Monitoring and revocation

Notion(s) Filing Case
Decision on Denial of Revocation - 21.05.2014 STANKOVIĆ Radovan
(MICT-13-51)

14.     The Appeals Chamber turns first to Stanković’s challenge to the composition of the Referral Bench. Rule 11bis of the ICTY Rules does not require that a request for revocation be considered by a differently composed bench than the one that referred the case to a national jurisdiction. Indeed, Rule 11bis of the ICTY Rules simply refers to the “Referral Bench” throughout, which is defined in Rule 11bis(A) of the ICTY Rules as “a bench of three Permanent Judges selected from the Trial Chambers”. […]

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ICTY Rule Rule 11 bis MICT Rule Rule 14
Notion(s) Filing Case
Decision on Denial of Revocation - 21.05.2014 STANKOVIĆ Radovan
(MICT-13-51)

9. The Appeals Chamber further observes that Rule 11bis(I) of the ICTY Rules and Rule 14(E) of the MICT Rules expressly provide for an appeal as of right from a decision of a trial chamber on the referral of a case. However, Rule 11bis of the ICTY Rules and Rule 14 of the MICT Rules are silent on appeals from a decision of a trial chamber concerning revocation of a case. Notwithstanding, decisions on revocation concern, among other things, fundamental questions related to whether the Mechanism should exercise jurisdiction over a case and the fairness of the proceedings of the referred case.[1] In the absence of any provision limiting the right of appeal,[2] the Appeals Chamber considers that a decision on whether or not to revoke a case should be subject to appellate review.[3] For reasons of consistency, the Appeals Chamber considers that such appeals should follow the same procedure as provided for in cases involving appeals from decisions on referral set out in Rule 14(E) of the MICT Rules.[4]

[1] The Appeals Chamber recalls that decisions taken pursuant to Rule 11bis of the ICTY Rules, and by extension Rule 14 of the MICT Rules, are treated as akin to interlocutory appeals from decisions on preliminary motions challenging jurisdiction. See Prosecutor v. Radovan Stanković, Case No. IT-96-23/2-AR11bis.1, Decision on Defence Application for Extension of Time to File Notice of Appeal, 9 June 2005, para. 14.

[2] See, e.g., Rule 80(B) of the MICT Rules (which precludes interlocutory appeals on certain decisions absent certification granted by a trial chamber).

[3] Cf. Ntagerura Appeal Decision, para. 12; Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R75, Decision on Motion for Clarification, 20 June 2008, para. 14 (“Rule 75(G) of the Rules, which allows for the possibility of seeking to rescind, vary, or augment protective measures ordered at trial does not provide for an appeal as of right, nor do the [ICTR] Rules address the issue of whether a decision rendered by a Trial Chamber after the close of trial and appeal proceedings is subject to appeal. However, because issues related to access to confidential material by a convicted person concern the important question of balance between the right of the convicted person to access potentially exculpatory material and the need to guarantee the protection of victims and witnesses,the Appeals Chamber considers, proprio motu, that an applicant is entitled to challenge a decision by a Trial Chamber, pursuant to Rule 75(G) of the [ICTR] Rules, rendered after the close of trial and appeal proceedings before the Appeals Chamber.”) (internal citation omitted); André Rwamakuba v. The Prosecutor, Case No. ICTR-98-44C-A, Decision on Prosecution’s Notice of Appeal and Scheduling Order, 18 April 2007, paras. 2-4, 8-9 (allowing an appeal from a decision concerning the compensation of an acquitted person and setting out a scheduling order in the absence of procedural rules for disposing of such an appeal). 

[4] See Rule 14(E) of the MICT Rules (“Notice of appeal shall be filed within fifteen days of the decision unless the accused was not present or represented when the decision was pronounced, in which case the time-limit shall run from the date on which the accused is notified of the decision. The appellant shall file an appeal brief within fifteen days after filing the notice of appeal. The opposite Party shall file a response within ten days of the filing of the appeal brief, and the appellant may file a reply within four days of the filing of the response.”).

