The Appeals Chamber recalled that Article 21(4)(d) of the Statute provides the accused before the International Tribunal with the presumptive right of self representation. However, this right is not absolute and can be restricted where a defendant’s self-representation is substantially and persistently obstructing the proper and expeditious conduct of his trial.[1] The right of  self-representation can be restricted irrespectively from the actual intention of the accused to obstruct the proceedings.[2] The Appeals Chamber recalled that, for the right to self-representation to be restricted, it is upon the Trial Chamber to decide

“Whether the appropriate circumstances exist and what they are is a matter for the Trial Chamber to determine on a case by case basis when considering the particular facts of a case as a whole.”[3]

In view of this principle, the Appeals Chamber affirmed that the Trial Chamber, in order to assign a Counsel to an accused who chose to self-represent himself, did not have to find that the accused’s behaviour the Trial Chamber had been “extremely disruptive to the point of rendering continuation of the proceedings practically impossible” but that “[a]ll that the Trial Chamber was required to do was find that appropriate circumstances, rising to the level of substantial and persistent obstruction to the proper and expeditious conduct of the trial exist, thereby warranting restriction of Šešelj’s right to self-representation.”[4]

11. Both the Trial Chamber and the Prosecutor recognize that defendants have a presumptive right to represent themselves before the Tribunal.  It is not hard to see why.  Article 21 of the ICTY Statute, which tracks Article 14 of the International Convention on Civil and Political Rights,[1] recognizes that a defendant is entitled to a basic set of “minimum guarantees, in full equality,” including the right “to defend himself in person or through legal assistance of his own choosing.”[2] This is a straightforward proposition:  given the text’s binary opposition between representation “through legal assistance” and representation “in person,” the Appeals Chamber sees no reasonable way to interpret Article 21 except as a guarantee of the right to self-representation.  Nor should this right be taken lightly.  The drafters of the Statute clearly viewed the right to self-representation as an indispensable cornerstone of justice, placing it on a structural par with defendants’ right to remain silent,[3] to confront the witnesses against them,[4] to a speedy trial,[5] and even to demand a court-appointed attorney if they cannot afford one themselves.[6]  In the words of the United States Supreme Court in Faretta v. California, which was recognized by the Trial Chamber as the classic statement of the right to self-representation,[7] an “unwanted counsel ‘represents’ the defendant only through a tenuous and unacceptable legal fiction,” such that “counsel [becomes] not an assistant, but a master.”[8] Defendants before this Tribunal, then, have the presumptive right to represent themselves notwithstanding a Trial Chamber’s judgment that they would be better off if represented by counsel.

12. While this right to self-representation is indisputable, jurisdictions around the world recognize that it is not categorically inviolable.  In Faretta itself, the United States Supreme Court noted that, since “[t]he right of self-representation is not a license to abuse the dignity of the courtroom,” a trial judge “may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct.”[9]  Recognizing this same basic contingency of the right, England,[10] Scotland,[11] Canada,[12] New Zealand,[13] and Australia[14] have all developed the principle that, in order to protect vulnerable witnesses from trauma, courts may severely restrict the right of defendants to represent themselves in sexual assault trials.  Scotland goes so far as to forbid such defendants from conducting any portion of their defenses in person.[15] And while this Appellate Chamber has not previously passed on the question, existing precedent from contemporary war crimes tribunals is unanimous in concluding that the right to self-representation “is a qualified and not an absolute right.”[16]

13. Recognizing that a defendant’s right to represent himself is subject to some limitations, however, does not resolve this case.  It must further be decided whether the right may be curtailed on the grounds that a defendant’s self-representation is substantially and persistently obstructing the proper and expeditious conduct of his trial.  The Appeals Chamber believes that, under the appropriate circumstances, the Trial Chamber may restrict the right on those grounds.  It is particularly instructive in this regard to consider the parallel statutory right of an accused before the Tribunal “to be tried in his [own] presence”[17] – a right that is found in the very same clause of the ICTY Statute as the right to self-representation.  Notwithstanding the express enunciation of this right in the Statute, Rule 80(B) of the Rules of Procedure and Evidence allows a Trial Chamber to “order the removal of an accused from the courtroom and continue the proceedings in the absence of the accused if the accused has persisted in disruptive conduct.”  If a defendant’s right to be present for his trial – which, to reiterate, is listed in the same string of rights and indeed in the same clause as the right to self-representation – may thus be restricted on the basis of substantial trial disruption, the Appeals Chamber sees no reason to treat the right  to self-representation any differently.

For the overview of the applicable law, please see paragraphs 6 – 12 of the Decision.

The Appeals Chamber restated in a concise manner the standard of review for admission of additional evidence (footnotes rearranged to have full names of decisions):

12. The admission of additional evidence on appeal is regulated under Rule 115 of the Rules. In order to be admissible pursuant to this Rule, the evidence put forward must satisfy a number of requirements. The applicant must first demonstrate that the additional evidence tendered on appeal was not available to him at trial in any form,[1] or discoverable through the exercise of due diligence.[2] The applicant’s duty to act with reasonable diligence includes making “appropriate use of all mechanisms of protection and compulsion available under the Statute and the Rules of the International Tribunal to bring evidence on behalf of an accused before the Trial Chamber.”[3]  He then must show that the evidence is both relevant to a material issue and credible, and that it could have had an impact on the verdict. In other words, the evidence must be such that, considered in the context of the evidence given at trial, it could demonstrate, in the case of a request by a defendant, that the conviction was unsafe.[4] A party seeking to admit additional evidence bears the burden of specifying with clarity the impact the additional evidence could have upon the Trial Chamber’s decision.[5]

13. If the evidence was available at trial, it may still be admissible on appeal if the applicant can meet the burden of establishing that exclusion of the evidence would lead to a miscarriage of justice, in that if it had been available at trial it would have affected the verdict.[6]

14. Whether the evidence was available at trial or not, the Appeals Chamber has repeatedly recognised that the evidence shall not be assessed in isolation, but in the context of the evidence given at the trial.[7]

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]

13.  Rule 115 does not, on its face, prohibit a party from adducing additional evidence in support of a factual finding of a Trial Chamber.  The Rule merely states that a party may file a motion to present additional evidence before the Appeals Chamber.  In circumstances such as these, where the Prosecution is alleging an error in the fact finding of a Trial Chamber in relation to an identified issue, and where its own application to adduce additional evidence relevant to that issue has been refused, on its face, the Rule does not appear to prohibit the Defence from seeking to admit additional evidence directed to that factual finding challenged by the Prosecution.

