343. The Appeals Chamber recalls that an alibi does not constitute a defence in its proper sense.[1] Where an accused raises an alibi he is merely denying that he was in a position to commit the crime with which he was charged.[2] It is settled jurisprudence of both the ICTY and the ICTR that an accused does not bear the burden of proof beyond reasonable doubt in relation to establishing an alibi[3] but only needs to produce evidence likely to raise a reasonable doubt in the Prosecution’s case.[4] If the alibi is reasonably possibly true, it must be accepted.[5] Where the alibi evidence does prima facie account for the accused’s activities at the relevant time of the commission of the crime, the onus remains on the Prosecution to eliminate any reasonable possibility that the alibi is true.[6] The Prosecution must establish beyond reasonable doubt that, despite the alibi, the facts alleged are nevertheless true.[7]

17. The Appeals Chamber recalls that Rule 67(A)(ii)(a) of the Rules requires the defence to notify the Prosecution before the commencement of trial of its intent to enter a defence of alibi. According to this provision, “the notification shall specify the place or places at which the accused claims to have been present at the time of the alleged crime and the names and addresses of witnesses and any other evidence upon which the accused intends to rely to establish the alibi.”º[…]

18. […] The Appeals Chamber has held that the manner in which an alibi is presented may impact its credibility.[1] Therefore, it was within the Trial Chamber’s discretion to take into account Munyakazi’s failure to provide timely and adequate notice in assessing the alibi evidence.[2]

19. In a similar vein, the Trial Chamber acted in accordance with the Rules in taking the manner in which an alibi was presented into account together with its assessment of the underlying evidence. Contrary to Munyakazi’s submission, Rules 67(A)(ii) and 67(B) of the Rules are not mutually exclusive. A Trial Chamber may reasonably consider the circumstances surrounding the notice provided by the accused for his alibi when assessing the alibi on the merits.

240. The procedure to be followed where an accused intends to enter an alibi in his defence is covered by Rule 67(A)(ii) and (B) of the Rules which provide inter alia that:

Subject to the provisions of Rules 53 and 69:

(A) As early as reasonably practicable and in any event prior to the commencement of the trial:

[...]

(ii) The defence shall notify the Prosecutor of its intent to enter:

(a) The defence of alibi; in which case the notification shall specify the place or places at which the accused claims to have been present at the time of the alleged crime and the names and addresses of witnesses and any other evidence upon which the accused intends to rely to establish the alibi;

[...]

(B) Failure of the defence to provide such notice under this Rule shall not limit the right of the accused to rely on the above defences.

241. Rule 67(A)(ii) relates to the reciprocal disclosure of evidence at the pre-trial stage of the case and places upon the Defence the obligation to notify the Prosecution of its intent to enter a defence of alibi and to specify the evidence upon which it intends to rely to establish the alibi.[1] This allows the Prosecution to organise its evidence and to prepare its case prior to the commencement of the trial on the merits. As the Appeals Chamber explained in Kayishema and Ruzindana:

[…] the purpose of entering a defence of alibi or establishing it at the stage of reciprocal disclosure of evidence is only to enable the Prosecutor to consolidate evidence of the accused’s criminal responsibility with respect to the crimes charged. Thus during the trial, it is up to the accused to adopt a defence strategy enabling him to raise a doubt in the minds of the Judges as to his responsibility for the said crimes, and this, by adducing evidence to justify or prove the alibi.[2]

242. Rule 67(A)(ii) does not require the Defence to produce the probative evidence to be used to establish the accused’s whereabouts at the time of the commission of the offence. The extent and nature of the evidence that the Defence uses to cast doubt on the prosecution case is a matter of strategy which is for the Defence to decide.[3] The Appeals Chamber recalls that the strategy adopted by the person who raises an alibi may have an impact on a Trial Judge in reaching his or her conclusion.[4] Nevertheless, the requirements of Rule 67(A)(ii) are satisfied when the Defence has notified the Prosecution of the required particulars of the alibi, without necessarily producing the evidence.

