134. The Appeals Chamber recalls that a trial chamber has the discretion to rely upon evidence of accomplice witnesses. However, when weighing the probative value of such evidence, the trial chamber is bound to carefully consider the totality of the circumstances in which it was tendered. In particular, consideration should be given to circumstances showing that accomplice witnesses may have motives or incentives to implicate the accused person before the Tribunal or to lie.[1] The Appeals Chamber also recalls that evidence of witnesses who might have motives or incentives to implicate the accused is not per se unreliable, especially where such a witness may be thoroughly cross-examined; therefore, reliance upon this evidence does not, as such, constitute an error of law.[2] However, a trial chamber must explain the reasons for accepting the evidence of such a witness.[3] Particularly relevant factors for the assessment of accomplice witnesses’ credibility include:

the extent to which discrepancies in the testimony were explained; whether the accomplice witness has made a plea agreement with the Prosecution; whether he has already been tried and, if applicable, sentenced for his own crimes or is still awaiting the completion of his trial; and whether the witness may have any other reason for holding a grudge against the accused.[4]

135. A trial chamber’s discretion to rely on uncorroborated, but otherwise credible, witness testimony applies equally to the evidence of witnesses who may have motive to implicate the accused, provided that appropriate caution is exercised in the evaluation of their testimonies.[5]

131. The Appeals Chamber recalls that a trial chamber is best placed to assess the credibility of a witness and reliability of the evidence adduced,[1] and therefore has broad discretion in assessing the appropriate weight and credibility to be accorded to the testimony of a witness.[2] Indeed, the ICTR Appeals Chamber has previously noted that it “is loathe to disturb such credibility assessments”.[3] As with other discretionary decisions, the question before the Appeals Chamber is not whether it “agrees with that decision” but “whether the trial chamber has correctly exercised its discretion in reaching that decision”.[4] The party challenging a discretionary decision by the trial chamber must demonstrate that the trial chamber has committed a discernible error. The Appeals Chamber will only overturn a trial chamber’s discretionary decision where it is found to be: (1) based on an incorrect interpretation of governing law; (2) based on a patently incorrect conclusion of fact; or (3) so unfair or unreasonable as to constitute an abuse of discretion.[5] In such cases the Appeals Chamber will deem that the witness evidence relied on by the Trial Chamber could not have been accepted by any reasonable tribunal of fact or that the evaluation of the evidence was “wholly erroneous”, and proceed to substitute its own finding for that of the Trial Chamber.[6]

132. The Appeals Chamber is mindful that when exercising its broad discretion, a trial chamber has to consider relevant factors on a case-by-case basis, including the witness’s demeanour in court; his role in the events in question; the plausibility and clarity of his testimony; whether there are contradictions or inconsistencies in his successive statements or between his testimony and other evidence; any prior examples of false testimony; any motivation to lie; and the witness’s responses during cross-examination.[7] The Appeals Chamber recalls that the many potential factors relevant to the trial chamber’s assessment of a witness’s credibility include corroboration,[8] the witness’s close personal relationship to an accused,[9] and the witness’s criminal history.[10] The application of these factors, and the positive or negative impact they may have on the witness’s credibility, varies according to the specific circumstances of each case.[11] Finally, a trial chamber can reasonably accept certain parts of a witness’s testimony and reject others.[12]

133. The Appeals Chamber recalls that a trial chamber is not required to set out in detail why it accepted or rejected a particular testimony,[13] and that an accused’s right to a reasoned opinion does not ordinarily demand a detailed analysis of the credibility of particular witnesses.[14] However, a trial chamber must provide reasons for accepting testimony despite alleged or material inconsistencies when it is the principal evidence relied upon to convict an accused.[15]

[…]

136. The Appeals Chamber recalls that it is not an error of law per se to accept and rely on evidence that is inconsistent with a prior statement or other evidence adduced at trial.[16] A trial chamber has the discretion to accept a witness’s evidence, notwithstanding inconsistencies between the said evidence and his previous statements.[17] However, a trial chamber must take into account any explanations offered for such inconsistencies when determining the probative value of the evidence.[18]

137. Similarly, a trial chamber has the discretion to evaluate any inconsistencies that may arise within or among witnesses’ testimonies and to determine whether, in the light of the overall evidence, the witnesses were reliable and credible.[19] Considering that minor inconsistencies commonly occur in witness testimony without rendering it unreliable, it is within the discretion of a trial chamber to evaluate discrepancies and to consider the credibility of the evidence as a whole, without explaining its decision in every detail.[20]

143. The Appeals Chamber notes that a trial chamber has the discretion to rely upon evidence of accomplice witnesses.[1] However, when weighing the probative value of such evidence, the trial chamber is bound to carefully consider the totality of the circumstances in which it was tendered. In particular, consideration should be given to circumstances showing that accomplice witnesses may have motives or incentives to implicate the accused person before the Tribunal or to lie.[2]

144. In the present case, the Trial Chamber was well aware of the criminal records of Witnesses SLA and SAT.[3] It also acknowledged that the witnesses were accomplices of Setako with regard to the killings on 25 April 1994 and, precisely for this reason, stated that it would view their evidence with caution.[4] It considered various credibility issues raised by the Defence, including allegations of fabrication and manipulation of evidence,[5] and, “out of an abundance of caution”, only accepted the witnesses’ evidence about the events at Mukamira camp where they corroborated each other.[6]

145. In these circumstances, the Appeals Chamber finds that it was not unreasonable for the Trial Chamber to rely on the evidence of Witnesses SLA and SAT. The Appeals Chamber discerns no error in the Trial Chamber’s conclusion that the witnesses, who had not previously confessed to crimes with respect to 25 April 1994, exposed themselves to the risk of being held accountable for them in future criminal proceedings before Rwandan judicial authorities. The fact that they testified as protected witnesses did not render this consideration unreasonable.

188. The Appeals Chamber recalls that it is primarily for the trier of fact to determine whether a particular witness may have an incentive to distort the truth.[1] However, the mere fact that the Defence witnesses lived or found refuge at Mukamira camp due to their relationships with soldiers does not in and of itself imply that they gave a tainted account in order to protect Setako from criminal responsibility. This Tribunal has considered that, under certain circumstances, the fact that a witness was saved by the accused may be relevant to the witness’s credibility assessment.[2] Setako does not appear to have played any role in the protection of the Defence witnesses. The trial record also does not reveal any other evidence that the Defence witnesses were biased in favour of Setako.[3]

189. Similarly, the fact that Witness NBO’s husband was related to an accused before this Tribunal does not necessarily indicate that she would have distorted her testimony to the benefit of Setako. In particular, the Appeals Chamber observes that her husband’s relative was not implicated in any charges concerning killings at Mukamira camp.

