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Appeal Judgement - 16.11.2001 MUSEMA Alfred
(ICTR-96-13-A)

18.     The Appeals Chamber recalls that in determining whether or not a Trial Chamber’s finding was reasonable, it “will not lightly disturb findings of fact by a Trial Chamber.”[1]  In the first place, the task of weighing and assessing evidence lies with the Trial Chamber.  Furthermore, it is for the Trial Chamber to determine whether a witness is credible or not.  Therefore, the Appeals Chamber must give a margin of deference to a finding of fact reached by a Trial Chamber.[2]  But the Trial Chamber’s discretion in weighing and assessing evidence is always limited by its duty to provide a “reasoned opinion in writing,”[3]  although it is not required to articulate every step of its reasoning for each particular finding it makes.[4]  The question arises as to the extent that a Trial Chamber is obliged to set out its reasons for accepting or rejecting a particular testimony.[5]  There is no guiding principle on this point and, to a large extent, testimony must be considered on a case by case basis. The Appeals Chamber of ICTY held that:[6]

[t]he right of an accused under Article 23 of the Statute to a reasoned opinion is an aspect of the fair trial requirement embodied in Articles 20 and 21 of the Statute.  The case-law that has developed under the European Convention on Human Rights establishes that a reasoned opinion is a component of the fair hearing requirement, but that “the extent to which this duty . . . applies may vary according to the nature of the decision” and “can only be determined in the light of the circumstances of the case.”[7]  The European Court of Human Rights has held that a “tribunal’ is not obliged to give a detailed answer to every argument.[8]

19.     In addition, the Appeals Chamber of ICTY has stated that although the evidence produced may not have been referred to by a Trial Chamber, based on the particular circumstances of a given case, it may nevertheless be reasonable to assume that the Trial Chamber had taken it into account.[9]

20.     It does not necessarily follow that because a Trial Chamber did not refer to any particular evidence or testimony in its reasoning, it disregarded it.  This is particularly so in the evaluation of witness testimony, including inconsistencies and the overall credibility of a witness. A Trial Chamber is not required to set out in detail why it accepted or rejected a particular testimony.  Thus, in the Čelebići case, the Appeals Chamber of ICTY found that it is open to the Trial Chamber to accept what it described as the “fundamental features” of testimony.[10]  It also stated that:

[t]he Trial Chamber is not obliged in its Judgement to recount and justify its findings in relation to every submission made during trial.  It was within its discretion to evaluate the inconsistencies highlighted and to consider whether the witness, when the testimony is taken as a whole, was reliable and whether the evidence was credible. Small inconsistencies cannot suffice to render the whole testimony unreliable.[11]

21.     It is for an appellant to show that the finding made by the Trial Chamber is erroneous and that the Trial Chamber indeed disregarded some item of evidence, as it did not refer to it. In Čelebići, the Appeals Chamber found that the Appellant had “failed to show that the Trial Chamber erred in disregarding the alleged inconsistencies in its overall evaluation of the evidence as being compelling and credible, and in accepting the totality of the evidence as being sufficient to enter a finding of guilt beyond reasonable doubt on these grounds.”[12]

[1] Furundžija Appeal Judgement, para. 37; Tadić Appeal Judgement, para. 35; Aleksovski Appeal Judgement, para. 63.

[2] Akayesu Appeal Judgement, para. 232; Tadić Appeal Judgement, para. 64; Furundžija Appeal Judgement, para. 37; Aleksovski Appeal Judgement, para. 63; Serushago Appeal Judgement, para 22.

[3] Article 22(2) of the Statute and Rule 88(C) of the Rules [Rules of Procedure and Evidence].

[4] Čelebići Appeal Judgement, para. 481.

[5] In particular, the Prosecution has submitted that the “parameters of what constitutes a ‘reasoned opinion’ have yet to be articulated by any Trial Chamber of this Tribunal or ICTY, or by the Appeals Chamber.” Prosecution’s Response [Prosecution's Brief in Response to Alfred Musema's Grounds of Appeal Against Conviction and Sentence and Appellant's Brief on Appeal, 13 September 2000], footnote 59 and para. 4.108.

[6] Furundžija Appeal Judgement, para. 69.

[7] Footnote reference: “See the case of Ruiz Torija v. Spain, Judgement of 9 December 1994, Publication of the European Court of Human Rights (“Eur. Ct. H. R.”), Series A, vol. 303, para. 29.”

