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Notion(s) Filing Case
Decision on Assignment of Standby Counsel for the Appeal Hearing - 11.10.2017 ŠEŠELJ Vojislav
(MICT-16-99-A)

Page 2

CONSIDERING that Šešelj’s refusal to respond to the Order indicates that he maintains his previously stated position not to participate in any way in the appeal hearing;

CONSIDERING that Šešelj’s position not to participate in the appeal hearing rises to the level of a disruption of the proceedings that would warrant the restriction of his right to self-representation;

CONSIDERING that, pursuant to Rules 46 and 131 of the Rules, the assignment of standby counsel is warranted in the interests of justice to ensure the protection of Šešelj’s rights at the appeal hearing;

[1] See Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-AR73.3, Decision on Appeal Against the Trial Chamber’s Decision on Assignment of Counsel, 20 October 2006, paras. 20, 21; Slobodan Milošević v. Prosecutor, Case No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel, 1 November 2004 (“Milošević Decision of 1 November 2004”), para. 13.

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MICT Statute Article 19(4)(d) MICT Rule Rule 46:
Rule 131
Notion(s) Filing Case
Decision on Assignment of Standby Counsel for the Appeal Hearing - 11.10.2017 ŠEŠELJ Vojislav
(MICT-16-99-A)

Page 2

CONSIDERING that standby counsel shall have access to the inter partes record of the appeal proceedings in order to prepare for the hearing;

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Notion(s) Filing Case
Decision on an Appeal of a Decision Rendered by a Single Judge - 06.10.2017 KAMUHANDA Jean de Dieu
(MICT-13-33)

12.     […] Requiring Kamuhanda to appeal an interim order before being able to demonstrate any prejudice resulting from that order would necessarily inhibit his ability to appeal the discretionary determination at issue and would result in a needless expenditure of judicial resources.[1]

[1] In order to successfully challenge a discretionary decision, an applicant must demonstrate that the Single Judge committed a discernible error resulting in prejudice to the applicant. See infra para. 11. 

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Notion(s) Filing Case
Decision on an Appeal of a Decision Rendered by a Single Judge - 06.10.2017 KAMUHANDA Jean de Dieu
(MICT-13-33)

14.     The Appeals Chamber recalls the generally accepted principle that the interpretation and implementation of protective measures should be the least restrictive necessary to provide for the protection of victims or witnesses.[1]

15.     […] the Appeals Chamber observes that the contested language releases the Mechanism and the WISP from accountability for any moral or material prejudice the witness might suffer whether he or she consents to the interview or does not and, therefore, prima facie, it neither encourages nor discourages a witness from consenting to an interview.[2] In addition, Kamuhanda’s contention that the impugned provision necessarily discouraged the witness from agreeing to an interview is not supported by Witness GEK’s explanation for not consenting to the interview. Witness GEK declined the request for the interview not because of the contested language, having to express an understanding that the witness could not hold the Mechanism responsible for his or her decision, but rather because of fears for safety.[3] […]

[1] The Prosecutor v. Théoneste Bagosora et al., Case Nos. ICTR-98-41-AR73 & ICTR-98-41-AR73(B), Decision on Interlocutory Appeals of Decision on Witness Protection Orders, 6 October 2005, para. 19.

[2] Registrar’s Submission [Registrar’s Submission Pursuant to Order of 8 June 2017, 21 June 2017 (confidential)], Annex, RP. 2/1554bis (“I fully understand the meaning and implications of my personal decision and therefore commit myself, through this document, not to hold WISP and the Mechanism in general accountable for any moral and material prejudice which I might suffer from my decision as to whether to participate in such an interview.”) (Emphasis added).

[3] See Registrar’s Submission, Annex, RP. 1/1554bis (“I fear for my safety because even when I appeared before the Tribunal previously, I did so as a protected witness. If they want to interview me, I am prepared to meet with them in court. In all other respects, my response is no.”).

