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Appeal Judgement II - 01.04.2011 MUVUNYI Tharcisse

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]

[1] Trial Judgement, para. 57.

[2] See Nchamihigo Appeal Judgement, para. 47; Bikindi Appeal Judgement, para. 114; Simba Appeal Judgement, para. 9; Nahimana et al. Appeal Judgement, paras. 14, 194; Ndindabahizi Appeal Judgement, para. 34; Ntagerura et al. Appeal Judgement, paras. 12, 213; Semanza Appeal Judgement, para. 8; Ntakirutimana Appeal Judgement, paras. 12, 204, 244; Kamuhanda Appeal Judgement, para. 138; Kayishema and Ruzindana Appeal Judgement, para. 222. See also Edouard Karemera et al. v. The Prosecutor, Case No. ICTR-98-44-AR15bis.2, Reasons for Decision on Interlocutory Appeals Regarding the Continuation of Proceedings with a Substitute Judge and on Nzirorera’s Motion for Leave to Consider New Material, 22 October 2004, para. 60.

[3] Ntakirutimana Appeal Judgement, para. 244.

[4] Muvunyi I Appeal Judgement, para. 128.

[5] The Appeals Chamber finds no merit to Muvunyi’s contention that the allegation in the Indictment refers to a meeting involving Aloys Simba. The Indictment does not identify Simba as the Chairman of Civil Defence in Butare Prefecture. See Indictment, para. 3.24.

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Appeal Judgement - 29.09.2014 NIZEYIMANA Ildéphonse

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]

[1] Cf. Nahimana et al. Appeal Judgement, para. 195. The Appeals Chamber notes that the Trial Chamber recalled, in several instances, its central role in assessing witnesses’ demeanour and credibility. See, e.g., Trial Judgement, paras. 731, 1287. It also noted that it is not always possible to capture its reasons for its findings on a witness’s demeanour on paper. See Trial Judgement, para. 1288.

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Decision on Substitute Judge and New Material - 22.10.2004 KAREMERA et al.

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.

[1] For example in Rutaganda, the Appeals Chamber stated the following: “It is an established principle that a high degree of deference must be shown to the factual findings of a Trial Chamber, and the Appeals Chamber has regularly recalled that it will not lightly disturb findings of fact by a Trial Chamber. Such deference is based essentially on the fact that the Trial Chamber has the advantage of observing witnesses in person and hearing them when they are testifying, and so are better placed to choose between divergent accounts of one and the same event. Trial Judges are better placed than the Appeals Chamber to assess witness reliability and credibility, and to determine the probative value to ascribe to the evidence presented at trial.Rutaganda v. Prosecutor, Case No. ICTR-96-3-A, Judgement, 26 May 2003, para. 21 (citations omitted, emphasis added). The Appeals Chamber also observed that in reviewing the factual findings of Trial Chambers it only has at its disposal transcripts of the testimonies. Id. n. 36.

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Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)

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] […]

[1] The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR15bis.3, Decision on Appeals pursuant to Rule 15bis(D), 20 April 2007 (“Karemera et al. 20 April 2007 Appeal Decision”), para. 42, quoting Appeal Decision on Continuation of Trial [The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A15bis, Decision in the Matter of Proceedings under Rule 15bis(D), 24 September 2003], para. 25. See also Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-AR15bis, Decision on Appeal Against Decision on Continuation of Proceedings, 6 June 2014, para. 37; Appeal Decision on Continuation of Trial, para. 33 (“But [the substitute judge] may feel that, even in the absence of video‑recordings, the record of proceedings is enough to enable him to appreciate what has happened. Failure to review video-recordings which, because they are non-existent, do not form part of the record of the proceedings, does not mean that the judge has not familiarized himself with the record of the proceedings as the record stands and therefore does not disqualify him from joining the bench. He may decide to join the bench with any questions of demeanour being left to be resolved”.).

[2] The Appeals Chamber notes that the Oxford Dictionary defines “demeanour” as the “manner of comporting oneself outwardly or towards others”.

[3] See supra, para. 140.

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