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ICTY Rule Rule 11 bis MICT Rule Rule 14
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Decision on Denial of Revocation - 21.05.2014 STANKOVIĆ Radovan
(MICT-13-51)

12.     Where an appeal is filed against a decision denying a request for revocation of a referral, the issue before the Appeals Chamber is not whether the decision was correct, in the sense that the Appeals Chamber agrees with that decision, but whether the Referral Bench has correctly exercised its discretion in reaching that decision.[1] A party challenging such a decision must show that the Referral Bench: (i) misdirected itself either as to the legal principle to be applied, or as to the law which is relevant to the exercise of its discretion; (ii) gave weight to irrelevant considerations or failed to give sufficient weight to relevant considerations; (iii) made an error as to the facts upon which it has exercised its discretion; or (iv) its decision was so unreasonable and plainly unjust that the Appeals Chamber is able to infer that the Referral Bench must have failed to exercise its discretion properly.[2]

[1] See Prosecutor v. Vladimir Kovačević, Case No. IT-01-42/2-AR11bis.1, Decision on Appeal Against Decision on Referral Under Rule 11bis, 28 March 2007 (“Kovačević Rule 11bis Decision”), para. 9, citing Prosecutor v. Željko Mejakić et al., Case No. IT-02-65-AR11bis.1, Decision on Joint Defence Appeal Against Decision on Referral Under Rule 11bis, 7 April 2006 (“Mejakić et al. Rule 11bis Decision”), para. 10. See also Prosecutor v. Paško Ljubičić, Case No. IT-00-41-AR11bis.1, Decision on Appeal Against Decision on Referral Under Rule 11bis, 4 July 2006 (“Ljubičić Rule 11bis Decision”), para. 6.

[2] See Uwinkindi Rule 11bis Decision, para. 23; The Prosecutor v. Ildephonse Hategekimana, Case No. ICTR-00-55B-R11bis, Decision on the Prosecution’s Appeal Against Decision on Referral Under Rule 11bis, 4 December 2008, para. 5, citing The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-2002-78-R11bis, Decision on the Prosecution’s Appeal Against Decision on Referral Under Rule 11bis, 30 October 2008, para. 5; Kovačević Rule 11bis Decision, para. 9; Ljubičić Rule 11bis Decision, para. 6; Mejakić et al. Rule 11bis Decision, para. 10.

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Decision on Denial of Revocation - 21.05.2014 STANKOVIĆ Radovan
(MICT-13-51)

7.       Rule 11bis(F) of the ICTY Rules provides:

At any time after an order has been issued pursuant to this Rule and before the accused is found guilty or acquitted by a national court, the Referral Bench may, at the request of the Prosecutor and upon having given to the State authorities concerned the opportunity to be heard, revoke the order and make a formal request for deferral within the terms of Rule 10.

8.       Pursuant to this provision, only the ICTY Prosecution has standing to seek the revocation of a referral made pursuant to Rule 11bis of the ICTY Rules. However, as the matter at hand relates to the fairness of the proceedings, the Appeals Chamber is satisfied that the Referral Bench had inherent jurisdiction to consider a direct request from Stanković for the revocation of his referral.[1]

