30. With respect to the document in Annex 6 to the Motion, which indeed appears to be a different translation of Exhibit P01310,[1] the Appeals Chamber recalls that when the original language version of an exhibit is already part of the trial record, “the English translation of the exhibit does not constitute ‘new’ or ‘additional’ evidence pursuant to Rule 115 of the Rules”.[2] Moreover, challenges concerning the Trial Chamber’s interpretation of a translated document in evidence are matters for the consideration of the merits of the appeal.[3] Without prejudice to Popović’s respective arguments in his Appeal Brief, the Appeals Chamber therefore declines to consider the document in Annex 6 to the Motion for the purposes of admission of additional evidence on appeal.

29. In addition to the specificity requirement recalled above,[1] the Appeals Chamber emphasizes that motions filed pursuant to Rule 115 of the Rules must include, inter alia, “a precise list of the evidence the party is seeking to have presented”.[2] The Appeals Chamber notes that the Motion contains no such list and as a result lacks sufficient clarity as to which of the annexed documents are being tendered for admission as additional evidence on appeal. Indeed, the Motion only refers to the Report[3] and an allegedly revised translation of Exhibit P01310.[4] There are no arguments regarding the admissibility of the documents contained in Annexes 2-5 to the Motion.[5] The Appeals Chamber therefore finds that the formal requirements applicable to a motion seeking to present additional evidence on appeal have not been satisfied in relation to the documents submitted as Annexes 2-5 to the Motion, and will not consider them for the purposes of admission of additional evidence on appeal.[6]

39. […] As recalled above, the significance and potential impact of the tendered material must be assessed in the context of the evidence presented at trial.[7] Apart from a mere reference to his Appeal Brief,[8] which falls short of fulfilling the requirements recalled above, Popović does not show how the Report refutes any of the evidence relied upon by the Trial Chamber.

40. […] Furthermore, the Appeals Chamber will not entertain Popović’s references to his arguments with respect to the credibility of Momir Nikolić and other challenges presented as part of his appeal against the Trial Judgement. The Appeals Chamber emphasizes that an applicant under Rule 115 of the Rules must fulfil all the requirements applicable to motions for additional evidence; this cannot be done through mere references to an appellant’s brief.[9]

The Appeals Chamber restated in a concise manner the standard of review for admission of additional evidence (footnotes rearranged to have full names of decisions):

12. The admission of additional evidence on appeal is regulated under Rule 115 of the Rules. In order to be admissible pursuant to this Rule, the evidence put forward must satisfy a number of requirements. The applicant must first demonstrate that the additional evidence tendered on appeal was not available to him at trial in any form,[1] or discoverable through the exercise of due diligence.[2] The applicant’s duty to act with reasonable diligence includes making “appropriate use of all mechanisms of protection and compulsion available under the Statute and the Rules of the International Tribunal to bring evidence on behalf of an accused before the Trial Chamber.”[3]  He then must show that the evidence is both relevant to a material issue and credible, and that it could have had an impact on the verdict. In other words, the evidence must be such that, considered in the context of the evidence given at trial, it could demonstrate, in the case of a request by a defendant, that the conviction was unsafe.[4] A party seeking to admit additional evidence bears the burden of specifying with clarity the impact the additional evidence could have upon the Trial Chamber’s decision.[5]

13. If the evidence was available at trial, it may still be admissible on appeal if the applicant can meet the burden of establishing that exclusion of the evidence would lead to a miscarriage of justice, in that if it had been available at trial it would have affected the verdict.[6]

14. Whether the evidence was available at trial or not, the Appeals Chamber has repeatedly recognised that the evidence shall not be assessed in isolation, but in the context of the evidence given at the trial.[7]

15. Vojnović did not testify in the Šešelj case until after the Trial Judgement had been rendered; however, in determining whether the information was available at trial, the Appeals Chamber must also consider whether any of the information sought to be admitted was available in any other form during trial or could be obtained through due diligence. The Appeals Chamber considers that unless Vojnović specified in his testimony in the Šešelj case that he learned about new information after his testimony in the Mrkšić et al. case, it may be presumed that all the information adduced in his testimony in the Šešelj case was also available at the time of his testimony in the Mrkšić et al. case. Apart from Vojnović’s testimony that he met the chief of the Security Administration in 2008, it has not been shown that any of the information contained in Vojnović’s testimony became available to Mrkšić  after the closure of his case and is therefore found to have been available at trial. However, to the extent that evidence sought to be admitted relates to Vojnović’s credibility, the Appeals Chamber considers that, while at trial Mrkšić had the opportunity to cross-examine Vojnović on all relevant points, any statements or testimony given by Vojnović after the closure of the Mrkšić et al. case that allegedly contradict his testimony at trial were prima facie not available for the purposes of testing his credibility. As a result if Vojnović’s testimony in Šešelj did undermine the credibility of his evidence in Mrkšić et al., it will be considered to be new evidence.

See also para. 27.

473. Pursuant to Article 24 of the Statute the Appeals Chamber shall hear appeals from persons convicted by the Trial Chambers or from the Prosecutor on the grounds of an error of law invalidating the decision or an error of fact which has occasioned a miscarriage of justice. Where additional evidence has been admitted on appeal, the Appeals Chamber is required to determine whether the additional evidence actually reveals an error of fact of such magnitude as to occasion a miscarriage of justice.[1] In accordance with Rule 118(A) of the Rules and the relevant jurisprudence,[2] the test to be applied by the Appeals Chamber in deciding whether or not to uphold a conviction  where additional evidence has been admitted is: has the appellant established that no reasonable tribunal of fact could have reached a conclusion of guilt based upon the evidence before the Trial Chamber together with the additional evidence admitted during the appellate proceedings?[3] Where the Appeals Chamber finds that a reasonable trier of fact could have reached a conclusion of guilt based on the evidence before the Trial Chamber together with the additional evidence, it must uphold the Trial Chamber decision.

7. […] The Appeals Chamber also recalls that a hearing under Rule 115 of the Rules “is intended to be a sharply delimited proceeding for entering discrete, specific evidence into the record” and “is not intended to be a trial within a trial that opens the door to the exploration of every issue that might be raised during the hearing”.[1]

CONSIDERING that the admission of evidence is in the interests of justice if it is relevant to a material issue, if it is credible and if it is such that it would probably show that the conviction or sentence was unsafe;

[RULE 115 OF THE RULES OF PROCEDURE AND EVIDENCE WAS AMENDED ON 12 JULY 2002.]

