Discretionary decisions

Notion(s) Filing Case
Decision on Disclosure - 17.04.2007 ŠEŠELJ Vojislav
(IT-03-67-AR73.5)

14. It is well established in the jurisprudence of the Tribunal that Trial Chambers exercise discretion in many different situations, including “when deciding points of practice or procedure”.[1] The Impugned Decision, which ruled on the form of materials to be disclosed by the Prosecution under Rules 66 and 68 of the Rules, was such a discretionary decision to which the Appeals Chamber must accord deference. Such deference is based on the recognition by the Appeals Chamber of “the Trial Chamber’s organic familiarity with the day-to-day conduct of the parties and practical demands of the case.”[2] As previously held by the Appeals Chamber, “[w]here an appeal is brought from a discretionary decision of a Trial Chamber, the issue in that appeal is not whether the decision was correct, in the sense that the Appeals Chamber agrees with that decision, but rather whether the Trial Chamber has correctly exercised its discretion in reaching that decision”.[3] Thus, when challenging a discretionary decision, the moving party must establish that the Trial Chamber committed a “discernible” error resulting in prejudice to that party.[4] The Appeals Chamber will only overturn a Trial Chamber’s exercise of its discretion where it is found to be “(1) based on an incorrect interpretation of governing law; (2) based on a patently incorrect conclusion of fact; or (3) so unfair or unreasonable as to constitute an abuse of the Trial Chamber’s discretion.”[5]

[1] Prosecutor v. Slobodan Milošević, Case Nos. IT-99-37-AR73, IT-01-50-AR73, IT-01-51-AR73, Reasons for Decision on Prosecution Interlocutory Appeal From Refusal to Order Joinder, 18 April 2002 (“Milošević Decision on Joinder”), para. 3; see also Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.4, Decision on Prosecution Appeal Concerning the Trial Chamber’s Ruling Reducing Time for the Prosecution Case, 6 February 2007, para. 8; Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.2, Decision on Joint Defence Interlocutory Appeal against the Trial Chamber’s Oral Decision of 8 May 2006 Relating to Cross-Examination By Defence and on Association of Defence Counsel’s Request for Leave to File an Amicus Curiae Brief, 4 July 2006 (“Prlić Decision on Cross-Examination”), p. 3; Prosecutor v. Zdravko Tolimir et al., Case No. IT-04-80-AR73.1, Decision on Radivoje Miletić’s Interlocutory Appeal Against the Trial Chamber’s Decision on Joinder of Accused, 27 January 2006 (“Decision on Radivoje Miletić’s Interlocutory Appeal”), para. 4; Prosecutor v. Slobodan Milošević, Case No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel, 1 November 2004 (“Milošević Decision on the Assignment of Defence Counsel”), para. 9.

[2] Decision on Radivoje Miletić’s Interlocutory Appeal, para. 4; Milošević Decision on Defense Counsel, para. 9.

[3] Milošević Decision on Joinder, para. 4.

[4] Appeals Chamber’s Decision of 8 December 2006, para. 16; see also Prlić Decision on Cross-Examination, p. 3 citing Milošević Decision on Joinder, para. 4. See also ibid., paras. 5-6; see also Milošević Decision on the Assignment of Defence Counsel, para. 10; Decision on Radivoje Miletić’s Interlocutory Appeal, para. 6 citing Prosecutor v. Mićo Stanišić, Case No. IT-04-79-AR65.1, Decision on Prosecution’s Interlocutory Appeal of Mićo Stanišić’s Provisional Release, 17 October 2005 (“Stanišić Provisional Release Decision”), para. 6.

[5] Decision on Radivoje Miletić’s Interlocutory Appeal, para. 6 & n. 17 citing Stanišić Provisional Release Decision, para. 6 & n. 10. The Appeals Chamber will also consider whether the Trial Chamber “has given weight to extraneous or irrelevant considerations or that it has failed to give weight or sufficient weight to relevant considerations . . . .” Milošević Decision on Joinder, para. 5.

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Notion(s) Filing Case
Decision on Evidence of Milan Babić - 14.09.2006 MARTIĆ Milan
(IT-95-11-AR73.2)

6. It is well established in the jurisprudence of the International Tribunal that Trial Chambers exercise discretion in relation to the admissibility of some types of evidence, as well as in defining the modalities of cross-examination and the exercise of this right by the Defence.[1] The Trial Chamber’s decision in this case to retain the evidence of Witness Milan Babić pursuant to Rule 89(D) following his death was a discretionary decision to which the Appeals Chamber accords deference. Such deference is based on the recognition by the Appeals Chamber of “the Trial Chamber’s organic familiarity with the day-to-day conduct of the parties and practical demands of the case.”[2]

[1] Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.2, Decision on Joint Defence Interlocutory Appeal against the Trial Chamber’s Oral Decision of 8 May 2006 Relating to Cross-Examination By Defence and on Association of Defence Counsel’s Request for Leave to File an Amicus Curiae Brief, 4 July 2006 (“Prlić Decision on Cross-Examination”), p. 3; Prosecutor v. Zdravko Tolimir et al., Case No. IT-04-80-AR73.1, Decision on Radivoje Miletić’s Interlocutory Appeal Against the Trial Chamber’s Decision on Joinder of Accused, 27 January 2006 (“Decision on Radivoje Miletić’s Interlocutory Appeal”) para. 4; Prosecutor v. Milošević, Case Nos.: IT-99-37-AR73, IT-01-50-AR73, IT-01-51-AR73, Reasons for Decision on Prosecution Interlocutory Appeal from Refusal to Order Joinder, 18 April 2002 (“Milošević Decision on Joinder”), para. 3.

