Interlocutory appeals

Notion(s) Filing Case
Decision on Appeal of Bureau Decision - 22.05.2006 SEROMBA Athanase
(ICTR-01-66-AR)

In this case, the Defendant sought to appeal the Tribunal Bureau’s decision not to disqualify a judge pursuant to Rule 15(B). The Appeals Chamber noted that the Statute and Rules of the Tribunal do not provide for an interlocutory appeal to the Appeals Chamber of a decision taken by the Tribunal’s Bureau pursuant to Rule 15(B).

4. The Statute and Rules of the Tribunal do not provide for an interlocutory appeal to the Appeals Chamber of a decision taken by the Bureau pursuant to Rule 15(B).[1] Rather, the Appeals Chamber’s consideration of whether a Trial Judge should have been disqualified is limited to an appeal against a conviction or where the issue properly arises in an interlocutory appeal certified by a Trial Chamber.[2]

5. Rule 15(B) envisions a specific two-stage process of consideration for a request to disqualify a Judge. As the Rule clearly states, an application for disqualification is to be made to the Presiding Judge of the Chamber seized of the proceedings, which in this case is Judge Khan, the Presiding Judge of Trial Chamber III.[3] The Presiding Judge is then to confer with the Judge in question. If the party disputes the Presiding Judge’s decision, the Bureau shall determine the matter in a de novo review.[4]

6. The Appeals Chamber observes that Mr. Seromba did not follow this procedure and filed his claim directly with the Bureau,[5] thereby depriving himself of the review procedure envisioned by the Rule. Although it would have been within the discretion of the Bureau to dismiss Mr. Seromba’s request as improperly filed,[6] the Appeals Chamber cannot conclude that it erred in considering the matter in the first instance.

[1] See generally The Prosecutor v. Stanislav Galić, Case No. IT-98-29-AR54, Decision on Appeal from Refusal of Application for Disqualification and Withdrawal of Judge, 13 March 2003, para. 8 (“Galić Appeals Chamber Decision”); The Prosecutor v. Vidoje Blagojević et al., Case No. IT-02-60, Decision on Blagojević’s Motion for Clarification, 27 March 2003, para. 4 (ICTY Bureau) (“Blagojević Decision”).

[2] See Galić Appeals Chamber Decision, para. 8; Blagojević Decision, paras. 4, 5. For example, the Appeals Chamber has considered the impartiality of Trial Judges in Laurent Semanza v. The Prosecutor, Case No. ICTR 97-20-A, Judgement, 20 May 2005, paras. 12-58; The Prosecutor v. Edouard Karemera et al., Case No. 98-44-AR15bis.2, Reasons for Decision on Interlocutory Appeals Regarding the Continuation of Proceedings with a Substitute Judge and on Nzirorera’s Motion for Leave to Consider New Material, 22 October 2004, paras. 62-68; Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR 96-14-A, Judgement, 9 July 2004, paras. 43-46; The Prosecutor v. Jean Paul Akayesu, Case No. 96-4-A, 1 June 2001, paras. 85-101. See also The Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-A, Judgement, 21 July 2000, paras. 164-215.

[3] See The Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-PT, Decision on Disqualification of the Appeals Chamber, 9 December 2004, para. 3 (ICTY Bureau) (“Šešelj  Decision”); Galić Appeals Chamber Decision, paras. 8, 9.

[4] Šešelj  Decision, para. 3; Galić Appeals Chamber Decision, paras. 8, 9; The Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Decision on Galić’s Application pursuant to Rule 15 (B), 28 March 2003, para. 7.

[5] Impugned Decision, para. 4.

[6] Šešelj  Decision, para. 3.

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ICTR Rule Rule 15 ICTY Rule Rule 15
Notion(s) Filing Case
Decision on Validity of Appeal - 29.07.2004 ŠEŠELJ Vojislav
(IT-03-67-AR72.1)

2. The Appeal purports to proceed as an interlocutory appeal as of right under Rule 72(B)(i) of the Rules of Procedure and Evidence of the International Tribunal (“Rules”), which states that preliminary motions are without interlocutory appeal, except “in the case of motions challenging jurisdiction.”[1] Rule 72(D) of the Rules expands on this provision by stating that, for purposes of Rule 72(B)(i) of the Rules, a “motion challenging jurisdiction refers exclusively to a motion which challenges an indictment on the ground that it does not relate to” the personal, territorial or temporal jurisdiction of the Tribunal, or to any of the violations enumerated in Articles 2, 3, 4, 5 and 7 of the Statute.

7. The decisions of the Appeals Chamber, as well as the decisions of the Appeals Chamber of the International Criminal Tribunal for Rwanda under an identical provision of that Tribunal’s Rules of Procedure and Evidence, make clear that an appeal concerning an issue whether a charge in an indictment falls within a statutory grant of jurisdiction meets the requirements of Rule 72(D) of the Rules and may proceed.[2] This Appeal satisfies the requirements of Rule 72(D)(iv) of the Rules and may therefore proceed.

[1] Rule 72(B)(i) [Rules of Procedure and Evidence, IT/32/Rev. 32, 12 August 2004].