The Appeals Chamber restated the applicable law with respect to the admissibility of the additional evidence on appeal:

5. Further, according to Rule 115 of the Rules of Procedure and Evidence of the Tribunal (“Rules”), for additional evidence to be admissible on appeal, the following requirements must be met. 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 will be 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.[1]

With regard 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 admit evidence at this stage only if it appears to be reasonably capable of belief or reliance. Admission of the evidence is without prejudice to the later determination of the weight that the new evidence will be afforded.[2]

6. 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.”[3] To satisfy this, the evidence must be such that it could have had an impact on the verdict, i.e. it, in the case of a request by a defendant, it could have shown that a conviction was unsafe.[4] Accordingly, the additional evidence must be directed at a specific finding of fact related to a conviction or to the sentence.

7. The Appeals Chamber has considered that, where the additional evidence is relevant and credible, but was available at trial, or could have been discovered through the exercise of due diligence, the evidence may still be admitted if the moving party establishes that its exclusion would amount to a miscarriage of justice, inasmuch as, had it been adduced at trial, it would have had an impact on the verdict.[5]

8. The Appeals Chamber recalls that, whether the additional evidence was available at trial or not, it must always be assessed in the context of the evidence presented at trial, and not in isolation.[6]

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] […]

Transcript of 19 May 2005, pp. 49-50:

Over the past two days, we have heard from two Defence witnesses under Rule 115, provisions for hearing additional evidence on appeal.  We have also heard from two Prosecution witnesses who were presented in the rebuttal to the Appellant's additional evidence, and we are now presented with a new motion by the Appellant to call yet two more witnesses who, the Appellant alleges, will challenge the testimony of one of the Prosecution's rebuttal witnesses. […]

At today's Rule 115 hearing a Prosecution witness alleged that two Tribunal employees approached her at the United Nations safe house where she was staying while testifying before this Tribunal in another case.  She further alleged that these two Tribunal employees offered to pay her money and give her substantial assistance in other ways if she would come back to this Court and recant her trial testimony in the Kamuhanda case.  The Appellant would now like to call these two Tribunal employees, presumably, for the purpose of getting them to deny having offered any bribes to the Prosecution witness in question.

For two reasons, the Appeals Chamber is not persuaded that this is appropriate.  First, this is a Rule 115 hearing, which is intended to be a sharply delimited proceeding for entering discrete, specific evidence into the record; it is not intended to be a trial within a trial that opens the door to the exploration of every issue that might be raised during the hearing.  Presenting these two witnesses would be a rejoinder to a rebuttal to the Defence's original Rule 115 evidence, and there is no guarantee that it would end there.

Second, the Appeals Chamber is not convinced that the witness's testimony will make a material difference to the Defence's case.  The Appeals Chamber simply does not believe that such evidence on the record would be at all helpful in assessing the credibility of the Prosecution's rebuttal witnesses.  The Appeals Chamber does not foreclose the possibility that if sufficiently compelling or unexpected evidence surfaces during a Rule 115 hearing, it might be required in the interests of justice to expand the hearing beyond its original scope.  But under the circumstances of this case the Appellant has failed to convince the Chamber that such truly exceptional circumstances exist.  The Appellant's motion is denied.

The Appeals Chamber decided to refer the allegations of contempt and false testimony, which arose during the course of the Rule 115 proceedings, to the Prosecution for general investigation. See pp. 50-51.

The Appeals Chamber recalls the criteria of admissibility of additional evidence on appeal under Rule 115:

5. Rule 115 of the Rules provides a mechanism for admission of additional evidence on appeal 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 Rule 115(A) of the Rules, a motion for additional evidence shall clearly identify with precision the specific finding of fact made by the Trial Chamber to which the additional evidence is directed. In addition, Rule 115(B) of the Rules provides that the additional evidence must not have been available at trial and must be relevant and credible. When determining the availability at trial, the Appeals Chamber will consider whether the party tendering the evidence has shown 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.” Once it has been determined that the additional evidence meets these conditions, the Appeals Chamber will determine in accordance with Rule 115(B) of the Rules whether it could have been a decisive factor in reaching the decision at trial.

6. Furthermore, in accordance with established jurisprudence, where the proffered evidence is relevant and credible, but was available at trial, or could have been discovered through the exercise of due diligence, the Appeals Chamber may still allow it to be admitted on appeal provided the moving party can establish that its exclusion would amount to a miscarriage of justice.[3] That is, it must be demonstrated that had the additional evidence been adduced at trial, it would have had an impact on the verdict.[4]

The Appeals Chamber also noted, in footnote 24, that:

The Appeals Chamber notes that a party seeking the admission of additional evidence on appeal must provide to the Appeals Chamber the evidence sought to be admitted to allow it to determine whether the evidence meets the requirements of relevance and credibility. See Muvunyi Decision, para. 8; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Appellant Jean-Bosco Barayagwiza’s Motion for Leave to Present Additional Evidence Pursuant to Rule 115, 5 May 2006, para. 18; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Appellant Hassan Ngeze’s Motion for Leave to Present Additional Evidence, 14 February 2005, p. 3. See also Prosecutor v. Zoran Kupreškić et al., Case No. IT-95-16-A, “Decision on the Motions of Drago Josipović, Zoran Kupreškić and Vlatko Kupreškić to Admit Additional Evidence Pursuant to Rule 115 and for Judicial Notice to Be Taken Pursuant to Rule 94(B)”, 8 May 2001, para. 5.

It therefore held that:

9. The affidavits that Kanyarukiga seeks to have admitted may be relevant to establishing that the witnesses’ fear about testifying is not simply subjective, but that there is evidence of actual interference by the Rwandan security services in the administration of justice, and thus that the Trial Chamber erred in finding that witnesses will not generally face risks if they testify. However, Kanyarukiga has not attached the affidavits to his Motion, nor has he described the content of these affidavits in sufficient detail which would allow the Appeals Chamber to assess whether they are relevant to demonstrating actual interference in the administration of justice, or whether they simply address the witnesses’ subjective fears, which would be relevant only in the sense of supporting the Trial Chamber’s findings rather than in showing that it erred. The Appeals Chamber also does not have enough information to assess the credibility of the affidavits.

