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Decision on Interlocutory Appeal on EDS - 30.06.2006 KAREMERA et al.
(ICTR-98-44-AR73.7)

In the present case, the Prosecution argued that it could discharge its Rule 68 disclosure obligations through the EDS. The Appeals Chamber dismissed the Prosecution’s appeal, holding that the EDS does not discharge the Prosecution of its positive obligation to disclose exculpatory material in its possession. The full reasoning is provided below (paras 8-16):

 

8. The Prosecution argues that the Trial Chamber erred as a matter of law in finding that it cannot discharge its disclosure obligations under Rule 68 by making the Prosecution evidence collection and other relevant materials accessible to the Defence through the EDS.[1] In identifying the Trial Chamber’s alleged legal error, the Prosecution contends that the Trial Chamber failed to appreciate the searchable format of the EDS.[2] However, in the very same passage upon which the Prosecution relies in support of this proposition, the Trial Chamber clearly expressed that the EDS, “allows the Defence to do its searches for exculpatory material.”[3] Consequently, the Appeals Chamber cannot agree that the Trial Chamber failed to appreciate this aspect of the EDS. Rather, in the view of the Appeals Chamber, the Prosecution appears to take issue with the Trial Chamber’s finding that the Prosecution has a “positive obligation” to disclose Rule 68 material “in its possession” to individual accused.[4] The Appeals Chamber, however, can identify no legal error on the part of the Trial Chamber in holding that the Prosecution has a positive obligation to disclose exculpatory material in its possession.

9. The Prosecution’s obligation to disclose exculpatory material is essential to a fair trial.[5] The Appeals Chamber has always interpreted this obligation broadly.[6] The positive nature of this obligation and its significance stem from the Prosecution’s duty to investigate, which the Appeals Chamber has explained runs conterminously with its duty to prosecute.[7] In particular, the Appeals Chamber recalls that one of the purposes of the Prosecution’s investigative function is “to assist the Tribunal to arrive at the truth and to do justice for the international community, victims, and the accused.”[8] The responsibility for disclosing exculpatory material rests on the Prosecution alone, and the determination of what material meets Rule 68 disclosure requirements is primarily a fact-based judgement, falling within the Prosecution’s responsibility.[9] In other words, the Prosecution has a distinct obligation to participate in the process of administering justice by disclosing to the Defence, as required by Rule 68(A), material which it actually knows “may suggest the innocence or mitigate the guilt of the accused or affect the credibility of the Prosecution evidence”. This responsibility is crucial to the analysis.

10. Bearing these principles in mind, the Prosecution must actively review the material in its possession for exculpatory material[10] and, at the very least, inform the accused of its existence.[11] In the view of the Appeals Chamber, the Prosecution’s Rule 68 obligation to disclose extends beyond simply making available its entire evidence collection in a searchable format. A search engine cannot serve as a surrogate for the Prosecution’s individualized consideration of the material in its possession. As such, the Appeals Chamber can identify no legal error on the part of the Trial Chamber in finding that the EDS, as described by the Prosecution, fails to fulfill these important and expansive obligations.

11. The Prosecution’s reasoning includes the following two steps. First, it argues that paragraphs (A) and (B) of Rule 68 establish two distinct disclosure obligations covering different categories of materials: paragraph (A) applies to materials that the Prosecution actually knows may be exculpatory, while paragraph (B) applies more broadly to all “collections of relevant material”, whether or not the Prosecution knows that they may be exculpatory. Second, it argues that when the Prosecution provides the defence with an electronic collection of relevant materials in satisfaction of its obligation under paragraph (B), that also satisfies its obligations under paragraph (A) with respect to any materials governed by paragraph (A) that may be found somewhere within the collection. The Appeals Chamber notes that while the first step of the Prosecution’s argument appears to embrace a rather broad interpretation of the Prosecution’s disclosure obligations, the second step would have the effect of curtailing them by making it unnecessary for the Prosecution to draw the attention of the Defence to the particular material that it actually knows may be exculpatory.

12. The Appeals Chamber observes several flaws in the Prosecution’s reasoning. The Prosecution’s obligation to disclose to the defence material that may suggest the innocence or mitigate the guilt of the accused or affect the credibility of Prosecution evidence is set forth in Rule 68(A).[12] It is only Rule 68(A) that articulates which material is subject to disclosure under this rule and which obliges the Prosecution to disclose it. Rule 68(B) does not establish a distinct disclosure obligation.[13] Rather, it simply provides for a possible modality of conveying exculpatory material to the defence, in an electronic format, after the Prosecution identifies it as “relevant material” which is subject to disclosure under Rule 68. This is supported by the plain language of sub-paragraph B of Rule 68 and by its drafting history, which focused on the technical feasibility of providing to the defence electronic versions of documents subject to Rule 68 disclosure.[14]

13. Thus, disclosure under Rule 68(B) is merely the digital equivalent of disclosure under Rule 68(A), consisting of the same material in searchable electronic form. For these reasons, for the Prosecution to seek to satisfy its Rule 68 obligations merely by granting the Defence access to an electronic database containing tens of thousands of documents, only a few of which it knows to be potentially exculpatory, is the equivalent of the Prosecution seeking to satisfy those obligations by giving the Defence a key to a storage closet containing the same tens of thousands of documents in paper form. In both cases, the Prosecution has for all intents and purposes buried the exculpatory materials, at least unless it notifies the Defence of the existence of such materials and provides a means by which the Defence can be reasonably expected to find them. Rule 68(B) was not intended to facilitate this kind of evasion of the Prosecution’s disclosure obligations. Indeed, its text makes clear that it is in no way intended to dilute or circumvent Rule 68(A)’s requirements: it states that it is “without prejudice to paragraph (A)”.[15]

