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, pursuant to Article 26 of the Statute of the Tribunal (“Statute”) and Rules 119 and 120 of the Rules, for a party to succeed in persuading the Appeals Chamber to review a judgement, the party must first satisfy the following cumulative requirements:

a)     there is a new fact;

b)     the new fact was not known to the moving party at the time of the original proceedings;

c)     the failure to discover the new fact was not due to a lack of due diligence on the part of the  moving party; and

d)     the new fact could have been a decisive factor in reaching the original decision;[3]

[…]

CONSIDERING that what is relevant in evaluating an application for review is not “whether [a] new fact already existed before […] original proceedings or during such proceedings” but, rather, “whether the deciding body and the moving party knew about the fact or not” in arriving at its decision;[4]

CONSIDERING that, in “wholly exceptional circumstances”, review may still be permitted even though the “new fact” was known to the moving party or was discoverable by it through the exercise of due diligence if a Chamber is presented with “a new fact that is of such strength that it would affect the verdict”[5] and determines that “review of its judgement is necessary because the impact of the new fact on the decision is such that to ignore it would lead to a miscarriage of justice”;[6]

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]

32. The Appeals Chamber recalls its prior conclusion that “the impact of the Panić New Fact, if proved, is such that to ignore it would lead to a miscarriage of justice”.[1] In this respect, the Appeals Chamber notes that the Additional Conviction was premised on both a delineation of Šljivančanin’s duty to protect the Prisoners,[2] and the Appeals Chamber’s finding that Šljivančanin possessed the mens rea to aid and abet murder as a violation of the laws or customs of war.[3] The Appeals Chamber further observes that its finding concerning Šljivančanin’s mens rea rested on the conclusion that the only reasonable interpretation from the available circumstantial evidence was that Mrkšić informed Šljivančanin of the Withdrawal Order during the Conversation. The Panić New Fact renders this latter inference untenable, and thus undermines the Mrkšić and Šljivančanin Appeal Judgement’s finding that Šljivančanin was guilty of aiding and abetting murder as a violation of the laws or customs of war.[4] Accordingly, the Appeals Chamber vacates the Additional Conviction.[5]

See also para. 31.

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]

At paras 9-11, the Appeals Chamber recalled the law applicable to review proceedings:

9. Review proceedings are governed by the following provisions of the Statute and Rules:

Article 26 of the Statute provides that:

Where a new fact has been discovered which was not known at the time of the proceedings before the Trial Chambers or the Appeals Chamber and which could have been a decisive factor in reaching the decision, the convicted person or the Prosecutor may submit to the International Tribunal an application for review of the judgement.

Rule 119 deals with the request for review and stipulates that:

Where a new fact has been discovered which was not known to the moving party at the time of the proceedings before a Trial Chamber or the Appeals Chamber, and could not have been discovered through the exercise of due diligence, the defence or, within one year after the final judgement has been pronounced, the Prosecutor, may make a motion to that Chamber for review of the judgement. If, at the time of the request for review, any of the Judges who constituted the original Chamber are no longer Judges of the Tribunal, the President shall appoint a Judge or Judges in their place.

Rule 120 provides for a preliminary examination and states that:

If a majority of Judges of the Chamber constituted pursuant to Rule 119 agrees that the new fact, if proved, could have been a decisive factor in reaching a decision, the Chamber shall review the judgement, and pronounce a further judgement after hearing the parties.

10. The combined effect of these provisions of the Statute and the Rules is that in order for a Chamber to proceed to the review of its decision, the moving party must demonstrate that:

there is a new fact;

the new fact was not known to the moving party at the time of the proceedings before the Trial Chamber or the Appeals Chamber;

the lack of discovery of the new fact was not due to a lack of diligence on the part of the moving party; and

the new fact, if proved, could have been a decisive factor in reaching the original decision.[1]

11. In "wholly exceptional circumstances", where the impact of a new fact on the decision would be such that to ignore it would lead to a miscarriage of justice, the Chambers may review their decision even though the new fact was known to the moving party, or was discoverable by it through the exercise of due diligence.[2] As stated in the Tadić Review:

the Appeals Chamber, whenever it is presented with a new fact that is of such strength that it would affect the verdict, may, in order to prevent a miscarriage of justice, step in and examine whether or not the new fact is a decisive factor, even though the second and third criteria under Rule 119 of the Rules may not be formally met.[3]

41. The Appeals Chamber recalls that review is an exceptional remedy and that an applicant is only entitled to assigned counsel, at the Tribunal’s expense, if the Appeals Chamber authorizes the review.[1] Nonetheless, counsel may be assigned at the preliminary examination stage, normally for a very limited duration, if it is necessary to ensure the fairness of the proceedings.[2] Mr. Rutaganda has already made extensive and detailed submissions supported by a number of exhibits in his Request for Review. The Appeals Chamber is not satisfied that additional briefing would be of assistance in the present inquiry. In such circumstances, Mr. Rutaganda’s Request for Review does not warrant the assignment of counsel under the auspices of the Tribunal’s legal aid system.