[1] Cf. In Re. André Ntagerura, Case No. ICTR-99-46-A28, Decision on Motion for Leave to Appeal the President’s Decision of 31 March 2008 and the Decision of Trial Chamber III Rendered on 15 May 2008, 11 September 2008 (“Ntagerura Appeal Decision”), para. 12 (“The Applicant seeks leave of the Appeals Chamber to appeal against the Decision of the President and the Decision of the Trial Chamber. While neither the Statute nor the Rules provide for such appeals, the Appeals Chamber has inherent jurisdiction over the enforcement of its orders and any decisions rendered as a consequence thereof.”); Miscellaneous-Kabuga Family-01-A, Decision (Appeal of the Family of Félicien Kabuga Against Decisions of the Prosecutor and President of the Tribunal), 22 November 2002, p. 3 (“CONSIDERING moreover that the action of the Prosecutor was taken pursuant to a Rule made by the Judges and that, by implication, the Judges, through the appropriate mechanism of a Trial Chamber, retain responsibility to review the working of such action […];”). The Appeals Chamber observes, however, that accused before the International Criminal Tribunal for Rwanda (“ICTR”) have been expressly granted standing to seek revocation in the terms of the decisions ordering their referral. See, e.g., 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 Rule 11bis Decision”), paras. 79, 85. The Appeals Chamber observes that Rule 11bis(F) of the ICTR Rules of Procedure and Evidence tracks the language of Rule 11bis(F) of the ICTY Rules quoted above. In addition, Rule 14(C) of the MICT Rules allows the President to assign, proprio motu or at the request of the Prosecution, a trial chamber to decide whether to revoke a request for referral.

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Decision on Denial of Revocation - 21.05.2014 STANKOVIĆ Radovan
(MICT-13-51)

15. Turning to Stanković’s challenges to the Impugned Decision, the Appeals Chamber notes that the Referral Bench considered that Stanković filed the Revocation Request after the Appellate Panel in Bosnia and Herzegovina had affirmed his conviction.[1] The Referral Bench noted, however, that it “may revoke a referral order proprio motu in the circumstance of a grave violation left unchallenged by the Prosecution or untimely submitted”.[2] Thus, having examined Stanković’s submissions, the Referral Bench concluded that:

[i]n the absence of previously unidentified or grave violations of Stanković’s right to a fair trial, the Referral Bench considers that it would be contrary to the intention of Rule 11bis to order a case referred to the authorities of a State to be sent back to the Tribunal after the trial and appeal proceedings have concluded in that State.[3]

16.     The Appeals Chamber notes that Rule 11bis(F) of the ICTY Rules, Article 6(6) of the MICT Statute, and Rule 14(C) of the MICT Rules unequivocally provide that revocation of a referral order may occur only before the accused has been found guilty or acquitted by a national court. As recalled above, the proceedings against Stanković before the courts of Bosnia and Herzegovina were completed in April 2007.[4] The Appeals Chamber further notes that, contrary to Stanković’s submission,[5] the panel of the State Court and the Appellate Panel of Bosnia and Herzegovina were composed of different judges.[6] Therefore, to the extent that Stanković argues that there is no final judgement against him due to irregularities in the composition of the Appellate Panel, his submission is unsubstantiated.

17.     Accordingly, the Appeals Chamber finds that the Referral Bench correctly considered that it would be contrary to the intention of Rule 11bis of the ICTY Rules to revoke a referral order after the legal proceedings in the respective State have been completed. Absent any explicit legal basis for such revocation, the Appeals Chamber finds that it need not consider further whether the Referral Bench committed a discernible error in finding that there were no grounds to revoke the referral of Stanković’s case to the authorities of Bosnia and Herzegovina.

[1] Impugned Decision [Prosecutor v. Radovan Stanković, Case No. IT-96-23/2-PT, Decision on Radovan Stanković’s Motion of 21 January 2013, 12 June 2013 (confidential)], para. 16.

[2] Impugned Decision, para. 16. See also Impugned Decision, para. 10, citing Prosecutor v. Gojko Janković, Case No. IT-96-23/2-PT, Decision on Gojko Janković’s Motion of 12 April 2010, 21 June 2010, para. 14.

[3] Impugned Decision, para. 16.

[4] See supra, para. 4.

[5] Appeal, para. 15.

[6] See Sixth Progress Report [Prosecutor v. Radovan Stanković, Case No. IT-96-23/2-PT, Prosecutor’s Sixth Progress Report, 20 March 2007], Annex B; Seventh Progress Report [Prosecutor v. Radovan Stanković, Case No. IT-96-23/2-PT, Prosecutor’s Seventh Progress Report, 27 June 2007], Annex B. 

