Briefs and/or Motions

Notion(s) Filing Case
Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

1952. The Appeals Chamber notes that Rule 73 of the Rules allows a party to move before a chamber by way of a motion for an appropriate ruling or relief and introduces the procedure for requesting certification to file an interlocutory appeal after a decision on a motion is rendered. Although its wording is not entirely explicit in this regard, Rule 73 of the Rules should be understood as imposing a duty on a chamber to render an order or decision on every validly filed motion, even if the motion is considered frivolous or an abuse of process.[1] This duty ensures that an accused can exercise his or her right of appeal and take such actions as provided for by Rule 73(C) of the Rules. […] A motion which can be considered as being rendered moot by subsequent actions still remains within the jurisdiction of a trial chamber to consider. […]

[1]           See, e.g., Hategekimana Appeal Judgement, para. 41 (“[V]alidly filed pending motions are not implicitly dismissed with the pronouncement or filing of the trial judgement.”); The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A, Decision on Pauline Nyiramasuhuko’s Motion to Void Trial Chamber Decisions, 30 September 2011, p. 2. See also Édouard Karemera et al. v. The Prosecutor, Case Nos. ICTR-98-44-AR72.5 and ICTR-98-44-AR72.6, Decision on Jurisdictional Appeals: Joint Criminal Enterprise, 12 April 2006, para. 23.

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ICTR Rule Rule 73 ICTY Rule Rule 73
Notion(s) Filing Case
Decision on Application to Strike Brief - 23.06.2005 MILOŠEVIĆ Slobodan
(IT-02-54-A-R77.4)

The Appellant filed his Appellant’s Brief after the deadline set by the Appeals Chamber and he did not submit a motion pursuant to Rule 127 of the ICTY Rules of Procedure and Evidence requesting that it be considered as validly filed and showing good cause to justify the delay. The Appeals Chamber, nevertheless, held that the Appellant’s Brief was deemed to be validly filed:

5.       The Scheduling Order issued by the Appeals Chamber is unambiguous.  The Appellant’s Brief was to be filed on 17 June 2005.  If good cause justified Counsel filing the Appellant’s Brief after the time stipulated in that Order, then that good cause should be presented to the Appeals Chamber, and a request for an extension of time should have been made before the filing deadline or a request that the Appellant’s Brief be received as validly filed pursuant to Rule 127 of the Rules should have been made at the time of the filing of the Appellant’s Brief out of time, if not before.  The fact that Counsel for the Appellant has not sought to justify his late filing and has requested the Appeals Chamber to receive it as validly filed after the fact is sufficient grounds for the Appeals Chamber to strike the Appellant’s brief as not validly filed, as is requested by the Prosecution.  Indeed, when clear time limits are transgressed without justifiable explanation, the Appeals Chamber is hesitant to do other than reject the filing.  In this case, however, the Appeals Chamber has determined that the interests of justice warrant it receiving the brief as validly filed despite Counsel’s breach of its Order. 

6.       Contempt proceedings are ancillary to proceedings at the Tribunal and arise from the inherent power of the Judges of this Tribunal to protect the integrity of their own proceedings.  However, this particular contempt appeal also touches upon fundamental due process rights of an Accused, Mr Milošević, charged with  particularly serious offences in a way that other contempt proceedings heard at this Tribunal have not. 

7.       A central argument made by the Appellant in his grounds of appeal is that the Trial Chamber should not have allowed his cross-examination to continue in the absence of the Accused and that, as a result, he should never have been put in the position of refusing an order of the Tribunal and subsequently being charged with contempt of the Tribunal for such a refusal.  Prior to the commencement of the contempt proceedings against him, the Appellant requested the Trial Chamber to reconsider its ruling on this basis.  The Trial Chamber refused to do so on the basis that it was not its role to reconsider such a decision, one which it already had determined was warranted, in the context of a proceeding of contempt against the Appellant.

8.       In these circumstances, if the Appeals Chamber refuses due to a procedural irregularity to accept the Appellant’s Brief as validly filed, then the Appellant is placed in the unfortunate position of being charged with contempt but denied the opportunity to respond fully to that criminal charge. Upon this basis, the Appeals Chamber has determined that the possible implications of this contempt proceeding for the rights of the Accused Mr Milošević warrant some leniency to the Appellant despite his Counsel’s failure to abide by the Scheduling Order of the Appeals Chamber.

9.       On the basis of the foregoing, the Appellant’s Brief filed on 20 June 2005 is deemed to be validly filed. […]  

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ICTR Rule Rule 116 ICTY Rule Rule 127
Notion(s) Filing Case
Order on Extension of Time - 21.09.2004 MILOŠEVIĆ Slobodan
(IT-02-54-AR73.7)

Trial Chamber III issued an oral decision on 2 September 2004 with written reasons to follow. Pursuant to Rule 73(B) of the Rules, Slobodan Milošević filed a request for certification to appeal the 2 September 2004 decision, which the Trial Chamber granted in an order issued 10 September 2004. Milošević subsequently filed a request with the Appeals Chamber for an extension of time in which to file the appeal against the 2 September 2004 decision, on the basis that the written reasons for the decision were still pending. The Appeals Chamber held, at p. 2:

NOTING that on 10 September 2004, Trial Chamber III issued an “Order on Request for Certification to Appeal the Decision of the Trial Chamber on Court Assigned Counsel,” which certified for appeal the question of whether representation by counsel should be imposed on Slobodan Miloševic (“Appellant”);

BEING SEIZED OF the “Request for Extension of Time to File Appeal Against the Trial Chamber’s Order Concerning the Representation of the Accused Dated 2 September 2004” filed by Appellant on 14 September 2004, in which Appellant requested an extension of the time limit to file a certified appeal under Rule 73(C)(ii);

CONSIDERING that, while Trial Chamber III has already issued an oral order finally resolving the question at issue in Appellant’s certified appeal, the Trial Chamber’s formal written decision has yet to issue;

DEEMING the lack of a reasoned written decision “good cause” for an extension of the time limit under Rule 127 of the Rules of Procedure and Evidence, since the lack of a written decision hampers counsel’s efforts to fully comprehend the reasons for the Trial Chamber’s decision;

HEREBY GRANT Appellant’s motion […] 

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ICTR Rule Rule 116 ICTY Rule Rule 127
Notion(s) Filing Case
Decision on Extension of Time - 23.03.2009 MILUTINOVIĆ et al.
(IT-05-87-A)

p. 3: NOTING that Pavković’s and Lukić’s Motions seek authorization to file their notices of appeal within 60 days from the filing of the B/C/S translation of the Trial Judgement on the ground that neither of them understand English;[1]

CONSIDERING that Counsel for Pavković and Lukić work in English;

RECALLING that, pursuant to Rule 108 of the Rules, the Appeals Chamber may, after the filing of the notice of appeal by a party and on good cause being shown by motion, authorize a variation of grounds of appeal;

CONSIDERING therefore that Pavković and Lukić will have the opportunity, if they so wish, to request variation of their grounds of appeal after having read the B/C/S translation of the Trial Judgement, provided that they show good cause under Rule 108 of the Rules;

FURTHER CONSIDERING that it would be unreasonable to delay the appellate proceedings until the filing of the B/C/S translation of the Trial Judgement;

FINDING therefore that Pavković and Lukić have not shown good cause for the requested extension;

 

pp. 3-4: CONSIDERING that the length of the Trial Judgement is unprecedented and that, in conjunction with the other factors referred by the Joint Motion, this case raises issues of significant complexity;[2]

CONSIDERING that it is in the interests of justice to ensure that the parties have sufficient time to prepare meaningful notices of appeal in full conformity with the applicable provisions;

FINDING that good cause exists for granting an extension on that basis[.]

See also, Decision on Joint Defence Motion Seeking Extension of Time to File Appeal Briefs, 29 June 2009.

[1] Pavković’s Motion [Motion for an Extension of Time to File Notice of Appeal with Annex” filed by the Defence for Nebojša Pavković, 9 March 2009], paras 2-4; Lukić’s Motion, para. 3.

[2] Cf. Prosecutor v. Enver Hadžihasanović and Amir Kubura, Case No. IT-01-47-A, Decision on Motions for Extension of Time, Request to Exceed Page Limit, and Motion to File a Consolidated Response to Appeal Briefs, 27 June 2006, para. 7 in which the Pre-Appeal Judge noted the “unusual length” of the Trial Judgement rendered in that case; Prosecutor v. Milomir Stakić, Case No. IT-97-24-A, Decision on the Defence Motion for Extension of Time, 26 April 2004, para. 5 mentioning the complexity of issues in that appeal as one of the factors in favour of an extension of time; Prosecutor v. Dario Kordić & Mario Čerkez, Case No. IT-95-14/2-A, Decision on Motions to Extend Time for Filing Appellant’s Briefs, 11 May 2001, para. 19 referring to the length and the complexity of the trial.

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ICTR Rule Rule 108 ICTY Rule Rule 108
Notion(s) Filing Case
Decision on Additional Evidence - 20.10.2011 POPOVIĆ et al.
(IT-05-88-A)

31. Finally, with respect to Popović’s attempt to submit another piece of additional evidence as part of his Reply,[1] the Appeals Chamber recalls that “a reply should be limited to arguments contained in the response” and that including any completely new submission of law or fact in a reply to a motion filed pursuant to Rule 115 of the Rules is improper.[2] Consequently, the Appeals Chamber rejects Popović’s request to admit the document contained in Annex 1 to the Reply as additional evidence on appeal.[3] In light of this conclusion, there is no need for the Appeals Chamber to address the parties’ arguments on the merits of admitting this document.

[1] Reply [Vujadin Popović’s Consolidated Reply to the Prosecution’s Response to Rule 115 Motion and Second Rule 115 Motion, 13 July 2011 (confidential)], paras 1, 12-13, Annex 1.

[2] Nahimana et al. Decision of 5 May 2006, paras 8, 15.

[3] This conclusion is without prejudice to Popović’s right to file a new motion under Rule 115 of the Rules in full compliance with the requirements recalled in this Decision. […]

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Notion(s) Filing Case
Decision on Stay of Provisional Release - 29.09.2004 STANIŠIĆ & SIMATOVIĆ
(IT-03-69-AR73)

24. As indicated above, Rule 65(E) establishes the procedure by which the Prosecution should indicate its intention to seek a stay of a decision of a Trial Chamber granting an accused’s provisional release application. However, while the Appeals Chamber is of the view that Rule 127 should not be relied upon by the Prosecution as a means of circumventing the correct procedure set out in the Rules, the Appeals Chamber is also not persuaded that the Trial Chamber erred in applying that Rule to receive the Prosecution’s application for a stay as validly filed. The sole purpose of Rule 127(A)(ii) is to allow for exception to a strict application of the Rules where “good cause” exists for allowing that exception.

25. In the Impugned Decision, the Trial Chamber did not provide clear reasons for its finding that “good cause” existed for the application of Rule 127(A)(ii) to the requirements of Rule 65(E), but it was clearly within the Trial Chamber’s discretion to do so. In its stay application, the Prosecution made clear its intention to appeal the Impugned Decision. The “good cause”, as recently recognised by the Appeals Chamber in Prlić when it granted the Prosecution’s application for a stay of provisional release orders of a Trial Chamber, is the preservation of the object of the Prosecution’s appeal against the provisional release of the accused.[1] Preservation of the object of the appeal was the “concrete motivation” of the Judges of the Trial Chamber in granting the Prosecution’s stay application.

[1] Prosecutor v Jadranko Prlić et al, Case IT-04-74-AR65.1; IT-04-74-AR65.2; IT-04-74-AR65.3, Decision on Motions for Re-Consideration, Clarification, Request for Release and Applications for Leave to Appeal, 8 September 2004.

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ICTR Rule Rule 65;
Rule 116
ICTY Rule Rule 65;
Rule 127
Notion(s) Filing Case
Decision on Time for Filing Brief - 02.08.2004 NIKOLIĆ Momir
(IT-02-60/1-A)

CONSIDERING that the recess of the Appeals Chamber does not mean that the time-limits prescribed under the Rules and the relevant Practice Directions stop running and that this ground does not constitute good cause within the meaning of Rule 127 of the Rules;

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ICTR Rule Rule 116 ICTY Rule Rule 127
Notion(s) Filing Case
Decision on Stay of Procedure and Assignment of Counsel - 04.04.2014 PRLIĆ et al.
(IT-04-74-A)

17. […] The Appeals Chamber acknowledges that neither the Rules nor the relevant Practice Directions require the inclusion of a word count or provide for a time-limit for the filing of Registry submissions pursuant to Rule 33(B) of the Rules. However, the Appeals Chamber has previously imposed time-limits and required the inclusion of a word count in Registry submissions where it found it necessary for the efficient administration of the proceedings and for ensuring equality.[1] Guided by the same considerations, the Appeals Chamber requests the Registry to include a word count in future Rule 33(B) submissions in response to motions filed in the present case and to make such submissions within ten days of the filing of the respective motion.

[1] Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-A, Decision on Krajišnik Request and on Prosecution Motion, 11 September 2007, paras 23, 25.