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MICT Rule Rule 86
Notion(s) Filing Case
Decision on a Motion to Reclassify Filings - 03.10.2017 KARADŽIĆ Radovan
(MICT-13-55-A)

RECALLING ALSO that circumstances that may merit reconsideration include new facts and that, to succeed on that basis, an applicant must demonstrate how any new facts justify reconsideration;

[1] Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. MICT-15-96-PT, Decision on Motion for Partial Reconsideration of Decision on Stanišić’s Request for Stay of Proceedings, 7 April 2017, para. 7; Prosecutor v. Prlić et al., Case No. IT-04-74-AR73.16, Decision on Jadranko Prlić's Interlocutory Appeal against the Decision on Prlić Defence Motion for Reconsideration of the Decision on Admission of Documentary Evidence, 3 November 2009, para. 18; Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Decision on Defence’s Request for Reconsideration, 16 July 2004, p. 2.

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Notion(s) Filing Case
Decision on a Request for Leave to Make Submissions as Amicus Curiae - 25.09.2017 KARADŽIĆ Radovan
(MICT-13-55-A)

Pages 1-2

NOTING that Rule 83 of the Rules provides that “[a] Chamber may, if it considers it desirable for the proper determination of the case, invite or grant leave to a State, organisation, or person to appear before it and make submissions on any issues specified by the Chamber”;

RECALLING that deciding whether to grant leave to make submissions pursuant to Rule 83 of the Rules falls within the discretion of the Appeals Chamber;

RECALLING FURTHER that the primary criterion for the Appeals Chamber in determining whether to grant leave to an amicus curiae to make submissions is whether this would assist the Appeals Chamber in its consideration of the appeal;

[…]

NOTING that the proposed Amicus Curiae Brief is limited to questions of law;

CONSIDERING that the Amicus Curiae Brief analyses matters raised in the Appeal, specifically the relevance of Jogee [R v Jogee [2016] UKSC 8; Ruddock v The Queen [2016] UKPC 7] to applicable jurisprudence on the mens rea of the third form of joint criminal enterprise, and that, as such, it may assist the Appeals Chamber in its determination of the Appeal;

FINDING, therefore, that the Amicus Curiae Brief is admissible under Rule 83 of the Rules;

[1] See Prosecutor v. Nikola Šainović et al., Case No. IT-05-87-A, Decision on David J. Scheffer’s Application to File an Amicus Curiae Brief, 7 September 2010 (“Šainović et al. Decision of 7 September 2010”), p. 2; In the Case Against Florence Hartmann, Case No. IT-02-54-R77.5-A, Decision on Application for Leave to File Amicus Curiae Brief, 5 February 2010 (“Hartmann Decision of 5 February 2010”), para. 4; The Prosecutor v. Ferdinand Nahimana et al., Case No. ICTR-99-52-A, Decision on the Admissibility of the Amicus Curiae Brief Filed by the “Open Society Justice Initiative” and on its Request to be Heard at the Appeals Hearing, 12 January 2007 (“Nahimana et al. Decision of 12 January 2007”), p. 3.

[2] See Šainović et al. Decision of 7 September 2010, p. 2; Hartmann Decision of 5 February 2010, para. 5; Nahimana et al. Decision of 12 January 2007, p. 3.

[3] See also Hartmann Decision of 5 February 2010, para. 5; 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, 9 February 2001, paras. 10, 14(b).

[4] See Radovan Karad[ž]i[ć]’s Appeal Brief [Prosecutor v. Radovan Karadžić, Case No. MICT-13-55-A], 5 December 2016 (confidential with public redacted version filed on 23 December 2016), paras. 522-548; Prosecution Response Brief [Prosecutor v. Radovan Karadžić, Case No. MICT-13-55-A], 15 March 2017 (confidential with public redacted version filed on 16 May 2017), paras. 290-299; Radovan Karad[ž]i[ć]’s Reply Brief [Prosecutor v. Radovan Karadžić, Case No. MICT-13-55-A], 6 April 2017 (confidential with public redacted version filed on 19 April 2017), paras. 163-165.

