If an appellant raises the vagueness of an indictment as a ground of appeal and it turns out that he never raised this issue at trial, then he has the burden of proving at the appellate stage that his ability to prepare his defence was materially impaired as a result of the defect in the indictment. If however he did raise this issue at trial, then the Prosecution has the burden of proving that the appellant’s defence was not materially impaired. See paragraph 25.

25. In considering whether a defect in the indictment has been cured by subsequent disclosure, the question arises as to which party has the burden of proof on the matter.[1] In general, a party should not be permitted to refrain from making an objection to a matter which was apparent during the course of the trial, and to raise it only in the event of an adverse finding against that party. Failure to object in the Trial Chamber will usually result in the Appeals Chamber disregarding the argument on grounds of waiver.[2] However, the importance of the right of an accused to be informed of the charges against him and the possibility that he will incur serious prejudice if material facts crucial to the Prosecution are communicated for the first time at trial suggest that the waiver doctrine should not entirely foreclose an accused from raising an indictment defect for the first time on appeal.[3] Where, in such circumstances, an appellant raises a defect in the indictment for the first time on appeal, he bears the burden of proving that his ability to prepare his defence was materially impaired.[4] On the other hand, when an accused has previously raised the issue of lack of notice before the Trial Chamber, the burden rests on the Prosecution to prove on appeal that the ability of the accused to prepare a defence was not materially impaired.[5] 

56. Finally, the Appeals Chamber notes its agreement with the Trial Chamber’s finding that an accused claiming to be unfit to stand trial bears the burden of so proving by a preponderance of the evidence.[1] In this regard, the Appeals Chamber notes that this approach is consistent with the one used in common law jurisdictions where the burden of proof generally lies on the party which alleges the accused’s unfitness to stand trial and is considered to be discharged if this party can show its claim on the balance of probabilities.[2]

24. The Appeals Chamber recalls that an accused does not bear the burden of proving his alibi beyond reasonable doubt. When an alibi is properly raised, the Prosecution must establish beyond reasonable doubt that, despite the alibi, the facts alleged are nevertheless true. The Appeals Chamber observes that the Trial Chamber correctly recalled the law and burden of proof to be applied in the assessment of alibi.

25. Furthermore, the Appeals Chamber has held that “Trial Chambers are endowed with the discretion to require corroboration”.[4] In this respect, it was not unreasonable for the Trial Chamber to question the credibility of Munyakazi’s alibi in the absence of corroboration given the inherent self-interest of his testimony and the introduction of the alibi at the close of the case. Furthermore, the fact that the death of Kabungo and the mourning period were not specifically challenged during cross-examination does not prevent the Trial Chamber from doubting their veracity and taking the lack of corroboration into account when assessing the evidence. The Appeals Chamber has previously emphasized that a Trial Chamber is not required to accept as true statements unchallenged during cross-examination.[5] Therefore, the Trial Chamber has not shifted the burden of proof in assessing Munyakazi’s alibi; all that it has done, and this quite properly, is to note that there was no supporting evidence of the alibi.

125. […] The Appeals Chamber recalls that a defect in the Indictment, not cured by timely, clear, and consistent notice, constitutes a prejudice to the accused.[1] The defect may only be deemed harmless through a demonstration that the accused’s ability to prepare his or her defence was not materially impaired.[2] When an appellant raises a defect in the indictment for the first time on appeal, the appellant bears the burden of showing that his or her ability to prepare his or her defence was materially impaired.[3] When, however, an accused has previously raised the issue of lack of notice before the Trial Chamber, the burden rests on the Prosecution to prove on appeal that the ability of the accused to prepare his or her defence was not materially impaired. The Appeals Chamber therefore turns to consider this issue.

126. In the pre-trial stage, Renzaho challenged the Indictment on the basis of vagueness, a challenge that was dismissed by the Trial Chamber.[4] Although Renzaho did not object to Witnesses AWO’s and AWN’s evidence that he encouraged rapes upon the filing of the Prosecution Pre-Trial Brief or at the time of their testimony, the Appeals Chamber considers that Renzaho’s confusion regarding the import of this evidence, discussed below, reasonably explains his failure to object. Further, in his Closing Brief, Renzaho renewed his challenge to the Indictment on the basis that it failed to plead the material facts necessary to establish his superior responsibility.[5] Renzaho also contended that the charges alleging his responsibility for sexual violence were impermissibly vague, and noted that the evidence that he made encouraging statements about rapes was not included in the Indictment.[6] The Appeals Chamber therefore finds that Renzaho raised an adequate objection to the failure to properly plead his reason to know.[7] Consequently, the Prosecution has the burden of establishing that Renzaho’s defence was not materially impaired by the defect in the Indictment.[8]

