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Decision on Fair Trial and Presumption of Innocence - 27.02.2017 MLADIĆ Ratko
(IT-09-92-AR73.6)

8.       The Trial Chamber’s determination of whether the engagement of certain staff would lead to actual bias or the appearance of bias is a discretionary decision to which the Appeals Chamber must accord deference.[1] […]

[…]

23.     […] The Appeals Chamber considers that the Impugned Decision concerns the engagement of staff to assist the Trial Chamber and recalls that a trial chamber’s determination in this respect is a discretionary decision to which the Appeals Chamber must accord deference.[2] However, the Appeals Chamber emphasizes that trial chambers must exercise their discretion consistently with Articles 20 and 21 of the Statute, which require trial chambers to ensure that a trial is fair and expeditious.[3]

[1] The Prosecutor v. Casimir Bizimungu et al., Case No. ICTR-99-50-AR‑73.8, Decision on Appeals Concerning the Engagement of a Chambers Consultant or Legal Officer, 17 December 2009 (“Bizimungu et al. Appeal Decision”), para. 4.

[2] Bizimungu et al. Appeal Decision, para. 4.  See also supra, para. 8.

[3] See Nyiramasuhuko et al. Appeal Judgement, para. 138; Ildéphonse Nizeyimana v. The Prosecutor, Case No. ICTR‑00-55C-A, Judgement, 29 September 2014, para. 286; Augustin Ngirabatware v. The Prosecutor, Case No. ICTR-99-54-A, Decision on Augustin Ngirabatware’s Appeal of Decisions Denying Motions to Vary Trial Date, 12 May 2009, para. 22.

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Decision on Fair Trial and Presumption of Innocence - 27.02.2017 MLADIĆ Ratko
(IT-09-92-AR73.6)

9.       The Appeals Chamber recalls that legal officers assisting Judges at the Tribunal are not subject to the same standards of impartiality as the Judges of the Tribunal, and that judicial decision-making is the sole purview of the Judges.[1] Legal officers merely provide assistance to the Judges in legal research and preparing draft decisions, judgements, opinions, and orders in conformity with the instructions given to them by the Judges.[2]

10.     Notwithstanding the above, in some cases, a prospective staff member’s statements or activities may be so problematic as to either impugn the perceived impartiality of the Judges or the appearance thereof, or, even if this were not the case, the Tribunal’s fundamental guarantees of fair trial.[3] In this respect, the Appeals Chamber recalls in particular, that an unacceptable appearance of bias exists, inter alia, where the circumstances would lead a reasonable observer, properly informed, to reasonably apprehend bias.[4] The Appeals Chamber further recalls that there is a presumption of impartiality which attaches to the Judges of the Tribunal and which cannot be easily rebutted.[5]

[…]

37.     When addressing whether the impartiality of the Judges in this case could be affected by the Impugned Staff’s involvement in the Karadžić case, the Trial Chamber found that, even though “there is a considerable degree of overlap between the Karadžić case and the present case”, “a properly informed and reasonable observer would not consider […] that the judges in the present case ha[ve] failed to maintain the high degree of integrity and impartiality to which they are sworn, even if they or the Impugned Staff had worked on both cases.”[6] It added that a properly informed and reasonable observer would not expect that the Judges in this case would do anything other than rule fairly on the issues before them, relying exclusively on the evidence adduced in the present case, even if they or their staff had been exposed to evidence in both cases.[7] The Trial Chamber concluded that the presumption of impartiality attached to the Judges in this case had not been rebutted on the basis that the Impugned Staff had worked on an overlapping case in which factual findings were made in relation to Mladić.[8]

38.     With respect to Mladić’s argument that the Trial Chamber failed to sufficiently reason its conclusions relating to the application of the reasonable observer test,[9] the Appeals Chamber considers that Mladić’s arguments effectively amount to a challenge to how the reasonable observer test has been interpreted in the case law. The Appeals Chamber is of the view that Mladić’s argument reflects his disagreement with the jurisprudence relied upon by the Trial Chamber and set out in detail in the applicable law section of the Impugned Decision,[10] as well as with the Trial Chamber’s reliance on this jurisprudence when assessing whether the Impugned Staff’s involvement in the Karadžić case could lead to an appearance of bias of the Judges in this case[11] without explaining how the Trial Chamber erred in following this case law. The Appeals Chamber finds that Mladić fails to demonstrate an error in the Trial Chamber’s reasoning.

39.     Moreover, the Appeals Chamber recalls that “‘mere assertions to the effect that a staff member may influence a Judge during deliberations or the adjudication process are not a sufficient basis, in and of themselves’, to create in the mind of a reasonable observer, properly informed, an appearance of bias or to rebut the presumption of impartiality of judges.”[12] Accordingly, the Appeals Chamber does not consider that a staff’s previous work on an overlapping case is, in and of itself, sufficient to impugn the Judges’ impartiality or the appearance thereof. The Appeals Chamber therefore finds no merit to Mladić’s argument that a reasonable observer would consider that the fact that the Impugned Staff previously worked on the closely-related Karadžić case, is sufficient to rebut the impartiality of the Judges in this case.

