in the present case, and the Appellant’s participation in such a conspiracy. The Appeals Chamber finds that there is nothing in the Appellant’s arguments to suggest that the judicially noticed facts in the Karemera Decision would prevent him either from challenging the existence of a conspiracy to commit genocide or from disputing his participation therein. The Karemera Decision is clear in that its direction to the Trial Chamber to take judicial notice of facts of common knowledge does not shift the ultimate burden of persuasion, which remains on the Prosecution,[2] with respect to the personal responsibility of each accused. It has been subsequently specified by the Appeals Chamber that with regard to the Karemera Decision, “taking of judicial notice of this fact does not imply the existence of a plan to commit genocide”.[3] Therefore, the Appeals Chamber, noting that the Appellant indeed challenges the Trial Chamber’s findings of conspiracy, both in his Notice of Appeal and in his Appeal Brief,[4] considers that he has failed to demonstrate how the Karemera Decision, if applicable to his case, could impact on his ability to dispute that “he was party to a plan to commit genocide”.

12. […] The Appeals Chamber, finding that the Appellant has failed to raise on appeal any argument challenging the occurrence of genocide, considers therefore that he has not shown how the judicially noticed facts in the Karemera Decision, if applicable to his case, could adversely affect his appeal. His request for clarification in this regard is therefore denied as unfounded.

[1] [The Prosecutor v. Edouard 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. 35.

[2] [The Prosecutor v. Edouard 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 30 and 42; see also Prosecutor v. Semanza, Case No. ICTR-97-20-A, Judgement, 20 May 2005, para. 192.

[3] [Edouard Karemera et al. v. The Prosecutor, Case No. ICTR-98-44-AR73(C), Decision on Motions for Reconsideration, 1 December 2006], para. 21.

[4] Notice of Appeal, Ground 30 and Appeal Brief paras 243-249.

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ICTR Rule Rule 94 ICTY Rule Rule 94
Notion(s) Filing Case
Decision on Additional Evidence - 08.12.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

9. As recalled above, the time-limit for the filing of a motion to admit additional evidence is thirty days from the date for filing of the brief in reply, unless good cause is shown for delay.[1] The Appeals Chamber understands that through the Motion Giving Notice of Delay, the Appellant seeks to show good cause for the delayed filing of his First Rule 115 Motion. The Appeals Chamber notes that where arguments are made demonstrating good cause for a late filing after the filing deadline has passed, as a matter of practice, that showing is normally made as part of the Rule 115 motion itself with a request that the motion be recognized as validly filed. Thus, the Appeals Chamber will consider the arguments contained in the Motion Giving Notice of Delay when disposing of the Appellant’s submissions concerning good cause for the late filing of his First Rule 115 Motion as follows.

16. […] The Appeals Chamber recalls that “the good cause requirement obliges the moving party to demonstrate that it was not able to comply with the time limit set out in the Rule, and that it submitted the motion in question as soon as possible after it became aware of the existence of the evidence sought to be admitted”.[2]

20. In light of the above, the Appeals Chamber concludes that the Appellant has not shown good cause for the late filing of any of the documents proffered as additional evidence. The Appeals Chamber thus finds no need to consider the merits of the First Rule 115 Motion[3] and dismisses it in its entirety.

24. As with the First Rule 115 Motion, the Second Rule 115 Motion was filed eight months after the expiry of the time period stipulated under Rule 115(A) of the Rules. The Appellant submits that the documents proffered as additional evidence were obtained by him during the month of July 2006, when he received an electronic file called [REDACTED], a non-governmental research institute based in the United States which “collects and publishes declassified documents obtained through the Freedom of Information Act”.[4] The Appeals Chamber is therefore satisfied that there is good cause justifying the late filing of the Second Rule 115 Motion.

38. As a preliminary matter, the Appeals Chamber observes that the Reply to the Third Rule 115 Motion was filed after the time-limit for its filing had expired. The Appeals Chamber notes the Appellant’s explanation that he received the Prosecution’s Response to the Third Rule 115 Motion only on 27 November 2006, and thus accepts it as validly filed.