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Decision on Referral - 09.10.2008 MUNYAKAZI Yussuf
(ICTR-97-36-R11bis)

30. [....] the Appeals Chamber finds that the Trial Chamber erred in failing to take into account the availability of monitoring and revocation procedures under Rule 11bis(D)(iv) and (F) of the Rules.[1] The Appeals Chamber notes that the Prosecution has approached the African Commission on Human and People’s Rights (“African Commission”), which has undertaken to monitor the proceedings in transfer cases, and monitors could inform the Prosecutor and the Chamber of any concerns regarding the independence, impartiality or competence of the Rwandan judiciary. The Appeals Chamber notes that the African Commission is an independent organ established under the African Charter on Human and Peoples’ Rights and it has no reason to doubt that the African Commission has the necessary qualifications to monitor trials. The Appeals Chamber finds that the Trial Chamber erred in failing to consider this in its assessment.

44. For the reasons already provided under Ground 2 of this decision,[2] the Appeals Chamber considers that the Trial Chamber erred in not taking into account the monitoring and revocation provisions of Rule 11bis(D)(iv) and (F) of the Rules, and the prospect of monitoring by the African Commission, in its assessment of the availability and protection of witnesses.[3] However, the Appeals Chamber finds that this failure did not invalidate the Trial Chamber’s findings on the availability and protection of witnesses.

[1] See Notice of Appeal, paras. 21-24; Appeal Brief, paras. 40-42; Reply, paras. 13, 14, discussed infra, para. 46. See Stanković Appeal Decision, where the Appeals Chamber held at paragraph 52 that it was satisfied that the monitoring procedures and the revocation mechanism under Rule 11bis(F) “was a reasonable variable for the Referral Bench to have included in the Rule 11bis equation”. See also Janković Appeal Decision [Prosecutor v. Gojko Janković, Case No. IT-96-23/2-AR11bis.2, Decision on Rule 11bis referral, 15 November 2005], paras. 56, 57.

[2] See supra para. 30. See also Stanković Appeal Decision, where the Appeals Chamber held at paragraph 52 that it was satisfied that the monitoring procedures and the revocation mechanism under Rule 11(F) bis “was a reasonable variable for the Referral Bench to have included in the Rule 11bis equation”. See also Janković Appeal Decision, paras. 56, 57.

[3] See Stanković Appeal Decision, where the Appeals Chamber held at paragraph 52 that it was satisfied that the monitoring procedures and the revocation mechanism under Rule 11(F) bis “was a reasonable variable for the Referral Bench to have included in the Rule 11bis equation”. See also Janković Appeal Decision, paras. 56, 57.

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Decision on Referral - 30.10.2008 KANYARUKIGA Gaspard
(ICTR-2002-78-R11bis)

The Appeals Chamber also considered whether the Trial Chamber erred in failing to give sufficient weight to the monitoring of proceedings in Rwanda by the African Commission on Human and People’s Rights (“African Commission”) and the remedy of revocation, which the Prosecution contends, sufficiently protects Kanyarukiga’s right to a fair trial. The Appeals Chamber opined:

38.    The Appeals Chamber finds that the Trial Chamber considered and gave sufficient weight to the information concerning the proposed monitoring system and the remedy of revocation. It further agrees that, while the African Commission indeed has the necessary qualifications to monitor trials,[1] these procedures and remedies would not necessarily solve the current problems related to the availability and protection of witnesses. Furthermore, the Appeals Chamber notes that both the decision to send monitors and the right to request a Trial Chamber to consider revocation lie within the sole discretion of the Prosecution.[2] Therefore, the Accused would not be able himself to trigger the operation of these “remedies”. The Appeals Chamber thus finds no error in the Trial Chamber’s conclusion in this regard.

[1] Munyakazi Appeal Decision, para. 30.

[2] Rule 11bis (D) (iv) and (F) of the Rules.

