Cumulative criteria and the extent of the analysis
| Notion(s) | Filing | Case |
|---|---|---|
| Decision on Review - 19.03.2009 |
NALETILIĆ Mladen (IT-98-34-R) |
|
|
The Applicant alleged the existence of new facts demonstrating that the testimony of one key-witness was false and thus proving the Applicant’s innocence in relation to the crimes for which he was convicted. The Appeals Chamber found that none of the allegations constituted new facts that would justify a review. Nonetheless, it went on observing that the Applicant also failed to demonstrate that some of the evidence provided could not have been discovered through the exercise of due diligence and presented at trial. It finally considered that, in any event, the Applicant failed to demonstrate that these alleged new facts could have been a decisive factor in the Trial or Appeal Judgement (see paras 24-37). |
ICTR Statute Article 25 ICTY Statute Article 26 | |
| Notion(s) | Filing | Case |
| Review Decision - 30.06.2006 |
NIYITEGEKA Eliézer (ICTR-96-14-R) |
|
|
Paras 12, 16, 21, 25, 30, 36: the Appeals Chamber after having recalled the cumulative nature of the criteria for review in para. 7, as previously set out in Josipović,[1] and having concluded that none of the alleged issues met the first criterion of “new fact” within the meaning of Article 25 of the Statute and Rule 120 of the Rules of the Tribunal, ruled that it was not obliged to examine them further. This determination conforms to previous approaches adopted by the Appeals Chamber, halting the analysis at the first criterion upon concluding that no “new fact” is presented.[2] Nevertheless, the Appeals Chamber proceeded to consider whether, assuming the proffered material could be characterised as a “new fact”, it could have been a decisive factor in reaching the original decision.[3] The approach of the Appeals Chamber in this case, as in previous cases, was to consider the fourth criterion of “decisive factor” after finding that the first criterion is not met.[4] The Appeals Chamber adopted this approach out of an abundance of caution and not because the requirement of a “new fact” can be waived to avoid a miscarriage of justice. [1] Prosecutor v. Drago Josipović, Case No. IT-95-16-R2, Decision on Motion for Review, 7 March 2003, para. 21. [2] Prosecutor v Goran Jelisić, Case No. IT-95-10-R, Decision on Motion for Review, 2 May 2002, p. 3. [3] Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R, 30 June 2006, paras 13‑14,17‑19, 22‑23, 26‑28, 31‑32, 37‑40. [4] See Prosecutor v. Drago Josipović, Case No. IT-95-16-R2, Decision on Motion for Review, 2 April 2004, pages 4‑5. |
ICTR Statute Article 25 ICTY Statute Article 26 ICTR Rule Rule 120 ICTY Rule Rule 119 | |
| Notion(s) | Filing | Case |
| Review Decision - 23.11.2006 |
BLAŠKIĆ Tihomir (IT-95-14-R) |
|
|
7. The combined effect of Article 26 of the Statute and Rules 119 and 120 of the Rules is such that for a moving party to succeed in persuading a Chamber to review its judgement, the party must first satisfy the following cumulative requirements:[1] a) there is a new fact; b) the new fact was not known to the moving party at the time of the original proceedings; c) the failure to discover the new fact was not due to a lack of due diligence on the part of the moving party; and d) the new fact could have been a decisive factor in reaching the original decision. 8. In “wholly exceptional circumstances”, review may still be permitted even though the new fact was known to the moving party, or was discoverable by it through the exercise of due diligence.[2] In such a case, where a Chamber “is presented with a new fact that is of such strength that it would affect the verdict […],” it may determine that review of its judgement is necessary because the impact of the new fact on the decision is such that to ignore it would lead to a miscarriage of justice.[3] [1] See Prosecutor v Josipović, Case No. IT-95-16-R2, Decision on Motion for Review, 7 March 2003 para. 12 (“Josipović Review Decision”). See also Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R, Decision on Request for Review, 30 June 2006 (“Niyitegeka Review Decision”), paras. 6-7; Prosecutor v. Žigić, Case No. IT-98-30/1-R.2, Decision on Zoran Žigić’s Request for Review under Rule 119, 25 August 2006, para. 8; Prosecutor v. Radić, Case No. IT-98-30/1-R.1, Decision on Defence Request for Review, 31 October 2006 (“Radić Review Decision”), para. 10. [2] Josipović Review Decision, para. 13, citing Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision on Prosecutor’s Request for Review or Reconsideration, 31 March 2000 (“Barayagwiza Review Decision”), para. 15; Niyitegeka Review Decision, para. 7; Radić Review Decision, para. 11. [3] Prosecutor v Tadić, Case No. IT-94-1-R, Decision on Motion for Review, 30 July 2002 (“Tadić Review Decision”), paras. 26, 27 (emphasis added). |
ICTR Statute Article 25 ICTY Statute Article 26 ICTR Rule Rule 120; Rule 121 ICTY Rule Rule 119; Rule 120 | |