[8] Footnote reference: “Case of Van de Hurk v. The Netherlands, Judgement of 19 April 1994, Eur. Ct. H. R., Series A, vol. 288, para. 61.”

[9] Čelebići Appeal Judgement, para. 483.

[10] Ibid., para. 485.

[11] Ibid., para. 498.

[12] Ibid.,

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Appeal Judgement - 16.11.2001 MUSEMA Alfred
(ICTR-96-13-A)

36.     One of the duties of a Trial Chamber is to assess the credibility of witnesses.  In discharging that duty, the Trial Chamber takes into account all the circumstances of the case.  As stated in the Aleksovski Appeal Judgement, “[w]hether a Trial Chamber will rely on single witness testimony as proof of a material fact, will depend on various factors that have to be assessed in the circumstances of each case.”[1]  It may be that a Trial Chamber would require the testimony of a witness to be corroborated, but according to the established practice of this Tribunal and of the International Criminal Tribunal for the Former Yugoslavia (ICTY), that is clearly not a requirement.[2]

37.     In the instant case, the Trial Chamber affirmed that it “may rule on the basis of a single testimony if, in its opinion, that testimony is relevant and credible.”[3] It further stated that:

[…] it is proper to infer that the ability of the Chamber to rule on the basis of testimonies and other evidence is not bound by any rule of corroboration, but rather on the Chamber’s own assessment of the probative value of the evidence before it.

The Chamber may freely assess the relevance and credibility of all evidence presented to it. The Chamber notes that this freedom to assess evidence extends even to those testimonies which are corroborated: the corroboration of testimonies, even by many witnesses, does not establish absolutely the credibility of those testimonies.[4]

38.     The Appeals Chamber is of the view that these statements correctly reflect the position of the law regarding the Trial Chamber’s discretion in assessing testimonies and the evidence before it.

[1] Aleksovski Appeal Judgement, para. 63, referring to Tadić Appeal Judgement, para. 65.

[2] Kayishema/Ruzindana Appeal Judgement, paras. 154 and 229; Aleksovski Appeal Judgement, para. 62 (“the testimony of a single witness does not require as a matter of law any corroboration”); Tadić Appeal Judgement, para. 65; Čelebići Appeal Judgement, paras. 492 and 506.

[3] Trial Judgement [Alfred Musema v. The Prosecutor, Case No. ICTR-96-13-T, 27 January 2000], para. 43.

[4] Ibid. [Trial Judgement], paras. 45 to 46.

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Appeal Judgement - 16.11.2001 MUSEMA Alfred
(ICTR-96-13-A)

113.   On whether Witness F could easily recognize Musema, the Appeals Chamber finds that Musema’s arguments are not sufficient to raise doubt as to the reliability of the contested identification testimony.  The Appeals Chamber notes that during a meeting convened by the bourgmestre of Gisovu commune, which was one of the three occasions where F had seen Musema prior to the events, F was able to observe Musema for a period of 30 minutes.[1]  Musema gives the impression that an identified suspect needs to be personally well known to the witness.[2]  This is not the case. Prior knowledge of an identified suspect is a factor that a Trial Chamber may take into account when assessing the reliability of a witness’ testimony,[3]  but that is not a sine qua non; identification may be based on other factors. In any event, the Appeals Chamber is of the opinion that it was within the discretion of the Trial Chamber to accept, in support of the evidence of identification before it, the fact that Witness F had met Musema on several occasions.

[1] T, 3 February 1999, p. 6.

[2] “Therefore Musema was not a man well known to the witness, or whom it was likely he could easily recognize and identify” (Appellant’s Brief [Grounds of Appeal Against Conviction and Sentence and Appellant's Brief on Appeal, 23 May 2000], para. 157).

[3] Kayishema/Ruzindana Trial Judgement, para. 71.

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Appeal Judgement - 16.11.2001 MUSEMA Alfred
(ICTR-96-13-A)

71.     In this instance, the Trial Chamber found that exceptional circumstances existed which justified the non-disclosure of the identities of Prosecution witnesses.  In the opinion of the Appeals Chamber, the Trial Chamber was, in the circumstances, bound to consider the testimony of these witnesses in the same way as that of witnesses who were not afforded protective measures.  Indeed, when assessing the probative value of the testimony of a protected witness, the Trial Chamber may take into consideration his status as protected witness, but it is incorrect to say that a Trial Chamber must exercise “special caution” in assessing such evidence. 

