34. The fact that there had been a meeting held at Samvura’s house on the morning of 7 April 1994 involving the Appellant and distribution of arms is not in itself decisive for the Trial Chamber’s conclusion as to the Appellant’s responsibility for killings of the Tutsi civilians in Gisenyi. In fact, the Trial Chamber concluded that there was no evidence that the Appellant was present during the killings of 7 April 1994 and that, on that morning, the Appellant ordered the Interahamwe to kill the Tutsi and to prepare graves in Commune Rouge. Consequently, the principal issue is whether, should the Trial Chamber have had the benefit of hearing the testimony of Witness ABC1, it would have disbelieved Witness EB with respect to the events that took place on the morning of 7 April 1994. In the presence of contradictory accounts of the two witnesses, the Trial Chamber would have had to determine which of the accounts was reliable and, in light of evidence provided by Witness ABC1 in the Bagosora et al. case and the fact that [REDACTED], the Appeals Chamber is not satisfied that a reasonable trier of fact would have found this witness credible to the detriment of the account provided by Witness EB. Moreover, Witness ABC1 in the Bagosora et al. case only testified to the fact that the Appellant was not at [Samvura’s] house that morning and that there was no meeting there. The mere fact that [Witness ABC1] did not witness or hear him ordering the killings does not mean that this could not have occurred.The Appeals Chamber notes to this extent that Witness EB testified that the Appellant ordered the killing through a loudspeaker from his vehicle and not during the meeting at Samvura’s house.Consequently, and in light of the findings above concerning Witnesses AHI and AGX, the Appeals Chamber is not satisfied that the exclusion of the proffered additional evidence would amount to a miscarriage of justice inasmuch as, had it been adduced at trial, it would not have had an impact on the verdict.

At paras 19-22, the Appeals Chamber recalls the criteria of admissibility of additional evidence on appeal under Rule 115, inter alia, the time limit, the unavailability at trial, the relevance, the credibility and the impact on the verdict:

19. Rule 115 of the Rules provides for a corrective measure on appeal, and its purpose is to deal “with the situation where a party is in possession of material that was not before the court of first instance and which is additional evidence of a fact or issue litigated at trial”.[1] According to this provision, for additional evidence to be admissible on appeal, the following requirements must be met. First, the motion to present additional evidence should be filed “not later than thirty days from the date for filing of the brief in reply, unless good cause or, after the appeal hearing, cogent reasons are shown for further delay”.[2] Second, the Appeals Chamber must find “that the additional evidence was not available at trial and is relevant and credible.” When determining the availability at trial, the Appeals Chamber is mindful of the following principles:

[T]he party in question must show that it sought to make “appropriate use of all mechanisms of protection and compulsion available under the Statute and the Rules of the International Tribunal to bring evidence […] before the Trial Chamber.” In this connection, Counsel is expected to apprise the Trial Chamber of all the difficulties he or she encounters in obtaining the evidence in question, including any problems of intimidation, and his or her inability to locate certain witnesses. The obligation to apprise the Trial Chamber constitutes not only a first step in exercising due diligence but also a means of self-protection in that non-cooperation of the prospective witness is recorded contemporaneously.[3]

With regards to relevance, the Appeals Chamber will consider whether the proposed evidence sought to be admitted relates to a material issue. As to credibility, the Appeals Chamber will only refuse to admit evidence at this stage if “it is devoid of any probative value in relation to a decision pursuant to Rule 115”[4], without prejudice to a determination of the weight to be afforded.[5]

20. Once it has been determined that the additional evidence meets these conditions, the Appeals Chamber will determine whether the evidence “could have been a decisive factor in reaching the decision at trial.”[6] To satisfy this, the evidence must be such that it could have had an impact on the verdict, i.e. it could have shown that a conviction was unsafe.[7] Accordingly, the additional evidence must be directed at a specific finding of fact related to a conviction or to the sentence.

21. Although Rule 115 of the Rules does not explicitly provide for this, the Appeals Chamber has considered that, where the evidence is relevant and credible, but was available at trial, or could have been discovered through the exercise of due diligence, the additional evidence may still be admitted if the moving party establishes that the exclusion of the additional evidence would amount to a miscarriage of justice inasmuch as, had it been adduced at trial, it would have had an impact on the verdict.[8]

22. Finally, the Appeals Chamber recalls that, whether the evidence was available at trial or not, the additional evidence must always be assessed in the context of the evidence presented at trial, and not in isolation.[9]

Pages 2, 3:

RECALLING that, pursuant to Rule 3(F) of the Rules, if a party is required to take any action within a specified time after the filing or service of a document by another party, and pursuant to the Rules, that document is filed in a language other than one of the working languages of the Mechanism, time shall not run until the party required to take action has received from the Registrar a translation of the document into one of the working languages of the Mechanism;

RECALLING FURTHER that, pursuant to paragraph 12 of the Practice Direction, where a party applies to present additional evidence pursuant to Rule 142 of the Rules, the “relevant documents and exhibits, where applicable, shall be translated into one of the languages of the Mechanism”;

[…]

CONSIDERING that, pursuant to Rule 3(F) of the Rules, the time for the Prosecution to respond to the relevant Rule 142 Motions should not run until it has received a translation of the Affected Annexes into one of the working languages of the Mechanism;

CONSIDERING FURTHER that it is in the interests of justice and effective case management to synchronise the briefing schedule for the Rule 142 Motions;[1]

FINDING, therefore, that it is justified that the time for the filing of the Prosecution’s response(s), if any, to the Rule 142 Motions shall run from the date of service on the Prosecution of the final translation of the Affected Annexes;

[…]