14. However, while the Rule does not expressly prohibit a party from seeking the admission of additional evidence on appeal to bolster challenged factual findings, in the practice of the International Tribunal, motions for additional evidence are directed towards supporting an argument of factual error, and if additional evidence is sought to be admitted in support of a factual finding, it is admitted as rebuttal material to that additional evidence admitted in support of a factual error.[1]  Neither the Prosecution nor Stanišić has advanced any arguments in support of a departure from this established practice in this case.  However, both parties seem to agree that Rule 115 does permit the admission of evidence in support of a factual finding that is the subject of appeal.

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.

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]

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.

The Appeals Chamber reiterated that a party is always entitled to seek material from any source, including from another case before the Tribunal, to assist in the preparation of its case if the material sought has been identified or described by its general nature and if a legitimate forensic purpose for such access has been shown. The Appeals Chamber specified the criteria for granting such access and considered that it had jurisdiction under Rule 75(G)(ii) to grant to the Appellant access to a confidential guilty plea entered in another case after having consulted with the Judges of the Trial Chamber concerned and afforded the Prosecution the possibility to apply for redactions.[1]

12. La Chambre d’appel a affirmé de manière constante qu’une partie a toujours le droit de chercher à obtenir des documents provenant de n’importe quelle source afin de l’aider à préparer son dossier, à condition d’identifier les documents recherchés, ou de décrire leur nature générale, et de démontrer l’existence d’un but légitime juridiquement pertinent justifiant l’obtention de cet accès[2]. La pertinence des pièces demandées par une partie peut être établie du fait de l’existence d’un lien entre l’affaire de ladite partie et la ou les affaires dans le cadre desquelles ces pièces ont été présentées, par exemple, lorsque ces affaires découlent d’événements qui auraient eu lieu dans la même région et à la même époque ou s’il existe d’autres recoupements[3]. Il suffit que la partie requérante démontre que l’accès à ces pièces est susceptible de l'aider de manière substantielle à présenter sa cause ou, tout au moins, qu'il existe de bonnes chances pour qu'il en soit ainsi[4]. En se prononçant sur une telle demande, il appartient à la Chambre d’appel de trouver un juste équilibre entre le respect du droit d’une partie à avoir accès à des pièces nécessaires à la préparation de sa cause et l’obligation du Tribunal de garantir la protection et la préservation d’informations confidentielles[5].

13. La Chambre d’appel considère qu’elle est compétente, en vertu de l’article 75(G)(ii), pour statuer sur la demande relative à la convention de plaidoyer de Joseph Serugendo, puisque aucune Chambre n’est saisie de la première affaire[6], la procédure ayant été terminée par le prononcé du Jugement le 12 juin 2006 et le décès de Joseph Serugendo le 22 août 2006. Ainsi, la Chambre d’appel se voit habilitée à modifier le niveau de classification des documents protégés[7].

14. La Chambre d’appel est satisfaite que l’Appelant a, d’une part, décrit avec suffisamment de précision la pièce demandée comme il lui incombait de le faire et, d’autre part, démontré l’existence d’un but légitime juridiquement pertinent justifiant la consultation de ladite pièce. Conformément à l’article 75(H) du Règlement, la Chambre d’appel a obtenu toutes les informations nécessaires des Juges composant la Chambre de première instance I qui a prononcé le Jugement dans l’affaire Serugendo et décide d’accorder à l’Appelant l’accès à la convention de plaidoyer de Joseph Serugendo.

15. La Chambre d’appel accorde au Procureur quatorze (14) jours à compter de la date de la présente décision pour déposer une requête aux fins d’expurgation, s’il peut établir l’existence de motifs suffisants justifiant l’expurgation de certaines informations contenues dans ledit document. Les mesures de protection que la Chambre de première instance a adoptées s’agissant de cette pièce restent en vigueur.

8. Review proceedings are governed by Article 25 of the Statute and Rules 120 and 121 of the Rules. Review of a final judgement is an exceptional procedure and is not meant to provide an additional opportunity for a party to remedy its failings at trial or on appeal.[1] Review may be granted only when the moving party satisfies the following cumulative criteria: (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 lack of due diligence by the moving party; and (4) the new fact could have been a decisive factor in reaching the original decision.[2] In wholly exceptional circumstances, the Appeals Chamber may grant review, even where the second or third criteria are not satisfied, if ignoring the new fact would result in a miscarriage of justice.[3]

9. The Appeals Chamber recalls that a “new fact” refers to new information of an evidentiary nature of a fact that was not in issue during the trial or appeal proceedings.[4] By the phrase “not in issue”, the Appeals Chamber has held that “it must not have been among the factors that the deciding body could have taken into account in reaching its verdict.”[5] In other words, what is relevant is whether the deciding body knew about the fact or not in arriving at the decision.[6]

322. Under Articles 17(4), 20(2), 20(4)(a) and 20(4)(b) of the Statute and Rule 47(C) of the Rules, the Prosecutor must state the material facts underpinning the charges in the indictment, but not the evidence by which such facts are to be proved.[1] The indictment is pleaded with sufficient particularity only if it sets out the material facts of the Prosecution case with enough detail to inform a defendant clearly of the charges against him or her so that he or she may prepare his or her defence.[2] An indictment which fails to duly set forth the specific material facts underpinning the charges against the accused is defective.[3] The Appeals Chamber emphasises that the issue as to whether a fact is material or not cannot be determined in the abstract: whether or not a fact is considered “material” depends on the nature of the Prosecution's case.[4]

92. […] the Appeals Chamber recalls the basic principles of the assessment of alibi evidence before considering the specific contentions raised under each ground. The Appeals Chamber recalls that an alibi does not constitute a defence in its proper sense.[1] By raising an alibi, an accused is simply denying that he was in a position to commit the crime with which he was charged.[2] An accused does not bear the burden of proving his alibi beyond reasonable doubt.[3] Rather, “[h]e must simply produce the evidence tending to show that he was not present at the time of the alleged crime.”[4] If the alibi is reasonably possibly true, it must be accepted.[5]

93. Where an alibi is properly raised, the Prosecution must establish beyond reasonable doubt that, despite the alibi, the facts alleged are nevertheless true.[6] The Prosecution may do so, for instance, by demonstrating that the alibi does not in fact reasonably account for the period when the accused is alleged to have committed the crime. Where the alibi evidence does prima facie account for the accused’s activities at the time of the commission of the crime, the Prosecution must “eliminate the reasonable possibility that the alibi is true,”[7] for example, by demonstrating that the alibi evidence is not credible.

