Summoning a witness under Rule 115

Notion(s)	Filing	Case
Additional evidence on appeal \| Summoning a witness under Rule 115	Decision on Additional Evidence - 07.02.2011	BAGOSORA et al. (Military I) (ICTR-98-41-A)
8. The Appeals Chamber recalls that “it has the authority to summon a witness, in appropriate circumstances, to testify before the Chamber so as to facilitate the effective conduct of appeal proceedings, and especially Rule 115’s power to admit additional evidence”.[1] However, the purpose of Rule 115 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.”[2] The Appeals Chamber considers that Rule 115 of the Rules does not permit a party to merely request a particular person to be summoned as a witness to give evidence at the appellate stage.[3] As repeatedly held, a party seeking the admission of additional evidence on appeal must provide the Appeals Chamber with the evidence sought to be admitted.[4] Where a party seeks to call a witness at the appellate stage, it needs to provide a statement or other documentation of the potential witness’s proposed evidence,[5] which the Appeals Chamber may admit as additional evidence pursuant to Rule 115 and on the basis of which it may determine whether calling the witness to testify on appeal is necessary.[6] 9. In the present case, Bagosora has not provided the Appeals Chamber with any statement from Gatsinzi or any documentation that may be admissible as additional evidence and the contents of which would prompt the Appeals Chamber to call the witness to testify in person. Bagosora explains that he could not procure a statement from Gatsinzi because Gatsinzi was unwilling to cooperate with his Defence.[7] In addition, although Bagosora provides no alternative documentation on appeal, the Appeals Chamber notes that Bagosora introduced aspects of Gatsinzi’s potential testimony into evidence at trial in the form of Exhibits DB256 (Gatsinzi Pro Justitia Statement dated 16 June 1995), DB274 (Audio-recording of Jean Kambanda’s Speech and portion of Gatsinzi’s Interview with a journalist of Radio Rwanda of 10 April 1994), and DB284 (Book written by Jacques Roger Booh-Booh titled “Le Patron de Dallaire parle”). In the absence of any material from Gatsinzi that Bagosora can legitimately seek to admit as “additional evidence”, the Appeals Chamber considers that Bagosora’s request for an order to call Gatsinzi as a witness pursuant to Rule 115 of the Rules cannot be granted. show footnotes [1] 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 (“Kupreškić et al. Decision of 8 May 2001”), para. 5. See also 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 (“Nahimana et al. Decision of 5 May 2006”), para. 20. [2] Kupreškić et al. Decision of 8 May 2001, para. 5 (emphasis added). See also Nahimana et al. Decision of 5 May 2006, para. 20; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Appellant Hassan Ngeze’s Six Motions for Admission of Additional Evidence on Appeal and/or Further Investigation at the Appeal Stage, confidential, 23 February 2006 (“Nahimana et al. Decision of 23 February 2006”), para. 6; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Jean-Bosco Barayagwiza’s Extremely Urgent Motion for Leave to Appoint an Investigator, 4 October 2005, p. 4; 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 (“Nahimana et al. Decision of 14 February 2005”), fn. 5. See also, e.g., Tharcisse Renzaho v. The Prosecutor, Case No. ICTR-97-31-A, Decision on Tharcisse Renzaho’s Motions for Admission of Additional Evidence and Investigation on Appeal, 27 September 2010, para. 3; Emmanuel Rukundo v. The Prosecutor, Case No. ICTR-01-70-A, Decision on Rukundo’s Motion for the Admission of Additional Evidence on Appeal, 4 June 2010, para. 5; Protais Zigiranyirazo v. The Prosecutor, Case No. ICTR-01-73-A, Decision on Zigiranyirazo’s Motion for Admission of Additional Evidence on Appeal, 16 September 2009, para. 5; Kupreškić et al. Decision of 8 May 2001, para. 10; Prosecutor v. Zoran Kupreškić et al., Case No. IT-95-16-A, Decision on Motions to