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ICTR Rule Rule 33(B) ICTY Rule Rule 33(B)
Notion(s) Filing Case
Decision on Referral - 05.10.2012 MUNYARUGARAMA Pheneas
(MICT-12-09-AR14)

9.       An appellant is required to file an appeal brief within fifteen days after filing the notice of appeal concerning a decision to refer a case.[1] Duty Counsel filed the Notice of Appeal on 11 July 2012.[2] Although the Notice of Appeal was re-filed before the Mechanism on 17 July 2012 pursuant to an order of the Presiding Judge of the ICTR’s Appeals Chamber,[3] the Appeals Chamber considers that the time-limit for Duty Counsel to file the Appeal Brief began to run on 11 July 2012, when he filed the Notice of Appeal. Consequently, Duty Counsel was required to file the Appeal Brief before the Mechanism by 26 July 2012. Duty Counsel failed to do so.

[1] The briefing deadlines set forth in Rule 14(E) of the Rules correspond with those set forth in Rule 11bis(H) of the ICTR Rules and paragraphs 5 and 6 of the ICTR’s Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings before the Tribunal, 8 December 2006 (“ICTR Practice Direction”). The ICTR Practice Direction applies mutatis mutandis to appeals filed before the Mechanism. See Practice Direction Related to Appeals, MICT/4, 5 July 2012 (“Practice Direction”), para. 1.

[2] See supra fn. 1.

[3] See Order of 17 July 2012 [Phénéas Munyarugarama v. The Prosecutor, Case No. ICTR-02-79-AR11bis, Order Regarding Notice of Appeal, 17 July 2012], p. 1.

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MICT Rule Rule 14(E)
Notion(s) Filing Case
Decision on Referral - 05.10.2012 MUNYARUGARAMA Pheneas
(MICT-12-09-AR14)

14.     An appellant “may” file a reply within four days of the filing of the response.[1] […]

15.     […] Moreover, the Appeals Chamber considers that striking the Reply Brief does not run counter to the interests of justice in the same manner as striking the Appeal Brief would in this case.[2] In this context, the Appeals Chamber considers that a reply is an optional filing and finds that it is not necessary to the consideration of this appeal. In view of the foregoing, the Appeals Chamber grants the Motion to Strike and shall not consider the Reply Brief.

16.     The Appeals Chamber emphasises that procedural time-limits are to be respected as they are indispensable to the proper functioning of the Mechanism.[3] Violations of time-limits, unaccompanied by any showing of good cause, will not be tolerated.[4] The Appeals Chamber warns Duty Counsel that failure to respect filing deadlines may result in a determination that Duty Counsel is ineligible to represent an accused or suspect before the Mechanism.[5]

[1] Rule 14(E) of the Rules. See also ICTR Practice Direction, para. 7; Practice Direction, para. 1.

[2] See supra para. 12.

[3] See The Prosecutor v. Ildephonse Hategekimana, Case No. ICTR-00-55B-R11bis, Decision on a Request for an Extension of Time to File a Cross-Appeal, 16 September 2008 (“Hategekimana Decision of 16 September 2008”), p. 4; Prosecutor v. Baton Haxhiu, Case No. IT-04-84-R77.5-A, Decision on Admissibility of Notice of Appeal against Trial Judgement, 4 September 2008 (“Haxhiu Decision of 4 September 2008”), para. 16; Kayishema and Ruzindana Appeal Judgement, para. 46.

[4] See, e.g., Ladislas Ntaganzwa v. The Prosecutor, Case No. ICTR-96-9-AR11bis, Decision on Admissibility of Notice of Appeal against Referral Decision, 5 July 2012, p. 2; Haxhiu Decision of 4 September 2008, para. 16; Kayishema and Ruzindana Appeal Judgement, para. 46. Cf. Hategekimana Decision of 16 September 2008, pp. 4, 5.

[5] See Rule 47(A)(ii) of the Rules.

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MICT Rule Rule 14(E);
Rule 154(A)(ii)
Notion(s) Filing Case
Decision on Referral - 05.10.2012 MUNYARUGARAMA Pheneas
(MICT-12-09-AR14)

10.     Rule 154(A)(ii) of the Rules allows a Chamber of the Mechanism, on good cause being shown by motion, to recognize as validly done any act done after the expiration of the prescribed time-limit. In this respect, the Appeals Chamber recalls that unforeseen logistical problems have been considered insufficient to establish good cause warranting extensions of filing deadlines.[1]

[1] See, e.g., Ildephonse Hategekimana v. The Prosecutor, Case No. ICTR-00-55B-A, Decision on Ildephonse Hategekimana’s Second Motion for an Extension of Time to File his Appellant’s Brief, 20 May 2011, paras. 3, 8, 10.

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MICT Rule Rule 154(A)(ii)
Notion(s) Filing Case
Decision on Referral - 05.10.2012 MUNYARUGARAMA Pheneas
(MICT-12-09-AR14)

12.     Even where counsel has failed to demonstrate good cause justifying the late filing, the Appeals Chamber may recognize submissions as validly filed where they are of such substantial importance to the appeal that doing so is in the interests of justice.[1] Extensions may also be granted where counsel’s conduct has not sufficiently protected the rights of the appellant.[2] The Appeals Chamber considers that the Appeal Brief is of substantial importance to the protection of the rights of the appellant. To reject it could result in the dismissal of Munyarugarama’s appeal.[3] Moreover, recognizing the Appeal Brief as validly filed would not prejudice the Prosecution, which responded to the Appeal Brief, or impact the timely consideration of this appeal.[4] Consequently, the Appeals Chamber finds that it is in the interests of justice to recognize the Appeal Brief as validly filed. 

[1] See Édouard Karemera and Matthieu Ngirumpatse v. The Prosecutor, Case No. ICTR-98-44-A, Decision on Matthieu Ngirumpatse’s Motion for an Extension of Time for the Filing of his Brief in Reply, 22 August 2012 (“Karemera Decision of 22 August 2012”), para. 7. See also Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-AR73.2, Decision on Joint Defence Interlocutory Appeal Concerning the Status of Richard Butler as an Expert Witness, 30 January 2008, para. 8; Prosecutor v. Ljube Boškoski and Johan Tarčulovski, Case No. IT-04-82-AR65.3, Decision on Ljube Boškoski’s Interlocutory Appeal on Second Motion for Provisional Release, 28 August 2006, para. 9.

[2] See Justin Mugenzi and Prosper Mugiraneza v. The Prosecutor, Case No. ICTR-99-50-A, Decision on Prosper Mugiraneza’s Motion for Extension of Time to File his Appellant’s Brief, 26 January 2012, para. 10.

[3] Rule 14(E) of the Rules states that an appellant “shall” file an appeal brief within fifteen days after the filing of the notice of appeal. Likewise, the ICTR Practice Direction, which applies mutatis mutandis to appeals filed before the Mechanism, states that an appellant “must” file the appeal brief within 15 days after the filing of the notice of appeal. See ICTR Practice Direction, para. 5; Practice Direction, para. 1. Failure to file an appeal brief may lead the Appeals Chamber to consider that the right of appeal has been waived. Cf. The Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-A, Judgement (Reasons), 1 June 2001 (“Kayishema and Ruzindana Appeal Judgement”), para. 46.

[4] See Karemera Decision of 22 August 2012, para. 7; Jean Uwinkindi v. The Prosecutor, Case No. ICTR-01-75-AR11bis, Decision on Uwinkindi’s Appeal against the Referral of his Case to Rwanda and Related Motions, 16 December 2011 (“Uwinkindi Decision of 16 December 2011”), para. 16.

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MICT Rule Rule 154(A)(ii)
Notion(s) Filing Case
Appeal Judgement II - 01.04.2011 MUVUNYI Tharcisse
(ICTR-2000-55A-A)

In footnote 7, the Appeal Chamber held that

[…] In paragraphs 11 and 12 of his Notice of Appeal, Muvunyi alleges that his sentence was not in accordance with established practice and further requests the Appeals Chamber to reduce his sentence in light of any findings which are set aside as not supported by facts or law. Muvunyi does not develop this argument in his Appeal Brief. Instead, he addresses this point in his Respondent’s brief. There, Muvunyi submits that his crime is less egregious than several cases in which the Tribunal has imposed a sentence at or below 15 years of imprisonment and that a sentence of time served adequately serves the ends of justice. See Muvunyi Response Brief, paras. 13-40. Generally, arguments made in support of the Notice of Appeal should be developed in the Appeal Brief. That said, this does not prevent the Appeals Chamber from considering arguments of substantial importance to the appeal developed elsewhere if their exclusion would lead to a miscarriage of justice. See, e.g., Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on the Prosecutor’s Motion to Pursue the Oral Request for the Appeals Chamber to Disregard Certain Arguments Made by Counsel for Appellant Barayagwiza at the Appeals Hearing on 17 January 2007, 5 March 2007, para. 15. In this case, however, Muvunyi’s submissions do not demonstrate any error in his sentence for the same reasons given in relation to the Prosecution’s challenge to the Trial Chamber’s comparative sentencing approach. See infra para. 72.

[1] Muvunyi I Appeal Judgement [Tharcisse Muvunyi v. The Prosecutor, Case No. ICTR-00-55A-A, Judgement, 29 August 2008], para. 18; Seromba Appeal Judgement, paras. 27, 100; Simba Appeal Judgement, para. 63; Muhimana Appeal Judgement, paras. 76, 167, 195; Gacumbitsi Appeal Judgement, para. 49; Ndindabahizi Appeal Judgement, para. 16.

[2] Muvunyi I Appeal Judgement, para. 18; Nahimana et al. Appeal Judgement, para. 326; Ntagerura et al. Appeal Judgement, para. 28; Kvočka et al. Appeal Judgement, para. 33.

[3] Muvunyi I Appeal Judgement, para. 140; The Prosecutor v. Tharcisse Muvunyi, Case No. ICTR-2000-55A-AR98bis, Decision on Appeal of Decision Denying the Motion for Judgement of Acquittal, 11 November 2009, para. 13.

[4] See, e.g., Rutaganda Appeal Judgement, para. 302; Kunarac et al. Appeal Judgement, para. 217.

[5] Trial Judgement, para. 47 (“Moreover, each of the Defence’s factual witnesses testified that Muvunyi attended a meeting in Gikore in mid to late May 1994 where he spoke to an audience.”). See also Muvunyi I Trial Judgement [The Prosecutor v. Tharcisse Muvunyi, Case No. ICTR-2000-55A-T, Judgement and Sentence, rendered orally on 12 September 2006, written judgement filed in English on 18 September 2006], paras. 202-205.

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Notion(s) Filing Case
Decision on Motions to Strike and Word Limit - 06.11.2009 HARTMANN Florence
(IT-02-54-R77.5-A)

23. The Appeals Chamber finds that the Appellant has failed to demonstrate that the factors cited in support of her Motion to Exceed Word Limit constitute exceptional circumstances. She has asserted the complexity of the legal and factual issues on appeal[1] without defining exactly what these complexities are. It is also well established that the number of grounds and sub-grounds of appeal,[2] the number of authorities cited,[3] and the extensiveness of the trial record and length of the trial[4] do not inevitably impede an appellant’s ability to present salient and cogent appeal briefs within the prescribed word limit, and that these factors do not therefore, in and of themselves, constitute exceptional circumstances. Regarding the Appellant’s assertion that an extension of the word limit is also necessitated by the Trial Chamber’s refusal to grant the Appellant’s requests for leave to appeal three of the Trial Chamber’s preliminary decisions, the Appeals Chamber notes that the Appellant has failed to explain precisely why this is the case. The mere fact that the Trial Chamber denied the requests for leave to appeal these three decisions does not invariably prevent the Appellant from concisely discussing the most relevant aspects of these decisions within the prescribed word limit.

24. While a number of the issues on appeal, including an examination of European and international law on freedom of expression, are important issues, the significance of the issues on appeal does not in and of itself prevent an appellant from presenting sound submissions on those issues within the set word limit.[5] The quality and effectiveness of an appellant’s brief are not contingent on the length of the submissions, but on the cogency and clarity of the arguments presented.[6] In the instant case the Appeal is somewhat unnecessarily repetitive.[7] Also, the discussion of certain related issues extending over numerous paragraphs could be consolidated into fewer paragraphs, and more concise phrasing used throughout the Appeal as a whole.[8]  In view of the foregoing therefore, the Appellant’s request for extension of the word limit is, by majority, Judge Morrison dissenting, denied.

[1] In the Case Against Florence Hartmann, Case No. IT-02-54-R77.5-A, Motion Seeking Extension of Word Limit for Appeals Brief, 9 October 2009, para. 9.

[2] Prosecutor v. Enver Hadžihasanović, Amir Kubura, IT-01-47-A, Decision on Defence Motion on Behalf of Enver Hadžihasanović Seeking Leave to Exceed Words [sic] Limit for the Appeal Brief, 22 January 2007, p. 3; Prosecutor v. Naser Orić, Case No. IT-03-68-A, Decision on Defence Motion for Extension of Word Limit for Defence Appellant’s Brief, 6 October 2006, p. 3 (“Orić Decision”).