[2] Decision on Radivoje Miletić’s Interlocutory Appeal, para. 4; Prosecutor v. Milošević, Case No. IT-02-54-AR73.7, Decision  on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defense Counsel, 1 November 2004 ( “Milošević Decision on Defense Counsel”), para. 9.

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ICTY Rule Rule 89(D)
Notion(s) Filing Case
Decision on Assignment of Counsel - 01.11.2004 MILOŠEVIĆ Slobodan
(IT-02-54-AR73.7)

9. As the Appeals Chamber has previously noted, a Trial Chamber exercises its discretion in “many different situations – such as when imposing sentence, in determining whether provisional release should be granted, in relation to the admissibility of some types of evidence, in evaluating evidence, and (more frequently) in deciding points of practice or procedure.”[1] A Trial Chamber’s assignment of counsel fits squarely within this last category of decisions.  It draws on the Trial Chamber’s organic familiarity with the day-to-day conduct of the parties and practical demands of the case, and requires a complex balancing of intangibles in crafting a case-specific order to properly regulate a highly variable set of trial proceedings. The Appeals Chamber therefore reviews the Trial Chamber’s decision only to the extent of determining whether it properly exercised its discretion in imposing counsel on Milošević.

[1] Prosecutor v. Milošević, Reasons for Decision on Prosecution Interlocutory Appeal from Refusal to Order Joinder, Case Nos. IT-99-37-AR73, IT-01-50-AR73, and IT-01-51-AR73, 18 April 2002 (hereinafter “Refusal to Order Joinder”), para. 3.

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Reasons for Decision on Refusal to Order Joinder - 18.04.2002 MILOŠEVIĆ Slobodan
(IT-99-37-AR73, IT-01-50-AR73, IT-01-51-AR73)

3. The prosecution accepts, correctly, that the decision of a Trial Chamber as to whether two or more crimes should be joined in the one indictment pursuant to Rule 49 of the Rules of Procedure and Evidence (“Rules”) is a discretionary one.[1] A Trial Chamber exercises a discretion in many different situations – such as when imposing sentence,[2] in determining whether provisional release should be granted,[3] in relation to the admissibility of some types of evidence,[4] in evaluating evidence,[5] and (more frequently) in deciding points of practice or procedure.[6]

4. Where an appeal is brought from a discretionary decision of a Trial Chamber, the issue in that appeal is not whether the decision was correct, in the sense that the Appeals Chamber agrees with that decision, but rather whether the Trial Chamber has correctly exercised its discretion in reaching that decision. Provided that the Trial Chamber has properly exercised its discretion, its decision will not be disturbed on appeal, even though the Appeals Chamber itself may have exercised the discretion differently. That is fundamental to any discretionary decision. It is only where an error in the exercise of the discretion has been demonstrated that the Appeals Chamber may substitute its own exercise of discretion in the place of the discretion exercised by the Trial Chamber.

5. It is for the party challenging the exercise of a discretion to identify for the Appeals Chamber a “discernible” error made by the Trial Chamber.[7] It must be demonstrated that the Trial Chamber misdirected itself either as to the principle to be applied, or as to the law which is relevant to the exercise of the discretion, or that it has given weight to extraneous or irrelevant considerations, or that it has failed to give weight or sufficient weight to relevant considerations, or that it has made an error as to the facts upon which it has exercised its discretion.[8]

6. In relation to the Trial Chamber’s findings of fact upon which it based its exercise of discretion, the party challenging any such finding must demonstrate that the particular finding was one which no reasonable tribunal of fact could have reached,[9] or that it was invalidated by an error of law. Both in determining whether the Trial Chamber incorrectly exercised its discretion and (in the event that it becomes necessary to do so) in the exercise of its own discretion, the Appeals Chamber is in the same position as was the Trial Chamber to decide the correct principle to be applied or any other issue of law which is relevant to the exercise of the discretion. Even if the precise nature of the error made in the exercise of the discretion may not be apparent on the face of the impugned decision, the result may nevertheless be so unreasonable or plainly unjust that the Appeals Chamber is able to infer that the Trial Chamber must have failed to exercise its discretion properly.[10] Once the Appeals Chamber is satisfied that the error in the exercise of the Trial Chamber’s discretion has prejudiced the party which complains of the exercise, it will review the order made and, if appropriate and without fetter, substitute its own exercise of discretion for that of the Trial Chamber.[11]

[1] Interlocutory Appeal of the Prosecution Against “Decision on Prosecution’s Motion for Joinder”, 15 Jan 2002 (“Appellant’s Written Submissions”), par 6. Rule 49, the full terms of which are discussed later, states: “Two or more crimes may be joined [...]” (the emphasis has been added).

[2] Prosecutor v Tadić, IT-94-1-A and IT-94-1-Abis, Judgment in Sentencing Appeals, 26 Jan 2000 (“Tadić Sentencing Appeal”), par 22; Prosecutor v Aleksovski, IT-95-14/1-A, Judgment, 24 Mar 2000 (“Aleksovski Appeal”), par 187; Prosecutor v Furundžija, IT-95-17/1-A, Judgment, 21 July 2000 (“Furundžija Appeal”), par 239; Prosecutor v Delalić et al, IT-96-21-A, Judgment 20 Feb 2001 (“Delalić Appeal”), pars 712, 725, 780; Prosecutor v Kupreškić et al, IT-96-16-A, Appeal Judgment, 23 Oct 2001 (“Kupreškić Appeal”), pars 408, 456-457, 460.

