101. The Appeals Chamber considers that the Trial Chamber could have taken into account the fact that the request was made late in the proceedings in assessing, for example, whether the facts sought to be judicially noticed were relevant to the Appellant’s case. However, the Trial Chamber erred in rejecting the Defence Motion for Judicial Notice solely on the basis of its late filing. The Trial Chamber should have considered whether the facts at issue were facts of common knowledge and, if so, whether they were relevant to the Appellant’s case. While the Trial Chamber erred in dismissing the application on the grounds that it was untimely, the Appeals Chamber is not satisfied that the facts submitted by the Appellant were capable of being judicially noticed by the Trial Chamber. The information contained in these documents regarding the movements of the troops of Operation Turquoise would certainly not qualify as facts that are commonly accepted or universally known or beyond reasonable dispute. As a consequence, the Appeals Chamber finds that the Trial Chamber erred in rejecting the Defence Motion for Judicial Notice for lateness but considers that this error did not invalidate the decision.

165. […][W]hilst a Trial Chamber is required to take into account any mitigating circumstances in determining a sentence, it is the accused who bears the burden of establishing mitigating factors by a preponderance of the evidence.[1] It was the Appellant’s prerogative to address sentencing submissions during closing arguments and to identify any mitigating circumstances in the trial record.[2] Having failed to specifically refer, in his Final Trial Brief or Closing Arguments, to the Defence evidence adduced during trial that he assisted several Tutsis in a camp in Mugunga after the genocide as a mitigating circumstance, the Appellant cannot raise it for the first time on appeal.[3] The Trial Chamber was not under an obligation to seek out information that Counsel did not put before it at the appropriate time.[4] The Appellant’s arguments in this respect are dismissed.

158. The Appeals Chamber reiterates that in assessing the individual circumstances of the accused, the Trial Chamber shall consider aggravating and mitigating circumstances.[1] The Appeals Chamber recalls that neither the Statute nor the Rules exhaustively define the factors which may be considered in mitigation. Rather, what constitutes a mitigating circumstance is a matter for the Trial Chamber to determine in the exercise of its discretion.[2] The Trial Chamber is endowed with a considerable degree of discretion in making this determination,[3] as well as in deciding how much weight, if any, to be accorded to the mitigating circumstances identified.[4]

154. The Appeals Chamber considers that, pursuant to Article 23 of the Statute and Rule 101 of the Rules, the Trial Chamber was not obliged to take into account the sentencing practice of national jurisdictions other than Rwanda. […]

151. […] The Appeals Chamber reiterates that the Trial Chamber is only obliged to have regard to the gravity of the crimes for which an accused has been convicted, and the form or degree of responsibility for these crimes. […]

22. Pursuant to Article 19(1) of the Statute, the Trial Chamber is required to guarantee a fair and expeditious trial with full respect for the rights of the accused. However, it is not for the Trial Chamber to dictate to a party how to conduct its case.

80. As discussed in connection with the Second Ground of Appeal, the Trial Chamber did not err in determining that any violation of a court order interferes with the administration of justice.[1] Consequently, it correctly stated that the mens rea requirement for contempt under Rule 77(A) of the Rules is satisfied by proof of “any knowing and wilful conduct in violation of a Chamber’s order”.[2]

85. Furthermore, the Trial Chamber also fully considered the fact that Nshogoza was acting on the instructions and advice of the Lead Counsel.[3] However, the fact that he was following orders of a superior has no bearing on whether he possessed the requisite mens rea,[4] which, as stated above, is simply the knowing and wilful violation of a court order. Consequently, Nshogoza has failed to demonstrate any error in the Trial Chamber’s findings relating to the mens rea.