97. In certain circumstances, failure to raise an alibi in a timely manner can impact a Trial Chamber’s findings,[8] as it may take such failure into account when weighing the credibility of the alibi.[9] Therefore, the Trial Chamber was entitled to take into account the Appellant’s late submission of the Notice of Alibi when assessing the credibility of the alibi.[10]

Following its finding that the Trial Chamber’s acquittal for genocide did not meet the standard set forth in Rule 98bis(B), the Appeals Chamber used its discretion pursuant to Rule 117(C) of the Rules to order that there be no retrial on the one count of genocide:

73. […] [T]his discretion is recognised as well in the wording of Rule 117(C) of the Rules which provides that in “appropriate circumstances the Appeals Chamber may order that the accused be retried according to law”.[1] Similarly, national case law gives discretion to a court to rule that there should be no retrial.[2] The discretion must of course be exercised on proper judicial grounds, balancing factors such as fairness to the accused, the interests of justice, the nature of the offences, the circumstances of the case in hand and considerations of public interest.  These factors (and others) would be determined on a case by case basis. […]

At paras 19-22, the Appeals Chamber recalls the criteria of admissibility of additional evidence on appeal under Rule 115, inter alia, the time limit, the unavailability at trial, the relevance, the credibility and the impact on the verdict:

19. Rule 115 of the Rules provides for a corrective measure on appeal, and its purpose is to deal “with the situation where a party is in possession of material that was not before the court of first instance and which is additional evidence of a fact or issue litigated at trial”.[1] According to this provision, for additional evidence to be admissible on appeal, the following requirements must be met. First, the motion to present additional evidence should be filed “not later than thirty days from the date for filing of the brief in reply, unless good cause or, after the appeal hearing, cogent reasons are shown for further delay”.[2] Second, the Appeals Chamber must find “that the additional evidence was not available at trial and is relevant and credible.” When determining the availability at trial, the Appeals Chamber is mindful of the following principles:

[T]he party in question must show that it sought to make “appropriate use of all mechanisms of protection and compulsion available under the Statute and the Rules of the International Tribunal to bring evidence […] before the Trial Chamber.” In this connection, Counsel is expected to apprise the Trial Chamber of all the difficulties he or she encounters in obtaining the evidence in question, including any problems of intimidation, and his or her inability to locate certain witnesses. The obligation to apprise the Trial Chamber constitutes not only a first step in exercising due diligence but also a means of self-protection in that non-cooperation of the prospective witness is recorded contemporaneously.[3]

With regards to relevance, the Appeals Chamber will consider whether the proposed evidence sought to be admitted relates to a material issue. As to credibility, the Appeals Chamber will only refuse to admit evidence at this stage if “it is devoid of any probative value in relation to a decision pursuant to Rule 115”[4], without prejudice to a determination of the weight to be afforded.[5]

20. Once it has been determined that the additional evidence meets these conditions, the Appeals Chamber will determine whether the evidence “could have been a decisive factor in reaching the decision at trial.”[6] To satisfy this, the evidence must be such that it could have had an impact on the verdict, i.e. it could have shown that a conviction was unsafe.[7] Accordingly, the additional evidence must be directed at a specific finding of fact related to a conviction or to the sentence.

21. Although Rule 115 of the Rules does not explicitly provide for this, the Appeals Chamber has considered that, where the evidence is relevant and credible, but was available at trial, or could have been discovered through the exercise of due diligence, the additional evidence may still be admitted if the moving party establishes that the exclusion of the additional evidence would amount to a miscarriage of justice inasmuch as, had it been adduced at trial, it would have had an impact on the verdict.[8]

22. Finally, the Appeals Chamber recalls that, whether the evidence was available at trial or not, the additional evidence must always be assessed in the context of the evidence presented at trial, and not in isolation.[9]

21. The Appeals Chamber recalls that review proceedings are governed by Article 25 of the Statute of the Tribunal (“Statute”) and Rules 120 and 121 of the Rules. The Appeals Chamber strongly emphasizes that 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.[1] In order for review to be granted, the moving party must show that: (i) there is a new fact; (ii) the new fact was not known to the moving party at the time of the original proceedings; (iii) the lack of discovery of that new fact was not the result of a lack of due diligence by the moving party; and (iv) the new fact could have been a decisive factor in reaching the original decision.[2] In wholly exceptional circumstances, the Appeals Chamber may nonetheless grant review, even where the new fact was known to the moving party at the time of the original proceedings or the lack of discovery of the fact was the result of a lack of due diligence by the moving party, if ignoring the new fact would result in a miscarriage of justice.[3]

The Appeals Chamber recalls the criteria of admissibility of additional evidence on appeal under Rule 115:

5. Rule 115 of the Rules provides a mechanism for admission of additional evidence on appeal where a party is in possession of material that was not before the court of first instance and which is additional evidence of a fact or issue litigated at trial.[1] According to Rule 115(A) of the Rules, a motion for additional evidence shall clearly identify with precision the specific finding of fact made by the Trial Chamber to which the additional evidence is directed. In addition, Rule 115(B) of the Rules provides that the additional evidence must not have been available at trial and must be relevant and credible. When determining the availability at trial, the Appeals Chamber will consider whether the party tendering the evidence has shown that it sought to make “appropriate use of all mechanisms of protection and compulsion available under the Statute and the Rules of the International Tribunal to bring evidence […] before the Trial Chamber.” Once it has been determined that the additional evidence meets these conditions, the Appeals Chamber will determine in accordance with Rule 115(B) of the Rules whether it could have been a decisive factor in reaching the decision at trial.

