11. The Appeals Chamber recalls that JCE must be specifically pleaded in the indictment.[1] The Prosecution must plead the nature and purpose of the enterprise, the period over which the enterprise is said to have existed, the identity of the participants, and the nature of the accused’s participation therein.[2] In order for an accused to fully understand the acts for which he is allegedly responsible, the indictment should further clearly indicate which form of JCE is being alleged: basic, systemic, or extended.[3] Since the three forms of JCE vary with respect to the mens rea element, the indictment must also plead the mens rea element of each category on which the Prosecution intends to rely.[4]

12. While the Amended Indictment states that Uwinkindi “willfully [sic] and knowingly participated in a joint criminal enterprise”, it does not specify which form of JCE is charged and consequently also fails to plead Uwinkindi’s mens rea.[5] This renders the Amended Indictment defective and the Trial Chamber erred in failing to find so.

6. A trial chamber’s decision on defects in the form of the indictment is a matter which relates to the general conduct of trial proceedings and thus falls within the discretion of the trial chamber. In order to successfully challenge a discretionary decision, a party must demonstrate that the trial chamber has committed a “discernible error” resulting in prejudice to that party. The Appeals Chamber will only overturn a trial chamber’s discretionary decision where it is found to be: (i) based on an incorrect interpretation of governing law; (ii) based on a patently incorrect conclusion of fact; or (iii) so unfair or unreasonable as to constitute an abuse of the trial chamber’s discretion.

p. 4: CONSIDERING that Serbia should resolve any difficulties with respect to the issuance of a valid identification document for one of its citizens detained abroad

For the overview of the applicable law, please see paragraphs 6 – 12 of the Decision.

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.