General principles

Notion(s) Filing Case
Decision on Reopening Appeal - 07.06.2007 STRUGAR Pavle
(IT-01-42-Misc.1)

22. […] In general, the Appeals Chamber has the power to reconsider past decisions, particularly “where it was realized that the previous decision was erroneous or where it has caused an injustice.”[1] […]

23. […] It is clear that the Appeals Chamber normally has the power to reconsider its prior decisions.[2] […] While the Appeals Chamber once held that it has the inherent power to reconsider final judgements,[3] it has since taken a different position and held that there is no inherent power to reconsider final judgements.[4]

[1] Prosecutor v. Stanislav Galić, Case No. IT-98-29-AR73, Decision on Application by Prosecution for Leave to Appeal, 14 December 2001 (“Galić Decision”), para. 13.

[2] Prosecutor v. Zdravko Mucić et al, Case No. IT-96-21-Abis, Judgement on Sentence Appeal, 8 April 2003 (“Čelebići Decision”), para. 49; Prosecutor v. Zoran Žigić, Case No. IT-98-30/1-A, Decision on Zoran Žigić’s ‘Motion for Reconsideration of Appeals Chamber Judgement IT-98-30/1-A Delivered on 28 February 2005’, 26 June 2006 (“Žigić Decision”), para. 9.

[3] Čelebići Decision [Prosecutor v. Zdravko Mucić et al, Case No. IT-96-21-Abis, Judgement on Sentence Appeal, 8 April 2003], paras 49-53.

[4] Žigić Decision [Prosecutor v. Zoran Žigić, Case No. IT-98-30/1-A, Decision on Zoran Žigić’s ‘Motion for Reconsideration of Appeals Chamber Judgement IT-98-30/1-A Delivered on 28 February 2005’, 26 June 2006], para. 9; see also Prosecutor v. Eliézer Niyitegeka, Case No. ICTR-96-14-R, Decision on Request for Reconsideration of the Decision on Request for Review, 27 September 2006, pp. 1-2; Prosecutor v. Timohir Blaškić, Case No. IT-95-14-R, Decision on Prosecutor’s Request for Review or Reconsideration, 23 November 2006, para. 79 (Public Redacted Version); Georges Anderson Nderubumwe Rutaganda v. Prosecutor, Case No. ICTR-96-03-R, Decision on Requests for Reconsideration, Review, Assignment of Counsel, Disclosure, and Clarification, 8 December 2006, para. 6. 

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Notion(s) Filing Case
Appeal Judgement - 15.07.1999 TADIĆ Duško
(IT-94-1-A)

55. The Appeals Chamber can conceive of situations where a fair trial is not possible because witnesses central to the defence case do not appear due to the obstructionist efforts of a State.  In such circumstances, the defence, after exhausting all the other measures mentioned above, has the option of submitting a motion for a stay of proceedings. The Defence opined during the oral hearing that the reason why such action was not taken in the present case may have been due to trial counsel’s concern regarding the long period of detention on remand.  The Appeals Chamber notes that the Rules envision some relief in such a situation, in the form of provisional release, which, pursuant to Sub-rule 65(B),[1] may be granted “in exceptional circumstances”.  It is not hard to imagine that a stay of proceedings occasioned by the frustration of a fair trial under prevailing trial conditions would amount to exceptional circumstances under this rule. The obligation is on the complaining party to bring the difficulties to the attention of the Trial Chamber forthwith so that the latter can determine whether any assistance could be provided under the Rules or Statute to relieve the situation.  The party cannot remain silent on the matter only to return on appeal to seek a trial de novo, as the Defence seeks to do in this case.

[1] NOTE: AT THE TIME OF THE PRESENT JUDGEMENT RULE 65(B) PROVIDED:

Release may be ordered by a Trial Chamber only in exceptional circumstances, after hearing the host country and only if it is satisfied that the accused will appear for trial and, if released, will not pose a danger to any victim, witness or other person.

RULE 65(B) WAS AMENDED ON 17 NOVEMBER 1999, 13 DECEMBER 2001 AND 20 OCTOBER 2011. AS A RESULT IT NOW READS:

Release may be ordered at any stage of the trial proceedings prior to the rendering of the final judgement by a Trial Chamber only after giving the host country and the State to which the accused seeks to be released the opportunity to be heard and only if it is satisfied that the accused will appear for trial and, if released, will not pose a danger to any victim, witness or other person. The existence of sufficiently compelling humanitarian grounds may be considered in granting such release. 

