On 5 May 2009, the Appeals Chamber issued a judgement which, inter alia, upheld the conviction of Veselin Šljivančanin (“Šljivančanin”) for aiding and abetting torture as a violation of the laws or customs of war and added, Judges Pocar and Vaz dissenting, a new conviction for aiding and abetting murder as a violation of the laws or customs of war. The new conviction was based in part on the Appeals Chamber’s new factual findings concerning a conversation between Šljivančanin and Mile Mrkšić (“Conversation”).[1]

In an application for review filed on 28 January 2010,[2] Šljivančanin asserted that Miodrag Panić was prepared to offer testimony that invalidated Šljivančanin’s conviction for aiding and abetting murder as a violation of the laws or customs of war, and that the content of the Conversation that would be the subject of this testimony constituted a “new fact” in the context of Rule 119 of the Rules of Procedure and Evidence of the Tribunal.

At pages 2 and 3, the Appeals Chamber stated:

CONSIDERING that a “new fact” within the meaning of Article 26 of the Statute and Rules 119 and 120 of the Rules consists of “new information of an evidentiary nature of a fact that was not in issue during the trial or appeal proceedings”;[3]

[…]

CONSIDERING that the new information provided by Panić concerning the Conversation constitutes a “new fact” (“Panić New Fact”), that, if proved, could fundamentally alter the balance of evidence relating to this case, eliminating the basis for the Mrkšić and Šljivančanin Appeal Judgement’s conclusion that Šljivančanin possessed the mens rea for aiding and abetting murder as a violation of the laws or customs of war;[4]

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]

22. The Appeals Chamber further recalls that the term “new fact” refers to new evidentiary information supporting a fact that was not in issue during the trial or appeal proceedings.[1] The requirement that the fact was not in issue during the proceedings means that “it must not have been among the factors that the deciding body could have taken into account in reaching its verdict.”[2] Essentially, the moving party must show that the Chamber did not know about the fact in reaching its decision.[3]

47. This being said, the Appeals Chamber does not find it necessary to order Niyitegeka to file the Additional Statements or information concerning the identity of their authors. Niyitegeka makes clear that, in his view, the information contained in the Additional Statements reveals that Witness GGV was not credible. The Appeals Chamber notes that Witness GGV’s credibility is a matter that was litigated at trial and on appeal. While the Additional Statements may constitute material of an evidentiary nature, in light of what Niyitegeka discloses of their content they do not constitute “new facts” within the meaning of Article 25 of the Statute. Accordingly, Niyitegeka’s attempt to have them admitted as new facts for the purposes of review is bound to fail.  

41.     […] [I]t is clear from the Statute and the Rules[1] that, in order for a Chamber to carry out a review, it must be satisfied that four criteria have been met. There must be a new fact; this new fact must not have been known by the moving party at the time of the original proceedings; the lack of discovery of the new fact must not have been through the lack of due diligence on the part of the moving party; and it must be shown that the new fact could have been a decisive factor in reaching the original decision.

42.     The Appeals Chamber of the International Tribunal for the former Yugoslavia has highlighted the distinction, which should be made between genuinely new facts which may justify review and additional evidence of a fact [2]. In considering the application of Rule 119 of the Rules of the International Tribunal for the former Yugoslavia (which mirrors Rule 120 of the Rules [of the International Tribunal for Rwanda]), the Appeals Chamber held that:

Where an applicant seeks to present a new fact which becomes known only after trial, despite the exercise of due diligence during the trial in discovering it, Rule 119 is the governing provision. In such a case, the Appellant is not seeking to admit additional evidence of a fact that was considered at trial but rather a new fact…It is for the Trial Chamber to review the Judgement and determine whether the new fact, if proved, could have been a decisive factor in reaching a decision”.[3]

Further, the Appeals Chamber stated that-

a distinction exists between a fact and evidence of that fact. The mere subsequent discovery of evidence of a fact which was known at trial is not itself a new fact within the meaning of Rule 119 of the Rules.[4]

43.     The Appeals Chamber would also point out at this stage, that although the substantive issue differed, in Prosecutor v. Dra‘en Erdemović,[5] the Appeals Chamber undertook to warn both parties that “[t]he appeal process of the International Tribunal is not designed for the purpose of allowing parties to remedy their own failings or oversights during trial or sentencing”. The Appeals Chamber confirms that it notes and adopts both this observation and the test established in Prosecutor v. Duško Tadić in consideration of the matter before it now.

