32. The Appeals Chamber notes that it is not disputed that the Report was made available to Popović in early 2010.[1] The Appeals Chamber recalls that the presentation of the Defence cases at trial started with Popović’s case, which commenced on 2 June 2008 and concluded on 8 July 2008.[2] The last Defence case concluded on 12 March 2009.[3] The cases of the Prosecution, Popović, Miletić, and Gvero were subsequently re-opened on several occasions.[4] In its Decision of 22 July 2009, the Trial Chamber rejected further evidence and submissions as it was not persuaded that those specific arguments and evidence warranted re-opening and admission, respectively.[5] It also issued a notice that it would “not entertain any further Motions seeking the introduction of additional evidence.”[6] Popović made his closing argument on 7 September 2009.[7]

33. In the Motion, Popović does not offer any argument as to why he did not attempt to have the Report admitted by the Trial Chamber, including through a motion to re-open the case as suggested by the Prosecution.[8] […] The Appeals Chamber rejects Popović’s argument that the Decision of 22 July 2009 categorically barred him from filing another request to re-open the case and have new evidence admitted at the risk of being sanctioned. The Appeals Chamber considers that Popović could have explored other avenues that were still open to him, including a request for certification to appeal against the Decision of 22 July 2009 or a request for reconsideration before or after he received the disclosed Report.[9] In this sense, Popović has not fulfilled his obligation to exercise due diligence in at least attempting to bring the evidence before the Trial Chamber.[10]

34. […] In the Blagojević Decision of 21 July 2005, the Appeals Chamber clarified that

evidence is “available at trial” if it becomes available at a stage when it is still reasonably possible for the relevant party to seek to introduce it before the Trial Chamber. Depending on the circumstances, evidence received after closing arguments in a case may meet this standard.[11]

The Appeals Chamber is of the view that this logic applies to any considerations of availability at trial in the sense of Rule 115 of the Rules, and in particular the due diligence requirement.[12] In light of its findings above, the Appeals Chamber concludes that it could have been reasonably possible for Popović to seek to introduce the Report before the Trial Chamber.[13]

36. In sum, the Appeals Chamber is not convinced that Popović has demonstrated that he fulfilled his duty to act with due diligence and made “the best case in the first instance”[14] by bringing the evidence that he considers crucial before the Trial Chamber.[15] Therefore, the Appeals Chamber finds that the Report was available at trial for the purposes of Rule 115 of the Rules. […]

25. As recalled in the Decision of 1 June 2011, the 30-day time-limit prescribed under Rule 115 of the Rules was to expire that very day.[1] Consequently, for all motions filed after this deadline, the moving party must “demonstrate that it was not able to comply with the time limit set out in the Rule, and that it submitted the motion in question as soon as possible after it became aware of the existence of the evidence sought to be admitted.”[2]

26. Popović filed his Motion with the Registry of the Tribunal on 2 June 2011 at 00:05 a.m.,[3] and thus five minutes after the expiration of the 30-day deadline imposed by the Rules.[4] Although the Motion contains no arguments in relation to the delayed filing, the Appeals Chamber accepts the Motion as validly filed in light of the lack of opposition by the Prosecution to the Motion on this basis, and the nominal delay occasioned by the late filing.

27. […] The Appeals Chamber […] reiterates that any party wishing to tender additional evidence after this deadline must show good cause or, if the filing is made after the appeals hearing, cogent reasons for the delay in order for the untimely motion to be considered validly filed.[5] It is a separate and further requirement to demonstrate that the tendered material was unavailable at trial or could be discovered through the exercise of due diligence.[6]

fn. 78: […] In this regard, the Appeals Chamber notes that the Reply contains no arguments as to the timeliness of Popović’s request to submit another document as additional evidence on appeal. As correctly noted by the Prosecution, Popović must – but failed to – show good cause for filing a motion under Rule 115 of the Rules after the expiration of the prescribed time-limit […]. The arguments on this matter contained in Popović’s Second Reply are unconvincing as Popović simply states that while the document was disclosed to him on 22 December 2010, his Defence team had no time to analyse it in light of the amount of material disclosed after trial and purported lack of resources for the supporting staff, combined with the need to complete the briefing of his appeal […]. The Appeals Chamber considers that these circumstances are the realities of practically any case on appeal and do not constitute good cause for the late filing. Consequently, even if the Appeals Chamber were to accept the second request for admission of additional evidence as a valid motion despite it being filed as part of the Reply, it would have rejected it as untimely.