14. The Prosecution’s second principal argument on appeal is that, by creating the EDS and by making it searchable, its collection is now “reasonably accessible” to the defence, which is a recognized exception to its obligation to disclose.[16] By way of illustration, the Prosecution refers to Appeals Chamber jurisprudence indicating that transcripts of open session testimony are not subject to disclosure as they are “reasonably accessible”.[17] Mr. Nzirorera disputes this claim, emphasizing the difficulty of identifying exculpatory material given the redacted nature of the documents on the EDS.[18] The Prosecution counters that Mr. Nzirorera’s complaints are belied by his possession of material, which it surmises came from the EDS, thereby demonstrating its proper functioning.[19] The Appeals Chamber observes that it is not clear from the record how Mr. Nzirorera obtained the material he used to demonstrate that the Prosecution was in breach of its disclosure obligations.

15. The Appeals Chamber agrees 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.[20] On the basis of the record before it, however, the Appeals Chamber cannot find that the EDS makes documents reasonably accessible as a general matter, nor that the Defence can be assumed to know about all materials included in it. The determination whether given exculpatory information is reasonably accessible, and whether its existence is known to the Defence requires a careful examination of the relevant circumstances.[21] This is true for material on the EDS – especially given that, as Mr. Nzirorera notes, it may be difficult to recognize material as exculpatory if it is only available in redacted form – just as it is true for material not found on this system. The Appeals Chamber has not been asked to decide here whether the Prosecution satisfied its disclosure obligation with respect to any particular piece of information. The Appeals Chamber cautions the Prosecution, however, that just because it has placed a particular piece of material on the EDS, it has not necessarily made that piece of material “reasonably accessible” to any given accused. It might be helpful if the Prosecution either separates a special file for Rule 68 material or draws the attention of the Defence to such material in writing and permanently updates the special file or the written notice.

 

[1] Prosecution Appeal, paras. 2, 16, 18.

[2] Prosecution Appeal, para. 25.

[3] Impugned Decision, p. 5; Prosecution Appeal, para. 25.

[4] Prosecution Appeal, para. 34 (“The Trial Chamber incorrectly formulated the Prosecutor’s obligation, stating that the Prosecution has a ‘positive obligation to disclose all Rule 68 material in the possession of the Prosecution’”) (emphasis in original); Prosecution Reply and Response, para. 7 (“The objectionable language used by the Trial Chamber in the impugned Decision was that the EDS ‘does not relieve the Prosecution from its positive obligation to disclose all Rule 68 material in the possession of the Prosecution’”) (emphasis in original).

[5] Nzirorera Appeal Decision, para. 7 [The Prosecutor v. Édouard Karemera et al., Case No. 98-44-AR73.6, Decision on Joseph Nzirorera’s Interlocutory Appeal, 28 April 2006). See also The Prosecutor v. Théoneste Bagosora et al., Case Nos. ICTR-98-41-AR73, ICTR-98-41-AR73(B), Decision on Interlocutory Appeals on Witness Protection Orders, 6 October 2005, para. 44 (“Bagosora Appeal Decision”); The Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Appeal Judgement, 17 December 2004, paras. 183, 242 (“Kordić and Čerkez Appeal Judgement”); The Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Judgement, 20 July 2004, para. 264 (“Blaškić Appeal Judgement”); The Prosecutor v. Radislav Krstić, Case No. IT-98-33-A, Judgement, 19 April 2004, para. 180 (“Krstić Appeal Judgement”); The 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, p. 3 (“Brđanin Appeal Decision”).

[6] Blaškić Appeal Judgement, paras. 265, 266; Krstić Appeal Judgement, para. 180.

[7] Bagosora Appeal Decision, para. 44. See also Brđanin Appeal Decision, p. 3; Kordić and Čerkez Appeal Judgement, para. 183; Blaškić Appeal Judgement, para. 264.

[8] Prosecution Regulation No. 2, para. 2(h). As a result, the Appeals Chamber finds disconcerting the Prosecution’s suggestion before the Trial Chamber that it is somehow not obliged to search for material impacting on the credibility of its own witnesses. See T. 13 February 2006 p. 11 (“we cannot exhaustively search the entire OTP database simply to prosecute witnesses that we’re bringing to this Court as part of our Prosecution case … our job here is to prosecute the three men … sitting on the other side of the courtroom. We do not prosecute our other witnesses. When we find material that is relevant to this case and relevant to – and within the parameters of Rule 68, we disclose it, but we can only do the best that we can do, and that’s what we’ve done.”).

[9] Nzirorera Appeal Decision, paras. 16, 22; Bagosora Appeal Decision, para. 43 (“… the [disclosure] obligations rest on the Prosecutor alone …”). See also Kordić and Čerkez Appeal Judgement, para. 183; Brđanin Appeal Decision, p. 3.