39. […] Considering that the Appellant received the material in August 2006 only, the Appeals Chamber is satisfied that the Appellant has shown good cause for the late filing of the Third Rule 115 Motion.

[1] The Appeals Chamber notes that, under the provision applicable at the time of the filing of the Motion Giving Notice of Delay, the deadline was set to seventy-five days after the trial judgement.

[2] Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Decision on Prosecution’s Motion to Admit Additional Evidence in Relation to Dario Kordić and Mario Čerkez, 17 December 2004, p. 2; Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-A, Decision on Naletilić’s Motion for Leave to File His Second Rule 115 Motion to Present Additional Evidence Pursuant to Rule 115, 27 January 2005, p. 3.

[3] Cf. [Decision on Appellant Jean-Bosco Barayagwiza’s Motion for Leave to Present Additional Evidence Pursuant to Rule 115, 5 May 2006], para. 27.

[4] Second Rule 115 Motion, para. 8.

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ICTR Rule Rule 115 ICTY Rule Rule 115
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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31. […] While it is true that, where the failure resulted solely from counsel negligence or inadvertence, the Appeals Chamber can permit admission of additional evidence to remedy for such negligence or inadvertence, this would only be allowed if the proffered evidence is of such substantial importance to the success of the appeal such as its exclusion would lead to a miscarriage of justice.[1] In these exceptional cases, the Appeals Chamber has reasoned, the interests of justice require that an appellant not be held responsible for the failures of counsel.[2] However, in light of the findings above, the Appeals Chamber is not satisfied that non-admission of the proffered evidence would amount to a miscarriage of justice.

[1] See, by analogy, 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, para. 12; 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, para. 9; Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Decision on Motions Related to the Pleadings in Dragan Jokić’s Appeal, 24 November 2005, para. 8; Blagojević Decision of 14 October 2005, para. 8; Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Decision Granting Leave to Dario Kordić to Amend His Grounds of Appeal, 9 May 2002, para. 5.

[2] 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, para. 12.

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25. With respect to availability of the proffered evidence at trial, the Appeals Chamber is not satisfied that the Appellant was unable to obtain it in spite of the exercise of due diligence. As, the Prosecution points out, the declassifying process of U.S. documents started in 1998 and many unclassified documents were accessible on the National Security Archive webpage in 2001.[1] The Appeals Chamber finds that the Appellant’s reply to this argument, that the Prosecution failed to prove that the documents were declassified before his trial,[2] is misguided; it is for the Appellant to show that the documents were available to him only recently. On the contrary, the Appellant’s own arguments seem to suggest that the documents were accessible earlier than 2003: the compilation of documents which the Appellant received is the result of research carried out between 1994 and 2003.[3]

26. In addition, the Appeals Chamber notes that both messages in their relevant parts refer to conversations between the Appellant and Ambassador Rawson.[4] […] Given the Appellant’s contacts with Ambassador Rawson, the Appellant could have attempted to contact Ambassador Rawson, either to learn about his reports to the U.S. government in 1994 as a reliable and independent source of political information on Rwanda, or with the objective to adduce his live testimony about the Appellant’s role in the CDR at trial.

27. Regarding the letter signed by Théoneste Nahimana, the Appellant’s submissions show that he was aware of the existence of this letter at trial. The Appeals Chamber also notes that the report by Ambassador Rawson dated 28 March 1994 suggests that the Appellant was at least involved in the drafting of the letter signed by Théoneste Nahimana, as he was informed about his content before it was signed and took suggestions from Ambassador Rawson as to its content.[5] Furthermore, it was the Appellant himself who gave a copy of this letter to Ambassador Rawson in 1994.[6] The Appeals Chamber notes that a number of CDR documents were adduced at trial on behalf of the Appellant.[7] The Appellant has thus not shown that the letter was unavailable to him at trial or that he had made efforts to obtain a copy thereof in the exercise of due diligence.