[3] Prosecutor v Brđanin & Talić, IT-99-36-PT, Decision on Motion by Radoslav Brđanin for Provisional Release, 25 July 2000, par 22 (Leave to appeal denied: Prosecutor v Brđanin & Talić, IT-99-36-AR65, Decision on Application for Leave to Appeal, 7 Sept 2000, p 3); Prosecutor v Krajišnik & Plašvić, IT-00-39&40-AR73.2, Decision on Interlocutory Appeal by Momčilo Krajišnik, 26 Feb 2002, pars 16, 22.

[4] Prosecutor v Aleksovski, Decision on Prosecutor’s Appeal on Admissibility of Evidence, 16 Feb 1999, par 19; Prosecutor v Kordić & Čerkez, IT-95-14/2-73.5, Decision on Appeal Regarding Statement of a Deceased Witness, 21 July 2000, par 20; Delalić Appeal, pars 532-533.

[5] Aleksovski Appeal, par 64; Kupreškić Appeal, par 32.

[6] For example, granting leave to amend an indictment: Prosecutor v Galić, IT-98-29-AR72, Decision on Application by Defence for Leave to Appeal, 30 Nov 2001, par 17; determining the limits to be imposed upon the length of time available to the prosecution for presenting evidence: Prosecutor v Galić, IT-98-29-AR73, Decision on Application by Prosecution for Leave to Appeal, 14 Dec 2001, par 7.

[7]  Tadić Sentencing Appeal, par 22; Aleksovski Appeal, par 187; Furundžija Appeal, par 239; Delalić Appeal, par 725; Kupreškić Appeal, par 408.

[8] Tadić Sentencing Appeal, par 20; Furundžija Appeal, par 239; Delalić Appeal, pars 725, 780; Kupreškić Appeal, par 408. See also Serushago v Prosecutor, ICTR-98-39-A, Reasons for Judgment, 6 Apr 2000, par 23.

[9] Prosecutor v Tadić, IT-94-1-A, Judgment, 15 July 1999 (“Tadić Conviction Appeal”), par 64; Aleksovski Appeal, par 63; Furundžija Appeal, par 37; Delalić Appeal, pars 434-435, 459, 491, 595; Kupreškić Appeal, par 30.

[10] Aleksovski Appeal, par 186.

[11] cf Tribunal’s Statute, Article 25.2.

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ICTR Rule Rule 49 ICTY Rule Rule 49
Notion(s) Filing Case
Appeal Judgement - 16.10.2007 HALILOVIĆ Sefer
(IT-01-48-A)

39. […] In this respect, the Appeals Chamber emphasizes the large measure of discretion afforded under the Rules to Trial Chambers in establishing the authenticity of a document.[1] Considering that Trial Chambers’ decisions on issues of evaluation of evidence must generally be given a margin of deference,[2] it is only where an abuse of such discretion can be established that the Appeals Chamber should reverse such decisions.[3]

[1] See Prosecutor v. Sefer Halilović, Case No. IT-01-48-AR73.2, Decision on Interlocutory Appeal Concerning Admission of Record of Interview of the Accused from the Bar Table, 19 August 2005, para. 19.

[2]   Čelebići Appeal Judgement, para. 533, where the Appeals Chamber stated that “a Trial Chamber exercises consi­derable discretion in deciding on issues of admissibility of evidence” and that, as a result, “a Trial Chamber should be afforded […] deference in making decisions based on the circumstances of the case before it”.

[3] See, for example, Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-AR73.5, Decision on Appeal Regarding Statement of a Deceased Witness, 21 July 2000; Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-AR73.6, Decision on Appeal Regarding the Admission into Evidence of Seven Affidavits and One Formal Statement, 18 September 2000.

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ICTY Rule Rule 89(D)
Notion(s) Filing Case
Decision on Admission of Record of Interview - 19.08.2005 HALILOVIĆ Sefer
(IT-01-48-AR73.2)

64.     Where the Appeals Chamber is satisfied that a Trial Chamber has erred, the Appeals Chamber may substitute the exercise of its own discretion for that of the Trial Chamber if it considers it appropriate to do so.  In the ordinary case involving an evidentiary question before a Trial Chamber, the Appeals Chamber may consider sending the matter back to the Trial Chamber with an order that it consider the factors identified as relevant by the Appeals Chamber and exercise its discretion afresh.  In this case, however, the parties are awaiting the Appeals Chamber decision so that they may file their final submissions and close the trial.  Accordingly, the Appeals Chamber has determined that it is more appropriate in this instance for it to substitute its discretion for that of the Trial Chamber.