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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 )

9. Pursuant to Rule 108 of the Rules, the Appeals Chamber “may, on good cause being shown by motion, authorise a variation of the grounds of appeal” contained in the notice of appeal. Such motions should be submitted “as soon as possible after identifying the new alleged error”[1] of the Trial Chamber to be included in the notice of appeal or after discovering any other basis for seeking a variation to the notice of appeal. Generally, “a request to amend a notice of appeal must, at least, explain precisely what amendments are sought and why, with respect to each such amendment, the 'good cause’ requirement of Rule 108 is satisfied”.[2]

13. In sum, variations to the notice of appeal will only be allowed (i) for good cause reasons within the meaning of Rule 108, as defined by the above-discussed principles; (ii) if they remedy the counsel’s negligence or inadvertence and are of substantial importance to the success of the appeal; or (iii) if they otherwise correct ambiguity or error made by counsel and do not unduly delay the appeal proceedings, as, for example, in the case of minor and non-substantive modifications. With respect to the revisions to the appeal brief (or, in the alternative, supplemental briefing), they will be permitted only (i) as necessary to reflect the amendments to the notice of appeal; or (ii) as necessary to correct ambiguity or error in the counsel’s filings, without unduly delaying the appeal proceedings.[3]

21. As a preliminary matter, the Appeals Chamber notes that the Appellant seeks to have his Notice of Appeal modified only as a consequence of including the newly submitted grounds of appeal into his Appellant’s Brief. Rule 108 of the Rules clearly applies to seeking a variation of the notice of appeal and, where leave is granted to amend the notice of appeal, the appellant may be granted leave to amend the appeals brief to reflect the amendment to the notice of appeal. Nevertheless, the Appeals Chamber will consider the Motion of 6 March 2006 as requesting the variation of grounds of appeal contained in both the Notice of Appeal and the Appellant’s Brief simultaneously. Since the variations of the Appellant’s Notice of Appeal sought by his Motion of 5 July 2006 are of a broader scope than the newly submitted grounds of appeal, the Appeals Chamber will address the former in a separate section of the present decision.[4]

[1] Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-A, Decision on Mladen Naletilić’s Motion for Leave to File Pre-Submission Brief, 13 October 2005, pp. 2-3.

[2] Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Decision on Dragan Jokić’s Motion to Amend Notice of Appeal, 14 October 2005 (“Blagojević Decision of 14 October 2005”), para. 7. See also Practice Direction on Formal Requirements for Appeals from Judgement, 4 July 2005, paras 2-3.

[3] Decision on Motion of Dragan Jokić for Leave to File Third Amended Notice of Appeal and Amended Appellate Brief, 26 June 2006 (“Blagojević Decision of 26 June 2006”), para. 11.

[4] See paras. 47- 53 infra.

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ICTR Rule Rule 108 ICTY Rule Rule 108 Other instruments Practice Direction on Formal Requirements for Appeals from Judgement (ICTR): Paras 2-3.
Notion(s) Filing Case
Reconsideration Appeal Decision - 03.11.2009 PRLIĆ et al.
(IT-04-74-AR73.16)

18. The Appeals Chamber recalls that for an applicant to succeed in a request for reconsideration, “he must satisfy the [Trial] Chamber of the existence of a clear error of reasoning in the [impugned decision], or of particular circumstances justifying its reconsideration in order to avoid injustice”.[1] Particular circumstances include new facts or new arguments.[2] However, to succeed on this basis, an applicant must demonstrate how any new facts or arguments submitted in a request for reconsideration justify reconsideration.[3]

19. […]  It was well within the exercise of the Trial Chamber’s discretion to refuse reconsideration in circumstances where in submitting new information the appellant patently failed to demonstrate that it was of such a nature that it constituted a new circumstance warranting the Trial Chamber’s reconsideration.

[1] Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Decision on Defence’s Request for Reconsideration, 16 July 2004 (“Galić Decision”), p. 2. See also Prosecutor v. Enver Hadžihasanović, Amir Kubura, Case No. IT-01-47-A, Decision on Appellant’s Motion for Reconsideration and Extension of Time Limits, 30 January 2007 (“Hadžihasanović Decision”), para. 9.

[2] Galić Decision, p. 2.

[3] Galić Decision, p. 2, Hadžihasanović Decision, para. 9. See also Milošević Decision on Joinder [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], paras 4-5.

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Notion(s) Filing Case
Decision on Reconsideration - 07.12.2009 LUKIĆ & LUKIĆ
(IT-98-32/1-A)

4. […] The Appeals Chamber recalls that requests for reconsideration “are the product of the Tribunal’s jurisprudence, and are permissible only under certain conditions”.[1] In particular, such a request by definition has to be made before the same Chamber that rendered the impugned decision […].