6. Furthermore, in accordance with established jurisprudence, where the proffered evidence is relevant and credible, but was available at trial, or could have been discovered through the exercise of due diligence, the Appeals Chamber may still allow it to be admitted on appeal provided the moving party can establish that its exclusion would amount to a miscarriage of justice.[3] That is, it must be demonstrated that had the additional evidence been adduced at trial, it would have had an impact on the verdict.[4]

The Appeals Chamber also noted, in footnote 24, that:

The Appeals Chamber notes that a party seeking the admission of additional evidence on appeal must provide to the Appeals Chamber the evidence sought to be admitted to allow it to determine whether the evidence meets the requirements of relevance and credibility. See Muvunyi Decision, para. 8; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Appellant Jean-Bosco Barayagwiza’s Motion for Leave to Present Additional Evidence Pursuant to Rule 115, 5 May 2006, para. 18; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Appellant Hassan Ngeze’s Motion for Leave to Present Additional Evidence, 14 February 2005, p. 3. See also Prosecutor v. Zoran Kupreškić et al., Case No. IT-95-16-A, “Decision on the Motions of Drago Josipović, Zoran Kupreškić and Vlatko Kupreškić to Admit Additional Evidence Pursuant to Rule 115 and for Judicial Notice to Be Taken Pursuant to Rule 94(B)”, 8 May 2001, para. 5.

It therefore held that:

9. The affidavits that Kanyarukiga seeks to have admitted may be relevant to establishing that the witnesses’ fear about testifying is not simply subjective, but that there is evidence of actual interference by the Rwandan security services in the administration of justice, and thus that the Trial Chamber erred in finding that witnesses will not generally face risks if they testify. However, Kanyarukiga has not attached the affidavits to his Motion, nor has he described the content of these affidavits in sufficient detail which would allow the Appeals Chamber to assess whether they are relevant to demonstrating actual interference in the administration of justice, or whether they simply address the witnesses’ subjective fears, which would be relevant only in the sense of supporting the Trial Chamber’s findings rather than in showing that it erred. The Appeals Chamber also does not have enough information to assess the credibility of the affidavits.

13.     […] The Trial Chamber concluded, relying on the Krajišnik Appeal Decision, that:

[s]hould the Accused lack the ability to present his defence efficiently or effectively because of his lack of knowledge of law and legal procedures, or because of the complexities of the case, the solution envisaged by the Appeals Chamber was not the provision of experienced, high-level professional assistants but “restriction of his right to self representation”.[1]

The Appellant submits that the Krajišnik Appeal Decision did not contemplate that the remedy to an accused’s inability to undertake his own defence without high-level legal support was the restriction of his right to self-representation because the relevant portion of the Krajišnik Appeal Decision cites the Šešelj Appeal Decision which was concerned with the imposition of counsel in a situation of disruptive behaviour rather than a need for legal assistance.[2] Accordingly, the Appellant submits that the imposition of counsel referred to in the Krajišnik Appeal Decision addresses a situation in which “either through disruptive behaviour or continued poor health, [the accused] exhibits conduct which substantially obstructs the conduct of the trial” not a situation of lack of knowledge of the law or legal procedures.[3] However, the Appeals Chamber finds that, read in context, the Krajišnik Appeal Decision was indeed addressing an accused’s ability to conduct his own trial, not a situation of misconduct or ill health. The Krajišnik Appeal Decision reads:

Moreover, the Appeals Chamber considers that where an accused elects to self-represent, he is asserting his ability to conduct his case without legal assistance and thus Tribunal funding for legal aid for him can be presumed to be unnecessary to the conduct of fair trial. To the extent that an accused lacks the ability to conduct his own case and his self-representation is thus “substantially and persistently obstructing the proper and expeditious conduct of his trial”, then the remedy is the restriction of his right to self-representation. To allow an accused to self-represent and yet also receive full legal aid funding from the Tribunal would, as the saying goes, let him have his cake and eat it too.[4]

14. Accordingly the Appeals Chamber finds no error in the Trial Chamber’s interpretation of the Krajišnik Appeal Decision to the effect that where an accused lacks the requisite knowledge of the law or legal procedures to the extent that it will substantially and persistently obstruct the proper and expeditious conduct of the trial, the solution is not the funding of highly experienced legal associates, but rather the curtailment of his right to self-representation.

4. The general principles governing the form of indictments are well established. Articles 17(4), 20(2), 20(4)(a), and 20(4)(b) of the Statute of the Tribunal (“Statute”) and Rule 47(C) of the Rules require the Prosecution to state the material facts underpinning the charges in the indictment, but not the evidence by which such facts are to be proved.[1] Whether a fact is “material” depends on the nature of the Prosecution’s case.[2]

5. The charges against an accused and the material facts supporting those charges must be pleaded with sufficient precision in the indictment in order to provide clear notice to the accused.[3] Decisive factors in determining the degree of specificity with which the Prosecution must plead the material facts of its case are the Prosecution’s characterisation of the alleged criminal conduct and the proximity of the accused to the underlying offence.[4] The Prosecution is expected to know its case before it goes to trial and cannot omit material aspects of its main allegations in the indictment with the aim of moulding the case against the accused in the course of the trial depending on how the evidence unfolds.[5] While it may be impracticable to require a high degree of specificity due to the sheer scale of the alleged crimes,[6] the indictment must particularise the material facts in such a way that the accused can prepare his defence.[7] In particular, the accused must be adequately informed about his role in the alleged crime.[8] An indictment which fails to set forth material facts in sufficient detail is defective.[9]

After recalling the case-law on judicial notice of facts of common knowledge,[1] the Appeals Chamber held:

23. Whether a fact qualifies as a “fact of common knowledge” is a legal question.  By definition, it cannot turn on the evidence introduced in a particular case, and so the deferential standard of review ordinarily applied by the Appeals Chamber to the Trial Chamber’s assessment of and inferences from such evidence has no application. Mr. Nzirorera suggests that the Appeals Chamber should defer to the Trial Chamber’s discretion as to “admissibility of evidence” and “the manner in which facts are to be proven at trial”.[2] But the general rule that the Trial Chamber has discretion in those areas is superseded by the specific, mandatory language of Rule 94(A); as noted above, the Trial Chamber has no discretion to determine that a fact, although “of common knowledge”, must nonetheless be proven through evidence at trial.  For these reasons, a Trial Chamber’s decision whether to take judicial notice of a relevant[3] fact under Rule 94(A) is subject to de novo review on appeal.