[2] See e.g. Prosecutor v. Hadžihasanović et al., No. IT-01-47-AR72, Decision Pursuant to Rule 72(E) as to Validity of

Appeal, 21 February 2003; Prosecutor v. Milutinović et al., No. IT-99-37-AR72, Decision Pursuant to Rule 72(E) as to

Validity of Appeal, 25 March 2003; Decision on Dragoljub Ojdanić’s Motion Challenging Jurisdiction — Joint Criminal Enterprise, 21 May 2003; Prosecutor v. Rwamakuba, No. ICTR-98-44-AR72.4, Decision on Validity of Appeal of André Rwamakuba Against Decision Regarding Application of Joint Criminal Enterprise to the Crime of Genocide Pursuant to Rule 72(E) of the Rules of Procedure and Evidence, 23 July 2004.

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ICTR Rule Rule 72 ICTY Rule Rule 72
Notion(s) Filing Case
Decision on Rule 92 bis Evidence - 01.07.2010 PRLIĆ et al.
(IT-04-74-AR73.17)

47. An order of a Trial Chamber may be stayed if the objective of an appeal against the order would be significantly impaired should the order be already given effect.[1] In determining whether to stay the enforcement of an order pending an appeal, a Chamber must balance the potential of harm to the accused by enforcement of the order with the potential of harm to a legally protected interest by suspension of the order.[2] […].

[1] Prosecutor v. Momčilo Perišić, Case No. IT-04-81-AR108bis.4, Order Suspending the Execution of the Trial Chamber’s Decision of 15 February 2010 Pursuant to Rule 108bis of the Rules, 23 March 2010, p. 1; Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR65.1, Order on the Prosecution’s Motion for a Stay, 10 August 2004, p. 3. 

[2] Prosecutor v. Vojislav [ešelj, Case No. IT-03-67-R77.2-A, Decision on Urgent Motions to Remove or Redact Documents Pertaining to Protected Witnesses, 16 December 2009 (confidential), p. 4.

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Notion(s) Filing Case
Decision After Remand - 11.05.2007 PRLIĆ et al.
(IT-04-74-AR73.4)

18. [I]n spite of the Trial Chamber’s Certification Decision, certification was not required in this case. The Appeals Chamber remained seized of the issues raised by the Prosecution in its Interlocutory Appeal having remanded the Impugned Decision for the purpose of obtaining the Trial Chamber’s renewed assessment and further substantiation of the reasoning underpinning its decision to reduce the Prosecution’s remaining allocated time for the presentation of its case.[1]

19. Thus, regardless of the Certification Decision, the Appeals Chamber considers itself seized of the original Interlocutory Appeal as well as of the Interlocutory Appeal Following Remand in which the Prosecution takes further issue with the sufficiency of the reasoning provided by the Trial Chamber in the Impugned Decision on Remand in support of maintaining the Impugned Decision. […]

[1] Appeals Chamber’s Decision [Decision on Prosecution Appeal Concerning the Trial Chamber’s Ruling Reducing Time For The Prosecution Case, 6 February 2007, summary also provided in AC Case Law tool], para. 24.

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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
Mistrial Decision - 02.04.2014 STANIŠIĆ & ŽUPLJANIN
(IT-08-91-A)

35.     […] [T]he Appeals Chamber turns to the argument that it may order the termination of proceedings and release of an accused after interlocutory review of a denial of an accused’s rights, including during appellate proceedings. The doctrine of “abuse of process” allows a court to decline to exercise jurisdiction either because it will be impossible to give the accused a fair trial or because it offends the court’s sense of justice and propriety to try the accused in the circumstances of a particular case.[1] The question in cases of abuse of process is not whether it is “necessary” for a court to issue an interlocutory decision terminating proceedings (as for Rule 54 of the Rules examined above), but whether a court should continue to exercise jurisdiction over a case in light of serious and egregious violations of the accused’s rights that would prove detrimental to the court’s integrity.[2] The discretionary power of a court to stay or terminate proceedings by reason of abuse of process applies during the trial phase of a case, and is mostly concerned with prosecutorial misconduct, since its main purposes are to prevent wrongful convictions and preserve the integrity of the judicial system.[3] An allegation of partiality of a trial judge is a ground to appeal a conviction on the basis that it is unsafe.[4]

See also para. 22.

[1] R. v. Horseferry Road Magistrates' Court, Ex p. Bennett (No.1) [1994] 1 A.C. 42, H.L.(E.), 74G; Barayagwiza Decision [Jean-Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision, 3 November 1999], paras 74-75.

[2] Barayagwiza Decision [Jean-Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision, 3 November 1999], para. 74.

[3] See, e.g., Barayagwiza Decision [Jean-Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision, 3 November 1999], para. 112; Prosecutor v. Radoslav Brđanin & Momir Talić, Case No. IT-99-36-PT, Decision on Second Motion by Brđanin to Dismiss the Indictment, 16 May 2001, para. 5 (“[If a] Trial Chamber is satisfied that the absence of such resources will result in a miscarriage of justice, it has the inherent power and the obligation to stay the proceedings until the necessary resources are provided, in order to prevent the abuse of process involved in such a trial”).