See also paragraphs 30, 33.

[1] The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A, Judgement, 14 December 2015 (“Nyiramasuhuko et al. Appeal Judgement”), para. 273, referring to, inter alia, Bizimungu et al. Appeal Decision, para. 9, Ildephonse Hategekimana v. The Prosecutor, Case No. ICTR‑00-55B-A, Judgement, 8 May 2012 (“Hategekimana Appeal Judgement”), para. 20.

[2] Nyiramasuhuko et al. Appeal Judgement, para. 273; Bizimungu et al. Appeal Decision [The Prosecutor v. Casimir Bizimungu et al., Case No. ICTR-99-50-AR‑73.8, Decision on Appeals Concerning the Engagement of a Chambers Consultant or Legal Officer, 17 December 2009], para. 9.

[3] Bizimungu et al. Appeal Decision, para. 11.

[4] See, e.g., Prosecutor v. Mićo Stanišić and Stojan Župljanin, Case No. IT-08-91-A, Judgement, 30 June 2016 (“Stanišić and Župljanin Appeal Judgement”), para. 43 and references cited therein.

[5] See, e.g., Stanišić and Župljanin Appeal Judgement, para. 44 and references cited therein; Nyiramasuhuko et al. Appeal Judgement, para. 273; Hategekimana Appeal Judgement, para. 16.

[6] Impugned Decision [Prosecutor v. Ratko Mladić, Case No. IT-09-92-T, Decision on Defence Motion for a Fair Trial and the Presumption of Innocence or, in the Alternative, a Mistrial, 4 July 2016], para. 22.

[7] Impugned Decision, para. 23.

[8] Impugned Decision, para. 26.

[9] See supra, para. 17.

[10] Impugned Decision, paras 9-10.

[11] Impugned Decision, paras 22-23.

[12] Hategekimana Appeal Judgement, para. 20, quoting Bizimungu et al. Appeal Decision, para. 10.

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Decision on Fair Trial and Presumption of Innocence - 27.02.2017 MLADIĆ Ratko
(IT-09-92-AR73.6)

25.     […] The Appeals Chamber recalls further that, while a trial chamber must provide reasoning in support of its findings on the substantive considerations relevant for a decision, it is not required to articulate every step of its reasoning and to discuss each submission.[1] […]

[1] Nyiramasuhuko et al. Appeal Judgement, para. 105 and references cited therein. See also Prosecutor v. Radovan Karadžić, Cases Nos. IT-95-5/18-AR72.1, IT-95-5/18-AR72.2, IT-95-5/18-AR72.3, Decision on Radovan Karadžić’s Motions Challenging Jurisdiction (Omission Liability, JCE-III – Special Intent Crimes, Superior Responsibility), 25 June 2009, para. 30.

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Notion(s) Filing Case
Decision on Fair Trial and Presumption of Innocence - 27.02.2017 MLADIĆ Ratko
(IT-09-92-AR73.6)

30.     The Appeals Chamber is of the view that the Trial Chamber correctly recalled that the Impugned Staff provides assistance to the Judges while the decision-making remains entirely in the Judges’ purview and that neither the Rules of Procedure and Evidence of the Tribunal nor the related jurisprudence provide for the disqualification of the Impugned Staff.[1] […]

[1] Impugned Decision [Prosecutor v. Ratko Mladić, Case No. IT-09-92-T, Decision on Defence Motion for a Fair Trial and the Presumption of Innocence or, in the Alternative, a Mistrial, 4 July 2016], para. 18. See also Impugned Decision, para. 14, referring to Bizimungu et al. Appeal Decision [The Prosecutor v. Casimir Bizimungu et al., Case No. ICTR-99-50-AR‑73.8, Decision on Appeals Concerning the Engagement of a Chambers Consultant or Legal Officer, 17 December 2009], paras 5, 9; Nyiramasuhuko et al. Appeal Judgement, para. 273; In the Case against Florence Hartmann, Case No. IT‑02‑54‑R77.5, Report of Decision on Defence Motion for Disqualification of Two Members of the Trial Chamber and of Senior Legal Officer, 27 March 2009 (public redacted version), para. 54.

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Decision on Redacted Versions of Rule 86(F) Filings - 24.01.2017 KARADŽIĆ Radovan
(MICT-13-55-A)

Page 3:

CONSIDERING that Karadžić’s reply expands on his submissions made in the Motion to which the Prosecution had sufficient opportunity to respond;

FINDING, therefore, that Karadžić’s reply contains no new issue that would justify granting leave to file a sur-reply;

[1] Prosecutor v. Vujadin Popović et al, Case No. IT-05-88-A, Public Redacted Version of 2 May 2014 Decision on Vujadin Popović’s Third and Fifth Motions for Admission of Additional Evidence on Appeal Pursuant to Rule 115, 23 May 2014, para. 14 (“leave to file a sur-reply may be granted where the reply raises a new issue to which the respondent has not already had the opportunity to respond”).