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ICTR Rule Rule 74 ICTY Rule Rule 74 MICT Rule Rule 83
Notion(s) Filing Case
Order in Relation to the Appeal Hearing - 18.09.2017 ŠEŠELJ Vojislav
(MICT-16-99-A)

Pages 1-3

CONSIDERING that Šešelj has the right to be present at the upcoming hearing and that his presence is required;

CONSIDERING that Šešelj may waive his right to appear before the Appeals Chamber only if his interests are represented by counsel;

CONSIDERING that Šešelj has elected to represent himself and that he has the right to self‑representation at the appeal stage;

[…]

CONSIDERING that, if Šešelj is unable to travel to The Hague for the hearing, he may request, pursuant to Rule 96 of the Rules, to participate therein by way of video-conference link;

[1] See Article 19(4)(d) of the Statute. See also Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Judgement, 16 May 2008 (original French version filed on 28 November 2007), paras. 96, 109 (“Nahimana et al. Appeal Judgement”).

[2] See Rules 98 and 131 of the Rules.

[3] Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-A, Decision on Momčilo Krajišnik’s Request to Self-Represent, on Counsel’s Motions in Relation to Appointment of Amicus Curiae, and on the Prosecution Motion of 16 February 2007, 11 May 2007, paras. 10-12.

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MICT Statute Article 19(4)(d) MICT Rule Rule 96;
Rule 98;
Rule 131
Notion(s) Filing Case
Order in Relation to the Appeal Hearing - 18.09.2017 ŠEŠELJ Vojislav
(MICT-16-99-A)

Pages 2-3

CONSIDERING that Šešelj has elected to represent himself and that he has the right to self‑representation at the appeal stage;

[…]

CONSIDERING that, in view of Šešelj’s current position not to appear at the appeal hearing, the Appeals Chamber must take appropriate measures to ensure that his interests are represented at the upcoming appeal hearing in order to ensure the fair and expeditious conduct of the proceedings;

CONSIDERING that, prior to restricting Šešelj’s right to self-representation, the Appeals Chamber must issue a warning that is specific in nature;

CONSIDERING that, if [ešelj maintains his intention not to attend the appeal hearing, it will be in the interests of justice to instruct the Registrar pursuant to Rules 46 and 131 of the Rules to assign a standby counsel to represent Šešelj’s interests in the event that Šešelj is not present at the appeal hearing;

CONSIDERING that any restrictions on Šešelj’s right to represent himself must be limited to the minimum extent necessary to protect the Mechanism’s interest in a reasonably expeditious resolution of the appeal before it;

CONSIDERING, therefore, that, in order to preserve Šešelj’s right to self-representation, the mandate of the standby counsel shall be strictly limited to ensuring that Šešelj’s procedural rights at the hearing are protected if he does not attend, and shall not extend to making a response on [ešelj’s behalf on the substance of the Prosecution’s appeal;

[…]

CONSIDERING that Šešelj should be given an opportunity to reconsider his position not to attend the appeal hearing prior to instructing the Registrar to assign standby counsel;[5]

[1] Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-A, Decision on Momčilo Krajišnik’s Request to Self-Represent, on Counsel’s Motions in Relation to Appointment of Amicus Curiae, and on the Prosecution Motion of 16 February 2007, 11 May 2007, paras. 10-12.

[2] Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-AR73.3, Decision on Appeal Against the Trial Chamber’s Decision on Assignment of Counsel, 20 October 2006 (“Šešelj Appeal Decision”), paras. 22-25.

[3] See Nahimana et al. Appeal Judgement, para. 109.

[4] See Slobodan Milošević v. Prosecutor, Case No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel, 1 November 2004, paras. 17, 19.

[5] Šešelj Appeal Decision, paras. 24, 25.

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MICT Statute Article 19(4)(d) MICT Rule Rule 46;
Rule 131
Notion(s) Filing Case
Decision on Appeals of Decisions Rendered by a Single Judge - 09.08.2017 NIYITEGEKA Eliézer
(MICT-12-16-R)

