Para. 42: when the Appeals Chamber directs a subsequently assigned Defence counsel to file additional submissions to a request for review previously filed pro se by a convicted person, the said submissions shall be limited to issues raised by the convicted person in the initial pro se request. Any issue raised for the first time in the additional submissions is deemed to be out of the scope of the Appeals Chamber’s order and the merit thereof shall not be considered.

Paras 12, 16, 21, 25, 30, 36: the Appeals Chamber after having recalled the cumulative nature of the criteria for review in para. 7, as previously set out in Josipović,[1] and having concluded that none of the alleged issues met the first criterion of “new fact” within the meaning of Article 25 of the Statute and Rule 120 of the Rules of the Tribunal, ruled that it was not obliged to examine them further. This determination conforms to previous approaches adopted by the Appeals Chamber, halting the analysis at the first criterion upon concluding that no “new fact” is presented.[2]

Nevertheless, the Appeals Chamber proceeded to consider whether, assuming the proffered material could be characterised as a “new fact”, it could have been a decisive factor in reaching the original decision.[3] The approach of the Appeals Chamber in this case, as in previous cases, was to consider the fourth criterion of “decisive factor” after finding that the first criterion is not met.[4] The Appeals Chamber adopted this approach out of an abundance of caution and not because the requirement of a “new fact” can be waived to avoid a miscarriage of justice.

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.

65.     In the wholly exceptional circumstances of this case, and in the face of a possible miscarriage of justice, the Chamber construes the condition laid down in Rule 120, that the fact be unknown to the moving party at the time of the proceedings before a Chamber, and not discoverable through the exercise of due diligence, as directory in nature. In adopting such a position, the Chamber has regard to the circumstance that the Statute itself does not speak to this issue.

66.     There is precedent for taking such an approach. Other reviewing courts, presented with facts which would clearly have altered an earlier decision, have felt bound by the interests of justice to take these into account, even when the usual requirements of due diligence and unavailability were not strictly satisfied. While it is not in the interests of justice that parties be encouraged to proceed in a less than diligent manner, “courts cannot close their eyes to injustice on account of the facility of abuse”[1].

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].

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CONSIDERING that, pursuant to Rule 147 of the Rules, a hearing to consider evidence on the new fact (“Review Hearing”) will be held;

CONSIDERING that the Review Hearing will allow the parties to provide supporting and rebuttal evidence concerning the new fact and that, before setting the date and structure of the Review Hearing, it is appropriate to allow adequate time for preparation and to consider the scope of the evidence, if any, the parties wish to present;[1]

Pages 1, 2:

CONSIDERING that the Rules require the holding of a status conference at regular intervals only at the pre-trial stage of the proceedings following the initial appearance of the accused[1] and pending appeal if a convicted person is in custody following the filing of a notice of appeal;[2]

CONSIDERING that, in the absence of an express requirement in the Rules, a status conference or other procedural hearing may be held by a judge or a Chamber if it is in the interests of justice or required for the proper preparation of the hearing;

CONSIDERING that Ngirabatware has not shown that a status conference is necessary because he does not identify any specific issue that he wishes to raise in relation to his mental or physical condition or in relation to the preparation of the review hearing;[3]

CONSIDERING that the conditions of detention of the detainees under the authority of the Mechanism at the United Nations Detention Facility in Arusha are supervised by the President and that, therefore, there is a separate avenue for raising concerns in relation to the detainees’ mental and physical condition;[4]

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.

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NOTING that Niyitegeka passed away on 28 March 2018, while serving his sentence in the Republic of Mali;[1]

RECALLING that the Mechanism continues the personal jurisdiction of the ICTR as set out in Article 5 of the Statute of the ICTR ("ICTR Statute");[2]

OBSERVING that Article 5 of the ICTR Statute stipulates that the ICTR "shall have jurisdiction over natural persons";

CONSIDERING that, when read in the context of the object and purpose of the ICTR Statute, "natural persons" is understood as limited to those who are alive;[3]

RECALLING that appeal proceedings before the ICTY and trial proceedings before the ICTY and the ICTR have been terminated following the death of the appellant or the accused for lack of personal jurisdiction;[4]

CONSIDERING that, to uphold principles of due process and fundamental fairness, the Mechanism's jurisdiction ratione personae, consistent with that of the ICTR and the ICTY, is limited to living persons;[5]

FINDING that, in light of. Niyitegeka's death, the Appeals Chamber no longer has jurisdiction to consider the Request;

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”.[1] [...] 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.[2]

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. [...]