The Prosecutor v. Hazim Delic - Case No. IT-96-21-R-R119

"Decision on Motion for Review"

25 April 2002
Judges Shahabuddeen (Presiding), Hunt, Gunawardana, Pocar and Meron

Procedural Background

· On 15 January 2002, Hazim Delic filed a confidential Motion for the Review of Proceedings based on the discovery of "a new fact" in the form of a statement which Witness W had given to the Office of the Prosecutor before the trial.

The Decision

The Appeals Chamber dismissed the Motion.

The Reasoning

The Appeals Chamber considered that the combined effect of Article 26 of the Statute1 and Rules 1192 and 1203 of the Rules of Procedure and Evidence "is that the moving party must satisfy four criteria", i.e.:
(1) there must be a new fact;
(2) the new fact must not have been known to the moving party at the time of the original proceedings;
(3) the lack of discovery of the new fact was not through the lack of due diligence on the part of the moving party; and
(4) the new fact could have been a decisive factor in reaching the original decision."4

The Appeals Chamber held that "[r]eview proceedings are available only in relation to a final judgement (in the sense of one which terminates the proceedings)."5
It determined the onus and noted that "[a]n Applicant for a review pursuant to Rule 119 claims an entitlement to a right given to him by the Rules, and accordingly bears the burden of satisfying the Appeals Chamber as to the four criteria required by Rule 119" of the Rules.

The Appeals Chamber clarified the difference between review proceedings and additional evidence and emphasised that "despite some similarities between a review pursuant to Rule 119 and an appeal based upon new evidence admitted pursuant to Rule 1156, a very clear distinction has been drawn between the two procedures."

In the case of additional evidence, it considered that "the evidence may be known to the moving party at the time of the original proceedings but not available." In the case of a new fact, the Appeals Chamber deemed it "necessary for the moving party to show that the new fact was not known to it at the time of the original proceedings." It underscored that it was "an important distinction." The Appeals Chamber added that "[t]he requirement of due diligence is the most obvious similarity between the two procedures." Although "Rule 119 refers expressly to due diligence and Rule 115 does not", it noted that "the requirement in Rule 115 that the moving party demonstrate that the additional material proffered was not available at the trial requires that party to establish also that the evidence could not have been discovered through the exercise of due diligence."7 In this regard, the Appeals Chamber concluded that "the requirements of the two rules are the same." It also noted that "[t]here is similarity, although a difference in degree, between the requirement in the review procedure that the additional material proffered could have been a decisive factor in reaching the original decision and the requirement in the appeal procedure involving additional evidence that the additional material will be admitted if the interests of justice so require".

The Appeals Chamber found that "[t]he clear distinction which has been drawn between the two procedures relates to the nature of the additional material which may be considered in each." The Appeals Chamber held that "[w]here the additional material proffered consists of a new fact - that is, a fact which was not in issue or considered in the original proceedings - a review pursuant to Rule 119 is the appropriate procedure, which must be taken before the Chamber which gave the final judgement upon the relevant issue."8 Conversely, it held that "[i]f the material proffered consists of additional evidence relating to fact which was in issue or considered in the original proceedings, this does not constitute a 'new fact' within the meaning of Rule 119" and that "the review procedure is not available."9 The Appeals Chamber concluded that the distinction is "between a fact which was not in issue or considered in the original proceedings (a 'new fact' within the meaning of Rule 119) and additional evidence of a fact which was in issue or considered in the original proceedings but which evidence was not available to be given in those proceedings ('additional evidence' within the meaning of Rule 115)."

In this case, it stated that it was not satisfied that Hazim Delic had demonstrated (1) that the evidence which Witness W could give constituted a "new fact" within the meaning of Rule 119 and (2) that such evidence was unknown to him at the time of the trial and that it could not have been discovered through the exercise of due diligence. The Appeals Chamber admitted that there may be obvious difficulty in some cases in making the distinction between a new fact and additional evidence of a fact which is not new and stressed that Hazim Delic had failed to overcome such difficulty in the case in point. It added that Hazim Delic had "failed to establish that he did not know of that evidence or that the absence of that knowledge was not through lack of due diligence on his part."

The Appeals Chamber held that "[t]he evidence which Witness could give must […] be considered in the light of the other evidence in the case, or (in the case of the Appeals Chamber) in the light of the other evidence in the case which had been accepted by the Trial Chamber". It noted that Hazim Delic had not explained the reason why the evidence of Witness W was not (1) called at the trial although the Appeals Chamber was satisfied that it was available to him at that stage and (2) put before the Appeals Chamber in the appeal against his conviction of wilful killing.

In all these circumstances, the Appeals Chamber was not satisfied that the failure of Hazim Delic to rely on the evidence of Witness W until this late stage had led to a miscarriage of justice. Accordingly, it concluded that Hazim Delic had failed to establish the first, second and third criteria required by Rule 119.

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1. "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."
2. "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."
3. "If a majority of Judges of the Chamber constituted pursuant to Rule 119 agree 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."
4. Jean-Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Appeals Chamber, Decision (Prosecutor's Request for Review or Reconsideration), 31 March 2000 (hereinafter the "Barayagwiza Decision"), in which the Appeals Chamber of the International Criminal Tribunal for Rwanda (hereinafter the "ICTR") defined the four criteria required for a review, i.e. "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" (para. 41).
5. Barayagwiza Decision, para. 49; The Prosecutor v. Dusko Tadic ("Prijedor"), Case No. IT-94-1-R, Judge Claude Jorda, Order of the President Assigning Judges to the Appeals Chamber, 29 October 2001 (summarised in Judicial Supplement No. 28); Ignace Bagilishema v. The Prosecutor, Case No. ICTR-95-1A-A, Appeals Chamber, Decision Motions for Review of the Pre-Hearing Judge's Decisions of 30 November and 19 December 2001, 6 February 2002, in which the Appeals Chamber of the ICTR considered that a final Judgement within the meaning of Article
25 of the ICTR Statute (Article 26 of the ICTY Statute) and Rule 120 of the ICTR Rules of Procedure and Evidence (similar to Rule 119 of the ICTY Rules) "consists in a decision which puts an end to proceedings" and that "only such decisions are subject to review" (page 2).
6. "(A) A party may apply by motion to present before the Appeals Chamber additional evidence which was not available to it at the trial. Such motion must be served on the other party and filed with the Registrar not less than fifteen days before the date of the hearing.
(B) The Appeals Chamber shall authorise the presentation of such evidence if it considers that the interests of justice so require."
7. The Prosecutor v. Dusko Tadic ("Prijedor"), Case No. IT-94-1-A, Appeals Chamber, Decision on Appellant's Motion for the Extension of the Time-Limit and Admission of Additional Evidence, 15 October 1998 (hereinafter the "Tadic Decision"), paras. 35 to 45; The Prosecutor v. Zoran Kupreskic et al. ("Lasva River Valley"), Case No. IT-95-16-A, Appeals Chamber, Appeal Judgment, 23 October 2001 (hereinafter the "Kupreskic et al. Appeals Chamber Judgement", summarised in Judicial Supplement No. 28).
8. Tadic Decision, para. 30; Barayagwiza Decision, para. 42; Kupreskic et al. Appeals Chamber Judgement, para. 48.
9. Tadic Decision, para. 32; Barayagwiza Decision, para. 42; Kupreskic et al. Appeals Chamber Judgement, para. 48.