127. The Appeals Chamber finds that the Prosecution has not met its burden. It notes that, when Witness AWN testified that it was Renzaho who encouraged rapes, rather than another individual, the Defence did not object to the introduction of the new material fact. At the Appeal Hearing, the Defence indicated that it failed to do so because it “did not make the link at that time”[9] and suffered prejudice from the introduction of this new material fact because it did not understand that this evidence was relevant to the charge under Article 6(3) of the Statute.[10] The strategy adopted at trial by the Defence and in particular the cross-examination of Witnesses AWO and AWN convinces the Appeals Chamber that Renzaho understood that he was to defend himself against knowledge of rapes through receipt of reports as pleaded in the Indictment.[11] He was therefore prejudiced by the Prosecution’s failure to cure the defect in the Indictment through adequate notice.

128. The Appeals Chamber also notes with concern that the relevant paragraphs of the Indictment are extremely broad, and fail to specify the dates and locations of the meetings at which Renzaho encouraged the rapes; the dates and locations of the rapes; and the names of the victims. The provision of these material facts only in post-indictment documents impacts upon the ability of the accused to know the case he or she has to meet and to prepare his or her defence,[12] and is particularly troubling when the Prosecution was in a position to include them in the Indictment.[13]

414. Before considering in turn the various errors alleged by the Appellant, the Appeals Chamber notes that the Trial Chamber correctly enunciated the law applicable to alibi in paragraph 99 of the Judgement, which reads as follows:

With respect to alibi, the Chamber notes that in Musema, it was held that “[i]n raising the defence of alibi, the Accused not only denies that he committed the crimes for which he is charged but also asserts that he was elsewhere than at the scene of these crimes when they were committed. The onus is on the Prosecution to prove beyond a reasonable doubt the guilt of the Accused. In establishing its case, when an alibi defence is introduced, the Prosecution must prove, beyond any reasonable doubt, that the Accused was present and committed the crimes for which he is charged and thereby discredit the alibi defence. The alibi defence does not carry a separate burden of proof. If the defence is reasonably possibly true, it must be successful”[footnote omitted].

417. The Appeals Chamber recalls that, in raising an alibi defence, the defendant is claiming that, objectively, he was not in a position to commit the crime.[1] It is for the accused to decide what line of defence to adopt in order to raise doubt in the mind of the judges as to his responsibility for the offences charged, in this case by producing evidence tending to support or to establish the alleged alibi.[2] The only purpose of an alibi is to cast reasonable doubt on the Prosecutor’s allegations, which must be proven beyond reasonable doubt. In alleging an alibi, the accused merely obliges the Prosecution to demonstrate that there is no reasonable likelihood that the alibi is true. In other words, the Prosecution must establish beyond a reasonable doubt that, “despite the alibi, the facts alleged are nevertheless true”.[3]

418. There is thus no obligation on the Prosecution to investigate the alibi. […]

In the present case, the Appeals Chamber found that the Trial Chamber’s assessment of the alibi evidence was erroneous and concluded that it had not been established beyond reasonable doubt that the Appellant committed the crimes in question (paras 413-474 of the Appeal Judgement).

42. […] The Appeals Chamber has recently confirmed that when a defendant pleads an alibi, he is denying that he was in a position to commit the crimes with which he is charged because he was elsewhere than at the scene of the crime at the time of its commission.[1] The Appeals Chamber recalls that:

It is settled jurisprudence before the two ad hoc Tribunals that in putting forward an alibi, a defendant need only produce evidence likely to raise a reasonable doubt in the Prosecution’s case. The burden of proving beyond reasonable doubt the facts charged remains squarely on the shoulders of the Prosecution. Indeed, it is incumbent on the Prosecution to establish beyond reasonable doubt that, despite the alibi, the facts alleged are nevertheless true.[2]

43. Nothing in the foregoing requires the Prosecution, however, specifically to disprove each alibi witness’s testimony beyond reasonable doubt. Rather, the Prosecution’s burden is to prove the accused’s guilt as to the alleged crimes beyond reasonable doubt in spite of the proffered alibi.