[4] See R. v. A. (No. 2) [2002] 1 A.C. 45; [2001] UKHL 25, in which Lord Steyn observed that it was well-established that the right to a fair trial was absolute in the sense that a conviction obtained in breach of it cannot stand (at p. 65, para. 38). See also R. v. Forbes [2001] 1 A.C. 473, 487; [2000] UKHL 66, para. 24; R. v. Togher & Ors [2001] 3 All E.R. 463; [2000] EWCA Crim 111, para. 33 (“if a defendant has been denied a fair trial it will almost be inevitable that the conviction will be regarded as unsafe”).

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Notion(s) Filing Case
Mistrial Decision - 02.04.2014 STANIŠIĆ & ŽUPLJANIN
(IT-08-91-A)

23.     [...] [T]he Applicants contend that the Appeals Chamber is authorised or at least not precluded by the Rules to issue an interlocutory decision that would terminate proceedings because of a violation of an accused’s rights. They rely on Rule 54, which, in conjunction with Rule 107 of the Rules, permits the Appeals Chamber to issue orders as necessary for the conduct of proceedings.[1] The Appeals Chamber notes that the application of Rule 54 is discretionary and dependent upon the necessity of the relevant order for the conduct of the proceedings.[2] The Appeals Chamber therefore finds that it has the authority to consider an allegation of judicial bias in an interlocutory decision at this stage in the appeal proceedings under this rule.

[1] See, e.g., Prosecutor v. Ramush Haradinaj et al., Case No. IT-04-84-AR65.1, Stay of “Decision on Defence Motion of Ramush Haradinaj to Request Re-Assessment of Conditions of Provisional Release Granted 6 June 2005”, 16 December 2005.

[2] Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Judgement, 20 February 2001, para. 558; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Décision sur la Requête de Ferdinand Nahimana aux fins de Communication d’Éléments de Preuve Disculpatoires et d’Investigations sur l’Origine et le Contenu de la Pièce à Conviction P 105, 12 September 2006, para. 13. 

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ICTR Rule Rule 54;
Rule 107
ICTY Rule Rule 54;
Rule 107
Notion(s) Filing Case
Writ of Mandamus Decision - 27.03.2009 GOTOVINA et al.
(IT-06-90-AR73.3)

5. The Appeals Chamber considers that the issue in the present case is not whether it is competent to issue a writ of mandamus but rather whether the Trial Chamber complied with the Appeals Chamber’s Decision. It is established case-law before the International Tribunal that “a proper construction of the Statute requires that the ratio decidendi of its decisions is binding on Trial Chambers”.[1] When remanding the 9 October 2008 Decision to the Trial Chamber for reconsideration, the Appeals Chamber did not request that the Trial Chamber review its entire decision, but rather that it review it in light of the two errors identified by the Appeals Chamber. To the extent that the Joint Defence now submits that the Trial Chamber failed to address the two errors identified by the Appeals Chamber and thus challenges the same issues for which leave to appeal the 9 October 2008 Decision was originally granted, the Appeals Chamber remains competent to address the Joint Request.[2]

[1] Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-A, Judgement, 24 March 2000, para. 113.

[2] Prosecutor v. Prlić et al., Case No. IT-04-74-AR73.4, Decision on Prosecution’s Appeal Following Trial Chamber’s Decision on Remand and Further Clarification, 11 May 2007, para. 18.

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Notion(s) Filing Case
Decision on Provisional Release - 30.09.2004 STANIŠIĆ & SIMATOVIĆ
(IT-03-69-AR65.1)

2. In order for the Application to be granted, the Prosecution is required to demonstrate good cause. The jurisprudence of the Tribunal establishes that “good cause” under Rule 65 will be established where the applicant demonstrates that the Trial Chamber may have erred in the Impugned Decision.[1] [NOTE: WITH EFFECT FROM 8 AUGUST 2005 THE RULES OF PROCEDURE AND EVIDENCE WERE AMENDED SO THAT ANY DECISION UNDER RULE 65 RENDERED BY A TRIAL CHAMBER WOULD BE SUBJECT TO APPEAL AND THE PROVISION IN RULE 65(D) REQUIRING THAT LEAVE BE GRANTED BY A BENCH OF THREE JUDGES OF THE APPEALS CHAMBER “UPON GOOD CAUSE BEING SHOWN” WAS DELETED.] While the Prosecution is only required to show the possibility of error on the part of the Trial Chamber for good cause to be established that possibility of error must be clearly established.[2]

 

 

 

 

[1] Prosecutor v Blagoje Simić et. al, Case No. IT-95-9-AR65, Decision on Application for Leave to Appeal, 19 April 2000, page 3.