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Appeal Judgement - 16.11.2001 MUSEMA Alfred
(ICTR-96-13-A)

205.   In setting out its general findings in the Section entitled “Evidentiary Matters,” the Trial Chamber stated as follows:

In raising the defence of alibi, the Accused not only denies that he committed the crimes for which he is charged but also asserts that he was elsewhere than at the scene of these crimes when they were committed. The onus is on the Prosecution to prove beyond a reasonable doubt the guilt of the Accused. In establishing its case, when an alibi defence is introduced, the Prosecution must prove, beyond any reasonable doubt, that the accused was present and committed the crimes for which he is charged and thereby discredit the alibi defence. The alibi defence does not carry a separate burden of proof. If the defence is reasonably possibly true, it must be successful.[1]

206. Musema accepts the above observation as a correct statement of the law as regards the burden and standard of proof. The Appeals Chamber is of the same opinion.

[1] Trial Judgement, para. 108 (emphasis added).

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Appeal Judgement - 16.11.2001 MUSEMA Alfred
(ICTR-96-13-A)

369.   On the issue of cumulative charges, ICTY Appeals Chamber in Čelebići held:

[c]umulative charging is to be allowed in light of the fact that, prior to the presentation of all of the evidence, it is not possible to determine to a certainty which of the charges brought against an accused will be proven.  The Trial Chamber is better poised, after the parties’ presentation of the evidence, to evaluate which of the charges may be retained, based upon the sufficiency of the evidence.  In addition, cumulative charging constitutes the usual practice of both this Tribunal and ICTR.[1]

The Appeals Chamber finds that the above holding on cumulative charges reflects a general principle and is equally applicable to ICTR.  As a result, the Appeals Chamber confirms that cumulative charging is generally permitted.

370.   […] The Appeals Chamber further holds that cumulative charging is generally permitted.

[1] Čelebići Appeal Judgement, para. 400.

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Appeal Judgement - 16.11.2001 MUSEMA Alfred
(ICTR-96-13-A)

361.   The Appeals Chamber in Čelebići then stated:

Having considered the different approaches expressed on this issue both within this Tribunal and other jurisdictions, this Appeals Chamber holds that reasons of fairness to the accused and the consideration that only distinct crimes may justify multiple convictions, lead to the conclusion that multiple criminal convictions entered under different statutory provisions but based on the same conduct are permissible only if each statutory provision involved has a materially distinct element not contained in the other.  An element is materially distinct from another if it requires proof of a fact not required by the other.

Where this test is not met, the Chamber must decide in relation to which offence it will enter a conviction.  This should be done on the basis of the principle that the conviction under the more specific provision should be upheld. Thus, if a set of facts is regulated by two provisions, one of which contains an additional materially distinct element, then a conviction should be entered only under that provision.[1]

Applying this test, the Appeals Chamber in Celebići found that as between the Article 2 offences and Article 3 (common Article 3) offences of ICTY Statute at issue in the case,[2]  the multiple convictions entered by the Trial Chamber could not be affirmed, because while the Article 2 offences contained a materially distinct element not contained in Article 3 (common Article 3) offences, the reverse was not the case.  Following the approach set out in the second paragraph of the cited statement from Čelebići, supra, convictions under Article 2 were upheld, but those entered under Article 3 (common Article 3) were quashed by the Appeals Chamber.

362.   In the Jelisić Appeal Judgement, ICTY Appeals Chamber adopted the reasoning it had followed in the Čelebići case, and held that the multiple convictions entered under Article 3 and Article 5 of ICTY Statute are permissible because each Article contained a distinct element requiring proof of a fact not required by the other Article.[3] 

363.   In the view of the Appeals Chamber, the above test concerning multiple convictions reflects general, objective criteria enabling a Chamber to determine when it may enter or affirm multiple convictions based on the same acts.  The Appeals Chamber confirms that this is the test to be applied with respect to multiple convictions arising under ICTR Statute.  The Appeals Chamber further endorses the approach of the Čelebići Appeal Judgement, with regard to the elements of the offences to be taken into consideration in the application of this test.[4]  In applying this test, all the legal elements of the offences, including those contained in the provisions’ introductory paragraph, must be taken into account.