42. Nonetheless, as a general matter, Mr. Rutaganda may be assisted by counsel in connection with a request for review at his own expense or on a pro bono basis provided the counsel files a power of attorney with the Registrar and satisfies the requirements to appear before the Tribunal. The Registry informed Mr. Rutaganda of this in its letter dated 21 October 2004, explaining that his former counsel could contact him.[3] Thereafter, Mr. Rutaganda filed a notice to the Deputy Registrar indicating that he had retained his former counsel to assist him.[4] Even putting aside that Rule 44(A) of the Rules refers to the counsel filing a power of attorney, Mr. Rutaganda has not pointed to any instance after that point where he was denied access to his counsel.[5] The Appeals Chamber further observes that, in his request, he refers to the pro bono assistance which he received from his former counsel during this period.[6] Accordingly, the Appeals Chamber declines to consider further Mr. Rutaganda’s alleged violations of his right to communicate with counsel. In any event, as a general rule, such matters should first and foremost be addressed by the Registrar.[7]

10. The combined effect of Article 26 of the Statute and Rules 119 and 120 of the Rules is such that for a moving party to succeed in persuading a Chamber to review its judgement, the party must show that: (1) there is a new fact; (2) the new fact was not known to the moving party at the time of the original proceedings; (3) the lack of discovery of that new fact was not the result of a lack of due diligence by the moving party; and (4) the new fact could have been a decisive factor in reaching the original decision.[1] In wholly exceptional circumstances, review may still be permitted even though the new fact was known to the moving party at the time of the original proceedings or was discoverable by it through the exercise of due diligence, if ignoring such new fact would result in a miscarriage of justice.[2] Review of a final judgement is an exceptional procedure and not an additional opportunity for a party to re-litigate arguments that failed at trial or on appeal.[3]

The Applicant alleged the existence of new facts demonstrating that the testimony of one key-witness was false and thus proving the Applicant’s innocence in relation to the crimes for which he was convicted. The Appeals Chamber found that none of the allegations constituted new facts that would justify a review. Nonetheless, it went on observing that the Applicant also failed to demonstrate that some of the evidence provided could not have been discovered through the exercise of due diligence and presented at trial. It finally considered that, in any event, the Applicant failed to demonstrate that these alleged new facts could have been a decisive factor in the Trial or Appeal Judgement (see paras 24-37).

In its Judgement of 19 September 2005,[1] the Appeals Chamber affirmed Kamuhanda’s convictions for ordering genocide and extermination as a crime against humanity, as well as the sentences imposed by the Trial Chamber on 22 January 2004.[2] Subsequent to the Appeal Judgement, 1) one of the Prosecution’s witness in his case was found guilty on 4 December 2007 of giving false testimony under solemn declaration and contempt of the Tribunal and sentenced to nine months of imprisonment;[3] and 2) a former investigator in Kamuhanda’s Defence team, was convicted on 7 July 2009 of committing contempt of the Tribunal and sentenced to 10 months of imprisonment.[4]

Finding that it was necessary in order to ensure the fairness of the proceedings at this preliminary examination stage, the Appeals Chamber granted Kamuhanda’s request for assigned legal assistant to determine whether a request for review is warranted and, if need be, to prepare such a request. The applicable law was recalled, specifying the possible forms of such legal assistance:

17. The Appeals Chamber recalls that as a matter of principle it is not for the Tribunal to assist a convicted person whose case has reached finality. It is only in exceptional circumstances that a convicted person will be granted legal assistance at the expense of the Tribunal after a final judgement has been rendered against him.[5] This type of legal assistance may take different forms, such as the assignment of a counsel or a legal assistant, where the convicted person is indigent. At the preliminary examination stage of a request for review, such assistance will be granted only if the Appeals Chamber deems it “necessary to ensure the fairness of the proceedings”.[6] This necessity is, to a great extent, assessed in light of the potential grounds for review put forward by the applicant.[7]

