Failure to appeal a trial decision refusing the admission
|Decision on Additional Evidence - 28.09.2009||
The Appellant, Nchamihigo, sought the admission on appeal of proffered evidence pursuant to Rule 115 of the Rules, which he unsuccessfully sought to have admitted at trial. The Appeals Chamber stated:
13. […] It is thus clear that the material sought for admission was available at trial, and the Appeals Chamber is satisfied that Mr. Nchamihigo exercised due diligence in his attempts to have this evidence admitted at trial.
14. However, the Appeals Chamber observes that Mr. Nchamihigo has not appealed the Trial Chamber’s denial of his requests to admit this material either in his Notice of Appeal or Appeal Brief. As such, the Appeals Chamber finds that Mr. Nchamihigo has failed to exercise due diligence in relation to these documents. It remains to be considered whether denial of the admission of this evidence would result in a miscarriage of justice.
The Appeals Chamber then established that Nchamihigo had not demonstrated that the admission of the evidence in question “would have had an impact on the Trial Chamber’s findings” (paras 15-18) and concluded “that the denial of the admission of the proposed additional evidence on appeal will not result in a miscarriage of justice.” (para. 19).
 See [Siméon Nchamihigo v. The Prosecutor, Case No. ICTR-2001-63-A,] Acte d’appel de la défense révisé, 11 May 2009; [Siméon Nchamihigo v. The Prosecutor, Case No. ICTR-2001-63-A,] Mémoire d’appel de la défense, 20 May 2009.
 The Appeals Chamber notes the Zigiranyirazo Rule 115 Decision in which Zigiranyirazo sought to admit the evidence of a witness whom he had already sought permission to examine by video-link at trial. The Trial Chamber in that case had denied the request and the witness was therefore not heard at trial. The Appeals Chamber in the Zigiranyirazo Rule 115 Decision considered that Zigiranyirazo had exercised due diligence in attempting to adduce the evidence at trial and accordingly the Appeals Chamber applied the “could” standard rather than the “would” standard in deciding the Zigiranyirazo Rule 115 motion (see Zigiranyirazo Rule 115 Decision [Protais Zigiranyirazo v. The Prosecutor, Case No. ICTR-01-73-A, Decision on Zigiranyirazo’s Motion for Admission of Additional Evidence on Appeal, 16 September 2009], paras. 34-38). However, the Appeals Chamber considers that the present case is distinguishable from that case because in the Zigiranyirazo Rule 115 Decision, Zigiranyirazo also appealed the Trial Chamber’s decision in his appeal on the merits, whereas in the present case Nchamihigo did not. The Appeals Chamber was given the opportunity to assess whether the Trial Chamber erred in its decision not to order a video link at trial because the Trial Chamber’s decision in Zigiranyirazo was appealed. In this case, the Appeals Chamber has not been asked to consider whether the Trial Chamber’s decisions were correct.
|ICTR Rule Rule 115 ICTY Rule Rule 115|