MICT continuity

Notion(s) Filing Case
Decision on Amicus Prosecutor - 08.12.2015 KAMUHANDA Jean de Dieu
(MICT-I3-33-AR90/108.1)

15.     To the extent that Kamuhanda’s request before the Single Judge may have been based on new circumstances, demonstrating an injustice, that have emerged after the Kamuhanda Decision of 25 August 2011 [Jean de Dieu Kamuhanda v. The Prosecutor, Case No. ICTR-99-54A-R, Decision on Request for Review, 25 August 2011] was rendered, it amounted to a request for a reconsideration of the ICTR Appeals Chamber’s decision on the matter of the contempt investigations.[1] The Appeals Chamber recalls that the Mechanism’s mandate is to continue the jurisdiction, rights and obligations, and essential functions of the ICTR and the ICTY and that in doing so, it is bound to consider the relevant precedents of the ad hoc tribunals.[2] Accordingly, while decisions of the ICTR Appeals Chamber, as correctly noted in the Impugned Decision, retain their validity before the Mechanism, applicants are not barred from seeking reconsideration of such decisions before the Mechanism, where appropriate.

16.     It is well established in the jurisprudence of the ad hoc tribunals that the Appeals Chamber has inherent discretionary power to reconsider a previous non-final decision if a clear error of reasoning has been demonstrated or if it is necessary in order to prevent an injustice.[3] The Appeals Chamber shall not reconsider final decisions terminating the proceedings in a case.[4] Such decisions include final judgements[5] and decisions denying requests for review.[6] The Appeals Chamber considers that the Kamuhanda Decision of 25 August 2011, in the part concerning the matter of the contempt investigations, does not belong to either category and that it may be subject to reconsideration before the Mechanism. Nevertheless, the Appeals Chamber emphasizes that the principle of finality dictates that the discretionary power to reconsider previous decisions should be exercised sparingly and a party must therefore meet a high threshold in its request for reconsideration.[7]

17.     The Appeals Chamber recalls, however, that a request for reconsideration, by definition, has to be made before the chamber that rendered the impugned decision.[8] Considering that the Statute of the Mechanism and the Rules reflect normative continuity with the Statute and the Rules of Procedure and Evidence of the ICTR,[9] the Appeals Chamber observes that the proper forum for a request for reconsideration of a decision rendered by the ICTR Appeals Chamber is the Appeals Chamber of the Mechanism. […]

[1] See Motion for Appointment of Amicus Curiae [The Prosecutor v. Jean de Dieu Kamuhanda, Case No. MICT-13-33, Motion for Appointment of Amicus Curiae Prosecutor to Investigate Prosecution Witness GEK, 2 August 2015 (with public annexes A-D and confidential annex E)], para. 13; Appeal [Prosecutor v. Jean de Dieu Kamuhanda, Case No. MICT-13-33-AR90/108, Appeal of Decision on Jurisdiction to Investigate Prosecution Witness GEK, 15 October 2015], para. 45.

[2] 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 (“Munyarugarama Decision of 5 October 2012”), paras. 4, 6.

[3] Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-A, Decision on Motions for Reconsideration, 5 September 2014 (“Prlić Decision of 5 September 2014”), p. 3; Ferdinand Nahimana v. The Prosecutor, Case No. ICTR-99-52B-R, Decision on Ferdinand Nahimana’s Motion for Reconsideration of the Decision of 27 September 2011 and of his Sentence, 29 June 2012, p. 3; Jean Uwinkindi v. The Prosecutor, Case No. ICTR-01-75-AR11bis, Decision on Uwinkindi’s Motion for Review or Reconsideration of the Decision on Referral to Rwanda and the Related Prosecution Motion, 23 February 2012 (“Uwinkindi Decision of 23 February 2012”), para. 11, referring to Juvénal Kajelijeli v. The Prosecutor, Case No. ICTR-98-44A-A, Judgement, 23 May 2005, para. 203; Aloys Ntabakuze v. The Prosecutor, Case No. ICTR-98-41A-A, Decision on Peter Erlinder’s Motion to Reconsider Order Imposing Sanctions, 1 September 2011, p. 3.

[4] See Uwinkindi Decision of 23 February 2012, para. 10, referring to Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Décision relative à la requête de l’appelant Jean-Bosco Barayagwiza demandant l’examen de la requête de la Défense datée du 28 juillet 2000 et réparation pour abus de procédure, 23 June 2006, para. 21; Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R, Decision on Request for Reconsideration of the Decision on Request for Review, 27 September 2006 (“Niyitegeka Decision of 27 September 2006”), p. 3, referring to Jean Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision (Prosecutor’s Request for Review or Reconsideration), signed on 31 March 2000, filed on 7 April 2000, para. 49. Cf. Prosecutor v. Pavle Strugar, Case No. IT-01-42-Misc.1, Decision on Strugar’s Request to Reopen Appeal Proceedings, 7 June 2007, para. 25.