195. The Appeals Chamber recalls that where the Indictment is found to be defective, an appellant who raises a defect in the indictment for the first time on appeal bears the burden of showing that his ability to prepare his defence was materially impaired. Where, however, an accused had already raised the issue of lack of notice before the Trial Chamber, the burden rests on the Prosecution to demonstrate on appeal that the accused’s ability to prepare a defence was not materially impaired.

196. With regard to the Trial Chamber’s finding that Sagahutu issued an operational instruction in relation to the Belgian peacekeepers’ access to the Prime Minister’s residence and sent an armoured unit and supplies to his subordinates on the ground, the Trial Chamber relied on the evidence of Prosecution Witnesses AWC, ALN, DA, and HP.[3] The Appeals Chamber notes that, in his closing arguments, Sagahutu made a general objection in relation to the pleading in the Indictment of the charge regarding the killing of the Prime Minister.[4] Nonetheless, Sagahutu did not take specific issue with the introduction of particular material facts during the testimony of Witnesses AWC, ALN, DA, and HP.[5] Therefore, the Appeals Chamber considers that Sagahutu did not make a specific and timely objection at trial to the lack of pleading in the Indictment of these material facts. In such circumstances, it falls on Sagahutu to demonstrate that the preparation of his defence was materially impaired by these omissions in the Indictment.[6]

21. In Niyitegeka, the Appeals Chamber ruled that, in order to succeed in challenging the exclusion of a material fact from an indictment, an accused must make a timely objection to the admission of evidence of the material fact in question before the Trial Chamber:

In the case of objections based on lack of notice, the Defence must challenge the admissibility of evidence of material facts not pleaded in the indictment by interposing a specific objection at the time the evidence is introduced. The Defence may also choose to file a timely motion to strike the evidence or to seek an adjournment to conduct further investigations in order to respond to the unpleaded allegation.[1]

Failure to object before the Trial Chamber will usually result in the Appeals Chamber disregarding the argument. Here, the Defence did not object to the introduction of Witness GEK’s testimony at trial; rather, it challenged her credibility during cross-examination. However, even in such a case, the Appeals Chamber may choose to intervene proprio motu, considering the importance of the accused’s right to be informed of the charges against him and the possibility of serious prejudice to the accused if the Prosecution informs him about crucial facts for the first time at trial. In such circumstances the accused has the burden of proving on appeal that his ability to prepare his case was materially impaired.[2]

22. In Ntakirutimana, the Appeals Chamber treated a challenge to the Indictment as properly raised, although the Appellant did not object to the error at the time of the introduction of the evidence at trial, because the Trial Chamber had concluded that the challenges to the vagueness of the Indictment had subsequently been properly presented before it.[3]

198. In considering whether a defect in the indictment has been cured by subsequent disclosure, the question arises as to which party has the burden of proof on the matter. Although the Judgement in Kupreškić did not address this issue expressly, the Appeals Chamber’s discussion indicates that the burden in that case rested with the Prosecution. Kupreškić stated that, in the circumstances of that case, a breach of “the substantial safeguards that an indictment is intended to furnish to the accused” raised the presumption “that such a fundamental defect in the … Indictment did indeed cause injustice.”[1] The defect could only have been deemed harmless through a demonstration “that [the Accused’s] ability to prepare their defence was not materially impaired.”[2] Kupreškić clearly imposed the duty to make that showing on the Prosecution, since the absence of such a showing led the Appeals Chamber to “uph[o]ld the objections” of the accused.[3]

28. The Appeals Chamber is not convinced that the Referral Chamber erred in failing to address the issue of which party bears the burden of proof, or that it placed an inappropriate burden on the Defence in this respect. In its submissions, the Prosecution acknowledged that it bore the burden of proof to demonstrate that Mr. Uwinkindi’s trial in Rwanda will be fair.[1] The Appeals Chamber considers that, in cases where the Prosecution requests referral, it bears the burden of proof to demonstrate that the conditions set out in Rule 11bis of the Rules are met. However, the Appeals Chamber recalls that a designated trial chamber may also rely on any information and orders it reasonably finds necessary in determining whether the proceedings following the transfer will be fair.[2] A review of the Impugned Decision as a whole reflects that the Referral Chamber correctly regarded the burden of proof as falling on the Prosecution and also acted within its discretion in relying on other information or its own orders to satisfy itself that Mr. Uwinkindi’s trial in Rwanda will be fair.

