Testing the admitted evidence

Notion(s) Filing Case
Appeal Judgement - 23.10.2001 KUPREŠKIĆ et al.

70. Where the Rule 115 evidence is accepted for consideration, the Appeals Chamber has, in effect, decided that the evidence is sufficiently important that, if it had been before the Trial Chamber at trial, the conclusion of guilt could have been different.  At that stage in the proceedings, the new evidence may not have been subjected to any form of adversarial scrutiny, save for the Appeals Chamber’s initial assessment as to whether it was, on its face, credible.  It may be that there is no dispute between the parties as to this issue.  But, in the more likely case that the opposing party challenges the veracity of the additional evidence, the Appeals Chamber is faced with a choice – either it can test the evidence itself to determine veracity, or order the case to be remitted to a Trial Chamber (either the Trial Chamber at first instance, or a differently constituted Trial Chamber) to hear the new evidence.  In the present case, the Prosecution wished to challenge the veracity of several pieces of additional evidence submitted by the Defendants[1] and the Appeals Chamber decided that the most appropriate course was to hold an evidentiary hearing.[2]  In another instance, it admitted two pieces of conflicting evidence without such a hearing, without prejudice to the determination of the weight to be attached thereto.[3]

71. Obviously, an Appeals Chamber may choose to delay its entire decision on the admissibility and weight of new evidence until the time of the main appeal and decide, at one stage, whether the new material will be admitted and whether it will reverse the conviction.  Such an approach has advantages since the Appeals Chamber will be making its decision on impact at the same time it considers all the other evidence in the case and after it has completed its study of the trial record.  The disadvantage to this procedure is that the parties, in making their main submissions on appeal, are not informed as to whether they can rely on the additional evidence or not.  In some cases, the final appeal hearing will be prolonged considerably.  The present Rule 115 does not require the admissibility of new evidence to be decided at any particular time.  Thus, the Appeals Chamber should choose whether it is most expeditious to postpone hearing the evidence until the time of the main appeal hearing, or to do it earlier, according to the complexity of the new material and of the trial record in the context of what will be assessed.  It should be noted that Rule 117 instructs the Chamber to pronounce judgement on the basis of the record on appeal along with any additional evidence it has received.  This suggests that, even if the decision to admit the evidence is made at the same time as the main appeal, a two-step process is nonetheless envisioned in which new evidence, once admitted, will then be assessed as to its effect upon the appeal as a whole.

[1] Prosecution’s Consolidated Response to the Motions by Zoran Kupreškić, Mirjan Kupreškić, Vlatko Kupreškić and Drago Josipovic to Admit Additional Evidence Pursuant to Rule 115 (Confidential), 20 Nov 2000, para. 5.4 (stating that “[i]n the event that, contrary to the Prosecution’s submission, any of the Motions are granted and the additional evidence admitted by the Appeals Chamber, the Prosecution expressly reserves its right to submit evidence in rebuttal and, if necessary, to request the right to cross-examine any witnesses from whom statements have been proffered”).

[2] The Evidentiary Hearing was held on 17, 18 and 25 May 2001.

[3] The statement of WitnessCA was admitted pursuant to the Rule 115 Decision of 26 February 2001.  The statement of Witness DD statement was admitted pursuant to the Decision on Prosecution Motion to Admit Additional Evidence in Rebuttal to Additional Evidence Admitted under Rule 115, 6 July 2001.

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115