[3] Prosecutor v. Sefer Halilović, Decision on Motion for Extension of Number of Words for Respondent’s Brief, 14 July 2006, pp. 3-4.

[4] Prosecutor v. Radoslav Brđanin, IT-99-36-A, Decision on Appellant’s Motion for Extension of Time Limit to File a Consolidated Brief and For Enlargement of Page Limit, 22 June 2005, para. 12.

[5] In the Orić Decision, the Appeals Chamber stated at p. 3 that “[…] although this appeal raises important legal and factual issues, the Defence is required to demonstrate exceptional circumstances which distinguish this case and necessitate an extension of the prescribed word limits.”

[6] Id.

[7] Thus, for example, para. 62 of the Appeal Brief in essence repeats para. 57. Similarly, as the Prosecution correctly observes at para. 20 of the Amicus Curiae Prosecutor’s Response, para. 196 of the Appeal Brief repeats verbatim an extract from an interview previously quoted at para. 172.

[8] For example, paras 57, 59, 63 and 64 are somewhat repetitive in substance and the phrasing used could be more concise.

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Other instruments Practice Direction on the Length of Briefs and Motions (ICTY).
Notion(s) Filing Case
Decision on Extension of Time - 24.07.2008 HATEGEKIMANA Idelphonse
(ICTR-00-55B-R11bis)

Having noted that Hategekimana and his Counsel work exclusively in French, the Appeals Chamber recalled the good cause requirement for an extension of time under Rule 116 of the Rules and granted the sought extension (p. 3):

CONSIDERING however that Rule 116 of the Rules provides that the Appeals Chamber “may grant a motion to extend a time limit upon a showing of good cause” and that “[w]here the ability of the accused to make full answer and Defence depends on the availability of a decision in an official language other than that in which it was originally issued, that circumstance shall be taken into account as a good cause under the present Rule”;    

[…]

CONSIDERING that the need for Hategekimana and his Counsel to be provided with the Rule 11bis Decision and the Prosecution’s written submissions in the present appeal proceedings in French in order to be able to make full answer and defence constitutes “good cause” within the meaning of Rule 116 of the Rules;

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ICTR Rule Rule 116 ICTY Rule Rule 127
Notion(s) Filing Case
Order Expunging Annexes - 30.11.2005 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

The Appeals Chamber has expunged from the record appendixes to the Respondent’s brief which contained legal and factual arguments:

P. 2: NOTING that, pursuant to Paragraph 4 of the Practice Direction on the Length of Briefs and Motions on Appeal,[1] “[a]ny appendix or book of authorities does not count towards the page limit”;

P. 3: NOTING that, pursuant to the same provision, “[a]n appendix or book of authorities will not contain legal or factual arguments, but rather references, source materials, items from the record, exhibits and other relevant, non-argumentative material”;

CONSIDERING that Annexures A through G of Appendix A contain legal and factual arguments as follows […];

P. 4: FINDING that Annexures A through G of Appendix A to the Consolidated Respondent’s Brief cannot be considered as appendixes under Paragraph 4 of the Practice Direction;

CONSIDERING that Annexure H of Appendix A “Chart of Factual Findings” and Appendix B “Authorities Cited” were filed in compliance with Paragraph 4 of the Practice Direction;

REJECT the filings of Annexures A through G of Appendix A to the Consolidated Respondent’s Brief;

DIRECT the Registry to return the aforementioned Annexures to the Prosecution and to expunge them from the record [.]

[1] Practice Direction on the Length of Briefs and Motions on Appeal, 16 September 2002, as amended (“Practice Direction”).

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Other instruments Practice Direction on the length of Briefs and Motions on Appeal (ICTR): Para. 4.
Notion(s) Filing Case
Decision on Review - 19.03.2009 NALETILIĆ Mladen
(IT-98-34-R)

7. The Appeals Chamber notes the Applicant’s failure to comply with the formal requirements for filings before the International Tribunal and to follow the instructions provided by the Registry and reminds the Applicant of the importance of respecting these requirements. The Appeals Chamber is further compelled to observe that the three letters of submission from the Applicant fall far below the average standard for motions to the International Tribunal. Finally, the Appeals Chamber notes the poor language of the Application and reminds the Applicant that it may lodge submissions in any of the official languages of the International Tribunal.

8. Nevertheless, in the interests of justice and specifically in order to avoid prejudice arising to the Applicant from the poor diligence of Counsel, the Appeals Chamber decided to examine the merits of the Application.

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Notion(s) Filing Case
Decision on Time-Limit - 14.12.2000 TADIĆ Duško
(IT-94-1-A-AR77)

CONSIDERING that […] in principle, Counsel must organise his commitments in such a way that he is able to meet deadlines […]

CONSIDERING that, in general, the Appeals Chamber need not take into account Counsel’s commitments when setting deadlines […]

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ICTR Rule Rule 116 ICTY Rule Rule 127
Notion(s) Filing Case
Decision on Admissibility of Notice of Appeal - 04.09.2008 HAXHIU Baton
(IT-04-84-R77.5-A)

16. The Appeals Chamber stresses once again that time-limits in the Rules must be observed. Finality is an important component of any criminal trial. Parties cannot reopen the proceedings at will. As the ICTR Appeals Chamber held in The Prosecutor v. Kayishema and Ruzindana, rejecting the entire appeal lodged by the Prosecution in that case:

Procedural time-limits are to be respected, … they are indispensable to the proper functioning of the Tribunal and the fulfilment of its mission to do justice. Violations of these time-limits, unaccompanied by any showing of good cause, will not be tolerated.[1]

[1] The Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-A, Judgement (Reasons), para. 46 (footnotes omitted). See also fn. 54 of that Judgement, which by referring to Rule 127 of the ICTY Rules of Procedure and Evidence states that “[t]he fact that an act performed after the expiration of a prescribed time may be recognized as validly done illustrates the following principle: timely filing is the rule, and filing after the expiration of a time-limit constitutes late filing, which is normally not permitted. However, if good cause is shown, the Rule establishes that despite the expiration of time and tardy filing, an act may be recognized as validly done, as a permitted derogation from the usual rule. Thus, the Rule reinforces the principle that procedural time-limits are to be respected.”

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ICTR Rule Rule 116 ICTY Rule Rule 127
Notion(s) Filing Case
Decision on Admissibility of Notice of Appeal - 04.09.2008 HAXHIU Baton
(IT-04-84-R77.5-A)

14. […] However, Haxhiu has requested the Appeals Chamber to recognize the late filing as validly done pursuant to Rules 127(A)(ii) and 127(B) of the Rules. He concedes that “counsel’s unfamiliarity with the Appeals Chamber’s procedure does not constitute good cause for an extension of time.”[1] Indeed, the Appeals Chamber recalls that “counsel participating in appeals proceedings are expected to familiarize themselves with the procedural requirements.”[2]

15. […] Given the existence of only a few judgements on appeal in contempt proceedings before the International Tribunal, Counsel is expected to have acquainted himself with the relevant jurisprudence on this issue. Accordingly, no good cause has been shown that would allow the Appeals Chamber to exercise its discretion in recognizing the filing of the Notice of Appeal as validly done.

[1] Response, p. 7.

[2] Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Decision on Motion by Radivoje Miletić for Access to Confidential Information, 9 September 2005, p. 2.   

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ICTR Rule Rule 116 ICTY Rule Rule 127
Notion(s) Filing Case
Appeal Judgement - 05.07.2001 JELISIĆ Goran
(IT-95-10-A)

25. The Appeals Chamber begins with the proposition that a party always has a right to be heard on its motion.  But the hearing need not always be oral.  In this regard, there is no provision in the Rules which provides for a right of a party to make oral submissions in connection with a written motion.  Similarly, the practice of the Tribunal allows for a decision on a written motion without any supplementary oral arguments, the motion itself being regarded as affording to the moving party a sufficient right to be heard. […]

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Notion(s) Filing Case
Decision on Expert Witness - 30.01.2008 POPOVIĆ et al.
(IT-05-88-AR73.2)

7. The Appeals Chamber recalls that “sufficient reasons constituting good cause” pursuant to Rule 127(A)(i) and (B) of the Rules are required to recognize a late filing as validly done.[1] Exceptionally, the Appeals Chamber has, in specific circumstances, found good cause to recognize a late filing as validly done in the interests of justice.[2] […] The Appeals Chamber recalls that Counsel “is under an obligation to give absolute priority to observe the time limits as foreseen in the Rules” and that “a trip abroad” does not constitute good cause for an extension of the time limit.[3] Absence from The Hague does not constitute good cause either.

See also the Joint Dissenting Opinion of Judge Liu and Judge Schomburg.

[1] Prosecutor v. Milan Lukić et al., Case No. IT-98-32/1-AR65.1, Decision on Defence Appeal Against Trial Chamber’s Decision on Sredoje Lukić’s Motion for Provisional Release, 16 April 2007 (“Lukić Decision”), para. 12.

[2] See, for example, Lukić Decision, para. 12, in which the Appeals Chamber found that the Trial Chamber did not abuse its discretion in admitting supplementary material to the Prosecution’s response filed one day after the deadline “in light of the relevance of the information contained in the Prosecution [supplementary material]” for the issue before it and the “opportunity afforded to the Appellant to reply to it”. See also Prosecutor v. Ljube Boškoski et al., Case No. IT-04-82-AR63.5, Decision on Ljube Boškoski’s Interlocutory Appeal on Second Motion for Provisional Release, 28 August 2006, para. 9, in which the Appeals Chamber admitted an appeal filed one day after the deadline because it considered it to be in the interests of justice due to the “substantial importance of the Appeal for the rights of the Appellants.”

[3] Prosecutor v. Ferdinand Nahimana et al., Case No. ICTR-99-52-A, Decision on Appellant Jean-Bosco Barayagwiza’s Motion for Extension of Time, 3 May 2007, p. 3. See, also Prosecutor v. Momir Nikolić, Case No. IT-02-60/1-A, Decision on Second Defence Motion to Enlarge Time for Filing of Replies, 1 April 2005, p. 4, in which the Pre-Appeal Judge stressed that “other professional commitments of counsel should not have any bearing on the responsibilities of counsel towards their client and the International Tribunal”.

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ICTR Rule Rule 116 ICTY Rule Rule 127
Notion(s) Filing Case
Sanction Decision - 21.03.2011 KAREMERA et al.
(ICTR-98-44-AR73.19)

13. The Prosecution argues that the Appeal should be summarily dismissed for lack of jurisdiction. In the Karemera Decision of 5 May 2009, the Appeals Chamber stated that “there is no appeal from a decision to impose sanctions under Rule 73(F) of the Rules.” The Appeals Chamber considers, however, that this statement of the law is unduly broad and should apply only in circumstances where a party seeks to appeal as of right.[2] This precedent should not be applicable to situations, as in this case, where the decision imposing sanctions was certified by the Trial Chamber. Therefore, to the extent that the Karemera Decision of 5 May 2009 restricted the consideration of certified decisions on sanctions under Rule 73(F) of the Rules,[3] the Appeals Chamber considers that there are cogent reasons to depart from this jurisprudence.

14. Accordingly, the Appeals Chamber considers that a decision to impose sanctions pursuant to Rule 73(F) of the Rules is subject to interlocutory appeal in accordance with Rule 73(B) of the Rules. The Appeal is therefore properly before the Appeals Chamber.

[1] Karemera Decision of 5 May 2009 [Édouard Karemera et al. v. The Prosecutor, Case No. ICTR-98-44-AR75.15, Decision on Joseph Nzirorera’s Appeal Against a Decision of Trial Chamber III Denying the Disclosure of a Copy of the Presiding Judge’s Written Assessment of a Member of the Prosecution Team, 5 May 2009], para. 21.

[2] Indeed, the decisions relied on by the Appeals Chamber for this proposition concerned appeals of right in situations where the decision imposing sanctions was not certified by the Trial Chamber. See Karemera Decision of 11 June 2004 [Édouard Karemera and Joseph Nzirorera v. The Prosecutor, Case No. ICTR-98-44-AR73.4, Decision on Interlocutory Appeals Regarding Participation of Ad Litem Judges, 11 June 2004], p. 4 (“a decision to impose monetary sanctions on counsel for frivolous motions or abuse of process pursuant to Rule 73(F) of the Rules is not subject to appeal under the Statute of the […] Tribunal or the Rules and […] in any event, the certification granted by the Trial Chamber in this case does not cover an appeal from the decision to impose such sanctions”) (emphasis added); Karemera Decision of 9 June 2004 [Joseph Nzirorera v. The Prosecutor, Case No. ICTR-98-44-AR73(F), Decision on Counsel’s Appeal from Rule 73(F) Decisions, 9 June 2004], p. 3 (“there is no basis for granting a right of appeal in the present case”) (emphasis added).

[3] Notably, the Appeals Chamber in the Karemera Decision of 5 May 2009 ultimately reviewed and reversed the Trial Chamber’s decision to impose sanctions, albeit relying on an alternative jurisdictional basis. See Karemera Decision of 5 May 2009, paras. 21-23, citing Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Judgement, 28 November 2007, paras. 73, 74. The English translation of the original French version was filed on 16 May 2008.