[10] See, e.g., Blaškić Appeal Judgement, para. 302; The Prosecutor v. Juvénal Kajelijeli, Case No. ICTR-98-44A-A, Judgement, 23 May 2005, para. 262. The Appeals Chamber has recognized that the voluminous nature of materials “in the possession” of Prosecutor may give rise to delays in disclosure. It does not however excuse the Prosecution from reviewing it and assessing it in light of Rule 68. See, e.g., Blaskić Appeal Judgement, para. 300 (“… the voluminous nature of the materials in the possession of the Prosecution may result in delayed disclosure, since the material in question may be identified only after the trial proceedings have concluded.”); Krstić Appeal Judgement, para. 197 (“The Appeals Chamber is sympathetic to the argument of the Prosecution that in most instances material requires processing, translation, analysis and identification as exculpatory material. The Prosecution cannot be expected to disclose material which – despite its best efforts - it has not been able to review and assess. Nevertheless, the Prosecution did take an inordinate amount of time before disclosing material in this case, and has failed to provide a satisfactory explanation for the delay.”) (internal citation omitted). Moreover, the Appeals Chamber has explained the unity of the Office of the Prosecutor in discharging disclosure. See Bagosora Appeal Decision, paras. 42-46.

[11] See Krstić Appeal Judgement paras. 190, 195.

[12] Rule 68 (A) provides: “The Prosecutor shall, as soon as practicable, disclose to the Defence any material, which in the actual knowledge of the Prosecutor may suggest the innocence or mitigate the guilt of the accused or affect the credibility of Prosecution evidence.”

[13] Rule 68 (B) provides: “Where possible, and with the agreement of the Defence, and without prejudice to Paragraph (A), the Prosecutor shall make available to the Defence, in electronic form, collections of relevant material held by the Prosecutor, together with appropriate computer software with which the Defence can search such collections electronically.”

[14] Minutes of the Fourteenth Plenary Session (confidential), paras. 87-100.

[15] Indeed, this proviso makes it clear that even if the Prosecution were correct that Rule 68(B) refers to a different category of materials than does Rule 68(A), it would not follow that granting access to the EDS satisfies all of its disclosure obligations.  Instead, it would simply mean that the Prosecution could use electronic disclosure to satisfy its obligation under Rule 68(B) with respect to one category of materials, but would still be obligated to follow the traditional method of disclosure for the narrower category of materials subject to Rule 68(A).  Thus, the second step of the Prosecution’s argument does not follow logically from the first. 

[16] Prosecution Appeal, paras. 2, 43-47. The Prosecution also raises a related argument, submitting that the EDS addresses the underlying rationale for the Prosecution’s disclosure obligation by eliminating its superior access to the material. Prosecution Appeal, paras. 38-42.

[17] Prosecution Appeal, para. 46, citing Blaškić Appeal Judgement and Brđanin Appeal Decision.

[18] Nzirorera Response and Motion, paras. 14-26.

[19] Prosecution Appeal, para. 26.

[20] Brđanin Appeal Decision, p. 4; Blaškić Appeal Judgement, para. 296.

[21] See, e.g., Blaškić Appeal Judgement, paras. 286-303.

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Decision on Reconsideration of Appeal Judgement - 26.06.2006 ŽIGIĆ Zoran
(IT-98-30/1-A)

The Appeals Chamber noted that while there were many precedents confirming the Appeals Chamber’s power to reconsider its decisions, there was only one precedent of a reconsideration of a judgement, namely the Čelebići Judgement on Sentence Appeal. It then recalled the “standards of reconsideration” as stated in that judgement (paras 5-6), according to which a judgement can be reconsidered when there is a “prospect of injustice” (paras 5-6). Part of the reasoning of the Appeals Chamber in the Čelebići Judgement on Sentence Appeal was that the right of review on the discovery of a new fact, granted by Article 26 of the Tribunal’s Statute is “only a partial answer to the prospect of injustice”.[1] In the present case, the Appeals Chamber however noted that the requirement of a “new fact” under Article 26 of the Statute has been interpreted broadly (para. 7):

7. While the Čelebići Judgement on Sentence Appeal considered that review proceedings under Article 26 of the Statute of the Tribunal constituted a limited answer to the possibility of injustice, the Appeals Chamber notes that the jurisprudence of this Tribunal has nonetheless shown that when proceedings are brought under that Article, the requirement of the existence of a “new fact” has been interpreted broadly, and the conditions of knowledge and due diligence required under Rule 119 of the Rules of Procedure and Evidence of the Tribunal have been waived in “wholly exceptional circumstances” and “where the impact of a new fact on the decision would be such that to ignore it would lead to a miscarriage of justice”.[2]

It held that “in effect” parties “typically” use the reconsideration procedure to lodge a second appeal (para. 8) and consequently held that “there is no power to reconsider a final judgement”:

7. To allow a person whose conviction has been confirmed on appeal the right to further contest the original findings against them on the basis of mere assertions of errors of fact or law is not in the interests of justice to the victims of the crimes or the convicted person, who are both entitled to certainty and finality of legal judgements. Nor is it consistent with the Statute of this Tribunal, which provides for a right of appeal and a right of review but not for a second right of appeal by the avenue of reconsideration of a final judgement.  The Appeals Chamber is satisfied that the existing appeal and review proceedings established under the Statute provide sufficient guarantees to persons convicted before this Tribunal that they have been tried fairly and in accordance with norms of due process. In light of these considerations, the Appeals Chamber has come to the view that cogent reasons in the interests of justice[3] demand its departure from the majority opinion in the Čelebići Judgement on Sentence Appeal. Accordingly, this Appeals Chamber holds that there is no power to reconsider a final judgement.  The Appeals Chambers notes, however, that its departure from Čelebići does not affect the power of the Tribunal to reconsider its decisions, which cannot be subject to review proceedings. (emphasis added). 