In this decision, the Appeals Chamber dealt with a motion by the Defence for Vujadin Popović, seeking the admission, as additional evidence on appeal, of his statement given pursuant to Rule 92 ter of the Rules of Procedure and Evidence of the Tribunal and his testimony on 5 and 6 November 2013 in the case of Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T.

CONSIDERING that Popović could have exercised his right to testify in his own defence at trial;[1]

8. The Appeals Chamber recalls that “it has the authority to summon a witness, in appropriate circumstances, to testify before the Chamber so as to facilitate the effective conduct of appeal proceedings, and especially Rule 115’s power to admit additional evidence”.[1] However, the purpose of Rule 115 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.”[2] The Appeals Chamber considers that Rule 115 of the Rules does not permit a party to merely request a particular person to be summoned as a witness to give evidence at the appellate stage.[3] As repeatedly held, a party seeking the admission of additional evidence on appeal must provide the Appeals Chamber with the evidence sought to be admitted.[4] Where a party seeks to call a witness at the appellate stage, it needs to provide a statement or other documentation of the potential witness’s proposed evidence,[5] which the Appeals Chamber may admit as additional evidence pursuant to Rule 115 and on the basis of which it may determine whether calling the witness to testify on appeal is necessary.[6]

9. In the present case, Bagosora has not provided the Appeals Chamber with any statement from Gatsinzi or any documentation that may be admissible as additional evidence and the contents of which would prompt the Appeals Chamber to call the witness to testify in person. Bagosora explains that he could not procure a statement from Gatsinzi because Gatsinzi was unwilling to cooperate with his Defence.[7] In addition, although Bagosora provides no alternative documentation on appeal, the Appeals Chamber notes that Bagosora introduced aspects of Gatsinzi’s potential testimony into evidence at trial in the form of Exhibits DB256 (Gatsinzi Pro Justitia Statement dated 16 June 1995), DB274 (Audio-recording of Jean Kambanda’s Speech and portion of Gatsinzi’s Interview with a journalist of Radio Rwanda of 10 April 1994), and DB284 (Book written by Jacques Roger Booh-Booh titled “Le Patron de Dallaire parle”). In the absence of any material from Gatsinzi that Bagosora can legitimately seek to admit as “additional evidence”, the Appeals Chamber considers that Bagosora’s request for an order to call Gatsinzi as a witness pursuant to Rule 115 of the Rules cannot be granted.

11. Due to the apparent inconsistencies of the Rule 115 Motion with the formal requirements set out in Paragraph 7 of the Practice Direction on Formal Requirements for Appeals from Judgement (“Practice Direction”),[1] the Pre-Appeal Judge ordered the Appellant to “re-file, no later than 30 January 2006, appendices to the Rule 115 Motion which should be copies of the evidence that he is applying to present before the Appeals Chamber in strict accordance with the precise list of such evidence already contained in his Rule 115 Motion”.[2]

13. The Appeals Chamber accepts the documents annexed to the Corrigendum to Rule 115 Motion only inasmuch as they correspond to the pieces of evidence mentioned in the Rule 115 Motion itself but omitted from its annexes. Indeed, the Corrigendum to Rule 115 Motion cannot be used to widen the scope of the Rule 115 Motion.

18. The Appeals Chamber recalls that a party seeking the admission of additional evidence on appeal must provide the Appeals Chamber with the evidence sought to be admitted.[3] For the sake of clarity and in light of the Appeals Chamber’s findings above,[4] the Appeals Chamber notes that not all of the materials referred to in the Rule 115 Motion and/or contained in the Annexes thereto can in fact be considered as meeting the formal requirements for submission of additional evidence to be considered for admission on appeal.

19. In particular, pursuant to Article 7 of the Practice Direction,[5] the following documents should fall out of the consideration by the Appeals Chamber since they were either not annexed to the Rule 115 Motion and not later submitted with the Corrigendum or were annexed to the Rule 115 Motion but not listed therein and the Rule 115 Motion thus contains no arguments as to their admissibility: […] While he admits that these two documents “fall within the generic description” contained in the Rule 115 Motion,[6] he persists that they “should be considered as evidence which may undermine the convictions”[7] but does not make any argument as to their admissibility in his Rule 115 Motion.[8] The Appellant re-filed these documents in his Corrigendum to the Rule 115 Motion despite a clear indication of the discrepancy between the contents of his Rule 115 Motion and Annexes thereto made to him by the Pre-Appeal Judge.[9] Therefore, the Appeals Chamber does not consider Annex 1 and Annex 2 as documents tendered as additional evidence on appeal.

21. Finally, the Appellant tenders a number of documents (all referred to in the Rule 115 Motion but not attached as Annexes),[10] which were in fact already admitted into evidence at trial and therefore do not constitute “additional evidence” to be admitted in this case. The Appeal Chamber notes that it is consequently not necessary to examine them in considering the Rule 115 Motion.[11]

22. As to the remainder of the material tendered as additional evidence on appeal, under Rule 115 (A) of the Rules, a motion to present additional evidence on appeal must be filed “not later than seventy-five days from the date of the judgement”, which in this case was 16 February 2004, “unless good cause is shown for further delay.”

25. The Appeals Chamber considers that the Appellant has failed to show good cause for the late filing of his Rule 115 Motion. […]

26. Even if the Appeals Chamber were to count the seventy-five days period from the date on which the Appellant claims that the current Defence team was complete (13 June 2005), such that the deadline for filing the Rule 115 Motion would have been 27 August 2005, the Rule 115 Motion would still have been filed 123 days late. The Appeals Chamber reiterates that “a Counsel, when accepting assignment as Lead Counsel in a case before the Tribunal, is under an obligation to give absolute priority to observe the time limits as foreseen in the Rules.”[1] The Appeals Chamber is not convinced by the Appellant’s argument that the Defence team could not file a timely motion for admission of additional evidence under Rule 115 because it had to focus on preparation of the Amended Notice of Appeal and Amended Appellant’s Brief. The Appeals Chamber recalls that the Appellant was granted generous extensions of time for filing these submissions as early as May 2005, such that both were accepted as timely filed on 12 October 2005. The additional time allowed for preparing the Amended Notice of Appeal and Amended Appellant’s Brief should have allowed for the Appellant to work with his Defence team to prepare a timely motion pursuant to Rule 115. 