243. To ensure a good administration of justice and efficient judicial proceedings, any notice of alibi should be tendered in a timely manner, ideally before the commencement of the trial. However, were the Defence to fail in this regard, Rule 67(B) provides that the Defence may still rely on evidence in support of an alibi at trial. Consequently, the obligations laid down by Rule 67 (A)(ii) must be read in conjunction with the caveat provided for by Rule 67(B).[5]

244. There is no requirement under Rule 67(A)(ii) for the Defence to notify the Chamber, in addition to the Prosecutor, of its intent to enter an alibi. A fortiori, the Defence is not required to provide the Chamber with details of the alibi witnesses and of the locations at which the accused is said to have been at the time the alleged crimes were committed. Prior to the commencement of the trial, the Defence is obliged to disclose alibi evidence only to the Prosecution and not to the Trial Chamber.

245. Considering the foregoing, unless one of the parties chooses to make the notice available to the Chamber or to file it with the Registry, there will be no written record of the notice within the case file at the pre-trial stage of the proceedings. It is only prior to the commencement of the Defence case that the Rules, specifically Rule 73ter (Pre-Defence Conference), require the Defence to provide details of its evidence to the Chamber.[6]

246. It is at this stage of the proceedings that the Trial Chamber will receive information relevant to the alibi. Although the Rules do not specify that a notice of alibi be provided, the materials filed in conformity with Rule 73ter should enable the Trial Chamber to avail itself of the Defence’s intention to enter an alibi. Furthermore, read together, the list of witnesses, the summary of their testimonies and the points in the indictment as to which they will testify, should provide the Chamber with particulars sufficient to determine the extent of the alibi.

414. Before considering in turn the various errors alleged by the Appellant, the Appeals Chamber notes that the Trial Chamber correctly enunciated the law applicable to alibi in paragraph 99 of the Judgement, which reads as follows:

With respect to alibi, the Chamber notes that in Musema, it was held that “[i]n raising the defence of alibi, the Accused not only denies that he committed the crimes for which he is charged but also asserts that he was elsewhere than at the scene of these crimes when they were committed. The onus is on the Prosecution to prove beyond a reasonable doubt the guilt of the Accused. In establishing its case, when an alibi defence is introduced, the Prosecution must prove, beyond any reasonable doubt, that the Accused was present and committed the crimes for which he is charged and thereby discredit the alibi defence. The alibi defence does not carry a separate burden of proof. If the defence is reasonably possibly true, it must be successful”[footnote omitted].

417. The Appeals Chamber recalls that, in raising an alibi defence, the defendant is claiming that, objectively, he was not in a position to commit the crime.[1] It is for the accused to decide what line of defence to adopt in order to raise doubt in the mind of the judges as to his responsibility for the offences charged, in this case by producing evidence tending to support or to establish the alleged alibi.[2] The only purpose of an alibi is to cast reasonable doubt on the Prosecutor’s allegations, which must be proven beyond reasonable doubt. In alleging an alibi, the accused merely obliges the Prosecution to demonstrate that there is no reasonable likelihood that the alibi is true. In other words, the Prosecution must establish beyond a reasonable doubt that, “despite the alibi, the facts alleged are nevertheless true”.[3]

418. There is thus no obligation on the Prosecution to investigate the alibi. […]

In the present case, the Appeals Chamber found that the Trial Chamber’s assessment of the alibi evidence was erroneous and concluded that it had not been established beyond reasonable doubt that the Appellant committed the crimes in question (paras 413-474 of the Appeal Judgement).