103. The Appeals Chamber recalls that the Prosecution bears the burden of establishing facts material to the guilt of an accused beyond reasonable doubt, and that suggesting that the Defence should present evidence proving the contrary would be an impermissible shift of such burden.[1] In this case, the Trial Chamber essentially took the view that the Defence evidence on the events at Gisagara market was not inconsistent with the Prosecution evidence. It reasoned that since two credible and reliable Prosecution witnesses saw Ntawukulilyayo at the market, the fact that the Defence witnesses did not see him or hear of his presence at the market did not necessarily suggest that he was not there.[2]

104. The Appeals Chamber finds no error in the Trial Chamber’s preference for positive eyewitness testimony, and does not consider that the Trial Chamber’s assessment of the Defence evidence in this regard suggests that Ntawukulilyayo was required to present witnesses who were able to negate the Prosecution evidence. The Trial Chamber found that “Witnesses AYQ and BAU provided convincing and consistent accounts of Ntawukulilyayo’s order to refugees to go to Kabuye hill.”[3] It then considered the evidence that Ntawukulilyayo presented to show that he was not at the market that day.[4] The Trial Chamber also considered Ntawukulilyayo’s evidence that the refugees had already left the market before he allegedly instructed them to move.[5] In the Appeals Chamber’s view, the fact that the Trial Chamber considered that such evidence was “of limited probative value”[6] and did “not raise doubt”[7] or “concerns”[8] about the Prosecution evidence does not constitute a reversal of the burden of proof.

226. The standard of proof at trial requires that a Trial Chamber may only find an accused guilty of a crime if the Prosecution has proved each element of that crime and of the mode of liability, and any fact which is indispensable for the conviction, beyond reasonable doubt.[1] This standard applies whether the evidence evaluated is direct or circumstantial.[2] The Appeals Chamber has previously endorsed an approach where, similar in parts to the present case, a Trial Chamber individually examined evidence with respect to a number of incidents and subsequently assessed the accused’s criminal responsibility for those incidents.[3]

 12. Pursuant to Rule 66(B) of the Rules, the Prosecutor shall permit the Defence, upon request, to inspect documents and other records in his custody or control if these records (i) are material to the preparation of the Defence case; (ii) are intended for use by the Prosecution as evidence at trial; or (iii) were obtained from or belonged to the accused. If the Defence is not satisfied with the Prosecution’s response to a request pursuant to Rule 66(B), it may request the Trial Chamber to order the inspection. 

13. However, the Defence bears the burden of proving an alleged breach of the Prosecution’s obligations pursuant to a request under Rule 66(B) of the Rules. It must therefore (i) demonstrate that the material sought is in the custody or control of the Prosecution; (ii) establish prima facie the materiality of the document sought to the preparation of the defence case; and (iii) specifically identify the requested material.[1]

205.   In setting out its general findings in the Section entitled “Evidentiary Matters,” the Trial Chamber stated as follows:

In raising the defence of alibi, the Accused not only denies that he committed the crimes for which he is charged but also asserts that he was elsewhere than at the scene of these crimes when they were committed. The onus is on the Prosecution to prove beyond a reasonable doubt the guilt of the Accused. In establishing its case, when an alibi defence is introduced, the Prosecution must prove, beyond any reasonable doubt, that the accused was present and committed the crimes for which he is charged and thereby discredit the alibi defence. The alibi defence does not carry a separate burden of proof. If the defence is reasonably possibly true, it must be successful.[1]

206. Musema accepts the above observation as a correct statement of the law as regards the burden and standard of proof. The Appeals Chamber is of the same opinion.

At paras 63-64, the Appeals Chamber recalled the previous jurisprudence of the ICTR Appeals Chamber with respect to the consequences of a defence of alibi on the burden of proof of the accused’s guilt: raising a defence of alibi does not affect the onus incumbent on the Prosecution to establish beyond reasonable doubt, despite the alibi, the accused’s guilt. Consequently, the accused bears no onus to establish the alibi, but it is for the Prosecution to eliminate any reasonable possibility that the alibi is true. Moreover, the demonstration that an alibi is false is not sufficient to demonstrate the accused’s guilt:

63. The Appeals Chamber notes and agrees with the ICTR Appeals Chamber’s finding in Kamuhanda with respect to the burden of proof regarding alibi that:

[a]n alibi […] is intended to raise reasonable doubt about the presence of the accused at the crime site, this being an element of the prosecution’s case, thus the burden of proof is on the prosecution.[1]

Similarly, the ICTR Appeals Chamber held in Kajelijeli that:

[t]he burden of proving beyond reasonable doubt the facts charged remains squarely on the shoulders of the Prosecution. Indeed, it is incumbent on the Prosecution to establish beyond reasonable doubt that, despite the alibi, the facts alleged are nevertheless true.[2]

This does not, however, require the Prosecution to specifically disprove each alibi witness’s testimony beyond reasonable doubt. Rather, the Prosecution’s burden is to prove the accused’s guilt as to the alleged crimes beyond reasonable doubt in spite of the proffered alibi.

