In its Oral Decision of 8 May 2006, the Trial Chamber adopted three principles concerning cross-examination guidelines for the six accused in this case. They included 1) the total time limit of cross-examination by the Defence shall not in principle exceed the Prosecution’s direct-examination and if Defence cannot agree the time will be allocated equally, 2) the Defence will rotate their order of cross-examining witnesses, and 3) the allocation of time for cross-examination will be altered if a witness’s testimony goes to the responsibility of one of the accused.[1]

In their interlocutory Appeal, the Appellants submit that the Trial Chamber abused its discretion by committing the following:

(a) severely restricting the fundamental right of the Accused to cross-examine the witnesses against them;

(b) applying rigid time-constraints in preference to using less restrictive methods of control;

(c) effectively requiring the Accused to exercise the right of cross-examination as a group rather than individually, regardless of conflicts of interest, and to bargain with each other for time to cross-examine;

(d) preventing Defence Counsel from affording effective assistance of counsel to the Accused; and

(e) failing to exercise judicial independence by subjugating the fight of the Accused to a fair trial to the political and economic pressures imposed upon the Trial Chamber by the UN Security Council through the Completion Strategy.[2]

The Prosecution submitted that the Trial Chamber decision was rather “a practical and flexible guideline that ensures a fair and expeditious trial, discourages unfocused and irrelevant cross-examination, and facilitates the scheduling of witnesses who must travel internationally to testify before the International Tribunal”.[3]

The Appeals Chamber noted that each of the Defence teams had 1/6 of the time allocated to Prosecution (unless another agreement was reached),[4] and the Trial Chamber could allocate the time differently depending on whether a witness’ testimony spoke directly to the culpability of the one of the accused.[5] Additionally, the Appeals Chamber referred to the Tribunal’s established practice of avoiding “rigid time limits”[6] for cross-examination, “in particular, since the Trial Chamber reserves its power to modify the time allowed for cross-examination as necessary and allows the Appellants to adjust the specified time allocation by agreement among themselves.”[7]

Therefore, the Appeals Chamber found that the Trial Chamber was “sufficiently flexible”[8] in preserving the Defendant’s right to cross-examination as stated in the Statute, while also balancing the needs and right to a fair trial of each individual defendant.

The Appeals Chamber held (Decision, p. 3):

[…] in interlocutory appeals dealing with trial management rulings, the Appeals Chamber shall afford deference to the Trial Chamber’s discretion[1] and the examination by the Appeals Chamber shall be limited to establishing whether the Trial Chamber has fallen into error or has abused its discretionary power;[2]

Para. 42: when the Appeals Chamber directs a subsequently assigned Defence counsel to file additional submissions to a request for review previously filed pro se by a convicted person, the said submissions shall be limited to issues raised by the convicted person in the initial pro se request. Any issue raised for the first time in the additional submissions is deemed to be out of the scope of the Appeals Chamber’s order and the merit thereof shall not be considered.

Paras 12, 16, 21, 25, 30, 36: the Appeals Chamber after having recalled the cumulative nature of the criteria for review in para. 7, as previously set out in Josipović,[1] and having concluded that none of the alleged issues met the first criterion of “new fact” within the meaning of Article 25 of the Statute and Rule 120 of the Rules of the Tribunal, ruled that it was not obliged to examine them further. This determination conforms to previous approaches adopted by the Appeals Chamber, halting the analysis at the first criterion upon concluding that no “new fact” is presented.[2]

Nevertheless, the Appeals Chamber proceeded to consider whether, assuming the proffered material could be characterised as a “new fact”, it could have been a decisive factor in reaching the original decision.[3] The approach of the Appeals Chamber in this case, as in previous cases, was to consider the fourth criterion of “decisive factor” after finding that the first criterion is not met.[4] The Appeals Chamber adopted this approach out of an abundance of caution and not because the requirement of a “new fact” can be waived to avoid a miscarriage of justice.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Appeals Chamber clarified that, under Article 25 of the Statute and according to Rules 120-123, a party may submit an application for review if it satisfies the following conditions: a new fact has been discovered which was not known at the time of the initial proceedings and which could not been discovered earlier through the exercise of due diligence; and this new fact could have been a decisive factor in reaching the decision. The Appeals Chamber emphasized that only a definitive judgement can be reviewed under the said provisions.