As for the reasons underpinning the necessity to ensure the fairness of the proceedings, the Appeals Chamber held:

18. The Appeals Chamber cannot rule on Kamuhanda’s potential grounds for review as currently presented; the Motion is neither fully articulated in this respect nor is it intended to be a request for review per se, and Kamuhanda has yet to consider the material disclosed to him by the Prosecution in May 2009. Nevertheless, unlike other requests for legal assistance for review proceedings brought before the Appeals Chamber, Kamuhanda’s Motion provides information on the materials he considers to be “new facts” and explains how they could have been a decisive factor in reaching the original decision. Having carefully considered Kamuhanda’s arguments, as well as the material recently disclosed by the Prosecution, the Appeals Chamber is not in a position to exclude that Kamuhanda’s potential grounds of review may have a chance of success.[8]

19. The Appeals Chamber observes that Kamuhanda was able to file a detailed and coherent request despite his asserted lack of technical legal skills. However, in the exceptional circumstances of this particularly complex case, involving false testimony and subsequent contempt proceedings, the Appeals Chamber is of the view that Kamuhanda lacks the necessary legal expertise to properly assess and weigh the material now in his possession to determine whether a request for review is warranted and, if need be, to prepare such a request.

20. Accordingly, the Appeals Chamber finds that Kamuhanda has shown that it is necessary in order to ensure the fairness of the proceedings at the preliminary examination stage that he be afforded limited legal assistance under the auspices of the Tribunal’s legal aid system.[…].

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.  

48. In relation to his request for review based on the Additional Statements, Niyitegeka also requests that the Appeals Chamber order that the identity of two victims that he was found to have killed be specified.[1] The Appeals Chamber recalls that the charges against Niyitegeka have already been determined and that his conviction has been confirmed on appeal. Outside the review mechanism provided for under Article 25 of the Statute, it is not within the Appeals Chamber’s jurisdiction to re-open terminated proceedings to alter otherwise final findings.[2] Niyitegeka’s attempt to further contest the original findings is therefore dismissed. 

12.     The Appeals Chamber cannot exclude that this potential ground for review may have a chance of success. The provision of materially inconsistent testimony in a domestic proceeding, which was unavailable at the time of trial or appeal, could impact the credibility of an uncorroborated witness and thus the verdict. The scope of Witness GGV’s testimony during the domestic proceedings and any justifications for providing different accounts underscore the complexity of this matter. Given this complexity, Niyitegeka, who is serving his sentence in Mali, would benefit from the assistance of counsel to better evaluate the viability of his potential grounds for review and to provide a new and more focused submission supporting his request for review. Accordingly, the Appeals Chamber finds that Niyitegeka has shown that it is necessary in order to ensure the fairness of the proceedings that counsel be appointed under the auspices of the Mechanism’s legal aid program.

12.     The Appeals Chamber is also not persuaded that Ntabakuze’s potential ground of review in relation to the IAMSEA killings satisfies the requirements for the assignment of an investigator and counsel at the expense of the Mechanism. The Appeals Chamber notes that this is the first time that Ntabakuze specifically raises the argument that the Para-Commando soldiers who were involved in the crimes at IAMSEA might have been under the control of another battalion, and specifically that in March 1994 they might have been reassigned to the Presidential Guard.[1] However, the issue of whether Ntabakuze had effective control over the Para-Commando soldiers who participated in the killings was litigated both at trial and on appeal.[2] Ntabakuze’s intention to pursue additional evidence in relation to the alleged presence of the Presidential Guard in the vicinity of IAMSEA and the possibility that the Para-Commando soldiers involved in the crimes might have been under the Presidential Guard’s command,[3] does not appear to constitute a “new fact” that may have a chance of success on review.

