Interests of justice

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
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
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 Motion for Severance - 24.07.2009 BAGOSORA et al. (Military I)
(ICTR-98-41-A)

34.     The Appeals Chamber notes that when assessing whether the interests of justice require the severance of a case pursuant to Rule 82(B) of the Rules, issues such as the interrelation of the co-Appellants’ cases on a factual and legal basis and considerations of judicial economy have to be duly taken into account. The Appeals Chamber recalls that “a joint trial is the best guarantee that identical evidence with regard to each accused is fully considered”.[4] The same is true on appeal. The Appeals Chamber further notes that in the instant case, Ntabakuze may directly benefit from the Appeals Chamber’s consideration of all issues raised by all co-Appellants in their respective appeal briefs at the same time.

[1] See for example Rule 115(D) of the Rules which benefits co-appellants in the presentation of additional evidence.

[2] This has been previously noted for trial proceedings in a number of cases: See, e.g., Tolimir Decision, para. 8; Prosecutor v. Radoslav Brðanin and Momir Talić, Case No. IT-99-36-PT, Decision on Motions By Momir Talić for a Separate Trial and for Leave to File a Reply, 9 March 2000, para. 31 (“Nothing could be more destructive of the pursuit of justice than to have inconsistent results in separate trials based upon the same facts.”); Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Decision on Motions for Separate Trial Filed by the Accused Zejnil Delalić and the Accused Zdravko Mucić, 26 September 1996, para. 7.

[3] Cf. 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, para. 9; 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, para. 5 (“Tolimir Decision”).

[4] The Prosecutor v. Vinko Pandurević & Milorad Trbić, Case No. IT-05-86-AR73.1, Decision on Vinko Pandurević’s Interlocutory Appeal Against the Trial Chamber’s Decision on Joinder of Accused, 24 January 2006 (“Pandurević Decision of 24 January 2006”), para. 27. The ICTY Appeals Chamber found that it was reasonable to conclude that “one joint trial would ensure that the same evidence is available and assessed with regard to each accused and thus result in a greater likelihood of consistent evaluation of the evidence, findings and verdicts on the basis of the same facts” (See Pandurević Decision of 24 January 2006, para. 23).

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ICTR Rule Rule 82(B)
Notion(s) Filing Case
Decision on Additional Evidence - 21.07.2005 BLAGOJEVIĆ & JOKIĆ
(IT-02-60-A)

11.     […] [T]he Appellant had ample time to file a motion requesting that the Trial Chamber reopen the proceedings to consider the evidence.[1] […]

[1] Although procedures for reopening trial proceedings are not specified under the Rules, the Trial Chamber might permit reopening in unusual cases where the demands of justice so require, relying on its general authority under Rule 89(B) of the Rules, which provides that in “cases not otherwise provided for in this Section, a Chamber shall apply rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law.”

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ICTR Rule Rule 89(B) ICTY Rule Rule 89(B)