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Notion(s) Filing Case
Decision on Modified Provisional Release - 10.03.2006 HARADINAJ et al.
(IT-04-84-AR65.1)

The standard of review for discretionary decisions had been set in previous decisions. The Appeals Chamber, in the present case, re-stated it clearly and applied it to decisions on provisional release:

21. The Trial Chamber’s decision on provisional release is a discretionary one, so the Appeals  Chamber, on review, must ask not whether it agrees with the decision but whether the Trial Chamber “correctly exercised its discretion in reaching that opinion”.[1]

22. The party challenging a provisional release decision bears the burden of showing that the Trial Chamber committed a “discernible error”.[2] In order to do so, it must show either that  the Trial Chamber (1)  “misdirected itself […] as to the principle to be applied”; (2) misdirected itself “as to the law which is relevant to the exercise of discretion”; (3) “gave weight to extraneous or irrelevant considerations”; (4) “failed to give weight or sufficient weight to relevant considerations”; (5)  “made an error as to the facts upon which it has exercised its discretion”; [3] or (6) rendered a decision “so unreasonable and plainly unjust that the Appeals Chamber is able to infer that the Trial Chamber must have failed to exercise its discretion properly”.[4]

23. The Appeals Chamber has also ruled that a Trial Chamber must provide a reasoned opinion in rendering a decision on provisional release.[5] The Trial Chamber must therefore “indicate all those relevant factors which a reasonable Trial Chamber would have been expected to take into account before coming to a decision”, in light of circumstances obtaining both at the time of the provisional release decision and “at the time the case is due for trial and the accused is expected to return to the International Tribunal”.[6]

[1] Prosecutor v. Stanišić, Case No. IT-04-79-AR65.1, Decision on Prosecution’s Interlocutory Appeal of Mićo Stanišić’s Provisional Release, 17 October 2005 (“Stanišić Rule 65 Decision”), para. 6, quoting Prosecutor v. Milošević, Case Nos IT-99-37-AR73, IT-01-50-AR73 and IT-01-51-AR73, Reasons for Decision on Prosecution Interlocutory Appeal from Refusal to Order Joinder, 18 April 2002 (“Milošević Decision on Joinder”), paras 3-4.

[2] Ibid.

[3] To warrant reversal, such an error of fact must be “patently incorrect”. Ibid., quoting Milošević Decision on Joinder, para. 10.

[4] Prosecutor v. Tolimir et al., Case No. IT-04-80-AR65.1, Decision on Interlocutory Appeal Against Trial Chamber’s Decisions Granting Provisional Release, 19 October 2005 (“Tolimir Decision”), para. 4.

[5] See, e.g., Stanišić Rule 65 Decision, para. 8.

[6] Ibid.

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Decision on Impeachment - 01.02.2008 POPOVIĆ et al.
(IT-05-88-AR73.3)

32. The Tribunal’s professional Judges, as noted by the Trial Chamber, are competent to assess the truthfulness and to accord the proper weight to a witness’ evidence.[1] The decision as to whether a particular piece of evidence will be admitted for the purposes of assessing a witness’ credibility and/or for the substance therein must be left to the Trial Chamber’s discretion.

See also Delić Decision on Admission of Exhibits, para. 22.

[1] Prosecutor v. Vujadin Popović, 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. 31; [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.6, Decision on Appeals against Decision Admitting Transcript of Jadranko Prlić’s Questioning into Evidence, 23 November 2007], para. 57.

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ICTR Rule Rule 89(C) ICTY Rule Rule 89(C)
Notion(s) Filing Case
Decision on Joinder - 27.01.2006 TOLIMIR et al.
(IT-04-80-AR73.1)

At para. 4, the Appeals Chamber recalled that Trial Chambers exercise discretion in different types of decisions and qualified again those decisions:

4. The Appeals Chamber has held that Trial Chambers exercise discretion in different types of decisions – “such as when imposing sentence, in determining whether provisional release should be granted, in relation to the admissibility of some types of evidence, in evaluating evidence, and (more frequently) in deciding points of practice or procedure.”[1] Deference is afforded to the Trial Chamber’s discretion in these decisions because they “draw[] on the Trial Chamber’s organic familiarity with the day-to-day conduct of the parties and practical demands of the case, and require[] a complex balancing of intangibles in crafting a case-specific order to properly regulate a highly variable set of trial proceedings.”[2]

See also Pandurević Decision on Provisional Release, para. 4.

[1] Prosecutor v. Milošević, Case Nos.: IT-99-37-AR73, IT-01-50-AR73, IT-01-51-AR73, Reasons for Decision on Prosecution Interlocutory Appeal from Refusal to Order Joinder, 18 April 2002 (“Milošević Decision on Joinder”), para. 3.

[2] Prosecutor v. Milošević, Case No. IT-02-54-AR73.7, Decision  on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defense Counsel, 1 November 2004 ( “Milošević Decision on Defense Counsel”), para. 9.

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Decision on Joinder - 27.01.2006 TOLIMIR et al.
(IT-04-80-AR73.1)

The Appeals Chamber, reasoning by analogy with decisions on joinder of crimes, held that decisions on joinder of accused are discretionary:

5. [T]he Trial Chamber’s decision to join two or more persons accused of the same or different crimes under one indictment pursuant to Rule 48 of the Rules constitutes such a discretionary decision. This holding is supported by the Appeals Chamber’s previous ruling that a Trial Chamber’s decision to join two or more crimes under one indictment pursuant to Rule 49 of the Rules falls within the category of a Trial Chamber’s discretionary decisions.[1] Similar to Rule 49, the plain language of Rule 48 stipulates that a Trial Chamber “may” make a joinder decision once the requirements of the Rule are met. Furthermore, while both Rules apply to two different types of joinder, the Trial Chamber considers similar legal requirements and weighs similar factors under the terms of both Rules.[2]

See also Pandurević Decision on Joinder of Accused, para. 5.