[1] Čelebići Appeal Judgement, paras. 412 and 413.

[2] The pairs of crimes at issue in the case under ICTY Statute were:  (1) willful killings under Article 2 and murders under Article 3 (common Article 3);  (2) willfully causing great suffering or serious injury to body or health under Article 2 and cruel treatment under Article 3 (common Article 3);  (3) torture under Article 2 and torture under Article 3 (common Article 3); (4) inhuman treatment under Article 2 and cruel treatment under Article 3 (common Article 3).  See Čelebići Appeal Judgement, para. 414.

[3] The Chamber stated: “… Article 3 requires a close link between the acts of the accused and the armed conflict; this element is not required by Article 5.  On the other hand, Article 5 requires proof that the act occurred as part of a widespread or systematic attack against a civilian population; that element is not required by Article 3.  Thus each Article has an element requiring proof of a fact not required by the other. As a result, cumulative convictions under both Article 3 and 5 are permissible.”  Jelisić Appeal Judgement, para. 82.

[4] This refers to the approach of the majority of the Appeals Chamber in Čelebići.

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Appeal Judgement - 16.11.2001 MUSEMA Alfred
(ICTR-96-13-A)

364.   In the case at bar, the Trial Chamber found Musema guilty of genocide (Count 1) and of extermination as a crime against humanity (Count 5) on the basis of the same set of facts.  Musema requests the reversal of the conviction for extermination.  The issue is whether such double conviction is permissible.

365.   Applying the provisions of the test articulated above, the first issue is whether a given statutory provision has a materially distinct element not contained in the other provision, an element being regarded as materially distinct from another if it requires proof of a fact not required by the other.

366.   Genocide requires proof of an intent to destroy, in whole or in part, a national, ethnical, racial or religious group; this is not required by extermination as a crime against humanity.  Extermination as a crime against humanity requires proof that the crime was committed as a part of a widespread or systematic attack against a civilian population, which proof is not required in the case of genocide.

367.   As a result, the applicable test with respect to double convictions for genocide and extermination as a crime against humanity is satisfied; these convictions are permissible.  Accordingly, Musema’s ground of appeal on this point is dismissed.

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Appeal Judgement - 16.11.2001 MUSEMA Alfred
(ICTR-96-13-A)

380. The factors that a Trial Chamber is obliged to take into account in sentencing a convicted person are provided for in Article 23 of the Statute and Rule 101 of the Rules.  Those factors are: the general practice regarding prison sentences in the courts of Rwanda;  the gravity of the offence; the individual circumstances of the convicted person; any aggravating circumstances; any mitigating circumstances, including the substantial cooperation with the Prosecutor by the convicted person before or after conviction; and the extent to which any penalty imposed by a court of any State on the convicted person for the same act has already been served.  This list is not exhaustive;  it was held by the Appeals Chamber of ICTY that it is inappropriate for it “to attempt to list exhausitively the factors that  […] should be taken into account by a Trial Chamber in determining sentence”.[1]

[1] Čelebići Appeal Judgement, para. 718;  Furundžija Appeal Judgement, para. 238.

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Appeal Judgement - 16.11.2001 MUSEMA Alfred
(ICTR-96-13-A)

381.   In Tadić, the Appeals Chamber of ICTY also considered the relative position of a convicted person in a command structure to be a relevant factor in determining sentence.  In that case, the Appeals Chamber considered that, while Tadic’s criminal conduct was “incontestably heinous”,  his level in the command structure in comparison to his superiors was low”,[1]  and consequently, the sentence passed by the Trial Chamber was excessive.[2]  In subsequent ICTY Appeals Chamber decisions, the need to establish a gradation of sentencing has been endorsed.[3]  In the Čelebići appeal, the Appeals Chamber held that:

[e]stablishing a gradation does not entail a low sentence for all those in a low level of the overall command structure.  On the contrary, a sentence must always reflect the inherent level of gravity of a crime … the gravity of the crime may be so great that even following consideration of any mitigating factors, and despite the fact that the accused was not senior in the so-called overall command structure, a very severe penalty is nevertheless justified.[4]

