9.       Rule 108(B) of the Rules provides:

If a Chamber or Single Judge has strong grounds for believing that a witness has knowingly and wilfully given false testimony, it shall refer the matter to the President who shall designate a Single Judge who may:

(i) direct the Prosecutor to investigate the matter with a view to the preparation and submission of an indictment for false testimony; or    

(ii) where the Prosecutor, in the view of the Single Judge, has a conflict of interest with respect to the relevant conduct, direct the Registrar to appoint an amicus curiae to investigate the matter and report back to the Single Judge as to whether there are sufficient grounds for instigating proceedings for false testimony.

10.     What constitutes “strong grounds” represents a heightened threshold for initiating investigations into allegations of false testimony,[1] and has been distinguished from the “sufficient grounds” standard applied to initiating the prosecution of an individual for false testimony or contempt.[2] […]

11.     A party seeking to institute proceedings for false testimony bears “the onus to prove the alleged falsehood”.[3] Despite having been instructed to provide references to transcripts from the Ntakirutimana case that, in his view, amounted to false testimony,[4] Ntakirutimana does not specify which portions of Witness HH’s testimony he alleges are false. This omission weighs against establishing that strong grounds exist for believing that Witness HH knowingly and wilfully gave false testimony before the ICTR.

See also paragraph 17 and footnote 57.

115. As for the Appellant’s claim that the Prosecution bears the burden of establishing that a Defence witness is giving false evidence, the Appeals Chamber recalls that a credibility determination may be based, but does not necessarily depend, on a judicial finding that a witness has given false testimony.[1] The fact that the Prosecution did not prove or even allege that Defence witnesses were giving false testimony did not prevent the Trial Chamber from exercising its discretion in assessing the weight to be attached to their evidence. The Appellant’s argument that unless the Prosecution established that Defence witnesses gave false testimony the Trial Chamber was compelled to believe their evidence is misguided.

116. With respect to the Appellant’s assertion that the Trial Chamber erred in considering the evidence of Defence witnesses with caution due to their “close relationship” with him, whereas the same criterion was not applicable to Prosecution evidence, the Appeals Chamber disagrees. In determining the weight to attach to the evidence of any witness, the Trial Chamber has a broad discretion to consider all relevant factors, as noted above.[2] The fact that a criterion for assessing the credibility of the Defence witnesses was not equally applicable to the Prosecution witnesses did not invalidate the application of this factor. The right to have Defence witnesses examined under the same conditions as Prosecution witnesses relates to the right to call witnesses, and the right to cross-examine witnesses called by the Prosecution under the same conditions as the Prosecution.[3] It does not encompass the factors that a Trial Chamber may consider relevant in assessing the credibility of those witnesses.

20. The Appeals Chamber further finds that the Trial Chamber erred in concluding that ordering the prosecution of Witness BTH was premature because an assessment of his credibility will be undertaken when deliberating on the Karemera et al. case and that such prosecution would risk causing serious prejudice to the Karemera et al. proceedings. An assessment of a witness’s credibility is a separate inquiry from that of the prosecution of a witness for false testimony.[1] The Trial Chamber hearing the case in which the witness testified will assess the witness’s credibility in its consideration of the evidence adduced in that case.[2] Prosecution for false testimony is a separate trial conducted by a separate chamber of judges, who will consider evidence relating to the allegation of false testimony.[3] Therefore, proceedings for false testimony need not be deferred until the completion of the trial in which the false testimony was allegedly given but can proceed contemporaneously. In this respect, the Appeals Chamber recalls the finding in Rutaganda that:

A credibility determination may be based, but does not necessarily depend, on a judicial finding that a witness has given false testimony. The testimony of a witness may lack credibility even if it does not amount to false testimony within the meaning of Rule 91. Thus, an investigation for false testimony is ancillary to the proceeding and does not impact on the accused’s right to a fair trial.[4]

[…]

331. Likewise, the Appeals Chamber finds no merit in Nyiramasuhuko’s and Ntahobali’s argument that the fact that the witnesses lied required that their testimonies be excluded. In support of this claim, Ntahobali refers to national jurisprudence.[1] However, the Appeals Chamber highlights that Rule 89(A) of the Rules specifically provides that the Tribunal is not bound by national rules of evidence,[2] and recalls that decisions on the admission or exclusion of evidence fall within the trial chambers’ discretion.[3] […]