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Decision on Redacted Versions of Rule 86(F) Filings - 24.01.2017 KARADŽIĆ Radovan
(MICT-13-55-A)

Page 3:

RECALLING that all proceedings before the Mechanism shall be public unless exceptional reasons require keeping them confidential;

[1] Prosecutor v. Naser Orić, Case No. MICT-14-79, Decision on an Application for Leave to Appeal the Single Judge’s Decision of 10 December 2015, 17 February 2016, para. 8 referring to Article 18 of the Statute of the Mechanism and Rules 92 and 131 of the Rules. 

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Decision on Redacted Versions of Rule 86(F) Filings - 24.01.2017 KARADŽIĆ Radovan
(MICT-13-55-A)

Pages 3-4: 

RECALLING that a request for access to confidential ex parte material can only be granted when the requesting party demonstrates a heightened showing of a legitimate forensic purpose in order to protect the interests of the party who designated its filing as ex parte and who enjoys a protected degree of trust that the ex parte material will not be disclosed;[1]

Pages 4-5: 

FINDING that issuing public redacted versions of the decisions and orders issued in this case pursuant to Rule 86(F) of the Rules as well as four filings made by the Registry of the Mechanism and the Prosecution will ensure the public nature of these proceedings to the extent possible and that the interests of the parties who designated their filings as ex parte can be adequately protected by appropriate redactions;

CONSIDERING that, in light of the varied circumstances of applications made under Rule 86(F) of the Rules, access to any future confidential ex parte materials in such cases should be determined upon any application made on a case-by-case basis;

[1] See The Prosecutor v. Miroslav Bralo, Case No. IT-95-17-A, Decision on Motions for Access to Ex Parte Portions of the Record on Appeal and for Disclosure of Mitigating Material, 30 August 2006, para. 17. See also Decision of 10 May 2016 [Decision on Motion for Access to Ex Parte Filings in Completed Cases, 10 May 2016], p. 3 and references cited therein.

[2] Prosecutor v. Radovan Karadžić, Case No. MICT-13-55-R86F.2, Registrar’s Submission in Relation to the Order of 20 September 2016, 27 September 2016 (confidential and ex parte); Prosecutor v. Radovan Karadžić, Case No. MICT-13-55-R86F.3, 27 September 2016, Registrar’s Submission in Relation to the Order of 20 September 2016 (confidential and ex parte); Prosecutor v. Radovan Karadžić, Case No. MICT-13-55-R86F.2, Prosecution Request for Leave to File Further Submission in Response to Registrar’s Submission in Relation to the Order for Submissions of 20 September 2016, 29 September 2016 (confidential and ex parte); Prosecutor v. Radovan Karadžić, Case No. MICT-13-55-R86F.3, Prosecution Request for Leave to File Further Submission in Response to Registrar’s Submission in Relation to the Order for Submissions of 20 September 2016, 29 September 2016 (confidential and ex parte). The Appeals Chamber notes that its finding does not extend to the confidential ex parte annexes attached to the Registry’s submissions of 29 September 2016.

[3] The Appeals Chamber notes that, with regard to two of the five proceedings at issue, Case No. MICT-13-55-R86.F.2, Case No. MICT-13-55-R86.F.3, the ex parte status of the requests made under Rule 86(F) of the Rules was lifted in these instances with respect to the Prosecution as the requests concerned Prosecution witnesses. The request filed as Case No. MICT-13-55-R86.F.1 was dismissed for lack of jurisdiction. Two other proceedings, Case No. MICT-13-55-R86.F.4 and Case No. MICT-13-55-R86.F.5, are currently pending and only assignment orders have been issued to date.

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MICT Rule Rule 86(F)
Notion(s) Filing Case
Decision on Rescinding Protective Measures - 14.11.2016 KAMUHANDA Jean de Dieu
(MICT-13-33)

6. As a preliminary matter, the Appeals Chamber notes that the Impugned Decision was rendered after the close of the trial and appeal proceedings in Kamuhanda’s case[1] and that, therefore, Rule 80(B) of the Rules, which requires certification to appeal a decision rendered at trial, by its plain language is not applicable in the present case.[2] The Appeals Chamber further observes that Rule 86 of the Rules, which regulates measures for the protection of victims and witnesses, does not expressly provide for an appeal as of right or address the issue of whether a decision rendered by a Single Judge after the close of trial and appeal proceedings is subject to appeal. In interpreting an equivalent provision in the ICTR Rules, the ICTR Appeals Chamber has held that an applicant is entitled to appeal a decision on witness protective measures which was rendered after the close of the trial and appeal proceedings.[3] Bearing this practice in mind and in light of the importance of the protection of victims and witnesses to the proper functioning of the Mechanism,[4] the Appeals Chamber considers that it has jurisdiction over this appeal.