The Prosecution argued that the Trial Chamber erred in not applying Rules 70(G) and 89(D) after the Trial Chamber heard General Clark’s testimony.[1] The Appeals Chamber held that the Trial Chamber correctly applied the Rules.[2] It then held:

18. Furthermore, this analysis does not change simply because the Trial Chamber was considering whether to admit a Rule 70 witness subject to conditions imposed by a Rule 70 provider. While Rule 70(C) and (D) of the Rules refers to certain restrictions on a Trial Chamber in hearing a witness testify to confidential material provided by a Rule 70 provider, those restrictions apply only after the Trial Chamber has determined that the Rule 70 witness testimony “elected” to be presented by a party at trial[3] is admissible under Rule 89 of the Rules. In making that determination, a Trial Chamber is entitled under Rule 70(G) of the Rules to consider whether the Rule 70 restrictions stipulated with respect to that witness testimony would undermine the need to ensure a fair trial and substantially outweigh the testimony’s probative value such as to lead to exclusion of that testimony. A Trial Chamber is not obliged to automatically admit such Rule 70 witness testimony where it is deemed relevant and probative and, only afterwards, asses the actual unfairness caused to the trial by the Rule 70 conditions as applied. The Appeals Chamber recalls that Rule 70 protections on confidential information provided by States have been incorporated in the International Tribunal’s Rules in recognition of the need of States for safeguards with respect to certain State interests. They have also been included to allow and to encourage States to fulfil their cooperation obligations under Article 29 of the Tribunal’s Statute[4] by providing a broad range of information relevant to a particular case.[5] However, this deference to States’ interests does not go so far as to supersede a Trial Chamber’s authority to maintain control over the fair and expeditious conduct of the trial.[6] In sum, under Rules 70(G) and 89(D) of the Rules, a Trial Chamber may, as the Trial Chamber did here, assess the conditions placed upon proposed Rule 70 witness testimony and determine, without hearing that testimony, that it may not be admitted on the basis that the Rule 70 conditions would result in substantial unfairness to the trial, which outweighs that testimony’s probative value.

19. The Appeals Chamber further finds that the Prosecution’s citation to the Martić Decision in support of its interpretation of the test under Rules (70G) and 89(D) of the Rules is inapposite. While in that decision the Appeals Chamber similarly considered whether limitations on the cross-examination of witness testimony would result in substantial unfairness to the trial which outweighs its probative value and thereby requires its exclusion under Rule 89(D) of the Rules, the question arose after the testimony had already been admitted by the Trial Chamber and only because of the unexpected death of the witness prior to the close of cross-examination. The Appeals Chamber in the Martić Decision did not address whether proposed witness testimony may be excluded prior to its admission under Rule 89(D) of the Rules because of the need to ensure a fair trial. Nor did it consider possible exclusion of proffered witness testimony because it was subject to Rule 70 conditions.

31. Turning to the Appellant’s contention in relation to Witness YH,[1] the Appeals Chamber recalls that the Prosecutor has independent authority to initiate investigations on statutory crimes and to assess whether the information forms a sufficient basis to proceed against persons suspected of having committed such crimes.[2] However, Rule 91(B)(i) of the Rules specifically provides that “[i]f a Chamber has strong grounds for believing that a witness has knowingly and wilfully given false testimony, it may direct the Prosecutor to investigate the matter with a view to the preparation and submission of an indictment for false testimony”. Such action lies within the discretion of the Trial Chamber and is contingent on its conviction that a witness “has knowingly and wilfully given false testimony”.[3] On the other hand, a credibility determination may be based, but does not necessarily depend, on a judicial finding that a witness has given false testimony.[4]

32. The Appeals Chamber stresses that the mere existence of discrepancies between a witness’s testimony and his earlier statements does not constitute strong grounds for believing that a witness may have knowingly and wilfully given false testimony.[5] […]

33. In any event, the Appeals Chamber is only required to grant relief for a violation of the Rules where a party has objected in a timely manner and has suffered material prejudice.[6] The Appellant clearly fails to show how the Oral Decision of 23 September 2004 has prejudiced him. The Appeals Chamber recalls that an investigation for false testimony is only ancillary to proceedings and does not necessarily affect the rights of an accused.

52. The Appeals Chamber has already held that the right to cross-examination is not absolute.[1] It further noted that

application of a fair trial in favour of both parties is understandable because the Prosecution acts on behalf of and in the interests of the community, including the victims of the offences charged (in cases before the Tribunal the Prosecutor acts on behalf of the international community) […] Seen in this way, it is difficult to see how a trial could ever be considered fair where the accused is favoured at the expense of the Prosecution beyond a strict compliance with those fundamental protections.[2]

Of even more relevance for the issue at hand, since the Tribunal’s first cases, the jurisprudence has been constant in holding that, under the Tribunal’s system, a statement of a person made otherwise than in the proceedings in which it is tendered, whether orally by a witness or in writing is not inadmissible, in particular when the source of hearsay is known and subject to potential evaluation by a Chamber.[3] In particular, the Appeals Chamber found that Trial Chambers have a wide discretion in admitting hearsay evidence, although establishing the reliability of this type of evidence is of paramount importance when hearsay evidence is admitted as substantive evidence in order to prove the truth of its contents.[4]

53. A different matter is, of course, what weight a trier of fact is allowed to give to evidence not subjected to the testing of cross-examination. It is in this matter that the jurisprudence of the ECtHR is valuable, as it has authoritatively stated the principle that “all the evidence must normally be produced at a public hearing, in the presence of the accused, with a view to adversarial argument. There are exceptions to this principle, but they must not infringe the rights of the defence.”[5] Unacceptable infringements of the rights of the defence, in this sense, occur when a conviction is based solely, or in a decisive manner, on the depositions of a witness whom the accused has had no opportunity to examine or to have examined either during the investigation or at trial.[6] The ECtHR applied this reasoning to the statement of a co-accused in pre-trial proceedings in a case where neither the applicant nor his lawyer had been given the opportunity to question the co-accused at any stage of the proceedings.[7] The Appeals Chamber has already had occasion to elaborate on the fact that these principles serve as guidelines before the Tribunal.[8]

CONSIDERING that the Appeals Chamber has already stated that a prior statement may be used to refresh the memory of a witness under cross-examination;[1] and that the same conclusion should apply to the question of refreshing a witness’s memory during examination-in-chief;

77. […] The Appeals Chamber recalls that the Trial Chamber has the discretion to cautiously consider and rely on hearsay evidence.[1] […]

71. […] The Appeals Chamber recalls that the Trial Chamber has the main responsibility to resolve any inconsistencies that may arise within or among witnesses’ testimonies.[1] It is within the discretion of the Trial Chamber to evaluate any such inconsistencies, to consider whether the evidence taken as a whole is reliable and credible, and to accept or reject the fundamental features of the evidence.[2] The Appeals Chamber further recalls that “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]

103. […] Furthermore, corroboration does not require witnesses’ accounts to be identical in all aspects since “[e]very witness presents what he has seen from his own point of view at the time of the events, or according to how he understood the events recounted by others.” Rather, the main question is whether two or more credible accounts are incompatible.