[2] Prosecutor v Nikola [ainović & Dragoijub Ojdanić, Case No. IT-99-37 AR 65.2, Decision Refusing Leave to Appeal, 26 June 2003; Prosecutor Blagoje Simić et.al, Case No. IT-95-9-AR65, Decision on Application for Leave to Appeal, 19 April 2000; Prosecutor v Fatmir Limaj, et al, Case No. IT-03-66-AR65.3, Decision on Isak Musliu’s Request for Provisional Release, 31 October 2003; Decision on Haradin Bala’s Request for Provisional Release, 31 October 2003; Decision on Fatmir Limaj’s Request for Provisional Release, 31 October 2003; Prosecutor v Momčilo Krajišnik & Biljana Plavšić, Case No. IT-00-39 & 40-AR65, Decision on Application for Leave to Appeal, 14 December 2001; Prosecutor v Enver Hadžihasanović, Case No. IT-01-47-AR65 & IT-0147- AR65.2, Decision on Application for Leave to Appeal, 5 September 2002; Prosecutor v Vidoje Blagojević, Case No. IT-02-60-AR65.3 & IT-02-60-AR65.4, Decision on Applications by Blagojević and Obrenović for Leave to Appeal, 16 January 2003.

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ICTR Rule Rule 65 ICTY Rule Rule 65
Notion(s) Filing Case
Decision on Motions - 29.09.2009 KAREMERA et al.
(ICTR-98-44-AR82)

19. The Appeals Chamber agrees that it retains jurisdiction over a matter which it remanded to a Trial Chamber where the question as to whether the Trial Chamber complied with its instructions is at issue. In the present case, a reading of the Decision on Remand on Continuation of Trial,[1] in particular of its outcome, clearly shows that the question as to whether the Trial Chamber complied with the Appeals Chamber’s instructions is not at issue. The Appeals Chamber remanded the matter of severance to the Trial Chamber “for further consideration consistent with [the] opinion [set forth in the Appeal Decision on Severance]”:[2] not only did the Trial Chamber further consider the remanded matter but it also found that there was no basis to sever Ngirumpatse from the proceedings. The instant case is, as a result, distinguishable from the ICTY decision Ngirumpatse relies on, where the ICTY Appeals Chamber concluded that it remained competent to address the appeal “to the extent” that the applicants were alleging that the Trial Chamber had failed to comply with the Appeals Chamber’s decision.[3] 

[1] [The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Decision on Remand Regarding Continuation of Trial, 10 September 2009.]

[2] Appeal Decision on Severance [The Prosecutor v. Edouard Karemera et al., Case No. ICTR-98-44-AR73.16, Decision on Appeal Concerning the Severance of Matthieu Ngirumpatse, 19 June 2009], para. 25. See also ibid., paras. 18-24.

[3] Gotovina Decision [Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-AR73.3, Decision on Joint Request of Ante Gotovina and Mladen Markač for a Writ of Mandamus, 27 March 2009], para. 5: “To the extent that the Joint Defence now submits that the Trial Chamber failed to address the two errors identified by the Appeals Chamber and thus challenges the same issues for which leave to appeal the 9 October 2009 Decision was originally granted, the Appeals Chamber remains competent to address the Joint request”. The Appeals Chamber notes that in a prior decision, the ICTY Appeals Chamber ruled that certification was not required since it remained seized of the issues raised by the Prosecution in its initial appeal (The Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.4, Decision on Prosecution Appeal Following Trial Chamber’s Decision on Remand and Further Certification, 11 May 2007, para. 18). The Appeals Chamber stresses that the ICTY Appeals Chamber’s ruling in this case was case-specific and cannot be interpreted as a general statement of principle that certification is not required in case of remand.

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ICTR Rule Rule 73(B) ICTY Rule Rule 73(B)
Notion(s) Filing Case
Consolidated Decision on Jurisdiction - 25.06.2009 KARADŽIĆ Radovan
(IT-95-5/18-AR72.1, IT-95-5/18-AR72.2, IT-95-5/18-AR72.3)

28. With respect to Karadžić’s decision to file several separate appeals against the Impugned Decision, the Appeals Chamber agrees with the Prosecution that this is not standard practice. If a party could file an unlimited number of appeals against one decision, provisions regulating the interlocutory appeals, such as word limitation,[1] would be devoid of any sense. The proper procedure for Karadžić would thus generally be to file one appeal against the Impugned Decision, applying for extension of the word limit if necessary. Given the very particular context of these appeals, especially the wide range of issues addressed in the Impugned Decision, the filing of more than one appeal was potentially justifiable. In any event, the Appeals Chamber finds that it would not be in the interests of judicial expediency to order Karadžić to re-file his submissions in this case, and notes that no party has been prejudiced in the circumstances given that separate responses and replies were subsequently filed. In turn, the fact that the Appeals Chamber accepts these appeals as validly filed does not preclude it from rendering its decisions in a consolidated manner, if and where appropriate.[2]

 

[1] See Practice Direction on the Length of Briefs and Motions, IT/184 Rev.2, 16 September 2005, at 3.

[2] The Appeals Chamber underscores that its flexibility in this case is exceptional, and notes that in future it may well require re-filing of submissions where multiple appeals are filed against a single decision.

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Notion(s) Filing Case
Decision on Hostage-Taking - 09.07.2009 KARADŽIĆ Radovan
(IT-95-5/18-AR72.5)

The Appellant requested that the Appeals Chamber also take into account arguments and references included in the motion and reply he had filed before the Trial Chamber. In light of the following considerations, the Appeals Chamber rejected the Appellant’s request.