[1] See supra [Prosecutor v. Jean de Dieu Kamuhanda, Case No. MICT-13-33, Decision on Appeal of Decision Declining to Rescind Protective Measures for a Deceased Witness, 14 November 2016], paras. 2, 3.

[2] Rule 80(B) of the Rules reads: “Decisions rendered on such motions are without interlocutory appeal save with certification by the Trial Chamber, which may grant such certification if the decision involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Trial Chamber an immediate resolution by the Appeals Chamber may materially advance the proceedings.” See also Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R75, Decision on Motion for Clarification, 20 June 2008 (“Niyitegeka Decision of 20 June 2008”), para. 13 (interpreting the parallel for certification in the ICTR Rules of Procedure and Evidence (“ICTR Rules”), Rule 73(B) of the ICTR Rules).

[3] See Niyitegeka Decision of 20 June 2008, para. 14. See also Georges A.N. Rutaganda v. The Prosecutor, Case No. ICTR-96-3-R, Order to the Registrar Concerning Georges Rutaganda’s Access to Documents, 22 January 2009, p. 2.

[4] See [Prosecutor v. Jean de Dieu Kamuhanda, Case No. MICT-13-33] Decision on a Motion for a Public Redacted Version of the 27 January 2010 Decision on Application of The Prosecutor of the Tribunal for Variation of Protective Measures, 11 May 2016, p. 2; Prosecutor v. Dragoljub Kunarac et al., Case Nos. MICT-15-88-R86H.1/MICT-15-88-R86H.2, Decision on Prosecution Requests for a Public Redacted Version of a Decision on Applications Pursuant to Rule 86(H), 9 February 2016, p. 1 and references cited therein.

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ICTR Rule Rule 73(B) MICT Rule Rule 80(B);
Rule 86
Notion(s) Filing Case
Decision on Rescinding Protective Measures - 14.11.2016 KAMUHANDA Jean de Dieu
(MICT-13-33)

9. Pursuant to Rule 86(F)(i) of the Rules, protective measures ordered before the ICTY, the ICTR, or the Mechanism (“first proceedings”), continue to have effect in any other proceedings before the Mechanism (“second proceedings”) unless and until they are rescinded, varied or augmented. The Appeals Chamber observes that Kamuhanda requested rescission of protective measures granted to a witness in his own case and, therefore, the Single Judge became seised of the “first proceedings”. In contrast, Rules 86(F)(i), 86(H) and 86(I) of the Rules which form the basis of the Impugned Decision, govern the continuation of protective measures in a “second proceedings” and the conditions for their rescission upon a request from a party to the “second proceedings”, a domestic jurisdiction, or a protected victim or witness.

10. Since Kamuhanda is a party to the “first proceedings” seeking rescission of protective measures in his own case, neither Rule 86(F)(i) nor Rule 86(H), and consequently Rule 86(I) of the Rules, apply in relation to Kamuhanda’s request. Notwithstanding, the Appeals Chamber considers that it was within the Single Judge’s discretion to take into account the conditions for rescission of protective measures set out in Rule 86(I) of the Rules, as the consent of the witness concerned, the existence of exigent circumstances or the potential for a miscarriage of justice may be relevant factors in balancing the interests of the convicted person and the need for the continued protection of victims and witnesses.[1] However, the conditions set out in Rule 86(I) of the Rules are not required as a matter of law in the circumstances of this case where a party is seeking the modification of protective measures granted to one of its witnesses in its own case.

11. The Appeals Chamber further recalls that, pursuant to Rule 86(A) of the Rules, a Chamber may, at the request of either party, order appropriate measures for the privacy and protection of victims and witnesses.[2] Rule 86(A) of the Rules is applicable mutatis mutandis to matters of rescission or variation of protective measures sought by a party in its own case.[3] In assessing whether protective measures should be rescinded or varied under Rule 86(A) of the Rules, a Chamber should take into consideration any information relevant to the requested modification. In such cases, the consent of the witness is not necessarily required if the Chamber is otherwise satisfied that the modification or rescission is justified in the circumstances of the case.

[1] See Impugned Decision [Prosecutor v. Jean de Dieu Kamuhanda, Case No. MICT-13-33, Decision on Motion to Rescind Protective Measures for Defence Witness ALM, 29 March 2016], p. 3. The Appeals Chamber notes that, although the Impugned Decision contains a reference to Rule 86(J) of the Rules (see Impugned Decision, p. 2), no finding was entered by the Single Judge pursuant to this Rule.

[2] See also Rule 2(C) of the Rules.