12. […] The Appeals Chamber also recalls that it has inherent jurisdiction to review decisions issued by the President of the Tribunal in certain instances, including where such decisions are closely related to issues involving the fairness of proceedings before the Appeals Chamber.[1] 

13. The Appeals Chamber recalls that, on 8 February 2006, it affirmed the Trial Chamber’s acquittal of the Applicant and ordered the Registrar to take, without delay, all necessary steps to effect such acquittal.[2] The Decision of the President and the Decision of the Trial Chamber are thus related to the order given to the Registrar to effect the Applicant’s acquittal. Furthermore, the Applicant claims that he remains in de facto custody of the Tribunal and that full effect has not yet been given to his acquittal. The Appeals Chamber is concerned by this claim, in particular as to whether it raises an issue regarding the effectiveness of its judgements acquitting an accused. The Appeals Chamber considers this issue to be closely related to the fairness of the proceedings. Accordingly, the Appeals Chamber has inherent jurisdiction to review the Decision of the President and the Decision of the Trial Chamber.[3]

Following the issuance of the Appeal Judgement in this case, Barayagwiza requested that the Appeals Chamber order the Registrar to assign, pursuant to Rule 45 of the Rules, his former Lead Counsel on appeal as his counsel to assist him in the preparation of a motion for review and/or reconsideration of the Appeal Judgement. While the Registrar did not object to the assistance of the Counsel as pro bono counsel (provided that the counsel files a power of attorney pursuant to Rule 44 of the Rule[1]), he objected to the assignment under the legal aide scheme (Rule 45), in the absence of judicial determination on the admissibility of the request for review and/or reconsideration. The Appeals Chamber ruled that the request for assignment of counsel for the purpose of preparing a motion for reconsideration was without merit considering that a final judgement cannot be reconsidered. As for the preparation of a motion for review, the Appeals Chamber held:

pp. 3-4: RECALLING that review of a final judgement is an exceptional remedy and that an indigent applicant is only entitled to assigned counsel, at the Tribunal’s expense, if the Appeals Chamber authorizes the review or if it deems it necessary in order to ensure the fairness of the proceedings  at the preliminary examination stage;[2]

CONSIDERING that the Motion fails to provide any information on the basis for a potential request for review;[3]

CONSIDERING further that in the absence of information as to the potential grounds for review, the Appeals Chamber cannot conclude that it would be necessary in order to ensure the fairness of the proceedings to authorize assignment of counsel to the Applicant under the Tribunal’s legal aid scheme;

FINDING therefore, that the Applicant has not shown that he should receive the assistance of counsel at the expense of the Tribunal;

NOTING that in any event the Applicant may be assisted by counsel in connection with a request for review at his own expense, at the expense of a third party or on a pro bono basis, provided that counsel files a power of attorney with the Registrar and satisfies the requirements to appear before the Tribunal;

Subsequently, on 9 September 2008, the Appeals Chamber rendered its decision on Barayagwiza’s motion for reconsideration of the present Decision,[4] holding inter alia that:

p. 4: CONSIDERING that the Impugned Decision is not premised on the understanding that Mr. Herbert would assist the Applicant in the preparation of a motion for review on a pro bono basis, but merely informs the Applicant that, while he failed to demonstrate that assignment of a counsel under the Tribunal’s legal aid scheme was justified in the present circumstances, he may still, subject to certain conditions, be assisted by counsel in connection with a request for review at his own expense, at the expense of a third party or on a pro bono basis, and;[5]

CONSIDERING that the Applicant merely reiterates his request for a blanket assignment of counsel under the Tribunal’s legal aid scheme;

CONSIDERING that the Applicant has failed to demonstrate a clear error of reasoning in the Impugned Decision or that reconsideration is necessary to prevent an injustice;

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.

11. Having found that the Trial Chamber did not err in holding that it could issue a binding Rule 54bis order to NATO, the Appeals Chamber considers that it has competence under Rule 108bis to review the Impugned Decision as it relates to NATO although Rule 108bis only provides for “a State” to request review. The Appeals Chamber recalls its holding above that a State may be interpreted under Article 29 and Rule 54bis to refer to a collective enterprise of States.[1] Furthermore, Rule 54bis (C)(i)(a) requires that a decision under that Rule “shall be subject to review under Rule 108bis.” Finally, because international organizations, like States, are not parties to proceedings before the International Tribunal such that they may appeal a Rule 54bis decision, fairness requires that international organizations must have the same right to seek a review of a Rule 54bis order issued against them as is enjoyed by individual States. (emphasis added).

The Appeals Chamber noted that although the decision of the Trial Chamber to assign standby counsel was not specifically at issue in the given appeal, the decision was “inextricably linked” to the Impugned Decision.  The Appeals Chamber determined that it must consider whether the Trial Chamber erred in interpreting its decision restoring Šešelj’s right to self-representation.

