55. The Appeals Chamber can conceive of situations where a fair trial is not possible because witnesses central to the defence case do not appear due to the obstructionist efforts of a State.  In such circumstances, the defence, after exhausting all the other measures mentioned above, has the option of submitting a motion for a stay of proceedings. The Defence opined during the oral hearing that the reason why such action was not taken in the present case may have been due to trial counsel’s concern regarding the long period of detention on remand.  The Appeals Chamber notes that the Rules envision some relief in such a situation, in the form of provisional release, which, pursuant to Sub-rule 65(B),[1] may be granted “in exceptional circumstances”.  It is not hard to imagine that a stay of proceedings occasioned by the frustration of a fair trial under prevailing trial conditions would amount to exceptional circumstances under this rule. The obligation is on the complaining party to bring the difficulties to the attention of the Trial Chamber forthwith so that the latter can determine whether any assistance could be provided under the Rules or Statute to relieve the situation.  The party cannot remain silent on the matter only to return on appeal to seek a trial de novo, as the Defence seeks to do in this case.

24. […] [Article 21(4)(e)] serves to ensure that the accused is placed in a position of procedural equality in respect of obtaining the attendance and examination of witnesses with that of the Prosecution.  In other words, the same set of rules must apply to the right of the two parties to obtain the attendance and examination of witnesses.  It does not follow from Article 21(4)(e) that the application of the relevant rules has to result in the witnesses of the two parties giving evidence in exactly the same manner.  Thus, the Appellant’s understanding of his right as embodied in Article 21(4)(e) of the Statute appears to rest on a misconception when he contends that, since all the witnesses for the Prosecution were heard directly before the Trial Chamber, that gives him an automatic right to have all his witnesses heard directly before the Trial Chamber as well.

23. Article 21 of the Statute […] has been interpreted in many Decisions of the Tribunal as having been based upon the well-known international law principle of "equality of arms". There has, however, been some difference of opinion expressed as to whether the principle relates only to the position of the accused – that is, that it provides merely that the accused is to be afforded the same rights as the Prosecution – or whether it relates to equality between both parties. […]

[…]

25. This application of the concept of a fair trial in favour of both parties is understandable […]. [I]t is difficult to see how a trial could ever be considered to be fair where the accused is favoured to the expense of the Prosecution […].

30.     Review proceedings under Article 26 of the Statute and Rule 119 are different from appellate proceedings under Article 25 and Rule 115. Where an applicant seeks to present a new fact which becomes known only after trial, despite the exercise of due diligence during the trial in discovering it, Rule 119 is the governing provision. In such a case, the Appellant is not seeking to admit additional evidence of a fact that was considered at trial, but rather a new fact. The proper venue for a review application is the Chamber that rendered the final judgement; it is to that Chamber that the motion for review should be made. In this case, it is for the Trial Chamber to review the Judgement and determine whether the new fact, if proved, could have been a decisive factor in reaching a decision.

[…]

32.     The Appeals Chamber will, however, observe that a distinction exists between a fact and evidence of that fact. The mere subsequent discovery of evidence of a fact which was known at trial is not itself a new fact within the meaning of Rule 119 of the Rules. […]

See also paras 36, 42.

36.     Rule 115 (A) provides that a “party may apply by motion to present before the Appeals Chamber additional evidence which was not available to it at the trial”. That relates to appeals. Rule 119 enables a party to seek a review “[w]here a new fact has been discovered which was not known to the moving party at the time of the proceedings before a Trial Chamber or the Appeals Chamber, and could not have been discovered through the exercise of due diligence”. The Appellant submits that the reference to “diligence” in the latter but not in the former means that diligence is not required under Rule 115. However, whilst the Rules can illustrate the meaning of the Statute under which they are made, they cannot vary the Statute. If there is a variance, it is the Statute which prevails. But, for the reasons explained below, there is no variance in this case. In the view of the Appeals Chamber, there is a requirement for the exercise of due diligence by a party moving under Rule 115.

37.     Article 25, paragraph 1, of the Statute provides for appeals on two grounds, namely, “an error on a question of law invalidating the decision” and “an error of fact which has occasioned a miscarriage of justice”. The first error is clearly an error committed by the Trial Chamber. That, in principle, would seem to be also the case with the second error. But it is difficult to see how the Trial Chamber may be said to have committed an error of fact where the basis of the error lies in additional evidence which, through no fault of the Trial Chamber, was not presented to it. Where evidence was sought to be presented to the Trial Chamber but was wrongly excluded by it, there is no need for recourse to the provisions relating to the production of additional evidence to the Appeals Chamber; there the Trial Chamber would have committed an error appealable in the ordinary way.