382.   It went on to state that “while the Appeals Chamber has determined that it is important to establish a gradation in sentencing, this does not detract from the finding that it is as essential that a sentence take into account all the circumstances of an individual case”.[5]  It follows that the jurisprudence of ICTY acknowledges the existence of a general principle that sentences should be graduated, that is, that the most senior levels of the command structure should attract the severest sentences, with less severe sentences for those lower down the structure.  This principle is, however, always subject to the proviso that the gravity of the offence is the primary consideration for a Trial Chamber in imposing sentence.[6]

383.   As to whether this principle should be applicable to the Trial Chambers of this Tribunal, as a general principle, this Appeals Chamber agrees with the jurisprudence of ICTY that the most senior members of a command structure, that is, the leaders and planners of a particular conflict, should bear heavier criminal responsibility than those lower down the scale, such as the foot soldiers carrying out the orders.  But this principle is always subject to the crucial proviso that the gravity of the offence is the primary consideration of a Trial Chamber in imposing sentence; if the offence is serious enough, a Trial Chamber should not be precluded from imposing a severe penalty upon the accused, just because he is not at a high level of command.

[1] Ibid., para. 56.

[2] The sentences imposed by the Trial Chamber, which ranged from 6 to 25 years, were revised, and a sentence of 20 years’ imprisonment was passed in respect of each count, to be served concurrently.

[3] See Čelebići Appeal Judgement, para. 849, and Aleksovski Appeal Judgement, para. 184.

[4] Čelebići Appeal Judgement, para. 847.

[5] Čelebići Appeal Judgement, para. 849.

[6] Čelebići Appeal Judgement, para. 731; Aleksovski Appeal Judgement, para. 182; Krstić Trial Judgement, para. 698; Todorović Trial Judgement, para. 31; Kupreskić Trial Judgement, para. 852; and Čelebići Trial Judgement, 1225.

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Appeal Judgement - 16.11.2001 MUSEMA Alfred
(ICTR-96-13-A)

63.     The issue here is whether the Trial Chamber’s consideration of the impact of trauma was in accordance with the law. The established practice of both the Trial Chambers and the Appeals Chamber supports a finding that it was. Trial Chambers normally take the impact of trauma into account in their assessment of evidence given by a witness. This approach was properly adopted by the Trial Chamber in this case. Contrary to Musema’s assertion, the Appeals Chamber finds that such an approach is, in fact, favourable to him. Indeed, the fact that the Trial Chamber should take into account the impact of trauma on a witness’s memory implies the Trial Chamber’s awareness of such factors (as in the case of the passage of time) and of their possible effect on the ability of the witness to recount events impartially and accurately. 

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Appeal Judgement - 16.11.2001 MUSEMA Alfred
(ICTR-96-13-A)

47.     In the instant case, the Trial Chamber noted that “the burden of proof of the reliability … of the document lies on the party that seeks to rely on the document”, and that the requisite standard of proof was proof on the balance of probabilities.[1]  Without ruling on the issue as to whether such was the appropriate standard, the Appeals Chamber holds that the Trial Chamber did not err in stating that for a document to be admissible as evidence, the Party relying on it must establish that it has sufficient indicia of reliability.

48.     The Trial Chamber also found that, “the standard of proof required for admissibility should be lower than the standard of proof required in the final determination of the matter at hand through the weighing up of the probative value of all the evidence before the Chamber.”[2]   It is the view of the Appeals Chamber that, in that sentence, the Trial Chamber was making a distinction between admissibility and the final assessment of evidence.

49.     As to the second argument that the Trial Chamber erred in stating that the source of a document could be important in determining the reliability of a document, the Trial Chamber held that:

…the source of a document may, taken in context, impact upon the assessment of the reliability or credibility (or both) of the document. For example, evidence produced in support of a defence of alibi from a source other than the Accused may be of greater probative value than evidence provided or produced by the Accused. While noting this, the Chamber emphasizes that such an understanding of the relationship between the source of documentary evidence and its probative value must in no way be interpreted as a presumption of the guilt of the Accused. The Chamber has not, in any way, allowed its assessment of the probative value of documentary evidence to interfere with the right of the Accused to a fair trial.[3]

50.     The first and second arguments overlap.  Again, Musema has not given any instances where he attempted to adduce evidence before the Trial Chamber, which evidence the Trial Chamber rejected on the grounds that Musema himself was the source thereof. Every Trial Chamber is required, in assessing evidence, to determine its overall reliability and credibility.  In the instant case, the Trial Chamber stated that it had “assessed the relative weight and probative value to be accorded to each piece of evidence in the context of all other evidence presented to it in the course of the trial.”[4] It is correct to state that the sole fact that evidence is proffered by the accused is no reason to find that it is, ipso facto, less reliable. Nevertheless, the source of a document may be relevant to the Trial Chamber’s assessment of the reliability and credibility of that document.  Where such a document is tendered by an accused, a Trial Chamber may determine, for example, if the accused had the opportunity to concoct the evidence presented and whether or not he or she had cause to do so. This is part of the Trial Chamber’s duty to assess the evidence before it.

