388. Addressing the more specific issue of intra-Article 5 cumulative convictions, the Kordić and Čerkez Appeal Judgement ruled that a correct application of the Čelebići test required “an examination, as a matter of law, of the elements of each offence in the Statute that pertain to that conduct for which the accused has been convicted.” Based on this reasoning, the Appeals Chamber admitted that convictions for the crimes against humanity of persecution on the one hand, and murder, other inhumane acts and imprisonment on the other hand, could be cumulated, since all of these offences contained “an element that requires proof of a fact not required by the other[s]”.[1]

389. In the instant case, Amicus Curiae alleges that the Kordić and Čerkez Appeal Judgement is an incorrect application of the Čelebići test and should therefore not be used as a precedent. The Appeals Chamber cannot agree with this interpretation. While prior jurisprudence adopted another point of view,[2] in the Kordić and Čerkez Appeal Judgement the Appeals Chamber clearly explained the reasons that warranted the departure from previous cases.[3] Subsequent appeal judgements in the Stakić, Naletilić and Martinović and Nahimana et al. cases confirmed the approach adopted in Kordić and Čerkez.[4] The Appeals Chamber therefore sees no cogent reason to depart from the current jurisprudence with respect to intra-Article 5 cumulative convictions.

390. In the Trial Judgement, the Trial Chamber determined that:

[p]ersecution as a crime against humanity has a materially distinct element from murder as a crime against humanity in that persecution requires proof that an act or omission discriminates in fact, and proof that the act or omission was committed with specific intent to discriminate. Conversely, murder as a crime against humanity requires proof that the accused caused the victim’s death, which is not an element required for proof of persecution. As a result, a cumulative conviction for persecution and murder under Article 5 of the Statute is permissible. The same reasoning applies to extermination, deportation, and forced transfer as an inhumane act.[5]

391. The Appeals Chamber, by majority, Judge Güney dissenting,[6] considers that this is a correct application of the law on cumulative convictions. Therefore, the Trial Chamber did not err in cumulating the conviction for persecution as a crime against humanity with the convictions for the crimes against humanity of murder, extermination, deportation and inhumane acts (forcible transfer). This ground of appeal is dismissed.

The Appeals Chamber summarily dismissed a number of grounds on the following basis:

16. The Appeals Chamber recalls that it has an inherent discretion to determine which of the parties’ submissions merit a reasoned opinion in writing and that it may dismiss arguments which are evidently unfounded without providing detailed reasoning in writing. Indeed, the Appeals Chamber’s mandate cannot be effectively and efficiently carried out without focused contributions by the parties. […] As well, the Appeals Chamber may dismiss submissions as unfounded without providing detailed reasoning if a party’s submissions are obscure, contradictory, vague or suffer from other formal and obvious insufficiencies.

The Appeals Chamber further identified the following categories of errors that it would dismiss summarily, as outlined in paras. 18-27:

• Arguments that fail to identify the challenged factual findings, that misrepresent the factual findings or the evidence, or that ignore other relevant factual findings;
• Mere assertions that the Trial Chamber must have failed to consider relevant evidence;
• Challenges to factual findings on which a conviction does not rely, and arguments that are clearly irrelevant, that lend support to, or that are not inconsistent with the challenged finding;
• Arguments that challenged a Trial Chamber’s reliance or failure to rely on one piece of evidence;
• Arguments contrary to common sense;
• Challenges to factual findings where the relevance of the factual findings is unclear and has not been explained by the Appellant;
• Mere repetition of arguments that were unsuccessful at trial;
• Allegations based on material not on the record;
• Mere assertions unsupported by any evidence, undeveloped assertions, failure to articulate error;
• Mere assertions that the Trial Chamber failed to give sufficient weight to evidence or failed to interpret evidence in a particular manner.