64. In light of the above, the Appeals Chamber is satisfied that the Trial Chamber correctly held that:

So long as there is a factual foundation in the evidence for that alibi, the Accused bears no onus to establish that alibi; it is for the Prosecution to “eliminate any reasonable possibility that the evidence of alibi is true”. Further, as has been held by another Trial Chamber, a finding that an alibi is false does not in itself “establish the opposite to what it asserts”. The Prosecution must not only rebut the validity of the alibi but also establish beyond reasonable doubt the guilt of the Accused as alleged in the Indictment.[3] 

65. […] Thus, the Appeals Chamber finds that when the Trial Chamber held that the alibi evidence did not “negate the evidence” of the Prosecution, it was not stating a legal requirement. Indeed, it was rather explaining the reasons why it did not find that Haradin Bala’s alibi raised a reasonable doubt in the Prosecution’s case. […]

70. With respect to MLD1, the Trial Chamber held that “[t]]here are a number of aspects of MLD1’s account that are difficult to believe”.[1] It further found that Vilić’s testimony “raise[s] serious questions as to the credibility of MLD10 in general and in respect of her alibi evidence regarding the Drina river and Varda factory incidents”.[2] The Trial Chamber also found MLD15’s evidence “somewhat strange and artificial”.[3] The Appeals Chamber considers that in making these findings, the Trial Chamber explained its reasons for concluding that the witnesses lacked credibility. Such language does not indicate a reversal of the burden of proof. On the contrary, it shows that the Trial Chamber carefully considered the evidence of these alibi witnesses.

71. The Trial Chamber considered that inconsistencies in witness testimonies “call into question the alibi as a whole, as [they cast] reasonable doubt on the alibi evidence” of MLD1, MLD10, and Marković.[4] It also found that an “inconsistency resulting from MLD24’s evidence casts further doubt upon the veracity of the alibi presented as a whole.”[5] The use of these phrases is unfortunate since, taken in isolation, they could be interpreted as requiring Milan Lukić to prove beyond reasonable doubt that he was in Belgrade at the time of the alleged crimes. However, the Appeals Chamber observes that such language must be viewed in the broader context of the Trial Chamber’s findings.[6] The fact that the Trial Chamber in some instances used language which may be misunderstood does not necessarily mean that the Trial Chamber fundamentally misplaced the burden of proof.[7]

72. The Trial Chamber articulated the correct legal standard applicable to the examination of alibi evidence. […] Thus, the Appeals Chamber considers that, when using this language, the Trial Chamber was explaining why it did not find that the proffered alibi raised a reasonable doubt in the Prosecution’s case. The Trial Chamber rejected Milan Lukić’s alibi after having considered the evidence as a whole.[8] In these circumstances, the Appeals Chamber finds that Milan Lukić has failed to show that the Trial Chamber erred in law in assessing his alibi for the DrinaRiver and Varda Factory Incidents.

361. The Appeals Chamber finds that the Trial Chamber correctly articulated the burden of proof applicable to alibi evidence. It stated that “in putting forward an alibi, an accused need only produce evidence likely to raise a reasonable doubt in the Prosecution’s case” and that “it remains incumbent on the Prosecution to establish beyond reasonable doubt that, despite the alibi, the facts alleged are nevertheless true.”[9]

362. The Appeals Chamber further finds that the Trial Chamber properly applied this burden of proof. Sredoje Lukić refers to the Trial Chamber’s finding that “certain aspects of the alibi evidence [were] difficult to believe”,[10] as well as the finding that witness accounts were “implausible”.[11] The Appeals Chamber is of the view that these considerations do not indicate a reversal of the burden of proof.