[1] Trial Judgement, paras. 55 and 56.

[2] Ibid., para. 56.

[3] Ibid., para. 63.

[4] Ibid., para. 41.

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Appeal Judgement - 16.11.2001 MUSEMA Alfred
(ICTR-96-13-A)

185.   In Kupreškić, the Appeals Chamber of ICTY stated the role of the Appeals Chamber in cases where the factual findings of a Trial Chamber are likely to be reviewed in light of new evidence.  ICTY Appeals Chamber held in the above-mentioned case that:

“Where additional evidence has been admitted, the Appeals Chamber is then required to determine whether the additional evidence actually reveals an error of fact of such magnitude as to occasion a miscarriage of justice.”[1] 

“[…] miscarriage of justice may […] be occasioned where the evidence before a Trial Chamber  appears to be reliable but, in the light  of additional evidence presented upon appeal, is exposed as unreliable.  It is possible that the Trial Chamber may reach a conclusion of guilt based on the evidence presented at trial that is reasonable at the time […] but, in reality, is incorrect.”[2]

“[…] The test to be applied by the Appeals Chamber in deciding whether or not to uphold a conviction where additional evidence has been admitted before the Chamber is: has the appellant established that no reasonable tribunal of fact could have reached a conclusion of guilt based upon the evidence before the Trial Chamber together with the additional evidence admitted during the appellate proceedings.”[3]

186.   It is the Appeals Chamber’s view that such principles are also applicable before ICTR when the admission of new evidence entails a review of the Trial Chamber’s factual findings.  The Appeals Chamber finds this to be the case in this instance.

[1] Appeal Judgement, Prosecutor  v. Zoran Kupreškić  and others, Case No. IT-95-16-A, 23 October 2001, para. 72 (Kupreškić Appeal Judgement).

[2] Kupreškić Appeal Judgement, para. 44.

[3] Kupreškić Appeal Judgement; para. 75, see also para. 76.

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Appeal Judgement - 23.10.2001 KUPREŠKIĆ et al.
(IT-95-16-A)

31. […] As the primary trier of fact, it is the Trial Chamber that has the main responsibility to resolve any inconsistencies that may arise within and/or amongst witnesses’ testimonies.  […]  The presence of inconsistencies in the evidence does not, per se, require a reasonable Trial Chamber to reject it as being unreliable.[1]  Similarly, factors such as the passage of time between the events and the testimony of the witness, the possible influence of third persons, discrepancies, or the existence of stressful conditions at the time the events took place do not automatically exclude the Trial Chamber from relying on the evidence.  However, the Trial Chamber should consider such factors as it assesses and weighs the evidence. 

[1] Čelebići Appeal Judgement, paras 485 and 496-498.

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Appeal Judgement - 23.10.2001 KUPREŠKIĆ et al.
(IT-95-16-A)

34. The Appeals Chamber notes […] that a reasonable Trial Chamber must take into account the difficulties associated with identification evidence in a particular case and must carefully evaluate any such evidence, before accepting it as the sole basis for sustaining a conviction.  […]

[…]

39. In cases before this Tribunal, a Trial Chamber must always, in the interests of justice, proceed with extreme caution when assessing a witness’ identification of the accused made under difficult circumstances.  While a Trial Chamber is not obliged to refer to every piece of evidence on the trial record in its judgement, where a finding of guilt is made on the basis of identification evidence given by a witness under difficult circumstances, the Trial Chamber must rigorously implement its duty to provide a “reasoned opinion”.  In particular, a reasoned opinion must carefully articulate the factors relied upon in support of the identification of the accused and adequately address any significant factors impacting negatively on the reliability of the identification evidence.  As stated by the Canadian Court of Appeal in R. v Harper:

Where the record, including the reasons for judgment, discloses a lack of appreciation of relevant evidence and more particularly the complete disregard of such evidence, then it falls upon the reviewing tribunal to intercede.[1]

[…]

See also paras. 33-38, 40.

