Notice of appeal

Notion(s) Filing Case
Decision on Extension of Time - 23.03.2009 MILUTINOVIĆ et al.
(IT-05-87-A)

p. 3: NOTING that Pavković’s and Lukić’s Motions seek authorization to file their notices of appeal within 60 days from the filing of the B/C/S translation of the Trial Judgement on the ground that neither of them understand English;[1]

CONSIDERING that Counsel for Pavković and Lukić work in English;

RECALLING that, pursuant to Rule 108 of the Rules, the Appeals Chamber may, after the filing of the notice of appeal by a party and on good cause being shown by motion, authorize a variation of grounds of appeal;

CONSIDERING therefore that Pavković and Lukić will have the opportunity, if they so wish, to request variation of their grounds of appeal after having read the B/C/S translation of the Trial Judgement, provided that they show good cause under Rule 108 of the Rules;

FURTHER CONSIDERING that it would be unreasonable to delay the appellate proceedings until the filing of the B/C/S translation of the Trial Judgement;

FINDING therefore that Pavković and Lukić have not shown good cause for the requested extension;

 

pp. 3-4: CONSIDERING that the length of the Trial Judgement is unprecedented and that, in conjunction with the other factors referred by the Joint Motion, this case raises issues of significant complexity;[2]

CONSIDERING that it is in the interests of justice to ensure that the parties have sufficient time to prepare meaningful notices of appeal in full conformity with the applicable provisions;

FINDING that good cause exists for granting an extension on that basis[.]

See also, Decision on Joint Defence Motion Seeking Extension of Time to File Appeal Briefs, 29 June 2009.

[1] Pavković’s Motion [Motion for an Extension of Time to File Notice of Appeal with Annex” filed by the Defence for Nebojša Pavković, 9 March 2009], paras 2-4; Lukić’s Motion, para. 3.

[2] Cf. Prosecutor v. Enver Hadžihasanović and Amir Kubura, Case No. IT-01-47-A, Decision on Motions for Extension of Time, Request to Exceed Page Limit, and Motion to File a Consolidated Response to Appeal Briefs, 27 June 2006, para. 7 in which the Pre-Appeal Judge noted the “unusual length” of the Trial Judgement rendered in that case; Prosecutor v. Milomir Stakić, Case No. IT-97-24-A, Decision on the Defence Motion for Extension of Time, 26 April 2004, para. 5 mentioning the complexity of issues in that appeal as one of the factors in favour of an extension of time; Prosecutor v. Dario Kordić & Mario Čerkez, Case No. IT-95-14/2-A, Decision on Motions to Extend Time for Filing Appellant’s Briefs, 11 May 2001, para. 19 referring to the length and the complexity of the trial.

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ICTR Rule Rule 108 ICTY Rule Rule 108
Notion(s) Filing Case
Appeal Judgement - 27.11.2007 SIMBA Aloys
(ICTR-01-76-A)

12. The Appellant challenges, on various grounds, a series of interlocutory decisions made by the Trial Chamber. The Appeals Chamber notes that none of the errors alleged was pleaded properly in the Appellant’s Notice of Appeal, which merely lists the decisions challenged and states with respect to each one that the Trial Chamber “erred” or “erred in law” in denying the defence motions underlying these decisions.[1] The notice thus fails to indicate the substance of the alleged errors and the relief sought as required by Rule 108 of the Tribunal’s Rules of Procedure and Evidence (“Rules”).[2] However, the Prosecution does not object to this failure, arguing instead that the Appeal Brief itself suffers from similar shortcomings. Where an Appellant fails to properly raise its argument and the Prosecution fails to object, the Appeals Chamber possesses the discretion to consider the Appellant’s arguments in order to ensure the fairness of the proceedings. It chooses to do so in the instant case.

[1] Simba Notice of Appeal, III-1 to III-6.

[2] See also Practice Direction on Appeals of 4 July 2005, para. 1(c)(i), providing that a Notice of Appeal shall contain “the grounds of appeal, clearly specifying in respect of each ground of appeal [...] any alleged error on a question of law invalidating the decision [...]”. 

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Notion(s) Filing Case
Decision on Post-Hearing Submissions - 19.06.2008 MUVUNYI Tharcisse
(ICTR-00-55A-A)

After the Appeal Hearing was held in this case, Muvunyi requested that the Appeals Chamber consider the Appeal Judgement in Prosecutor v. Hadžihasanović, rendered on 22 April 2008, as it represented new authority on superior responsibility that was applicable in assessing Muvunyi’s liability.

6. The Appeals Chamber may consider post-hearing submissions if they relate to a variation of the grounds of appeal[1] or if it has made a specific request to the parties for further information.[2] Muvunyi argues that a new jurisprudential development demands that the Appeals Chamber consider his post-hearing submissions. The Appeals Chamber notes that in preparing a Judgement, it considers all relevant jurisprudence, including decisions issued after the hearing of an appeal. If additional submissions from the parties on the Hadžihasanović Appeal Judgement had been necessary for a fair determination of the appeal in this case, the Appeals Chamber would have requested Counsel to provide further submissions. The Appeals Chamber has not done so.