106.    The Appeals Chamber considers that the defence of alibi implies that the person who raises it should establish before the Trial Chamber that objectively he was not in a position to commit the crime, particularly because he was in a place different from the one at which it was committed.  Rule 67 (A) (ii) of the Rules, same as the corresponding provision in ICTY Rules, covers the “Defence of alibi”. However, an alibi is based on evidence which the Accused intends to rely upon for an in-depth analysis of the Prosecution’s case in order to show that the Prosecution has failed to discharged the burden of proof that rests on it.  Now, since the Prosecution cannot anticipate the argument the Defence will raise, it is incumbent on the Defence to give the Prosecution notice of such argument. But this does not constitute an actual “defence”.  As ICTY Appeals Chamber pointed out in Čelebići:

“It is a common misuse of the word to describe an alibi as a “defence”.  If a defendant raises an alibi, he is merely denying that he was in a position to commit the crime with which he is charged.  That is not a defence in its true sense at all.  By raising that issue, the defendant does not more that require the Prosecution to eliminate the reasonable possibility that the alibi is true”.[1]  (Emphasis added)

107.    The Appeals Chamber stresses that this position was followed recently in the Foca case, where ICTY Trial Chamber held that

“The Prosecution bore the onus of establishing the facts alleged in the Indictment.  Having raised the issue of alibi, the accused bore no onus in establishing that alibi.  It was for the Prosecution to establish that, despite the evidence of the alibi, the facts alleged in the Indictment were nevertheless true”.[2]]

          The Appeals Chamber recalls that in conformity with the principle of presumption of innocence, as enunciated in the Judgement,[3] supra, it is the duty of the Prosecution to prove the guilt of the accused beyond reasonable doubt.

108.    […] [T]he Appeals Chamber recalls that in a criminal case, the accused’s role at the level of preparation of the case should not be confused with his role at the trial stage before the Trial Chamber.

109.    Indeed, the Appeals Chamber notes that Rule 67 (A) (ii) of the Rules of Procedure and Evidence provides that when the Defence intends to enter the defence of alibi, in addition to the duty to notify the Prosecutor thereof, the accused must also provide the evidence upon which he intends to rely to establish his alibi.[4] This rule, which applies at the level of case-preparation, only governs the reciprocal disclosure of evidence.

110.    The Appeals Chamber is therefore of the opinion that this provision places no onus of proof on the Defence, in that it does not require the Defence to prove the existence of the facts, but rather provides for disclosure of evidence in support of the alibi.  Thus, as reflected in Rule 67 referred to above, the Defence is required to disclose to the Prosecutor the place or places at which the accused claims to have been present at the time of the alleged crimes and, if it so desires, produce probative evidence tending to show that since the accused was at a particular location at a specific time, there was cause for reasonable doubt as to his presence at the scene of the crime at the alleged time.  The accused is therefore at liberty to provide the Prosecution with such evidence as may establish the credibility of the alibi raised.

111.    Consequently, it is the opinion of the Appeals Chamber that the purpose of entering a defence of alibi or establishing it at the stage of reciprocal disclosure of evidence is only to enable the Prosecutor to consolidate evidence of the accused’s criminal responsibility with respect to the crimes charged. Thus, during the trial, it is up to the accused to adopt a defence strategy enabling him to raise a doubt in the minds of the Judges as to his responsibility for the said crimes, and this, by adducing evidence to justify or prove the alibi.

112.    […] The Appeals Chamber is aware of the fact that failure to prove an alibi must not be construed as an indication of the Accused’s guilt.[5] However, the Chamber affirms that the issue of disclosure of evidence falls within the preparation of the case and precedes the production of evidence at trial. If the Defence is not in a position to produce evidence of the accused’s whereabouts, it is, nevertheless, at liberty to disclose to the Prosecutor, and then produce before the Trial Chamber, all evidentiary material likely to raise doubts as to the accused’s responsibility for the crimes charged.  Accordingly, the Appeals Chamber holds that this cannot be considered as shifting the burden of proof at the trial.

113.    The Appeals Chamber recalls that at the trial stage, the Trial Chamber limited itself to assessing the evidence presented by the parties.  The Prosecutor must always prove the existence of the facts charged as well as the accused’s responsibility therefor.  The Defence, for its part, must produce evidence before the Chamber in support of its claims that the crimes charged cannot be imputed to the accused because of his alibi.  However, in that case, the burden of proof is not shouldered by the Defence. It is merely required to produce evidence likely to raise reasonable doubt regarding the case of the Prosecution.