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ICTR Rule Rule 73(F)
Rule 73(b)
Notion(s) Filing Case
Decision on Request for Clarification - 06.08.2003 NIKOLIĆ Dragan
(IT-94-2-AR73)

CONSIDERING that motions for clarification will be granted only in exceptional circumstances, for example, when the operative part of the decision made by the Appeals Chamber is involved, and more particularly where the motion does not request a reconsideration of the decision;

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Notion(s) Filing Case
Decision on Witness List - 21.08.2007 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-AR73)

11. […] While the Practice Direction does not specifically provide for the possibility for an accused in a joint trial to file submissions in appeal proceedings initiated by his co-accused, this may be allowed in the circumstances of a given case, particularly where such accused has a specific interest in the matter and where considering such filing as admissible would be in the interests of justice and would not be prejudicial to the other parties.[1]

14. The Appeals Chamber held that to grant an accused, who has not obtained the required certification the standing to challenge a Trial Chamber decision on appeal in his response to an appeal filed by a co-accused would open the interlocutory appeal process to abuse. Where certification in accordance with Rules 73 (B) and (C) of the Rules is required, parties must obtain such certification if they intend to appeal a decision. Consequently, the Appeals Chamber considers that it will only take into consideration those arguments made by Mr. Ndayambaje and Mr. Ntahobali that are legitimately made in response to the certified appeal of the Appellant.

[1] Gotovina Decision [Prosecutor v. Ante Gotovina et al, Case No. IT-06-90-AR73.2, Decision on Ivan Čermak’s Interlocutory Appeal against Trial Chamber’s Decision on Conflict of Interest of Attorneys Čedo Prodanović and Jadranka Sloković, 29 June 2007], para. 12.

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Notion(s) Filing Case
Decision on Witness List - 21.08.2007 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-AR73)

11. […] The Appeals Chamber notes that in the Blaškić case, the Appeals Chamber of the ICTY considered that “the purpose of a response is to give a full answer to the issues raised in a motion by the moving party”.[1] […]

12. […] Most of the submissions in Mr. Ndayambaje’s Response relate solely to his case and challenge the Impugned Decision with regard to its order to him to file a revised witness list containing a maximum of thirty witnesses.[2] The Appeals Chamber finds that these arguments are inadmissible with respect to the appeal of the Appellant as they are not made in response to that appeal. For Mr. Ndayambaje to raise these arguments on his own behalf with respect to the restriction on the number of witnesses he is permitted to call, he needs to have obtained certification. He cannot attempt to appeal the Impugned Decision with the objective of having the Trial Chamber’s reduction of the number of his witnesses reversed by filing a response to a certified appeal of a co-accused.

13. […] Accordingly, Mr. Ntahobali’s Response challenges the Impugned Decision and the Trial Chamber’s use of its discretion.[3] The Appeals Chamber considers that, as Mr. Ntahobali did not seek and was not granted certification to appeal from the Impugned Decision, his arguments in this regard are inadmissible before the Appeals Chamber.

[1] Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-R, Decision on the Prosecution’s Motion Seeking a Declaration, 20 June 2006, p. 4; Prosecutor v. Ante Gotovina et al, Case No. IT-06-90-AR73.2, Decision on Ivan Čermak’s Interlocutory Appeal against Trial Chamber’s Decision on Conflict of Interest of Attorneys Čedo Prodanović and Jadranka Sloković, 29 June 2007, para. 12 (“Gotovina Decision”).

[2] See Ndayambaje’s Response, paras. 16 - 49.

[3] Ntahobali’s Response, paras. 15 – 35.

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Notion(s) Filing Case
Decision on Time Limits - 28.09.2005 NIYITEGEKA Eliézer
(ICTR-96-14-R)

On 20 June 2005 the Appeals Chamber instructed the Applicant, should he deem it necessary, to file additional submissions no later than twenty days after the date of assignment of Ms. Geraghty as Counsel (p. 2).[1] Counsel was assigned on 20 July 2005 (p. 2). On 17 August 2005 the Applicant acting pro se requested the admission of new evidence in order to allege a new fact (p. 3).[2] On 18 August 2005 the Defence requested an extension of time, inter alia, to file additional submissions (p. 3).[3] The Appeals Chamber found that in accordance with the Rules and the Decision of 20 June 2005, the final date for filing the additional submissions was 10 August 2005 and that, contrary to the Decision of 20 June 2005, Counsel failed to file the additional submissions relating to the new facts alleged by the Applicant within the prescribed time-frame (p. 7). The Appeals Chamber nevertheless held as follows (pp. 8, 9):

CONSIDERING that the arguments raised by the Defence in its belated request for extension of time[4] in the Defence Motion for filing additional submissions do not constitute good cause pursuant to Rule 116 of the Rules;

CONSIDERING, however, that Counsel’s failure to file the additional submissions within the time limit, ought not to be imputed to the Applicant, and that under the present circumstances it is in the interests of justice, that additional time be granted to file any additional submissions;

[…]

CONSIDERING […] that Applicant’s pro se filing on 17 August 2005 identifying a “new fact” should in the interest of justice be treated as timely filed, since the Applicant is not at fault for his Counsel’s failure to assist him properly in his filing or Counsel’s misunderstanding of the proper deadlines and because the Applicant has stated that he was unable to establish the existence of this new fact when filing his original Requests for Review;[5]

[1] Decision on Niyitegeka’s Urgent Request for Legal Assistance, filed on 20 June 2005 (“Decision of 20 June 2005”).

[2] Requête de Monsieur Eliézer Niyitegeka aux fins de l’admission d’un élément de preuve nouveau (Art. 54, 89, 107 et 120 du Règlement), 17 August 2005 (“Applicant’s Request of 17 August 2005”).

[3] Extremely Urgent Defence Motion Pursuant to Rule 116 for an Extension of Time Limit and Rule 68 (a), (b) and (e) for Disclosure of Exculpatory Evidence Both of the Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda and Response to Prosecutor’s Motion of 15 August 2005 Seeking a Decision, in the Absence of any Legal Submissions from the Applicant, 18 August 2005 (“Defence Motion”).

[4] Defence Motion, paras. 34 to 43.

[5] Applicant’s Request of 17 August 2005, para. 4.

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ICTR Rule Rule 116 ICTY Rule Rule 127
Notion(s) Filing Case
Appeal Judgement - 29.09.2014 NIZEYIMANA Ildéphonse
(ICTR-00-55C-A)

Fn. 881. […] Because Nizeyimana raised this contention for the first time in his Reply Brief, and thereby deprived the Prosecution of an opportunity to respond, the Appeals Chamber will not address it.

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Notion(s) Filing Case
Decision on Extension of Time for Respondent's Briefs - 27.07.2009 ŠAINOVIĆ et al.
(IT-05-87-A)

RECALLING, however, that the extension of time for the filing of the Defence appellant’s briefs was granted in light of the fact that “the volume of the trial record, including the length of the Trial Judgement, is unprecedented and that this case raises issues of significant complexity”;[1]

CONSIDERING that there is a considerable and unusual temporal overlap in the current deadlines for the submission of the Defence appellant’s briefs and their respondent’s briefs, which may have the effect of reducing the benefits of the extension of time accorded by the Decision of 29 June 2009;

CONSIDERING that it is in the interests of justice to ensure that the parties have sufficient time to prepare meaningful respondent’s briefs in full conformity with the applicable provisions;

FINDING that good cause exists for granting an extension on that basis

[1] Decision of 29 June 2009 [Decision on Joint Defence Motion Seeking Extension of Time to File Appeal Briefs, 29 June 2009], p. 4.

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Notion(s) Filing Case
Appeal Judgement - 20.05.2005 SEMANZA Laurent
(ICTR-97-20-A)

36. There is nothing in the Rules to suggest that different dates must be set for each party to file its closing brief.  […] [T]he purpose of a closing brief […] is not to respond to the other party’s closing brief, but to express its own position regarding the charges set out in indictment and the evidence led in the case. The practice generally followed at the ICTR and the ICTY is for both parties to file their closing brief at the same time.  […]

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ICTR Rule Rule 86(B) ICTY Rule Rule 86(B)
Notion(s) Filing Case
Decision on Motions to Strike - 04.02.2016 UWINKINDI Jean
(MICT-12-25-AR14.1)

6. The Appeals Chamber observes that the Rules are silent on the procedure for filing appeals from decisions on requests for revocation of referral.[1] However, it has held that such appeals should follow the same procedure as provided for in cases involving appeals from decisions on referral as set out in Rule 14(E) of the Rules.[2] In relevant part, Rule 14(E) of the Rules provides that the “[n]otice of appeal shall be filed within fifteen days of the decision”. This Rule is mirrored in paragraph 21 of the Practice Direction on Appeals, which provides that “[a] party wishing to appeal from a decision of […] a Trial Chamber pursuant to Rule 14 […] of the Rules shall file a notice of appeal within 15 days of the decision”.[3]

[1] The Appeals Chamber has held that a decision on whether or not to revoke the referral of a case is subject to appellate review. See Stanković Decision of 21 May 2014 [Prosecutor v. Radovan Stanković, Case No. MICT-13-51, Decision on Stanković’s Appeal against Decision Denying Revocation of Referral and on the Prosecution’s Request for Extension of Time to Respond, 21 May 2014], para. 9. Consequently, the Appeals Chamber finds that an appeal lies as of right from the Impugned Decision, which dismissed Uwinkindi’s request to revoke the order referring his case to Rwanda.

[2] Stanković Decision of 21 May 2014, para. 9.

[3] Practice Direction on Requirements and Procedures for Appeals, MICT/10, 6 August 2013 (“Practice Direction on Appeals”). See also Practice Direction on Appeals, paras. 22-24.

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ICTR Rule Rule 11 bis(H) ICTY Rule Rule 11 bis(I) MICT Rule Rule 14(E)
Notion(s) Filing Case
Decision on Motions to Strike - 04.02.2016 UWINKINDI Jean
(MICT-12-25-AR14.1)

9. The Appeals Chamber notes that Uwinkindi understands neither English nor French.[1] However, the Pre-Appeal Judge has previously found that Uwinkindi’s counsel can work in English and is able to discuss the contents of legal documents with his client.[2] Moreover, the Appeals Chamber reiterates that, on appeal, counsel bear the main burden in preparing submissions,[3] allowing sufficient time to discuss relevant issues with their clients,[4] as well as ensuring the timely submission of all pleadings. The determination of potential grounds of appeal falls primarily within the purview of counsel and good cause for extending a deadline to file a notice of appeal is normally not present where the judicial determination, which is the subject of the appeal, is made in a language in which counsel can work.[5] Accordingly, Uwinkindi has not shown the existence of good cause warranting the late filing of his Notice of Appeal.

[1] Prosecutor v. Jean Uwinkindi, Case No. MICT-12-25-R14.1, Decision on Jean Uwinkindi’s Motion for Translation of the Prosecution’s Response, 16 September 2015, p. 1.

[2] [Prosecutor v. Jean Uwinkindi, Case No. MICT-12-25-AR14.1,] Decision on Applications for Translations and Extensions of Time, 17 December 2015, p. 3.

[3] See Augustin Ndindiliyimana et al. v. The Prosecutor, Case No. ICTR-00-56-A, Decision on Bizimungu’s Motion for Extension of Time to File His Reply Brief, 8 March 2012, p. 2, referring to, inter alia, Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Decision on Motions for Extension of Time, 9 December 2004, p. 3.

[4] Cf. Justin Mugenzi and Prosper Mugiraneza v. The Prosecutor, Case No. ICTR-99-50-A, Decision on Prosper Mugiraneza’s Motion for Extension of Time to File His Appellant’s Brief, 26 January 2012, para. 10.

[5] Cf. Augustin Ndindiliyimana et al. v. The Prosecutor, Case No. ICTR-00-56-A, Decision on Motions for Extension of Time for the Filing of Appeal Submissions, 11 July 2011, paras. 9, 15; Pauline Nyiramasuhuko et al. v. The Prosecutor, Case No. ICTR-98-42-A, Decision on Motions for Extension of Time for the Filing of Appeal Submissions, 25 July 2011, para. 5.

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Notion(s) Filing Case
Decision on Motions to Strike - 04.02.2016 UWINKINDI Jean
(MICT-12-25-AR14.1)

10.     Nonetheless, even where good cause has not been demonstrated, the Appeals Chamber may recognize submissions as validly filed where they are of such substantial importance to the appeal that doing so is in the interests of justice.[1] The Appeals Chamber considers that the Notice of Appeal is of substantial importance to Uwinkindi’s appeal: to refuse to consider it would deny Uwinkindi the opportunity to challenge the Impugned Decision. The subject-matter of Uwinkindi’s appeal concerns the fairness of criminal proceedings in Rwanda in which he is charged, inter alia, with genocide, a crime that is punishable with a sentence of life imprisonment.[2] Furthermore, as the deadline for appealing decisions on requests for revocation is not set forth explicitly in the Rules and has only been clarified by the Appeals Chamber in a single decision, the principle of in dubio pro actionis and the interests of justice weigh in favor of recognizing the Notice of Appeal as validly filed despite the failure of Uwinkindi’s counsel to file it on time or seek an extension. Additionally, accepting the Notice of Appeal will not prejudice the Prosecution, which will have sufficient time to respond to the submissions that form the basis of Uwinkindi’s appeal. Consequently, the Appeals Chamber finds that it is in the interests of justice to recognize the Notice of Appeal as validly filed.