See also Judge’s Shahabuddeen “Declaration”.

[1] Ibid.[ Čelebići Judgement on Sentence Appeal, para. 51].

[2] Prosecutor v. Drago Josipović, Case No. IT-95-16-R2, Decision on Motion for Review, 7 March 2003, para. 13, citing Prosecutor v. Duško Tadić, Case No. IT-94-1-R, Decision on Motion for Review, 30 July 2002, paras 20 and 25-27; see also Prosecutor v. Hazim Delić, Case No. IT-96-21-R-R119, Decision on Motion for Review, 25 April 2002, paras 15, 19 and 22; Jean-Bosco Barayagwiza v. Prosecutor Case No. ICTR-97-19-AR72, Decision on Prosecutor’s Request for Review or Reconsideration, 31 March 2000, paras 41-44, 65-69; Nahimana et al. v. Prosecutor, Case No. ICTR-99-52-A, Decision on Jean-Bosco Barayagwiza’s Request for Reconsideration of Appeals Chamber Decision of 19 January 2005, 4 February 2005, p. 2; Juvénal Kajelijeli v. Prosecutor, Case No. ICTR-98-44A-A, Judgement, 23 May 2005, paras 203-204.

[3] See Prosecutor v. Zlatko Aleksovski, Case No. IT-96-14/1-A, Judgement, 24 March 2000, paras 107-109.

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

The Appeals Chamber stated that, once a trial judgement has been rendered, all requests for reconsideration of decisions delivered at trial should be addressed exclusively via a notice of appeal and an appellant’s brief.

27. La Chambre d'appel considère que, dès lors que le jugement de première instance est prononcé, toute demande de réexamen d’une décision prise dans le cadre de la procédure de première instance doit être exclusivement adressée via l'acte d'appel et le mémoire de l'appelant. De l’avis de la Chambre d’appel, le jugement clôt et endosse la procédure de première instance ; pour des raisons évidentes d’économie judiciaire et dans le but d’empêcher les parties de remettre en cause constamment des questions déjà tranchées, il appartient à l’appelant qui souhaite faire réexaminer une partie ou l’ensemble de cette procédure d’en faire état dans le cadre de son appel au fond.

29. En conséquence, la Chambre d’appel considère que l’Appelant ne peut solliciter le réexamen de l’Arrêt du 31 mars 2000 par voie de requête au stade de la mise en état de l’affaire en appel et qu’une telle demande devrait être articulée dans le cadre de son appel du Jugement au fond.

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

The Appeals Chamber recalled the general principles of reconsideration proceedings and mentioned that, in exceptional circumstances, it had an inherent power to reconsider a previous interlocutory decision if a clear error of reasoning has been demonstrated or if it is necessary to do so to prevent an injustice.

22. Pour ce qui est du réexamen, la Chambre d’appel rappelle que

the Appeals Chamber ordinarily treats its prior interlocutory decisions as binding in continued proceedings in the same case as to all issues definitively decided by those decisions. This principle prevents parties from endlessly relitigating the same issues, and is necessary to fulfil the very purpose of permitting interlocutory appeals: to allow certain issues to be finally resolved before proceedings continue on other issues.[1]

Ce nonobstant la Chambre d’appel dispose, dans des circonstances exceptionnelles, du pouvoir inhérent de réexaminer toute décision interlocutoire lorsqu’une erreur manifeste de raisonnement a été mise en évidence ou si la décision dont on sollicite le réexamen a donné lieu à une injustice[2].

[1] Arrêt Kajelijeli, par. 202, [Juvénal Kajelijeli v. the Prosecutor, Case No. ICTR-98-44A-A, Judgement, 23 May 2005].

[2] Confidential Decision on “Prosecutor’s Motion for Reconsideration of the Appeals Chamber’s Decision Regarding the Timeliness of the Filing of the Prosecutor’s Response to ‘Appellant Hassan Ngeze’s Motion for the Approval of Further Investigation of the Specific Information Relating to the Additional Evidence of Witness AEU’”, 7 April 2006, p. 3; Decision on Jean-Bosco Barayagwiza’s Request for Reconsideration of Appeals Chamber Decision of 19 January 2005, 4 February 2005, p. 2; Arrêt Kajelijeli, par. 203.

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

The Appeals Chamber reiterated that only a definitive judgement can be reviewed. It concluded that an interlocutory decision concerns only a specific issue and subsequently can not be considered as a definitive one.

31. Quant à la question plus générale de savoir si l’Appelant peut valablement réclamer la révision de l’Arrêt du 31 mars 2000, la Chambre d’appel réitère que seul un jugement définitif peut être révisé[1]. Or, la Chambre d’appel considère que l’Arrêt du 31 mars 2000 est une décision faisant droit à l’appel interjeté par le Procureur contre l’Arrêt du 3 novembre 1999. Ainsi que la Chambre d’appel l’a déjà affirmé[2], l’Arrêt du 31 mars 2000 n’a pas statué définitivement sur le fond ; il a uniquement modifié la réparation ordonnée par la Chambre d’appel dans son Arrêt du 3 novembre 1999[3] sans préjudice de l’examen au fond de l’affaire par la Chambre de première instance.