[1] R. v Harper, [1982] 1 S.C.R. 2.

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Appeal Judgement - 23.10.2001 KUPREŠKIĆ et al.
(IT-95-16-A)

220.    The Prosecution is correct in maintaining that “the testimony of a single witness on a material fact does not require, as a matter of law, any corroboration”.[1]  Rather, the absence of corroboration is simply one factor to be taken into consideration by the Trial Chamber in weighing the evidence and arriving at its determination of witness credibility.  Certainly, in cases hinging on a single witness’ identification of the accused made in difficult circumstances, corroborative evidence takes on more importance.[2]  However, of itself, the absence of corroboration is not a ground for the Appeals Chamber to intervene in a factual finding made by the Trial Chamber.

[1] Aleksovski Appeal Judgement, para. 62.  See the further discussion supra para. 33.

[2] See the discussion supra paras 34-36.

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Appeal Judgement - 23.10.2001 KUPREŠKIĆ et al.
(IT-95-16-A)

68. [….] The Appeals Chamber does, however, take this opportunity to clarify that, in its view, the more appropriate standard for the admission of additional evidence under Rule 115[1] on appeal is whether that evidence “could” have had an impact on the verdict, rather than whether it “would probably” have done so. 

69. The Appeals Chamber considers this change from the earlier Tadić formulation  [Prosecutor v Duško Tadić, Case No. IT-94-1-A, “Decision on Appellant’s Motion for the Extension of the Time-Limit and Admission of Additional Evidence”, 15 October 1998, para. 71] as more a matter of timing than substance.  The “would probably” standard is still basically appropriate for the ultimate determination of whether a miscarriage of justice has occurred requiring a reversal.  The Appeals Chamber emphasises too that, regardless of the standard used, it is a difficult task to determine whether the interests of justice require the admission of new evidence.  The Appeals Chamber, therefore, expects a party seeking to admit evidence to specify clearly the impact the additional evidence could have upon the Trial Chamber’s decision.  If it fails to do so, it runs the risk of the evidence being rejected without detailed consideration.

[1] AT THE TIME, RULE 115 PROVIDED:

(A) A party may apply by motion to present before the Appeals Chamber additional evidence which was not available to it at the trial. Such motion must be served on the other party and filed with the Registrar not less than fifteen days before the date of the hearing.

(B) The Appeals Chamber shall authorise the presentation of such evidence if it considers that the interests of justice so require.

RULE 155 WAS SUBSEQUENTLY AMENDED ON 12 JULY 2002, 30 SEPTEMBER 2002AND21 JULY 2005.

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Appeal Judgement - 23.10.2001 KUPREŠKIĆ et al.
(IT-95-16-A)

75. […] The test to be applied by the Appeals Chamber in deciding whether or not to uphold a conviction where additional evidence has been admitted before the Chamber is: has the appellant established that no reasonable tribunal of fact could have reached a conclusion of guilt based upon the evidence before the Trial Chamber together with the additional evidence admitted during the appellate proceedings.  In framing the test in this manner, the Appeals Chamber has been guided by Rule 117(A) which provides that “[t]he Appeals Chamber shall pronounce judgement on the basis of the record on appeal together with such additional evidence as has been presented to it”.

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Appeal Judgement - 23.10.2001 KUPREŠKIĆ et al.
(IT-95-16-A)

463. There is no provision in the Statute or the Rules that specifically permits the Appeals Chamber to take into account post-conviction substantial co-operation with the Prosecution.[1]  What is clear, however, is that appellate proceedings are not intended to permit a de novo review of sentence, with Article 25 clearly limiting appeals to allegations of errors of law or fact invalidating the decision or occasioning a miscarriage of justice respectively.  The instant case clearly does not fall within either category, as it is not alleged that the Trial Chamber erred in any way.  However, the Appeals Chamber notes that Rule 101(B)(ii) requires the Trial Chamber to take into account “any mitigating circumstances including the substantial co-operation with the Prosecution by the convicted person before or after conviction.”[2]  In light of the Rule, the Appeals Chamber considers that, in appropriate cases, co-operation between conviction and appeal could be a factor that the Appeals Chamber too may consider in order to reduce sentence.  This will of course depend on the circumstances of each case and the degree of co-operation rendered.  In the present case, the interests of justice demand that this factor be taken into account.

