Admissibility of rejoinder to rebuttal material

Notion(s) Filing Case
Decision on Rejoinder Evidence - 12.01.2007 NAHIMANA et al. (Media case)

6. The Appeals Chamber reiterates that an appeal pursuant to Article 24 of the Statute the Tribunal is not a trial de novo.[1] Rule 115 of the Rules specifically governs the admission of additional evidence on appeal, as well as rebuttal material, where the particular circumstances in the case so require. However, no provision is made under Rule 115 for seeking admission of rejoinder evidence to rebuttal material. Moreover, the Appeals Chamber does not consider that Rule 85(A) of the Rules, which specifically governs the presentation of evidence at trial, can be directly transposed to the presentation of additional evidence on appeal, which is covered by the provisions of Rule 115. While Rule 89(B) read in conjunction with Rule 107 of the Rules[2] generally stipulates that the Appeals Chamber, in cases not specifically provided for under the section of the Rules on evidence, “shall apply rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law”, it does not require that the Appeals Chamber allow for the admission of rejoinder evidence in Rule 115 proceedings. Thus, nothing in the Rules explicitly entitles parties to seek admission of rejoinder evidence on appeal and the Appeals Chamber will only allow admission of such evidence where the particular circumstances of the case so require for a fair determination of the matter before it.

7. In the present case, the Appeals Chamber recalls that the substance of the additional evidence admitted by the Appeals Chamber relates to Witness EB’s purported wish to recant his testimony provided at trial, notably with respect to the Appellant’s participation in the killings in Gisenyi on 7 – 9 April 1994.[3] The material admitted in rebuttal is anticipated to directly relate to the substance of the additional evidence, in particular with respect to the Prosecution’s investigation into the circumstances of the purported recantation of Witness EB’s trial testimony.[4] In light of the documentary material already admitted in this appeal, the Appeals Chamber is not convinced that the anticipated testimony of the three witnesses referred to by the Appellant would make a material difference to his case, that it would be helpful in assessing the rebuttal material, or that it is necessary for a fair determination of the issue of Witness EB’s purported recantation.[5]

[1] Decision on Appellant Jean-Bosco Barayagwiza’s Motions for Leave to Present Additional Evidence Pursuant to Rule 115 of the Rules of Procedure and Evidence, 8 December 2006 (“Decision of 8 December 2006”), para. 4; Confidential Decision on Appellant Hassan Ngeze’s Six Motions for Admission of Additional Evidence on Appeal and/or Further Investigation at the Appeal Stage, 23 February 2006 (“Decision of 23 February 2006”), para. 5; Decision on Jean-Bosco Barayagwiza’s Extremely Urgent Motion for Leave to Appoint an Investigator, 4 October 2005 (“Decision of 4 October 2005”), p. 3; Decision on Appellant Hassan Ngeze’s Motion for Approval of the Investigation at the Appeal Stage, 3 May 2005, p. 3 (“Decision of 3 May 2005”); Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Judgement, 1 June 2001, para. 177.

[2] Rule 107 of the Rules provides that “[t]he Rules of Procedure and Evidence that govern proceedings in the Trial Chambers shall apply mutatis mutandis to proceedings in the Appeals Chamber.

[3] [Decision on Prosecution’s Motion for Leave to Call Rebuttal Material, 13 December 2006], para. 8.

[4] [Decision on Prosecution’s Motion for Leave to Call Rebuttal Material, 13 December 2006, para. 8].

[5] See by analogy, Jean de Dieu Kamuhanda v. The Prosecutor, Case No. ICTR-99-54A-A, Oral Decision (Rule 115 and Contempt of False Testimony), 19 May 2005 – cf. T. 19 May 2005 (Appeals Hearing), p. 49 et seq.

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ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Oral Decision on Additional Evidence - 19.05.2005 KAMUHANDA Jean de Dieu

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.

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ICTR Rule Rule 115 ICTY Rule Rule 115