28. In light of the above, while the Appeals Chamber finds that the proffered evidence is prima facie relevant and credible, it will admit it as additional evidence on appeal only if it concludes that its exclusion would result in a miscarriage of justice, i.e. it would have had an impact on the verdict if it had been adduced at trial. The Appeals Chamber notes that the Appellant only suggests the proffered evidence could have been a decisive factor for the Trial Chamber’s finding with respect to the Appellant’s position in the CDR.[8]

40. […] The Appeals Chamber recalls that the party adducing additional evidence must establish that the said evidence was not available at trial in any form whatsoever.[9] As in the Second Rule 115 Motion, the Appellant again merely asserts that the documents “have been declassified only recently” without giving any further details about the declassification process or any earlier attempts to access the material.[10] As the Prosecution points out, unclassified U.S. documents were available during the Appellant’s trial, and the possibility to access classified documents through a Freedom of Information Act application also existed.[11] Further, the Appellant has not shown that he tried to contact Ambassador Rawson to adduce his live testimony at trial. Finally, the Appeals Chamber notes that the Appellant acknowledges that other evidence concerning the date of the demonstration, the most important point of the documents proffered as additional evidence, was available to him.[12]

[1] Response to the Second Rule 115 Motion, para. 10.

[2] Reply to the Second Rule 115 Motion, para. 6.

[3] Second Rule 115 Motion, para. 8, fn. 7, referring to a statement by the “National Archive”.

[4] Ibid., Annex 1: [REDACTED]

[5] Second Rule 115 Motion, Annex 3: [REDACTED].

[6] Ibid., para. 15.

[7] Response to the Second Rule 115 Motion, para. 16, referring to Exhibits 2D12 to 2D34.

[8] Second Rule 115 Motion, paras 19, 23; see also para. 25: “The newly discovered evidence enhances the exculpatory value of the existing material and renders all the more obvious that the finding and the conviction against the Appellant, based on the fact that he succeeded Bucyana as the National President of CDR, are baseless and should be quashed.”

[9] Prosecutor v. Sylvestre Gacumbitsi, Case No. ICTR-2001-64-A, Decision on “Requête en extrême urgence aux fins d’admission de moyen de preuve supplémentaire en appel”, 9 February 2006, para. 6.

[10] Third Rule 115 Motion, para. 17. See supra, para 25.

[11] Response to the Third Rule 115 Motion, para. 10, referring to T. 8 July 2002, p. 42 and T. 9 July 2002, pp. 42-44, 69, 75.

[12] Reply to the Third Rule 115 Motion, para. 18, referring to Response to the Third Rule 115 Motion, para. 12. The evidence in question includes transcripts from Radio Rwanda broadcasts of 21 February 1994.

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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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14. [T]he Appeals Chamber notes that the Appellant filed the separate Corrigendum Motion to correct a clerical error in his Reply to the First Rule 115 Motion.[1] The Appeals Chamber recalls that “a party may, without requesting leave from the Appeals Chamber, file a corrigendum to their previously filed brief or motion whenever a minor or clerical error in said brief or motion is subsequently discovered and where correction of the error is necessary in order to provide clarification”.[2] Although it was unnecessary for the Appellant to file a motion to this extent, the Appeals Chamber finds that the submitted amendment indeed corrects an obvious clerical error and does not amount to any substantial change of the Appellant’s Reply to the First Rule 115 Motion. Therefore, the Appeals Chamber finds that the Appellant’s Reply to the First Rule 115 Motion should be read in accordance with the amendments proposed by the Corrigendum Motion and allowed by the present decision.

[1] Corrigendum Motion, para. 1.

[2] Decision on the Appellant Jean-Bosco Barayagwiza’s Corrigendum Motions of 5 July 2006, 30 October 2006, p. 2, quoting Prosecutor v. Željko Mejakić et al., Case No. IT-02-65-AR11bis.1, Decision on Joint Defense Motion for Enlargement of Time to File Appellants’ Brief, 30 August 2005, p. 3.

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33. […] The Appeals Chamber […] observes “that the Prosecution may be relieved of its Rule 68 obligation if the existence of the relevant exculpatory material is known to the Defence and if it is reasonably accessible through the exercise of due diligence”.[1] As noted above, the document was known to the Appellant, and he has not demonstrated that the document was not reasonably accessible to him.