42. […] The Appeals Chamber has recently confirmed that when a defendant pleads an alibi, he is denying that he was in a position to commit the crimes with which he is charged because he was elsewhere than at the scene of the crime at the time of its commission.[1] The Appeals Chamber recalls that:

It is settled jurisprudence before the two ad hoc Tribunals that in putting forward an alibi, a defendant need only produce evidence likely to raise a reasonable doubt in the Prosecution’s case. The burden of proving beyond reasonable doubt the facts charged remains squarely on the shoulders of the Prosecution. Indeed, it is incumbent on the Prosecution to establish beyond reasonable doubt that, despite the alibi, the facts alleged are nevertheless true.[2]

43. Nothing in the foregoing requires the Prosecution, however, specifically to disprove each alibi witness’s testimony beyond reasonable doubt. Rather, the Prosecution’s burden is to prove the accused’s guilt as to the alleged crimes beyond reasonable doubt in spite of the proffered alibi.

110. The Appeals Chamber notes that Rule 67(A)(ii)(a) of the Rules requires the Defence to notify the Prosecution of its intent to enter a defence of alibi “[a]s early as reasonably practicable and in any event prior to the commencement of the trial”. This provision expressly stipulates that “the notification shall specify […] the names and addresses of witnesses and any other evidence upon which the accused intends to rely to establish the alibi”. Ndahimana’s contention that Rule 67(A) of the Rules does not require the disclosure of the names and addresses of the alibi witnesses is therefore incorrect.

113. The Appeals Chamber recalls that the manner in which an alibi is presented may impact its credibility.[1] It was therefore within the Trial Chamber’s discretion to take into account Ndahimana’s failure to provide the necessary particulars of alibi witnesses on time in assessing the alibi evidence.[2] Contrary to Ndahimana’s suggestion, the Trial Chamber was not required to consider whether the Prosecution suffered prejudice from the belated disclosure.[3]

114. The Appeals Chamber has previously upheld the inference drawn by a trial chamber that failure to raise an alibi in a timely manner suggested fabrication of the alibi in order to respond to the Prosecution case.[4] Ndahimana’s arguments that the late disclosure of the particulars was a result of the ongoing investigations and was not motivated by the desire to obtain a tactical advantage fail to demonstrate that such an inference was unreasonable in the present case.

38. The Appeals Chamber notes that with regard to alibi, the Trial Chamber stated that:

when an alibi is submitted by the Accused the burden of proof rests upon the Prosecution to prove its case beyond a reasonable doubt in all aspects. Indeed, the Prosecution must prove “that the accused was present and committed the crimes for which he is charged and thereby discredit the alibi defence”. If the alibi is reasonably possibly true, it will be successful.[1]

This definition is legally beyond reproach and shows that the Trial Chamber was aware of the applicable burden of proof.

150. The Appeals Chamber recalls the finding in the Zigiranyirazo Appeal Judgement that “evidence concerning specific travel details taken after several years can only be of limited assistance in establishing the time and exact itinerary” of a trip taken in April 1994.[1] However, it also recalls that, in the circumstances of that case, the observations of the Trial Chamber on the site visit were found to be a relevant factor in assessing the credibility of the alibi.[2] As such, although it is true that observations from a site visit taken several years after an event may only be of limited assistance, their relevance will depend on the circumstances of each case. Therefore, the Appeals Chamber does not find that the Trial Chamber erred in law by comparing its observations during the site visit with the evidence of the alibi witnesses. The Appeals Chamber will therefore turn to consider whether the Trial Chamber was reasonable in this comparison.

43. The Appeals Chamber therefore finds that the Trial Chamber reversed the burden of proof in its assessment of Zigiranyirazo’s alibi. The Appeals Chamber’s conclusion is reinforced by the Trial Chamber’s failure, in contrast to other cases where similar language was used, to articulate correctly the applicable burden of proof specific to the assessment of an alibi as well as by the numerous other factual and legal errors identified below. In view of the clear legal error in the application of the burden of proof, the Appeals Chamber will proceed to consider the relevant evidence de novo under the correct legal standard.