13. The Appeals Chamber notes that paragraph 9(d) of the Practice Direction states that an interlocutory appeal shall contain “the grounds on which the appeal is made”. It further notes that, in the well-established practice of the Tribunal, appellants substantiate their arguments in support of each ground of appeal in their appeal briefs and not by reference to submissions made elsewhere. In addition, the Appeals Chamber recalls that, “[o]n appeal, a party may not merely repeat arguments that did not succeed at trial, unless the party can demonstrate that the Trial Chamber’s rejection of them constituted such an error as to warrant the intervention of the Appeals Chamber”. It further considers that the Appeal and the Reply autonomously contain the grounds on which the appeal is made and are not defective in any respect. Accordingly, while the Appeals Chamber will take into consideration the Preliminary Motion and Preliminary Reply as part of the record of the case, the Appeals Chamber will not treat the arguments put forward in the Preliminary Motion and Preliminary Reply as incorporated in the Appeal.

[1] Practice Direction, para. 9(d): “Where certification has been granted by a Trial Chamber, a party shall […] file an interlocutory appeal containing: […] (d) the grounds on which the appeal is made”.

[2] See, e.g., among the most recent motions: Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR65.14, Jadranko Prlić’s Appeal Against the Décision relative à la demande de mise en liberté provisoire de l’accusé Prlić, 16 April 2009; Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74AR-73.15, Jadranko Prlić’s Interlocutory Appeal Against the Decision Regarding Supplement to the Accused Prlić’s Rule 84 bis Statement, 11 March 2009; Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-AR73.3, Defendant Ante Gotovina’s and Defendant Mladen Markač’s Request for a Writ of Mandamus, 4 March 2009; Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-AR73.4, Interlocutory Appeal on Behalf of Ljubiša Beara Against the Decision on Prosecution Motion for Admission of Evidence Pursuant to Rule 92Quater, 26 May 2008.

[3][Prosecutor v. Enver Hadžihasanović and Amir Kubura, Case No. IT-01-47-A, Judgement, 22 April 2008], para. 46.

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Notion(s) Filing Case
Decision on Legality of Arrest - 12.03.2009 TOLIMIR Zdravko
(IT-05-88/2-AR72.2)

11. The Appeals Chamber recalls that interlocutory appeals on jurisdiction lie as of right under Rule 72(B)(i) of the Rules only where they challenge an indictment on the ground that it does not relate to the Tribunal’s personal, territorial, temporal or subject-matter jurisdiction.[1] The Appellant challenges the Tribunal’s jurisdiction over him because of the alleged illegality of his arrest.[2] However, he does not challenge the Indictment on any of the above-listed grounds. Consequently, Rule 72(D) of the Rules “cannot provide a basis for appeal of the Impugned Decision”.[3]

12. The alternative relief sought by the Appellant concerns the establishment of the circumstances of his arrest and a declaration as to its unlawful nature. These submissions equally go outside the scope of a jurisdictional challenge and therefore are not properly before the Appeals Chamber.

13. In light of the above, the Appeals Chamber considers that the Appellant should have requested the Trial Chamber’s authorization to lodge an appeal against the Impugned Decision[[5]] under Rule 73(B). Absent certification to appeal under Rule 73(B) of the Rules, the Appeals Chamber has no jurisdiction to address the merits of the Appeal.

[1] Prosecutor v. Zdravko Tolimir, Case No. IT-05-88/2-AR72.1, Decision on Tolimir’s “Interlocutory Appeal Against the Decision of the Trial Chamber on the Part of the Second Preliminary Motion Concerning the Jurisdiction of the Tribunal”, 25 February 2009, para. 4.

[2] Appeal [Appeal Against the Decision on Submissions of the Accused Concerning Legality of Arrest, the B/C/S original filed on 23 January 2009, the English translation filed on 29 January 2009], para. 36.

[3] Prosecutor v. Dragan Nikolić, Case No. IT-94-2-AR72, Decision on Notice of Appeal, 9 January 2003 (“Nikolić Decision of 9 January 2003”), p. 3. The Appeals Chamber notes that a number of its decisions rendered in the ICTR prior to 27 May 2003, have adopted a different approach allowing comparable appeals to be filed as of right under Rule 72(D) (e.g. Laurent Semanza v. The Prosecutor, Case No. ICTR-97-20-A, Decision, 31 May 2000; Jean-Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision, 3 November 1999, paras 11 and 72 citing Prosecutor v. Duško Tadić, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 6; Jean-Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-72, Decision and Scheduling Order, 5 February 1999, p. 3; see also the Dissenting Opinion of Judge Shahabuddeen attached to the Nikolić Decision of 9 January 2003 (paras 13 et seq.)). However, given that the Rules of Procedure and Evidence of the ICTR were amended on 27 May 2003 to include the provisions on certification of appeal referred to in the Nikolić Decision of 9 January 2003, the Appeals Chamber considers that these two approaches are not in contradiction.

[4] Appeal, para. 37.

[5] [Prosecutor v. Zdravko Tolimir, Case No. IT-05-88/2-PT, Decision on Submissions of the Accused Concerning Legality of Arrest, 18 December 2008 (the B/C/S translation was filed on 9 January 2009)].

