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. […]

34.     Further, the Appeals Chamber recalls that the duty to act with due diligence requires the parties to make the best case in the first instance,[1] and includes making use of all mechanisms of protection and compulsion available under the Statute and the Rules to bring evidence on behalf of an accused before the trial chamber.[2] […]

10. […] The allocation of investigative resources is a matter of trial strategy which rests squarely within the discretion of Counsel: it cannot provide the basis for claiming that material was “not available” for the purposes of Rule 115 of the Rules. […] Finally, the Appeals Chamber is not convinced by Mr. Bikindi’s claim that ineffective assistance of counsel explains the failings in earlier investigations. In this respect, the Appeals Chamber notes that Mr. Bikindi changed Lead Counsel during the course of the trial. His suggestion that a further investigative mission would not have been approved is simply speculation.[1]

25. The Appeals Chamber is not satisfied that Mr. Bikindi exercised due diligence in obtaining and presenting this material at trial. As stated above, the allocation of defence resources cannot justify a delay in bringing evidence before the Tribunal.[2] While it is true that the records of the Gacaca proceedings which occurred after Mr. Bikindi’s trial were not available, Mr. Bikindi has not justified why the underlying evidence could not have been obtained at trial. Mr. Bikindi has also failed to demonstrate why he could not have raised his concerns with respect to the ineffective assistance of counsel at trial, in particular bearing in mind that he obtained a new Lead Counsel during the course of the proceedings. Finally, Mr. Bikindi made no submissions related to the availability of the evidence concerning Witness AKK’s schooling or the distances between Kayove and Kivumu.

55. Where the Prosecution “makes” a person a Prosecution witness and at a late stage in the proceedings decides not to call that witness, leaving insufficient time or means to enable the defence to take steps towards making that person a defence witness in order to call the witness on its own behalf, and where subsequently, following the provision of testimony by the witness, that witness brings to the attention of the defence the fact that it could have provided further elucidation upon an issue at trial, it would not be fair to say that the defence should have been aware of the existence of that further information at the time of the trial proceedings. In the circumstances of this case, the Appeals Chamber finds that the further information was “not available” for the purpose of Rule 115. 

16. [I]t is the view of the Appeals Chamber that where defence counsel are gathering evidence in support of an accused’s defence, either at a pre-trial stage or during the course of a trial, and are aware of a potential witness and decide not to approach that person, for whatever reason, whether because counsel believe that the potential witness will not cooperate, or the witness may be placed in an invidious position, when the accused is subsequently convicted by the Trial Chamber, the defence cannot claim that the witness was “not available” at trial within the meaning of Rule 115, or ask for that witness to be called at the appellate stage.

26. […] [A] tactical decision not to seek the admission of certain evidence due to the expectation that evidence of greater probative value might become available later in the proceedings does not render the first evidence unavailable at trial in terms of its assessment for the purposes of admission under Rule 115 of the Rules.[1] […]

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]

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

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

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

[…]

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

[…]

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

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

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

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

[…]

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

[…]

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

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

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

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

[…]

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

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

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

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

2.       Material not in existence at the time of the trial

[…]

63.     The third category concerns potential witnesses who were known to the Defence but who could not be located at the time of trial. […] The Appellant claims that all three of these witnesses had fled abroad and could not be located. In view of the difficulties facing defence counsel in locating such witnesses, the Appeals Chamber finds that the Appellant has provided sufficient indication that these witnesses were not available at the time of trial. […]

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

10.     […] The Appeals Chamber considers 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 after closing arguments in a case may meet this standard.

Page 5:

 12. […] While there may be situations where a party may attempt to use Rule 142 of the Rules for the purpose of remedying tactical errors or oversights at trial, the Appeals Chamber considers that, in this instance, the heightened standard for admission sufficiently protects the interests of justice.