At paras 21-32, the Appeals Chamber recalled its previous case-law regarding the necessary elements of an indictment. It confirmed that, in exceptional cases, defects in an indictment can be “cured” if the Prosecution provides the accused with timely, clear and consistent information (para. 28). In an obiter dictum, the Appeals Chamber expressed concern about the extent to which the Prosecution tried to rely on this jurisprudence in the present case, and stressed that this jurisprudence applies only in a limited number of cases (para. 114):

114.    The Appeals Chamber wishes to express its concern regarding the Prosecution’s approach in the present case. The Appeals Chamber recalls that the indictment is the primary accusatory instrument and must plead the Prosecution case with sufficient detail. Although the Appeals Chamber allows that defects in an indictment may be “remedied” under certain circumstances, it emphasizes that this should be limited to exceptional cases. In the present case, the Appeals Chamber is disturbed by the extent to which the Prosecution seeks to rely on this exception. Even if the Prosecution had succeeded in arguing that the defects in the Indictments were remedied in each individual instance, the Appeals Chamber would still have to consider whether the overall effect of the numerous defects would not have rendered the trial unfair in itself.

43. Neither the Statute nor the Rules exhaustively define the factors which may be taken into account by a Trial Chamber in mitigation or aggravation of a sentence. Rule 101(B)(ii) of the Rules only states that in determining a sentence, a Trial Chamber shall take into account “any mitigating circumstances including the substantial cooperation with the Prosecutor by the convicted person before or after conviction”.[1] Factors that have previously been taken into account by the International Tribunal as evidence in mitigation include: (1) co-operation with the Prosecution;[2] (2) the admission of guilt or a guilty plea;[3] (3) the expression of remorse;[4] (4) voluntary surrender;[5] (5) good character with no prior criminal convictions;[6] (6) comportment in detention;[7] (7) personal and family circumstances;[8] (8) the character of the accused subsequent to the conflict;[9] (9) duress[10] and indirect participation;[11] (10) diminished mental responsibility;[12] (11) age;[13] and (12) assistance to detainees or victims.[14] Poor health is to be considered only in exceptional or rare cases.[15] This list is not exhaustive and Trial Chambers are “endowed with a considerable degree of discretion in deciding on the factors which may be taken into account”.[16] They are not required to “articulate every step” of their reasoning in reaching particular findings,[17] and failure to list in a judgement “each and every circumstance” placed before them and considered “does not necessarily mean that [they] either ignored or failed to evaluate the factor in question.”[18] For instance, a Trial Chamber’s express reference to the parties' written submissions concerning mitigating circumstances is prima facie evidence that it was cognisant of these circumstances and took them into account.[19] The standard of proof with regard to mitigating circumstances is not, as with aggravating circumstances, proof beyond reasonable doubt,[20] but proof on a balance of probabilities: the circumstance in question must have existed or exists “more probably than not”.[21]

44. Proof of mitigating circumstances “does not automatically entitle [an] [a]ppellant to a ‘credit’ in the determination of the sentence; it simply requires the Trial Chamber to consider such mitigating circumstances in its final determination”.[22]  An appellant challenging the weight given by a Trial Chamber to a particular mitigating factor thus bears “the burden of demonstrating that the Trial Chamber abused its discretion”.[23] The Appellant has to demonstrate that the Trial Chamber gave weight to extraneous or irrelevant considerations, failed to give weight or sufficient weight to relevant considerations, made a clear error as to the facts upon which it exercised its discretion, or that the Trial Chamber’s decision was so unreasonable or plainly unjust that the Appeals Chamber is able to infer that the Trial Chamber must have failed to exercise its discretion properly.[24]

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.

The Appeals Chamber has clearly restated the applicable law on admissibility of additional evidence on appeal: 

4. The Appeals Chamber recalls that under the jurisprudence of the Tribunal and that of the International Criminal Tribunal for the Former Yugoslavia (“ICTY”), an appeal pursuant to Article 24 of the Statute of the Tribunal (Article 25 of the Statute of the ICTY) is not a trial de novo[1] and is not an opportunity for a party to remedy any “failures or oversights” made during the pre-trial and trial phases.[2] Rule 115 of the Rules of Procedure and Evidence of the Tribunal (“Rules”) provides for a mechanism to address “the situation where a party is in possession of material that was not before the court of first instance and which is additional evidence of a fact or issue litigated at trial”.[3]

5. According to Rule 115, for additional evidence to be admissible on appeal, the following requirements must be met: first, the motion to present additional evidence should be filed “not later than thirty days from the date for filing of the brief in reply, unless good cause or, after the appeal hearing, cogent reasons, are shown for a delay.[4] Second, the Appeals Chamber must find “that the additional evidence was not available at trial and is relevant and credible”.[5] When determining the availability at trial, the Appeals Chamber will consider whether the party tendering the evidence has shown that it sought to make “appropriate use of all mechanisms of protection and compulsion available under the Statute and the Rules of the International Tribunal to bring evidence […] before the Trial Chamber.”[6] In this respect, the Appeals Chamber has held that

Counsel is expected to apprise the Trial Chamber of all the difficulties he or she encounters in obtaining the evidence in question, including any problems of intimidation, and his or her inability to locate certain witnesses” and that “[t]he obligation to apprise the Trial Chamber constitutes not only a first step in exercising due diligence but also a means of self-protection in that non-cooperation of the prospective witness is recorded contemporaneously.[7]

With regards to relevance, the Appeals Chamber will consider whether the proposed evidence sought to be admitted relates to a material issue. As to credibility, the Appeals Chamber will only refuse to admit evidence at this stage if it does not appear to be reasonably capable of belief or reliance, without prejudice to a determination of the weight to be afforded.[8]