9. As recalled above, the time-limit for the filing of a motion to admit additional evidence is thirty days from the date for filing of the brief in reply, unless good cause is shown for delay.[1] The Appeals Chamber understands that through the Motion Giving Notice of Delay, the Appellant seeks to show good cause for the delayed filing of his First Rule 115 Motion. The Appeals Chamber notes that where arguments are made demonstrating good cause for a late filing after the filing deadline has passed, as a matter of practice, that showing is normally made as part of the Rule 115 motion itself with a request that the motion be recognized as validly filed. Thus, the Appeals Chamber will consider the arguments contained in the Motion Giving Notice of Delay when disposing of the Appellant’s submissions concerning good cause for the late filing of his First Rule 115 Motion as follows.

16. […] The Appeals Chamber recalls that “the good cause requirement obliges the moving party to demonstrate that it was not able to comply with the time limit set out in the Rule, and that it submitted the motion in question as soon as possible after it became aware of the existence of the evidence sought to be admitted”.[2]

20. In light of the above, the Appeals Chamber concludes that the Appellant has not shown good cause for the late filing of any of the documents proffered as additional evidence. The Appeals Chamber thus finds no need to consider the merits of the First Rule 115 Motion[3] and dismisses it in its entirety.

24. As with the First Rule 115 Motion, the Second Rule 115 Motion was filed eight months after the expiry of the time period stipulated under Rule 115(A) of the Rules. The Appellant submits that the documents proffered as additional evidence were obtained by him during the month of July 2006, when he received an electronic file called [REDACTED], a non-governmental research institute based in the United States which “collects and publishes declassified documents obtained through the Freedom of Information Act”.[4] The Appeals Chamber is therefore satisfied that there is good cause justifying the late filing of the Second Rule 115 Motion.

38. As a preliminary matter, the Appeals Chamber observes that the Reply to the Third Rule 115 Motion was filed after the time-limit for its filing had expired. The Appeals Chamber notes the Appellant’s explanation that he received the Prosecution’s Response to the Third Rule 115 Motion only on 27 November 2006, and thus accepts it as validly filed.

39. […] Considering that the Appellant received the material in August 2006 only, the Appeals Chamber is satisfied that the Appellant has shown good cause for the late filing of the Third Rule 115 Motion.

31. […] While it is true that, where the failure resulted solely from counsel negligence or inadvertence, the Appeals Chamber can permit admission of additional evidence to remedy for such negligence or inadvertence, this would only be allowed if the proffered evidence is of such substantial importance to the success of the appeal such as its exclusion would lead to a miscarriage of justice.[1] In these exceptional cases, the Appeals Chamber has reasoned, the interests of justice require that an appellant not be held responsible for the failures of counsel.[2] However, in light of the findings above, the Appeals Chamber is not satisfied that non-admission of the proffered evidence would amount to a miscarriage of justice.

The Appeals Chamber has clearly restated the applicable law on admissibility of additional evidence on appeal: 

4. The Appeals Chamber recalls that under the jurisprudence of the Tribunal and that of the International Criminal Tribunal for the Former Yugoslavia (“ICTY”), an appeal pursuant to Article 24 of the Statute of the Tribunal (Article 25 of the Statute of the ICTY) is not a trial de novo[1] and is not an opportunity for a party to remedy any “failures or oversights” made during the pre-trial and trial phases.[2] Rule 115 of the Rules of Procedure and Evidence of the Tribunal (“Rules”) provides for a mechanism to address “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”.[3]

5. According to Rule 115, 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 a delay.[4] Second, the Appeals Chamber must find “that the additional evidence was not available at trial and is relevant and credible”.[5] When determining the availability at trial, the Appeals Chamber will consider whether the party tendering the evidence has shown 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.”[6] In this respect, the Appeals Chamber has held that

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” and that “[t]he 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.[7]

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 does not appear to be reasonably capable of belief or reliance, without prejudice to a determination of the weight to be afforded.[8]

6. 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.”[9] To satisfy this requirement, 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.[10] Accordingly, the additional evidence must be directed at a specific finding of fact related to a conviction or to the sentence.[11] Although Rule 115 of the Rules does not explicitly provide for this, where the evidence is relevant and credible, but was available at trial, or could have been discovered through the exercise of due diligence, the Appeals Chamber may still allow it to be admitted on appeal provided the moving party can establish that the exclusion of it would amount to a miscarriage of justice. That is, it must be demonstrated that had the additional evidence been adduced at trial, it would have had an impact on the verdict.[12]

7. The Appeals Chamber recalls that, whether the additional evidence was or was not available at trial, the additional evidence must always be assessed in the context of the evidence presented at trial, and not in isolation.[13]

19.     In his Third Motion, Mr. Bikindi seeks leave to admit extracts of legislation from various domestic jurisdictions and two Rwandan judgements[1] which relate to his appeal against sentencing.[2] The Appeals Chamber notes that both parties agree that the Third Motion should be considered moot on the basis that the material does not fall within the scope of Rule 115 of the Rules.[3] The Appeals Chamber agrees that Rule 115 of the Rules does not apply to case law or legislation used for the purpose of illustrating sentencing practices in national jurisdictions.[4] The Appeals Chamber will consider this material when determining the merits of the case.

The Appellant sought to have admitted pursuant to Rule 115 of the Rules of Procedure and Evidence a document described as an “expert opinion” on the interpretation of the Constitution of Costa Rica.