[1] Milošević Decision on Joinder [Prosecutor v. Milošević, Case Nos.: IT-99-37-AR73, IT-01-50-AR73, IT-01-51-AR73, Reasons for Decision on Prosecution Interlocutory Appeal from Refusal to Order Joinder, 18 April 2002], para. 3.

[2] See, e.g., id., paras 13, 22.

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ICTR Rule Rule 48;
Rule 49
ICTY Rule Rule 48;
Rule 49
Notion(s) Filing Case
Decision on Indictment - 16.11.2011 UWINKINDI Jean
(ICTR-01-75-AR72(C))

6. A trial chamber’s decision on defects in the form of the indictment is a matter which relates to the general conduct of trial proceedings and thus falls within the discretion of the trial chamber. In order to successfully challenge a discretionary decision, a party must demonstrate that the trial chamber has committed a “discernible error” resulting in prejudice to that party. The Appeals Chamber will only overturn a trial chamber’s discretionary decision where it is found to be: (i) based on an incorrect interpretation of governing law; (ii) based on a patently incorrect conclusion of fact; or (iii) so unfair or unreasonable as to constitute an abuse of the trial chamber’s discretion.

[1] See Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR72.5, Decision on Appeal of Trial Chamber’s Decision on Preliminary Motion to Dismiss Count 11 of the Indictment, 9 July 2009, para. 8. Cf. Édouard Karemera and Matthieu Ngirumpatse v. The Prosecutor, Case No. ICTR-98-44-AR73.19, Decision on Matthieu Ngirumpatse’s Appeal Against a Sanction Imposed on Counsel by Trial Chamber’s Decision of 1 September 2010, 21 March 2011, para. 12; The Prosecutor v. Casimir Bizimungu et al., Case No. ICTR-99-50-AR73.7, Decision on Jérôme-Clément Bicamumpaka’s Interlocutory Appeal Concerning a Request for a Subpoena, 22 May 2008, para. 8; The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73.10, Decision on Nzirorera’s Interlocutory Appeal Concerning His Right to be Present at Trial, 5 October 2007, para. 7.

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Decision on Leave to Appeal - 17.02.2016 ORIĆ Naser
(MICT-14-79)

9.       Orić contends that the Single Judge committed errors of law and fact when deciding that his prosecution in Bosnia and Herzegovina does not violate the non bis in idem principle.[…] The Appeals Chamber considers that, to succeed on appeal, Orić would have to demonstrate that the Single Judge committed a discernible error in his decision because this was based on an incorrect interpretation of the governing law, a patently incorrect conclusion of fact, or because it was so unfair or unreasonable as to constitute an abuse of discretion.[1]

[1] See, e.g., Prosecutor v. Ratko Mladić, Case No. IT-09-92-AR73.5, Decision on Interlocutory Appeal against the 27 March 2015 Trial Chamber Decision on Modality for Prosecution Re-Opening, 22 May 2015, para. 6; Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R75, Decision on Motion for Clarification, 20 June 2008, para. 14. See also Stanković Decision, para. 12; Phénéas Munyarugarama v. Prosecutor, Case No. MICT-12-09-AR14, Decision on Appeal against the Referral of Phénéas Mu[n]yarugarama’s Case to Rwanda and Prosecution Motion to Strike, 5 October 2012, para. 19. 

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Decision on Interlocutory Appeal - 26.02.2002 KRAJIŠNIK Momčilo
(IT-00-39&40-AR73.2)

13. The duty Judge’s decision as to whether to deal with an application out of normal Registry hours is a discretionary one once the Judge is satisfied as to its urgency.[1] […] [T]he finding of fact as to whether the matter is or is not urgent is, however, the same as any other finding of fact. The finding by the duty Judge that there was no urgency in the Appellant’s application cannot be reversed on appeal unless it is one which no reasonable tribunal of fact could have reached.[2] This is so whether the finding related to the application being dealt with out of, or during, normal Registry hours.

[1] Rule 28(B) states: “The duty Judge [...] may refuse to deal with any application out of normal Registry hours if not satisfied as to its urgency” (emphasis added). Rule 28(D) states: “The duty Judge may, in his or her discretion, if satisfied as to the urgency of the matter, deal with an application in a case already assigned to a Chamber out of normal Registry hours as an emergency application.”

[2] Prosecutor v Tadić, IT-94-1-A, Judgment, 15 July 1999, par 64; Prosecutor v. Aleksovski, IT-95-14/1-A, Judgment, 24 Mar 2000, par 63; Prosecutor v Furundžija, IT-95-17/1-A, Judgment, 21 July 2000 (“Furundžija Appeal”), par 37; Prosecutor v Delalić, IT-96-21-A, Judgment, 20 Feb 2001, pars 434-435, 459, 491, 595; Prosecutor v Kupreškić, IT-95-16-A, Appeal Judgment, 23 Oct 2001, par 30.

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Appeal Judgement - 20.10.2010 KALIMANZIRA Callixte
(ICTR-05-88-A)

40. The Appeals Chamber considers that the trial chamber is best placed to determine both the modalities for disclosure of material intended for use in cross-examination and also the amount of time that is sufficient for an accused to prepare his defence based on the specifics of such disclosure.[1] In this case, the Trial Chamber stated its preference for disclosure prior to cross-examination, and, when this did not occur, it assessed any possible prejudice to Kalimanzira.[2] The Appeals Chamber can identify no error in the Trial Chamber’s approach. […]

[1] See Bagosora et al. Appeal Decision of 25 September 2006, para. 12.