[3] See The Prosecutor v. François Karera, Case No. ICTR-01-74, Decision Rescinding the Protective Measures of Witness BMI, 27 September 2011, paras. 5, 6; Prosecutor v. Milan Milutinović et al., Case No. IT-05-87-T, Order on Rescission of Protective Measures in relation to Witness Ljubinko Cvetić, 7 December 2006, paras. 1, 2. See also Prosecutor v. Jean de Dieu Kamuhanda, Case No. ICTR-99-54-T, Decision on Jean de Dieu Kamuhanda’s Motion for Protective Measures for Defence Witnesses, 22 March 2001(“Protective Measures Decision”), para. 24 (where the Trial Chamber noted that Kamuhanda could seek at any time variation or augmentation of the protective measures granted to the potential witnesses, including Witness ALM).

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MICT Rule Rule 86
Notion(s) Filing Case
Decision on Rescinding Protective Measures - 14.11.2016 KAMUHANDA Jean de Dieu
(MICT-13-33)

12. In granting protective measures in the present case, the Trial Chamber considered that “the fears of the potential witnesses and their families, if they testify on behalf of [Kamuhanda] without protective measures” were well founded.[1] The Appeals Chamber notes that, following the death of a witness who had benefited from protective measures, security concerns may remain for the witness’s family. Therefore, the security concerns of members of a deceased witness’s family may constitute a relevant consideration in determining whether the protective measures granted to the witness should remain in place or be rescinded under Rule 86(A) of the Rules.

[1] Protective Measures Decision, paras. 14, 16, p. 6.

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MICT Rule Rule 86(A)
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Decision on Revocation of Referral - 04.10.2016 UWINKINDI Jean
(MICT-12-25-AR14.1)

12.     […] the Trial Chamber’s statement that “the Mechanism’s role is not to act as an independent level of appellate review for the national proceedings, but rather to determine primarily whether the conditions for a fair trial in the domestic jurisdiction no longer exist” is entirely consistent with Article 6(6) of the Statute and Rule 14(C) of the Rules, which govern the Mechanism’s authority to revoke cases referred to national jurisdictions.

[…]

64.     The Appeals Chamber finds that Uwinkindi demonstrates no error in the Trial Chamber’s statement that it was not within its purview to scrutinize the Rwandan legal aid budget, inquire into its sufficiency, or verify its administration and disbursement, particularly in light of the conclusion that the circumstances in Rwanda ensured Uwinkindi’s right to free legal assistance.[1]

[1] See The Prosecutor v. Jean Uwinkindi, Case No. ICTR-01-75-AR11bis, Decision on Uwinkindi’s Motion for Review or Reconsideration of the Decision on Referral to Rwanda and the Related Prosecution Motion, 23 February 2013, para. 71 (recalling that a Referral Chamber must “satisif[y] itself that the State would supply defence counsel to accused who cannot afford their own representation” and is “not obligated […] to itemize the provisions of the [State’s] budget once it has learned there is financial support for that representation”). See also Prosecutor v. Mitar Rašević and Savo Todović, Case No. IT-97-25/1-AR11bis.1 & IT-97-25/1-AR11bis.2, Decision on Savo Todović’s Appeals against Decisions on Referral under Rule 11bis, 4 September 2006, para. 59; Prosecutor v. Željko Mejakić et al., Case No. IT-02-65-AR11bis.1, Decision on Joint Defence Appeal against Decision on Referral under Rule 11bis, 7 April 2006, para. 70; Prosecutor v. Radovan Stanković, Case No. IT-96-23/2-AR11bis.1, Decision on Rule 11bis Referral, 1 September 2005, para. 21. 

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MICT Statute Article 6(6) MICT Rule Rule 14(C)
Notion(s) Filing Case
Decision on Revocation of Referral - 04.10.2016 UWINKINDI Jean
(MICT-12-25-AR14.1)

29.     The Appeals Chamber further finds that Uwinkindi fails to establish that the non-inclusion of the charge of complicity in genocide in his ICTR Indictment prohibited its inclusion in his indictment before the Rwandan High Court in view of the res judicata principle. Res judicata arises only when there is an identity of parties, identity of issues, and importantly a final determination of those issues in the previous decision by a court competent to decide them.[1] Notably, the litigation before the ICTR concerning the inclusion of complicity in genocide in Uwinkindi’s indictment did not result in a final determination and the Rwandan Prosecution was not a party to it.[2]

[1] See Prosecutor v. Radovan Karadžić, Case No. MICT-13-55-A, Decision on a Motion for Redacted Versions of Decisions Issued under Rule 75(H) of the ICTY Rules, 18 July 2016, p. 4 and references cited therein; The Prosecutor v. Laurent Semanza, Case No. ICTR-97-20-T, Decision on the Kingdom of Belgium’s Application to File an Amicus Curiae Brief and on the Defence Application to Strike Out the Observations of the Kingdom of Belgium Concerning the Preliminary Response by the Defence, 12 February 2001, para. 11.

[2] Specifically, Trial Chamber III of the ICTR subsequently confirmed the initial indictment against Uwinkindi but ordered the Prosecution to amend it to clearly indicate what facts could support Uwinkindi’s involvement in the crime of complicity in genocide; the decision did not require the Prosecution to drop the charge. See The Prosecutor v. Jean-Bosco Uwinkindi, Case No. ICTR-2001-75-I, Confirmation of Indictment, 3 September 2001, paras. 7, 9.