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Reconsideration Decision - 23.02.2012 UWINKINDI Jean
(ICTR-01-75-AR11bis)

15. […] The Appeals Chamber recalls that the existence of a mechanism to monitor Mr. Uwinkindi’s case was an important consideration for the Referral Chamber and the Appeals Chamber in rendering their respective decisions on the referral of Mr. Uwinkindi’s case to Rwanda.[1] The Appeals Chamber also takes note of the Referral Chamber’s statement that “effective monitoring would require the monitoring to begin from the date the case is transferred to the relevant national authority”,[2] and shares the concerns of both Mr. Uwinkindi and the Prosecution that the monitoring mechanism contemplated by the Referral Chamber is not yet in place.[3]

16. In rendering the Decision of 16 December 2011, however, the Appeals Chamber did not assume that such a mechanism was already established, nor did it assume that any final agreement with the [African Commission on Human and Peoples’ Rights (“ACHPR”)] had been reached.[4] To the contrary, the Appeals Chamber specifically noted that the Tribunal lacks the authority to compel an independent organization which is neither a party nor an organ of the Tribunal to conduct monitoring.[5] The Appeals Chamber also explicitly observed that the Referral Chamber “requested the Registrar to enter into a suitable agreement with the ACHPR and to seek further directions from the President of the Tribunal, should the arrangements prove ineffective”.[6] The Appeals Chamber thus contemplated that issues with respect to the establishment and effectiveness of the monitoring mechanism might arise, and that such issues could be resolved through the process envisaged by the Referral Chamber involving consultation with the President of the Tribunal or, if not, “[could] be brought to the attention of the Tribunal for appropriate action”.[7] It follows that it is within the authority of the President of the Tribunal to direct the Registrar to seek other sources of funding to meet the ACHPR’s terms or to make arrangements for an alternative monitoring mechanism, and the Appeals Chamber expects that, in light of the changed circumstances, the President will do so.[8] Based on the foregoing, the Appeals Chamber considers that even if the terms proposed by the ACHPR are currently untenable for the Tribunal and arrangements with the ACHPR may have so far proven ineffective, this does not demonstrate a clear error of reasoning in the Appeals Chamber’s Decision of 16 December 2011.

[1] See, e.g., Decision of 16 December 2011, paras. 52, 83-85, 87; [The Prosecutor v. Jean Uwinkindi, Case No. ICTR-01-75-R11bis, Decision on Prosecutor’s Request for Referral to the Republic of Rwanda, 28 June 2011 (“Decision of 28 June 2011”)], paras. 35, 43, 60, 132, 146, 159, 169, 196, 208-216.

[2] Decision of 28 June 2011, para. 216.

[3] See, e.g., Uwinkindi Motion, para. 17; Response and Prosecution Motion, para. 2; Uwinkindi Reply, para. 3. See generally [Supplmentary [sic] Submissions to the Defence Extremely Urgent Motion for Review or Reconsideration of the Decision of 16 December 2011 on Uwinkindi’s Appeal Against the Referral of his Case to Rwanda, 16 February 2012 (confidential)].

[4] See Decision of 16 December 2011, para. 84.

[5] Decision of 16 December 2011, para. 84.

[6] Decision of 16 December 2011, para. 84 (emphasis added).

[7] Decision of 16 December 2011, para. 84.

[8] While the Decision of 28 June 2011 specifically referred to the ACHPR as the monitor for Mr. Uwinkindi’s case, for the reasons already indicated, the Appeals Chamber is not persuaded that the appointment of alternative observers to monitor the proceedings in Rwanda violates that Decision as affirmed by the Decision of 16 December 2011. 