[2] Trial Judgement, paras. 38, 40, 41.

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Decision on Conflict of Interest (Markač) - 04.05.2007 GOTOVINA et al.
(IT-06-90-AR73.1)

The Appeals Chamber has reiterated the standard of review applicable to interlocutory appeals against discretionary decisions of a Trial Chamber:

11. The Appeals Chamber recalls that an interlocutory appeal is not a de novo review of the Trial Chamber’s decision.[1] Since decisions on matters relating to the calling of witnesses and assignment of counsel at trial fall squarely within the discretion of the Trial Chamber,[2] the question before the Appeals Chamber is not whether it “agrees with that decision” but “whether the Trial Chamber has correctly exercised its discretion in reaching that decision.”[3] The party challenging a discretionary decision by the Trial Chamber must demonstrate that the Trial Chamber has committed a “discernible error”.[4] The Appeals Chamber will overturn a Trial Chamber’s exercise of its discretion where it is found to be “(1) based on an incorrect interpretation of governing law; (2) based on a patently incorrect conclusion of fact; or (3) so unfair or unreasonable as to constitute an abuse of the Trial Chamber’s discretion”.[5]

[1] Prosecutor v. Milan Lukić and Sredoje Lukić, 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 Provisional Release Decision”), para. 4; Prosecutor v. Mico Stanišić, Case No. IT-04-79-AR65.1, Decision on Prosecution’s Interlocutory Appeal of Mićo Stanišić’s Provisional Release, 17 October 2005 (“Stanišić Provisional Release Decision”), para. 6.

[2] Clarification Decision [Prosecutor v. Ante Gotovina, Ivan Čermak and Mladen  Markač, Case Nos. IT-01-45-AR73.1, IT-03-73-AR73.1 and IT-03-73-AR73.2, Decision on Appellant Mladen Markač’s Motion for Clarification, 12 January 2007], p. 4. See also, Slobodan Milošević v. Prosecutor, Case No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defense Counsel, 1 November 2004 (“Milošević Decision on Defence Counsel”), para. 9.

[3] Lukić Provisional Release Decision, para. 4; Stanišić Provisional Release Decision, para. 6.

[4] Lukić Provisional Release Decision, para. 5; Stanišić Provisional Release Decision, para. 6.

[5] Milošević Decision on Defence Counsel, para. 10, Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-AR73.4, Decision on Appeal Against the Trial Chamber’s Decision (No.2) on Assignment of Counsel, 8 December 2006, para. 16. 

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Decision on Whether to Continue or Restart Trial - 24.09.2003 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A15bis)

23. The discretion of the Trial Chamber meant that the Trial Chamber had the right to establish the precise point within a margin of appreciation at which a continuation should be ordered. In that decision-making process, the Appeals Chamber can intervene only in limited circumstances, as, for example, where it is of the view that there was a failure to exercise the discretion, or that the Trial Chamber failed to take into account a material consideration or took into account an immaterial one and that the substance of its decision has in consequence been affected. It is not enough that the Appeals Chamber would have exercised the discretion differently. However, even if a trial court has not otherwise erred, the appellate “court must, if necessary, examine anew the relevant facts and circumstances to exercise a discretion by way of review if it thinks that the judge’s ruling may have resulted in injustice to the appellants.”[1]

[…]

27. The Appeals Chamber does not consider it useful to lay down a hard and fast relationship between the proportion of witnesses who have already testified and the exercise of the power to order a continuation of the trial with a substitute judge. The discretion to continue the trial with a substitute judge is a discretion; the Appeals Chamber can only interfere with the way in which the discretion has been exercised if it has been incorrectly exercised in the circumstances mentioned above.  The stage reached in each case need not always be the same. […]

[1] See R. v. McCann, (1991), 92 Cr. App. R. 239 at 251, per Beldam, L.J., reading the judgment of the Court of Appeal and citing Evans v. Bartlam, [1937] A.C.473. A civil case can likewise be interpreted to mean that, even if there is no other vitiating error, an appellate court could interfere with the exercise by the lower court of its discretion where the latter “has exceeded the generous ambit within which a reasonable disagreement is possible”.  See Lord Fraser of Tullybelton in G. v. G. (Minors: Custody Appeal), [1985] 2 All ER 210, H.L., at 228.

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Decision on Exclusion of Evidence - 19.12.2003 BAGOSORA et al. (Military I)
(ICTR-98-41-AR93 & ICTR-98-41-AR93.2)

11.     The decision to admit or exclude evidence pursuant to Rule 89(C) is one within the discretion of the Trial Chamber and, therefore, appellate intervention is warranted only in limited circumstances. The Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) has summarized the applicable standard of review as follows: “It is for the party challenging the exercise of a discretion to identify for the Appeals Chamber a ‘discernible’ error made by the Trial Chamber. It must be demonstrated that the Trial Chamber misdirected itself either as to the principle to be applied, or as to the law which is relevant to the exercise of the discretion, or that it has given weight to extraneous or irrelevant considerations, or that it has failed to give weight or sufficient weight to relevant considerations, or that it has made an error as to the facts upon which it has exercised its discretion.”[1] If the Trial Chamber has properly exercised its discretion, the Appeals Chamber may not intervene solely because it may have exercised the discretion differently.[2]

[…]

16.     The Appeals Chamber affirms that the Trial Chamber has a broad discretion to direct the course of the proceedings in accordance with its fundamental duty to ensure a fair and expeditious trial pursuant to Article 19(1) of the Statute. In pursuit of these goals, the Trial Chamber may choose to exclude otherwise relevant and probative evidence where its prejudicial effect will adversely affect the fairness or expeditiousness of the proceedings. […]

[1] Prosecutor v. Milosević, Nos. IT-99-37-AR73, IT-01-50-AR73 & IT-01-51-AR73, Reasons for Decision on Prosecution Interlocutory Appeal from Refusal to Order Joinder, 18 April 2002, para. 5 (footnotes omitted).

