Decision issued after close of proceedings

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