99. The Appeals Chamber considers, Judges Robinson and Güney dissenting, that the Trial Chamber properly considered the particular circumstances surrounding Nshogoza’s specific conduct. The Trial Chamber did not merely focus on contempt as an inherently grave offence, but addressed the gravity of the particular way in which Nshogoza committed contempt. It found that, by breaching the Kamuhanda Protective Measures Order, Nshogoza “undermined the authority of the Kamuhanda Trial Chamber, as well as confidence in the effectiveness of protective measures, and the administration of justice.”[1] The Trial Chamber did not merely focus on Nshogoza’s defiance of the authority of the Tribunal, but considered more specifically that his conduct “may also have the effect of dissuading witnesses from testifying before it.”[2] The Appeals Chamber does not deem that it was necessary for the Trial Chamber to have found that Witnesses GAA and A7/GEX lost confidence in their protective measures or that other witnesses were dissuaded from appearing before the Tribunal for it to consider that a breach of a protective measures order may have the effect of dissuading witnesses from testifying before the Tribunal.

65. Furthermore, the fact that the trial had concluded or that the protected witnesses may have approached Nshogoza did not in any way terminate their protected status. Rule 75(F) of the Rules states that protective measures once ordered continue to have effect in any proceeding before the Tribunal until rescinded, varied, or augmented.[1] In addition, the Kamuhanda Witness Protection Order clearly states that “the [protected] witness does not have the right, without authorization from the Chamber, to disclose his or her identity freely.”[2] This measure was added by the Trial Chamber proprio motu and was not challenged by the Kamuhanda Defence.

66. Although in some circumstances such a measure might be considered onerous, the Appeals Chamber is unable to determine that it was unreasonable or unjustified as a means of ensuring that any waiver is fully informed and voluntary given the information submitted by the Prosecution to the Trial Chamber at the time and the prevailing security climate. Furthermore, Nshogoza has failed to demonstrate why, in the particular circumstances of this case, it would have been impractical or particularly onerous to seek a variation of the Kamuhanda Witness Protection Order before proceeding with further contact with the protected witnesses. Indeed, at the relevant time of the contact, this case remained before either the Trial Chamber or the Appeals Chamber and thus an urgent, and even ex parte, application could have been made.[3]

67. The Appeals Chamber recognizes that such measures might stifle effective Defence investigations where the Prosecution qualifies an excessive number of individuals as potential Prosecution witnesses, in particular without even ascertaining their willingness to appear. However, the Appeals Chamber is not satisfied that this was the case here. Witness A7/GEX was clearly identified to the Kamuhanda Defence as a potential witness willing to appear for the Prosecution on 26 March 2001 shortly before the trial.[4] Nshogoza’s contention that the witness protection measures for Witness A7/GEX should have lapsed at the conclusion of the trial fails to appreciate the Tribunal’s interest in protecting individuals who have agreed to cooperate and provide statements on a confidential basis. Potential witnesses who did not eventually testify may face similar risks as those who did, for instance by virtue of their cooperation with either party. Those who decided not to testify out of fear might also require continued anonymity, depending on the circumstances. In any case, even if Nshogoza were correct that the prohibitions on contact with this particular witness were no longer applicable, it cannot reasonably be argued that he had the right to disclose information, which had been consistently treated as confidential, to third parties without official sanction from a Chamber.

17. The Appeals Chamber recalls that, for the purposes of Rule 115 of the Rules, whether the proffered evidence was available at trial is not merely a question of whether the evidence was “available” in a literal sense.[1] The applicant bears the burden of demonstrating that he acted with due diligence in obtaining the evidence and bringing it before the Trial Chamber.[2]

18. […] In order to establish whether, in seeking the admission of the untranslated documents Lukić acted with due diligence, the Appeals Chamber will need to address Lukić’s submission that the Trial Chamber obstructed his efforts to obtain appropriate translations. However, given that the latter issue bears on the merits of Lukić’s appeal, the Appeals Chamber will refrain from making such a determination at this juncture. […] Therefore, in light of the particular circumstances of this case, the pending resolution of Lukić’s appeal on the merits, and the interests of fairness, the Appeals Chamber finds that documents […] should be regarded as having been unavailable to Lukić for the purposes of Rule 115 of the Rules. […]

20. […] Considering that the duty to act with due diligence requires the parties “to make the best case in the first instance”,[3] the Appeals Chamber finds Lukić’s argument that he could not have anticipated the Trial Chamber’s interpretation of the evidence unpersuasive. Moreover, the Appeals Chamber recalls that it is the settled jurisprudence of this Tribunal that the appeal process is not designed for the purpose of allowing the parties to remedy their own failings or oversights during trial.[4]