5.       Rule 142 of the Rules provides for the admission of additional evidence on appeal, and the Appeals Chamber finds that, in accordance with the jurisprudence of the ICTR and the International Tribunal for the former Yugoslavia (“ICTY”), this provision is applicable to appeals of decisions issued pursuant Rule 14 of the Rules.[1] According to Rule 142(A) of the Rules, a motion for the admission of additional evidence shall clearly identify with precision the specific finding of fact made by the trial chamber to which the evidence is directed. For additional evidence to be admissible under Rule 142(C) of the Rules, the applicant must demonstrate that the additional evidence was not available at trial in any form, or discoverable through the exercise of due diligence.[2] The applicant must also show that the additional evidence is relevant to a material issue at trial and credible.[3] Once it has been determined that the additional evidence meets these conditions, the Appeals Chamber will determine in accordance with Rule 142(C) of the Rules whether it could have been a decisive factor in reaching the Impugned Decision.[4]

6.       Where, however, the evidence was available during the revocation proceedings or could have been discovered through the exercise of due diligence, it may still be admissible on appeal pursuant to Rule 142(C) of the Rules if the applicant shows that the exclusion of the additional evidence would lead to a miscarriage of justice, in that, if it had been admitted at trial, it would have had an impact on the Impugned Decision.[5]

7.       In both cases, the applicant bears the burden of identifying with precision the specific finding of fact made by the trial chamber to which the additional evidence pertains, and of specifying with sufficient clarity the impact the additional evidence could or would have had upon the trial chamber’s decision.[6] An applicant who fails to do so runs the risk that the tendered material will be rejected without detailed consideration.[7]

See also para. 39.

Pages 4-5:

RECALLING that the Registry has the primary responsibility for matters relating to remuneration of counsel in respect of which it enjoys a margin of appreciation;[1]

REITERATING, however, that the Appeals Chamber has the inherent power to review matters affecting the rights of persons in proceedings before it, including the right to have adequate time and facilities for the preparation of defence, pursuant to its statutory obligation to ensure the fairness of the proceedings;[2]

CONSIDERING that the inherent power to review such matters encompasses the power to make determinations concerning such matters where necessary to give full effect to statutory rights;[3]

RECALLING the statutory right of an accused to have legal assistance assigned to him where the interests of justice so require and without payment if he does not have sufficient means to pay for it;[4]

RECALLING that the Directive was established to ensure legal assistance to indigent accused in the most efficient, economical, and equitable manner in order to safeguard the rights afforded under the Statute and the Rules;[5]

CONSIDERING the UN Guidelines on Access to Legal Aid, which provide that “[a] court may, having regard to the particular circumstances of a person and after considering the reasons for denial of legal aid, direct that that person be provided with legal aid, with or without his or her contribution, when the interests of justice so require”;[6]

[…]

CONSIDERING that the burden of proof is on the applicant for legal aid to demonstrate his inability to remunerate counsel and that once the applicant has provided information regarding his inability to do so the burden of proof shifts to the Registry to prove otherwise based on the balance of probablities;[7]

116. The Appeals Chamber recalls that decisions on taking judicial notice of adjudicated facts fall within the discretion of trial chambers.[1] In order to successfully challenge a discretionary decision, a party must demonstrate that the trial chamber committed a discernible error resulting in prejudice to that party.[2]

117. Rule 94(B) of the ICTY Rules provides that, at the request of a party or proprio motu, a trial chamber, after hearing the parties, may take judicial notice of adjudicated facts or documentary evidence from other proceedings of the ICTY relating to the matter at issue. Adjudicated facts are “facts that have been established in a proceeding between other parties on the basis of the evidence the parties to that proceeding chose to introduce, in the particular context of that proceeding”.[3] Judicial notice should not be taken of adjudicated facts relating to the acts, conduct, and mental state of an accused.[4]

118. It is not disputed that the practice of taking judicial notice of adjudicated facts is well-established in the jurisprudence of the ICTY and the ICTR,[5] and it is accepted as a method of achieving judicial economy while ensuring the right of an accused to a fair and expeditious trial.[6] In this respect, a number of procedural safeguards are set out in the jurisprudence,[7] which are intended to ensure that trial chambers exercise their discretion cautiously and in accordance with the rights of the accused, including the right to be presumed innocent until proven guilty pursuant to Article 21(3) of the ICTY Statute.[8]