CONSIDERING that Rule 115 is not applicable to the material now sought to be admitted into evidence, which relates to the Second Ground of Appeal concerned with the ineligibility of one of the members of the Trial Chamber to serve as a Judge of the International Tribunal and not with the guilt or innocence of the Appellant;

CONSIDERING that the Appeals Chamber possesses the competence to receive evidence of this nature, provided that it meets the general criteria for admissibility under sub-Rule 89(C);

[…]

CONSIDERING that points of national law are questions of fact to be decided by the Judges of the International Tribunal;

CONSIDERING that the International Tribunal may receive evidence, including expert evidence, on such questions where relevant;

18. The Appeals Chamber reiterates that a party seeking the admission of additional evidence on appeal must provide the Appeals Chamber with the evidence sought to be admitted.[1] […]

16. The Appeals Chamber recalls that because Milošević filed his Motion on 3 August 2009, that is, after the Appeals Hearing, he must show cogent reasons for the delayed filing.[1] In this respect, the Appeals Chamber observes that the evidence sought to be admitted was obtained by Milošević on 14 July 2009,[2] seven days before the Appeals Hearing and 21 days before the date of filing of the Motion. The Appeals Chamber notes Milošević’s claim that the Order was unavailable during trial on account of his having recently received it from the Ministry of Defence of Serbia and Montenegro.[3] It recalls, however, that in order to have additional evidence admitted at this highly advanced stage of the proceedings, Milošević has the responsibility of demonstrating that he (i) could not have obtained the proffered material despite the exercise of the due diligence and (ii) submitted the present motion as soon as possible after he became aware of the existence of the evidence he seeks to admit.[4] Milošević fails to elaborate on the due diligence requirement and does not provide any reasons whatsoever for the delay of 21 days following the receipt of the document, a delay which occurred despite the clarifications provided to him by the Presiding Judge during the Appeals Hearing urging him to tender the material.[5] Consequently, the Appeals Chamber finds that Milošević has not demonstrated cogent reasons for the delayed filing of the Motion.

18. The Appeals Chamber recalls however that an appellant should not be held responsible for the negligence of his counsel. The Appeals Chamber further recalls that it invited the parties to elaborate during the Appeals Hearing on the issue of Milošević’s temporary replacement.[2] Considering that the tendered material appears relevant to this issue and that the trial record does not contain a similar source, the Appeals Chamber finds that in order to avoid a possible miscarriage of justice, it should examine whether, if the Order had been before the Trial Chamber, it would have affected the verdict.

In its “Decision on Appellant Momčilo Krajišnik’s Motion to Call Radovan Karadžić Pursuant to Rule 115” of 16 October 2008 (“Decision”), the Appeals Chamber ordered Krajišnik to file a “summary of facts” upon which Radovan Karadžić would testify in order to give the Prosecution “an adequate opportunity to prepare for its cross-examination of Mr. Karadžić” during the evidentiary hearing.[1] It further considered that the expeditiousness of these proceedings would be advanced by a clarification of the meaning of the “summary of facts” referred to in the Decision an held as follows:

p. 2: CONSIDERING that, in order to provide the Prosecution with an adequate opportunity to prepare its cross-examination of Radovan Karadžić at the Evidentiary Hearing, while the Appellant is not required to set out in the summary of the facts each and every detail of Radovan Karadžić’s anticipated testimony, the summary must precisely indicate the specific factual findings in the abovementioned paragraphs of the Trial Judgement on which Radovan Karadžić is expected to testify, and the main content of his anticipated testimony in relation to these factual findings;

HEREBY GRANTS the request for clarification in the Motion; and

ORDERS the Appellant to include the following information in his summary of the facts on which Radovan Karadžić will testify during the Evidentiary Hearing:

1. The specific factual findings in paragraphs 176-182, 188-189, 893, 987, 994, 1001-1005, 1013, 1078-1119, 1121, and 1123-1124 of the Trial Judgement on which Radovan Karadžić is expected to testify; and

2. The main content of Radovan Karadžić’s anticipated testimony in relation to those factual findings, in particular indicating the new facts and additional evidence Radovan Karadžić is anticipated to give which could have an impact on the verdict.

The Appeals Chamber found that the Motion was filed in a timely manner because the cogent reasons requirement for filing the Motion later than authorised by Rule 115(A) of the Rules was fulfilled given that the potential evidence of Mr. Karadžić was unavailable to the Appellant until 20 August 2008, and he filed his Motion on 15 September 2008, which is within the time limit set out in the Order on Motion to Interview Radovan Karadžić. (para. 14 and fn. 42).

19. Turning to the alleged unavailability of Documents 1–6, the Appeals Chamber notes that Documents 1–3 were in the possession of former counsel Mr. Nicholas Stewart QC during trial. Moreover, they were either directly addressed to the Trial Chamber or put to its attention during trial. The Trial Chamber thus rendered its verdict in full awareness of their contents. The Appeals Chamber recalls that where the failure to have material admitted into evidence at trial resulted solely from counsel’s negligence or inadvertence, such material may be admissible on appeal if the Appellant can demonstrate that they are of such substantial importance to the success of the appeal that their exclusion would lead to a miscarriage of justice.[1]

See paras 20 et seq. for the case-specific analysis.

17.     Where […] an appellant seeks the issue of a subpoena to a prospective witness to be interviewed in anticipation of tendering that person’s evidence on appeal pursuant to Rule 115, the legitimate forensic purpose to be established must be slightly adapted.  An appellant must establish that there is a reasonable basis for his belief that there is a good chance that the prospective witness will be able to give information which will materially assist him in relation to clearly identified issues arising in his appeal against conviction, that the defence has been unable to obtain the cooperation of the witness, and that it is at least reasonably likely that an order would produce the degree of cooperation needed for the defence to interview the witness.  If those matters are established, then […] the appellant would be entitled to the orders which he seeks pursuant to Rule 54.

75. […] The test to be applied by the Appeals Chamber in deciding whether or not to uphold a conviction where additional evidence has been admitted before the Chamber is: has the appellant established that no reasonable tribunal of fact could have reached a conclusion of guilt based upon the evidence before the Trial Chamber together with the additional evidence admitted during the appellate proceedings.  In framing the test in this manner, the Appeals Chamber has been guided by Rule 117(A) which provides that “[t]he Appeals Chamber shall pronounce judgement on the basis of the record on appeal together with such additional evidence as has been presented to it”.