20. […] Pour obtenir la révision conformément aux articles 25 du Statut et 120 à 123 du Règlement, la partie intéressée doit au préalable satisfaire quatre conditions:

1) un fait nouveau doit avoir été découvert,

2) ce fait nouveau ne doit pas avoir été connu de la partie intéressée lors de la procédure initiale,

3) la non-découverte de ce fait nouveau ne doit pas être due à un manque de diligence de la partie intéressée, et

4) le fait nouveau aurait pu être un élément décisif de la décision initiale[1].

21. La Chambre d’appel réitère en outre que « seul un jugement définitif peut être révisé en vertu des articles 25 du Statut et 120 du Règlement, et [qu’]un jugement définitif est une décision qui met fin à une procédure »[2].

23. La Chambre d’appel rappelle que la Décision du 14 septembre 2000 a rejeté la révision ainsi que le réexamen de la Requête du 28 juillet 2000 aux motifs que l’Arrêt du 31 mars 2000 n’avait pas mis fin à la procédure, que le réexamen de ladite requête ne pouvait être utilisé comme pouvoir de révision dans les cas où celle-ci n’était pas prévue et qu’il n’était pas justifié en l’espèce ; elle a dirigé l’Appelant vers la Chambre de première instance en vue de lui soumettre, le cas échéant, des faits nouveaux de nature à établir l’incompétence du Tribunal[3].

The Appeals Chamber restated the applicable law with respect to the admissibility of the additional evidence on appeal:

5. Further, according to Rule 115 of the Rules of Procedure and Evidence of the Tribunal (“Rules”), for additional evidence to be admissible on appeal, the following requirements must be met. The Appeals Chamber must find “that the additional evidence was not available at trial and is relevant and credible.” When determining the availability at trial, the Appeals Chamber will be mindful of the following principles:

[T]he party in question must show that it sought to make “appropriate use of all mechanisms of protection and compulsion available under the Statute and the Rules of the International Tribunal to bring evidence […] before the Trial Chamber.” In this connection, Counsel is expected to apprise the Trial Chamber of all the difficulties he or she encounters in obtaining the evidence in question, including any problems of intimidation, and his or her inability to locate certain witnesses. The obligation to apprise the Trial Chamber constitutes not only a first step in exercising due diligence but also a means of self-protection in that non-cooperation of the prospective witness is recorded contemporaneously.[1]

With regard to relevance, the Appeals Chamber will consider whether the proposed evidence sought to be admitted relates to a material issue. As to credibility, the Appeals Chamber will admit evidence at this stage only if it appears to be reasonably capable of belief or reliance. Admission of the evidence is without prejudice to the later determination of the weight that the new evidence will be afforded.[2]

6. Once it has been determined that the additional evidence meets these conditions, the Appeals Chamber will determine whether the evidence “could have been a decisive factor in reaching the decision at trial.”[3] To satisfy this, the evidence must be such that it could have had an impact on the verdict, i.e. it, in the case of a request by a defendant, it could have shown that a conviction was unsafe.[4] Accordingly, the additional evidence must be directed at a specific finding of fact related to a conviction or to the sentence.

7. The Appeals Chamber has considered that, where the additional evidence is relevant and credible, but was available at trial, or could have been discovered through the exercise of due diligence, the evidence may still be admitted if the moving party establishes that its exclusion would amount to a miscarriage of justice, inasmuch as, had it been adduced at trial, it would have had an impact on the verdict.[5]

8. The Appeals Chamber recalls that, whether the additional evidence was available at trial or not, it must always be assessed in the context of the evidence presented at trial, and not in isolation.[6]

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

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

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

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

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

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