118. […] The Appeals Chamber recalls that, when faced with competing versions of events, it is the duty of the Trial Chamber that heard the witnesses to determine which evidence it considers more probative. Based on the foregoing, the Appeals Chamber finds that it was reasonable for the Trial Chamber to accept the Prosecution evidence over Witness Nahimana’s account.

154. The Appeals Chamber recalls that the Trial Chamber has the main responsibility to resolve any inconsistencies that may arise within or among witnesses’ testimonies. […]

110. Finally, the Appeals Chamber recalls that the Trial Chamber has the primary discretion to decide whether or not a site visit is necessary or relevant for the assessment of evidence. […]

26. The Trial Chamber also noted the demeanour of the witnesses when confronted with the suggestion that Nteziryayo was not in fact the prefect in May 1994, which, in the Trial Chamber’s view, indicated that “they were confronted with an incorrect recollection rather than a lie.”[1] The assessment of the demeanour of witnesses in considering their credibility is one of the fundamental functions of a Trial Chamber to which the Appeals Chamber must accord considerable deference.[2] The Appeals Chamber has previously noted that it “is loathe to disturb such credibility assessments on review”.[3] The Appeals Chamber further recalls that it is not unreasonable for a trier of fact to accept some, but reject other parts of a witness’s testimony.[4] The Appeals Chamber, Judges Liu and Meron dissenting, is not convinced that it was unreasonable for the Trial Chamber, in the circumstances noted above, to have rejected the portion of the witnesses’ accounts relating to Nteziryayo’s position during the meeting as prefect. Consequently, Muvunyi has not shown that the Trial Chamber’s findings are wholly erroneous or that no reasonable trier of fact could have concluded that the meeting described by the Prosecution witnesses occurred in May 1994.[5]

26. The Trial Chamber also noted the demeanour of the witnesses when confronted with the suggestion that Nteziryayo was not in fact the prefect in May 1994, which, in the Trial Chamber’s view, indicated that “they were confronted with an incorrect recollection rather than a lie.”[1] The assessment of the demeanour of witnesses in considering their credibility is one of the fundamental functions of a Trial Chamber to which the Appeals Chamber must accord considerable deference.[2] The Appeals Chamber has previously noted that it “is loathe to disturb such credibility assessments on review”.[3] The Appeals Chamber further recalls that it is not unreasonable for a trier of fact to accept some, but reject other parts of a witness’s testimony.[4] The Appeals Chamber, Judges Liu and Meron dissenting, is not convinced that it was unreasonable for the Trial Chamber, in the circumstances noted above, to have rejected the portion of the witnesses’ accounts relating to Nteziryayo’s position during the meeting as prefect. Consequently, Muvunyi has not shown that the Trial Chamber’s findings are wholly erroneous or that no reasonable trier of fact could have concluded that the meeting described by the Prosecution witnesses occurred in May 1994.[5]

219. On this point, the Appeals Chamber refers to the opinion of the ICTY Appeals Chamber, which considers that in matters of evidence, there is no established rule that traumatic circumstances endured by a witness necessarily render his or her evidence unreliable.[1] In the instant case, it has not been demonstrated how the “trauma” would have rendered Witnesses AA and Q incapable of giving an accurate account of the events they experienced. Consequently, the Appeals Chamber considers that the Trial Chamber correctly held that the fact that a witness may forget or mix up small details is often as a result of trauma suffered and does not necessarily impugn his evidence in relation to the central facts of the crime.[2] Hence, the Appellant, by merely citing two paragraphs of the Judgement and raising general considerations, has in no way demonstrated the basis for his contention that the Trial Chamber in general discounted many contradictions in the evidence on grounds of trauma.

62. [...] There is no provision in the Rules that prohibits Judges from asking questions in order to contribute to discovering the truth or to try to corroborate or contradict the facts in issue. [...]

63. [...] As has already been recalled, the Rules allow Judges to ask questions, and Judges have a wide discretion to contribute to the discovery of the truth, including the power to confront one witness with the testimony of another. [...]

[...]

111. […] The Appeals Chamber recalls that it is up to the Judges to ask any questions that they deem necessary for the clarification of testimonies and for the discovery of the truth. […]

[…]

118. […] the Appeals Chamber considers that the questions fall entirely within the ambit of the Judge’s duty to contribute to the discovery of the truth, which implies, especially at the cross-examination phase, the possibility of testing witness credibility. […]

35. In its discussion in paragraph 28 of the Trial Judgement, the Trial Chamber noted that the Rules do not provide a standard to be relied upon for determining a witness’ “competency to testify” and therefore considered the “plain meaning” of the phrase,[1] finding that it “requires that the proposed witness has a basic capacity to understand the questions put to him and give rational and truthful answers to those questions.”[2] This approach is broadly similar to that set out in Rule 90(B) of the Rules, dealing with the testimony of children, which focuses on the ability of a child witness “to report the facts of which the child has knowledge and understands the duty to tell the truth”. Further, although the Trial Chamber did not refer to any jurisprudence on the issue, the Appeals Chamber notes that there is no established standard for a witness’ fitness to testify in the jurisprudence of the Tribunal upon which the Trial Chamber could have relied beyond the Strugar case.[3] In that case, the Trial Chamber rejected, in the context of a determination of the accused’s fitness to stand trial, the Defence’s submission that the accused was not fit to testify because he was “unable to ‘fully’ testify”.[4] In that case, the Trial Chamber’s analysis of the accused’s capacity to testify centred on his ability to answer questions put to him.[5] The Appeals Chamber considers that the Trial Chamber’s analysis in paragraph 28 of the Trial Judgement was in line with the Strugar decision. Additionally, the conclusion of the Trial Chamber in the instant case, that the question comes down to whether the witness’ evidence will have probative value, is clearly in line with Rule 89(C) of the Rules which sets the standard for the admission of evidence before the Tribunal.