11. The Appeals Chamber considers it necessary to remind the Registrar of his obligation to ensure efficient communication with detainees and convicted persons, even after they have been transferred to a State in which their sentence is to be served, so as to ensure that they may exercise their rights provided for under the Statute and the Rules in full.[1]  

22. The Appeals Chamber further recalls that the term “new fact” refers to new evidentiary information supporting a fact that was not in issue during the trial or appeal proceedings.[1] The requirement that the fact was not in issue during the proceedings means that “it must not have been among the factors that the deciding body could have taken into account in reaching its verdict.”[2] Essentially, the moving party must show that the Chamber did not know about the fact in reaching its decision.[3]

47. This being said, the Appeals Chamber does not find it necessary to order Niyitegeka to file the Additional Statements or information concerning the identity of their authors. Niyitegeka makes clear that, in his view, the information contained in the Additional Statements reveals that Witness GGV was not credible. The Appeals Chamber notes that Witness GGV’s credibility is a matter that was litigated at trial and on appeal. While the Additional Statements may constitute material of an evidentiary nature, in light of what Niyitegeka discloses of their content they do not constitute “new facts” within the meaning of Article 25 of the Statute. Accordingly, Niyitegeka’s attempt to have them admitted as new facts for the purposes of review is bound to fail.  

48. In relation to his request for review based on the Additional Statements, Niyitegeka also requests that the Appeals Chamber order that the identity of two victims that he was found to have killed be specified.[1] The Appeals Chamber recalls that the charges against Niyitegeka have already been determined and that his conviction has been confirmed on appeal. Outside the review mechanism provided for under Article 25 of the Statute, it is not within the Appeals Chamber’s jurisdiction to re-open terminated proceedings to alter otherwise final findings.[2] Niyitegeka’s attempt to further contest the original findings is therefore dismissed. 

11. The Appeals Chamber recalls that interlocutory appeals on jurisdiction lie as of right under Rule 72(B)(i) of the Rules only where they challenge an indictment on the ground that it does not relate to the Tribunal’s personal, territorial, temporal or subject-matter jurisdiction.[1] The Appellant challenges the Tribunal’s jurisdiction over him because of the alleged illegality of his arrest.[2] However, he does not challenge the Indictment on any of the above-listed grounds. Consequently, Rule 72(D) of the Rules “cannot provide a basis for appeal of the Impugned Decision”.[3]

12. The alternative relief sought by the Appellant concerns the establishment of the circumstances of his arrest and a declaration as to its unlawful nature. These submissions equally go outside the scope of a jurisdictional challenge and therefore are not properly before the Appeals Chamber.

13. In light of the above, the Appeals Chamber considers that the Appellant should have requested the Trial Chamber’s authorization to lodge an appeal against the Impugned Decision[[5]] under Rule 73(B). Absent certification to appeal under Rule 73(B) of the Rules, the Appeals Chamber has no jurisdiction to address the merits of the Appeal.

At the outset, the Appeals Chamber specified that its use of the term “fresh evidence”[1] referred, for the purposes of the present decision, to material that was not included in the Prosecution Rule 65 ter list, not admitted during the Prosecution’s case-in-chief but tendered by the Prosecution when cross-examining Defence witnesses. It further clarified that, in this decision, the term was not limited to the material that was not available to the Prosecution during its case-in-chief (para. 15).

23. The Appeals Chamber recalls that, “[a]s a general rule, the Prosecution must present the evidence in support of its case during its case in chief”.[2] This stems from the rights of the accused under Article 21(4)(b) and (e) of the Statute pursuant to which “when evidence is tendered by the Prosecution there must be a fair opportunity for the accused to challenge it”.[3] Consequently, when the Prosecution seeks to introduce fresh evidence, after the closure of its case-in-chief, it has to specifically justify its request.[4] The Trial Chamber may authorize the deviation from the said sequence if it is satisfied that it is in conformity with the other applicable provisions, notably Rule 89(D) of the Rules. The Impugned Decision is correctly premised on this principle noting that, pursuant to Rule 85(A) of the Rules, the sequence of the presentation of evidence may be changed if the Trial Chamber deems it to be in the interests of justice.[5] Therefore, the Appeals Chamber cannot agree with the Appellants that there is an absolute ban for the Prosecution to tender evidence once its case presentation has been closed (save for rebuttal and re-opening). In sum, the Trial Chamber has the discretion to admit fresh evidence under Rule 89(C) and (D) of the Rules, taking into account both the probative value of that evidence and the need to ensure a fair trial.[6] Where the admittance of this evidence constitutes a variation of the sequence of the presentation of evidence set out in Rule 85(A) of the Rules, the Trial Chamber may exercise its discretion to admit the evidence only where it is in the interests of justice.[7]