[1] Prosecutor v. Edouard Karemera et al., Case No. ICTR-98-44-AR73.7, Decision on Interlocutory Appeal Regarding the Role of the Prosecutor’s Electronic Disclosure Suite in Discharging Disclosure Obligations, 30 June 2006, para. 15; Prosecutor v. Tihomir Blaškic, Case No. IT-95-14-A, Appeal Judgement, 29 July 2004 (“Blaškić Appeals Judgement”), para. 296.

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34. [T]he Appeals Chamber recalls that “material will fall within the ambit of Rule 68 if it tends to suggest the innocence or mitigate the guilt of the accused, or affects the credibility of Prosecution evidence”.[1] The determination of what material meets Rule 68 disclosure requirements is primarily a fact-based judgement made by and under the responsibility of the Prosecution.[2] Therefore, as noted previously, the Appeals Chamber will not intervene in the exercise of the Prosecution’s discretion, unless it is shown that the Prosecution abused it and, where there is no evidence to the contrary, will assume that the Prosecution is acting in good faith.[3] […]

[1] Prosecutor v. Krstić, Case No. IT-98-33-A, Appeal Judgement, 19 April 2004, para. 178.

[2] Decision on Appellant Jean-Bosco Barayagwiza’s Motion Requesting that the Prosecution Disclosure of the Interview of Michel Bagaragaza Be Expunged from the Record, 30 October 2006, (“Barayagwiza Decision on Disclosure”) para. 6; Prosecutor v. Edouard Karemera et al., Case No. ICTR-98-44-AR73.6, Decision on Joseph Nzirorera’s Interlocutory Appeal, 28 April 2006, para. 16; Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Decision on Appellant’s Motion for Disclosure Pursuant to Rule 68 and Motion for an Order to the Registrar to Disclose Certain Materials, 7 December 2004 (“Brđanin 7 December 2004 Decision”), p. 3; Blaškić Appeals Judgement, para. 264; Prosecutor v. Tihomir Blaškić, Case No IT-95-14-A, Decision on Prosecution’s Application to Seek Guidance from the Appeals Chamber regarding Redaction of the Statement of “Witness Two” for the purposes of Disclosure to Dario Kordić under Rule 68, 4 March 2004, (“Blaškić 4 March 2004 Decision”), para. 44; Prosecutor v. Tihomir Blaškić, Case No IT-95-14-A, [confidential] Decision on Prosecution’s Application to Seek Guidance from the Appeals Chamber regarding Redaction of the Statement of “Witness Two” for the purposes of Disclosure to Paško Ljubičić under Rule 68, 30 March 2004 (“Blaškić 30 March 2004 Decision”), paras 31-32; Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Decision on the Appellant’s Motions for the Production of Material, Suspension or Extension of the Briefing Schedule, and Additional Filings, 26 September 2000 (“Blaškić 26 September 2000 Decision”), paras 38, 45.

[3] Barayagwiza Decision on Disclosure, para. 6; Prosecutor v. Miroslav Bralo, Case No. IT-95-17-A, Decision on Motions for Access to Ex Parte Portions of the Record on Appeal and for Disclosure of Mitigating Material, 30 August 2006 (“Bralo Decision”), para. 31; Brđanin 7 December 2004 Decision, p. 3; Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-A, Decision, 22 March 2004, p. 3; Georges Rutaganda v. Prosecutor, Case No. ICTR-96-3-A, Decision on Urgent Defence Motion for Disclosure and Admission of Additional Evidence and Scheduling Order, 12 December 2002, pp 4-5; Alfred Musema v. Prosecutor, Case No. ICTR-96-13-A, Decision on the Appellant’s Motions for the Production of Material, Suspension of Extension of the Briefing Schedule, and Additional Filings, 18 May 2001, p. 4; Blaškić 26 September 2000 Decision, para. 39.