47. The Appeals Chamber recalls that a Trial Chamber has full discretion to assess the appropriate weight and credibility to be accorded to the testimony of a witness.[1] In so doing, a Trial Chamber has to consider relevant factors on a case-by-case basis, including the witness’s demeanour in court; his role in the events in question; the plausibility and clarity of his testimony; whether there are contradictions or inconsistencies in his successive statements or between his testimony and other evidence; any prior examples of false testimony; any motivation to lie; and the witness’s responses during cross-examination.[2] Some factors are particularly relevant for the assessment of accomplice witnesses, including: the extent to which discrepancies in the testimony were explained;[3] whether the accomplice witness has made a plea agreement with the Prosecution; whether he has already been tried and, if applicable, sentenced for his own crimes or is still awaiting the completion of his trial;[4] and whether the witness may have any other reason for holding a grudge against the accused.[5] Corroboration is also one of many potential factors relevant to the Trial Chamber’s assessment of a witness’s credibility.[6] The application of these factors, and the positive or negative impact they may have on the witness’s credibility, varies according to the specific circumstances of each case.

201. The Appeals Chamber recalls that it is not a legal error per se to accept and rely on evidence that deviates from a prior statement or other evidence adduced at trial.[7] However, a Trial Chamber is bound to take into account any explanations offered in respect of inconsistencies when weighing the probative value of the evidence.[8] In this case, the Trial Chamber explicitly considered the Appellant’s contention at trial that Witness LAG “made some prior inconsistent statements.”[9] The Appellant has not articulated either how the Trial Chamber erred in evaluating the prior statements or how the particular inconsistencies raised here could potentially result in the Trial Judgement being reversed or revised.

31. The Appellants’ also misconstrue the Limaj Decision in arguing that it stands for the proposition that the contents of any previous inconsistent statement may only be received into evidence for assessing the credibility of the witness. To the contrary, the Limaj Decision affirms that such evidence may be admitted as hearsay evidence for the truth of its contents when it fulfills the criteria under the Tribunal’s Rules of being relevant and sufficiently reliable to be accepted as probative.[1] It also bears noting that this approach is consistent with the position at common law which has evolved alongside developments in the law on hearsay in recent years to allow for the admission of a prior inconsistent statement adduced in this manner for the truth of its contents.[2] While the position at common law is in no way determinative of the issue, it would seem unsound to adopt a stricter approach on this point.

96. It is not a legal error per se to accept and rely on evidence that varies from prior statements or other evidence. However, a Trial Chamber is bound to take into account inconsistencies and any explanations offered in respect of them when weighing the probative value of the evidence.[1] […]

21. As noted above, Trial Chambers exercise discretion in relation to the conduct of proceedings before them.[1] The Appeals Chamber notes that in the Orić case,[2] the ICTY Appeals Chamber held that:

[a]lthough Rule 73ter gives the Trial Chamber the authority to limit the length of time and the number of witnesses allocated to the defence case, such restrictions are always subject to the general requirement that the rights of the accused pursuant to Article 21 of the Statute of the International Tribunal be respected. Thus, in addition to the question whether, relative to the time allocated to the Prosecution, the time given to the Accused is reasonably proportional, a Trial Chamber must also consider whether the amount of time is objectively adequate to permit the Accused to set forth his case in a manner consistent with his rights. [3]

Consequently, the Appeals Chamber must determine whether in ordering the Appellant to reduce the number of his witnesses, the Trial Chamber took into consideration the complexity of the Appellant’s case and determined that the maximum number of witnesses allotted to him was sufficient to allow the Appellant a fair opportunity to present his defence.

24. […] As already stated, the Appeals Chamber is satisfied that it was well within the discretion of the Trial Chamber to reduce the number of witnesses to be called by the Appellant by reference to the Pre-Defence Brief and “will-say” statements. The Appeals Chamber is further satisfied that in basing its decision on a consideration of the evidence to be adduced by the proposed witnesses, the Trial Chamber properly considered whether reducing the number of the Appellant’s witnesses to a maximum of thirty would still allow the Appellant the opportunity to present an adequate defence. Accordingly, the Appeals Chamber finds no error on the part of the Trial Chamber.

177. […] A trial chamber’s assessment of the witness’s demeanour may be implicit in the Trial Chamber’s assessment of the witness’s credibility.[1]

42. The Appeals Chamber recalls that under Rule 90(F) of the Rules, the trial chamber “shall exercise control over the mode and order of interrogating witnesses and presenting evidence so as to: (i) [m]ake the interrogation and presentation effective for the ascertainment of the truth; and (ii) [a]void needless consumption of time.” Trial chambers therefore enjoy discretion in setting the parameters of cross-examination.[1] When addressing a submission concerning the modalities of cross-examination, the Appeals Chamber must ascertain whether the Trial Chamber properly exercised its discretion and, if not, whether the accused’s defence was substantially affected.[2]

238. The Appeals Chamber recalls that collusion has been defined as an agreement, usually secret, between two or more persons for a fraudulent, unlawful, or deceitful purpose.[1] If an agreement between witnesses for the purpose of untruthfully incriminating an accused were indeed established, their evidence would have to be excluded pursuant to Rule 95 of the Rules.[2] However, a mere risk of collusion is insufficient to exclude evidence under Rule 95 of the Rules.

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.

It is in the discretion of the Trial Chamber to apply Rule 90(E) to compel a witness to answer a question which may incriminate the witness. The Trial Chamber may in particular decline to use its power under Rule 90(E) if the question is not related to the facts of the case and only relevant to the overall credibility of the witness (para. 254):

254.    In the view of the Appeals Chamber, the question about the transport of Interahamwe in northern Rwanda had very little relevance to the facts of the present case, or to the subject-matter of Augustin Ndindiliyimana’s testimony. Counsel for the Prosecution argued that the question was necessary to test the witness’ credibility. Under Rule 90(G)(i) of the Rules, questions about matters affecting the credibility of a witness may be asked during cross-examination. However, the possibility to ask questions to test the credibility of a witness is not unlimited.The Appeals Chamber has already observed that Augustin Ndindiliyimana was not an accomplice in the ordinary meaning of the word, but is only charged with similar offences as Bagambiki and Imanishimwe. The question the Prosecution wanted to put to the witness concerned a very specific matter, which was only in the most general way related to the criminal charges against the Accused. Taking into consideration the very limited scope of Augustin Ndindiliyimana’s testimony, the Appeals Chamber finds that the Prosecution has not demonstrated that this particular question was relevant to determining the reliability of Augustin Ndindiliyimana’s testimony in the present case. The Appeals Chamber does not find that the Trial Chamber erred in law when it declined to compel the witness under Rule 90(E) of the Rules to answer the question.