[2] Ibid., para. 4.

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ICTR Statute Article 19(1) ICTY Statute Article 20(1) ICTR Rule Rule 89(C) ICTY Rule Rule 89(C)
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Decision Regarding Leave to Amend Indictment - 19.12.2003 KAREMERA et al.
(ICTR-98-44-AR73 )

9. Because the question whether to grant leave to amend the indictment is committed to the discretion of the Trial Chamber by Rule 50 of the Rules, appellate intervention is warranted only in limited circumstances.  As the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (“ICTY”) has explained, the party challenging the exercise of a discretion must show “that the Trial Chamber misdirected itself either as to the principle to be applied, or as to the law which is relevant to the exercise of the discretion, or that it has given weight to extraneous or irrelevant considerations, or that it has failed to give weight or sufficient weight to relevant considerations, or that it has made an error as to the facts upon which it has exercised its discretion.”  If the Trial Chamber has properly exercised its discretion, the Appeals Chamber may not intervene solely because it may have exercised the discretion differently.  However, if the Trial Chamber has committed an error that has prejudiced the party challenging the decision, the Appeals Chamber “will review the order made and, if appropriate and without fetter, substitute its own exercise of discretion for that of the Trial Chamber.”

[1] Prosecutor v. Milosević, Nos. IT-99-37-AR73, IT-01-50-AR73 & IT-01-51-AR73, Reasons for Decision on Prosecution Interlocutory Appeal from Refusal to Order Joinder, 18 April 2002 (“Milosević”), para. 5 (footnotes omitted).

[2] Ibid., para. 4.

[3] Ibid., para. 6.

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Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

174. Rule 73bis(E) of the Rules provides that after the commencement of the trial, the Prosecutor, if he considers it to be in the interests of justice, may move the trial chamber for leave to reinstate the list of witnesses or to vary his decision as to which witnesses are to be called. The rule does not impose a time limit to validly raise a request under this provision. However, the jurisprudence of both the Tribunal and the ICTY indicates that, when assessing whether it is in the interests of justice to permit the Prosecution to vary its witness list, the trial chamber shall take into account the potential prejudice to the Defence and the stage of the proceedings among other factors.[1] The Appeals Chamber nonetheless emphasises that decisions concerning the variation of a party’s witness list are among the discretionary decisions of the trial chamber to which the Appeals Chamber must accord deference.[2]

[…]

178. […] [T]he purpose of Rule 73bis(E) of the Rules is to allow the Prosecution to correct its prior assessment of which witnesses to call “after the commencement of [t]rial”. Nothing in Rule 73bis(E) of the Rules requires that the addition of new witnesses be conditioned upon the removal of witnesses who were expected to testify about the same facts.[3] […]

179. […] Furthermore, while the Appeals Chamber observes that trial chambers of the ICTY have previously emphasised considerations such as the stage of the proceedings and the justification provided in support of requests for the amendment of witness lists,[4] the Appeals Chamber finds that Ntahobali’s reliance on the Mrkšić et al. decisions is not pertinent. The Appeals Chamber stresses that the manner in which the discretion to manage trials is exercised by a trial chamber should be determined in accordance with the case before it; what is reasonable in one trial is not automatically reasonable in another.[5] The question of whether a trial chamber abused its discretion should not be considered in isolation, but rather by taking into account all relevant circumstances of the case at hand.[6] It can therefore not be held that granting a request for the addition of witnesses in the last stages of a party’s presentation of its case is per se unreasonable and prejudicial to the opposing party; such an assessment rather requires a careful balancing of various interests and circumstances on a case-by-case basis.

[1] See Prosecutor v. Zdravko Tolimir, Case No. IT-05-88/2-T, Decision on Prosecution’s Motion for Leave to Amend the Rule 65ter Witness List and for Disclosure of an Expert Witness Report Pursuant to Rule 94bis, 31 August 2010, para. 4; Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Decision on Prosecution’s Motion for Leave to Amend Its Witness List to Add Witness KDZ597, 1 July 2010, para. 5; Prosecutor v. Momčilo Perišić, Case No. IT‑04-81-T, Decision on Prosecution’s Motion to Substitute Expert Witness, 30 October 2009 (“Perišić 30 October 2009 Decision”), para. 6; Prosecutor v. Vlastimir Đorđević, Case No. IT-05-87/1-T, Decision on Prosecution’s Motion to Add Milan Đaković to the Rule 65ter Witness List, 21 May 2009 (“Đorđević 21 May 2009 Decision”), para. 6; The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Decision on Prosecutor’s Motion for Leave to Vary the Witness List Pursuant to Rule 73bis(E), 21 May 2004, para. 13. See also The Prosecutor v. Augustin Ndindiliyimana et al., Case No. ICTR-2000-56-T, Decision on Prosecution Motion to Vary Its List of Witnesses: Rule 73 bis (E) of the Rules, 11 February 2005, paras. 22, 23.