426. The Appeals Chamber has granted in part a motion by Žigić to adduce additional evidence,[1] and has heard two additional witnesses and two rebuttal witnesses. In determining whether the additional evidence actually reveals an error of fact of such magnitude as to occasion a miscarriage of justice, the Appeals Chamber has set out the applicable test in the Kupreškić et al. Appeal Judgement:

The test to be applied by the Appeals Chamber in deciding whether or not to uphold a conviction where additional evidence has been admitted before the Chamber is: has the appellant established that no reasonable tribunal of fact could have reached a conclusion of guilt based upon the evidence before the Trial Chamber together with the additional evidence admitted during the appellate proceedings.[2]

In Blaskić, the Appeals Chamber cited and affirmed that test.  The Appeals Chamber noted that in the context of the Kupreškić case, the Appeals Chamber simply applied a deferential standard of review to the totality of the evidence admitted both at trial and on appeal, because the appellant had successfully established that no reasonable trier of fact could have reached a finding of guilt based on that evidence.[3]  However, as the Appeals Chamber in Blaškić further correctly noted, the Appeals Chamber in Kupreškić was not faced with the question of what test to apply where the outcome would be that in light of the trial evidence considered together with the additional evidence admitted on appeal, “a reasonable trier of fact could reach a conclusion of guilt beyond a reasonable doubt.”[4]  In that case, the Appeals Chamber in Blaškić concluded that “it should, in the interests of justice, be convinced itself, beyond reasonable doubt, as to the guilt of the accused, before confirming a conviction on appeal.”[5]  Consequently, the Appeals Chamber in Blaškić answered the question left open in Kupreškić, further developing the test first articulated therein. 

In reaching this conclusion, the Appeals Chamber in Blaškić underscored that such a standard of review is necessary in the interests of justice as well as for reasons of due process when considering a case before this International Tribunal because, if any lower standard were to be applied, “then the outcome would be that neither in the first instance, nor on appeal, would a conclusion of guilt based on the totality of the evidence relied upon in the case … be reached by either Chamber beyond reasonable doubt.”[6]    

The Appeals Chamber in Blaškić indicated, when summarizing the above test, the following two steps in a case where an error of fact is alleged and additional evidence proffered by the Defence is admitted: 

(i) The Appeals Chamber will first determine, on the basis of the trial record alone, whether no reasonable trier of fact could have reached the conclusion of guilt beyond reasonable doubt. If that is the case, then no further examination of the matter is necessary as a matter of law.[7]

(ii) If, however, the Appeals Chamber determines that a reasonable trier of fact could have reached a conclusion of guilt beyond reasonable doubt, then the Appeals Chamber will determine whether, in light of the trial evidence and additional evidence admitted on appeal, it is itself convinced beyond reasonable doubt as to the finding of guilt.[8]

427. It has of course to be borne in mind that, as the Appeals Chamber has noted several times, the task of hearing, assessing and weighing the evidence is left primarily to the Trial Chamber:

The reason that the Appeals Chamber will not lightly disturb findings of fact by a Trial Chamber is well known. The Trial Chamber has the advantage of observing witnesses in person and so is better positioned than the Appeals Chamber to assess the reliability and credibility of the evidence. Accordingly, it is primarily for the Trial Chamber to determine whether a witness is credible and to decide which witness’s testimony to prefer, without necessarily articulating every step of the reasoning in reaching a decision on these points.[9]

428. Therefore, the Appeals Chamber will uphold a conviction on the basis that a reasonable trier of fact could have arrived at a conviction on the evidence on the trial record in two cases:

(i) if there is no additional evidence admitted;

(ii) if additional evidence is admitted, but upon further review, is found to be not credible or irrelevant, so that it could not have been a decisive factor in reaching the decision at trial.[10]

See also Separate Opinion of Judge Weinberg de Roca and Separate Opinion of Judge Shahabuddeen.

20. […] The mere assertion that the document was found by the Defence only after the rendering of the Trial Judgement is not sufficient for demonstrating that due diligence had been exercised. […]

41. With regard to the issue of whether document 6DA22 could have affected the verdict, the Appeals Chamber recalls that Lukić bears the burden of not only identifying with precision specific finding(s) of fact made by the Trial Chamber to which the additional evidence pertains, but also of specifying with sufficient clarity the impact the additional evidence could or would have had upon the Trial Chamber’s verdict.[1] While the Appeals Chamber is satisfied that Lukić has identified the findings of fact to which the additional evidence pertains, […] he fails to elaborate with sufficient clarity on the impact the proffered material could have had on the verdict had it been admitted at trial. […]

15. [...] The “code of conduct” referred to in the Rules is the Code of Professional Conduct for Defence Counsel Appearing Before the International Tribunal (IT/125), of which, Article 5 provides that “in providing representation to a Client, Counsel must...act with competence, skill, care, honesty and loyalty”. Article 6 provides “Counsel must represent a Client diligently in order to protect the Client’s best interests”. Consequently, defence counsel is under a duty, when representing an accused, to act with competence, skill and diligence when investigating a potential defence on behalf of an accused. The duty also applies when gathering and presenting evidence before the Tribunal. The counsel would not be required to do everything conceivably possible in performing these tasks, but would be expected to act with reasonable diligence in discharging the duty. 

28. As to the requirement that the evidence be credible, minor inconsistencies between the statements of the proposed witnesses will not render them incredible, as is suggested by the Prosecution in its response. What is important in deciding if a piece of evidence is credible is that it appears to be reasonably capable of belief or reliance.

6. [...] The admission of evidence is in the “interests of justice” if it is relevant to a material issue, if it is credible and it is such that it would probably show that the conviction or sentence was unsafe. The Appeals Chamber has interpreted this latter criterion to mean that had the Trial Chamber had such evidence before it, it probably would have come to a different result. This is the standard we have applied in our earlier decisions and which we will apply in this case.[1]

8. The Appeals Chamber further notes that Rule 115(B)’s insistence that admission of new material be “in the interests of justice” is one that the Appeals Chamber should apply at a relatively early stage of the Appeal, that is before all the briefs have been received and argument taken place. That means in practical terms that the Appeals Chamber must give its best judgement as to the importance of the new material in light of its familiarity with the trial record at that time. This means that even after a finding that the material has satisfied the requirements of Rule 115(B) the Chamber on further consideration and in the light of briefs and arguments may decide that indeed it is not so important that it would have changed the result and requires the overturning of the verdict or the alteration of a sentence. This of course is why the word “probably” is used in defining the test of Rule 115(B). This cautionary note is included because in argument it seemed to the Appeals Chamber that some counsel assumed that because we had already stated that the new material met the “interests of justice” test, it would ensure a reversal of the verdict, if admitted. That is not true. New material will be considered alongside the material already in the trial record to see if the Trial Chamber’s judgement is sustainable by the newly enlarged record on appeal and the usual deference will be given to a Trial Chamber’s findings of fact insofar as they were based on the material before the court at the time. The job of the Appeals Chamber is thus to decide in a simulation of sorts: given the findings of the trial court made on the evidence before it (and assuming that they pass muster for if they do not the case must be reversed or sent back in any case, regardless of the new evidence) would the Trial Chamber have probably come to a different conclusion if this new evidence had been before it.