10.     The Appeals Chamber accepts Niyitegeka’s argument that, at the time he filed the Request for Certification, it was not clear that he was entitled to appeal as of right the Decision of 29 January 2016, which was issued, in part, on the basis of Rules 73 and 86 of the Rules [of Procedure and Evidence of the Mechanism (“”Rules”)]. The Appeals Chamber recalls that the Appeals Chamber of the ICTR had ruled in Niyitegeka’s case that Rule 73 of the ICTR Rules concerning the requirement of certification prior to appeal applies only to interlocutory appeals during an applicant’s proceedings before a trial chamber and had held that an applicant is entitled to appeal as of right a decision pursuant to Rule 75(G) of the ICTR Rules rendered by another trial chamber after the close of that applicant’s trial and appeal proceedings.[1] Subsequently, Rule 75 of the ICTR Rules – the equivalent of Rule 86 of the Rules – was amended to provide for an express right of appeal of decisions taken under that rule when issued after the conclusion of an applicant’s trial proceedings.[2] However, Rule 86 of the Rules does not provide the same express right of appeal of decisions issued under it after the close of trial proceedings. In addition, only after Niyitegeka filed his Request for Certification did the Appeals Chamber clarify that the requirement of certification to appeal is not applicable to decisions under Rule 86 of the Rules rendered after the close of an applicant’s trial and appeal proceedings and that there lies a right of appeal in such circumstances.[3]

[…]

12.     […] [T]he Appeals Chamber clarifies that an appeal lies as of right of any decision taken under Rule 73 of the Rules by a single judge or trial chamber after an applicant’s trial and appeal proceedings have concluded. This is necessary to give full effect to the continuous obligation imposed upon the Prosecution by Rule 73(E) of the Rules to disclose exculpatory material after the completion of trial and any subsequent appeal.[4]

[1] Niyitegeka Decision of 20 June 2008 [Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R75, Decision on Motion for Clarification, 20 June 2008], paras. 13, 14.

[2] Compare ICTR Rules of 14 March 2008 with ICTR Rules of 1 October 2009. Specifically, the ICTR Rules of 1 October 2009. Specifically, the ICTR Rules of 1 October 2009 were amended to include Rule 75J, which states: “Decisions under paragraph (G) and, after the close of trial proceedings, paragraph (A), and under Rule 69, are subject to appeal directly to a full bench of the Appeals Chamber by either party. Appeals shall be filed within fifteen days of the filing of the impugned decision. A responding party shall, thereafter, file any response within ten days from the date of the filling of the appeal. The Appellant may file a reply within four days of the filing of the response. Failure to comply with these time limits shall constitute a waiver of the right to appeal.”

[3]See Kamuhanda Decision of 14 November 2016 [Case No. MICT-13-33, Decision on Appeal of Decision Declining to Rescind Protective Measures for a Deceased Witness]], para. 6. 

[4] Cf. 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 (“Orić Decision of 17 February 2016”), para. 6. 

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ICTR Rule Rule 73;
Rule 75
ICTY Rule Rule 73;
Rule 75
MICT Rule Rule 73;
Rule 86
Notion(s) Filing Case
Decision on Appeals of Decisions Rendered by a Single Judge - 09.08.2017 NIYITEGEKA Eliézer
(MICT-12-16-R)

10.     The Appeals Chamber accepts Niyitegeka’s argument that, at the time he filed the Request for Certification, it was not clear that he was entitled to appeal as of right the Decision of 29 January 2016, which was issued, in part, on the basis of Rules 73 and 86 of the Rules [of Procedure and Evidence of the Mechanism (“”Rules”)]. […]

11.     In this context, the Appeals Chamber finds that it was reasonable for Niyitegeka to request certification to appeal the Decision of 29 January 2016, which was issued, in part, on the basis of Rule 86 of the Rules. Notably, Niyitegeka filed the Request for Certification within the seven-day timeframe provided under Rule 80(C) of the Rules.  Moreover, he lodged the present Appeal within seven days of the Decision of 10 May 2017 denying his Request for Certification. Consequently, and pursuant to Rule 154 of the Rules, the Appeals Chamber finds that there is good cause to recognize the Appeal of the Decision of 29 January 2016 as validly filed.

[1] Niyitegeka states that the Decision of 29 January 2016 was only circulated on 1 February 2016 and that he filed his application seeking certification to appeal on 8 February 2016. Appeal, paras. 3, 4. This is not disputed by the Prosecution.