[6] Nikolić Decision of 9 January 2003, p. 3.

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ICTR Rule Rule 72 ICTY Rule Rule 72
Notion(s) Filing Case
Decision on Subpoenaing Tolimir - 13.11.2013 KARADŽIĆ Radovan
(IT-95-5/18-AR73.11)

9.       Rule 73(C) of the Rules, pursuant to which this appeal is brought, entitles a “party” to appeal a trial chamber’s decision after having requested and obtained certification. Rule 2 of the Rules defines “parties” as “[t]he Prosecutor and the Defence”. The Impugned Decision was issued in the Karadžić case and Tolimir is neither part of the Prosecution nor the Defence in that case. Thus, sensu stricto, he is not entitled to use Rule 73(C) of the Rules to bring an interlocutory appeal.

10.     However, the Appeals Chamber recalls the Milošević Appeal Decision[1] in which it decided to consider an interlocutory appeal filed by amici curiae in that case.[2] The Appeals Chamber determined that, although amici curiae operate in proceedings “solely as assistants” to the court and not as actual parties, it would nonetheless adjudicate the amici curiae’s interlocutory appeal on the basis that, in the circumstances of the particular case, consideration of the appeal served the interests of justice.[3] Additional factors underlying the Appeals Chamber’s decision to adjudicate the matter included: (i) the existence of an alignment of interests between the amici curiae and the accused in that case; (ii) the fact that consideration of the appeal would not infringe the accused’s interests; (iii) that there was no “danger of unfairness to the Prosecution”; and (iv) that the Prosecution did not oppose consideration of the appeal and in fact expressed “its willingness to accept the amici as a party for these purposes”.[4] The Appeals Chamber also notes the Brđanin Appeal Decision in which it adjudicated an interlocutory appeal, filed by a non-party to the proceedings, against a subpoena decision.[5]

11.     The Appeal raises concerns regarding, inter alia, Tolimir’s right against self-incrimination under Article 21(4)(g) of the Statute of the Tribunal (“Statute”).[6] Neither Karadžić nor the Prosecution have objected to the filing of the Appeal and in fact both have indicated their willingness to accept Tolimir as having standing to appeal the Impugned Decision.[7] Thus, neither the interests of Karadžić nor the Prosecution stand to be compromised by adjudication of the Appeal. In these circumstances and emphasising in particular that the Appeal raises concerns about a fundamental right of an accused before the Tribunal, the Appeals Chamber finds that consideration of the Appeal serves the interests of justice.

[1] Prosecutor v. Slobodan Milošević, Case No. IT-02-54-AR73.6, Decision on the Interlocutory Appeal by the Amici Curiae Against the Trial Chamber Order Concerning the Presentation and Preparation of the Defence Case, 20 January 2004 (“Milošević Appeal Decision”).

[2] Milošević Appeal Decision, para. 5.

[3] Milošević Appeal Decision, paras 4-5.

[4] Milošević Appeal Decision, para. 5.

[5] Brđanin Appeal Decision, paras 1-3, 6, 8-56.

[6] Appeal, paras 9-36.

[7] Response to the Appeal [Karadzic [sic] Brief on Appeal of Zdravko Tolimir, 17 June 2013], paras 25-31; Prosecution Submissions on Tolimir’s Request to Appeal the Impugned Decision [Prosecution Submission Regarding Tolimir Request to Suspend Subpoena and to Appeal Decision on Accused’s Motion to Subpoena Zdravko Tolimir, 24 May 2013], paras 4-6; Karadžić Submission on Tolimir’s Standing to Appeal the Impugned Decision [Memorandum on Standing of Witness to Seek Leave to Appeal Subpoena Decision, 23 May 2013], paras 1-3.  

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ICTR Rule Rule 2;
Rule 73(A);
Rule 73(B);
Rule 73(C)
ICTY Rule Rule 2;
Rule 73(C)
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 Judicial Notice - 16.06.2006 KAREMERA et al.
(ICTR-98-44-AR73(C))

The Appeals Chamber found that, when the Trial Chamber does not expressly limit its certification to appeal a decision to a particular issue, the Appeals Chamber may decide to resolve other issues, provided that they “materially advance the proceedings” and that the purported error is not “inconsequential”.

The relevant paragraphs read:

16. It is not illogical or impermissible for a Trial Chamber to grant certification to appeal an entire decision on the basis of one issue which, in its view, satisfies the Rule 73(B) criteria.  To the contrary, such an approach is consistent with the text of that Rule, which requires only that the Trial Chamber identify “an issue” satisfying certain criteria in order to certify interlocutory review of a decision, but does not state that the review must be limited to the identified issue.  Thus, although the Appeals Chamber has found that the Trial Chamber can limit review to the issue(s) that it has found to specifically satisfy the Rule 73(B) criteria, it is not obligated to do so.