6. Once it has been determined that the additional evidence meets these conditions, the Appeals Chamber will determine whether the evidence “could have been a decisive factor in reaching the decision at trial.”[9] To satisfy this requirement, the evidence must be such that it could have had an impact on the verdict, i.e. it could have shown that a conviction was unsafe.[10] Accordingly, the additional evidence must be directed at a specific finding of fact related to a conviction or to the sentence.[11] Although Rule 115 of the Rules does not explicitly provide for this, where the evidence is relevant and credible, but was available at trial, or could have been discovered through the exercise of due diligence, the Appeals Chamber may still allow it to be admitted on appeal provided the moving party can establish that the exclusion of it would amount to a miscarriage of justice. That is, it must be demonstrated that had the additional evidence been adduced at trial, it would have had an impact on the verdict.[12]

7. The Appeals Chamber recalls that, whether the additional evidence was or was not available at trial, the additional evidence must always be assessed in the context of the evidence presented at trial, and not in isolation.[13]

14. Access to confidential material may be granted whenever the Chamber is satisfied that the party seeking access has established that such material may be of material assistance to his case.[1] A party is always entitled to seek material from any source to assist in the preparation of his case if the material sought has been identified or described by its general nature and if a legitimate forensic purpose for such access has been shown.[2]

15. The relevance of the material sought by a party may be determined by showing the existence of a nexus between the applicant’s case and the cases from which such material is sought, i.e. if the cases stem from events alleged to have occurred in the same geographic area and at the same time.[3] It is sufficient that access to the material sought is likely to assist the applicant’s case materially, or that there is at least a good chance that it would.[4]

16. Not always would mere geographical and temporal overlap between two cases be sufficient in every instance to conclude that there is a legitimate forensic purpose. […]

11. [...] Rule 108bis was adopted to permit States directly affected by an interlocutory decision to seek a review where it is claimed that an interlocutory decision of a Trial Chamber has impacted upon its legal rights, such as when a State is ordered to produce documents or records from its archives. This provision is not available where the State claims that its legitimate political interests have been affected, or where it has a genuine concern that the facts alleged in the indictment are historically accurate.^[…] The time for the investigation into the truth of the facts alleged in an indictment does not arise until the trial.

12. Article 29 of the Tribunal’s Statute provides that all States shall cooperate with the Tribunal and comply without undue delay with any request for assistance or order issued by this Tribunal. In particular, Article 29(d) expressly provides that this general obligation includes a duty to comply with any such request or order relating to “the arrest or detention of persons”. Croatia’s role in complying with such a request or order is the purely ministerial one of executing the warrants and carrying out such arrest and detention as ordered by the Tribunal. A State which is ordered to arrest or detain an individual pursuant to Article 29(d) has no standing to challenge the merits of that order. 

8. To establish circumstances warranting a review pursuant to Rule 119, the moving party must demonstrate that there is a new fact, that that new fact was not known to the moving party at the time of the original proceedings, that lack of discovery of that new fact was not the result of lack of due diligence by the moving party and that the new fact could have been a decisive factor in reaching the original decision.[1]

13. The Appeals Chamber recalls that facts judicially noticed pursuant to Rule 94(B) of the Rules are merely presumptions that may be rebutted with evidence at trial.[1] The legal effect of judicially noticing an adjudicated fact is only to relieve the Prosecution of its initial burden to produce evidence on the point; the defence may put the adjudicated fact into question by introducing evidence to the contrary.[2]

777. As a matter of law, a Trial Chamber is obliged to take account of mitigating circumstances in imposing sentence.[1]  However, the weight to be attached is a matter within its discretion.  […]

The Appellant sought to have admitted pursuant to Rule 115 of the Rules of Procedure and Evidence a document described as an “expert opinion” on the interpretation of the Constitution of Costa Rica.

CONSIDERING that Rule 115 is not applicable to the material now sought to be admitted into evidence, which relates to the Second Ground of Appeal concerned with the ineligibility of one of the members of the Trial Chamber to serve as a Judge of the International Tribunal and not with the guilt or innocence of the Appellant;

CONSIDERING that the Appeals Chamber possesses the competence to receive evidence of this nature, provided that it meets the general criteria for admissibility under sub-Rule 89(C);

[…]

CONSIDERING that points of national law are questions of fact to be decided by the Judges of the International Tribunal;

CONSIDERING that the International Tribunal may receive evidence, including expert evidence, on such questions where relevant;

267. […] The Appeals Chamber recalls that the actus reus of ordering cannot be established in the absence of a prior positive act because the very notion of “instructing”, pivotal to the understanding of the question of “ordering”, requires “a positive action by the person in a position of authority”.[1] The Appeals Chamber accepts that an order does not necessarily need to be explicit in relation to the consequences it will have.[2] […]

290. The Appeals Chamber recalls that ordering requires that a person in a position of de jure or de facto authority instructs another person to commit a crime.[3] It does not, however, require the physical presence of the perpetrator at the site of the crime.

19.       The Appeals Chamber notes that, in its Rule 98bis Decision, the Trial Chamber correctly recalled the applicable law.[1] With respect to Counts 1 and 5 of the Indictment, the Trial Chamber found that there was “evidence which, if accepted, could satisfy a reasonable trier of fact of Ngirabatware’s guilt beyond a reasonable doubt”.[2] In the Trial Judgement, the Trial Chamber granted the Prosecution’s request to withdraw the charge of conspiracy to commit genocide under Count 1,[3] and acquitted Ngirabatware of extermination as a crime against humanity under Count 5 of the Indictment.[4] In arguing that this is indicative of an error in the standard of proof applied by the Trial Chamber in its Rule 98bis Decision, Ngirabatware conflates the various evidentiary thresholds. As recalled above, a judgement of acquittal shall only be entered pursuant to Rule 98bis of the ICTR Rules if the evidence is insufficient to sustain a conviction. At that stage a trial chamber is required to “assume that the prosecution’s evidence [is] entitled to credence unless incapable of belief” and “take the evidence at its highest”.[5] In contrast, pursuant to Rule 87 of the ICTR Rules, at the end of the trial a trial chamber may reach a finding of guilt only if it is satisfied that the guilt of the accused has been proved beyond reasonable doubt.