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MICT Rule Rule 154
Notion(s) Filing Case
Decision on Appeals of Decisions Rendered by a Single Judge - 09.08.2017 NIYITEGEKA Eliézer
(MICT-12-16-R)

Fn. 38. The Appeals Chamber also dismisses Niyitegeka’s further request that it provide guidance as to the appropriate procedures for generally challenging decisions related to confidential material not issued under Rule 86 of the Rules and rendered after the close of an applicant’s trial and appeal proceedings in addition to what has already been stated in this decision. Article 23 of the Statute of the Mechanism (“Statute”) provides that the Appeals Chamber may affirm, reverse or revise the decisions taken by a Single Judge or Trial Chamber. However, the Appeals Chamber does not have advisory power and Niyitegeka’s submission fails to demonstrate that this is an issue of general importance whose adjudication would contribute substantially to the Mechanism’s jurisprudence. See, e.g., Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Decision on Motion to Dismiss Ground 1 of the Prosecutor’s Appeal, 5 May 2005, p.3; The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Judgement, 23 November 2011, para. 23.

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MICT Statute Article 23
Notion(s) Filing Case
Decision on Appeals of Decisions Rendered by a Single Judge - 09.08.2017 NIYITEGEKA Eliézer
(MICT-12-16-R)

12. […] the Appeals Chamber clarifies that an appeal lies as of right of any decision taken under Rule 73 of the Rules by a single judge or trial chamber after an applicant’s trial and appeal proceedings have concluded. This is necessary to give full effect to the continuous obligation imposed upon the Prosecution by Rule 73(E) of the Rules to disclose exculpatory material after the completion of trial and any subsequent appeal.[1]

[1] Cf. 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 (“Orić Decision of 17 February 2016”), para. 6.

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MICT Rule Rule 73;
Rule 146
Notion(s) Filing Case
Decision on Appeals of Decisions Rendered by a Single Judge - 09.08.2017 NIYITEGEKA Eliézer
(MICT-12-16-R)

14. The Appeals Chamber recalls that decisions related to witness protection and disclosure of evidence are discretionary decisions.[1] In order to successfully challenge such a decision, Niyitegeka must demonstrate that the Single Judge committed a discernible error resulting in prejudice to him.[2] […]

[1] The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A, Judgement, 14 December 2015 (“Nyiramasuhuko et al. Appeal Judgement”), paras. 137, 431; Édouard Karemera and Matthieu Ngirumpatse v. The Prosecutor, Case No. ICTR-98-44-A, Judgement, 29 September 2014, para. 85; Prosecutor v. Nikola Šainović et al., Case No. IT-05-87-A, Judgement, 23 January 2014, para. 29.

[2] Nyiramasuhuko et al. Appeal Judgement, para. 68; Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-A, Judgement, 30 January 2015, para. 131.

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Notion(s) Filing Case
Decision on Appeals of Decisions Rendered by a Single Judge - 09.08.2017 NIYITEGEKA Eliézer
(MICT-12-16-R)

18.     The Appeals Chamber turns to Niyitegeka’s contention that the Single Judge erred in failing to consider that all the statements and testimony of the 12 Prosecution witnesses given subsequent to his own proceedings constitute potentially exculpatory material subject to disclosure under Rule 73 of the Rules. In this respect, the Appeals Chamber recalls that Rule 73(A) of the Rules imposes upon the Prosecution a positive and continuous obligation to, “as soon as practicable, disclose to the Defence any material that in [its] actual knowledge […] may suggest the innocence or mitigate the guilt of the accused or affect the credibility of Prosecution evidence”. The determination as to which material is subject to disclosure under Rule 73 of the Rules is a fact-based enquiry made by the Prosecution. A chamber will not intervene in the exercise of the Prosecution’s discretion unless it is shown that the Prosecution abused it and, where there is no evidence to the contrary, will presume that the Prosecution is acting in good faith. Niyitegeka demonstrates no error in the Single Judge’s determination that, with respect to Niyitegeka’s present request for disclosure, there was no reason to doubt that the Prosecution was complying with its continuous disclosure obligations in good faith. The Appeals Chamber recalls that the Prosecution’s obligation to disclose exculpatory material is essential to a fair trial, and notes that this obligation has always been interpreted broadly.