9.       Rule 108(B) of the Rules provides:

If a Chamber or Single Judge has strong grounds for believing that a witness has knowingly and wilfully given false testimony, it shall refer the matter to the President who shall designate a Single Judge who may:

(i) direct the Prosecutor to investigate the matter with a view to the preparation and submission of an indictment for false testimony; or    

(ii) where the Prosecutor, in the view of the Single Judge, has a conflict of interest with respect to the relevant conduct, direct the Registrar to appoint an amicus curiae to investigate the matter and report back to the Single Judge as to whether there are sufficient grounds for instigating proceedings for false testimony.

10.     What constitutes “strong grounds” represents a heightened threshold for initiating investigations into allegations of false testimony,[1] and has been distinguished from the “sufficient grounds” standard applied to initiating the prosecution of an individual for false testimony or contempt.[2] […]

11.     A party seeking to institute proceedings for false testimony bears “the onus to prove the alleged falsehood”.[3] Despite having been instructed to provide references to transcripts from the Ntakirutimana case that, in his view, amounted to false testimony,[4] Ntakirutimana does not specify which portions of Witness HH’s testimony he alleges are false. This omission weighs against establishing that strong grounds exist for believing that Witness HH knowingly and wilfully gave false testimony before the ICTR.

See also paragraph 17 and footnote 57.

21. The Appeals Chamber recalls that a Trial Chamber has full discretion to assess the appropriate credibility and weight to be accorded to the testimony of a witness;[1] corroboration is one of many potential factors relevant to this assessment.[2] A Trial Chamber retains discretion to decide, in the circumstances of each case, whether corroboration of evidence is necessary and to rely on uncorroborated, but otherwise credible, witness testimony.[3]

[…]

24. Nevertheless, the Appeals Chamber recalls that two prima facie credible testimonies need not be identical in all aspects or describe the same fact in the same way in order to be corroborative.[4] Every witness presents what he has seen from his own point of view at the time of the events, or according to how he understood the events recounted by others.[5] It follows that 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.[6]

81. The Appeals Chamber further recalls that minor inconsistencies commonly occur in witness testimony without rendering the testimony unreliable and that it is within the discretion of the Trial Chamber to evaluate such inconsistencies and to consider whether the evidence as a whole is credible, without explaining its decision in every detail.[1]

221. In its Decision of 11 September 2007, the Trial Chamber recalled:

the general principle articulated in Rule 90(A) [is] that “witnesses shall [...] be heard directly by the Chamber.” Nonetheless, the Chamber has the discretion to hear testimony by video-link in lieu of physical appearance for purposes of witness protection under Rule 75, or where it is in the interests of justice to do so. In determining the interests of justice, the Chamber has to assess the importance of the testimony, the inability or unwillingness of the witness to travel to Arusha, and whether a good reason has been adduced for that inability and unwillingness. The burden of proof lies with the party making the request.[1]

[…] This standard is consistent with the approach taken by the Appeals Chamber.[2]

63. The Appeals Chamber recalls that it is within a trial chamber’s discretion to rely on the evidence of accomplice witnesses.[1] However, the trial chamber must exercise appropriate caution in assessing such evidence and carefully consider the totality of the circumstances in which it was tendered.[2] Of the several factors relevant to a cautious assessment, consideration should be given to circumstances showing that the witness may have motives or incentives to incriminate the accused or to lie.[3]

64. The Appeals Chamber recalls that “[u]nder some circumstances, a reasoned explanation of the Trial Chamber’s assessment of a particular witness’s credibility is a crucial component of a ‘reasoned opinion’ – for instance, where there is a genuine and significant dispute surrounding a witness’s credibility and the witness’s testimony is truly central to the question whether a particular element is proven”.[4] The Appeals Chamber considers the Trial Chamber’s analysis to be inadequate given the existence of a genuine and significant dispute surrounding Witness GAP’s credibility in light of his status as an accomplice witness and evidence suggesting that he may have had a motive to lie. In particular, the Trial Chamber failed to expressly consider evidence that Witness GAP had been pressured by Rwandan authorities to implicate Bizimungu in order to receive a more lenient sentence.[5] It failed to expressly address other evidence which alleged that Witness GAP facilitated the fabrication of evidence against accused before the Tribunal generally and Bizimungu specifically.[6] These omissions must be viewed in light of the Trial Chamber’s further failure to expressly consider that Witness GAP never mentioned this meeting or Bizimungu’s involvement in it in his statements to the Tribunal prior to 2003,[7] and that he failed to report this when confessing to his crimes before Rwandan authorities in 2002.[8] Mindful that trial chambers enjoy broad discretion in assessing evidence[9] and that they need not articulate every step of their reasoning for each finding they make,[10] the Appeals Chamber finds that the absence of any express consideration of these circumstances reflects a failure to apply necessary caution in light of the particular circumstances surrounding Witness GAP’s evidence.

17. The Appeals Chamber recalls that Rule 70 has been incorporated in the Rules to encourage States to fulfill their cooperation obligations under Article 28 of the Statute of the Tribunal.[1] It creates an incentive for such cooperation by permitting information to be shared on a confidential basis and by guaranteeing the providers of such information that the confidentiality thereof, together with its sources, will be protected.[2] Rule 70 operates on the basis that governments showing a genuine interest in protecting the information in their possession may invoke Rule 70 to ensure the protection of such information by requiring limitations on the scope of a witness’s testimony or on the dissemination of that witness’s testimony.[3] If a Trial Chamber finds that the information has been provided in accordance with Rule 70(B), the information will benefit from the protections afforded under Rules 70(C) and (D).[4] However, the restrictions referred to under Rules 70(C) and (D) will only apply after the Trial Chamber has determined that the restrictions imposed by the government upon the witness’s testimony would not undermine the need to ensure a fair trial, and that the need to ensure a fair trial would not substantially outweigh the probative value of the testimony so as to lead to its exclusion.[5] Indeed, Rule 70(F) provides that Rule 70 restrictions shall not “affect a Trial Chamber’s power under Rule 89(C) to exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial.”[6]

82. […] the Appeals Chamber observes that it is not unreasonable for a Trial Chamber to accept certain parts of a witness’s testimony and reject others.[1]

145. A tribunal of fact is always permitted to accept part and reject part of the same witness’s evidence. The Appeals Chamber is conscious that it is a substantial step to take to accept the statement given by a witness in preference to his or her sworn evidence, especially when the witness seeks to repudiate the relevant part of the statement. 