[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. 12.

[2] See Prosecutor v. Jean Uwinkindi, Case No. MICT-12-25, Monitoring Report for November 2015, 21 December 2015, para. 23 (“The [Rwandan] Prosecution request was that Mr. Uwinkindi be sentenced to life imprisonment for the genocide, as well as for crime against humanity with the sentences running concurrently”). The Appeals Chamber is not persuaded by the Prosecution’s contention that the Haxhiu Decision of 4 September 2008 is controlling with respect to the circumstances of this proceeding. That decision concerned an appeal against conviction for contempt of court that resulted in a punishment of a fine of 7,000 Euros. See Haxhiu Decision of 4 September 2008, para. 2. Uwinkindi is charged, inter alia, with the crime of genocide, which is materially of greater gravity and can be punishable with a sentence of life imprisonment.

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MICT Rule Rule 154(A)(ii)
Notion(s) Filing Case
Decision on Extension of Time - 21.10.2009 RENZAHO Tharcisse
(ICTR-97-31-A)

3. Mr. Renzaho now requests an extension of time to file his Appellant’s Brief within 75 days from the service to him and his Counsel of the French translation of the Trial Judgement.[1] In support of his request, Mr. Renzaho submits that because he is francophone and can neither speak nor read English, he is incapable of fully understanding the Trial Judgement, properly discussing grounds of appeal, and actively participating in the drafting of his Appellant’s Brief, particularly with respect to factual issues.[2] […]

4. Rule 116(A) of the Rules allows for the extension of time of any deadline on a showing of good cause. Pursuant to Rule 116(B) of the Rules, where the ability of the convicted person to make full answer and defence depends on the availability of a decision in an official language other than that in which it was issued, that circumstance shall be taken into account as a good cause. This provision may provide a basis for an extension of time, upon request, for the filing of the convicted person’s Appellant’s Brief pending the translation of the Trial Judgement into a working language of the Tribunal which he or she understands.[3]

5. Mr. Renzaho’s circumstances constitute good cause to extend the time for the filing of his Appellant’s Brief from the filing of the French translation of the Trial Judgement.

6. Mr. Renzaho’s Lead Counsel has the ability to work in both English and French,[4] and may therefore discuss the draft of the Appellant’s Brief with Mr. Renzaho, subject to his final approval once the French translation of the Trial Judgement is filed. It is therefore appropriate in this instance to allow a limited extension of time. 

See also, the “Decision on Tharcisse Renzaho’s Motion for Extension of Time for the Filing of Notice of Appeal and Brief in Reply” rendered in this case on 22 September 2009, where the Appeals Chamber held:

4. Pursuant to Rule 116(B) of the Rules, where the ability of the convicted person to make full answer and defence depends on the availability of a decision in an official language other than that in which it was issued, that circumstance shall be taken into account as a good cause. In practice, Rule 116(B) of the Rules does not provide a basis for an extension of time for the filing of a Notice of Appeal where the convicted person’s counsel can work in the language in which the Trial Judgement was pronounced.[5] This provision may, however, provide a basis for an extension of time, upon request, for the filing of the convicted person’s brief on appeal (“Appellant’s Brief”) pending the translation of the Trial Judgement into a working language of the Tribunal which he or she understands.[6]

5. In the present case, the information provided by the Registry shows that Mr. Renzaho’s Lead Counsel has indicated that French is his mother tongue and that he has a “good” knowledge of English, with the ability to read, speak, and write it fluently.[7] He is therefore able to discuss the contents of the Trial Judgement as well as any possible grounds of appeal with Mr. Renzaho. The determination of potential grounds of appeal falls primarily within the purview of Defence Counsel and, if an application is made after the Trial Judgement becomes available in French and good cause is shown, leave may be granted to vary the grounds of appeal under Rule 108 of the Rules.[8] For these reasons, Mr. Renzaho has not demonstrated good cause for an extension of time for the filing of his Notice of Appeal.

[1] Requête en Demande de Délai, 9 October 2009 (“Motion”), paras. 7, 11, p. 4.

[2] Motion, para. 9.

[3] See The Prosecutor v. Tharcisse Renzaho, Case No. ICTR-97-31-A, Decision on Tharcisse Renzaho’s Motion for Extension of Time for the Filing of Notice of Appeal and Brief in Reply, 22 September 2009, para. 4. See also Callixte Kalimanzira v. The Prosecutor, Case No. ICTR-05-88-A, Decision on Callixte Kalimanzira’s Motion for Leave to File an Amended Notice of Appeal and for an Extension of Time for the Filing of his Appellant’s Brief, 31 August 2009, para. 5; Protais Zigiranyirazo v. The Prosecutor, Case No. ICTR-01-73-A, Decision on Protais Zigiranyirazo’s Motion for an Extension of Time for the Filing of the Respondent’s Brief, 10 March 2009, paras. 4, 6; The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-A, Decision on Anatole Nsengiyumva’s Motion for Extension of Time for Filing Appeal Submissions, 2 March 2009, pp. 4-6; Protais Zigiranyirazo v. The Prosecutor, Case No. ICTR-01-73-A, Decision on Protais Zigiranyirazo’s Motion for an Extension of Time, 28 January 2009, p. 3. However, once a French version of the Trial Judgement is filed, Rule 116(B) does not contemplate good cause for an extension of time to file briefs on appeal where the convicted person’s counsel can work in the language in which it was filed. See also Siméon Nchamihigo v. The Prosecutor, Case No. ICTR-2001-63-A, Decision on Defence Motion for a French Translation of the Prosecutor’s Respondent’s Brief and for Extension of Time for the Filing of the Reply Brief, 8 July 2009, paras. 5, 6, 9; Protais Zigiranyirazo v. The Prosecutor, Case No. ICTR-01-73-A, Decision on Protais Zigiranyirazo’s Motion for an Extension of Time for the Filing of the Reply Brief, 3 July 2009, paras. 4-6, 9.

[4] See Form IL2 filed by Mr. Cantier, along with a copy of his attached curriculum vitae, on 15 September 2009.

[5] See, e.g., Callixte Kalimanzira v. The Prosecutor, Case No. ICTR-05-88-A, Decision on Callixte Kalimanzira’s Motion for an Extension of Time for the Filing of Notice of Appeal, 20 July 2009, para. 5 (“Kalimanzira Appeal Decision”); The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-A, Decision on Anatole Nsengiyumva’s Motion for Extension of Time for Filing Appeal Submissions, 2 March 2009, pp. 4, 5 (“Bagosora et al. Appeal Decision”); François Karera v. The Prosecutor, Case No. ICTR-01-74-A, Decision on François Karera’s Motion for an Extension of Time for Filing the Notice of Appeal, 21 December 2007, pp. 2, 3 (“Karera Appeal Decision”).

[6] See, e.g., Callixte Kalimanzira v. The Prosecutor, Case No. ICTR-05-88-A, Decision on Callixte Kalimanzira’s Motion for Leave to File an Amended Notice of Appeal and for an Extension of Time for the Filing of his Appellant’s Brief, 31 August 2009, para. 5; Protais Zigiranyirazo v. The Prosecutor, Case No. ICTR-01-73-A, Decision on Protais Zigiranyirazo’s Motion for an Extension of Time for the Filing of the Respondent’s Brief, 10 March 2009, paras. 4, 6; Bagosora et al. Appeal Decision, pp. 5, 6; Protais Zigiranyirazo v. The Prosecutor, Case No. ICTR-01-73-A, Decision on Protais Zigiranyirazo’s Motion for an Extension of Time, 28 January 2009, p. 3. However, once a French version of the Trial Judgement is filed, Rule 116(B) does not contemplate good cause for an extension of time to file briefs on appeal where the convicted person’s counsel can work in the language in which it was filed. See also Siméon Nchamihigo v. The Prosecutor, Case No. ICTR-2001-63-A, Decision on Defence Motion for a French Translation of the Prosecutor’s Respondent’s Brief and for Extension of Time for the Filing of the Reply Brief, 8 July 2009, paras. 5, 6, 9; Protais Zigiranyirazo v. The Prosecutor, Case No. ICTR-01-73-A, Decision on Protais Zigiranyirazo’s Motion for an Extension of Time for the Filing of the Reply Brief, 3 July 2009, paras. 4-6, 9.

[7] See Form IL2 filed by Mr. Cantier, along with a copy of his attached curriculum vitae, on 15 September 2009.

[8] Kalimanzira Appeal Decision, para. 6; Bagosora et al. Appeal Decision, p. 5; Karera Appeal Decision, p. 3. 

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ICTR Rule Rule 116 ICTY Rule Rule 127
Notion(s) Filing Case
Decision on Motions to Strike Parts of Response Brief - 22.07.2015 PRLIĆ et al.
(IT-04-74-A)

NOTING that the contested paragraphs of the Prlić Response Brief make submissions on the merits of certain arguments advanced in the ]orić Appeal Brief and the Stojić Appeal Brief;[1]

RECALLING that paragraph 5 of the Practice Direction[[2]]] provides that the “opposite party” shall file a “Respondent’s Brief”, the content of which “shall be limited to arguments made in response to [the Appellant’s Brief]”;

CONSIDERING that the “opposite party” means the Prosecution when the appellant is a convicted person, and a defendant when the appellant is the Prosecution, and that arguments made in response must be limited to those raised by the relevant opposite party;

CONSIDERING that the Appeals Chamber will only consider the arguments raised in the Prlić Response Brief to the extent that they respond to the arguments raised by the Prosecution in its appeal against Prlić;

FINDING that to the extent that the Prlić Response Brief contains submissions on the merits of the ]orić Appeal Brief and the Stojić Appeal Brief, the Appeals Chamber will disregard these submissions for the purposes of adjudicating the Prosecution’s appeal against ]orić and Stojić, without prejudice to any possible similar arguments advanced by the Prosecution in its appeal against ]orić and Stojić;

[1] [Jadranko Prlić’s Respondent’s Brief, 7 May 2015 (confidential)]], paras 58(f), 96-97, 116-117, 123-127 (Stojić), 142-146 (]orić).

[2] Practice Direction on Formal Requirements for Appeals from Judgement, IT/201, 7 March 2002. 

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Other instruments Practice Direction on Formal Requirements for Appeals from Judgement (ICTY); para 5
Notion(s) Filing Case
Decision on Prosecution Request for a Scheduling Order - 08.06.2006 BAGARAGAZA Michel
(ICTR-05-86-AR11bis)

At para. 3, the ICTR Appeals Chamber confirmed the ICTY Appeals Chamber’s finding that the delay for filing an appeal brief in an appeal from a Rule 11bis decision is 15 days:

3. Rule 11bis(H) sets a time frame of fifteen days for the filing of a notice of appeal, but is silent on the period for filing an appeal brief. Under the equivalent provision of the Rules of Procedure and Evidence for the ICTY, the Appeals Chamber has followed a practice of allowing fifteen days from the filing of the notice of appeal for the filing of the appeal brief on the merits.[1] The Appeals Chamber sees no reason to depart from this practice in considering appeals under Rule 11bis in this Tribunal.

[1] The Prosecutor v. Radovan Stanković, Case No. IT-96-23/2-AR11bis.1, Decision on Defence Application for Extension of Time to File Notice of Appeal, 9 June 2005 paras. 17, 18. See also The Prosecutor v. Paško Ljubičić, Case No. IT-00-41-AR11bis.1, Decision on Motion for Extension of Time, 10 May 2006, p. 1.

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ICTR Rule Rule 11 bis ICTY Rule Rule 11 bis
Notion(s) Filing Case
Decision on Additional Evidence - 05.05.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

8. […] In addition, the Appeals Chamber recalls that a reply should be limited to arguments contained in the response and that, to the extent the Rule 115 Reply included any completely new submission of law or fact, it was improper.[1]

15. […] However, the Appeals Chamber will only take into account arguments pertaining to documents referred to in the Rule 115 Motion but not initially annexed to it or to alleged changes between the documents filed with the Rule 115 Motion and those filed with the Corrigendum to Rule 115 Motion. The Appeals Chamber notes that the Prosecution Request of 10 February 2006 and the reply thereto may not be used indirectly as a vehicle to make new submissions that should have been made in the Response to Rule 115 Motion or in a timely reply to it. In conformity with this principle, the Appeals Chamber also denies the Appellant’s request to file “a full reply given that the original reply has been expunged from the record”.[2]

[1] Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-A, Decision on Prosecution’s Motion to Strike Portion of Reply, 30 September 2002, p. 3. Cf. generally, Practice Direction on Practice Direction on Formal Requirements for Appeals from Judgement, 4 July 2005, para. 6. Cf. also Prosecutor v. Blagoje Simić, Case No. IT-95-9-A, Decision on Prosecution’s Motion to Strike Parts of the Brief in Reply, 27 September 2004, p. 3; Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Decision on Prosecution’s Motion to Strike New Argument Alleging Errors by Trial Chamber Raised for First Time in Appellant’s Reply Brief, 28 January 2005, p. 3; Prosecutor v. Miroslav Deronjić, Case No. IT-02-61-A, Judgement on Sentencing Appeal, 20 July 2005, para. 145.