17. This approach is consistent with Rule 73’s objective of advancing the fair and expeditious conduct of the proceedings.  Interlocutory appeals under Rule 73 interrupt the continuity of trial proceedings and so should only be allowed when there is a significant advantage to doing so—that is, when, in the Trial Chamber’s judgement, there is an important issue meriting immediate resolution by the Appeals Chamber.  But once one such issue is identified and an interlocutory appeal is certified, allowing the Appeals Chamber to resolve related issues at the same time may cause little additional interruption and may ultimately serve the goals of fairness and expeditiousness.

21. […] the Appeals Chamber will not, in considering an interlocutory appeal that extends beyond the issues that the Trial Chamber found to specifically satisfy the Rule 73(B) standard, address matters in which its consideration will not, in fact, materially advance the proceedings.  The Appeals Chamber notes the related argument of Mr. Karemera that the Prosecution has as a general matter failed to demonstrate errors invalidating the Trial Chamber’s decision or occasioning a miscarriage of justice within the meaning of Article 24(1) of the Statute.[1]  Although the Article 24(1) standard applies specifically to post-trial appeals from final Trial Chamber decisions, it is likewise true that in interlocutory appeals, even where certification under Rule 73(B) has been granted, it is not the Appeals Chamber’s practice to pass on purported errors that are inconsequential.[2]  The Appeals Chamber will keep this standard in mind in addressing the individual allegations of error raised by the Prosecution.

[1] Karemera Response, p. 2.

[2] See Prosecutor v. Orić, Case No. IT-03-68-AR73.2, Interlocutory Decision on Length of Defence Case, 20 July 2005, para. 9 & fn. 25.

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ICTR Rule Rule 73(B) ICTY Rule Rule 73(B)
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Decision on Reconsideration - 01.12.2006 KAREMERA et al.
(ICTR-98-44-AR73(C))

At para. 6, the Appeals Chamber recalled its standard for reconsideration:

The Appeals Chamber may reconsider a previous interlocutory decision under its inherent discretionary power if a clear error of reasoning has been demonstrated or if it is necessary to prevent an injustice.[1]

[1] Juvenal Kajelijeli v. The Prosecutor, Case No.ICTR-98-44A-A, Judgement,23 May 2005,para. 203. 

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Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)
(IT-96-21-A)

122. This Appeals Chamber is of the view that there is no reason why interlocutory decisions of the Appeals Chamber should be considered, as a matter of principle, as having any lesser status than a final decision on appeal.  The purpose of an appeal, whether on an interlocutory or on a final basis, is to determine the issues raised with finality.[1]

[1]    It is noted that the Appeals Chamber in Aleksovski did not draw any distinction between the authoritative nature of its interlocutory and final decisions.

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

14. In addition, the Appellant requests an oral hearing for the purpose of advancing arguments relating to this ground of appeal. In view of the extensive submissions made and filed by the parties before both the Trial Chamber and the Appeals Chamber and the substantial discussion in the First and Second Impugned Decisions of the issues now under appeal, the Appeals Chamber does not consider it necessary to hold an oral hearing on the Appeal.

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Decision on Assignment of Counsel No 2 - 08.12.2006 ŠEŠELJ Vojislav
(IT-03-67-AR73.4)

The Appeals Chamber determined that due to extraordinary circumstances and the grave condition of Šešelj’s health, it would depart from the requirements of the Practice Decision and consider Šešelj’s Appeal on the merits.

13. […] The Appeals Chamber does not find that there is any reason why Šešelj should not be permitted to file the Appeal despite the fact that it does not conform with the Practice Direction on filing of appeals before the Appeals Chamber.[1]  In this instance, Šešelj has sought to appeal by filing a letter before the Appeals Chamber requesting that it take into account all arguments he has made in prior submissions filed before the Appeals Chamber, the President and the Bureau with respect to his right to self-representation and his opposition to standby counsel and counsel as forming the grounds of his appeal.[2]

14.  […] [T]he Appeals Chamber recognises that there are extraordinary circumstances justifying its departure from the requirements of its own Practice Direction.  Šešelj has persisted in his refusal to take food or medicine since 11 November 2006.  He has also since that time refused to be medically assessed by doctors assigned to his care.  The only doctors that have been able to make any assessment of Šešelj’s condition could only make a rudimentary assessment.  However, it is abundantly clear to the Appeals Chamber that the action taken by Šešelj is seriously damaging his health and could have grave consequences.  Šešelj has made a choice to undertake this action, and he has purportedly done so because of his opposition to the decision of the Trial Chamber to impose standby counsel following the Appeal Decision.  That opposition of Šešelj caused the Trial Chamber to take the further step of assigning counsel, but Šešelj’s opposition leading to that decision of the Trial Chamber was based in the first instance on his strong belief that the Appeal Decision, which reinstated his right to self-representation, left no room for the imposition of standby counsel by the Trial Chamber as an immediate response to the Appeal Decision, without establishing any obstructionist behaviour on his part. Upon that basis, and in light of the fact that the Trial Chamber certified its decision to assign counsel for appeal, the Appeals Chamber will consider the Appeal on the merits.