20.       The standard “‘beyond reasonable doubt’ connotes that the evidence establishes a particular point and it is beyond dispute that any reasonable alternative is possible.”[6] It requires that the trial chamber be satisfied that there is no reasonable explanation of the evidence other than the guilt of the accused.[7] Accordingly, a dismissal of a request for a judgement of acquittal on a particular count at the close of the Prosecution case-in-chief is not incompatible with an acquittal of the accused on that same count at the end of the trial. In the same vein, a Prosecution’s decision to withdraw a charge at the end of the trial does not demonstrate that the evidence was insufficient to sustain a conviction in relation to that charge at the close of the Prosecution case-in-chief.[8] Ngirabatware thus fails to show that the Trial Chamber erred in law or fact in failing to grant his Rule 98bis Motion in relation to Counts 1 and 5 of the Indictment.[9]

Pp. 4: CONSIDERING that a party is always entitled to seek material from any source, including from another case before the International Tribunal, to assist in the preparation of its case if the material sought has been identified or described by its general nature and if a legitimate forensic purpose for such access has been shown;[1]

CONSIDERING that “the relevance of the material sought by a party may be determined by showing the existence of a nexus between the applicant’s case and the cases from which such material is sought, i.e. if the cases stem from events alleged to have occurred in the same geographic area and at the same time”;[2]

CONSIDERING that “access to confidential material from another case may be granted wherever the Chamber is satisfied that the party seeking access has established that such material may be of material assistance to his case”[3] and that “it is sufficient that access to the material sought is likely to assist the applicant’s case materially, or that there is at least a good chance that it would”;[4]

P. 5: FINDING that the Applicant has sufficiently identified and described by its general nature the inter partes confidential material in the Prosecutor v. Krajišnik trial and appeals proceedings to which he seeks access;

FINDING FURTHER that there is a substantial geographical and temporal overlap between the Prosecutor v. Stanišić and Prosecutor v. Krajišnik cases such that the inter partes confidential material filed in the trial and appeals proceedings in Prosecutor v. Krajišnik is likely to be of material assistance in the preparation of the defence in Prosecutor v. Stanišić, and that therefore, the Applicant has demonstrated a legitimate forensic purpose for access to said confidential material;

P. 7: CONSIDERING that once an Appeals Chamber determines that confidential material filed in another case is likely to materially assist an applicant, the Appeals Chamber shall determine which protective measures shall apply to said material as it is within the Appeals Chamber’s discretionary power to strike a balance between the rights of a party to have access to material to prepare its case and guaranteeing the protection and the integrity of confidential information;[5]

129.    The Appeals Chamber notes that, pursuant to Article 18(4) of the Statute, the indictment must set out “a concise statement of the facts and the crime or crimes with which the accused is charged”. Likewise, Rule 47(C) of the Rules provides that the indictment shall set out not only the name and particulars of the suspect but also “a concise statement of the facts of the case”.

130.    The Prosecution’s obligation to set out a concise statement of the facts of the case in the indictment must be interpreted in the light of the provisions of Articles 21(2), 21(4)(a) and 21(4)(b) of the Statute, which provide that, in the determination of charges against him, the accused shall be entitled to a fair hearing and, more specifically, to be informed of the nature and cause of the charges against him and to have adequate time and facilities for the preparation of his defence.

131.    In the case-law of the Tribunal, this translates into an obligation on the part of the Prosecution to state the material facts underpinning the charges in the indictment, but not the evidence by which such facts are to be proven.[1] Hence, the question of whether an indictment is pleaded with sufficient particularity is dependent upon whether it sets out the material facts of the Prosecution case with enough detail to inform a defendant clearly of the charges against him so that he may prepare his defence.

44. […] The Appeals Chamber therefore finds that document 6DA23 is not relevant for the purposes of Rule 115 of the Rules. Considering that the requirements of Rule 115 of the Rules are cumulative, the Appeals Chamber will not consider the other requirements of that Rule. […]

213. The Appeals Chamber recalls that ordering requires that a person in a position of authority instruct another person to commit an offence. It is clear that the Trial Chamber found that Kalimanzira was in a position of authority.[2] The Trial Chamber, however, made no findings that he instructed anyone at Kabuye hill to commit a crime. Instead, it follows from the Trial Judgment that Kalimanzira’s role during his time at Kabuye hill involved “providing armed reinforcements.”[3] While it is possible that an order to attack could have been inferred from the surrounding circumstances, the Appeals Chamber is not satisfied that the Prosecution has demonstrated that this is the only reasonable inference from the evidence.

6. [...] The admission of evidence is in the “interests of justice” if it is relevant to a material issue, if it is credible and it is such that it would probably show that the conviction or sentence was unsafe. The Appeals Chamber has interpreted this latter criterion to mean that had the Trial Chamber had such evidence before it, it probably would have come to a different result. This is the standard we have applied in our earlier decisions and which we will apply in this case.[1]

8. The Appeals Chamber further notes that Rule 115(B)’s insistence that admission of new material be “in the interests of justice” is one that the Appeals Chamber should apply at a relatively early stage of the Appeal, that is before all the briefs have been received and argument taken place. That means in practical terms that the Appeals Chamber must give its best judgement as to the importance of the new material in light of its familiarity with the trial record at that time. This means that even after a finding that the material has satisfied the requirements of Rule 115(B) the Chamber on further consideration and in the light of briefs and arguments may decide that indeed it is not so important that it would have changed the result and requires the overturning of the verdict or the alteration of a sentence. This of course is why the word “probably” is used in defining the test of Rule 115(B). This cautionary note is included because in argument it seemed to the Appeals Chamber that some counsel assumed that because we had already stated that the new material met the “interests of justice” test, it would ensure a reversal of the verdict, if admitted. That is not true. New material will be considered alongside the material already in the trial record to see if the Trial Chamber’s judgement is sustainable by the newly enlarged record on appeal and the usual deference will be given to a Trial Chamber’s findings of fact insofar as they were based on the material before the court at the time. The job of the Appeals Chamber is thus to decide in a simulation of sorts: given the findings of the trial court made on the evidence before it (and assuming that they pass muster for if they do not the case must be reversed or sent back in any case, regardless of the new evidence) would the Trial Chamber have probably come to a different conclusion if this new evidence had been before it.