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Decision on Revocation of Referral - 04.10.2016 UWINKINDI Jean
(MICT-12-25-AR14.1)

36.     In considering Uwinkindi’s complaint of an alleged breach of his right to choose his counsel, the Trial Chamber recalled that the Appeals Chambers of the ad hoc Tribunals have consistently recognised that individuals lacking the means to remunerate counsel do not have an absolute right to a counsel of their own choosing.[1] […] Consistent with international human rights law and the case law of the ad hoc Tribunals, this right is necessarily subject to certain limitations where, as in the present case, free legal aid is relied upon and the interests of justice require the accused to be defended by counsel assigned to him despite his wishes.[2]

37.     […] The Appeals Chamber considers that avoiding interruptions or adjournments corresponds to an interest of justice which may well justify the appointment of counsel against the accused’s wishes.[3] […]

See also paragraph 38.

[1] See Impugned Decision [Prosecutor v. Jean Uwinkindi, Case No. MICT-12-25-R14.1, Decision on Uwinkindi’s Request for Revocation, 22 October 2015], para. 24 and references cited therein.

[2] See Léonidas Nshogoza v. The Prosecutor, Case No. ICTR-2007-91-A, Judgement, 15 March 2010, para. 35; Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Judgement, 9 May 2007, paras. 14, 17. See The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Judgement, 23 November 2001 (signed on 1 June 2001), para. 61; Jean Kambanda v. The Prosecutor, Case No. ICTR-97-23-A, Judgement, 19 October 2000, para. 33. See also Dvorski v. Croatia [2015] ECHR 927, paras. 78, 79.

[3] Croissant v. Germany [1992] ECHR 60, para. 28. 

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Decision on Revocation of Referral - 04.10.2016 UWINKINDI Jean
(MICT-12-25-AR14.1)

71.     […] The Appeals Chamber reiterates that as “professional judges, members of the Rwandan judiciary benefit from a presumption of independence and impartiality”.[1] Thus, their personal impartiality must be presumed until there is proof to the contrary.[2] This presumption cannot be easily rebutted and it is for the party alleging bias to rebut it on the basis of adequate and reliable evidence.[3] In this respect, there is a high threshold to reach and the reasonable apprehension of bias must be firmly established.[4] […]

[1] Phénéas Munyarugarama v. Prosecutor, Case No. MICT-12-09-AR14, Decision on Appeal against the Referral of Phénéas Munyarugarama’s Case to Rwanda and Prosecution Motion to Strike, 5 October 2012, para. 24.

[2] See, e.g., The Prosecutor v. Yussuf Munyakazi, Case No. ICTR-97-36A-A, Judgement, 28 September 2011, para. 115; Tharcisse Renzaho v. The Prosecutor, Case No. ICTR-97-31-A, Judgement, 1 April 2011, para. 43. See also Kyprianou v. Cyprus [2005] ECHR 873, para. 119.

[3] See The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A, Judgement, 14 December 2015, paras. 95, 405 and references cited therein; Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-A, Judgement, 9 July 2004 (“Niyitegeka Appeal Judgement”), para. 45.

[4] Niyitegeka Appeal Judgement, para. 45 and references cited therein.

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Decision on Revocation of Referral - 04.10.2016 UWINKINDI Jean
(MICT-12-25-AR14.1)

40.     […] The Appeals Chamber recalls that the Trial Chamber is presumed to have evaluated all the evidence presented to it, as long as there is no indication that the Trial Chamber completely disregarded any particular piece of evidence.[1] There may be an indication of disregard when evidence, which is clearly relevant to the findings, is not addressed in the Trial Chamber’s reasoning.[2] […]

See also paragraph 54.

[1] Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-A, Judgement, 28 February 2005, (“Kvočka et al. Appeal Judgement”) para. 23. See also, e.g., Nyiramasuhuko et al. Appeal Judgement, para. 1308; Prosecutor v. Vlastimir Ðorđević, Case No. IT-05-87/1-A, Judgement, 27 January 2014 (“Ðorđević Appeal Judgement”), para. 864.

[2] Kvočka et al. Appeal Judgement, para. 23. See also, e.g., Nyiramasuhuko et al. Appeal Judgement, para. 1308; Ðorđević Appeal Judgement, para. 864; Gaspard Kanyarukiga v. The Prosecutor, Case No. ICTR-02-78-A, Judgement, 8 May 2012, para. 127; Aloys Ntabakuze v. The Prosecutor, Case No. ICTR-98-41A-A, Judgement, 8 May 2012, para. 161.

