Convicted persons

Notion(s) Filing Case
Decision on Request for Conference with Former Legal Team - 18.06.2009 MUSEMA Alfred
(ICTR-96-13-R)

Musema was convicted to life imprisonment and transferred to the Republic of Mali for the enforcement of his sentence. In the context of the preparation for review proceedings, Musema seeks the Appeals Chamber's authorization for him to travel to The Hague in order to meet with his former Defence team and receive legal advice on potential grounds of review. Having considered that (i) an applicant for review may be assisted by a counsel in connection with a request for review at his own expense, at the expense of a third party, or on a pro bono basis, provided that the counsel files a power of attorney with the Registrar and satisfies the requirements to appear before the Tribunal, and that (ii) the counsel representing the applicant on such a basis would be able to obtain access to the trial and appellate record from the Registry or his client and would also be able to meet with his client at his place of detention at his own expense, the Appeals Chamber held:

p. 3: CONSIDERING that nothing in the Statute, Rules of Procedure and Evidence, or practice of the Tribunal provides for the transfer of a convicted person to another State for purposes of meeting with a counsel;

CONSIDERING that, pursuant to Article 4 of the Agreement, the transfer of a person whose sentence is being enforced in the Republic of Mali is envisioned only in the event that the Tribunal orders that the person appear as a witness before it; 

Download full document
Notion(s) Filing Case
Decision on Access to Confidential Material - 22.04.2009 RUTAGANDA George
(ICTR-96-3-R)

In its Rutaganda Decision on Leave to Appeal, the Appeals Chamber also considered the submissions of the Registrar and the Applicant relating to the Applicant’s ability to access to his file whilst in detention at the United Nationa Detention Facility in Arusha (“UNDF”), and held:

pp. 2-3: RECALLING that on 22 January 2009, the Appeals Chamber ordered the Registrar, pursuant to Rule 33(B) of the Tribunal’s Rules of Procedure and Evidence (“Rules”), to make a written submission to the Appeals Chamber explaining whether, at present and until his transfer to a third State, the Applicant continues to have access to the appropriate facilities and the files and documentation required to prepare his appeal against the Decision of 3 April 2008;[1]

CONSIDERING the correspondence from the Applicant to the Commander of the UNDF dated 23 January 2009, wherein the Applicant explains that, in anticipation of his imminent transfer, he packed his documents and therefore, whilst he still has possession of these materials, his access to them is more difficult;[2]

CONSIDERING that on 28 January 2009, the Registrar submitted that the Applicant continues to have access to the appropriate facilities, files, and documentation required to prepare his appeal against the Trial Chamber’s Decision of 3 April 2008;[3]

CONSIDERING therefore that since the Applicant has had continued access to his files, he has failed to demonstrate that for the filing of his appeal he needs additional time until after his transfer to the State in which his sentence is to be served[.]

[1] See Order of 22 January 2009.

[2] See Correspondence from Georges A. N. Rutaganda to the Commander of the UNDF dated 23 January 2009, attached to the Registry’s Submission under Rule 33(B) of the Rules on “Order to the Registrar concerning Georges Rutaganda’s Access to Documents of 22 January 2009”, filed on 28 January 2009 (“Registrar’s Submission”). See also Response of 9 February 2009 [Rutaganda’s Reaction to [the] Registry’s Submission under Rule 33 (B) of the Rules on “Order to the Registrar Concerning Georges Rutaganda’s Access to Documents of 22 January 2009”, 9 February 2009], paras. 3, 6.

[3] Registrar’s Submission, para. 3.

Download full document
Notion(s) Filing Case
Decision on Review - 12.03.2009 NIYITEGEKA Eliézer
(ICTR-96-14-R)

11. The Appeals Chamber considers it necessary to remind the Registrar of his obligation to ensure efficient communication with detainees and convicted persons, even after they have been transferred to a State in which their sentence is to be served, so as to ensure that they may exercise their rights provided for under the Statute and the Rules in full.[1]  

[1] See Emmanuel Ndindabahizi v. The Prosecutor, Case No. ICTR-01-71-R, Decision on Emmanuel Ndindabahizi’s Motion of 1 December 2008, 17 December 2008, pp. 3, 4.

Download full document
Notion(s) Filing Case
Decision on Motion for Clarification - 01.07.2009 NIYITEGEKA Eliézer
(ICTR-96-14-R)

6. […] Niyitegeka is not seeking clarification of any of the Appeals Chamber’s previous rulings or decisions, but is instead requesting legal advice concerning potential jurisdictions that could determine anew the validity of his conviction and rule on the alleged violations of his right to a fair trial. The Appeals Chamber considers that it is not within its remit to do so; the Appeals Chamber does not have advisory power,[1] in particular concerning other jurisdictions.

In reaching this conclusion, the Appeals Chamber stressed that “the charges against Niyitegeka have already been determined and that his conviction has been confirmed on appeal; he is not an accused before the Tribunal but a convicted person whose case has reached finality”. Hence, it found Niyitegeka’s references to Article 19(1), 20(2) and 20(4)(d) of the Statute of the Tribunal inapplicable to his current situation. (para. 5).

[1]   The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Judgment, 1 June 2001, para. 23. See also Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Decision on Motion to Dismiss Ground 1 of the Prosecutor’s Appeal, 5 May 2005, p. 3.