24. In order to clarify the circumstances under which it would allow admission of fresh evidence after the closure of the Prosecution case-in-chief, the Trial Chamber emphasized that it would do so only in exceptional circumstances where the interests of justice so require, such as “the importance of the ‘new document’”. It went on to specify that, with respect to material aimed at establishing the guilt of an accused, the Prosecution must also “explain to the Chamber when and by which means it obtained these documents, when it disclosed them to the Defence and why they are being offered only after the conclusion of its case”. Finally, the Trial Chamber stated that it would proceed with the assessment of such requests on a case-by-case basis, after having permitted the Defence to challenge the evidence, particularly bearing in mind the potential infringement on the rights of the accused caused by the sought admission. The Appeals Chamber is satisfied that this careful approach establishing a high threshold for the admission of fresh evidence duly mindful of Rule 89(C) and (D) of the Rules may be justified, depending on the specific circumstances of the case. The Appellants have thus not demonstrated any error in the Trial Chamber’s conclusions in this regard.

28. With reference to the Delić Decision, the Trial Chamber resolved that fresh evidence probative of the Appellants’ guilt may only be admitted during the presentation of their respective cases in exceptional circumstances.[11] While the Impugned Decision appears to be more lenient to the admission of the fresh evidence for the sole purpose of “impeaching a witness’s credibility or refreshing his/her memory”, it still specifies that the Trial Chamber will decide on the admission on the case-by-case basis in conformity with Rule 89 of the Rules.[12] In light of the above clarifications, the Appeals Chamber does not find that such approach is erroneous.

In its Rutaganda Decision on Leave to Appeal, the Appeals Chamber also considered the submissions of the Registrar and the Applicant relating to the Applicant’s ability to access to his file whilst in detention at the United Nationa Detention Facility in Arusha (“UNDF”), and held:

pp. 2-3: RECALLING that on 22 January 2009, the Appeals Chamber ordered the Registrar, pursuant to Rule 33(B) of the Tribunal’s Rules of Procedure and Evidence (“Rules”), to make a written submission to the Appeals Chamber explaining whether, at present and until his transfer to a third State, the Applicant continues to have access to the appropriate facilities and the files and documentation required to prepare his appeal against the Decision of 3 April 2008;[1]

CONSIDERING the correspondence from the Applicant to the Commander of the UNDF dated 23 January 2009, wherein the Applicant explains that, in anticipation of his imminent transfer, he packed his documents and therefore, whilst he still has possession of these materials, his access to them is more difficult;[2]

CONSIDERING that on 28 January 2009, the Registrar submitted that the Applicant continues to have access to the appropriate facilities, files, and documentation required to prepare his appeal against the Trial Chamber’s Decision of 3 April 2008;[3]

CONSIDERING therefore that since the Applicant has had continued access to his files, he has failed to demonstrate that for the filing of his appeal he needs additional time until after his transfer to the State in which his sentence is to be served[.]

11. […] The granting of an oral hearing is a matter for the discretion of a Chamber and an oral hearing may legitimately be regarded as unnecessary when, as in the present case, the information before the Appeals Chamber is sufficient to enable the Appeals Chamber to reach an informed decision.[1] […]

22. The Appellant submits that the Trial Chamber erred in law in failing to conclude that those portions of his testimony that the Prosecution did not cross-examine were established.[1] Referring to Rule 90(G)(ii) of the Rules, the Rutaganda Appeal Judgement,[2] and Canadian jurisprudence, he submits that the “failure to cross-examine a witness on an aspect of his testimony implies a tacit acceptance of the truth of the witness’s evidence on the matter”.[3]

24. The Appeals Chamber finds that Rule 90(G)(ii) of the Rules does not support the Appellant’s contention [. The rule merely states that “[i]n the cross-examination of a witness who is able to give evidence relevant to the case for the cross-examining party, counsel shall put to that witness the nature of the case of the party for whom that counsel appears which is in contradiction of the evidence given by the witness.” The ICTY Appeals Chamber has previously stated, regarding the similarly worded Rule 90(H)(ii) of the ICTY Rules, that it:

seeks to facilitate the fair and efficient presentation of evidence whilst affording the witness being cross-examined the possibility of explaining himself on those aspects of his testimony contradicted by the opposing party’s evidence, so saving the witness from having to reappear needlessly in order to do so and enabling the Trial Chamber to evaluate the credibility of his testimony more accurately owing to the explanation of the witness or his counsel.[4]