44.     […] [A] “new fact” cannot be considered as failing to satisfy the criteria simply because it occurred before the trial. What is crucial is satisfaction of the criteria which the Appeals Chamber has established will apply. If a “new” fact satisfies these criteria, and could have been a decisive factor in reaching the decision, the Appeals Chamber can review the Decision.

17.     In a review proceeding, the moving party defines for the Chamber its purported “new facts.” It is then for the review Chamber to compare those alleged new facts against the previously litigated facts as found in the plain language of the final judgement or decision at issue and the record underlying that final judgement or decision. Where the “new facts” are identical to facts already at issue, then review under Rule 119 is not available. Of course, at times, the facts previously litigated are not entirely clear and they could be interpreted more broadly or narrowly vis-à-vis the alleged new facts. In those cases, the review Chamber does not, a priori, decide to interpret the previous facts more narrowly. It will, after considering the final judgement or decision and underlying record, weigh the arguments of the parties in order to determine the most appropriate characterization of the facts as they were considered by the original Chamber for purposes of comparing them to the purported “new facts.”

18.     The Appeals Chamber does not consider that its past jurisprudence supports the Prosecution’s position that, as a rule, review Chambers have maintained a narrow focus on previously litigated facts despite there being “broad facts” that were at issue in the original proceedings to which the proffered “new facts” were related. In other words, the Appeals Chamber does not find that past review Chambers have been inclined to compare alleged “new facts” against “narrow facts” previously litigated rather than against related “broad facts” in the original proceedings. Rather, the focus has rightly been on looking to the previously litigated facts that are most relevant vis-à-vis the alleged “new fact”, whether “broad” or “narrow”, to determine whether they preclude the availability of a review.

9. […] Given that the proceedings against Niyitegeka have been concluded, the only legitimate forensic purpose for obtaining access to this material is to establish a “new fact” capable of constituting the basis for a review of Niyitegeka’s convictions.[1] In this regard, Niyitegeka merely advances a broad and speculative assertion that any evidence provided by the witnesses in other proceedings before the ICTR necessarily serves a legitimate forensic purpose.[2] It follows from jurisprudence that the requesting party may not engage in a “fishing expedition”.[3] In the absence of more particularized submissions, the mere fact that witnesses may have testified in more than one case does not necessarily reflect that their evidence is relevant to establishing a “new fact” in the context of review proceedings, or demonstrate that any related material may be of material assistance to the preparation of a review application. […]

Pages 2-3:

CONSIDERING that, pursuant to Article 24 of the Statute of the Mechanism (“Statute”) and Rules 146, 147, and 148 of the Rules of Procedure and Evidence of the Mechanism (“Rules”) a request to have the Appeals Chamber review a final judgement will be granted, if the moving party shows that: (i) there is a new fact; (ii) the new fact was not known to the moving party at the time of the trial or appeal proceedings; (iii) the new fact could not have been discovered through the exercise of due diligence; and (iv) the new fact could have been a decisive factor in reaching the original decision;[1]

CONSIDERING that [REDACTED] contain new information of an evidentiary nature that relates to [REDACTED] that could not have been taken into account at trial or on appeal and therefore constitute a new fact,[2] which, if proved, could have been a decisive factor in reaching the original decision [REDACTED];[3]

RECALLING ALSO that circumstances that may merit reconsideration include new facts and that, to succeed on that basis, an applicant must demonstrate how any new facts justify reconsideration;

Footnote 50:

[…] See also Prosecutor v. Hazim Delić, Case No. IT-96-21-R-R119, Decision on Motion for Review, 25 April 2002, para. 11 (“If the material proffered consists of additional evidence relating to a fact which was in issue or considered in the original proceedings, this does not constitute a ‘new fact’ [...], and the review procedure is not available.”) (Emphasis in original).

30.     […] the Appeals Chamber does not consider any lack of reference to Semanza's activities in a brief statement taken during a separate trial involving a different accused constitutes a new fact for the purposes of review.[1] As previously recalled by the ICTR Appeals Chamber, "to suggest that if something were true a witness would have included it in a statement [...] is obviously speculative".[2]

64. [...] [T]he Appeals Chamber recalls that the purpose of these proceedings was not to determine the full extent and responsibility for possible witness interference in this case. That is for other proceedings, if necessary, in accordance with Rule 90 of the Rules. The purpose of the review proceedings was simply to test the evidence advanced in support of the new fact [...]