[2] See Augustin Ngirabatware v. The Prosecutor, Case No. ICTR-99-54-AR73(C), Decision on Ngirabatware’s Appeal of the Decision Reducing the Number of Defence Witnesses, 20 February 2012 (“Ngirabatware Appeal Decision”), para. 12; 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 (“21 August 2007 Appeal Decision”), para. 10; Prosecutor v. Milan Milutinović et al., Case No. IT-05-87-AR73.1, Decision on Interlocutory Appeal Against Second Decision Precluding the Prosecution from Adding General Wesley Clark to Its 65ter Witness List, 20 April 2007 (“Milutinović et al. Appeal Decision”), paras. 9, 10.

[3] See The Prosecutor v. Augustin Ngirabatware, Case No. ICTR-99-54-T, Decision on Prosecution Motion for Leave to Vary Its Witness List, 28 January 2010, para. 50, referring to The Prosecutor v. Augustin Ndindiliyimana et al., Case No. ICTR-2000-56-T, Decision on Sagahutu’s Request to Vary His Witness List, 26 May 2008, paras. 5, 6.

[4] See, e.g., Perišić 30 October 2009 Decision, para. 6; Đorđević 21 May 2009 Decision, para. 5; Prosecutor v. Milan Lukić and Sredoje Lukić, Case No. IT-98-32/1-T, Decision on Prosecution’s Motion to Amend Prosecution’s Witness List (Dr. Fagel), 3 November 2008, p. 3.

[5] Haradinaj et al. Appeal Judgement, para. 39.

[6] Haradinaj et al. Appeal Judgement, para. 39.

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ICTR Rule Rule 73bis(E) ICTY Rule Rule 73bis(F)
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Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

295. It is not disputed by the parties that nothing in the Statute or the Rules imposes the mandatory communication to the parties to the main proceedings of an amicus curiae report requested pursuant to Rules 77(C)(ii) or 91(B)(ii) of the Rules.[1] The decision to communicate an amicus curiae report filed before the trial chamber pursuant to Rules 77 or 91 of the Rules to the parties of the main proceedings therefore falls within the discretion of the trial chamber. This discretion must be exercised consistently with Articles 19 and 20 of the Statute, which require trial chambers to ensure that trials are fair and expeditious.[2] […]

[…]

300. Mindful that the decision to communicate to the parties of the main proceedings an amicus curiae report filed pursuant to Rules 77 or 91 of the Rules falls within the discretion of the relevant chamber and that there may be instances where the communication of such reports is not in the interests of justice, the Appeals Chamber fails to understand why, in this case, the Trial Chamber decided to deprive the parties of information that might have been relevant to their cases in the absence of any circumstances that may have justified its non-communication. The Appeals Chamber therefore finds that the Trial Chamber’s decision not to communicate the Second Amicus Curiae Reports to the parties before the delivery of the Trial Judgement was unreasonable and constituted an abuse of the Trial Chamber’s discretion.[3]

[1] Both Rules 77(C)(ii) and 91(B)(ii) of the Rules state that the appointed amicus curiae is to “report back to the Chamber as to whether there are sufficient grounds for instigating” contempt or false testimony proceedings.

[2] See, e.g., Nizeyimana Appeal Judgement, para. 286; Ndahimana Appeal Judgement, para. 14; Setako Appeal Judgement, para. 19.

[3] In light of this outcome, the Appeals Chamber finds it unecessary to considers Nyiramasuhuko’s and Ntahobali’s contention that the Trial Chamber erred in stating in the Trial Judgement that the investigations against Witnesses QA, QY, and SJ were “on-going”.

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ICTR Rule Rule 77(C)(ii);
Rule 91(B)(ii)
ICTY Rule Rule 77(C)(ii);
Rule 91(B)(ii)
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Decision on Fair Trial and Presumption of Innocence - 27.02.2017 MLADIĆ Ratko
(IT-09-92-AR73.6)

8.       The Trial Chamber’s determination of whether the engagement of certain staff would lead to actual bias or the appearance of bias is a discretionary decision to which the Appeals Chamber must accord deference.[1] […]

[…]

23.     […] The Appeals Chamber considers that the Impugned Decision concerns the engagement of staff to assist the Trial Chamber and recalls that a trial chamber’s determination in this respect is a discretionary decision to which the Appeals Chamber must accord deference.[2] However, the Appeals Chamber emphasizes that trial chambers must exercise their discretion consistently with Articles 20 and 21 of the Statute, which require trial chambers to ensure that a trial is fair and expeditious.[3]

[1] The Prosecutor v. Casimir Bizimungu et al., Case No. ICTR-99-50-AR‑73.8, Decision on Appeals Concerning the Engagement of a Chambers Consultant or Legal Officer, 17 December 2009 (“Bizimungu et al. Appeal Decision”), para. 4.

[2] Bizimungu et al. Appeal Decision, para. 4.  See also supra, para. 8.

[3] See Nyiramasuhuko et al. Appeal Judgement, para. 138; Ildéphonse Nizeyimana v. The Prosecutor, Case No. ICTR‑00-55C-A, Judgement, 29 September 2014, para. 286; Augustin Ngirabatware v. The Prosecutor, Case No. ICTR-99-54-A, Decision on Augustin Ngirabatware’s Appeal of Decisions Denying Motions to Vary Trial Date, 12 May 2009, para. 22.

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