Admit Material Relating to Witness AT into Evidence Pursuant to Rule 115 and to Call Additional Witnesses, confidential, 29 May 2001 (“Kupreškić et al. Decision of 29 May 2001”), para. 19. [3] Nahimana et al. Decision of 5 May 2006, para. 20; Nahimana et al. Decision of 14 February 2005, fn. 5; Kupreškić et al. Decision of 8 May 2001, para. 5. [4] See, e.g., Prosecutor v. Dragomir Milošević, Case No. IT-98-29/1-A, Decision on Dragomir Milošević’s Further Motion to Present Additional Evidence, 9 April 2009, para. 18; Prosecutor v. Mile Mrkšić and Veselin [ljivančanin, Case No. IT-95-13/1-A, Decision on Mile Mrkšić’s Second Rule 115 Motion, 13 February 2009, para. 13; The Prosecutor v. Ildephonse Hategekimana, Case No. ICTR-00-55B-R11bis, Decision on Request to Admit Additional Evidence, 2 October 2008, para. 7; The Prosecutor v. Tharcisse Muvunyi, Case No. ICTR-00-55A-A, Decision on a Request to Admit Additional Evidence, 27 April 2007, para. 8; Nahimana et al. Decision of 5 May 2006, para. 18; Nahimana et al. Decision of 14 February 2005, p. 3. See also Practice Direction [Practice Direction on Formal Requirements for Appeals from Judgement, 4 July 2005], para. 7(e), which provides that a motion under Rule 115 should contain an appendix with copies of the evidence the party is applying to present. [5] Cf. Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Decision on the First and Third Rule 115 Defence Motions to Present Additional Evidence Before the Appeals Chamber, 30 June 2005, para. 87; Kupreškić et al. Decision of 29 May 2001, para. 19. [6] See Nahimana et al. Decision of 23 February 2006; Prosecutor v. Milomir Stakić, Case No. IT-97-24-A, Decision to Summon a Witness Proprio Motu, 20 September 2005; Jean de Dieu Kamuhanda v. The Prosecutor, Case No. ICTR-99-54A-A, Decision on Appellant’s Motion for Admission of Additional Evidence on Appeal, confidential, 12 April 2005; Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-A, Decision on Appellants’ Motions to Admit Additional Evidence Pursuant to Rule 115, 16 February 2004; Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Judgement, 29 July 2004, Chapter XVI “Annex A – Procedural Background”, para. 41; Georges Anderson Nderubumwe Rutaganda v. The Prosecutor, Case No. ICTR-96-3-A, Decision on the Consolidated Defence Motion for an Order Varying the Grounds of Appeal, for the Rehearing of Oral Arguments in the Appeal and for the Admission of Additional Evidence, and Scheduling Order, signed on 19 February 2003, filed on 14 May 2003; Prosecutor v. Radislav Krstić, Case No. IT-98-33-A, Decision on the Defence Supplemental Motion to Present Additional Evidence, 20 November 2003; Laurent Semanza v. The Prosecutor, Case No. ICTR-97-20-A, Decision on Defence Motion for Leave to Present Additional Evidence and to Supplement Record on Appeal, 12 December 2003; Prosecutor v. Zoran Kupreškić et al., Case No. IT-95-16-A, Appeal Judgement, 23 October 2001, para. 505. Cf. also Prosecutor v. Radislav Krstić, Case No. IT-98-33-A, Decision on the Admissibility of Material Presented by the Prosecution in Rebuttal to Rule 115 Evidence Admitted on Appeal, 19 November 2003. The Appeals Chamber observes that the Appeals Chamber of the International Tribunal for the Former Yugoslavia departed from this settled jurisprudence in the particular circumstances of the Momčilo Krajišnik case. See Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-A, Decision on Appellant Momčilo Krajišnik’s Motion to Call Radovan Karadžić Pursuant to Rule 115, 16 October 2008, paras. 15, 20, Disposition. [7] Reply, para. 8. See also Subpoena Decision [The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Decision on Request for a Subpoena, 11 September 2006], para. 7, in which the Trial Chamber ordered the issuance of a subpoena for Gatsinzi’s appearance because, inter alia, Bagosora had made reasonable efforts to secure Gatsinzi’s voluntary cooperation, without success. Download full document		ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s)	Filing	Case