The central purpose of this rule is to “promote the fairness of the proceedings by enabling the witness […] to appreciate the context of the cross-examining party’s questions, and to comment on the contradictory version of the events in question”.[5]

26. For the requirements of this rule to be fulfilled, there is no need for the cross-examining party to explain every detail of the contradictory evidence. Furthermore, the rule allows for some flexibility depending on the circumstances at trial.[6] This therefore implies that if it is obvious in the circumstances of the case that the version of the witness is being challenged, there is no need for the cross-examining party to waste time putting its case to the witness.[7]

27. The Appeals Chamber notes that the term “witness” under Rule 90 of the Rules does not always equate to an accused who chooses to testify. There is a fundamental difference between the accused, who might testify as a witness if he so chooses, and a witness. The Tribunal “does not reflexively apply rules governing any other witness to an accused who decides to testify in his own case”.[8] When an accused testifies in his own defence, he is well aware of the context of the Prosecution’s questions and of the Prosecution’s case, insofar as he has received sufficient notice of the charges and the material facts supporting them.[9] Furthermore, the accused’s version of the events is for the most part challenged by the Prosecution, while his testimony is aimed at responding to Prosecution’s evidence and allegations. In these circumstances, it would serve no useful purpose to put the nature of the Prosecution’s case to the accused in cross-examination. The Appeals Chamber therefore does not find that Rule 90(G)(ii) of the Rules was intended to apply to an accused testifying as a witness in his own case. The Appeals Chamber notes that, in any event, Rule 90(G)(ii) of the Rules is silent on any inferences that may be drawn by a Trial Chamber from a witness’s testimony that is not subject to cross-examination.

28. The Appeals Chamber further notes that the relevant holding of the Appeals Chamber in Rutaganda reads: 

La Chambre d’appel estime que, d’une manière générale, une partie qui ne contre-interroge pas un témoin sur une déclaration donnée admet tacitement la véracité de la déposition dudit témoin sur ce point. La Chambre de première instance n’aurait donc pas commis une erreur de droit en l’espèce, en induisant du fait que l’Appelant n’avait pas contre-interrogé le témoin Q sur la distribution d’armes, que celui-ci ne contestait pas la véracité de la déposition dudit témoin sur ce point. Ceci étant dit, il ne ressort pas clairement du Jugement que la Chambre de première instance est effectivement parvenue à une telle conclusion. Il semble plutôt qu’elle se soit limitée à noter que l’Appelant n’avait pas contre-interrogé le témoin Q sur la question visée, sans toutefois en tirer quelques conséquences que ce soit dans ses conclusions factuelles. De l’avis de la Chambre d’appel, cet argument est dépourvu de fondement.[10]

29. The Appeals Chamber recalls that in Kamuhanda, the Appeals Chamber stated that this holding in Rutaganda “does not stand for the proposition that a trier of fact must infer that statements not challenged during cross-examination are true,” and that it is within the discretion of a Trial Chamber to decline to make such an inference.[11] Thus, the Appeals Chamber emphasizes that a Trial Chamber has the discretion to infer (or not) as true statements unchallenged during cross-examination, and to take into account the absence of cross-examination of a particular witness when assessing his credibility.[12]

30. The Appeals Chamber notes that in this instance, the Appellant, who testified at the end of the case, had consistently denied the allegations against him throughout the proceedings and claimed that he did not know anything about the crimes alleged.[13] The Prosecution cross-examined the Appellant on a number of issues.[14] Under this sub-ground of appeal, the Appellant has failed to point to any finding allegedly affected by the lack of cross-examination by the Prosecution but merely makes a general reference to his oral arguments at trial.[15] In these circumstances, the Appellant has not demonstrated that the Trial Chamber committed an error of law in not considering as established those portions of his testimony on which the Prosecution did not cross-examine him.[16]

See also, below under “Development of the existing case-law”.