[2] [“Appellant’s Reply to the Prosecutor’s Request to File a Response to [sic] Limited to Fresh Additionla [sic] Evidence Appended to ‘The Appellant Jean-Bosco Barayagwiza’s Extremely Urgent Corrigendum to the Rule 115 Motion Filed 28 December 2005, Pursuant to the Order of the Pre Trial [sic] Appeal Judge of 23rd January 2006’”, 16 February 2006 (“Reply to the Prosecution Request of 10 February 2006”), para. 1.]

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ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Additional Grounds of Appeal - 17.08.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A )

54. The Appeals Chamber recalls that “a party may, without requesting leave from the Appeals Chamber, file a corrigendum to their previously filed brief or motion whenever a minor or clerical error in said brief or motion is subsequently discovered and where correction of the error is necessary in order to provide clarification”.[1] Consequently, while the Appeals Chamber is cognizant of the lateness of such filing, there was no need for the Appellant to seize it with a Motion in this respect.

55. Having reviewed the proposed corrections, the Appeals Chamber notes that most of the submitted amendments indeed correct grammatical or typing errors, or inaccurate references. While corrections 5, 11, 15, 29, 54, 65, 66, 76 seem to go slightly beyond clerical corrections, the Appeals Chamber considers that they, while usefully providing clarifications to the respective sentences, do not amount to any substantial changes of the Appellant’s Brief and can thus be equally permitted.

[1] The Prosecutor v. Željko Mejakić et al., Case No. IT-02-65-AR11bis.1 Decision on Joint Defense Motion for Enlargement of Time to File Appellants’ Brief, 30 August 2005, p. 3.

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Notion(s) Filing Case
Decision on Additional Grounds of Appeal - 17.08.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A )

19. […] Therefore, it is apparent that the Motion of 6 March 2006 is devoid of any arguments in relation to the requirements prescribed by Rule 108 of the Rules and the jurisprudence of the Appeals Chamber. In this respect, the Appeals Chamber finds that the Motion of 6 March 2006 is frivolous.

51. […] The Appeals Chamber reiterates that unjustified amendments would result in appellants being free to change their appeal strategy after they have had the advantage of reviewing the arguments in a response brief, interfering with the expeditious administration of justice and prejudicing the other parties to the case, […] which is unacceptable. In this sense, the Appeals Chamber finds the Motion of 5 July 2006 frivolous.

56. For the foregoing reasons, the Appeals Chamber [...], FINDS both Motions to be frivolous […] and imposes sanctions against the Appellant’s Counsel, pursuant to Rule 73(F), in the form of non-payment of fees associated with both Motions; and GRANTS the Motion of 7 July 2006.

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Notion(s) Filing Case
Decision on Additional Evidence - 08.12.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

14. [T]he Appeals Chamber notes that the Appellant filed the separate Corrigendum Motion to correct a clerical error in his Reply to the First Rule 115 Motion.[1] The Appeals Chamber recalls that “a party may, without requesting leave from the Appeals Chamber, file a corrigendum to their previously filed brief or motion whenever a minor or clerical error in said brief or motion is subsequently discovered and where correction of the error is necessary in order to provide clarification”.[2] Although it was unnecessary for the Appellant to file a motion to this extent, the Appeals Chamber finds that the submitted amendment indeed corrects an obvious clerical error and does not amount to any substantial change of the Appellant’s Reply to the First Rule 115 Motion. Therefore, the Appeals Chamber finds that the Appellant’s Reply to the First Rule 115 Motion should be read in accordance with the amendments proposed by the Corrigendum Motion and allowed by the present decision.

[1] Corrigendum Motion, para. 1.

[2] Decision on the Appellant Jean-Bosco Barayagwiza’s Corrigendum Motions of 5 July 2006, 30 October 2006, p. 2, quoting Prosecutor v. Željko Mejakić et al., Case No. IT-02-65-AR11bis.1, Decision on Joint Defense Motion for Enlargement of Time to File Appellants’ Brief, 30 August 2005, p. 3.

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Notion(s) Filing Case
Decision on Notice of Appeal - 26.03.2009 BOŠKOSKI & TARČULOVSKI
(IT-04-82-A)

15. With regard to the Motion for Sur-Reply, the Appeals Chamber recalls that full answers to issues raised in motions should be provided at the response stage and that no provision of the Rules nor the Practice Direction authorizes a party to file a sur-reply.[1]  However, 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”.[2]  In the present case, the issue of waiver was implicitly raised by the Prosecution in its Response and Motion to Strike[3] and Tarčulovski had the opportunity to respond to it.[4]  Therefore, the issue of waiver does not require leave to file a sur-reply. Given that the proposed Amended Notice of Appeal was filed as an annex to Tarčulovski’s Reply and Response to Motion to Strike, the Appeals Chamber considers that the Prosecution could only have raised matters related to it in its Reply to Motion to Strike.  Therefore, the Appeals Chamber accepts the Sur-Reply as validly filed to the extent that it refers to the compliance of the proposed Amended Notice of Appeal with the Practice Direction.

[1] Prosecutor v. Nikola Šainović & Dragoljub Ojdanić, Case No. IT-99-37-AR65, Decision on Provisional Release, 30 October 2002, para. 5. See also Ferdinand Nahimana, Jean-Bosco Barayagwiza & Hassan Ngeze v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Formal Requirements Applicable to the Parties’ Filings Related to the Appellant Jean-Bosco Barayagwiza’s Motion for Leave to Present Additional Evidence, 23 January 2006, p. 5.

[2] Prosecutor v. Mlađo Radić, Case No. IT-98-30/1-R.1, Decision on Prosecution Motion for Leave to File Sur-Reply to Defence Reply in Request for Review by Mlađo Radić, 9 May 2006, p. 3. See also Practice Direction of the Tribunal on Procedure for the Filing of Written Submissions in Appeal Proceedings Before the International Tribunal, IT/155 Rev 3, 16 September 2005, para. 19.

[3] Prosecution Response and Motion to Strike [Prosecution Response to Johan Tarčulovski’s Motion of 12 January 2009, and Motion to Strike, 22 January 2009], paras 18-20.

[4] Tarčulovski Reply and Response to Motion to Strike [1) Reply of Tarčulovski on Motion 2) Response to Prosecution’s Motion to Strike, 26 January 2009], paras 12-13.

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Notion(s) Filing Case
Decision on Leave to Respond to Oral Arguments - 05.03.2007 BRALO Miroslav
(IT-95-17-A)

13. The Appeals Chamber recalls that a brief in reply must be “limited to arguments in reply to the Respondent’s Brief” and therefore that it should not contain new allegations of error[1] Consequently, the Second Supplemental Reply Brief should have been limited to the Prosecution’s arguments in response to the Appellant’s supplemental arguments, which in turn should have been limited to the potential impact of the three elements of additional evidence admitted on appeal.[2] Without having sought leave from the Appeals Chamber, the Appellant chose to include in his Second Supplemental Reply Brief a “reply to assertions raised by the [P]rosecution for the first time during oral arguments that certain of Appellant’s factual arguments under the sub-heading 1.2(1) lack evidentiary support in the certified trial record”.[3] This procedure was improper.

[1] Practice Direction on Formal Requirements for Appeals from Judgement, para. 6; see Prosecutor v. Miroslav Deronjić, Case No. IT-02-61-A, Judgement on Sentencing Appeal, 20 July 2005, paras 145-146; Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Decision on Prosecution’s Motion to Strike New Argument Alleging Errors by Trial Chamber Raised for First Time in Appellant’s Reply Brief, 28 January 2005; Prosecutor v. Momir Nikolić, Case No. IT-02-60/1-A, Decision on Prosecution’s Motion to Strike, 20 January 2005, para. 18; Prosecutor v. Blagoje Simić, Case No. IT-95-9-A, Decision on Prosecution’s Motion to Strike Parts of the Brief in Reply, 27 September 2004.

Decision of 12 January 2007, paras 5, 20, 21 and 27. This evidence consists of: (i) “Prosecutor’s Motion for an ex parte in camera Hearing in Respect of the Admission of Newly-Discovered Evidence”, filed ex parte and under seal on 11 December 1997 in Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, and made public on 13 January 2006 (“Item 1”); (ii) public redacted version of “Prosecutor’s Revised Reply to Defense’s ‘Response to Prosecutor’s Request for Review or Reconsideration’”, filed on 4 September 2006 in Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-R (“Item 2”); and (iii) Letter dated 6 October 2006, from Peter M. Kremer, Q.C., Senior Appeals Counsel (“Item 3”).

The Appeals Chamber found that those Items “reveal[ed] the use of documents provided by the Appellant in 1997 and 2005 in other proceedings by the Prosecution” and were therefore “relevant to […] sub-ground of appeal 1.2, relating to the assessment of his cooperation with the Prosecution”. Finally, the Appeals Chamber found that, “had Items 1 to 3 been adduced at trial, those elements could have been a decisive factor in weighing his co-operation as a mitigating factor and could have changed the sentence”.

[3] Second Supplemental Reply Brief, para. 4.

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Notion(s) Filing Case
Decision on Supplementing Appeal Brief - 09.01.2007 BRALO Miroslav
(IT-95-17-A)

9. While it is true that, save for Rule 115(A) allowing parties to file supplemental briefs on the impact of the additional evidence admitted by the Appeals Chamber, no specific provision of the Rules explicitly regulates the possibility for the parties to supplement their briefs on appeal, it has been recognised in the jurisprudence that an appellant may supplement his or her brief, pursuant to Rule 127(A)(ii) and (B) of the Rules, by filing the said supplement with sufficient reasons constituting good cause for the Appeals Chamber to recognize it as validly filed.[1] In particular, the appellant must show that the proposed supplemental submissions are relevant to his grounds of appeal[2] and add substantial new information to the submissions which have already been made.[3]The new information at stake must be of sufficiently compelling importance to justify the admission of a supplemental brief at the stage where the briefing on appeal is completed.[4]

[1] Prosecutor v. Željko Mejakić et al., Case No. IT-02-65-AR1l bis.1, Decision on Second Joint Defense Supplement to Joint Appeal Brief in Support of Notice of Appeal, 16 November 2005 ("Mejakić Decision of 16 November 2005"), p. 4; Prosecutor v. Željko Mejakić et al., Case No. IT-02-65-AR11bis.1, Decision on Joint Defense Motion for Enlargement of Time to File Appellant's Brief, 30 August 2005, p. 3; See also Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Confidential Decision on Prosecution's Motion for Extension of Time, 26 February 2004, p. 2; Prosecutor v. Zejnil Delalić et al, Case No. IT-96-21-A, Decision on Hazim Delić's Motion for Leave to File Second Supplementary Brief, 1 February 2001 ("Delalić Decision of 1 February 200 1 "), para. 6. [2] Delalić Decision of I February 2001, para. 3.

[3] Ibid., para. 5.

[4] Ibid., para. 6.

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ICTR Rule Rule 116 ICTY Rule Rule 127
Notion(s) Filing Case
Decision Regarding Leave and Extensions - 24.06.2003 KORDIĆ & ČERKEZ
(IT-95-14/2-A)

6.         […] A heavy workload in other cases and inadequate resources to deal with them all is not an appropriate basis for seeking an extension of time.  Counsel for the prosecution in an appeal is expected to be provided by the Office of the Prosecutor with the resources necessary to carry the workload in the particular case, and his or her workload in other cases will ordinarily be rejected as the basis for an extension of time, just as it has ordinarily been rejected for counsel for the accused.  Where there are special circumstances personal to counsel in relation to the particular case (be it for the prosecution or the accused), the Appeals Chamber will always consider those circumstances in determining whether an extension of time will be granted.  However, a systemic failure by the Office of the Prosecutor to provide adequate resources for its counsel to do the work which is necessary in the particular case will not be considered.

 

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Notion(s) Filing Case
Decision on Motion for Clarification - 25.01.2002 MILOŠEVIĆ Slobodan
(IT-99-37-AR73, IT-01-50-AR73, IT-01-51-AR73)

4. In the opinion of the Appeals Chamber, Rule 111 requires an appellant to identify in the Appellant’s Brief the authorities upon which he or she relies for the arguments put forward by name and citation (including the relevant page or paragraph of those authorities) only. A Book of Authorities is produced only in order to assist the Appeals Chamber in its consideration of the appeal. It is not an appendix to a party’s Brief. Provided that the Book of Authorities does not contain any legal or factual arguments, and contains only source materials, its length is not limited by any of the provisions of the Practice Direction. However, parties should include within it only those authorities to which they believe the Appeals Chamber will need to refer. It is not usually necessary to include within a Book of Authorities copies of decisions of the Tribunal itself.

