Certification

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

23. The Appeals Chamber rejects the Prosecution’s argument that the appeal was incompetently certified by the Trial Chamber pursuant to Rule 73(B). The challenge made by Simatović and Stanišić is to the Trial Chamber’s grant of a stay in circumstances where the Prosecution failed to comply with the proper procedure of Rule 65(E). The main issue was whether the Trial Chamber erred in using Rule 127 to rectify the oversight of the Prosecution. In this circumstance, the Appeals Chamber does not accept the argument of the Prosecution that Rule 65 provides the only avenue of recourse to Simatović and Stanišić. While Rule 65(G) (iv) does provide an avenue for Simatović and Stanišić to seek release where a Trial Chamber has issued a stay of its decision ordering release, it does not operate to prevent an appeal of a stay decision issued by a Trial Chamber where the circumstances are such that the Trial Chamber determines that certification pursuant to Rule 73(B) is appropriate. [RULE 65(G)(iv) WAS DELETED IN THE AMENDMENTS OF THE RULES OF PROCEDURE AND EVIDENCE OF 21 JULY 2005.]

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ICTR Rule Rule 73(B) ICTY Rule Rule 73(B)
Notion(s) Filing Case
Decision on Judicial Notice - 16.06.2006 KAREMERA et al.
(ICTR-98-44-AR73(C))

The Appeals Chamber discussed for the first time whether the provisions of the Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings Before the Tribunal[1] governing the content of a response apply identically to Interlocutory appeals “as of right and interlocutory appeals “with leave to appeal”. It held (Decision, footnote 7):

The Practice Direction on Written Submissions distinguishes between appeals that lie “as of right” and those that lie “only with the leave of a bench of three judges of the Appeals Chamber”.  Appeals that have been certified by a Trial Chamber—pursuant to a procedure established by amendment to the Rules after the Practice Direction’s issuance—are not specifically mentioned, but the Appeals Chamber considers that, after the required certification has been issued, they lie “as of right”, in that they are authorized by Rule 73(B) of the Rules and the appellant need not apply to the Appeals Chamber for further leave to file them.  In any event, the provisions of the Practice Direction governing the content of a response are the same for all categories of interlocutory appeal.

[1]16 September 2002 (“Practice Direction on Written Submissions”).

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ICTR Rule Rule 73(B) ICTY Rule Rule 73(B) Other instruments Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings Before the Tribunal (ICTR).
Notion(s) Filing Case
Decision on Leave to Appeal (Prosecution) - 14.12.2001 GALIĆ Stanislav
(IT-98-29-AR73)

The Prosecution sought leave to appeal from two orders made by the Trial Chamber, neither of which had been sought by Stanislav Gali}, the accused, but rather were made proprio motu.

2. (1) (b) The prosecution has therefore very properly raised for determination an issue as to whether Rule 73, which is concerned with decisions upon all motions other than preliminary motions under Rule 72, is the appropriate rule governing its right to appeal from these two orders.  Although no motion was made by Galić for the relief which was granted, this Bench considers that:

(i) the relief granted proprio motu was nevertheless relief which may have been sought pursuant to Rule 73,

(ii) the fact that it was granted proprio motu cannot reasonably be interpreted as denying the prosecution the right to seek leave to appeal from the orders made, and

(iii) the provisions of Rule 73(D) are accordingly the appropriate ones to apply to this application for leave to appeal.

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ICTY Rule Rule 73(D)