NOTING that the Decision Varying Protective Measures was a ruling on an application filed before the Trial Chamber on 7 June 2011, prior to the pronouncement of the Trial Judgement;

CONSIDERING that, when a Chamber pronounces its judgement on the merits of a case before it, it retains jurisdiction to dispose of pending ancillary matters of which it is properly seised;

FINDING, therefore, that the Trial Chamber had jurisdiction over the matters it ruled upon in the Decision Varying Protective Measures;

NOTING further that the proceedings subject of the Decision Concerning Witness QA and the Decision Concerning Witnesses QY and SJ were initiated in 2008 and 2009, respectively, prior to the pronouncement of the Trial Judgement, and that proceedings for contempt and false testimony “are independent of the proceedings out of which they arise”;

FINDING, therefore, that the Trial Chamber had jurisdiction over the matters it ruled upon in the Decision Concerning Witness QA and the Decision Concerning Witnesses QY and SJ;

224. Neither the Trial Chamber nor the parties on appeal designated Setako’s evidence concerning his whereabouts between 24 April and 11 May 1994 as alibi evidence.[1] However, Setako clearly denies having been in a position to commit the 25 April and 11 May Killings at Mukamira camp because he was not there at the time. This amounts to raising an alibi.[2] The Appeals Chamber recalls that an accused does not bear the burden of proving his alibi beyond reasonable doubt. He must simply produce evidence that is likely to raise a reasonable doubt about the Prosecution’s case.[3] Where an alibi is properly raised, the Prosecution must establish beyond reasonable doubt that, despite the alibi, the facts alleged are nevertheless true. Where the alibi evidence does prima facie account for the accused’s activities at the time of the commission of the crime, the Prosecution must eliminate the reasonable possibility that the alibi is true.[4]

31. The Appeals Chamber will consider these challenges in turn. At the outset, it recalls that it is within the discretion of a trial chamber to evaluate inconsistencies in the evidence, to consider whether the evidence taken as a whole is reliable and credible, and to accept or reject the fundamental features of the evidence.[1] The Appeals Chamber will defer to a trial chamber’s judgement on issues of credibility, including its resolution of disparities among different witnesses’ accounts, and will only find an error of fact if it determines that no reasonable trier of fact could have made the impugned finding.[2] Furthermore, corroboration may exist even when some details differ between testimonies, provided that no credible testimony describes the facts in question in a way which is not compatible with the description given in another credible testimony.[3]

48. The Appeals Chamber recalls that a trial chamber may rely on part of a witness’s testimony and reject other parts.[4] Furthermore, the Appeals Chamber notes that the Trial Chamber only relied on Witness SLA’s testimony where corroborated.[5] The Trial Chamber was therefore entitled to disregard Witness SLA’s claim of torture and still rely on his evidence with respect to the 25 April and 11 May Killings.

154. Regarding Setako’s contention that the Trial Chamber erred in its reasoning, the Appeals Chamber recalls that the task of weighing and assessing evidence lies primarily with the trier of fact.[6] Therefore, the Appeals Chamber must give a margin of deference to a finding of fact reached by a trial chamber.[7] It will only interfere where no reasonable trier of fact could have reached the same finding or where the finding is wholly erroneous.[8]

222. Setako’s submission that the Trial Chamber erred in dismissing his evidence for lack of corroboration due to contradictions in the testimonies of Witnesses SLA and SAT is unclear. If Setako claims that the Trial Chamber was compelled to accept his testimony because Witnesses SLA’s and SAT’s testimonies deviated from each other, the Appeals Chamber disagrees. The Appeals Chamber recalls that a trial chamber has the discretion to decide on the weight, if any, to accord to a piece of evidence, regardless of whether or not that evidence is corroborated.[9] This discretion is not affected by purported inconsistencies in other evidence.

