Evidence adduced in another case

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Appeal Judgement - 27.11.2007 SIMBA Aloys

132. The Appeals Chamber recalls that it has already dismissed the argument that as a matter of law documentary evidence should be preferred to oral testimony.[1] Here the Appellant further submits that because the Prosecution presented a document in evidence in another case before the Tribunal, it must be authentic, probative and subject to judicial notice.[2] The Appeals Chamber rejects this argument as a matter of principle: the probative value of a document may be assessed differently in different cases, depending on the circumstances. In the instant case, the Trial Chamber considered Exhibit D147,[3] a document allegedly showing the location of Rwandan Army officers as of 5 March 1994, and found that, in the context of the events which followed the death of the President of Rwanda, the locations of officers in mid-April 1994 could have been different from those mentioned in this document.[4] The Appellant has failed to demonstrate that no reasonable Trial Chamber could have reached the same conclusion. Accordingly, this sub-ground of appeal is dismissed.

[1] See above Section D-1, paras 101-103.

[2] Simba Appeal Brief, paras 126-127.

[3] Exh. D147, admitted on 29 March 2005. The document itself is dated 5 March 1994. It arguably emanates from the “Ministère de la Défense Nationale, Armée Rwandaise, Etat-Major G1” and shows the situation of the officers of the Rwandese army as of 1 March 1994.

[4] Trial Judgement, para. 167.

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Appeal Judgement - 21.05.2007 MUHIMANA Mikaeli

58. […] The Appeals Chamber recalls that, while a Trial Chamber is required to consider inconsistencies and any explanations offered in respect of them when weighing the probative value of evidence, it does not need to individually address them in the Trial Judgement. Furthermore, the presence of inconsistencies within or amongst witnesses’ testimonies does not per se require a reasonable Trial Chamber to reject the evidence as being unreasonable.

[1] Niyitegeka Appeal Judgement, para. 96.

[2] Niyitegeka Appeal Judgement, para. 124. See also Musema Appeal Judgement, para. 20.

[3] Niyitegeka Appeal Judgement, para. 95, quoting Kupreškić et al. Appeal Judgement, para. 31.

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Decision on Additional Evidence - 04.12.2014 POPOVIĆ et al.

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.

FINDING that the testimony of an appellant in another case, being sought to be tendered in his own case on appeal, merely constitutes the appellant’s own version of events, which he had the opportunity to present at the trial against him for the trial chamber to consider,[1] and as such does not qualify as additional evidence on appeal;

[1] Cf. Prosecutor v. Duško Tadić, Case No. IT-94-1-A, Decision on Appellant’s Motion for the Extension of the Time-Limit and Admission of Additional Evidence, 16 October 1998, paras 42, 44, 50. See also Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Appellants Jean-Bosco Barayagwiza’s and Ferdinand Nahimana’s Motions for Leave to Present Additional Evidence Pursuant to Rule 115, 12 January 2007, para. 5.

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Decision on Rebuttal Evidence - 29.05.2009 KAREMERA et al.

16. In the present case, the Trial Chamber found that “evidence which has already been considered and rejected by another Trial Chamber in making a finding of fact should not be admissible in a later proceeding to rebut that same finding of fact”.[1] In support of its finding, the Trial Chamber reasoned that the original Trial Chamber “was in a much better position to make determinations regarding reliability and credibility than [it], having heard the evidence viva voce”.[2] The Appeals Chamber considers that, in stating so, the Trial Chamber disregarded the fact that the assessment of admissibility criteria must be done on a case-by-case basis,[3] in light of the specific circumstances of each case. It overlooked the fact that the probative value of a piece of evidence may be assessed differently in different cases, depending on the rest of the evidence and other relevant circumstances.[4] While the prior assessment of the evidence by another Trial Chamber is a factor that may be taken into account in the assessment of its probative value, it does not relieve the Trial Chamber of its obligation to assess the admissibility of the evidence in the context of the case before it.

17. In the Karemera et al. Appeal Decision on Judicial Notice, the Appeals Chamber held that adjudicated facts:

are facts that have been established in a proceeding between other parties on the basis of the evidence the parties to that proceeding chose to introduce, in the particular context of that proceeding. For this reason, they cannot simply be accepted, by mere virtue of their acceptance in the first proceeding, as conclusive in proceedings involving different parties who have not had the chance to contest them.[5]

This is also the case for credibility findings in another case: the finding on the credibility and reliability of Ntakirutimana’s testimony in his own trial cannot be accepted as conclusive in the present proceedings by the mere virtue of the fact that it was reached by the Ntakirutimana Trial Chamber.

18. In this case, the Trial Chamber denied the admissibility of Ntakirutimana’s testimony into evidence on the basis that the Ntakirutimana Trial Chamber had found it to be less reliable than another testimony.[6] That is, instead of examining for itself whether Ntakirutimana’s testimony was prima facie reliable and credible, the Trial Chamber erroneously relied on the final evaluation of its reliability and credibility by another Trial Chamber and accepted that negative assessment as determinative of the admissibility of the evidence.

19. The Trial Chamber further reasoned that to re-engage in an assessment of the reliability and credibility of Ntakirutimana’s testimony “would essentially be acting in review of another Chamber, and therefore outside of its jurisdiction”.[7] The Appeals Chamber disagrees. As noted above, the final assessment of the weight of a piece of evidence is based on the totality of the evidence in a given case. Naturally, the same piece of evidence can be assessed differently in different cases because of other evidence on the record therein. Therefore, a Trial Chamber’s assessment of a piece of evidence from another case does not involve a review of a decision of another Trial Chamber. Moreover, in this respect, the Appeals Chamber recalls that “the final adjudication of facts in judicial proceedings is treated as conclusively binding only, at most, on the parties to those proceedings”.[8]

22. [...] In deferring to the assessment of the reliability of Ntakirutimana’s testimony by the Ntakirutimana Trial Chamber, the Trial Chamber not only failed to fulfil its obligation to examine whether the evidence may have probative value in the circumstances of the case before it, but also misapplied the standard for admission of evidence which only requires prima facie indicia of reliability and credibility.    

[1] Impugned Decision, para. 12.

[2] Impugned Decision, para. 12.

[3] Prlić et al. Appeal Decision, paras. 15, 25; Popović et al. Appeal Decision, para. 21.

[4] Simba Appeal Judgement, para. 132.

[5] Karemera et al. Appeal Decision on Judicial Notice, para. 40.

[6] Impugned Decision, paras. 12, 13.

[7] Impugned Decision, para. 12.

[8] Karemera et al. Appeal Decision on Judicial Notice, para. 42. 

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ICTY Rule Rule 89(C);
Rule 94