Additional evidence on appeal \| Summoning a witness under Rule 115 \| Proprio motu order for production of evidence under Rule 98	Decision on Additional Evidence - 07.02.2011	BAGOSORA et al. (Military I) (ICTR-98-41-A)
9. […] In the absence of any material from Gatsinzi that Bagosora can legitimately seek to admit as “additional evidence”, the Appeals Chamber considers that Bagosora’s request for an order to call Gatsinzi as a witness pursuant to Rule 115 of the Rules cannot be granted. 10. Gatsinzi’s testimony could, however, assist the Appeals Chamber’s adjudication of Bagosora’s submissions under his first ground of appeal in relation to the Trial Chamber’s alleged violation of his fair trial rights by failing to enforce a subpoena for Gatsinzi’s live testimony,[1] in particular with regard to Bagosora’s superior responsibility between 6 and 9 April 1994. Given that the Trial Chamber indeed issued a subpoena for Gatsinzi’s appearance and that Gatsinzi never testified, the Appeals Chamber considers the circumstances in this case to be appropriate to summon Gatsinzi pursuant to Rules 98 and 107 of the Rules in order to determine whether or to what extent such failure to testify violated Bagosora’s right to a fair trial or caused him the prejudice he purports. show footnotes [1] Notice of Appeal, Ground 1(I), p. 7; Appeal Brief, paras. 101-114; Reply Brief, paras. 38-43. Download full document		ICTR Rule Rule 98 ICTY Rule Rule 98
Notion(s)	Filing	Case
Additional evidence on appeal \| Summoning a witness under Rule 115	Decision on Additional Evidence - 05.05.2006	NAHIMANA et al. (Media case) (ICTR-99-52-A)
20. […] The Appeals Chamber recalls that it has “the authority to summon a witness, in appropriate circumstances, to testify before the Chamber so as to facilitate the effective conduct of appeal proceedings, and especially Rule 115’s power to admit additional evidence.”[1] Similarly, the Appeals Chamber has the power to request a State to provide judicial assistance by producing certain evidence under Article 28(2)(b) of the Statute of the Tribunal. However, the purpose of Rule 115 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.”[2] The Rule does not permit a party to merely request a particular person to be summoned as a witness to give evidence or that a State be requested to produce certain documentation.[3] In this case, the Appellant has failed to provide material in his possession that would be admissible as additional evidence directed to a specific finding of fact of the Trial Chamber.[4] Therefore, the Appellant’s request falls out of the scope of a motion filed pursuant to Rule 115. show footnotes [1] Prosecutor v. 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 (“Kupreškić Decision”), para. 5. [2] Kupreškić Decision, para. 5; Decision on Appellant Hassan Ngeze’s Six Motions for Admission of Additional Evidence on Appeal and /or Further Investigation, 23 February 2006 (“Decision of 23 February 2006”), para. 40. [3] Kupreškić Decision, para. 5. [4] [Kupreškić Decision, para. 5.] Download full document		ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s)	Filing	Case
Additional evidence on appeal \| Availability of the proffered evidence at trial \| Summoning a witness under Rule 115	Decision on Additional Evidence and Judicial Notice - 08.05.2001	KUPREŠKIĆ et al. (IT-95-16-A)
16. [I]t is the view of the Appeals Chamber that where defence counsel are gathering evidence in support of an accused’s defence, either at a pre-trial stage or during the course of a trial, and are aware of a potential witness and decide not to approach that person, for whatever reason, whether because counsel believe that the potential witness will not cooperate, or the witness may be placed in an invidious position, when the accused is subsequently convicted by the Trial Chamber, the defence cannot claim that the witness was “not available” at trial within the meaning of Rule 115, or ask for that witness to be called at the appellate stage. Download full document		ICTR Rule Rule 115 ICTY Rule Rule 115