23. Relying upon the Appeals Chamber’s holding in the Čelebići Appeal Judgement, the Trial Chamber stated the law applicable to a request for reopening a party’s case as follows:

[W]hen considering an application for reopening a case to allow for the admission of fresh evidence, a Trial Chamber should first determine whether the evidence could, with reasonable diligence, have been identified and presented in the case-in-chief of the party making the application. If not, the Trial Chamber has the discretion to admit it, and should consider whether its probative value is substantially outweighed by the need to ensure a fair trial. When making this determination, the Trial Chamber should consider the stage in the trial at which the evidence is sought to be adduced and the potential delay that would be caused to the trial.[1]

24. The Appeals Chamber finds that the Trial Chamber correctly articulated the applicable legal standard. […] [T]he Appeals Chamber notes that an evaluation of what constitutes fresh evidence and whether the Prosecution has met its obligation of reasonable diligence is highly contextual, depending on the factual circumstances of each case. Thus, any assessment in this respect should be carried out on a case-by-case basis.[2]

[…]

35. [T]he Appeals Chamber recalls that in a case where the evidence is sought to be presented at a very advanced stage of the proceedings, the Prosecution should establish that the evidence could not have been obtained, even if after the close of its case, at an earlier stage in the trial.[3] […]

In its Decision of 21 August 2006, Trial Chamber I had appointed a defence counsel to Šešelj and clarified that the accused could participate to the proceedings only through such counsel. The accused’s personal participation could only have been allowed by the Trial Chamber after having taken “into account all circumstances and after having heard from the Counsel”.[1] The Appeals Chamber, recalling a principle laid down in the Milošević case[2], affirmed that an accused can file submissions to the Appeals Chamber in an appeal filed by his Counsel, even if the authorization of the Trial Chamber is missing.[3]

13. The Appeals Chamber first notes that with respect to the standard for admission of evidence on appeal, Lazarević submits that two prerequisites must be met: (i) the material must have been unavailable at trial and (ii) its consideration by the Appeals Chamber must be in the interests of justice.[1] Had the material been available at trial, Lazarević argues that the Appeals Chamber retains the inherent power to consider it, if a failure to do so would result in a miscarriage of justice.[2] The Appeals Chamber finds that Lazarević misapprehends the standard for admission of additional evidence on appeal, as the “interests of justice” test reflects neither the current requirements of Rule 115(B) of the Rules nor the established jurisprudence of the Tribunal.[3] The Appeals Chamber will therefore examine Lazarević’s submissions in accordance with the correct standard articulated above.[4]

5.       For evidence to be admitted pursuant to Rule 115(B), the Appellant must establish that (i) the evidence was not available at trial in any form and could not have been discovered though the exercise of due diligence, and (ii) that the evidence is relevant to a material issue, credible, and such that it could have had an impact on the verdict, i.e. could have shown that the conviction was unsafe.[1] Where the evidence was available at trial or could have been discovered through the exercise of due diligence, the moving party must show also that exclusion of the additional evidence would lead to a miscarriage of justice. The additional evidence must be considered in the context of the evidence which was given at the trial and not in isolation.

[ICTR Rule 115 was amended after this decision was issued.]

EMPHASIZING that, with regard to ex parte confidential material, the requesting party must meet a higher standard in order to establish a legitimate forensic purpose for accessing such material[1] as it by its nature contains information that has not been disclosed inter partes because of, inter alia, “privacy interests of a person” and that, therefore, “the party on whose behalf the ex parte status has been granted enjoys a protected degree of trust that the ex parte material will not be disclosed”;[2]

69. Joinder and severance of trials are governed by Rules 48 and 82 of the Rules. Rule 48 of the Rules provides that “[p]ersons accused of the same or different crimes committed in the course of the same transaction may be jointly charged or tried.” A transaction is defined under Rule 2 of the Rules as “[a] number of acts or omissions whether occurring as one event or a number of events, at the same or different locations and being part of a common scheme, strategy or plan.” It has been held that, pursuant to Rule 2 of the Rules, a common scheme, strategy, or plan therefore includes one or a number of events at the same or different locations.[1] There is no requirement under Rules 2 and 48 of the Rules that the events constituting the “same transaction” take place at the same time or be committed together.[2] In deciding whether the case against more than one accused should be joined pursuant to Rule 48 of the Rules, a trial chamber should base its determination upon the factual allegations contained in the indictments and related submissions.[3]

70. Where a trial chamber finds that two or more persons have allegedly committed crimes in the course of the same transaction, it then considers various factors, which it weighs in the exercise of its discretion as to whether joinder should be granted.[4] Rule 82 of the Rules provides:

(A) In joint trials, each accused shall be accorded the same rights as if he were being tried separately.

(B) The Trial Chamber may order that persons accused jointly under Rule 48 be tried separately if it considers it necessary in order to avoid a conflict of interests that might cause serious prejudice to an accused, or to protect the interests of justice.

71. In light of Rule 82 of the Rules, it is therefore appropriate for a trial chamber deciding on a motion for joinder pursuant to Rule 48 of the Rules to consider and weigh the following factors: (i) protection of the fair trial rights of the accused pursuant to Article 20 of the Statute; (ii) avoidance of any conflict of interests that might cause serious prejudice to an accused; and (iii) protection of the interests of justice. Factors that a trial chamber may look to in the interests of justice include: (i) avoiding the duplication of evidence; (ii) promoting judicial economy; (iii) minimising hardship to witnesses and increasing the likelihood that they will be available to give evidence; and (iv) ensuring consistency of verdicts.[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]

15. The Appeals Chamber reiterates that the Mechanism is bound to interpret its Statute and Rules in a manner consistent with the jurisprudence of the ad hoc Tribunals[.][1]

[Note: The Appeals Chamber had authorized review proceedings in order to attest the veracity of witnesses’ purported recantations. In the Review Judgement, the Appeals Chamber found that the applicant had not proven the new fact that the witnesses had truthfully recanted their trial testimonies. See Review Judgement, paragraph 62.]

 24.  Pursuant to Article 24 of the Statute and Rule 147 of the Rules, the Appeals Chamber shall review a judgement if, after a preliminary examination, a majority of the judges agree that the new fact, if proved, could have been a decisive factor in reaching a decision. Following this determination, the Appeals Chamber shall pronounce a further judgement after hearing the parties, in accordance with Rule 147 of the Rules. [87]

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 [...]