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

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

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

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

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

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

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

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

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

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

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

The Appeals Chamber has clearly restated the applicable law on admissibility of additional evidence on appeal: 

4. The Appeals Chamber recalls that under the jurisprudence of the Tribunal and that of the International Criminal Tribunal for the Former Yugoslavia (“ICTY”), an appeal pursuant to Article 24 of the Statute of the Tribunal (Article 25 of the Statute of the ICTY) is not a trial de novo[1] and is not an opportunity for a party to remedy any “failures or oversights” made during the pre-trial and trial phases.[2] Rule 115 of the Rules of Procedure and Evidence of the Tribunal (“Rules”) provides for a mechanism to address “the situation where a party is in possession of material that was not before the court of first instance and which is additional evidence of a fact or issue litigated at trial”.[3]

5. According to Rule 115, for additional evidence to be admissible on appeal, the following requirements must be met: first, the motion to present additional evidence should be filed “not later than thirty days from the date for filing of the brief in reply, unless good cause or, after the appeal hearing, cogent reasons, are shown for a delay.[4] Second, the Appeals Chamber must find “that the additional evidence was not available at trial and is relevant and credible”.[5] When determining the availability at trial, the Appeals Chamber will consider whether the party tendering the evidence has shown that it sought to make “appropriate use of all mechanisms of protection and compulsion available under the Statute and the Rules of the International Tribunal to bring evidence […] before the Trial Chamber.”[6] In this respect, the Appeals Chamber has held that

Counsel is expected to apprise the Trial Chamber of all the difficulties he or she encounters in obtaining the evidence in question, including any problems of intimidation, and his or her inability to locate certain witnesses” and that “[t]he obligation to apprise the Trial Chamber constitutes not only a first step in exercising due diligence but also a means of self-protection in that non-cooperation of the prospective witness is recorded contemporaneously.[7]

With regards to relevance, the Appeals Chamber will consider whether the proposed evidence sought to be admitted relates to a material issue. As to credibility, the Appeals Chamber will only refuse to admit evidence at this stage if it does not appear to be reasonably capable of belief or reliance, without prejudice to a determination of the weight to be afforded.[8]

6. Once it has been determined that the additional evidence meets these conditions, the Appeals Chamber will determine whether the evidence “could have been a decisive factor in reaching the decision at trial.”[9] To satisfy this requirement, the evidence must be such that it could have had an impact on the verdict, i.e. it could have shown that a conviction was unsafe.[10] Accordingly, the additional evidence must be directed at a specific finding of fact related to a conviction or to the sentence.[11] Although Rule 115 of the Rules does not explicitly provide for this, where the evidence is relevant and credible, but was available at trial, or could have been discovered through the exercise of due diligence, the Appeals Chamber may still allow it to be admitted on appeal provided the moving party can establish that the exclusion of it would amount to a miscarriage of justice. That is, it must be demonstrated that had the additional evidence been adduced at trial, it would have had an impact on the verdict.[12]

7. The Appeals Chamber recalls that, whether the additional evidence was or was not available at trial, the additional evidence must always be assessed in the context of the evidence presented at trial, and not in isolation.[13]

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

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

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

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

P. 4: CONSIDERING that there exists no provision in the Tribunal’s Statute, Rules or Practice Directions as to the exact time to be allocated for the parties’ oral submissions on appeal, and that such decisions are taken by the Appeals Chamber on a case-by-case basis; […]

CONSIDERING that the Scheduling Order was issued by the Appeals Chamber under Rule 114 of the Rules in full consideration of the particular circumstances and complexity of the present case in accordance with the practice of the Tribunal;

FINDING therefore that the Appellant has failed to demonstrate any need, in the interests of justice, for the Appeals Chamber to allow more time than that allotted for the parties’ oral submissions on the merits at the Appeals Hearing in the Scheduling Order;

42. The Appeals Chamber finds that it is in the interests of justice to examine proprio motu whether the material tendered by the Prosecution in its Motion of 7 September 2006 can be admitted as rebuttal evidence on appeal. It has been well established by the jurisprudence that rebuttal material is admissible if it directly affects the substance of the additional evidence admitted by the Appeals Chamber[1] and, as such, has a different test of admissibility from additional evidence under Rule 115 of the Rules.[2] In light of its findings above with respect to the admissibility of the Additional Statement, the Appeals Chamber finds that copies of envelopes in which the copies of the Additional Statement were purportedly sent to various addressees within the Office of the Prosecutor are directly relevant to the issue of the authenticity of the Additional Statement and a fortiori that of the Recantation Statement. Therefore, the Appeals Chamber is satisfied that the proffered material affects the substance of the admitted additional evidence and is thus admissible as rebuttal evidence on appeal.