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Referral Decision - 16.12.2011 UWINKINDI Jean
(ICTR-01-75-AR11bis)

37. The Appeals Chamber recalls that, in assessing the conditions of detention, a designated trial chamber should ascertain whether the laws governing detention incorporate relevant international standards regarding the treatment of prisoners.[1] In this respect, the Appeals Chamber notes that, in assessing the conditions of detention in Rwanda, the Referral Chamber discussed the guarantee in the Transfer Law[2] that any person transferred would be detained in accordance with the minimum standards of detention adopted by United Nations General Assembly Resolution 43/173, and that the detention would be subject to monitoring by a representative of the Tribunal or the International Committee of the Red Cross.[3] Mr. Uwinkindi has not demonstrated that the Referral Chamber’s consideration of this legal framework was a discernible error.

38. With respect to the monitoring of the detention conditions, the Appeals Chamber finds Mr. Uwinkindi’s assertions unpersuasive. The Appeals Chamber recalls that the conditions of detention are a relevant consideration in assessing the fairness of domestic criminal proceedings.[4] Thus, it was within the inherent authority of the Referral Chamber to extend the monitoring to this aspect of the referral of his case.[5] Mr. Uwinkindi’s challenge to the effectiveness of this monitoring by referring to the finite mandate of the Tribunal fails to account for the role that the International Residual Mechanism for Criminal Tribunals (“Residual Mechanism”) will play in ensuring oversight of referred cases.[6] Moreover, the Appeals Chamber is not satisfied that the Referral Chamber erred in not identifying the measures that would be taken if it received a report of mistreatment, as such measures could only be determined in a specific context.

52. […] the Appeals Chamber takes specific note of the provisions ordered by the Referral Chamber for monitoring the case,[7] and recalls that, should the interpretation of the Transfer Law set forth herein be proven incorrect, the Tribunal in any event retains the right to revoke the reference of this case to the Rwandan courts. In this respect, the Appeals Chamber notes that although the Referral Chamber requested the African Commission on Human and Peoples’ Rights (“ACHPR”) to monitor the referred case and submit reports every three months after its initial report,[8] nothing in the Impugned Decision precludes the ACHPR from making more frequent or interim reports, as appropriate. In this context, the Appeals Chamber considers that the submission of monitoring reports on a monthly basis is warranted until the President of the Tribunal or Residual Mechanism decides otherwise. The Appeals Chamber is confident that, should there be any violation of Mr. Uwinkindi’s fair trial rights, including Mr. Uwinkindi’s rights to call witnesses and to testify on his own behalf, it would be reported forthwith and a request for revocation of the referral would be made immediately.

83. The Appeals Chamber finds no error in the Referral Chamber relying to a considerable degree on the monitoring mechanism it had fashioned in ensuring that Mr. Uwinkindi’s trial will be fair and, if not, that proceedings would be revoked.[9] The Appeals Chamber recalls that a designated trial chamber has the discretion to order monitoring, and that it may take such a mechanism into account in concluding that the trial will be fair.[10] Moreover, the Appeals Chamber considers that a trial chamber has the authority to dictate the scope of the monitoring and the frequency and nature of the reporting.[11]

84. The Appeals Chamber is also satisfied that the Referral Chamber acted within its discretion in ordering the specific scope and guidelines imposed for the ACHPR’s monitoring in this case. Although the Appeals Chamber notes that the Tribunal lacks the authority to compel an independent organization which is neither a party nor an organ of the Tribunal to conduct monitoring,[12] Rule 11bis(D)(iv) of the Rules authorizes a designated trial chamber to order the Registrar to send monitors. In this case, the Referral Chamber specifically requested the Registrar to enter into a suitable agreement with the ACHPR and to seek further directions from the President of the Tribunal, should the arrangements prove ineffective.[13] Therefore, any difference between the monitoring ordered by the Referral Chamber and the initial expression of willingness by the ACHPR to provide monitoring can be resolved during this process or, if not, can be brought to the attention of the Tribunal for appropriate action.

85. […] Finally, the Appeals Chamber considers that Mr. Uwinkindi’s assertion that there are insufficient means by which he can seek revocation fails to appreciate that the Referral Chamber granted him standing to personally request this remedy, and this contention is therefore dismissed.

[1] See Janković Appeal Decision, paras. 74, 75.