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34. […] In this respect, the Appeals Chamber notes that, if an appellant wishes to show that the Prosecution is in breach of these obligations, he/she must identify specifically the materials sought, present a prima facie showing of its probable exculpatory nature, and prove the Prosecutor's custody or control of the materials requested.[1] Finally, even when the Defence satisfies the Chamber that the Prosecution has failed to comply with its Rule 68 obligations, the Chamber will still examine whether the Defence has actually been prejudiced by such failure before considering whether a remedy is appropriate.[2] The Appeals Chamber is neither satisfied that the document is of prima facie exculpatory nature, nor that the alleged Prosecution’s failure to communicate it to the Appellant would have caused him any prejudice.[3]

[1] Bralo Decision, para. 31; Kajelijeli Appeal Judgement, para. 262; Brđanin7 December 2004 Decision, p. 3.

[2] Bralo Decision, para. 31; Kajelijeli Appeal Judgement, para. 262; Krstić Appeal Judgement, para. 153.

[3] See also supra at para. 29.

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P. 3: NOTING that in the Motion, the Appellant provides reasons in support of his argument that the Appeals Hearing should be scheduled for a later date than provided in the Scheduling Order including, inter alia, his intention to file a new motion under Rule 115 of the Tribunal’s Rules of Procedure and Evidence (“Rules”) as well to invite the Bar Counsel of England and Wales Human Rights Committee to attend and observe the Appeals Hearing;[1]

CONSIDERING that under Rule 115(A) of the Rules, the parties may file motions for admission of additional evidence on appeal after the appeal hearing, provided that cogent reasons are shown for such a delay;

CONSIDERING that a party’s intention to invite a third-party observer to the appeals hearing and the availability of that third-party on certain dates are not factors that the Appeals Chamber is required to take into consideration when setting the date for an appeals hearing;

CONSIDERING that since the Appeals Chamber’s Decision of 23 November 2006[2] upheld the President’s decision to refuse the withdrawal of the Appellant’s Co-Counsel, the arguments in the Motion in relation to the absence of the Co-Counsel[3] are moot;

CONSIDERING that in light of the amendments to the Rules, which entered into force on 10 November 2006, the Appellant’s arguments with respect to logistical problems in relation to the preparation of the Appeal Books on or before 18 December 2006[4] are moot, since the Rules no longer place such an obligation on the parties;[5]

FINDING therefore that the Appellant has failed to establish good cause for the Appeals Chamber delaying the Appeals Hearing as set in the Scheduling Order […]

[1] Motion, paras 2 and 3.

[2] Decision on Appellant Jean-Bosco Barayagwiza’s Motion Contesting the Decision of the President Refusing to Review and Reverse the Decision of the Registrar Relating to the Withdrawal of Co-Counsel, 23 November 2006.

[3] Motion, paras 4-7.

[4] Motion, para. 7.

[5] Cf. Decision on the Prosecutor’s Motion to Be Relieved from Filing the Appeal Book and Book of Authorities, 27 November 2006, p. 2. 

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P. 5: CONSIDERING that no statutory or regulatory provision of the Tribunal allows for the “right” of an appellant who is represented by counsel to personally address the Appeals Chamber[1] but […] the Appeals Chamber has, in practice, allowed for such an option as a matter of courtesy to appellants;

FINDING that the Appellant has failed to demonstrate in the Motion that it is in the interests of justice to allow the Appellant to surpass the time allocated to him by the Scheduling Order for the personal address; […]

[1] See Scheduling Order, p. 3; Decision on Hassan Ngeze’s Motions Concerning Restrictive Measures of Detention, 20 September 2006, p. 7. 

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P. 4: RECALLING that the parties are to focus their oral arguments on the grounds of appeal raised in their briefs[1] and that the appeals hearing is not the occasion for presenting new arguments on the merits of the case;

RECALLING further that, during the hearing of an appeal, the parties are expected “to prepare themselves in such a way as not simply to recount what has been set out in their written submission, but to confine their oral arguments to elaborating on points relevant to this appeal that they wish to bring to the Appeals Chamber’s attention”;[2]

[1] Cf. the Appellant’s arguments in paras 12, 18 and 19 of the Motion.

[2] Prosecutor v. Blagoje Simić, Case No. IT-95-9-A, Order Re-Scheduling Appeal Hearing, 5 May 2006, p. 6.

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