2010-04-07, Arusha, Tanzania. The Trial Chamber III granted, in part, Nzirorera’s motion for reconsideration of the Chamber’s decisions on the admission of written statements, but denied Nzirorera’s defence counsel fees on the ground that there was no good cause for this Motion.
Statement of Law. The Chamber has the inherent power to reconsider its decisions when:
- a new fact has been discovered that was not known to the Chamber at the time it made its original decision;
- there has been a material change in circumstances since it made its original decision; or
- there is reason to believe that its original decision was erroneous or constituted an abuse of power on the part of the Chamber, resulting in an injustice thereby warranting the exceptional remedy of reconsideration.
The admission of a written statement under Rule 92 bis (A) involves an inquiry as to
- whether the statement goes to proof of a matter other than the acts and conduct of the Accused as charged in the Indictment;
- whether it satisfies Rule 89 (C), i.e. it is relevant and has probative value;
- whether it has prima facie reliability and credibility on the basis of sufficient indicia;
- whether it should be admitted based on the non-exhaustive factors listed in Rule 92 bis (A) (i) and (ii);
- whether the formal requirements of Rule 92 bis (B) are met;
- whether the Chamber decides to exercise its discretion to admit it, bearing in mind the overarching necessity of ensuring a fair trial;
- whether the evidence relates to a live and important issue between the parties, as opposed to a peripheral one.
Pursuant to Rule 92 bis (E), if the Chamber finds a statement admissible, it must also decide whether to admit it in whole or in part and whether or not to require cross-examination of the witness.
Application. The Trial Chamber reconsidered its decision in respect of two statements on the following grounds:
- the defence counsel added to the statement exhibits that previously went missing (Charles Nzabagerageza);
- the Trial Chamber previously erroneously refused to admit the statement (André Gihanza).
The Trial Chamber refused to reconsider its decision in respect of two statements for the following reasons:
- repeating the submissions from the original motion concerning the same statement does not amount to a new fact (Cyprien Ntakabereho);
- TC’s original preliminary evaluation of the statement, finding limited relevance and probative value, was correct (Edison Munyatarama).
The Trial Chamber found that a request to admit the transcript of the testimony of Marc Ntigura, in another trial, in lieu of his statement constitutes a request to admit fresh evidence, and not a request for the reconsideration. The request was granted.
Although the Chamber reconsidered its decision in respect of the Statement of Charles Nzabagerageza, it was not admitted pursuant to Rule 92 bis as not being cumulative to evidence presented by Nzirorera because
- some of the events described in this statement went to the acts and conducts of the Accused;
- the statement infered that certain OTP witnesses did not tell the truth during their testimony;
- the statement contradicted other defence witnesses.