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ICTR Rule Rule 111 ICTY Rule Rule 111
Notion(s) Filing Case
Decision on Additional Evidence - 08.09.2009 MILOŠEVIĆ Dragomir
(IT-98-29/1-A)

17. […] The Appeals Chamber finds that Milošević’s Counsel’s failure to at least attempt to satisfy any of the requirements of Rule 115 of the Rules, especially after his previous motions filed under the same provision were rejected for similar reasons,[1] amounts to professional negligence. The Appeals Chamber thus finds the Motion frivolous in the sense of Rule 73(D) of the Rules[2] and issues a warning to Milošević’s counsel under Rule 46(A) of the Rules.

[…]

21. For the foregoing reasons, the Appeals Chamber DISMISSES the Motion in its entirety, FINDS the Motion to be frivolous and IMPOSES A SANCTION against Milošević’s Counsel, pursuant to Rule 73(D) of the Rules, in the form of non-payment of fees associated with the Motion.

[1] Decision on Second Motion [Decision on Dragomir Milošević’s Further Motion to Present Additional Evidence, 9 April 2009], paras 18-20.

[2] Cf. Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Appellant Jean-Bosco Barayagwiza’s Motions for Leave to Submit Additional Grounds of Appeal, to Amend the Notice of Appeal and to Correct his Appellant’s Brief, 17 August 2006, para. 19. 

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ICTR Rule Rule 46;
Rule 73(F)
ICTY Rule Rule 46;
Rule 73(D)
Notion(s) Filing Case
Decision on Extension of Time for Respondent's Briefs - 27.07.2009 ŠAINOVIĆ et al.
(IT-05-87-A)

RECALLING, however, that the extension of time for the filing of the Defence appellant’s briefs was granted in light of the fact that “the volume of the trial record, including the length of the Trial Judgement, is unprecedented and that this case raises issues of significant complexity”;[1]

CONSIDERING that there is a considerable and unusual temporal overlap in the current deadlines for the submission of the Defence appellant’s briefs and their respondent’s briefs, which may have the effect of reducing the benefits of the extension of time accorded by the Decision of 29 June 2009;

CONSIDERING that it is in the interests of justice to ensure that the parties have sufficient time to prepare meaningful respondent’s briefs in full conformity with the applicable provisions;

FINDING that good cause exists for granting an extension on that basis

[1] Decision of 29 June 2009 [Decision on Joint Defence Motion Seeking Extension of Time to File Appeal Briefs, 29 June 2009], p. 4.

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ICTR Rule Rule 116 ICTY Rule Rule 127
Notion(s) Filing Case
Decision on Page Limits - 26.07.2002 KRNOJELAC Milorad
(IT-97-25-A)

CONSIDERING that the quality and effectiveness of appeal briefs does not depend on their length but on the clarity and cogency of the presented arguments and that, therefore, excessively long briefs do not necessarily serve the cause of an efficient administration of justice; 

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Notion(s) Filing Case
Decision on Additional Evidence - 26.02.2001 KUPREŠKIĆ et al.
(IT-95-16-A )

9. […] The Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings Before the International Tribunal (IT/155) sets out the time-limits for the filing of documents (responses and replies) before the Appeals Chamber. Where a party cannot, or does not, file its document before the expiry of the time-limit, then the filing should be accompanied by an application for an extension of time, setting out the reasons why the party filing the document could not adhere to the prescribed time-limit. If the Appeals Chamber accepts the reasons set out therein, then the Chamber will take account of the information contained within the document. If the document is filed beyond the expiry of the time-limit, and unaccompanied by an application for an extension of time, the Appeals Chamber is not required to either accept the filing or place any reliance upon it.

10. Where a document is filed after the expiry of the time-limit, without application for an extension of time, it does not follow that it will be automatically rejected. The Appeals Chamber may exercise its discretion to accept the document where the information contained therein is of particular importance or significance. Parties filing a late document must not, however, presume that their document will meet this standard. To avoid any risk of a late document not being accepted by the Appeals Chamber, an application for an extension of time should always be filed.

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Other instruments Practice Direction on Procedure for the Filing of Written Submissions in appeal Proceedings Before the International Tribunal (ICTY).
Notion(s) Filing Case
Decision on Additional Evidence - 26.02.2001 KUPREŠKIĆ et al.
(IT-95-16-A )

70. Moreover, ordinarily a reply is restricted to dealing with issues raised in an opposing party’s response. If a party raises a new argument or request for the first time in a reply then the opposing party is deprived of an opportunity to respond. This could harm the fairness of the appeal proceedings.

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Notion(s) Filing Case
Order Granting Page Extension - 02.05.2003 KVOČKA et al.
(IT -98-30/1-A)

CONSIDERING that the appropriate length of a response is primarily dictated by the nature and scope of the issues which it needs to address and not necessarily by the size of the material submitted by the applicant;

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Notion(s) Filing Case
Decision on Extension of Time for Notice of Appeal - 22.12.2003 GALIĆ Stanislav
(IT-98-29-A)

CONSIDERING that determination of the potential grounds of appeal from a judgement, that may include errors of fact and law, are issues for the determination of both the appellant and his or her counsel;

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Notion(s) Filing Case
Decision on Conflict of Interest (Čermak) - 29.06.2007 GOTOVINA et al.
(IT-06-90-AR73.2)

12. […] The Appeals Chamber finds that, while the Practice Direction does not specifically provide for the possibility for a co-accused to file submissions in appeals proceedings initiated by another co-accused, it is clear from the procedural background of the case that Gotovina does have a specific interest in the matter and it is therefore in the interests of justice to consider Gotovina’s Response as validly filed. Moreover, the Appeals Chamber notes that the Appellant suffers no prejudice from such finding since he was granted the opportunity to reply to Gotovina’s Response.[1]

[1] Decision on Ivan Čermak’s Urgent Motion for Leave to File a Consolidated Reply to Responses Filed by the Prosecutor and Ante Gotovina, 16 May 2007, pp. 3-4.

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Notion(s) Filing Case
Decision Regarding Expedited Adjudication - 22.10.2014 STANIŠIĆ & ŽUPLJANIN
(IT-08-91-A)

15. […] The Appeals Chamber recalls the well-established practice at this Tribunal that allegations of partiality of trial judges are dealt with in the course of the normal appellate process, i.e., in the appeal judgement.[1] The Appeals Chamber further recalls that it has already made a determination, in the present case, that it will make its own assessment of the issues relating to the alleged partiality of Judge Harhoff in the course of the normal appellate process.[2]

16. With respect to the Applicants’ first argument, the Appeals Chamber recalls its previous finding that there has been no “general finding” or “final determination” regarding Judge Harhoff’s alleged partiality in this case and that thus there is no basis for a claim of “ongoing prejudice” during the appeal proceedings.[3] The fairness and validity of the Trial Judgement is yet to be determined by the Appeals Chamber. The Appeals Chamber therefore rejects the Applicants’ argument that the appeal proceedings are themselves improper and unfair because the Trial Judgement is invalid. In relation to the Applicants’ arguments that the Grounds of Appeal are “credible” based on the Appeals Chamber’s decision to admit the Letter as additional evidence on appeal, the Appeals Chamber notes that this decision was made in the context of, and is limited to Rule 115 of the Rules. The Appeals Chamber emphasises its previous conclusion that the Rule 115 Decision “pertain[s]] strictly to the admissibility [of the Letter ]] and not to the merits of the appeals filed by the parties”.[4] The Appeals Chamber further emphasises that the credibility and merits of the appeals filed by the parties will be determined in due course by the Appeals Chamber. It is therefore not necessary to depart from the Tribunal’s well-established practice[5] on the basis that these proceedings “[flow] […] from an invalid Trial Judgement” as alleged by the Applicants.[6] The Applicants’ arguments in this regard are therefore without merit.

17. Regarding the Applicants’ second and third arguments, the Appeals Chamber notes that under Articles 20(1) and 21(4)(c) of the Statute, the Appeals Chamber has the primary obligation to ensure that a person convicted by a Trial Chamber has a fair and expeditious process on appeal. The Appeals Chamber is now seised of the fully briefed appeals. It is considering them and will deliver its judgement in due course.[7] The Appeals Chamber observes that the Applicants’ arguments of judicial economy and potential undue delay in the proceedings are based on a speculative premise as to the outcome of the appeals as a whole.[8] However, as previously emphasised, the outcome of the appeals lodged by the parties will be determined in the appeal judgement.[9] Therefore, the Appeals Chamber is not satisfied that “possible remedies” which might be ordered by it merit a departure from the practice of this Tribunal. The Appeals Chamber further emphasises that proceeding through the normal appellate process in the present case does not prejudice the Applicants. For these reasons, the Appeals Chamber is not convinced that judicial economy or the interests of justice require it to depart from the normal appellate process, i.e. considering the appeals as whole.

18. Consequently, the Appeals Chamber finds no justification to expedite adjudication of the Grounds of Appeal. 

[1] See [Prosecutor v. Mićo Stanišić and Stojan Župljanin, Case No. IT-08-91-A, Decision on Mićo Stanišić’s Motion Requesting a Declaration of Mistrial and Stojan Župljanin’s Motion to Vacate Trial Judgement, 2 April 2014 (“2 April 2014 Decision”)]], para. 21, fn. 72, and references cited therein.

[2] [Prosecutor v. Mićo Stanišić and Stojan Župljanin, Case No. IT-08-91-A, Decision on Mićo Stanišić’s Motion Seeking Reconsideration of Decision on Stanišić’s Motion for Declaration of Mistrial and Župljanin’s Motion to Vacate Trial Judgement, 24 July 2014 (“Reconsideration Decision”)]], para. 15. See also 2 April 2014 Decision, paras 21, 25.

[3]2 April 2014 Decision, para. 25; Reconsideration Decision, para. 14.

[4] [Prosecutor v. Mićo Stanišić and Stojan Župljanin, Case No. IT-08-91-A, Decision on Mićo Stanišić’s Motion Seeking Admission of Additional Evidence Pursuant to Rule 115, 14 April 2014]], para. 26.

[5] See supra, para. 15.

[6] [Prosecutor v. Mićo Stanišić and Stojan Župljanin, Case No. IT-08-91-A, Joint Motion on Behalf of Mićo Stanišić and Stojan Župljanin Seeking Expedited Adjudication of Their Respective Grounds of Appeal 1Bis and 6, 25 August 2014, (“Motion”)]], para. 3. See supra, para. 10.

[7] See ₣[Prosecutor v. Mi}ćo Stani{ši}ć and Stojan Župljanin, Case No. IT-08-91-A,ğ]] Status Conference, 24 July 2014, T. 27.

[8] See Motion, paras 4-5.

[9] See supra, para. 15. 

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Notion(s) Filing Case
Decision on Jurisdiction - 08.12.2005 DELIĆ Rasim
(IT-04-83-AR72)

3. The Appeals Chamber does not accept that Counsel’s commitment to other cases at this Tribunal constitutes “good cause” pursuant to Rule 127.  Counsel assigned to represent accused at this Tribunal are expected to organise their work schedules in order to meet their obligations to respect the time limits for filings on appeals laid down in the Practice Direction.[1]  Counsel would have been able to calculate, upon the filing of the Appellant’s Appeal, the due date for the Prosecution Response and subsequently the Appellant’s Reply and is expected to have organised her work schedule to meet those due dates.  Accordingly, “good cause” has not been shown, and the Reply of the Appellant will not be considered in this Appeal.

[1] Prosecutor v Mejakić et al., Case No: IT-02-65-AR11bis.1, Decision on Joint Defense Motion for Leave to File Supplemented Appeals Brief, 16 November 2005, page 5.

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Notion(s) Filing Case
Appeal Judgement - 04.12.2001 KAYISHEMA & RUZINDANA
(ICTR-95-1-A)

46.     The Appeals Chamber further finds that the failure to file an Appellant’s brief in support of a notice of appeal carries serious consequences as to the admissibility of the entire appeal. Rule 111 states that an Appellant’s brief shall contain all the argument and authorities. An appeal, which consists of a Notice of Appeal that lists the grounds of Appeal but is not supported by an Appellant’s brief, is rendered devoid of all of the arguments and authorities; the right to appeal may therefore be considered as having been waived if the Notice of Appeal is not followed by the timely filing of an Appellant’s brief. The Appeals Chamber notes that procedural time-limits are to be respected, and that they are indispensable to the proper functioning of the Tribunal and to the fulfilment of its mission to do justice.[1] Violations of these time-limits, unaccompanied by any showing of good cause, will not be tolerated.[2]

[1] See Istituto di Vigilanza v. Italy, 265 Eur. Ct. H.R. (ser. A) at 35 (1993) (“…the finding is inescapable that the (European Commission of Human Rights) exceeded—albeit by only one day—the time allowed it.  Furthermore, no special circumstance of a nature to suspend the running of time or justify its starting to run afresh is apparent from the file.  The request bringing the case before the Court is consequently inadmissible as it was made out of time.”); Morganti v. France, 320 Eur. Ct. HR (ser. A) at 48 (1995) (“(The Court) notes that the explanations put forward do not disclose any special circumstance of a nature to suspend the running of time or justify its starting to run afresh…. It follows that the application bringing the case before the Court is inadmissible as it is out of time.”); Kelly v. U.K., 42 Eur. Comm’n H.R. Dec. & Rep. 207, 208 (1985)(“Delays in pursuing the case are only acceptable insofar as they are based on reasons connected with the case…. Notwithstanding the applicant’s initial submission of 10 October 1980, the Commission considers in the present case 27 April 1983 to be the date of introduction of the application and it follows that the application, having thus been introduced out of time, must be rejected under Article 27, para. 3 of the Convention.”); Nauru v. Australia, 97 I.L.R. 20 (I.C.J.) (1992)  (“The Court recognizes that, even in the absence of any applicable treaty provision, delay on the part of a claimant State may render an application inadmissible.”).