19.     […] [T]he Appeals Chamber recalls that the Office of the Prosecutor has a duty to utilize procedures designed to ensure that, particularly in instances where the same witnesses testify in different cases, the evidence provided by such witnesses is re-examined in light of Rule 73 of the Rules to determine whether any material has to be disclosed.[6] This obligation reflects the possibility that statements or testimony given by a witness in a subsequent proceeding may contain material subject to disclosure under Rule 73 of the Rules and underscores that, as noted above, determining what is subject to disclosure is a fact-based enquiry by the Prosecution. […] Furthermore, Rule 73 of the Rules limits the Prosecution’s obligation to the disclosure of material that “in [its] actual knowledge […] may suggest the innocence or mitigate the guilt of the accused or affect the credibility of Prosecution evidence”.[8] To the extent Niyitegeka considers that the Prosecution may be unaware of information that may impact the assessment of whether material in its possession is subject to disclosure under Rule 73 of the Rules, he may share such information with the Prosecution. In light of the foregoing, the Appeals Chamber finds that Niyitegeka fails to establish that the Single Judge committed a discernible error by not determining that all the statements and transcripts of evidence given by the 12 Prosecution witnesses during proceedings subsequent to the conclusion of Niyitegeka’s case constitute material subject to disclosure pursuant to Rule 73 of the Rules.

[1] See also 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. 15.

[2] Ngirabatware Decision of 21 November 2014 [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]], para. 15; Justin Mugenzi and Prosper Mugiraneza v. The Prosecutor, Case No. ICTR-99-50-A, Decision on Motions for Relief for Rule 68 Violations, 24 September 2012 (“Mugenzi Decision of 24 September 2012”), para. 7; Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement, 17 December 2004 (“Kordić and Čerkez Appeal Judgement”), para. 183.

[3] Ngirabatware Decision of 21 November 2014, para. 15. See also Mugenzi Decision of 24 September 2012, para. 7; Jean de Dieu Kamuhanda v. The Prosecutor, Case No. ICTR-99-54A-R68, Decision on Motion for Disclosure, 4 March 2010, para. 14. 

[4] Decision of 29 January 2016 [Decision on Niyitegeka’s Urgent Request for Orders Relating to Prosecution Witnesses, 29 January 2016 ]], para. 11.

[5] Ngirabatware Decision of 21 November 2014, para. 15; Callixte Kalimanzira v. The Prosecutor, Case No. ICTR-05-88-A, Judgement, 20 October 2010 (“Kalimanzira Appeal Judgement”), para. 18; Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Judgement, 29 July 2004 (“Blaškić Appeal Judgement”), paras. 265, 266. See also Kalimanzira Appeal Judgement, para. 20.

[6] Cf. Blaškić Appeal Judgement, para. 302.

[7] See supra note 51.

[8] Emphasis added.

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MICT Rule Rule 73;
Rule 146
Notion(s) Filing Case
Decision on Review - 19.06.2017 NGIRABATWARE Augustin
(MICT-12-29-R)

Pages 2-3:

CONSIDERING that, pursuant to Article 24 of the Statute of the Mechanism (“Statute”) and Rules 146, 147, and 148 of the Rules of Procedure and Evidence of the Mechanism (“Rules”) a request to have the Appeals Chamber review a final judgement will be granted, if the moving party shows that: (i) there is a new fact; (ii) the new fact was not known to the moving party at the time of the trial or appeal proceedings; (iii) the new fact could not have been discovered through the exercise of due diligence; and (iv) the new fact could have been a decisive factor in reaching the original decision;[1]

CONSIDERING that [REDACTED] contain new information of an evidentiary nature that relates to [REDACTED] that could not have been taken into account at trial or on appeal and therefore constitute a new fact,[2] which, if proved, could have been a decisive factor in reaching the original decision [REDACTED];[3]

[1] See Prosecutor v. Sreten Lukić, Case No. MICT-14-67-R.1, Decision on Sreten Lukić’s Application for Review, 8 July 2015, para. 5; Prosecutor v. Milan Lukić, Case No. MICT-13-52-R.1, Decision on Milan Lukić’s Application for Review, 7 July 2015, para. 5; Juvénal Kajelijeli v. The Prosecutor, Case No. ICTR-98-44A-R, Decision on Request for Review, 29 May 2013 (“Kajelijeli Review Decision”), para. 7; Prosecutor v. Veselin Šljivančanin, Case No. IT-95-13/1-R.1, Decision with Respect to Veselin Šljivančanin’s Application for Review, 14 July 2010 (“Šljivančanin Review Decision”), p. 2.

[2] See Kajelijeli Review Decision, paras. 24, 32, 43.