[1] Voir, supra, par. 21.

[2] Décision du 14 septembre 2000, p. 3, [Jean-Bosco Barayagwiza c. le Procureur, affaire n°ICTR-97-19-AR72, Décision sur la Requête en révision et/ou en réexamen, 14 septembre 2000].

[3] Arrêt du 31 mars 2000, par. 74,.

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

The Appeals Chamber clarified its previous decision with respect to news facts relating to the doctrine of “abuse of process” which could, in certain circumstances, warrant a review.

24. […] Or, la Chambre d’appel a précisé dès son Arrêt du 3 novembre 1999 que « la règle de l’abus de procédure […] est un processus par lequel des juges peuvent refuser de se déclarer compétents lorsqu’au vu des violations graves et flagrantes dont les droits de l’accusé font l’objet, l’exercice d’une telle compétence pourrait s’avérer préjudiciable à l’intégrité du tribunal »[1]. Elle a par suite signalé que les faits nouveaux présentés par le Procureur avaient trait à l’application de la doctrine de l’abus de procédure et à la solution que la Chambre d’appel avait donnée dans son Arrêt du 3 novembre 1999[2]. Il ressort clairement de ce qui précède que la Requête du 28 juillet 2000 avait pour objet la contestation de l’authenticité de faits nouveaux ayant conduit la Chambre d’appel à rétablir la compétence du Tribunal vis-à-vis de l’Appelant en modifiant la réparation de l’abus de procédure constaté; et que, contrairement à ce que soutient l’Appelant, la Requête visait in fine la compétence du Tribunal sur la base de prétendus faits nouveaux.

[1] Arrêt du 3 novembre 1999 [Jean-Bosco Barayagwiza c. le Procureur, affaire n°ICTR-97-19-AR72, Arrêt, 3 novembre 1999], par. 74.

[2] Arrêt du 31 mars 2000 [Jean-Bosco Barayagwiza c. le Procureur, affaire n°ICTR-97-19-AR72, Arrêt (Demande du Procureur en Révision ou Réexamen), 31 mars 2000], par. 17. 

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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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Notion(s) Filing Case
Decision on Further Investigations - 20.06.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

15. […] Also, the Appeals Chamber considers that the Appellant’s Counsel does not need the Appeals Chamber’s authorization or an order from the Appeals Chamber to obtain a statement from Jean-Bosco Barayagwiza. In this regard, the Appeals Chamber notes the Appellant’s submission that Jean-Bosco Barayagwiza is prepared to provide a written statement to him,[1] as well as the fact that Jean-Bosco Barayagwiza is a detainee in the United Nations Detention Facility in Arusha, not subject to any restrictive or protective measures that would preclude the Appellant’s Counsel from taking a statement from him. Furthermore, the Appeals Chamber notes that the Appellant submits that taking the statement from Jean-Bosco Barayagwiza would not result in any expenses for the Registry of the Tribunal.

27. The Appeals Chamber first notes […] that generally, no authorization is needed for the Appellant’s Counsel to contact potential witnesses with the view of obtaining written statements from them, unless any such witnesses are subject to specific protective measures. Since the Appellant neither requests any funding from the Registry of the International Tribunal for such “further investigation” nor justifies why his Counsel would be unable to collect such information on his behalf without intervention of the Appeals Chamber, there was no reason for the Appellant to seize the Appeals Chamber with such request at this stage.

[1] [First Motion], para. 1.

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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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4. The Appeals Chamber recalls that an appeal pursuant to Article 24 of the Statute of the Tribunal (“Statute”) is not a trial de novo,[1] and cannot be viewed as an opportunity to remedy any “failures or oversights” by a party during the pre-trial and trial phases.[2] For these reasons, investigations should be carried out during the pre-trial and trial stages.[3]

[1] 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; 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 on Six Motions”), para. 5; see also Prosecutor v. 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 (“Decision on Investigation”), p. 3; Decision on Six Motions, para. 5; Prosecutor v. Erdemović, Case No. IT-96-22-A, Judgement, 7 October 1997, para. 15.

[3] The Registrar generally does not fund investigations at the appeal stage (Decision on Appellant Ferdinand Nahimana’s Motion for Assistance from the Registrar in the Appeals Phase, 3 May 2005 (“Decision on Assistance”), para. 2; Decision on Investigation, p. 3; Decision of 4 October 2005, p. 4; Decision on Six Motions, para. 5). However, in an exceptional case, the Appeals Chamber may order the Registrar to fund investigations at the appeal stage, if the moving party shows, for example, that it is in possession of specific information that needs to be investigated further in order to avoid a miscarriage of justice, and that this specific information was not available at trial through the exercise of due diligence (Decision on Assistance, para. 3; Decision on Six Motions, para. 5).

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28. […] considering that the Appellant seeks in the Second Motion to obtain the potential witness’ statement with a view to seeking leave to present additional evidence on appeal under Rule 115 of the Rules,the Appeals Chamber finds it appropriate […] to associate the request for further investigation with the requirements for timely filing of a motion under Rule 115.