20.     […] While the decision of the Trial Chamber to assign standby counsel was not certified for appeal by the Trial Chamber, the two decisions are inextricably linked.[1]  It was because of the decision of the Trial Chamber to immediately impose standby counsel and Šešelj’s inability to find an avenue to legally challenge that decision before the Trial Chamber that he was placed on a collision course with the Trial Chamber leading to the Trial Chamber’s issuing of the Impugned Decision.  In this respect, while the Tribunal’s jurisprudence limits the Appeals Chamber to examining whether the Trial Chamber erred in issuing the Impugned Decision, such a review in this appeal would not resolve the real issue of dispute between Šešelj and the Trial Chamber. 

24.     While the Appeals Chamber has acknowledged that the Decision to Assign Standby Counsel is not the Impugned Decision before it, it must also acknowledge that its decision restoring the right of Šešelj to self-representation was not clear as to whether the restoration of that right to self-representation allowed the Trial Chamber to restore the status quo by immediately reassigning standby counsel, following the Appeal Decision without establishing any obstructionist conduct on the part of Šešelj. 

25.     If the Appeals Chamber was to ignore the background to the Impugned Decision and apply the applicable law and the standard of review to the Impugned Decision, it would find no error on the part of the Trial Chamber in ordering the imposition of assigned counsel.  As the test makes clear, all that must be established is that the disruptive behaviour of the Accused “is substantially and persistently obstructing the proper and expeditious conduct of his trial” and it does not matter whether that conduct is intentional or unintentional. […] In this particular case, what must and also can be considered by the Appeals Chamber is whether the Trial Chamber erred in the interpretation of its decision restoring Šešelj’s right to self-representation.  […]

25. The Appeals Chamber further recalls that the term “new fact” for the purposes of review refers to new evidentiary information supporting a fact that was not in issue or considered in the original proceedings.[1] Accordingly, as the issue of Simang’s credibility was considered during the trial and appeal proceedings in light of allegations regarding the promises made by the Prosecution to Simang and Mrachaz, the Appeals Chamber finds that the Applicant has failed to demonstrate that the evidence submitted in the Application regarding Simang’s credibility constitutes a new fact for the purposes of review.[2]

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. […]

The Appeals Chamber clarified that, under Article 25 of the Statute and according to Rules 120-123, a party may submit an application for review if it satisfies the following conditions: a new fact has been discovered which was not known at the time of the initial proceedings and which could not been discovered earlier through the exercise of due diligence; and this new fact could have been a decisive factor in reaching the decision. The Appeals Chamber emphasized that only a definitive judgement can be reviewed under the said provisions.

20. […] Pour obtenir la révision conformément aux articles 25 du Statut et 120 à 123 du Règlement, la partie intéressée doit au préalable satisfaire quatre conditions:

1) un fait nouveau doit avoir été découvert,

2) ce fait nouveau ne doit pas avoir été connu de la partie intéressée lors de la procédure initiale,

3) la non-découverte de ce fait nouveau ne doit pas être due à un manque de diligence de la partie intéressée, et

4) le fait nouveau aurait pu être un élément décisif de la décision initiale[1].

21. La Chambre d’appel réitère en outre que « seul un jugement définitif peut être révisé en vertu des articles 25 du Statut et 120 du Règlement, et [qu’]un jugement définitif est une décision qui met fin à une procédure »[2].

23. La Chambre d’appel rappelle que la Décision du 14 septembre 2000 a rejeté la révision ainsi que le réexamen de la Requête du 28 juillet 2000 aux motifs que l’Arrêt du 31 mars 2000 n’avait pas mis fin à la procédure, que le réexamen de ladite requête ne pouvait être utilisé comme pouvoir de révision dans les cas où celle-ci n’était pas prévue et qu’il n’était pas justifié en l’espèce ; elle a dirigé l’Appelant vers la Chambre de première instance en vue de lui soumettre, le cas échéant, des faits nouveaux de nature à établir l’incompétence du Tribunal[3].