119. […] Karadžić challenges the “constitutionality” of the practice of taking judicial notice of adjudicated facts, notwithstanding the express provision for it in the ICTY Rules.[9] The Appeals Chamber recalls that, where the respective Rules or Statute of the ICTY are at issue, it is bound to consider the relevant precedent when interpreting them.[10] This Appeals Chamber is presently being called upon to assess the propriety of decisions taken by an ICTY trial chamber, that was bound by the ICTY Rules and the ICTY Statute as well as by decisions of the ICTY Appeals Chamber.[11] Bearing this context in mind, the Appeals Chamber is guided by the principle that, in the interests of legal certainty and predictability, it should follow previous decisions of the ICTY and the ICTR Appeals Chambers and depart from them only where cogent reasons in the interests of justice exist, that is, where a previous decision has been decided on the basis of a wrong legal principle or has been “wrongly decided, usually because the judge or judges were ill‑informed about the applicable law”.[12] Therefore, in order to succeed on appeal, Karadžić must demonstrate that there are cogent reasons in the interests of justice that justify departure from jurisprudence on judicial notice of adjudicated facts.

120. The Appeals Chambers of the ICTY and the ICTR have consistently held that judicial notice of adjudicated facts is merely a presumption that may be rebutted by defence evidence at trial.[13] Judicial notice of adjudicated facts “does not shift the ultimate burden of persuasion, which remains with the Prosecution” but only relieves the Prosecution of the initial burden to produce evidence on the given point.[14]

121. The Appeals Chamber notes that the concern that accused in other cases may have focused their defence on arguing that they were not responsible for the perpetrators of crimes rather than on contesting the existence of crimes is one of the reasons why judicial notice may not be taken of adjudicated facts from other cases relating to the acts, conduct, and mental state of the accused.[15] It is, nevertheless, permissible to take judicial notice of adjudicated facts relating directly or indirectly to an accused’s guilt,[16] for example, of facts relating to the existence of a joint criminal enterprise, the conduct of its members other than the accused, and the conduct of physical perpetrators of crimes for which an accused is alleged to be criminally responsible.[17] This is as long as the burden remains on the Prosecution to establish the actus reus and the mens rea supporting the responsibility of the accused for the crimes in question by evidence other than judicial notice.[18] In addition, the discretion to accept adjudicated facts is limited by the need to ensure the accused’s right to a fair and expeditious trial.[19] Apart from disagreeing with the case law, Karadžić fails to demonstrate that there are cogent reasons in the interests of justice to depart from consistent jurisprudence of the ICTR and the ICTY on this matter.

122. The Appeals Chamber does not consider that by taking judicial notice of the existence of a crime committed by Karadžić’s alleged subordinates,[20] for example, the Trial Chamber relieved the Prosecution from proving the actus reus of the crimes charged in the Indictment. The Appeals Chamber recalls that there is a distinction between facts related to the conduct of physical perpetrators of a crime for which an accused is being alleged criminally responsible through another mode of liability and those related to the acts and conduct of the accused himself.[21] The burden remained on the Prosecution to establish by evidence other than judicial notice that Karadžić possessed the relevant mens rea and engaged in the required actus reus to be held responsible for the crimes established by way of judicial notice of adjudicated facts.  

123. Finally, the Appeals Chamber finds without merit Karadžić’s submission that judicial notice of adjudicated facts deprives an accused of the possibility that a trial chamber would reach a different conclusion had it heard the evidence itself. The Appeals Chamber recalls that adjudicated facts are not accepted as conclusive in proceedings involving parties who did not have the chance to contest them,[22] and, as noted above, are merely presumptions that may be rebutted with evidence at trial.[23]

[…]

219. The Appeals Chamber recalls that taking judicial notice of adjudicated facts or documentary evidence under Rule 94(B) of the ICTY Rules is a method of achieving judicial economy while ensuring the right of the accused to a fair, public, and expeditious trial.[24] Rule 94(B) of the ICTY Rules requires a trial chamber to hear the parties before deciding to take judicial notice.[25] Moreover, facts admitted under Rule 94(B) of the ICTY Rules are merely presumptions that may be rebutted by the defence with evidence at trial.[26] Consequently, judicial notice of adjudicated facts does not shift the ultimate burden of proof or persuasion, which remains squarely on the Prosecution.[27]

220. […] The fact that the Trial Chamber took judicial notice of considerably more adjudicated facts than in other cases does not, in itself, render the trial unfair as long as the Trial Chamber followed the procedure provided for in the ICTY Rules. In this respect, Karadžić’s comparison of the number of judicially noticed adjudicated facts in his case with other cases fails to account for factors such as the unprecedented scope and size of his own trial in relation to others.

See also paras. 221, 222.