16. In any event, noting that the Appellant seeks to obtain Jean-Bosco Barayagwiza’s statement with a view to seeking leave to present additional evidence, the Appeals Chamber recalls that under Rule 115(A) of the Rules, a motion for admission of additional evidence on appeal must be filed within seventy-five days from the date of the trial judgement, unless good cause is shown for the delay. The Appeals Chamber understands the Appellant to submit that good cause for the delay of such a filing more than two years after the Trial Judgement[3] is that, in light of Jean-Bosco Baraygwiza’s refusal to participate in the trial, there was no accessibility to him until recently, even through his own counsel.[4] However, the Appeals Chamber notes that the Appellant has not indicated how and when he was first able to gain access to Jean-Bosco Barayagwiza for evidence or information. Even if Jean-Bosco Barayagwiza’s absence during the trial were to be considered by the Appeals Chamber as justifying the fact that such evidence was neither available at trial nor could have been obtained through the exercise of due diligence, the Appellant has failed to show why such a request could not have been submitted in time during the appeals proceedings. […]

17. […] The Appeals Chamber considers that the Appellant has failed to establish that Barayagwiza’s Rule 115 Motion contains new information pertinent for the Appellant’s case that was unknown to the Appellant before the date on which it was filed, thereby preventing him from filing his First Motion until 6 January 2006. Therefore, the Appeals Chamber finds that the filing of Barayagwiza’s Rule 115 Motion at the end of December 2005 also does not constitute good cause for the late submission of the First Motion.

18. In light of the findings above, the Appeals Chamber does not consider it necessary to address the other arguments made by the Appellant.

29. The Appeals Chamber notes that submission of the additional evidence that the Appellant seeks to obtain in the Second Motion would take place more than two years after the Trial Judgement was rendered, which makes the filing of the Second Motion untimely. The Appeals Chamber recalls that, in order to demonstrate that it was not able to comply with the time limit set in Rule 115 of the Rules for filing a motion for additional evidence within 75 days from the date of the rendering of the trial judgement, the moving party is required to demonstrate good cause for the delay and submit the motion in question “as soon as possible after it became aware of the existence of the evidence sought to be admitted”.[5] The Appellant has failed to show that he has complied with these requirements.

30. […] Moreover, the Appeals Chamber reiterates that the relevant time is when the witness became available to give evidence to the moving party, and not when a witness statement was in fact taken.[6]

[1] Second Motion, preambulary para.

[2] [emphasis added] See Section I on Applicable Law; see also para. 17 above. It is furthermore recalled that, when seized with motions for funding of investigation in appeal, it is relevant for the Appeals Chamber to consider whether it is likely that the evidence thereby obtained would meet the requirements for subsequent admission under Rule 115 (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 October 2005, para. 13).

[3] The Appeals Chamber recalls that the Trial Judgement in this case was rendered on 3 December 2003.

[4] First Motion, paras 3-4.

[5] Kordić and Čerkez Decision [Prosecutor v. Dario Kordic & Mario Cerkez, Case No IT-95-14/2-A, Decision on Prosecution’s Motion to Admit Additional Evidence in Relation to Dario Kordic and Mario Cerkez, 17 December 2004], p. 2.

[6] [Kordić and Čerkez Decision], p. 3.

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The Appeals Chamber discussed for the first time whether the provisions of the Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings Before the Tribunal[1] governing the content of a response apply identically to Interlocutory appeals “as of right and interlocutory appeals “with leave to appeal”. It held (Decision, footnote 7):

The Practice Direction on Written Submissions distinguishes between appeals that lie “as of right” and those that lie “only with the leave of a bench of three judges of the Appeals Chamber”.  Appeals that have been certified by a Trial Chamber—pursuant to a procedure established by amendment to the Rules after the Practice Direction’s issuance—are not specifically mentioned, but the Appeals Chamber considers that, after the required certification has been issued, they lie “as of right”, in that they are authorized by Rule 73(B) of the Rules and the appellant need not apply to the Appeals Chamber for further leave to file them.  In any event, the provisions of the Practice Direction governing the content of a response are the same for all categories of interlocutory appeal.

[1]16 September 2002 (“Practice Direction on Written Submissions”).

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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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29. […] It is true that “widespread and systematic attack against a civilian population” and “armed conflict not of an international character” are phrases with legal meanings, but they nonetheless describe factual situations and thus can constitute “facts of common knowledge”.  The question is not whether a proposition is put in legal or layman’s terms (so long as the terms are sufficiently well defined such that the accuracy of their application to the described situation is not reasonably in doubt).  The question is whether the proposition can reasonably be disputed.  Neither the Trial Chamber nor any of the Accused has demonstrated any reasonable basis for disputing the facts in question. (emphasis added).

[1] For instance, it is routine for courts to take judicial notice of the existence of a state of war, despite the fact that such a description has a legal meaning.  See, e.g., Mead v. United States, 257 F. 639, 642 (U.S. 9th Cir. Ct. App. 1919); see also infra note 46 (listing other examples of judicial notice incorporating legal concepts).

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30. Likewise, it is not relevant that these facts constitute elements of some of the crimes charged and that such elements must ordinarily be proven by the Prosecution.  There is no exception to Rule 94(A) for elements of offences.  Of course the Rule 94(A) mechanism sometimes will alleviate the Prosecution’s burden to introduce evidence proving certain aspects of its case.  As the Appeals Chamber explained in Semanza, however, it does not change the burden of proof, but simply provides another way for that burden to be met […]. (footnotes omitted).