[2] In this regard, a brief discussion of Rule 127 of ICTY Rules of Procedure and Evidence is useful.  The Rule states:

(A)     Save as provided by paragraph (C), a Trial Chamber may, on good cause being shown by motion,

(i)             enlarge or reduce any time prescribed by or under these Rules;

(ii)            recognize as validly done any act done after the expiration of a time so prescribed on such terms, if any, as is thought just and whether or not that time has already expired.

(B)    In relation to any step falling to be taken in connection with an appeal or application for leave to appeal, the Appeals Chamber or a bench of three Judges of that Chamber may exercise the like power as is conferred by paragraph (A) and in like manner and subject to the same conditions as are therein set out.

… (emphasis added).

The fact that an act performed after the expiration of a prescribed time may be recognized as validly done illustrates the following principle: timely filing is the rule, and filing after the expiration of a time-limit constitutes late filing, which is normally not permitted.  However, if good cause is shown, the Rule establishes that despite the expiration of time and tardy filing, an act may be recognized as validly done, as a permitted derogation from the usual rule.  Thus the Rule reinforces the principle that procedural time-limits are to be respected.

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ICTR Rule Rule 111
ICTY Rule Rule 111;
Rule 127
Notion(s) Filing Case
Decision on Motion to Strike Appeal Brief - 22.08.2013 NIZEYIMANA Ildéphonse
(ICTR-00-55C-A)

13. Footnotes, of course, count toward the overall word limit, pursuant to paragraph C(4) of the Practice Direction on Length of Briefs.[1] I note that many spaces between numbers and punctuation marks were omitted from the footnotes of the Appeal Brief. The Appeal Brief indicates a word count of 39,866 words, such that if all the necessary spaces were included, the Appeal Brief would exceed the word limit set out in the Appeal Decision of 16 April 2013. The Appeals Chamber has previously held that such conduct is contrary to both the spirit and letter of the relevant Practice Directions.[2]

[…]

15. Turning to the Prosecution's assertion that Mr. Nizeyimana improperly included argumentation in the Annexes, the Appeals Chamber has previously held that the proper place for arguments in support of a particular ground of appeal, as well as any supporting authority, is the appeal brief.[3] An appellant therefore cannot simply refer in his appeal brief to other documents and expect those grounds of appeal to be preserved.[4]

16. Pursuant to paragraph C(4) of the Practice Direction on Formal Requirements for Appeals from Judgement, appendices do not count towards the word limit provided they do not contain legal or factual arguments, but only non-argumentative material.[5] Furthermore, an annex that provides description for some references cited does not necessarily lead to the conclusion that the annex has argumentative content.[6] The interests of justice may even allow for a very limited amount of argumentative material in an annex, for which the parties have some discretion, as long as it is not abused and which will be determined on a case-by-case basis.[7] In this regard, even if an annex provides a clear overview of a party's positions, this does not necessarily prove that the annex is argumentative.[8]     

[…]

19. […] [A]n appellant has discretion as to how to develop arguments and how to allot the allowed space between arguments.

[1] In the Case Against Florence Hartmann, Case No. IT-02-54-R77.5-A, Decision on Further Motions to Strike, 17 December 2009, para. 11

[2] Hartmann Appeal Decision of 17 December 2009, para. 11. See also The Prosecutor v. Pauline Nyiramasuhuko et al., Case No.ICTR.-98-42-A, Order Issuing a Formal Warning to Counsel for Ntahobali, Kanyabasbi, and Ndayambaje, 15 April 2013, pp. 1, 2.

[3] Hartmann Appeal Decision of 17 December 2009, para. 12, referring to Prosecutor v. Naser Orić, Case No. IT-0368- A, Decision on the Motion to Strike Defence Reply Brief and Annexes A-D,7 June 2007, paras. 8-12.

[4] See Hartmann Appeal Decision of 17 December 2009, para. 12.

[5] See, e.g., The Prosecutor v. Callixte Nzabonimana, Case No. ICTR-98-44D-A, Decision on Prosecution's Motions to Strike and for Extension of Time, and on Nzabonimana's Motions for Extension of Words and for Remedies. 17 June 2013, pp. 2, 3; Prosecutor v. Ante Gotovina and Mladen Markač. Case No. IT-06-90-A, Decision on Ante Gotovina's Motion to Strike the Prosecution's Response to Gotovina's Second Rule 115 Motion, 9 May 2012 ("Gotovina Appeal Decision of 9 May 2012"), p. 2; Prosecutor v. Ante Gotovina and Mladen Markač, Case No. IT-06-90-A, Decision on Prosecution's Motion to Strike Ante Gotovina's Reply Brief, 18 October 2011 ("Gotovina Appeal Decision of 18 October 2011"), p. 1.

[6] Gotovina Appeal Decision of 18 October 2011, p. 2.

[7] Gotovina Appeal Decision of 9 May 2012, p. 2; Gotovina Appeal Decision of 18 October 2011, p. 2.

[8] See Gotovina Appeal Decision of 18 October 2011, p. 2, referring to Prosecutor v. Naser Orić, Case No. IT-03-68-A, Decision on the Motion to Strike Annexes A, C, D and E of the Prosecution's Appeal Brief, 18 May 2007, para. 7.

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Other instruments Paragraph C(4) of the Practice Direction on Formal Requirements for Appeals from Judgement
Notion(s) Filing Case
Decision Regarding Leave to Amend Indictment - 19.12.2003 KAREMERA et al.
(ICTR-98-44-AR73 )

18. […][T]he Appeals Chamber agrees that judicial economy may be a basis for rejecting a motion that is frivolous, wasteful, or that will cause duplication of proceedings.

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Notion(s) Filing Case
Decision Regarding Leave to Amend Indictment - 12.02.2004 BIZIMUNGU et al. (Government II)
(ICTR-99-50-AR50)

9.       […] The Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings Before the Tribunal, dated 16 September 2002 (“Practice Direction”), provides that responses to interlocutory appeals governed by the Practice Direction are due ten days after the filing of the appeal.[1]  The Appeals Chamber notes, however, that the Practice Direction does not specifically provide a deadline for responses to appeals that follow certification of the Trial Chamber, although the Appeals Chamber has recently suggested that the response time of ten days should also apply to appeals following certification.[2]  The Appeals Chamber affirms this interpretation of the Practice Direction. […]

[1] Practice Direction, arts. II.2, III.8.

[2] Prosecutor v. Bagosora et al., No. ICTR-98-41-AR93, Decision on Application for Extension of Time to File Response to Interlocutory Appeal, 3 November 2003, pp. 2-3.

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Other instruments The Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings Before the Tribunal
Notion(s) Filing Case
Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

468. As a preliminary matter, the Appeals Chamber clarifies that it considers that the Prosecution did not exceed the scope of its response brief by arguing that the Indictment was not defective regarding the count of conspiracy to commit genocide. The purpose of a response brief is to give a full answer to the issues raised in the relevant appeal brief[1] and there is nothing in the Rules or the relevant practice directions prohibiting a party from raising an allegation of error in the Trial Judgement in response to an issue raised by the other party. Therefore, the Appeals Chamber finds no merit in Nyiramasuhuko’s argument that the Prosecution should have requested leave to argue that the Trial Chamber erred in finding that the Indictment was defective as regards the charge of conspiracy to commit genocide.

[1] Cf. 21 August 2007 Appeal Decision [The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-AR73, Decision on Joseph Kanyabashi’s Appeal Against the Decision of Trial Chamber II of 21 March 2007 Concerning the Dismissal of Motions to Vary His Witness List, 21 August 2007], para. 11. See also Practice Direction on Formal Requirements on Appeal [Practice Direction on Formal Requirements for Appeals from Judgement, 4 July 2005], para. 5.

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Notion(s) Filing Case
Order on Assignment of Counsel - 17.02.2016 NGIRABATWARE Augustin
(MICT-12-29)

Page. 2:

CONSIDERING that, in limited circumstances, particularly sensitive material could be included in an ex parte annex so long as the motion is prepared in such a way to allow for a meaningful response;[1]

[1] The Appeals Chamber notes that the requirement that an applicant provide information as to the potential grounds for review in the context of a request for the assignment of counsel at the expense of the Mechanism necessarily involves revealing certain aspects of the applicant’s strategy in connection with the eventual request for review. 

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Notion(s) Filing Case
Decision on Motion to Strike - 20.01.2005 NIKOLIĆ Momir
(IT-02-60/1-A)

32.     […] A three-stage process is established by the Rules and the relevant Practice Directions for the filing of written submissions before the International Tribunal. For motions filed during appeals from judgement, as is the case here, the moving party is requested to file a motion containing (i) the precise ruling or relief sought; (ii) the specific provision of the Rules under which the ruling or relief is sought; and (iii) the grounds on which the ruling or relief is sought.[1] The opposite party is entitled to file a response stating whether or not the motion is opposed and the grounds therefore,[2] and the moving party may file a reply[3] restricted to dealing with issues raised in the opposite party’s response.[4]  The Appeals Chamber recognizes that it is not possible to require a party to anticipate all the arguments made in response by the opposite party. The very purpose of a reply is to permit the moving party to rebut the arguments raised in opposition by the other party. Subject to a rejoinder, this can sometime necessitate submitting an argument not developed in the initial motion. However, this right to fully address the opposing party’s arguments does not allow the moving party to use its reply to make new claims or to raise totally new arguments. As the Appeals Chamber has already stated, if a party raises in a reply an argument or request for the first time, then the opposing party is deprived of an opportunity to respond and this can harm the fairness of the proceedings.[5] That is notably why the core of the moving party’s arguments must be provided in the initial motion and not raised for the first time in the reply.

[1] Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings before the International Tribunal, IT/155/Rev. 1, 7 March 2002 (“Practice Direction”), para. 10.

[2] Practice Direction, para. 11.

[3] Practice Direction, para. 12.

[4] Decision on Motion to Strike [Decision (Motion to Strike Parts of Defence Appeal Brief and Evidence not on Record, Motion to Enlarge Time, Motion for Leave to File a Rejoinder to the Prosecution’s Reply), 1 September 2004], para. 10. See also Kupreškić Decision [Prosecutor v. Kupreškić et al., IT-95-16-A, Decision on the Motions of Appellants Vlatko Kupreškić, Drago Josipović, Zoran Kupreškić and Mirjan Kupreškić to Admit Additional Evidence, filed confidentially on 26 February 2001], para. 70; Kordić Decision [Prosecutor v. Kordić and Čerkez, IT-95-14/2-A, Decision on Prosecution’s Motion to Strike out Portions of Kordić’s Reply filed 13 April 2004, 11 May 2004], para. 14. See, mutatis mutandis, Practice Direction on Formal Requirements for Appeals From Judgement, 7 March 2002, IT/201, para. 6. 

[5] Decision on Motion to Strike, para. 10. See also Kupreškić Decision, para. 70; Kordić Decision para 14. 

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Notion(s) Filing Case
Decision on Supplementing Appeal Brief - 18.02.2005 NALETILIĆ & MARTINOVIĆ
(IT-98-34-A)

CONSIDERING that, where a party alleges that the subsequent jurisprudence of the International Tribunal impacts upon the position that party took in its previous submissions, leave for it to supplement the said submissions may be granted;

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Notion(s) Filing Case
Decision on Time and Page Extensions for Response - 21.02.2005 GALIĆ Stanislav
(IT-98-29-A)

FINDING that no explanation has been provided which would justify an extension of time or page limits to the Appellant for the filing of his reply, and that a request by a party for extension of time does not automatically amount to a showing of good cause by the opposing party;

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Notion(s) Filing Case
Decision on Time and Page Limits - 22.06.2005 BRĐANIN Radoslav
(IT-99-36-A)

5.       […] [O]rdinarily the filing of a Supplementary Notice of Appeal does not itself constitute good cause for an extension of time,[1] […]

[1] The Appellant appears to assume that having filed the supplemental Notice of Appeal would ordinarily entitle him to file an additional Appeal Brief in support of it, and suggests that an extension of time (and page length) is merited here so that he can instead file a consolidated brief addressing all grounds of appeal.  But consolidation is the normal required procedure.  The filing of a supplemental notice of appeal does not in and of itself entitle an appellant to an extension of time nor to an enlargement of length for the appeal brief, and it certainly does not entitle him to file two appeal briefs.  Instead, the appellant must file a single appeal brief, the deadline for which is calculated, pursuant to Rule 111, based on the date of filing the original notice of appeal, not on the date on which a variation of that notice was authorised pursuant to Rule 108.

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Notion(s) Filing Case
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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