197. The Trial Chamber did not refer to evidence on the trial record in the present case when noting that informal or regional civil defence measures existed before the establishment of a civil defence on a national scale. Rather, it appears to have relied on an extraneous source, namely a discussion of facts in the Bagosora et al. Trial Judgement.[1]

198. In doing so, the Trial Chamber in fact took judicial notice of facts from another proceeding before the Tribunal. The only legal basis for such an approach would have been Rule 94 of the Rules […].

199. The existence of informal or regional civil defence measures prior to the implementation of civil defence on a national scale in Rwanda cannot be qualified as a fact of common knowledge under Rule 94(A) of the Rules.[2] The relevant parts of the Bagosora et al. Trial Judgement could therefore have been judicially noticed in Setako’s trial only as adjudicated facts pursuant to Rule 94(B) of the Rules.

200. The Appeals Chamber recalls that taking judicial notice of adjudicated facts or documentary evidence under Rule 94(B) of the Rules is a method of achieving judicial economy and harmonizing judgements of the Tribunal while ensuring the right of the accused to a fair, public, and expeditious trial.[3] For this reason, Rule 94(B) of the Rules requires a trial chamber to hear the parties before deciding to take judicial notice. In addition, the fact in question has to be “adjudicated”. According to established jurisprudence, this latter requirement is only met if the fact is determined in a final judgement, meaning that no appeal has been instituted against it or, if instituted, the fact in question has been upheld.[4] Here, the Trial Chamber took judicial notice of facts addressed in the Bagosora et al. Trial Judgement without hearing the parties and while the Bagosora et al. Trial Judgement was still pending appeal.[5] The Appeals Chamber therefore finds that the Trial Chamber violated Rule 94(B) of the Rules.

293. The Prosecution submits that the Trial Chamber erred when it took into consideration, as an individual and mitigating factor, that the Prosecution had presented evidence during trial concerning allegations that it either had withdrawn or was not allowed to add to the indictment.[1] It argues that a reduction in the sentence for this reason would have required a finding that Setako was prejudiced by a specific pre-trial delay resulting from the Prosecution’s conduct.[2] The Prosecution submits that the Trial Chamber did not make such a finding and that this “flies in the face of fair trial principles” since the Prosecution needed to know how much delay it supposedly caused.[3] It further contends that the Trial Chamber itself contributed to the prolongation of the trial because, before and during trial, Setako requested the Trial Chamber to exclude all the evidence at issue, but the Trial Chamber did not act.[4] In the Prosecution’s view, the Trial Chamber could not “both allow […] the Prosecution [to] put in evidence over an objection and then later on fault the Prosecution for having put on that evidence.”[5]

295. In assessing Setako’s sentence, the Trial Chamber stated that “the Prosecution presented a substantial body of evidence based on allegations that it had either withdrawn from the Indictment, or which it was not allowed to add to it”.[6] While it noted that the trial had proceeded rapidly, the Trial Chamber considered that “this should be taken into account in sentencing.”[7]

296. The Appeals Chamber acknowledges that some of the evidence at issue was the subject of three Defence motions filed before trial requesting that the Prosecution be precluded from presenting evidence relating to pre-1994 allegations which the Trial Chamber deferred deciding upon until its final deliberations.[8] Nonetheless, the Appeals Chamber recalls that the Prosecution’s request to amend the 22 March 2004 Indictment in 2007 to add a count of conspiracy to commit genocide which would have been supported by pre-1994 allegations, was denied.[9] Accordingly, the Prosecution was well aware that the pre-1994 allegations were not permitted to form part of its case and it was therefore the Prosecution’s responsibility to limit the evidence it presented to the case it was permitted to pursue. Furthermore, as the Trial Chamber noted, the Prosecution presented evidence on a number of allegations which: (i) it had sought to add to the indictment but which were explicitly denied by the Trial Chamber;[10] (ii) it sought to have removed from the indictment;[11] (iii) it could have sought to add to the indictment but failed to do so;[12] or (iv) it explicitly stated it was not pursuing a conviction for.[13] The Appeals Chamber recalls that it is the Prosecution’s responsibility to know its case before proceeding to trial and to present its case accordingly.[14]