See also para. 37.

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The Appeals Chamber found that, when the Trial Chamber does not expressly limit its certification to appeal a decision to a particular issue, the Appeals Chamber may decide to resolve other issues, provided that they “materially advance the proceedings” and that the purported error is not “inconsequential”.

The relevant paragraphs read:

16. It is not illogical or impermissible for a Trial Chamber to grant certification to appeal an entire decision on the basis of one issue which, in its view, satisfies the Rule 73(B) criteria.  To the contrary, such an approach is consistent with the text of that Rule, which requires only that the Trial Chamber identify “an issue” satisfying certain criteria in order to certify interlocutory review of a decision, but does not state that the review must be limited to the identified issue.  Thus, although the Appeals Chamber has found that the Trial Chamber can limit review to the issue(s) that it has found to specifically satisfy the Rule 73(B) criteria, it is not obligated to do so.

17. This approach is consistent with Rule 73’s objective of advancing the fair and expeditious conduct of the proceedings.  Interlocutory appeals under Rule 73 interrupt the continuity of trial proceedings and so should only be allowed when there is a significant advantage to doing so—that is, when, in the Trial Chamber’s judgement, there is an important issue meriting immediate resolution by the Appeals Chamber.  But once one such issue is identified and an interlocutory appeal is certified, allowing the Appeals Chamber to resolve related issues at the same time may cause little additional interruption and may ultimately serve the goals of fairness and expeditiousness.

21. […] the Appeals Chamber will not, in considering an interlocutory appeal that extends beyond the issues that the Trial Chamber found to specifically satisfy the Rule 73(B) standard, address matters in which its consideration will not, in fact, materially advance the proceedings.  The Appeals Chamber notes the related argument of Mr. Karemera that the Prosecution has as a general matter failed to demonstrate errors invalidating the Trial Chamber’s decision or occasioning a miscarriage of justice within the meaning of Article 24(1) of the Statute.[1]  Although the Article 24(1) standard applies specifically to post-trial appeals from final Trial Chamber decisions, it is likewise true that in interlocutory appeals, even where certification under Rule 73(B) has been granted, it is not the Appeals Chamber’s practice to pass on purported errors that are inconsequential.[2]  The Appeals Chamber will keep this standard in mind in addressing the individual allegations of error raised by the Prosecution.

[1] Karemera Response, p. 2.

[2] See Prosecutor v. Orić, Case No. IT-03-68-AR73.2, Interlocutory Decision on Length of Defence Case, 20 July 2005, para. 9 & fn. 25.

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Emphasis added are in bold, emphasis from the original decision are in italics.

47. […] in Semanza the Appeals Chamber made reference to the need to ensure “that the facts judicially noticed were not the basis for proving the Appellant’s criminal responsibility”.  This reference was made in the context of a discussion of Rule 94(A), and the Appeals Chamber did not discuss the implications for Rule 94(B).  In both contexts, however, it remains the case that the practice of judicial notice must not be allowed to circumvent the presumption of innocence and the defendant’s right to a fair trial, including his right to confront his accusers.  Thus, it would plainly be improper for facts judicially noticed to be the “basis for proving the Appellant’s criminal responsibility” (in the sense of being sufficient to establish that responsibility), and it is always necessary for Trial Chambers to take careful consideration of the presumption of innocence and the procedural rights of the accused.

48. The Appeals Chamber, however, has never gone so far as to suggest that judicial notice under Rule 94(B) cannot extend to facts that “go directly or indirectly” to the criminal responsibility of the accused (or that “bear” or “touch” thereupon).  With due respect to the Trial Chambers that have so concluded,[1] the Appeals Chamber cannot agree with this proposition, as its logic, if consistently applied, would render Rule 94(B) a dead letter.  The purpose of a criminal trial is to adjudicate the criminal responsibility of the accused.  Facts that are not related, directly or indirectly, to that criminal responsibility are not relevant to the question to be adjudicated at trial, and, as noted above, thus may neither be established by evidence nor through judicial notice.[2]  So judicial notice under Rule 94(B) is in fact available only for adjudicated facts that bear, at least in some respect, on the criminal responsibility of the accused.[3]

49.     How can this observation be reconciled with the presumption of innocence?  First, as noted above, judicial notice under Rule 94(B) does not shift the ultimate burden of persuasion, but only the initial burden of production (the burden to produce credible and reliable evidence sufficient to bring the matter into dispute).  Analogously, in the context of alibi evidence, for instance, the accused bears the burden of production with respect to a matter centrally related to the guilt of the accused; yet this shift does not violate the presumption of innocence because, as the Appeals Chamber has repeatedly recognized, the prosecution retains the burden of proof of guilt beyond a reasonable doubt.[4]

50.     Notwithstanding this point, there is nonetheless reason for caution in allowing judicial notice under Rule 94(B) of facts that are central to the criminal responsibility of the accused—for ordinarily in criminal cases the burdens of production and persuasion are on the prosecution.  Although the latter always remains on the prosecution, even shifting the former has significant implications for the accused’s procedural rights, in particular his right to hear and confront the witnesses against him.[5]  The Appeals Chamber considers that as a result an exclusion from judicial notice under Rule 94(B) is appropriate, but one narrower than that adopted by the Trial Chamber: judicial notice should not be taken of adjudicated facts relating to the acts, conduct, and mental state of the accused.  