51. In sum, the Appeals Chamber concludes that the Trial Chamber erred in law and in fact in its assessment of the alibi evidence, by misapprehending the applicable legal principles, failing to consider or provide a reasoned opinion with respect to relevant evidence, and misconstruing key evidence which further bolstered Zigiranyirazo’s alibi. The Appeals Chamber considers that these errors constituted a miscarriage of justice and invalidated the verdict, and thus that the Trial Chamber’s findings on Zigiranyirazo’s participation in the attack at Kesho Hill on 8 April 1994 must be overturned. [see also para. 73 of this Appeal Judgement]

63. The Appeals Chamber recalls its conclusions in connection with the Sixth Ground of Appeal that the Trial Chamber’s failure to maintain a record of the site visit did not invalidate the verdict.[2] Nevertheless, a review of the Trial Chamber’s discussion of the alibi in relation to the Kiyovu Roadblock reveals that it committed three significant errors: not applying the correct legal standard to the assessment of the alibi; misconstruing key evidence to discount the alibi; and failing to consider or provide a reasoned opinion with respect to relevant evidence.

71. When viewed as a whole under the correct standard, the evidence in support of Zigiranyirazo’s alibi, which was not discounted by the Trial Chamber, provides a reasonable basis to conclude that he remained in Rubaya and its surrounding area on 12 and 17 April 1994. Accordingly, the Appeals Chamber finds that the alibi evidence casts doubt on the Prosecution evidence placing him at the Kiyovu Roadblock on 12 and 17 April 1994.

75. In reversing Zigiranyirazo’s convictions for genocide and extermination as a crime against humanity, the Appeals Chamber again underscores the seriousness of the Trial Chamber’s errors. The crimes Zigiranyirazo was accused of were very grave, meriting the most careful of analyses. Instead, the Trial Judgement misstated the principles of law governing the distribution of the burden of proof with regards to alibi and seriously erred in its handling of the evidence. Zigiranyirazo’s resulting convictions relating to Kesho Hill and the Kiyovu Roadblock violated the most basic and fundamental principles of justice. In these circumstances, the Appeals Chamber had no choice but to reverse Zigiranyirazo’s convictions.

194.     The evolving nature of ongoing investigations and the reality of a party’s possession of incomplete information at certain stages of trial proceedings might excuse the provision of an incomplete initial notice of alibi or justify subsequent supplemental filings.[1] However, […].

195.     As a result, the Appeals Chamber considers that the Trial Chamber reasonably questioned the circumstances surrounding the belated advancement of Ngirabatware’s alibi. The manner in which an alibi is presented may impact its credibility.[2] This is the case even if the Prosecution ultimately had an opportunity to interview the potential alibi witnesses or call additional evidence to rebut the alibi. A trial chamber is not required to consider whether the Prosecution suffered prejudice from the delayed filing of the notice of alibi.[3] Therefore, it was within the Trial Chamber’s discretion to take into account Ngirabatware’s failure to provide adequate and timely notice in assessing his alibi in connection with the events occurring on 7 April 1994.

At paras 63-64, the Appeals Chamber recalled the previous jurisprudence of the ICTR Appeals Chamber with respect to the consequences of a defence of alibi on the burden of proof of the accused’s guilt: raising a defence of alibi does not affect the onus incumbent on the Prosecution to establish beyond reasonable doubt, despite the alibi, the accused’s guilt. Consequently, the accused bears no onus to establish the alibi, but it is for the Prosecution to eliminate any reasonable possibility that the alibi is true. Moreover, the demonstration that an alibi is false is not sufficient to demonstrate the accused’s guilt:

63. The Appeals Chamber notes and agrees with the ICTR Appeals Chamber’s finding in Kamuhanda with respect to the burden of proof regarding alibi that:

[a]n alibi […] is intended to raise reasonable doubt about the presence of the accused at the crime site, this being an element of the prosecution’s case, thus the burden of proof is on the prosecution.[1]

Similarly, the ICTR Appeals Chamber held in Kajelijeli that:

[t]he burden of proving beyond reasonable doubt the facts charged remains squarely on the shoulders of the Prosecution. Indeed, it is incumbent on the Prosecution to establish beyond reasonable doubt that, despite the alibi, the facts alleged are nevertheless true.[2]

This does not, however, require the Prosecution to specifically disprove each alibi witness’s testimony beyond reasonable doubt. Rather, the Prosecution’s burden is to prove the accused’s guilt as to the alleged crimes beyond reasonable doubt in spite of the proffered alibi.