Download full document
Notion(s) Filing Case
Appeal Judgement - 09.05.2007 BLAGOJEVIĆ & JOKIĆ
(IT-02-60-A)

9. […] Where the convicted person is appealing, the Appeals Chamber will reverse only if it finds that no reasonable trier of fact could have made the particular finding of fact beyond reasonable doubt and the conviction relied on this finding. […]

Download full document
Notion(s) Filing Case
Decision re Prosecution Witnesses - 29.01.2016 NIYITEGEKA Eliézer
(MICT-12-16)

10. […] in order to carry out their duties in full, counsel recognized, assigned, or appointed by the Registrar as acting for an accused or convicted person must, in principle, automatically have access to the complete record of the proceedings to which their client is entitled.[1] […]

[1]See Prosecutor v. Augustin Ngirabatware, Case No. MICT-12-29, Decision on Request for Access, 16 September 2015, p. 2, referring to Prosecutor v. Radoslav Brđanin, Case No. MICT-13-48, Decision on Request for Access, 3 August 2015, p. 1; The Prosecutor v. Jean de Dieu Kamuhanda, Case No. MICT-13-33, Decision on Request for Access, 25 June 2015, paras. 11, 14. 

Download full document
Notion(s) Filing Case
Decision on Provisional Release - 23.02.2016 TOLIMIR Zdravko
(MICT-15-95-ES)

7.       Neither the Statute nor the Rules explicitly regulate the provisional release of convicted persons awaiting transfer to an enforcement State.[1] The Appeals Chamber recalls, however, that, in certain limited circumstances, the ICTY has authorized provisional release to convicted persons prior to their transfer to the State where they would serve their sentence.[2] In doing so, the ICTY Appeals Chamber has relied on Rule 65(I) of the ICTY Rules of Procedure and Evidence (“ICTY Rules”) which mirrors Rule 68(I) of the Mechanism’s Rules.[3] The Appeals Chamber recalls that it is bound to interpret the Statute and the Rules in a manner consistent with the relevant jurisprudence of the ICTY.[4] Bearing this practice in mind, the Appeals Chamber considers that Rule 68 of the Rules applies, mutatis mutandis, to convicted persons who are in the custody of the Mechanism pending transfer to an enforcement State.

8.       Accordingly, provisional release may be granted if the Appeals Chamber is satisfied that: (i) the convicted person, if released, will surrender into detention at the conclusion of the fixed period; (ii) the convicted person, if released, will not pose a danger to any victim, witness, or other person; and (iii) special circumstances exist warranting such release.[5] These requirements must be considered cumulatively and the discretionary assessment of these requirements is to be made on a case-by-case basis. [6] Furthermore, “whether an applicant satisfies these requirements is to be determined on a balance of probabilities, and the fact that an individual has already been sentenced is a matter to be taken into account by the Appeals Chamber when balancing the probabilities”.[7]

[1] Rule 68(I) of the Rules relates to granting provisional release to appellants and provides, in relevant part, that “the Appeals Chamber may grant provisional release to convicted persons pending an appeal or for a fixed period if it is satisfied that: (i) the appellant, if released, will either appear at the hearing of the appeal or will surrender into detention at the conclusion of the fixed period, as the case may be; (ii) the appellant, if released, will not pose a danger to any victim, witness, or other person, and (iii) special circumstances exist warranting such release.”

[2] See, e.g., Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-ES, Decision on Krajišnik’s Application for Custodial Visit, 17 June 2009 (“Krajišnik Decision”), paras. 1, 22. See also Prosecutor v. Ljubomir Borovčanin, Case No. IT-05-88-AR65.12, Decision on Appeal from Decision on Ljubomir Borovčanin’s Request for Provisional Release, 1 March 2011 (“Borovčanin Decision”), paras. 2, 3, 9; Prosecutor v. Fatmir Limaj et al., Case No. IT-03-66-A, Decision on Motion on Behalf of Haradin Bala for Temporary Provisional Release, 14 February 2008 (“Limaj et al. Decision”), paras. 2, 4, 5. The Appeals Chamber notes that, in one case, the President of the Mechanism proprio motu provisionally released a convicted person who was in the custody of the Mechanism pending transfer to an enforcement State. See Nikolić Decision [Prosecutor v. Drago Nikolić, Case No. MICT-15-85-ES.4, Public Redacted Version of the 20 July 2015 Decision of the President on the Application for Early Release or Other Relief of Drago Nikolić, 13 October 2015], paras, 4, 39.

[3] Rule 65(I) of the ICTY Rules provides, in relevant part, that “the Appeals Chamber may grant provisional release to convicted persons pending an appeal or for a fixed period if it is satisfied that: (i) the appellant, if released, will either appear at the hearing of the appeal or will surrender into detention at the conclusion of the fixed period, as the case may be; (ii) the appellant, if released, will not pose a danger to any victim, witness or other person, and (iii) special circumstances exist warranting such release.” See also Borovčanin Decision, para. 9; Limaj et al. Decision, paras. 4, 5.

[4] 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, paras. 4-6.

[5] Borovčanin Decision, para. 9; Limaj et al. Decision, para. 5.

[6] Prosecutor v. Nikola Šainović et al., Case No. IT-05-87-A, Decision on Sreten Lukić’s Third Motion for Provisional Release on Compassionate Grounds, 3 September 2010 (“Šainović et al. Decision of 3 September 2010”), para. 5; Borovčanin Decision, para. 9. See also Limaj et al. Decision, para. 5.

[7] Borovčanin Decision, para. 9; Limaj et al. Decision, para. 5.

Download full document
MICT Rule Rule 68(I)