Facts from a different judgement

Notion(s) Filing Case
Review Decision - 08.07.2015 LUKIĆ Sreten

22. The Appeals Chamber considers that the relevant findings in the Ðorđević Appeal Judgment do not amount to “new information of an evidentiary nature of a fact” and thus cannot be considered a new fact for the purposes of review under Rule 146 of the Rules.[1] In the Appeals Chamber’s view, Lukić is essentially requesting reconsideration of the final judgment. However, in principle, the Appeals Chamber has no power to reconsider a final judgment in light of the legal analysis on the elements of a crime adopted by a subsequent Appeals Chamber judgment.[2]

[1] See Tharcisse Muvunyi v. Prosecutor, Case No. ICTR-00-55A-R, Decision on Request for Variation of Protective Measures and Request for Review, 28 September 2012, para. 24 (“the Appeals Chamber considers that a finding made by a separate trial chamber on the criminal liability of another accused based on a different evidentiary record does not amount to a new fact for the purposes of review”); Eliézer Niyitegeka v. The Prosecutor, ICTR-96-14-R, Decision on Request for Review, 6 March 2007, para. 7 (“The Appeals Chamber is not satisfied that the reasoning applied in the Rwamakuba Trial Judgement constitutes new information of an evidentiary nature of a fact that was not in issue during the trial or appeal proceedings”); Prosecutor v Goran Jelišić, IT-95-10-R, Decision on Motion for Review, 2 May 2002, pp. 2-3 (“Noting the Applicant’s submissions that a new fact has arisen, being the development, since the Appeal Judgement, in the case law of the Tribunal with respect to the approach to sentencing […] Finding that the alleged new fact relied upon by the Applicant is not of an evidentiary nature and, therefore, that the Applicant has failed to show the existence of a new fact”). See also Eliézer Niyitegeka v. Prosecutor, Case No. MICT-12-16-R, Decision on Niyitegeka’s Request for Assignment of Counsel, 6 November 2014, para. 8.

[2] See Prosecutor v. Momčilo Perisić, Case No. IT-04-81-A, Decision on Motion for Reconsideration, 20 March 2014, p. 2

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IRMCT Rule Rule 146
Notion(s) Filing Case
Decision on a Request for Access and Review - 09.04.2018 SEMANZA Laurent

23.     The Appeals Chamber recalls that an indictment simply contains allegations of facts with which an accused is charged and the Appeals Chamber of the ICTR has found it to have "no evidentiary value" in the context of review proceedings.[1] This conclusion is particularly persuasive when considering the broad discretion the Prosecution has in selecting information and crimes to be included in indictments[2] and the fact that Rugambarara's amended indictment was drafted with the intention of securing a plea agreement. Similarly, the facts relied upon to convict Rugambarara were also agreed to by the parties[3] and "such facts are merely accepted by the Trial Chamber upon a less burdensome level of scrutiny than one applied in instances where the Prosecution must prove facts upon which convictions are based beyond reasonable doubt."[4] Given the particular context in which the Rugambarara Plea Documents were created, the Appeals Chamber finds that they do not constitute new information of an "evidentiary nature" that would support a basis for review of Semenza's convictions.[5]

See also paragraph 28.

[1] Francois Karera v. The Prosecutor, Case No. ICTR-01-74-R, Decision on Requests for Reconsideration and Review, 26 March 2012, para. 30.

[2] See The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-04-A, Judgement, 23 November 2001 (original French version filed on 1 June 2001), para. 94 and references cited therein.

[3] See Rugambarara Sentencing Judgement, paras. 4, 5, 8.

[4] Theoneste Bagosora et al. v. The Prosecutor, Case No. ICTR-98-41-A, Decision on Anatole Nsengiyumva's Motion for Judicial Notice, 29 October 20 10, para. 11 (emphasis in original).

[5] Semenza's attempt to establish a new fact on the basis of the Rugambarara Plea Documents could also be dismissed because the issues raised by them were at issue in Semenza's underlying proceedings. Specifically, although WitnessVA provided evidence that Rugambarara went to Musha church with Semanza and was present during the attack, including the torture and killing of Rusanganwa, the Trial Chamber did not rely on this aspect of Witness VA's evidence. Trial Judgement, paras. 168, 169, 196, 197, 206, 211, 213. Furthermore, Defence Witness MTP testified that she did not see Rugambarara, whom she knew, during the Musha Church Attack. Trial Judgement, para. 192. Consequently, the Rugambarara Plea Documents fail to present new information that was not among the factors the Trial Chamber could have taken into account in reaching its verdict and, therefore, do not support the existence of a new fact.

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IRMCT Rule Rule 146
Notion(s) Filing Case
Decision on Additional Evidence on Appeal - 02.03.2018 KARADŽIĆ Radovan

Footnote 42:

As concerns the Supplement [Supplement to Motion to Admit Additional Evidence, 2 December 2017] filed by Karadžić, the Appeals Chamber recalls that a party is to seek leave to file supplemental authorities. See Prosecutor v. Naser Orić, Case No. IT-03-68-A, Decision on Prosecution’s “Notice of Supplemental Authority”, 14 May 2007, p. 2. Furthermore, the Appeals Chamber finds that the Supplement, which concerns factual determinations based on a separate record reviewed by a separate trial chamber of the ICTY, does not present supplemental legal authority that would assist in the adjudication of the Motion.

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