19. With respect to the fact that the Amicus Report[1] did not establish when Witness BTH gave false testimony or which portions of his evidence were false, and the Trial Chamber’s finding that as a result any indictment would necessarily be insufficiently precise, the Appeals Chamber finds that the Trial Chamber applied the incorrect legal test. The legal test is whether there are “sufficient grounds to proceed against a person for giving false testimony”.[2] The ICTY Appeals Chamber in the Šešelj case held that “the ‘sufficient grounds’ standard under Rule 77(D) of the ICTY Rules only requires the Trial Chamber to establish whether the evidence before it gives rise to a prima facie case of contempt of the Tribunal and not to make a final finding on whether contempt has been committed”.[3] While the Šešelj Decision concerned the initiation of contempt proceedings under Rule 77 of the ICTY Rules rather than proceedings for false testimony under Rule 91 of the Rules, the Appeals Chamber observes that the language in the two rules is identical with respect to the initiation of proceedings.[4] It therefore considers that since the “sufficient grounds” requirement, as prescribed in Rule 77 of the ICTY Rules, is satisfied where the evidence establishes a prima facie case, the “sufficient grounds” requirement of Rule 91(C) of the Rules is also satisfied by the existence of evidence which establishes a prima facie case. Accordingly, the Appeals Chamber finds that the Trial Chamber erred in basing its decision upon the fact that the Amicus Report did not determine when Witness BTH gave false testimony or which portions of his evidence were false because this does not necessarily preclude the existence of a prima facie case of false testimony.

59. The Appeals Chamber also finds that in reaching the Impugned Decision the remaining Judges took into account an immaterial consideration, namely, the fact that the testimonies were given in a language not understood by the Bench […]

60. The Tribunal has repeatedly emphasized the importance of observing the demeanour of witnesses and, indeed, it is this first-hand observation which is the basis for the Appeals Chamber’s deference to the factual findings of Trial Chambers.[1] The Appeals Chamber considers that the importance of evaluation of the demeanour of witnesses by the triers of fact cannot be discounted on the ground that the witnesses may speak through an interpreter. Even when this is the case, the Judges observing the witness testify have an opportunity to see his or her demeanour, assess it, and weigh the evidence accordingly.

119. As noted above,[1] the Trial Chamber exceptionally and temporarily allowed Krajišnik to supplement his Counsel’s cross-examination with his own questions to the witness pending final decision on his request to self-represent.[2] The Appeals Chamber is of the view that the Trial Chamber acted within its discretion in doing so. The Appeals Chamber has already recognised that an accused represented by counsel may in certain circumstances directly put questions to a witness, subject to the Trial Chamber’s supervision.[3] In the Appeals Chamber’s opinion, the circumstances at hand (the pending request to self-represent) made it appropriate to allow Krajišnik to put questions to the witnesses after the cross-examination of Counsel. The Appeals Chamber further notes that the Trial Chamber explicitly warned Krajišnik of the risks connected with taking an active role in cross-examinations.[4] In the circumstances, the Appeals Chamber is not persuaded that Amicus Curiae has shown that the Trial Chamber’s decision rendered the trial unfair. The only concrete prejudice alleged by Amicus Curiae concerns Krajišnik’s handling of the cross-examination of Witness Davidović,[5] but he does not provide any reference in this regard and the Appeals Chamber can not thus assess this contention.

Agreeing with a similar finding of the ICTR Appeals Chamber in Karera, the Appeals Chamber held that Rule 90(H)(ii) of the Rules does not apply to an accused testifying in his own case.

367. The Appeals Chamber recalls that this Rule seeks to facilitate the fair and efficient presentation of evidence whilst affording the witness being cross-examined the possibility of explaining himself on those aspects of his testimony contradicted by the opposing party’s evidence, so saving the witness from having to reappear needlessly in order to do so and enabling the Trial Chamber to evaluate the credibility of his testimony more accurately owing to the explanation of the witness or his counsel.[1]

Hence, the Appeals Chamber agrees that the central purpose of the Rule in question “is to promote the fairness of proceedings by enabling the witness on the stand to appreciate the context of the cross-examining party’s questions, and to comment on the contradictory version of the events in question”.[2]

368. The Appeals Chamber stresses that, in order to fulfil the requirements of Rule 90(H)(ii) of the Rules, it is sufficient that the cross-examining party put the nature of its case to the witness, meaning the general substance of its case conflicting with the evidence of the witness, chiefly to protect this witness against any confusion.[3] There is no need for the cross-examining party to explain every detail of the contradictory evidence, and the Rule allows for some flexibility depending on the circumstances of the trial.[4] In particular, if it is obvious in the circumstances of the case that the version of the witness is being challenged, there is no need for the cross-examining party to waste time putting its case to the witness.[5]

The Appeals Chamber confirmed, however, that this provision does not apply when an accused testifies in his own defence as “he is well aware of the context of the Prosecution’s questions and of the Prosecution’s case, insofar as he has received sufficient notice of the charges and the material facts supporting them.” (para. 369, citing Karera Appeal Judgement, para. 27).

63.     The issue here is whether the Trial Chamber’s consideration of the impact of trauma was in accordance with the law. The established practice of both the Trial Chambers and the Appeals Chamber supports a finding that it was. Trial Chambers normally take the impact of trauma into account in their assessment of evidence given by a witness. This approach was properly adopted by the Trial Chamber in this case. Contrary to Musema’s assertion, the Appeals Chamber finds that such an approach is, in fact, favourable to him. Indeed, the fact that the Trial Chamber should take into account the impact of trauma on a witness’s memory implies the Trial Chamber’s awareness of such factors (as in the case of the passage of time) and of their possible effect on the ability of the witness to recount events impartially and accurately. 

10. While a preparation for cross-examination is undeniably a part of the overall preparation for trial, it is not, in and of itself, a sufficient basis for an issuance of subpoena. […] In entertaining a request for a subpoena, a Trial Chamber is therefore entitled to take into account the fact that a witness whom a party seeks to subpoena is scheduled to testify during the trial, and to refuse the request where its sole rationale is to prepare for a more effective cross-examination. A subpoena involves the use of judicial power to compel, and as such, it must be used where it would serve the overall interests of the criminal process, not where it would merely facilitate a party’s task in litigation […].

[…]

12. Where a witness is listed by one party as expected to testify on its behalf with respect to certain issues, it does not necessarily follow that this witness will have no information of value to the opposing party on other issues related to the case. The opposing party may have a legitimate expectation of interviewing such witness in order to obtain this information and thereby better prepare a case for its client. To deprive this expecting party of such ability would hand an unfair advantage to the opposing party, which would be able to block its opponent’s ability to interview crucial witnesses simply by placing them on its witness list.