38.     It is only by construing the reference to “an error of fact” as meaning objectively an incorrectness of fact disclosed by relevant material, whether or not erroneously excluded by the Trial Chamber, that additional material may be admitted. Such an extension of the concept of an “error of fact” as being not restricted to an error committed by the Trial Chamber may be required by justice; but justice would also require the accused to show why the additional evidence could not be presented to the Trial Chamber in exercise of the rights expressly given to him by the Statute. It would be right to hold that the purpose of the Statute in giving those rights was that the accused should exercise due diligence in utilising them. This would exclude cases in which the failure to exercise those rights was due to lack of diligence.

[…]

40.     The compulsory and protective machinery of the International Tribunal may not always be able to give total assurance that witnesses will be both available and protected if necessary. That is all the more reason why the machinery at the disposal of the International Tribunal should be used. A party seeking leave to present additional evidence should show that it has sought protection for witnesses from the Trial Chamber where appropriate, and that it has requested the Trial Chamber to utilise its powers to compel witnesses to testify if appropriate. Any difficulties, including those arising from intimidation or inability to locate witnesses, should be brought to the attention of the Trial Chamber.

[…]

42.     By the time proceedings have reached the Appeals Chamber, evidence relevant to the culpability of the accused has already been submitted to a Trial Chamber to enable it to reach a verdict and a sentence, if he is found guilty. From the judgement of the Trial Chamber there lies an appeal to the Appeals Chamber. The corrective nature of that procedure alone suggests that there is some limitation to any additional evidentiary material sought to be presented to the Appeals Chamber; otherwise, the unrestricted admission of such material would amount to a fresh trial. Further, additional evidence should not be admitted lightly at the appellate stage, considering that Rule 119 provides a remedy in circumstances in which new facts are discovered after the trial.

43.     Consideration may be given to the consequences of the opposite holding that additional evidence may be presented to the Appeals Chamber even where, through lack of diligence, it was not presented to the Trial Chamber though available. The Prosecutor can appeal from an acquittal. She may seek to reverse the acquittal on the basis of an error of fact disclosed by additional evidence. If the additional evidence was available to her but not presented to the Trial Chamber through lack of diligence, the accused is in effect being tried a second time. In substance, the non bis in idem prohibition is breached.

44.     The Appeals Chamber therefore finds that the position under the Statute is as indicated above and cannot be cut down by reference to any apparent discrepancy in the wording of Rules 115 and 119 of the Rules. The word “apparent” is used because, on a proper construction, Rule 115 is to be read in the light of the Statute; it is therefore subject to requirements of the Statute which have the effect of imposing a duty to be reasonably diligent. Where evidence is known to an accused person, but he fails through lack of diligence to secure it for the Trial Chamber to consider, he is of his own volition declining to make use of his entitlements under the Statute and of the machinery placed thereunder at his disposal; he certainly cannot complain of unfairness.

45.     In summary, additional evidence is not admissible under Rule 115 in the absence of a reasonable explanation as to why it was not available at trial. Such an explanation must include compliance with the requirement that the moving party exercised due diligence. This conclusion is consistent with the Statute and with the jurisprudence of many countries; it is not, however, dependent on that jurisprudence.

[…]

3.       Material which existed at trial but of which the Defence was unaware

[…]

58.     […] While the Defence is required to use due diligence to identify and seek out witnesses, there are limits to this obligation. The Appeals Chamber finds that the Appellant has provided sufficient indication that these witnesses and materials were unknown to the Defence, despite the exercise of due diligence, and thus not available at the time of trial […].

4.       Material which the Appellant was unable to adduce at trial

59.     This category relates to witnesses of whom the Defence was aware at the time of trial but whose evidence they were unable to produce. The material under this heading may be divided into three sub-categories: witnesses who were unwilling or unable to come forward at the trial stage, for example, witnesses who were imprisoned at the time; witnesses alleged to have been intimidated; and potential witnesses who could not be located at the time of trial.

60.     First, then, there is the category of potential witnesses who were simply unwilling to come forward at the trial stage but are now willing to do so at the appeal stage. […] No evidence has been submitted to the Appeals Chamber to indicate that any request was made to the Trial Chamber for the issue of subpoenas to compel the attendance of these witnesses. Despite the obvious practical difficulties in obtaining the evidence of such witnesses, a party cannot later seek to have such material admitted as additional evidence unavailable at trial unless it has raised the issue with the Trial Chamber at the time. As discussed above, the requirement of due diligence is not satisfied where there is insufficient attempt to invoke such coercive measures as were at the disposal of the International Tribunal. Therefore, it cannot be said that the evidence of these three witnesses was not available at trial.

[…]

62.     The second category is a substantial one. It relates to potential witnesses who were known to the Defence at the time of trial but who are said to have been intimidated by persons in authority in the former Yugoslavia. […] Again, in the absence of any evidence to demonstrate that attempts were made to obtain such protection for these witnesses as the International Tribunal could offer, the Appeals Chamber finds that reasonable diligence was not exercised. Consequently, the testimony of these witnesses cannot be said to have been unavailable at trial.