[1] In accordance with Paragraph 9 of the on Procedure for the Filing of Written Submissions in Appeal Proceedings Before the International Tribunal, IT/155/Rev.3, 16 September 2005 (“Practice Direction”) a certified appeal should be filed within seven days of the decision of certification so the time for the filing of an appeal by independent counsel will expire on 12 December 2006. […]

[2] The Appeals Chamber sought clarification from the Commanding Officer of the UNDU as to the scope of Šešelj’s appeal.  It was advised upon instruction from Šešelj that he wished the Appeals Chamber to consider the arguments he made in various filings with respect to the assignment of counsel and standby counsel. […]

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Other instruments Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings Before the International Tribunal (ICTY).
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Decision on Additional Evidence Regarding Provisional Release - 11.11.2004 STANIŠIĆ & SIMATOVIĆ
(IT-03-69-AR65.1, IT-03-69-AR65.2 )

4. While the Prosecution relies upon the authority of Šainović and Ojdanić as supporting its procedural right to bring a Rule 115 application, the observation made by the Appeals Chamber in that decision is not a clear statement that Rule 115 applies to interlocutory appeals made pursuant to Rule 65. However, the Appeals Chamber notes that past practice in previous decisions by the Appeals Chamber clearly indicates that Rule 115[1] is to be applied to interlocutory appeals made pursuant to Rule 65[2]. In each of those decisions, the Appeals Chamber proceeded on the basis that additional evidence could be admissible upon an appeal pursuant to Rule 65.[3]

5. A plain reading of the Rule suggests that the mechanism of additional evidence on appeal is only available on an appeal from judgment and is not applicable to interlocutory appeals. Rule 115(A), which specifies the time limits in which to file a Rule 115 application speaks of “the date of the judgment,” [NOTE: THE WORDS “THE DATE OF JUDGEMENT” DO NOT APPEAR IN RULE 115(A) OF THE ICTY RULES, AS AMENDED ON 21 JULY 2005.] and Rule 115(B), which specifies the test to be applied for that additional evidence to be admissible, speaks of the Appeals Chamber considering that evidence in order to arrive at a “final judgment”.

6. Further, Rule 107, which provides that:

The rules of procedure and evidence that govern proceedings in the Trial Chamber shall apply mutatis mutandis to proceedings in the Appeals Chamber.

is of no assistance here as the Prosecution is not seeking to apply a rule that applies to proceedings in a Trial Chamber to an appellate proceeding, but to apply an appellate proceeding applicable to appeals from judgment to an interlocutory appeal.

7. While the Rule does not on its face appear to be applicable to Rule 65 interlocutory appeals, the Appeals Chamber has, as noted above, considered it to be applicable in previous decisions. The Appeals Chamber finds that justification for this practice is to be found in the appellate function in reviewing Trial Chamber decisions for error. Where the Appeals Chamber does find an error in a Trial Chamber decision, and where it is sufficiently apprised of the issues in the case, the Appeals Chamber is free to substitute its own decision rather than sending it back to the Trial Chamber for reconsideration.[4] Where the Appeals Chamber adopts this approach to an error of the Trial Chamber, it is appropriate for the Appeals Chamber to receive evidence that was not available before the Trial Chamber.

[1] Rule 115, Additional Evidence provides:

(A) A party may apply by motion to present additional evidence before the Appeals Chamber. Such motion shall clearly indicate with precision the specific finding of fact made by the Trial Chamber to which the additional evidence is directed, and must be served on the other party and filed with the Registrar not later than seventy-five days from the date of the judgment, unless good cause is shown for further delay. Rebuttal material may be presented by any party affected by the motion. [NOTE: RULE 115(A) WAS AMENDED ON 21 JULY 2005.]

(B) If the Appeals Chamber finds that the additional evidence was not available at trial and is relevant and credible, it will determine if it could have been a decisive factor in reaching the decision at trial. If it could have been such a factor, the Appeals Chamber will consider the additional evidence and any rebuttal material along with that already on the record to arrive at a final judgement in accordance with Rule 117.

[2] Prosecutor v Nikola Šainović & Dragoljub Ojdanić, Case No: IT-99-37-AR65, Decision on Motion for Modification of Decision on Provisional Release And Motion to Admit Additional Evidence, 12 December 2002; Prosecutor v Vidoje Blagojević et al, Decision on Motion to Present Additional Evidence, 28 May 2002.

[3] Ibid.

[4] Prosecutor v Milošević, Case No: IT-99-37-AR73, IT-01-51-AR73 and IT-01-51 AR73, Reasons for Decision on Prosecution Interlocutory Appeals from Refusal to Order Joinder, 18 April 2002; Prosecutor v Blaškić, Case No:IT-95-14-AR73, Decision on Appellant’s Motions for the Production of Material, Suspension or Extension on the Briefing Schedule and Additional Filings, 26 September 2000; Prosecutor v Tadić, Case No: IT-94-1-AR73, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995.

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ICTR Rule Rule 115 ICTY Rule Rule 115
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Decision on Voir Dire and Statements of the Accused - 27.10.2006 NTAHOBALI & NYIRAMASUHUKO
(ICTR-97-21-AR73)

Footnote four of the Interlocutory Appeal cites the Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings Before the Tribunal, Section III(8) read together with Section I, permitting ten days from the filing of an interlocutory appeal for the filing of a response.

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