297. However, despite this, the Trial Chamber did not conclude that Setako’s right to a fair and expeditious trial had been violated by the presentation of the evidence at issue.[15] Instead, it decided to take into account this issue in sentencing, notwithstanding the fact that the trial “proceeded rapidly”.[16] In view of the fact that the Trial Chamber did not find that there was a violation of Setako’s fair trial rights, the Appeals Chamber finds that the Trial Chamber abused its discretion in considering this issue as a factor in the determination of Setako’s sentence. The Appeals Chamber will consider the impact of this error on the sentence, if any, in the section below.

257. To establish the culpability of an accused for the crime of violence to life, health, and physical or mental well-being of persons (murder) as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, the Prosecution bears the onus of proving, in addition to the threshold elements of Article 4 of the Statute recalled above,[1] the following specific elements:

1. the death of a victim taking no active part in the hostilities;
2. that the death was the result of an act or omission of the accused or of one or more persons for whom the accused is criminally responsible;
3. the intent of the accused or of the person or persons for whom he is criminally responsible
1. to kill the victim; or
2. to wilfully cause serious bodily harm which the perpetrator should reasonably have known might lead to death.[2]

143. The Appeals Chamber notes that a trial chamber has the discretion to rely upon evidence of accomplice witnesses.[1] However, when weighing the probative value of such evidence, the trial chamber is bound to carefully consider the totality of the circumstances in which it was tendered. In particular, consideration should be given to circumstances showing that accomplice witnesses may have motives or incentives to implicate the accused person before the Tribunal or to lie.[2]

144. In the present case, the Trial Chamber was well aware of the criminal records of Witnesses SLA and SAT.[3] It also acknowledged that the witnesses were accomplices of Setako with regard to the killings on 25 April 1994 and, precisely for this reason, stated that it would view their evidence with caution.[4] It considered various credibility issues raised by the Defence, including allegations of fabrication and manipulation of evidence,[5] and, “out of an abundance of caution”, only accepted the witnesses’ evidence about the events at Mukamira camp where they corroborated each other.[6]

145. In these circumstances, the Appeals Chamber finds that it was not unreasonable for the Trial Chamber to rely on the evidence of Witnesses SLA and SAT. The Appeals Chamber discerns no error in the Trial Chamber’s conclusion that the witnesses, who had not previously confessed to crimes with respect to 25 April 1994, exposed themselves to the risk of being held accountable for them in future criminal proceedings before Rwandan judicial authorities. The fact that they testified as protected witnesses did not render this consideration unreasonable.

188. The Appeals Chamber recalls that it is primarily for the trier of fact to determine whether a particular witness may have an incentive to distort the truth.[1] However, the mere fact that the Defence witnesses lived or found refuge at Mukamira camp due to their relationships with soldiers does not in and of itself imply that they gave a tainted account in order to protect Setako from criminal responsibility. This Tribunal has considered that, under certain circumstances, the fact that a witness was saved by the accused may be relevant to the witness’s credibility assessment.[2] Setako does not appear to have played any role in the protection of the Defence witnesses. The trial record also does not reveal any other evidence that the Defence witnesses were biased in favour of Setako.[3]

189. Similarly, the fact that Witness NBO’s husband was related to an accused before this Tribunal does not necessarily indicate that she would have distorted her testimony to the benefit of Setako. In particular, the Appeals Chamber observes that her husband’s relative was not implicated in any charges concerning killings at Mukamira camp.