64. In light of the above, the Appeals Chamber is satisfied that the Trial Chamber correctly held that:

So long as there is a factual foundation in the evidence for that alibi, the Accused bears no onus to establish that alibi; it is for the Prosecution to “eliminate any reasonable possibility that the evidence of alibi is true”. Further, as has been held by another Trial Chamber, a finding that an alibi is false does not in itself “establish the opposite to what it asserts”. The Prosecution must not only rebut the validity of the alibi but also establish beyond reasonable doubt the guilt of the Accused as alleged in the Indictment.[3] 

65. […] Thus, the Appeals Chamber finds that when the Trial Chamber held that the alibi evidence did not “negate the evidence” of the Prosecution, it was not stating a legal requirement. Indeed, it was rather explaining the reasons why it did not find that Haradin Bala’s alibi raised a reasonable doubt in the Prosecution’s case. […]

70. With respect to MLD1, the Trial Chamber held that “[t]]here are a number of aspects of MLD1’s account that are difficult to believe”.[1] It further found that Vilić’s testimony “raise[s] serious questions as to the credibility of MLD10 in general and in respect of her alibi evidence regarding the Drina river and Varda factory incidents”.[2] The Trial Chamber also found MLD15’s evidence “somewhat strange and artificial”.[3] The Appeals Chamber considers that in making these findings, the Trial Chamber explained its reasons for concluding that the witnesses lacked credibility. Such language does not indicate a reversal of the burden of proof. On the contrary, it shows that the Trial Chamber carefully considered the evidence of these alibi witnesses.

71. The Trial Chamber considered that inconsistencies in witness testimonies “call into question the alibi as a whole, as [they cast] reasonable doubt on the alibi evidence” of MLD1, MLD10, and Marković.[4] It also found that an “inconsistency resulting from MLD24’s evidence casts further doubt upon the veracity of the alibi presented as a whole.”[5] The use of these phrases is unfortunate since, taken in isolation, they could be interpreted as requiring Milan Lukić to prove beyond reasonable doubt that he was in Belgrade at the time of the alleged crimes. However, the Appeals Chamber observes that such language must be viewed in the broader context of the Trial Chamber’s findings.[6] The fact that the Trial Chamber in some instances used language which may be misunderstood does not necessarily mean that the Trial Chamber fundamentally misplaced the burden of proof.[7]

72. The Trial Chamber articulated the correct legal standard applicable to the examination of alibi evidence. […] Thus, the Appeals Chamber considers that, when using this language, the Trial Chamber was explaining why it did not find that the proffered alibi raised a reasonable doubt in the Prosecution’s case. The Trial Chamber rejected Milan Lukić’s alibi after having considered the evidence as a whole.[8] In these circumstances, the Appeals Chamber finds that Milan Lukić has failed to show that the Trial Chamber erred in law in assessing his alibi for the DrinaRiver and Varda Factory Incidents.

361. The Appeals Chamber finds that the Trial Chamber correctly articulated the burden of proof applicable to alibi evidence. It stated that “in putting forward an alibi, an accused need only produce evidence likely to raise a reasonable doubt in the Prosecution’s case” and that “it remains incumbent on the Prosecution to establish beyond reasonable doubt that, despite the alibi, the facts alleged are nevertheless true.”[9]

362. The Appeals Chamber further finds that the Trial Chamber properly applied this burden of proof. Sredoje Lukić refers to the Trial Chamber’s finding that “certain aspects of the alibi evidence [were] difficult to believe”,[10] as well as the finding that witness accounts were “implausible”.[11] The Appeals Chamber is of the view that these considerations do not indicate a reversal of the burden of proof.