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Decision on Additional Evidence - 22.09.2016 UWINKINDI Jean
(MICT-12-25-AR14.1)

5.       Rule 142 of the Rules provides for the admission of additional evidence on appeal, and the Appeals Chamber finds that, in accordance with the jurisprudence of the ICTR and the International Tribunal for the former Yugoslavia (“ICTY”), this provision is applicable to appeals of decisions issued pursuant Rule 14 of the Rules.[1] According to Rule 142(A) of the Rules, a motion for the admission of additional evidence shall clearly identify with precision the specific finding of fact made by the trial chamber to which the evidence is directed. For additional evidence to be admissible under Rule 142(C) of the Rules, the applicant must demonstrate that the additional evidence was not available at trial in any form, or discoverable through the exercise of due diligence.[2] The applicant must also show that the additional evidence is relevant to a material issue at trial and credible.[3] Once it has been determined that the additional evidence meets these conditions, the Appeals Chamber will determine in accordance with Rule 142(C) of the Rules whether it could have been a decisive factor in reaching the Impugned Decision.[4]

6.       Where, however, the evidence was available during the revocation proceedings or could have been discovered through the exercise of due diligence, it may still be admissible on appeal pursuant to Rule 142(C) of the Rules if the applicant shows that the exclusion of the additional evidence would lead to a miscarriage of justice, in that, if it had been admitted at trial, it would have had an impact on the Impugned Decision.[5]

7.       In both cases, the applicant bears the burden of identifying with precision the specific finding of fact made by the trial chamber to which the additional evidence pertains, and of specifying with sufficient clarity the impact the additional evidence could or would have had upon the trial chamber’s decision.[6] An applicant who fails to do so runs the risk that the tendered material will be rejected without detailed consideration.[7]

See also para. 39.

[1] See Bernard Munyagishari v. The Prosecutor, Case No. ICTR-05-89-AR11bis, Decision on Bernard Munyagishari’s First and Second Motions for Admission of Additional Evidence, 25 February 2013 (“Munyagishari Decision of 25 February 2013”), para. 5; Prosecutor v. Željko Mejakić et al., Case No. IT-02-65-AR11bis.1, Decision on Joint Defence Motion to Admit Additional Evidence before the Appeals Chamber pursuant to Rule 115, 16 November 2005 (“Mejakić et al. Decision of 16 November 2005”), para. 6.

[2] Augustin Ngirabatware v. Prosecutor, Case No. MICT-12-29-A, Decision on Ngirabatware’s Motions for Relief for Rule 73 Violations and Admission of Additional Evidence on Appeal, 21 November 2014 (“Ngirabatware Decision of 21 November 2014”), para. 24; Munyagishari Decision of 25 February 2013, para. 5.

[3] Ngirabatware Decision of 21 November 2014, para. 25; Munyagishari Decision of 25 February 2013, para. 5; Mejakić et al. Decision of 16 November 2005, para. 10.

[4] Munyagishari Decision of 25 February 2013, para. 5; Mejakić et al. Decision of 16 November 2005, para. 10. Cf. Ngirabatware Decision of 21 November 2014, para. 26.

[5] Cf. Ngirabatware Decision of 21 November 2014, para. 27; Munyagishari Decision of 25 February 2013, para. 6; Mejakić et al. Decision of 16 November 2005, para. 12.

[6] Cf. Ngirabatware Decision of 21 November 2014, para. 28 and references cited therein.

[7] Ngirabatware Decision of 21 November 2014, para. 28 and references cited therein.

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ICTR Rule Rule 115 ICTY Rule Rule 115 MICT Rule Rule 142
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Decision on Additional Evidence - 22.09.2016 UWINKINDI Jean
(MICT-12-25-AR14.1)

14.     […] [T]he Appeals Chamber recalls that a party must establish that the evidence sought to be admitted was not available at trial “in any form whatsoever”.[1] […]

[…]

27.     Notwithstanding, for additional evidence to have been unavailable in the first instance, it must not have been available at trial “in any form whatsoever”.[2] […]

[1] Tharcisse Renzaho v. The Prosecutor, Case No. ICTR-97-31-A, Decision on Tharcisse Renzaho’s Motions for Admission of Additional Evidence and Investigation on Appeal, 27 September 2010 (“Renzaho Decision of 27 September 2010”), para. 19 (emphasis omitted).

[2] Renzaho Decision of 27 September 2010, para. 19 (emphasis omitted).