[1] It is noted that there is precedent to suggest that post-conviction behaviour is not relevant to assessment of sentence on appeal.  In a pre-appeal hearing decision in the case of Jelisić, the Appeals Chamber accepted that a report from the detention unit as to the appellant’s post-sentencing behaviour was unavailable at the time of the trial but that “the Defendant’s post-sentence behaviour could be neither relevant to any issue before the Trial Chamber nor capable of being considered by it and therefore cannot show that the Trial Chamber committed any error in the exercise of its discretion.”  On this basis, the evidence was rejected. Prosecutor v Jelisić, Case No.: IT-95-10-A, Decision on Request to Admit Additional Evidence, 15 November 2000.

[2] Emphasis added.

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ICTR Rule Rule 101(B)(ii) ICTY Rule Rule 101(B)(ii)
Notion(s) Filing Case
Appeal Judgement - 23.10.2001 KUPREŠKIĆ et al.
(IT-95-16-A)

70. Where the Rule 115 evidence is accepted for consideration, the Appeals Chamber has, in effect, decided that the evidence is sufficiently important that, if it had been before the Trial Chamber at trial, the conclusion of guilt could have been different.  At that stage in the proceedings, the new evidence may not have been subjected to any form of adversarial scrutiny, save for the Appeals Chamber’s initial assessment as to whether it was, on its face, credible.  It may be that there is no dispute between the parties as to this issue.  But, in the more likely case that the opposing party challenges the veracity of the additional evidence, the Appeals Chamber is faced with a choice – either it can test the evidence itself to determine veracity, or order the case to be remitted to a Trial Chamber (either the Trial Chamber at first instance, or a differently constituted Trial Chamber) to hear the new evidence.  In the present case, the Prosecution wished to challenge the veracity of several pieces of additional evidence submitted by the Defendants[1] and the Appeals Chamber decided that the most appropriate course was to hold an evidentiary hearing.[2]  In another instance, it admitted two pieces of conflicting evidence without such a hearing, without prejudice to the determination of the weight to be attached thereto.[3]

71. Obviously, an Appeals Chamber may choose to delay its entire decision on the admissibility and weight of new evidence until the time of the main appeal and decide, at one stage, whether the new material will be admitted and whether it will reverse the conviction.  Such an approach has advantages since the Appeals Chamber will be making its decision on impact at the same time it considers all the other evidence in the case and after it has completed its study of the trial record.  The disadvantage to this procedure is that the parties, in making their main submissions on appeal, are not informed as to whether they can rely on the additional evidence or not.  In some cases, the final appeal hearing will be prolonged considerably.  The present Rule 115 does not require the admissibility of new evidence to be decided at any particular time.  Thus, the Appeals Chamber should choose whether it is most expeditious to postpone hearing the evidence until the time of the main appeal hearing, or to do it earlier, according to the complexity of the new material and of the trial record in the context of what will be assessed.  It should be noted that Rule 117 instructs the Chamber to pronounce judgement on the basis of the record on appeal along with any additional evidence it has received.  This suggests that, even if the decision to admit the evidence is made at the same time as the main appeal, a two-step process is nonetheless envisioned in which new evidence, once admitted, will then be assessed as to its effect upon the appeal as a whole.

[1] Prosecution’s Consolidated Response to the Motions by Zoran Kupreškić, Mirjan Kupreškić, Vlatko Kupreškić and Drago Josipovic to Admit Additional Evidence Pursuant to Rule 115 (Confidential), 20 Nov 2000, para. 5.4 (stating that “[i]n the event that, contrary to the Prosecution’s submission, any of the Motions are granted and the additional evidence admitted by the Appeals Chamber, the Prosecution expressly reserves its right to submit evidence in rebuttal and, if necessary, to request the right to cross-examine any witnesses from whom statements have been proffered”).

[2] The Evidentiary Hearing was held on 17, 18 and 25 May 2001.

[3] The statement of WitnessCA was admitted pursuant to the Rule 115 Decision of 26 February 2001.  The statement of Witness DD statement was admitted pursuant to the Decision on Prosecution Motion to Admit Additional Evidence in Rebuttal to Additional Evidence Admitted under Rule 115, 6 July 2001.

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ICTR Rule Rule 115 ICTY Rule Rule 115