51.     There are two reasons that this category of facts warrants complete exclusion, while other facts bearing less directly on the accused’s criminal responsibility are left to the Trial Chamber’s discretion.  First, this interpretation of Rule 94(B) strikes a balance between the procedural rights of the Accused and the interest of expediency that is consistent with the one expressly struck in Rule 92 bis, which governs the proof of facts other than by oral evidence—another procedural mechanism adopted largely for the same purpose as was Rule 94.[6]  Second, there is also a reliability concern—namely, there is reason to be particularly skeptical of facts adjudicated in other cases when they bear specifically on the actions, omissions, or mental state of an individual not on trial in those cases.  As a general matter, the defendants in those other cases would have had significantly less incentive to contest those facts than they would facts related to their own actions; indeed, in some cases such defendants might affirmatively choose to allow blame to fall on another.

52.     As to all other adjudicated facts relating to the criminal responsibility of the accused, it is for the Trial Chambers, in the careful exercise of their discretion, to assess each particular fact in order to determine whether taking judicial notice of it—and thus shifting the burden of producing evidence rebutting it to the accused—is consistent with the accused’s rights under the circumstances of the case.  […]

[1] See supra note 77 (cases cited by Nzirorera Response).

[2] See supra note 29.

[3] In theory, there is one exception to this statement: facts bearing on the Tribunal’s jurisdiction but not (directly or indirectly) on the accused’s criminal responsibility under international law, such as the location of the territorial boundaries of Rwanda, or the Rwandan citizenship of a person accused of committing a serious violation of international humanitarian law in a neighbouring State.  This category is quite limited, however, and it has never been suggested that the scope of Rule 94(B) should be limited to such facts.

[4] See, e.g., Kajelijeli Appeal Judgement, paras 40-41; Niyitegeka Appeal Judgement, paras 60-61.

[5] Statute of the International Tribunal, art. 20(e).  For similar reasons, Article 20(d), referring to the right of the accused to be tried in his or her presence, is also implicated by the practice of resolving facts fundamental to the guilt of the accused in other trials where the accused is not present.

[6] Rule 92 bis (in paragraphs (A) and (D) limits admission of witness statements and transcripts from other proceedings to matters “other than the acts and conduct of the accused as charged in the indictment”.  The Appeals Chamber has interpreted this phrase as extending to the mental state of the accused.  See Prosecutor v. Galić, Case No. IT-98-29-AR73.2, Decision on Interlocutory Appeal Concerning Rule 92 bis (C), 7 June 2002, paras 10-11 (“Galić Decision”).

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The Appeals Chamber ruled that Trial Chambers must take judicial notice of the following facts:

-          Existence of Hutus, Tutsis and Twas as protected group falling under the Genocide Convention (para. 25);

-          Existence of widespread or systematic attacks against a civilian population based on Tutsi ethnic identification (paras 28-29, referring to Semanza Appeal Judgement, para. 192; see also para. 31);

-          Existence of Genocide against Tutsis in Rwanda between 6 April 1994 and 17 July 194 (paras 35-36).

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At paras 40-42, the Appeals Chambers explained the differences between judicial notice under Rule 94(A) and judicial notice under Rule 94(B).

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At para. 20, the Appeals Chamber confirmed its earlier finding in the impugned decision:

All that is required under Article 5 of the Statute is that the Prosecution establish that an armed conflict is sufficiently related to the Article 5 crime with which the accused is charged. While, as previous jurisprudence of this Tribunal has held, there is no need for the Prosecution to establish a material nexus between the acts of the accused and the armed conflict, the Prosecution must establish a connection between the Article 5 crime itself and the armed conflict. Consistently with the object of the purpose of the Tribunal’s Statute, the jurisdictional requirement that Article 5 crimes be committed in armed conflict requires the Prosecution to establish that a widespread or systematic attack against the civilian population was carried out while an armed conflict in Croatia and/or Bosnia and Herzegovina was in progress. Whether the Prosecution can establish this connection in this case with respect to crimes against humanity in Vojvodina is a question of fact to be determined at trial.[1]

It recalled its constant jurisprudence that “the existence of an armed conflict is not a constitutive element of the definition of crimes against humanity, but only a jurisdictional prerequisite.[2]” (para. 21).

[1] Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-AR72, Decision on the Interlocutory Appeal Concerning Jurisdiction, 31 August 2004, para. 14.

[2] See Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), UN Doc. S/25704, 3 May 1993, para. 47; Prosecutor v. Duško Tadić, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995 (“Tadić Jurisdictional Decision”), para. 70; Prosecutor v. Duško Tadić, Case No. IT-94-1-A, Judgement, 15 July 1999 (“Tadić Appeal Judgement”), paras 249 and 251. See also Prosecutor v. Furundžija, Case No. IT-95-17/1-T, Judgement, 10 December 1998, para. 59; Prosecutor v. Dragoljub Kunarac, Radomir Kovač and Zoran Vuković, Case No. IT-96-23 & IT-96-23/1-A, Judgement, 12 June 2002, paras 82-83 (explaining that “[a] crime listed in Article 5 of the Statute constitutes a crime against humanity only when ‘committed in armed conflict’” and that this requirement is “a purely jurisdictional prerequisite that is satisfied by proof that there was an armed conflict and that objectively the acts of the accused are linked geographically as well as temporally with the armed conflict.”)

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