[2] The Appeals Chamber observes that there are two laws relevant to the transfer of cases from the Tribunal to Rwanda. The first law was adopted in March 2007. See Organic Law No 11/2007 of 16/03/2007 Concerning Transfer of Cases to the Republic of Rwanda from the International Criminal Tribunal for Rwanda and from Other States (“2007 Transfer Law”). Certain provisions of the 2007 Transfer Law were modified in May 2009. See Organic Law No 03/2009/OL. of 26/05/2009 Modifying and Complementing the Organic Law No 11/2007 of 16/03/2007 Concerning the Transfer of Cases to the Republic of Rwanda from the International Criminal Tribunal for Rwanda and Other States (“2009 Amendment”). The Appeals Chamber will refer to these provisions collectively as the “Transfer Law”.

[3] Impugned Decision [The Prosecutor v. Jean Uwinkindi, Case No. ICTR-2001-75-R11bis, Decision on Prosecutor’s Request for Referral to the Republic of Rwanda, 28 June 2011], para. 58. See also 2007 Transfer Law, art. 23.

[4] Stanković Appeal Decision, para. 34.

[5] See Stanković Appeal Decision, para. 50 (“The question, then, is how much authority the Referral Bench has in satisfying itself that the accused will receive a fair trial. In the view of the Appeals Chamber, the answer is straightforward: whatever information the Referral Bench reasonably feels it needs, and whatever orders it reasonably finds necessary, are within the Referral Bench’s authority so long as they assist the Bench in determining whether the proceedings following the transfer will be fair.”).

[6] See Impugned Decision, p. 59 (disposition) (“NOTES that upon the conclusion of the mandate of the Tribunal, all obligations of the parties, the monitors and Rwanda will be subject to the directions of the International Residual Mechanism for Criminal Tribunals.”).

[7] See infra paras. 77-85.

[8] Impugned Decision, pp. 58, 59 (disposition). See also Impugned Decision, paras. 213, 214.

[9] Impugned Decision, paras. 35, 60, 132, 139, 146, 159, 169, 196, 219. See also Impugned Decision, pp. 57, 58 (disposition).

[10] See Stanković Appeal Decision, para. 52.

[11] See Stanković Appeal Decision, paras. 50-52, 55.

[12] The Tribunal’s coercive authority cannot exceed Chapter VII of the United Nations Charter, which imposes obligations on member states of the United Nations only. Although paragraph 4 of Security Council Resolution 955 (1994) requests voluntary financial, material, and expert assistance from organizations, it does not mandate this type of cooperation. See The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Decision on Defence Motion to Obtain Cooperation from the Vatican Pursuant to Article 28, 13 May 2004, para. 3.

[13] Impugned Decision, para. 221. See also Impugned Decision, pp. 57, 58 (disposition).

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Decision on Referral - 04.12.2008 HATEGEKIMANA Idelphonse
(ICTR-00-55B-R11bis)

29.    The Appeals Chamber notes that the Trial Chamber considered the possible safeguard mechanisms of monitoring and revocation available in Rwanda in the context of other issues in its decision,[1] but did not consider these procedures in the context of assessing the availability and protection of witnesses. It accordingly finds that the Trial Chamber erred in failing to consider whether these mechanisms would provide an adequate remedy to deal with the issue of availability and protection of witnesses. However, the Appeals Chamber reiterates its finding in Kanyarukiga that, while the African Commission indeed has the necessary qualifications to monitor trials,[2] these procedures and remedies would not necessarily solve the current problems related to the availability and protection of witnesses.[3] Furthermore, the Appeals Chamber notes that both the decision to send monitors and the right to request a Trial Chamber to consider revocation lie within the sole discretion of the Prosecution.[4] Therefore, Hategekimana would not be able to trigger the operation of these “remedies”.[5] In light of the foregoing, the Appeals Chamber finds that this omission did not invalidate the Trial Chamber’s findings on the availability and protection of witnesses.