NOTING that Exhibit 1D39 was “inadvertently” admitted into evidence at trial in Bosnian/Serbian/Croatian (“B/C/S”) only[1] and that the English translation of this exhibit does not currently form part of the trial record;

CONSIDERING that since the B/C/S version of Exhibit 1D39 is already part of the trial record, the English translation of the exhibit does not constitute “new” or “additional” evidence pursuant to Rule 115 of the Rules;

NOTING that, if necessary for deciding the merits of Lukić’s appeal, the Appeals Chamber may at a later stage request, proprio motu, the Registry to provide a complete translation of Exhibit 1D39 into the working languages of the Tribunal;[2]

4. While the Prosecution relies upon the authority of Šainović and Ojdanić as supporting its procedural right to bring a Rule 115 application, the observation made by the Appeals Chamber in that decision is not a clear statement that Rule 115 applies to interlocutory appeals made pursuant to Rule 65. However, the Appeals Chamber notes that past practice in previous decisions by the Appeals Chamber clearly indicates that Rule 115[1] is to be applied to interlocutory appeals made pursuant to Rule 65[2]. In each of those decisions, the Appeals Chamber proceeded on the basis that additional evidence could be admissible upon an appeal pursuant to Rule 65.[3]

5. A plain reading of the Rule suggests that the mechanism of additional evidence on appeal is only available on an appeal from judgment and is not applicable to interlocutory appeals. Rule 115(A), which specifies the time limits in which to file a Rule 115 application speaks of “the date of the judgment,” [NOTE: THE WORDS “THE DATE OF JUDGEMENT” DO NOT APPEAR IN RULE 115(A) OF THE ICTY RULES, AS AMENDED ON 21 JULY 2005.] and Rule 115(B), which specifies the test to be applied for that additional evidence to be admissible, speaks of the Appeals Chamber considering that evidence in order to arrive at a “final judgment”.

6. Further, Rule 107, which provides that:

The rules of procedure and evidence that govern proceedings in the Trial Chamber shall apply mutatis mutandis to proceedings in the Appeals Chamber.

is of no assistance here as the Prosecution is not seeking to apply a rule that applies to proceedings in a Trial Chamber to an appellate proceeding, but to apply an appellate proceeding applicable to appeals from judgment to an interlocutory appeal.

7. While the Rule does not on its face appear to be applicable to Rule 65 interlocutory appeals, the Appeals Chamber has, as noted above, considered it to be applicable in previous decisions. The Appeals Chamber finds that justification for this practice is to be found in the appellate function in reviewing Trial Chamber decisions for error. Where the Appeals Chamber does find an error in a Trial Chamber decision, and where it is sufficiently apprised of the issues in the case, the Appeals Chamber is free to substitute its own decision rather than sending it back to the Trial Chamber for reconsideration.[4] Where the Appeals Chamber adopts this approach to an error of the Trial Chamber, it is appropriate for the Appeals Chamber to receive evidence that was not available before the Trial Chamber.

The Appeals Chamber recalled the criteria applicable to the admission of additional evidence on appeal (paras 3-7).

28. The Appeals Chamber recalls that evidence is credible if it appears to be reasonably capable of belief or reliance.[1] […] As to the two remaining documents, 4DA2 and 4DA27, both bear sufficient indicia of credibility, such as stamps or signatures or both, and the Appeals Chamber finds them also to be prima facie credible in the sense of Rule 115(B) of the Rules.

30.     Review proceedings under Article 26 of the Statute and Rule 119 are different from appellate proceedings under Article 25 and Rule 115. Where an applicant seeks to present a new fact which becomes known only after trial, despite the exercise of due diligence during the trial in discovering it, Rule 119 is the governing provision. In such a case, the Appellant is not seeking to admit additional evidence of a fact that was considered at trial, but rather a new fact. The proper venue for a review application is the Chamber that rendered the final judgement; it is to that Chamber that the motion for review should be made. In this case, it is for the Trial Chamber to review the Judgement and determine whether the new fact, if proved, could have been a decisive factor in reaching a decision.

[…]

32.     The Appeals Chamber will, however, observe that a distinction exists between a fact and evidence of that fact. The mere subsequent discovery of evidence of a fact which was known at trial is not itself a new fact within the meaning of Rule 119 of the Rules. […]

See also paras 36, 42.

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]

52.     A preliminary matter of a general nature concerns the burden of proof. The question at issue in this Motion is whether the Appellant is entitled to a right given to him by the appeal process which he has invoked. It is for him to establish his entitlement to the right which he claims. Accordingly, it is for the Appellant to prove the elements of the entitlement.

53.     In the absence of any explanation as to why certain items now sought to be admitted were not available at trial, the Appeals Chamber finds that the Appellant has failed to discharge his burden of proof in respect of these items to its satisfaction. […]

G.      Interests of Justice

69.     As mentioned above, the Appeals Chamber finds that the following items were not available at trial within the meaning of Rule 115 (A): […] In relation to these items and […] the evidence of witness D.D., it will accordingly be necessary to consider the operation of the criteria relating to the interests of justice.

70.     If the Appeals Chamber at this stage authorises the presentation of additional evidence, it will be for the Chamber at a later stage to decide whether the evidence discloses an “error of fact which has occasioned a miscarriage of justice” within the meaning of Article 25, paragraph 1(b), of the Statute. At this stage, the Chamber cannot pre-empt this decision by definitively deciding that the proposed evidence does or does not disclose “an error of fact which has occasioned a miscarriage of justice”.

71.     The task of the Appeals Chamber at this stage is to apply the somewhat more flexible formula of Rule 115 of the Rules, which requires the Chamber to “authorise the presentation of such evidence if it considers that the interests of justice so require”. For the purposes of this case, the Chamber considers that the interests of justice require admission only if:

          (a) the evidence is relevant to a material issue;

          (b) the evidence is credible; and

          (c) the evidence is such that it would probably show that the conviction was unsafe.