13. Moreover, the party which placed the witness in question on its list of witnesses may then decide not to call the witness at all. While the other party, such as the Defence in this case, could subsequently petition the Trial Chamber for a subpoena to obtain information from the witness, that party would have lost valuable time in procuring this information and may therefore end up at an unfair disadvantage with respect to the preparation of its case.

14. […] [D]uring cross-examination, the party conducting cross-examination can elicit from the witness evidence exceeding the subject-matter of the evidence-in-chief and matters affecting the credibility of the witness, provided that “the witness is able to give evidence relevant to the case for the cross-examining party.”[1] Given that during cross-examination the Defence can elicit from the Prosecution witness information which is relevant to its own case and goes beyond the scope of the Prosecution’s examination-in-chief, the Defence may have a legitimate need to interview this witness prior to trial in order to properly prepare its case.

180. The Appeals Chamber recalls that Rule 90(A) of the Rules provides that witnesses shall be heard by the trial chamber. Prior out-of-court witness statements are normally relevant only as necessary for the trial chamber to assess credibility.[1] Witness statements used for this purpose normally bear the witness’s signature or some other indicator that their content reflects what the witness said.[2] A will-say statement, however, differs from a typical statement given by a witness. In the practice of the Tribunal, will-say statements are primarily communications from one party to another and the trial chamber concerning aspects of a witness’s anticipated testimony that were not mentioned in previously-disclosed witness statements.[3] Will-say statements are generally communicated by counsel upon learning of new details during the preparation of a witness for examination,[4] and are not necessarily acknowledged by the witness. Therefore, will-say statements have no probative value except to the extent that the witness confirms their content. In the instant case, Witness AKK explicitly repudiated the content of the unsigned will-say statement, the contents of which were allegedly unknown to her.[5] Given the lack of any explanation for why it was nonetheless acceptable to rely on the unsigned and repudiated will-say statement, the Appeals Chamber finds that the Trial Chamber erred in law in relying on the will-say statement to discredit aspects of Witness AKK’s testimony.

112. The Appeals Chamber recalls that a trial chamber has a broad discretion to consider all relevant factors in determining the weight to attach to the evidence of any given witness.[1] It is within the discretion of a trial chamber to evaluate the evidence as a whole, without explaining its decision in detail.[2] Merely stating that two witnesses, who testified about two separate events, were accorded different weight by the Trial Chamber does not meet the standard of appeal.

128. The Appeals Chamber recalls that a trial chamber has the discretion to rely upon evidence of accomplice witnesses.[1] However, when weighing the probative value of such evidence, the trial chamber is bound to carefully consider the totality of the circumstances in which it was tendered. In particular, consideration should be given to circumstances showing that accomplice witnesses may have motives or incentives to implicate the accused person before the Tribunal or to lie.[2] This does not mean that corroboration is required.[3] However, a trial chamber must explain the reasons for accepting the evidence of an accomplice.[4]

154. The Appeals Chamber recalls that, while a witness’s status as an accomplice does not render his or her evidence unreliable per se,[1] a trial chamber must exercise appropriate caution in assessing his or her evidence.[2]

The Prosecution sought to confront a Defence witness, during cross-examination, with two documents. Delić objected on the basis that these documents were not included in the list of exhibits the Prosecution intended to offer under Rule 65 ter(E)(iii) of the Rules of Procedure and Evidence. Following the cross-examination of the witness on the content of the two documents, the Trial Chamber proceeded to admit them into evidence. Delić appealed the admission because it was done during the Defence case. The Appeals Chamber found:

20. According to Rule 89(C) of the Rules, a “Chamber may admit any relevant evidence which it deems to have probative value”. More specifically, Rule 90(F)(i) of the Rules states that a “Trial Chamber shall exercise control over the mode and order of interrogating witnesses and presenting evidence so as to (i) make the interrogation and presentation effective for the ascertainment of the truth; and (ii) avoid needless consumption of time”.  Within the discretion afforded to it, a Trial Chamber may admit any evidence which it deems relevant and of probative value, provided that the right of the accused to a fair trial is ensured in the process.[1]

21. In the present case, the Prosecution contends that it could not have ascertained the importance of the Exhibits until Delić had disclosed its own list of witnesses pursuant to Rule 65 ter (G)(i). However, the Prosecution did not proceed to disclose the Exhibits immediately after this list was filed, but just prior to the beginning of the testimony of [the] witness […]

22. In these circumstances, the Appeals Chamber notes that the Impugned Decision does not clarify whether the Exhibits were admitted as evidence probative of guilt or only for impeachment purposes of the witness in question. This may cause confusion, prejudicing Delić in the organization of his case. According to the principles enshrined in the Statute – in particular in Article 21(4)(b) and (e) – on the rights of the accused, when evidence is tendered by the Prosecution there must be a fair opportunity for the accused to challenge it; this is all the more true if evidence is tendered after the close of the Prosecution case. In situations where the accused opposes the admission of evidence during cross-examination due to alleged breach of his right to a fair trial, a Trial Chamber must consider how it intends to strike the appropriate balance between the need to ensure the rights of the accused and its decision to admit such evidence.

23. The Trial Chamber therefore erred in not specifying the purpose for which the Exhibits were admitted despite the request by Delić and, consequently, in not addressing how the prejudice caused by the admission of the Exhibits, if any, could be redressed. Only after having considered the mode of disclosure of the documents in question, the purpose of their admission, the time elapsed between disclosure and examination of the witness, the languages known to Counsel and the accused, as well as any other relevant factual considerations, the Trial Chamber will be able to provide a reasoned opinion on the prejudice, if any, caused by the admission of the Exhibits and on the measures to address such prejudice – for example providing more time for cross-examination, adjourning the session, or granting the possibility of re-calling the witness if Delić shows it is necessary. Having failed to give sufficient weight to relevant considerations in reaching its decision, the Trial Chamber committed a discernible error.