[3] See Decision of 5 May 2016 [Prosecutor v. Augustin Ngirabatware, Case No. MICT-12-29-R, Decision on Prosecution’s Motion Regarding Protected Witnesses and Ngirabatware’s Motion for Assignment of Counsel, 5 May 2016 (confidential)], paras. 3, 21, referring to [REDACTED].

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MICT Statute Article 24 MICT Rule Rule 146;
Rule 147;
Rule 148
Notion(s) Filing Case
Decision on Review - 19.06.2017 NGIRABATWARE Augustin
(MICT-12-29-R)

Page 3:

CONSIDERING that, pursuant to Rule 147 of the Rules, a hearing to consider evidence on the new fact (“Review Hearing”) will be held;

CONSIDERING that the Review Hearing will allow the parties to provide supporting and rebuttal evidence concerning the new fact and that, before setting the date and structure of the Review Hearing, it is appropriate to allow adequate time for preparation and to consider the scope of the evidence, if any, the parties wish to present;[1]

[1] Šljivančanin Review Decision [Prosecutor v. Veselin Šljivančanin, Case No. IT-95-13/1-R.1, Decision with Respect to Veselin Šljivančanin’s Application for Review, 14 July 2010], p. 4. Cf. [MICT] Rules 55 and 131 of the Rules.

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MICT Rule Rule 147
Notion(s) Filing Case
Decision on Review - 19.06.2017 NGIRABATWARE Augustin
(MICT-12-29-R)

Page 2:

FINDING, therefore, that a review of the Appeal Judgement is warranted;

NOTING that, in these circumstances, Ngirabatware is entitled to assigned counsel at the expense of the Mechanism for the purpose of assisting him in relation to the review proceedings;[1]

[1] See Ngirabatware Decision of 5 May 2016 [Prosecutor v. Augustin Ngirabatware, Case No. MICT-12-29-R, Decision on Prosecution’s Motion Regarding Protected Witnesses and Ngirabatware’s Motion for Assignment of Counsel, 5 May 2016 (confidential)], para. 20; Eliézer Niyitegeka v. The Prosecutor, Case No. MICT-12-16-R, Decision on Niyitegeka’s Request for Review and Assignment of Counsel, 13 July 2015, para. 8; Aloys Ntabakuze v. The Prosecutor, Case No. MICT-14-77-R, Decision on Ntabakuze’s Pro Se Motion for Assignment of an Investigator and Counsel in Anticipation of his Request for Review, 19 January 2015, para. 9.

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Notion(s) Filing Case
Decision on Pseudonyms of Witnesses - 22.05.2017 KARADŽIĆ Radovan
(MICT-13-55-A)

Pages 3-4:

RECALLING that, pursuant to Rule 71(B) of the Rules, the Prosecution shall, on request, permit the Defence to inspect any books, documents, photographs, and tangible objects in its custody or control, which are material to the preparation of the defence;

CONSIDERING, that the pseudonyms that Karadžić wishes to inspect are not books, documents, photographs, or tangible objects in the Prosecution’s custody or control, but rather information contained in confidential and ex parte filings;

FINDING, therefore, that Rule 71(B) of the Rules is not applicable;

[…]

CONSIDERING that disclosing pseudonyms of protected witnesses in this case who were the subject of Rule 86 proceedings may reveal details about non-public investigations in other jurisdictions[1] which were communicated to the Mechanism on a confidential and ex parte basis;

[1] See Response [Prosecutor v. Radovan Karadžić, Case No. MICT-13-55-A, Prosecution’s Response to Karadžić Motion to Compel Inspection of Pseudonyms of Witnesses Subject to Ex Parte Rule 86 Proceedings, 25 April 2017], para. 8. 