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ICTR Rule Rule 115 ICTY Rule Rule 115 MICT Rule Rule 142
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Decision on Additional Evidence - 22.09.2016 UWINKINDI Jean
(MICT-12-25-AR14.1)

72.     The Appeals Chamber reiterates that the purpose of Rule 142 of the Rules is to address instances where a party is “in possession of material” that was not before the court of first instance and which is additional evidence of a fact or issue litigated at trial.[1] As repeatedly held by the ad hoc Tribunals, a party seeking the admission of additional evidence on appeal must provide the Appeals Chamber with the evidence sought to be admitted to allow it to determine whether the evidence meets the requirements of relevance and credibility.[2]

[…]

76.     The Appeals Chamber has the authority to summon a witness, in appropriate circumstances, to testify before the Chamber so as to facilitate the effective conduct of appeal proceedings.[3] However, Rule 142 of the Rules does not permit a party to merely request a particular person to be summoned as a witness to give evidence at the appellate stage.[4] Where a party seeks to call a witness at the appellate stage, it needs to provide a statement or other documentation of the potential witness’s proposed evidence, which the Appeals Chamber may admit as additional evidence pursuant to Rule 142 of the Rules and on the basis of which it may determine whether calling the witness to testify on appeal is necessary.[5]

[1] See, e.g., Théoneste Bagosora et al. v. The Prosecutor, Case No. ICTR-98-41-A, Decision on Théoneste Bagosora’s Motion for Admission of Additional Evidence, 7 February 2011 (“Bagosora et al. Decision of 7 February 2011”), para. 8; Renzaho Decision of 27 September 2010, para. 3; Emmanuel Rukundo v. The Prosecutor, Case No. ICTR‑01‑70-A, Decision on Rukundo’s Motion for the Admission of Additional Evidence on Appeal, 4 June 2010, para. 5; The Prosecutor v. Ildephonse Hategekimana, Case No. ICTR-00-55B-R11bis, Decision on Request to Admit Additional Evidence, 2 October 2008 (“Hategekimana Decision of 2 October 2008”), para. 5; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Appellant Jean-Bosco Barayagwiza’s Motion for Leave to Present Additional Evidence Pursuant to Rule 115, 5 May 2006 (“Nahimana et al. Decision of 5 May 2006”), para. 20; Prosecutor v. Zoran Kupreškić et al., Case No. IT-95-16-A, Decision on the Motions of Drago Josipović, Zoran Kupreškić and Vlatko Kupreškić to Admit Additional Evidence pursuant to Rule 115 and for Judicial Notice to be Taken Pursuant to Rule 94(B), 8 May 2001 (“Kupreškić et al. Decision of 8 May 2001”), para. 5.

[2] See, e.g., Bagosora et al. Decision of 7 February 2011, para. 8; Prosecutor v. Dragomir Milošević, Case No. IT‑98‑29/1-A, Decision on Dragomir Milošević’s Further Motion to Present Additional Evidence, 9 April 2009, para. 18; Prosecutor v. Mile Mrkšić and Veselin Šljivančanin, Case No. IT-95-13/1-A, Decision on Mile Mrkšić’s Second Rule 115 Motion, 13 February 2009, para. 13; Hategekimana Decision of 2 October 2008, paras. 7, 8. See also Practice Direction on Requirements and Procedures for Appeals, MICT/10, 6 August 2013, para. 12(e), providing that a party applying to present additional evidence pursuant to Rule 142 of the Rules shall do so by way of a motion filed containing “an appendix with copies of the evidence the party is applying to present before the Appeals Chamber”.

[3] See, e.g., Bagosora et al. Decision of 7 February 2011, para. 8; Nahimana et al. Decision of 5 May 2006, para. 20. Kupreškić et al. Decision of 8 May 2001, para. 5.

[4] See, e.g., Bagosora et al. Decision of 7 February 2011, para. 8; Nahimana et al. Decision of 5 May 2006, para. 20; Kupreškić et al. Decision of 8 May 2001, paras. 5, 10.

[5] See, e.g., Bagosora et al. Decision of 7 February 2011, paras. 8, 9; Nahimana et al. Decision of 5 May 2006, para. 20. Cf. Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Decision on the First and Third Rule 115 Defence Motions to Present Additional Evidence before the Appeals Chamber, 30 June 2005 (“Galić Decision of 30 June 2005”), para. 87; Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-A, Decision on the Request for Presentation of Additional Evidence, 18 November 2003, para. 13. 

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Decision on Croatia's Amicus Curiae Application - 18.07.2016 PRLIĆ et al.
(IT-04-74-A )

9.          […] The Appeals Chamber further observes that the Tribunal’s jurisdiction is restricted to “natural persons” and the Tribunal does not have the competency to make findings on state responsibility.[1] […]

[1] Statute of the Tribunal, Arts 1, 6-7. See also Gotovina and Markač Decision of 8 February 2012 [Prosecutor v. Ante Gotovina and Mladen Markač, Case No. IT-06-90-A, Decision on Motion to Intervene and Statement of Interest by the Republic of Croatia, 8 February 2012], para. 12.

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Decision on Redacted Versions of Decisions - 18.07.2016 KARADŽIĆ Radovan
(MICT-13-55-A)

Page 3:

RECALLING that, with regard to confidential material, the Mechanism must find a balance between the right of a party to have access to material to prepare its case and the need to guarantee the protection of witnesses and the confidentiality of sensitive information;[1]

[1] See Decision on Motion for Access to Ex Parte Filings in Completed Cases, 10 May 2016 (“Appeals Chamber Decision of 10 May 2016”), p. 2 and references cited therein. 

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