The Hague, May2, 2008 (FH) - Eight months before the end of its mandate, the International Criminal Tribunal for Rwanda (ICTR) could be confronted with an abrupt increase in the requests for review following the many revelations of false testimony that have occurred in several trials.

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Theoretically a request for review can only be based on a "new fact"; but this concept can be flexible, as it was demonstrated in the review of the decision concerning Jean-Bosco Barayagwiza, founding member of the RTLM.

ICTR has only known this case of judgment review. But considering the increasing number of witnesses affirming today to have lied in their testimonies, persons who were convicted might be tempted to have recourse to this procedure.

It is of a particular importance because it calls into question the fundamental principle in criminal law of res judicata. This principle prevents the same case from being tried again.

The judgment brings "into force res judicata" when the recourses for appeal are exhausted. The review of such a judgment is authorized by the Statute of the Tribunal, as well as by the Rules of Procedure and Evidence in exceptional cases and in particular with the aim of repairing an injustice.

The conditions of review are framed by Articles 25 of the Statute and 120 to 123 of the Rules of Procedure and Evidence of the Tribunal.

Barayagwiza, tried afterwards in the so called "Media Trial", had been acquitted in November 1999 by the Appeals Chamber which had answered favourably to the prejudicial exception by which he disputed the legality of his arrest in Cameroon and his detention. In front of the outrage in Kigali provoked by this decision, and the protests which were multiplying in Rwanda, the Prosecutor, Carla del Ponte, asked for a review of this decision.

On 30 March 2000, the Appeals Chamber revised its ruling and, thus, quashed the acquittal of Barayagwiza. The new fact that was brought forth has not really remained memorable.

In this decision, the Appeals Chamber took care to point out all the criteria required for the examination of such a request. Four, enumerated by Article 120 of the Rules of Procedure and Evidence of the Tribunal, must come together:

"Where a new fact has been discovered; this new fact must not have been known by the moving party at the time of the proceedings before a Trial Chamber; the new fact could not have been discovered through the exercise of due diligence by the moving party, and, moreover, the moving party must prove that the new fact could have been a decisive element in the decision taken by the Trial Chamber".

The Chamber with the jurisdiction to examine a request for review is that which gave the final judgment targeted by the request. The Appeals Chamber reminded that only a final judgment, meaning "a decision which puts an end to the procedure", is allegeable for review. Barayagwiza, thus, saw the review of his ruling be rejected.

If the Chamber decides to revise the judgment, it thus renders another one. The Rules of Procedure and Evidence also envision that if it is the Trial Chamber judgment which was re-examined, then the new decision is allegeable for appeal.

Although regularly accused of hearing false testimonies, the ICTR has tried its first case, late last year, in case of Jean de Dieu Kamuhanda, former Minister for Culture and Education (who has been sentenced to imprisonment for remainder of his life). The case had been tried in appeal and the judges had taken the precaution to reject the concerned testimony. But since then, and in several cases, witnesses have been going back on their testimonies. Also, this procedure should not be long in interesting the defendants convicted on the basis of these testimonies that have been called into question.

The facts at the origin of the request for review must be "authentically new" and not "complementary elements of evidence that is presented to corroborate a fact" (Barayagwiza, § 42). Thus, the simple discovery after the fact of the evidence of a fact known at the time of the trial does not constitute in itself a new fact within the meaning of Article 119 of the Rules.

The International Criminal Tribunal for the former Yugoslavia (ICTY) has had several requests for review, but none have been granted. In the Blaskic case, the Appeals Chamber summarizes existing jurisprudence on the qualification of the new facts in these terms: "A new fact is comprised of all new elements of information tending to prove a fact which was not raised at the time of the procedure in first instance or appeal ". The fact in question "should not form part of the elements which the Chamber that rendered the decision could have held into account to form its judgment". In other words, "[what] is important to determine, is if the Chamber which rendered the decision [was] aware of this fact or not" (Blaskic, Decision on Prosecutor's Request for Review or Reconsideration, ICTY, 23 November, 2006).

In this case, the Chamber considered that the facts presented were not new because they had been already debated.

The referred Chamber must then "decide if the new fact, if it was thus decided, could have constituted a decisive element". If this is the case, it could then revise its judgment. All the demands for review which were rejected were done so because the motive fact could not be regarded as new. While persons convicted can ask for the review of their final judgment without a temporal condition, the prosecutor must do so within a year of the judgment.

Still it is necessary that he can do so. The ICTR registry recently announced to persons that have been convicted that they did not have the right to a lawyer after their final judgment.


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