Differences between Rule 115 and Rule 119 proceedings

Notion(s) Filing Case
Review Decision - 30.06.2006 NIYITEGEKA Eliézer

Paras 47‑48: relying on Delić, Tadić and Josipović,[1] the Appeals Chamber noted that there is a fundamental distinction between the admission of additional evidence on appeal and a review based on a “new fact”. Rule 115 provides for the admission of additional evidence in appellate proceedings only, and is related to Article 24 of the Statute. Rule 120, on the other hand, pertains to review proceedings under Article 25 of the Statute and constitutes an “exceptional” procedure; it does not represent a second appeal. Further, there is a distinction in the nature of the additional material which may be considered under Rule 115 and that which may be considered during a review proceeding. The Appeals Chamber recalled that while Rule 115 accepts any relevant and credible additional evidence of an issue which has already been considered at trial, Article 25 and Rule 120 require a “new fact”, defined as “new information of an evidentiary nature of a fact that was not in issue during the trial or appeal proceedings”. The Appeals Chamber held that it will only permit review on the basis of new evidence of a fact known at trial under exceptional circumstances. The Appeals Chamber held that it is incorrect for parties to rely on the provisions of Rule 115 for the purpose of review instead of relying on Article 25 of the Statute and Rule 120 of the Rules.

Para. 42, lines 8‑10; para. 72, lines 4‑5: reinforcing the strictly exceptional nature of review proceedings, the Appeals Chamber held that it will not consider de novo arguments which were already raised by the Applicant and rejected at the appeals stage as a review proceeding is not an opportunity simply to re-litigate unsuccessful appeals.

[1] See Prosecutor v. Hazim Delić, Decision on Motion for Review, 25 April 2002, paras. 9, 11, 13; Prosecutor v. Duško Tadić, Decision on Motion for Review, Case No. IT-94-1-R, 30 July 2002, para. 25 (“Tadić, Decision on Motion for Review”); Prosecutor v. Drago Josipović, Case No. IT‑95‑16‑R2, Decision on Motion for Review, 7 March 2003, paras 18‑19.

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ICTR Statute Article 25 ICTY Statute Article 26 ICTR Rule Rule 120 ICTY Rule Rule 119
Notion(s) Filing Case
Decision on Additional Evidence - 16.10.1998 TADIĆ Duško

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


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

See also paras 36, 42.

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ICTR Statute Article 24;
Article 25
ICTY Statute Article 25;
Article 26
ICTR Rule Rule 115;
Rule 120
ICTY Rule Rule 115;
Rule 119