Timeliness of a request for investigation on appeal

Notion(s) Filing Case
Decision on Further Investigations - 20.06.2006 NAHIMANA et al. (Media case)

28. […] considering that the Appellant seeks in the Second Motion to obtain the potential witness’ statement with a view to seeking leave to present additional evidence on appeal under Rule 115 of the Rules,the Appeals Chamber finds it appropriate […] to associate the request for further investigation with the requirements for timely filing of a motion under Rule 115.

16. In any event, noting that the Appellant seeks to obtain Jean-Bosco Barayagwiza’s statement with a view to seeking leave to present additional evidence, the Appeals Chamber recalls that under Rule 115(A) of the Rules, a motion for admission of additional evidence on appeal must be filed within seventy-five days from the date of the trial judgement, unless good cause is shown for the delay. The Appeals Chamber understands the Appellant to submit that good cause for the delay of such a filing more than two years after the Trial Judgement[3] is that, in light of Jean-Bosco Baraygwiza’s refusal to participate in the trial, there was no accessibility to him until recently, even through his own counsel.[4] However, the Appeals Chamber notes that the Appellant has not indicated how and when he was first able to gain access to Jean-Bosco Barayagwiza for evidence or information. Even if Jean-Bosco Barayagwiza’s absence during the trial were to be considered by the Appeals Chamber as justifying the fact that such evidence was neither available at trial nor could have been obtained through the exercise of due diligence, the Appellant has failed to show why such a request could not have been submitted in time during the appeals proceedings. […]

17. […] The Appeals Chamber considers that the Appellant has failed to establish that Barayagwiza’s Rule 115 Motion contains new information pertinent for the Appellant’s case that was unknown to the Appellant before the date on which it was filed, thereby preventing him from filing his First Motion until 6 January 2006. Therefore, the Appeals Chamber finds that the filing of Barayagwiza’s Rule 115 Motion at the end of December 2005 also does not constitute good cause for the late submission of the First Motion.

18. In light of the findings above, the Appeals Chamber does not consider it necessary to address the other arguments made by the Appellant.

29. The Appeals Chamber notes that submission of the additional evidence that the Appellant seeks to obtain in the Second Motion would take place more than two years after the Trial Judgement was rendered, which makes the filing of the Second Motion untimely. The Appeals Chamber recalls that, in order to demonstrate that it was not able to comply with the time limit set in Rule 115 of the Rules for filing a motion for additional evidence within 75 days from the date of the rendering of the trial judgement, the moving party is required to demonstrate good cause for the delay and submit the motion in question “as soon as possible after it became aware of the existence of the evidence sought to be admitted”.[5] The Appellant has failed to show that he has complied with these requirements.

30. […] Moreover, the Appeals Chamber reiterates that the relevant time is when the witness became available to give evidence to the moving party, and not when a witness statement was in fact taken.[6]

[1] Second Motion, preambulary para.

[2] [emphasis added] See Section I on Applicable Law; see also para. 17 above. It is furthermore recalled that, when seized with motions for funding of investigation in appeal, it is relevant for the Appeals Chamber to consider whether it is likely that the evidence thereby obtained would meet the requirements for subsequent admission under Rule 115 (Sylvestre Gacumbitsi v. The Prosecutor, Case No. ICTR-01-64-A, Decision on the Appellant’s Rule 115 Motion and Related Motion by the Prosecution, 21 October 2005, para. 13).

[3] The Appeals Chamber recalls that the Trial Judgement in this case was rendered on 3 December 2003.

[4] First Motion, paras 3-4.

[5] Kordić and Čerkez Decision [Prosecutor v. Dario Kordic & Mario Cerkez, Case No IT-95-14/2-A, Decision on Prosecution’s Motion to Admit Additional Evidence in Relation to Dario Kordic and Mario Cerkez, 17 December 2004], p. 2.

[6] [Kordić and Čerkez Decision], p. 3.

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ICTR Rule Rule 115 ICTY Rule Rule 115