72.     The Appeals Chamber would only add that, in applying these criteria, account has to be taken of the principle of finality of decisions. As mentioned above, the principle would not operate to prevent the admission of evidence that would assist in determining whether there could have been a miscarriage of justice. But clearly the principle does suggest a limit to the admissibility of additional evidence at the appellate stage.

73.     The Appeals Chamber also considers that, in applying these criteria, any doubt should be resolved in favour of the Appellant in accordance with the principle in dubio pro reo.

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

5.       For evidence to be admitted pursuant to Rule 115(B), the Appellant must establish that (i) the evidence was not available at trial in any form and could not have been discovered though the exercise of due diligence, and (ii) that the evidence is relevant to a material issue, credible, and such that it could have had an impact on the verdict, i.e. could have shown that the conviction was unsafe.[1] Where the evidence was available at trial or could have been discovered through the exercise of due diligence, the moving party must show also that exclusion of the additional evidence would lead to a miscarriage of justice. The additional evidence must be considered in the context of the evidence which was given at the trial and not in isolation.

[ICTR Rule 115 was amended after this decision was issued.]

14.     […] [T]he Appeals Chamber recalls that a party must establish that the evidence sought to be admitted was not available at trial “in any form whatsoever”.[1] […]

[…]

27.     Notwithstanding, for additional evidence to have been unavailable in the first instance, it must not have been available at trial “in any form whatsoever”.[2] […]

95.     The Appeals Chamber recalls, with regards to credibility, that it will refuse to admit evidence only if it is so lacking in terms of credibility and reliability that it is devoid of any probative value in relation to a decision pursuant to Rule 115.[1] […]

With respect to the exercise of the applicant’s and counsel’s duty to act with due diligence in relation to the availability of evidence at trial, the Appeals Chamber recalled:

 5. For additional evidence to be admissible under Rule 115 of the Rules it must satisfy the following requirements. The applicant must first demonstrate that the additional evidence tendered on appeal was not available to him at trial in any form, or discoverable through the exercise of due diligence.[1] The applicant’s duty to act with reasonable diligence includes making “appropriate use of all mechanisms of protection and compulsion available under the Statute and the Rules of the International Tribunal to bring evidence on behalf of an accused before the Trial Chamber.”[2] With respect to the exercise of counsel’s due diligence during trial the Appeals Chamber recalls its finding in Tadić that

[c]ounsel may have chosen not to present the evidence at trial because of his litigation strategy or because of the view taken by him of the probative value of the evidence. The determination which the Chamber has to make, except in cases where there is evidence of gross negligence, is whether the evidence was available at the time of trial. Subject to that exception, counsel’s decision not to call evidence at trial does not serve to make it unavailable.[3]

The Applicant argued that a number of documents he sought to be admitted on appeal were not tendered into evidence at trial due to oversight by his former Counsel. When considering whether these documents were unavailable to the Applicant at trial, the Appeals Chamber first analysed documents which could demonstrate Counsel’s incompetence to conduct the defence:

12. With respect to the alleged unavailability at trial of the statements in document 69-K-0005, the Appeals Chamber recalls that a defence counsel has the duty to act with reasonable diligence to bring evidence on behalf of an accused before the Trial Chamber.[4] The information contained in the four statements could be considered as having been available at trial, because it could have been gathered with reasonable diligence.[5] However, failure of Counsel to exercise due diligence in order to obtain documents which could demonstrate his own incompetence to conduct the defence should not be to the detriment of the Appellant.[6] Moreover, whether or not the Appellant himself had a duty to act with reasonable diligence to make the Trial Chamber aware of the information contained in the four statements, the Appeals Chamber considers that in his oral request for self-representation at trial, the Appellant stated that his Defence team was unable to assist him because of the conditions prevailing at the time, adding that if the Trial Chamber wished that he provide more detailed explanations, he would gladly do so.[7] However, he was never requested to do so. In light of these circumstances, the Appeals Chamber finds that the information contained in the four statements was unavailable to the Appellant at trial. Consequently, they can be admitted if they are relevant, credible and could have had an impact on the verdict had they been considered at trial.

        […]

18. In addition, it appears that the Trial Chamber was never fully informed of the Appellant’s complaints regarding his former Counsel. […]

19. The Appeals Chamber considers that, as a general principle, an accused’s right to a fair trial is infringed when counsel admittedly does not understand the case of his client and fails to prepare a proper defence strategy. […]

 The Appeals Chamber then analysed the documents which were not aimed at proving the alleged incompetence of Counsel to conduct the defence:

21. As previously noted, the Appellant argues in relation to a number of documents that his former Counsel failed to tender them as evidence at trial, although for many of them the Appellant told him to do so.[8] The Appeals Chamber will only consider these documents as being unavailable at trial where the Appellant can show gross negligence of Counsel.[9]

22. The Appeals Chamber considers that […].it does not necessarily follow that former Counsel acted with gross negligence in all the respects now alleged. Indeed, “[c]ounsel may have chosen not to present the evidence at trial because of his litigation strategy or because of the view taken by him of the probative value of the evidence”.[10] Moreover, the Appellant does not substantiate his assertion that the documents at issue were unavailable at trial beyond bare assertions that former Counsel failed to tender them. Therefore, he fails to sufficiently demonstrate that these documents were unavailable at trial. As such, the other admissibility criteria being met, they will only be admitted if the Appellant can show that they would have affected the verdict.

The Appeals Chamber found that a statement made by Radovan Karadžić and given to one of the Applicant’s investigators lacked credibility for the purposes of Rule 115:

108. With respect to the statement’s credibility, the Appeals Chamber notes that according to the Appellant, “it was impossible to get in direct contact with Mr Karadžić”.[1] Apart from this reference, the Appellant provides no further information as to the circumstances under which this document was produced and how it was communicated to him. As a result, the Appeals Chamber finds that 33-K-0088 is still of dubious credibility. The Appeals Chamber notes that it is yet unknown whether Radovan Karadžić will provide evidence in relation to the credibility of his alleged statement. Therefore, the Appeals Chamber dismisses the request to have the statement admitted at this juncture. This is, however, without prejudice to any renewed request to admit it in the context of a potential motion under Rule 115 of the Rules relating to evidence by Radovan Karadžić.[2]

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.