Raised for the first time on appeal

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Appeal Judgement - 08.05.2012 NTABAKUZE Aloys

289. The Appeals Chamber notes that Ntabakuze did not make any explicit sentencing submission at trial regarding this argument.[1] Rule 86(C) of the Rules clearly indicates that sentencing submissions shall be addressed during closing arguments. It was therefore Ntabakuze’s responsibility to identify all mitigating circumstances he wished to have considered at the time.[2] Ntabakuze failed to do so. In view of the lack of specific pleadings at trial, the Appeals Chamber finds no error in the Trial Chamber not expressly considering whether this factor should have been taken into consideration in mitigation.[3] Ntabakuze’s argument in this respect is therefore rejected.

[1] Ntabakuze mentions Witness DM-25 in his Closing Brief as proof of his good character without arguing, as a mitigating factor, that he saved Witness DM-25’s life and the lives of others. See [The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Major Aloys Ntabakuze Amended Final Trial Brief, public redacted version, 5 October 2007 (“Ntabakuze Closing Brief”)], para. 2598. Similarly, Ntabakuze referred to Witness DM-25 during his closing arguments when arguing the merits of the case, albeit without any mention that the witness’s testimony should serve as an argument for mitigation. See Closing Arguments, T. 30 May 2007 p. 44.

[2] See, e.g., Setako Appeal Judgement, para. 286; Rukundo Appeal Judgement, para. 255; Muhimana Appeal Judgement, para. 231.

[3] The Appeals Chamber observes that the Trial Chamber explicitly referred to Witness DM-25’s testimony in its summary of Ntabakuze’s submissions on his good character, which allows for the conclusion that the Trial Chamber was mindful of Witness DM-25’s entire testimony when deciding upon the sentence. See Trial Judgement, para. 2262.

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Appeal Judgement - 24.03.2000 ALEKSOVSKI Zlatko

51. The Appeals Chamber considers that, in general, accused before this Tribunal have to raise all possible defences, where necessary in the alternative, during the trial, and where so required under the Rules of Procedure and Evidence of the International Tribunal (“Rules”), before trial.[1]  It follows that accused, generally, cannot raise a defence for the first time on appeal.[2]  This general obligation to raise all possible defences during trial stems from the Rules – in particular Rules 65ter and 67 - as well as the obligation upon accused to plead to the charges against them.[3]  It is also important that the Prosecution should be allowed the opportunity to cross-examine witnesses testifying in support of any defence put forward and to call rebuttal witnesses, if necessary.  The Appeals Chamber may also have some difficulty in properly assessing a Trial Chamber’s judgement where the Defence failed to raise a defence expressly, despite evidence having been led that may support such a defence.  However, all of this is not to say that the right of accused to be presumed innocent is in any way impaired or that the Prosecution does not bear the burden of proving its cases. […]

[1] See Rule 67(A) and (B) of the Rules in relation to alibi and special defences. This Rule was in force at the time of the trial in this case.  Also see Rule 65 ter (F) of the Rules, which came into force after the trial in this case and reads, in part: “…the pre-trial Judge shall order the defence … to file a pre-trial brief addressing factual and legal issues, and including a written statement setting out: (i) in general terms, the nature of the accused’s defence; (ii) the matters with which the accused takes issue in the Prosecutor’s pre-trial brief; and (iii) in the case of each such matter, the reason why the accused takes issue with it."

[2] Tadi} Judgement, para. 55; The Prosecutor v. Zlatko Aleksovski, “Decision on Prosecutor’s Appeal on Admissibility of Evidence”, Case No.: IT-95-14/1-AR73, Appeals Chamber, 16 Feb. 2000, paras. 18-20.

[3] Rule 62 of the Rules (“Initial Appearance of Accused”).

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Appeal Judgement - 28.02.2005 KVOČKA et al.

674. […] As regards additional mitigating evidence that was available, though not raised, at trial, the Appeals Chamber does not consider itself to be the appropriate forum at which such material should first be raised.[1] Rule 85(A)(vi) provides that a Trial Chamber will consider “any relevant information that may assist the Trial Chamber in determining an appropriate sentence if the accused is found guilty on one or more charges in the indictment”. In this regard, the following passage from Kupreškić should be reiterated:

If an accused fails to put forward any relevant information, the Appeals Chamber does not consider that, as a general rule, a Trial Chamber is under an obligation to hunt for information that counsel does not see fit to put before it at the appropriate time.[2]

[1] Čelebići Appeal Judgement, para. 790.

[2] Kupreškić et al. Appeal Judgement, para. 414.

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