22.     The Appeals Chamber recalls that “[t]he jurisprudence of the Tribunal with respect to proceedings under Article 26 of the Statute and Rule 119 is clear”: “review is only available with respect to final judgement.”[1] A “final judgement” in the sense of those provisions under the Statute and Rules is a decision “which terminates the proceedings; only such a decision may be subject to review.”[2] […]

23. The Appeals Chamber considers that the above cited jurisprudence establishes that the scope of review proceedings before the International Tribunal does not extend to decisions reached during the ongoing proceedings in a case prior to the rendering of the final judgement or final decision. Indeed, in the Barayagwiza Review Decision, the Appeals Chamber explicitly held that interlocutory decisions are not subject to review after the rendering of the final judgement or final decision.[3] Review proceedings are, by their very nature, extraordinary and exceptional because they allow for the re-opening of a closed case and thus, are limited to the final judgement or decision in a case, especially in light of the fact that there is no time-limit for an accused seeking review. If decisions reached prior to the final judgement or final decision were also subject to review, the outcome of a case would always be in question and the parties would never reach resolution. […]

8.       […] [A] general allotment of funds under the Mechanism’s legal aid system does not itself set an outer limit on the time frame that an assigned counsel has to prepare a request for review.[1] […]

See also para. 5

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]

12. […] the Appeals Chamber clarifies that an appeal lies as of right of any decision taken under Rule 73 of the Rules by a single judge or trial chamber after an applicant’s trial and appeal proceedings have concluded. This is necessary to give full effect to the continuous obligation imposed upon the Prosecution by Rule 73(E) of the Rules to disclose exculpatory material after the completion of trial and any subsequent appeal.[1]

9.       […] As to the nexus, […] Given the relatively low threshold for establishing this criterion,[1] […]

23.     The Appeals Chamber recalls that an indictment simply contains allegations of facts with which an accused is charged and the Appeals Chamber of the ICTR has found it to have "no evidentiary value" in the context of review proceedings.[1] This conclusion is particularly persuasive when considering the broad discretion the Prosecution has in selecting information and crimes to be included in indictments[2] and the fact that Rugambarara's amended indictment was drafted with the intention of securing a plea agreement. Similarly, the facts relied upon to convict Rugambarara were also agreed to by the parties[3] and "such facts are merely accepted by the Trial Chamber upon a less burdensome level of scrutiny than one applied in instances where the Prosecution must prove facts upon which convictions are based beyond reasonable doubt."[4] Given the particular context in which the Rugambarara Plea Documents were created, the Appeals Chamber finds that they do not constitute new information of an "evidentiary nature" that would support a basis for review of Semenza's convictions.[5]

See also paragraph 28.

8. The Appeals Chamber notes that Article 14(5) of the International Covenant on Civil and Political Rights guarantees that “[e]veryone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law”.[1] However, neither the Statute nor the Rules provide a legal framework for this avenue of relief where a conviction is entered at the appellate stage.[2] Instead, Article 24 of the Statute and Rule 146 of the Rules offer a convicted person the ability to seek a review of an appeal judgement on fulfilment of certain criteria, which have been interpreted broadly where a miscarriage of justice would otherwise result.[3] ₣…ğ

8. The Appeals Chamber notes that Article 14(5) of the International Covenant on Civil and Political Rights guarantees that “[e]veryone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law”.[1] However, neither the Statute nor the Rules provide a legal framework for this avenue of relief where a conviction is entered at the appellate stage.[2] Instead, Article 24 of the Statute and Rule 146 of the Rules offer a convicted person the ability to seek a review of an appeal judgement on fulfilment of certain criteria, which have been interpreted broadly where a miscarriage of justice would otherwise result.[3] [...]

9. The ICTY Appeals Chamber has previously stated that it was “satisfied that the existing appeal and review proceedings established under the Statute provide sufficient guarantees to persons convicted before this Tribunal that they have been tried fairly and in accordance with norms of due process”.[4] [...] Šešelj limits his arguments to the impropriety of being convicted on appeal and to asserting his consequent right to appeal[...] without articulating any deficiencies in the existing procedures for review of appeal judgements provided for in the Statute and the Rules or [...] attempt[ing] to demonstrate that the Appeal Judgement contains any errors.[5]

63. [...] The Appeals Chamber emphasizes, however, that it will not lightly disturb on review a trial chamber’s credibility assessment, which was subjected to appellate review, based on a witness’s subsequent conduct occurring more than five years after their original testimony. To do so, would in fact provide incentives to convicted persons, or individuals close to them, to interfere with susceptible witnesses with the hope that it will not be discovered and the convicted person will be released or, if discovered, that the witnesses will then be so thoroughly discredited that their original testimony cannot be trusted and the convicted person will be released. To put it simply, an applicant bears a heavy burden in showing that the conduct of a witness, occurring significantly post trial testimony, taints their original testimony. [...]