[RULE 115 OF THE ICTY RULES WAS SUBSEQUENTLY AMENDED ON 12 July 2002, 30 September 2002, and 21 July 2005]

66.     Also in this category are the 11 expert witnesses whom the Appellant would now like to call. […] Barring exceptional circumstances, which are not made out in this case, it is difficult to think of circumstances which would show that expert witnesses were not available to be called at trial despite the exercise of reasonable diligence. The evidence of these experts, and the related documents […], cannot be said to have been unavailable at trial for the purposes of Rule 115.

[RULE 115 OF THE ICTY RULES WAS SUBSEQUENTLY AMENDED ON 12 July 2002, 30 September 2002, and 21 July 2005]

52.     A preliminary matter of a general nature concerns the burden of proof. The question at issue in this Motion is whether the Appellant is entitled to a right given to him by the appeal process which he has invoked. It is for him to establish his entitlement to the right which he claims. Accordingly, it is for the Appellant to prove the elements of the entitlement.

53.     In the absence of any explanation as to why certain items now sought to be admitted were not available at trial, the Appeals Chamber finds that the Appellant has failed to discharge his burden of proof in respect of these items to its satisfaction. […]

G.      Interests of Justice

69.     As mentioned above, the Appeals Chamber finds that the following items were not available at trial within the meaning of Rule 115 (A): […] In relation to these items and […] the evidence of witness D.D., it will accordingly be necessary to consider the operation of the criteria relating to the interests of justice.

70.     If the Appeals Chamber at this stage authorises the presentation of additional evidence, it will be for the Chamber at a later stage to decide whether the evidence discloses an “error of fact which has occasioned a miscarriage of justice” within the meaning of Article 25, paragraph 1(b), of the Statute. At this stage, the Chamber cannot pre-empt this decision by definitively deciding that the proposed evidence does or does not disclose “an error of fact which has occasioned a miscarriage of justice”.

71.     The task of the Appeals Chamber at this stage is to apply the somewhat more flexible formula of Rule 115 of the Rules, which requires the Chamber to “authorise the presentation of such evidence if it considers that the interests of justice so require”. For the purposes of this case, the Chamber considers that the interests of justice require admission only if:

          (a) the evidence is relevant to a material issue;

          (b) the evidence is credible; and

          (c) the evidence is such that it would probably show that the conviction was unsafe.

72.     The Appeals Chamber would only add that, in applying these criteria, account has to be taken of the principle of finality of decisions. As mentioned above, the principle would not operate to prevent the admission of evidence that would assist in determining whether there could have been a miscarriage of justice. But clearly the principle does suggest a limit to the admissibility of additional evidence at the appellate stage.

73.     The Appeals Chamber also considers that, in applying these criteria, any doubt should be resolved in favour of the Appellant in accordance with the principle in dubio pro reo.

[RULE 115 OF THE ICTY RULES WAS SUBSEQUENTLY AMENDED ON 12 July 2002, 30 September 2002, and 21 July 2005]

21. The instant appeals are filed pursuant to Sub-rule 108 (B). However, the starting point in considering whether the Appeals may be maintained is Article 24 of the Statute of the ICTR. That statutory provision gives the Appeals Chamber authority to hear appeals from “persons convicted by the Trial Chamber or from the Prosecutor” (emphasis added). Clearly, the Appellant does not fall into either category.

22. However, even in instances when a person is not appealing from a conviction, the Appeals Chamber has jurisdiction to hear certain matters which are interlocutory in nature. Rule 72 explicitly allows for an appeal from a judgement dismissing an objection based on lack of jurisdiction. The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (“ICTY”) in The Prosecutor v. Dusko Tadić (“Tadić Appeals Decision”) has upheld the legality of an appeal in these circumstances. It interpreted Rule 72 of the Rules of Procedure and Evidence of the ICTY (“ICTY Rules”) which was then identical to ICTR Rule 72 and allowed an interlocutory appeal from a dismissal based on lack of jurisdiction. The Appeals Chamber stated:

“Such a fundamental matter as the jurisdiction of the International Tribunal should not be kept for decision at the end of a potentially lengthy, emotional and expensive trial…Would the higher interest of justice be served by a decision in favour of the accused, after the latter had undergone what would then have to be branded as an unwarranted trial. After all, in a court of law, common sense ought to be honoured not only when facts are weighed, but equally when laws are surveyed and the proper rule is selected. In the present case, the jurisdiction of this Chamber to hear and dispose of Appellant’s interlocutory appeal is indisputable.”[2]

53. […] The States and Entities of the former Yugoslavia are obliged to cooperate with the International Tribunal in such a manner as to enable the International Tribunal to discharge its functions. This obligation (which, it should be noted, was restated in the Dayton and Paris Accords), also requires them to allow the Prosecutor and the defence to fulfil their tasks free from any possible impediment or hindrance.

54. […] [W]henever [a State’s] implementing legislation [of the International Tribunal’s Statute] turns out to be in conflict with the spirit and the word of the Statute, a well-known principle of international law can be relied upon to prevent States from shielding behind their national law in order to evade international obligations[1].

See also para. 26.