[1] Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-PT, Decision on Prosecution’s Request for Reconsideration, 23 July 2009 (“Karadžić Decision”), para. 7.

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Notion(s) Filing Case
Appeal Judgement - 19.10.2000 KAMBANDA Jean
(ICTR 97-23-A)

When considering a submission of the Appellant that the Trial Chamber should have raised the issue of counsel, the Appeals Chamber held:

25. The fact that the Appellant made no objection before the Trial Chamber to the Registry’s decision means that, in the absence of special circumstances, he has waived his right to adduce the issue as a valid ground of appeal.[1] In the instant case, the Appeals Chamber adopts the conclusions of the ICTY Appeals Chamber in the Tadić case:

The obligation is on the complaining party to bring the difficulties to the attention of the Trial Chamber forthwith so that the latter can determine whether any assistance could be provided under the Rules or Statute to relieve the situation.  The party cannot remain silent on the matter only to return on appeal to seek a trial de novo […][2].

27. The Appeals Chamber agrees with the position of the Human Rights Committee, established under the International Covenant on Civil and Political Rights, which in one of its findings affirms that

[a Party] would not [be] allowed, unless special circumstances could be shown, to raise issues on appeal that had not previously been raised by counsel in the course of the trial[3].

41. The Appeals Chamber has set out above the consequences which attend a failure to raise an issue before the Trial Chamber. As a matter of principle, where a party has failed to bring an issue to the attention of the court of first instance it is debarred from raising it on appeal. Exceptions to this rule will only be made where the particular circumstances of the case demand, for example because the matter could not realistically have been raised earlier. It is for the moving party to convince the court that such exceptional circumstances exist.

[1] See “Judgement”, The Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-A, App. Ch., 21 July 2000, para. 174.

[2] “Judgement”, The Prosecutor v. Duško Tadić, Case No. IT-94-1-A, App. Ch., 15 July 1999, para. 55.

[3] Albert Berry v. Jamaica, Comm. No. 330/1998, 26 April 1994, UN doc. CCPR/C/50/D/330/1998, para. 11.6. See also Glenford Campbell v. Jamaica, Comm. No. 248/1997, 30 March 1992.

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Notion(s) Filing Case
Decision on Leave to Appeal (Prosecution) - 14.12.2001 GALIĆ Stanislav
(IT-98-29-AR73)

13. A Trial Chamber may nevertheless always reconsider a decision it has previously made, not only because of a change of circumstances but also where it is realised that the
previous decision was erroneous or that it has caused an injustice.[1]  Where such a decision is changed, there will be a need in every case for the Trial Chamber to consider with great care and to deal with the consequences of the change upon the proceedings which have in the meantime been conducted in accordance with the original decision.

 

[1]     Although a Trial Chamber has held that motions for reconsideration of a previous decision are not provided for in the Rules and that they do not form part of the procedures of the Tribunal (Prosecutor v Kordić & Čerkez, Case IT-95-14/2-PT, Decision on Prosecutor’s Motion for Reconsideration, 15 Feb 1999, p 2), that ruling has not been followed.  In Prosecutor v Delalić et al, Case IT-96-21-A, Order of the Appeals Chamber on Hazim Delić’s Emergency Motion to Reconsider Denial of Request for Provisional Release, 1 June 1999, p 4, the Appeals Chamber held that it was appropriate to reconsider its previous decision (refusing provisional release of an appellant) where “particular circumstances” justified such reconsideration, although it rejected the application for reconsideration on its merits.  In Prosecutor v Brđanin & Talić, Case IT-99-36-PT, Order on the Prosecution’s Motion for Reconsideration of the Order Issued by the President on 11 September 2000, 11 Jan 2001, p 4, President Jorda also considered and rejected on its merits an application for reconsideration of a previous decision.

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Notion(s) Filing Case
Decision on Inter Partes Proceedings in Rule 86 Matters - 09.03.2017 KARADŽIĆ Radovan
(MICT-13-55-A)

5.       […] A party requesting reconsideration of a decision must satisfy the chamber of the existence of a clear error of reasoning in the impugned decision, or of particular circumstances justifying reconsideration in order to avoid injustice. […]

[1] Prosecutor v. Jean-Paul Akayesu, Case No. MICT-13-30, Decision on a Motion for Reconsideration, 30 June 2016, p. 1 and reference cited therein. See also Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-A, Public Redacted Version of the “Decision on Valentin Ćorić’s Request for Provisional Release” Issued on 15 August 2016, p. 3 and references cited therein.

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