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MICT Rule Rule 71(B);
Rule 86
Notion(s) Filing Case
Decision on Contempt Proceedings - 26.04.2017 NGIRABATWARE Augustin
(MICT-12-29-R)

Pages 2-3:

CONSIDERING that, pursuant to Rule 90 of the Rules, the Mechanism in the exercise of its inherent power may hold in contempt those who knowingly and wilfully interfere with the administration of justice;

CONSIDERING, however, that in matters pertaining to State obligations, it is well-established that State officials “are mere instruments of a State and their official action can only be attributed to the State”,[1] that, subject to certain limited exceptions,[2] “[t]hey cannot be the subject of sanctions or penalties for conduct that is not private but undertaken on behalf of a State”, and “cannot suffer the consequences of wrongful acts which are not attributable to them personally but to the State on whose behalf they act”;[3]

CONSIDERING that “[i]t is the State which is bound by [the obligation to cooperate with the Mechanism under Article 28 of the Statute] and it is the State for which the official or agent fulfils his function that constitutes the legitimate interlocutor of the [Mechanism] and “shall therefore incur international responsibility for any serious breach of that provision by their officials”;[4]

CONSIDERING that the Mechanism “is endowed with the inherent power to make a judicial finding concerning a State’s failure to observe the provisions of the Statute or the Rules” and “also has a power to report this judicial finding to the [United Nations] Security Council”;[5]

CONSIDERING, however, that the Mechanism “is not vested with any enforcement or sanctionary power vis-à-vis States” and that “[i]t is primarily for its parent body, the [United Nations] Security Council, to impose sanctions, if any, against a recalcitrant State”; [6]

[…]

CONSIDERING that the Mechanism has, therefore, taken appropriate measures provided for in the Statute and the Rules to address Republic of Turkey’s non-compliance with the Order of 31 January 2017 and that the procedure envisaged under Rule 90 of the Rules is not applicable in this case;

[1] Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-AR108 bis, Judgement on the Request of the Republic of Croatia for Review of the Decision of the Trial Chamber II of 18 July 1997, 29 October 1997 (“Blaškić Appeal Decision”), para. 38. See also Prosecutor v. Radislav Krstić, Case No. IT-98-33-A, Decision on Application for Subpoenas, 1 July 2003 (“Krstić Appeal Decision”), paras. 20.

[2] For instance, those responsible for war crimes, crimes against humanity, and genocide cannot invoke immunity from national or international jurisdiction even if they perpetrated the crimes while acting in their official capacity (see Blaškić Appeal Decision, paras. 41, 42). See also Blaškić Appeal Decision, para. 51; Krstić Appeal Decision, paras. 24-27.

[3] Blaškić Appeal Decision, para. 38. See also Blaškić Appeal Decision, paras. 42-44.

[4] Blaškić Appeal Decision, para. 44.

[5] Blaškić Appeal Decision, para. 33. See also Blaškić Appeal Decision, para. 37.

[6] Blaškić Appeal Decision, para. 33.

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MICT Statute Article 28 MICT Rule Rule 8;
Rule 90
Notion(s) Filing Case
Decision on Contempt Proceedings - 26.04.2017 NGIRABATWARE Augustin
(MICT-12-29-R)

Pages 3-4:

CONSIDERING that the parties have made detailed submissions, where they, by and large, rely on the same well-established jurisprudence but disagree about its interpretation with respect to the remedies available in case of non-compliance by a State with an order issued by the Mechanism;[1]

CONSIDERING, therefore, that the information before me is sufficient to reach an informed decision, and, accordingly, that it is not necessary to invite further oral or written submissions on the matter; [2]

[1] See Response [Prosecution Response to Ngirabatware’s Motion to Initiate Contempt Proceedings, 12 April 2017], paras. 2-4, citing, inter alia, Blaškić Appeal Decision [Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-AR108 bis, Judgement on the Request of the Republic of Croatia for Review of the Decision of the Trial Chamber II of 18 July 1997, 29 October 1997], paras. 25, 28, 33, 34, 36, 38, 41, 43, 44; Krstić Appeal Decision [Prosecutor v. Radislav Krstić, Case No. IT-98-33-A, Decision on Application for Subpoenas, 1 July 2003], paras. 23-28; Reply [Reply to Prosecution Response to Motion to Initiate Contempt Proceedings and Request for Oral Hearing, 16 April 2017], paras. 7, 8, citing, inter alia, Blaškić Appeal Decision; Krstić Appeal Decision, para. 26.

[2] See, e.g., The Prosecutor v. Ramush Haradinaj et al., Case No. IT-04-84bis-AR73.1, Decision on Request for Oral Argument, 16 March 2011, p. 2, n. 8 and references cited therein.

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