[5] Prosecutor v. Mile Mrkšić and Veselin [ljivančanin, Case No. IT-95-13/1-A, Decision on Motion on Behalf of Veselin [ljivančanin Seeking Reconsideration of the Judgement Rendered by the Appeals Chamber on 5 May 2009 – or an Alternative Remedy, 8 December 2009, p. 2; Hassan Ngeze v. The Prosecutor, Case No. ICTR-99-52-R, Decision on Hassan Ngeze’s Motions and Requests Related to Reconsideration, 31 January 2008, p. 3; Georges Anderson Nderubumwe Rutaganda v. The Prosecutor, Case No. ICTR-96-03-R Decision on Requests for Reconsideration, Review, Assignment of Counsel, Disclosure, and Clarification, 8 December 2006, para. 6; Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-R, Decision on Prosecutor’s Request for Review or Reconsideration, 23 November 2006 (public redacted version), paras. 79, 80; Prosecutor v. Zoran Žigić a/k/a “Ziga”, 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.

[6] Eliézer Niyitegeka v. Prosecutor, Case No. MICT-12-16-R, Decision on Niyitegeka’s Request for Assignment of Counsel, 6 November 2014, para. 11, referring to François Karera v. Prosecutor, Case No. MICT-12-24-R, Decision on Request for Assignment of Counsel, 4 December 2012, para. 11; François Karera v. The Prosecutor, Case No. ICTR-01-74-R, Decision on Requests for Reconsideration and Review, 26 March 2012, para. 8; Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R, Decision on Motion for Reconsideration of Fifth Review Decision, 25 March 2010, para. 5; Niyitegeka Decision of 27 September 2006, pp. 2, 3.

[7] Prlić Decision of 5 September 2014, p. 3, referring to Prosecutor v. Mićo Stanišić and Stojan Župljanin, Case No. IT-08-91-A, Decision on Mićo Stanišić’s Motion Seeking Reconsideration of Decision on Stanišić’s Motion for Declaration of Mistrial and Župljanin’s Motion to Vacate Trial Judgement, 24 July 2014, para. 12.

[8] Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-A & IT-95-5/18-T, Decision on Motion by Radovan Karadžić for Reconsideration of Decision on Motion for Access to Confidential Materials in the Stanišić and Simatović Case, 16 February 2015, p. 2, referring to Prosecutor v. Milan Lukić and Sredoje Lukić, Case No. IT-98-32/1-A, Decision on the Prosecution’s “Motion for Reconsideration and Rescission of the Order to Disclose Issued in Trial Chamber’s ‘Decision on Motion by Radovan Karadžić for Access to Confidential Materials in the Lukić and Lukić Case’ of 10 July 2009“, 7 December 2009, para. 4.

[9] Munyarugarama Decision of 5 October 2012, para. 5.

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Notion(s) Filing Case
Decision on Referral - 05.10.2012 MUNYARUGARAMA Pheneas
(MICT-12-09-AR14)

4.       The Appeals Chamber recalls that the Mechanism was established pursuant to United Nations Security Council Resolution 1966 (2010) and possesses the material, territorial, temporal, and personal jurisdiction of the ICTR.[1] The Mechanism’s current mandate is to continue the jurisdiction, rights and obligations, and essential functions of the ICTR.[2] On 1 July 2013, this mandate shall expand to include the same responsibilities with respect to the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (“ICTY”).[3]

5.       In this vein, the Statute and the Mechanism’s Rules of Procedure and Evidence (“Rules”) reflect normative continuity with the Statute of the ICTR (“ICTR Statute”), the Statute of the ICTY (“ICTY Statute”) as well as the ICTR Rules and the ICTY Rules of Procedure and Evidence (“ICTY Rules”). These parallels are not simply a matter of convenience or efficiency but serve to uphold principles of due process and fundamental fairness, which are the cornerstones of international justice.

6.       The Appeals Chamber accordingly considers that it is bound to interpret its Statute and Rules in a manner consistent with the jurisprudence of the ICTR and ICTY, which developed for over a decade prior to the establishment of the Mechanism. Likewise, where the respective Rules or Statutes of the ICTR or ICTY are at issue, the Appeals Chamber is bound to consider the relevant precedent of these tribunals when interpreting them. The Appeals Chamber will bear these principles in mind when considering the parties’ submissions.

[1] United Nations Security Council Resolution 1966, U.N. Doc. S/RES/1966, 22 December 2010 (“Security Council Resolution 1966”), paras. 1, 4, and Annex 2; Statute of the Mechanism (“Statute”), preamble, Art. 1.

[2] Security Council Resolution 1966, paras. 1, 4; Statute, preamble, Arts. 1, 2.

[3] Security Council Resolution 1966, paras. 1, 4; Statute, preamble, Arts. 1, 2.

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

Footnote 45:

[…] The Rules Governing Detention of the ICTY apply mutatis mutandis to individuals subject to the jurisdiction of the Mechanism.

See also para. 7.

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Other instruments Rules Governing the Detention of Persons Awaiting Trial or Appeal before the Tribunal or Otherwise Detained on the Authority of the Tribunal