21. The Appeals Chamber recalls that a Trial Chamber has full discretion to assess the appropriate credibility and weight to be accorded to the testimony of a witness;[1] corroboration is one of many potential factors relevant to this assessment.[2] A Trial Chamber retains discretion to decide, in the circumstances of each case, whether corroboration of evidence is necessary and to rely on uncorroborated, but otherwise credible, witness testimony.[3]

[…]

24. Nevertheless, the Appeals Chamber recalls that two prima facie credible testimonies need not be identical in all aspects or describe the same fact in the same way in order to be corroborative.[4] Every witness presents what he has seen from his own point of view at the time of the events, or according to how he understood the events recounted by others.[5] It follows that 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.[6]

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]

174. Rule 73bis(E) of the Rules provides that after the commencement of the trial, the Prosecutor, if he considers it to be in the interests of justice, may move the trial chamber for leave to reinstate the list of witnesses or to vary his decision as to which witnesses are to be called. The rule does not impose a time limit to validly raise a request under this provision. However, the jurisprudence of both the Tribunal and the ICTY indicates that, when assessing whether it is in the interests of justice to permit the Prosecution to vary its witness list, the trial chamber shall take into account the potential prejudice to the Defence and the stage of the proceedings among other factors.[1] The Appeals Chamber nonetheless emphasises that decisions concerning the variation of a party’s witness list are among the discretionary decisions of the trial chamber to which the Appeals Chamber must accord deference.[2]

[…]

178. […] [T]he purpose of Rule 73bis(E) of the Rules is to allow the Prosecution to correct its prior assessment of which witnesses to call “after the commencement of [t]rial”. Nothing in Rule 73bis(E) of the Rules requires that the addition of new witnesses be conditioned upon the removal of witnesses who were expected to testify about the same facts.[3] […]

179. […] Furthermore, while the Appeals Chamber observes that trial chambers of the ICTY have previously emphasised considerations such as the stage of the proceedings and the justification provided in support of requests for the amendment of witness lists,[4] the Appeals Chamber finds that Ntahobali’s reliance on the Mrkšić et al. decisions is not pertinent. The Appeals Chamber stresses that the manner in which the discretion to manage trials is exercised by a trial chamber should be determined in accordance with the case before it; what is reasonable in one trial is not automatically reasonable in another.[5] The question of whether a trial chamber abused its discretion should not be considered in isolation, but rather by taking into account all relevant circumstances of the case at hand.[6] It can therefore not be held that granting a request for the addition of witnesses in the last stages of a party’s presentation of its case is per se unreasonable and prejudicial to the opposing party; such an assessment rather requires a careful balancing of various interests and circumstances on a case-by-case basis.

140. Turning to Nyiramasuhuko’s contention that Judge Bossa could not assess the demeanour of witnesses based on the audio-recordings, the Appeals Chamber is of the view that the importance of observing first-hand the demeanour of witnesses in court cannot be discounted on the ground that audio-recordings exist. Although the preference for live testimony to be heard by each judge does not represent an “unbending requirement”,[1] the Appeals Chamber is not convinced that audio‑recordings alone allow a substitute judge to thoroughly assess all aspects of the witness’s demeanour in court, in particular when the judge is not proficient in the language spoken by the witness.[2]

[…]

148.  The Appeals Chamber is of the view that transcripts or audio recordings of a witness’s testimony in court do not necessarily always allow a judge to assess thoroughly the witness’s possible aggressiveness, reluctance to answer questions, lack of emotion, silences, and arrogance. […]

164.  The Appeals Chamber reiterates that, while there is a clear preference for live testimony to be heard by each and every judge, this preference does not represent an unbending requirement.[3] […]

85. […] As the Appeals Chamber has previously stated, “to suggest that if something were true a witness would have included it in a statement or a confession letter is obviously speculative and, in general, it cannot substantiate a claim that a Trial Chamber erred in assessing the witness’s credibility.”[1]

25. The Appeals Chamber further recalls that the term “new fact” for the purposes of review refers to new evidentiary information supporting a fact that was not in issue or considered in the original proceedings.[1] Accordingly, as the issue of Simang’s credibility was considered during the trial and appeal proceedings in light of allegations regarding the promises made by the Prosecution to Simang and Mrachaz, the Appeals Chamber finds that the Applicant has failed to demonstrate that the evidence submitted in the Application regarding Simang’s credibility constitutes a new fact for the purposes of review.[2]

Pages 3-4:

RECALLING that, pursuant to Rule 71(B) of the Rules, the Prosecution shall, on request, permit the Defence to inspect any books, documents, photographs, and tangible objects in its custody or control, which are material to the preparation of the defence;

CONSIDERING, that the pseudonyms that Karadžić wishes to inspect are not books, documents, photographs, or tangible objects in the Prosecution’s custody or control, but rather information contained in confidential and ex parte filings;

FINDING, therefore, that Rule 71(B) of the Rules is not applicable;

[…]

CONSIDERING that disclosing pseudonyms of protected witnesses in this case who were the subject of Rule 86 proceedings may reveal details about non-public investigations in other jurisdictions[1] which were communicated to the Mechanism on a confidential and ex parte basis;

30.     […] the Appeals Chamber does not consider any lack of reference to Semanza's activities in a brief statement taken during a separate trial involving a different accused constitutes a new fact for the purposes of review.[1] As previously recalled by the ICTR Appeals Chamber, "to suggest that if something were true a witness would have included it in a statement [...] is obviously speculative".[2]

288. The Appeals Chamber recalls that Article 21(4)(g) of the ICTY Statute guarantees the fundamental right of an accused not to be compelled to testify against himself in the determination of any charge against him. Rule 90(E) of the ICTY Rules provides that a witness may object to making any statement which might tend to incriminate him and that a chamber may compel the witness to answer the question, in which case testimony compelled in this way will not be used as evidence in a subsequent prosecution against the witness for any offence other than false testimony. The ICTY Appeals Chamber has held that compelling an accused to testify in proceedings which do not involve the determination of the charges against him under Rule 90(E) of the ICTY Rules is not in itself inconsistent with the right not to incriminate oneself given the absolute prohibition on direct or indirect use of self-incriminating statements so compelled in the proceedings against him.[1] Compelling a witness to answer a question which may incriminate him in such circumstances remains within a trial chamber’s discretion.[2] This discretion, however, must be exercised consistently with Articles 20(1) and 21 of the ICTY Statute, which require trial chambers to ensure that trials are fair and conducted with full respect for the rights of the accused.[3]

27. The Appeals Chamber recalls that prior consistent statements cannot be used to bolster a witness’s credibility, except to rebut a charge of recent fabrication of testimony.[1]

63. [...] The Appeals Chamber emphasizes, however, that it will not lightly disturb on review a trial chamber’s credibility assessment, which was subjected to appellate review, based on a witness’s subsequent conduct occurring more than five years after their original testimony. To do so, would in fact provide incentives to convicted persons, or individuals close to them, to interfere with susceptible witnesses with the hope that it will not be discovered and the convicted person will be released or, if discovered, that the witnesses will then be so thoroughly discredited that their original testimony cannot be trusted and the convicted person will be released. To put it simply, an applicant bears a heavy burden in showing that the conduct of a witness, occurring significantly post trial testimony, taints their original testimony. [...]