[1] See Rule 11bis Decision, paras. 45, 55, 60.

[2] Munyakazi Appeal Decision, para. 30; Kanyarukiga Appeal Decision, para. 38.

[3] Kanyarukiga Appeal Decision, para. 38.

[4] Rule 11bis (D) (iv) and (F) of the Rules. See also Kanyarukiga Appeal Decision, para. 38.

[5] Kanyarukiga Appeal Decision, para. 38. 

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Decision on Additional Evidence - 22.09.2016 UWINKINDI Jean
(MICT-12-25-AR14.1)

5.       Rule 142 of the Rules provides for the admission of additional evidence on appeal, and the Appeals Chamber finds that, in accordance with the jurisprudence of the ICTR and the International Tribunal for the former Yugoslavia (“ICTY”), this provision is applicable to appeals of decisions issued pursuant Rule 14 of the Rules.[1] According to Rule 142(A) of the Rules, a motion for the admission of additional evidence shall clearly identify with precision the specific finding of fact made by the trial chamber to which the evidence is directed. For additional evidence to be admissible under Rule 142(C) of the Rules, the applicant must demonstrate that the additional evidence was not available at trial in any form, or discoverable through the exercise of due diligence.[2] The applicant must also show that the additional evidence is relevant to a material issue at trial and credible.[3] Once it has been determined that the additional evidence meets these conditions, the Appeals Chamber will determine in accordance with Rule 142(C) of the Rules whether it could have been a decisive factor in reaching the Impugned Decision.[4]

6.       Where, however, the evidence was available during the revocation proceedings or could have been discovered through the exercise of due diligence, it may still be admissible on appeal pursuant to Rule 142(C) of the Rules if the applicant shows that the exclusion of the additional evidence would lead to a miscarriage of justice, in that, if it had been admitted at trial, it would have had an impact on the Impugned Decision.[5]

7.       In both cases, the applicant bears the burden of identifying with precision the specific finding of fact made by the trial chamber to which the additional evidence pertains, and of specifying with sufficient clarity the impact the additional evidence could or would have had upon the trial chamber’s decision.[6] An applicant who fails to do so runs the risk that the tendered material will be rejected without detailed consideration.[7]

See also para. 39.

[1] See Bernard Munyagishari v. The Prosecutor, Case No. ICTR-05-89-AR11bis, Decision on Bernard Munyagishari’s First and Second Motions for Admission of Additional Evidence, 25 February 2013 (“Munyagishari Decision of 25 February 2013”), para. 5; Prosecutor v. Željko Mejakić et al., Case No. IT-02-65-AR11bis.1, Decision on Joint Defence Motion to Admit Additional Evidence before the Appeals Chamber pursuant to Rule 115, 16 November 2005 (“Mejakić et al. Decision of 16 November 2005”), para. 6.

[2] Augustin Ngirabatware v. Prosecutor, Case No. MICT-12-29-A, Decision on Ngirabatware’s Motions for Relief for Rule 73 Violations and Admission of Additional Evidence on Appeal, 21 November 2014 (“Ngirabatware Decision of 21 November 2014”), para. 24; Munyagishari Decision of 25 February 2013, para. 5.

[3] Ngirabatware Decision of 21 November 2014, para. 25; Munyagishari Decision of 25 February 2013, para. 5; Mejakić et al. Decision of 16 November 2005, para. 10.

[4] Munyagishari Decision of 25 February 2013, para. 5; Mejakić et al. Decision of 16 November 2005, para. 10. Cf. Ngirabatware Decision of 21 November 2014, para. 26.

[5] Cf. Ngirabatware Decision of 21 November 2014, para. 27; Munyagishari Decision of 25 February 2013, para. 6; Mejakić et al. Decision of 16 November 2005, para. 12.

[6] Cf. Ngirabatware Decision of 21 November 2014, para. 28 and references cited therein.

[7] Ngirabatware Decision of 21 November 2014, para. 28 and references cited therein.

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