[1] Rules, Rule 108. See also The Prosecutor v. Tharcisse Muvunyi, Case No. ICTR-00-55A-A, Decision on the Prosecutor’s Motion to Expunge a Submission from the Record, 25 April 2008, para. 7; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Appellant Jean-Bosco Barayagwiza’s Motions for Leave to Submit Additional Grounds of Appeal, to Amend the Notice of Appeal and to Correct his Appellant’s Brief, 17 August 2006, para. 9; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-T, Decision on the Prosecutor’s Motion to Pursue the Oral Request for the Appeals Chamber to Disregard Certain Arguments Made by Counsel for Appellant Barayagwiza at the Appeals Hearing on 17 January 2007, 5 March 2007, para. 13; Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-A, Decision on Mladen Naletilić’s Motion for Leave to File Pre-Submission Brief, 13 October 2005, pp. 2-3.

[2] Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-A, Decision on Defence Filings Subsequent to the Close of the Appeal Hearing, 5 May 2000, p. 3.

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ICTR Rule Rule 108 ICTY Rule Rule 108
Notion(s) Filing Case
Decision on Expunging a Submission from the Record - 25.04.2008 MUVUNYI Tharcisse
(ICTR-00-55A-A)

Muvunyi made two additional written submissions, after the appeal hearing, relating to (i) a response to a question raised by one of the Judges about whether the omission of a certain fact from the Indictment rendered it defective for lack of notice; and (ii) mitigating factors in sentencing. The Prosecution objected to these submissions and requested that they be expunged from the record.

5. In the Appeals Chamber’s view, Muvunyi’s submission in this respect does not constitute an attempt to vary the grounds of appeal pursuant to Rule 108 of the Rules, but is instead an attempt to clarify and expand upon an existing ground of appeal based on the question raised by a Judge during the Appeals Hearing. The Appeals Chamber further notes that, if it had considered that additional submissions were necessary for the fair determination of the appeal, it would have asked Counsel to provide further submissions on that question. However, in the absence of a specific request by the Appeals Chamber or prior leave granted by it, there is no provision in the Rules under which a party may make written submissions after the hearing of the appeal for the purpose of clarifying issues raised during the hearing. Counsel for Muvunyi had the opportunity of addressing this issue during the Appeals Hearing in response to the question, but did not do so. The Appeals Chamber did not request further submissions nor did Counsel for Muvunyi seek leave to make additional submissions on this point.[1] The Appeals Chamber is therefore satisfied that this submission should not be considered further.

6. [. .  .] Muvunyi has not previously raised this issue[2] nor was it raised during the Appeals Hearing by the Judges or either of the parties. In the Appeals Chamber’s view, this therefore constitutes a new submission going beyond the existing grounds of appeal.

7. The Appeals Chamber recalls that pursuant to Rule 108 of the Rules, the Appeals Chamber “may, on good cause being shown by motion, authorise a variation of the grounds of appeal”. Such requests must be made “as soon as possible after identifying the new alleged error”[3] of the Trial Chamber, and must “at least, explain precisely what amendments are sought and why, with respect to each such amendment, the ‘good cause’ requirement of Rule 108 [of the Rules] is satisfied”.[4] In the present case, the Appeals Chamber is not convinced that Muvunyi has properly sought leave to amend his grounds of appeal, nor that he has shown good cause. The Appeals Chamber is therefore satisfied that this submission should not be considered further.

[1] The situation in the present case therefore differs from that in Prosecutor v. Anto Furundžija, where a Judge asked Counsel for Anto Furundžija a question during the appeals hearing about a finding in a specific case. Counsel indicated that he would “be glad to go back to it and check it for you” (Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-A, AT. 2 March 2000 p. 189). In that case, the Appeals Chamber admitted a document filed by Anto Furundžija subsequent to the hearing on the basis that the Judge’s “request for information during oral hearings constitutes good cause for its admission”. Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-A, Decision on Defence Filings Subsequent to the Close of the Appeal Hearing, 5 May 2000, p. 3.

[2] In his Appeal Brief, Muvunyi challenged the factual finding that he had assisted the Bicunda family and also argued that since this finding underpins his conviction under Article 6(1) of the Statute of the Tribunal (“Statute”) for aiding and abetting the attack at Groupe Scolaire, it was impermissibly used in aggravation (Muvunyi Appeal Brief, para. 114). Muvunyi also did not address this issue in his Response Brief to the Prosecutor’s appeal on sentence.

[3] Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Appellant Jean-Bosco Barayagwiza’s Motions for Leave to Submit Additional Grounds of Appeal, to Amend the Notice of Appeal and to Correct his Appellant’s Brief, 17 August 2006 (“Barayagwiza Decision of 17 August 2006”), para. 9; Barayagwiza Decision of 5 March 2007, para. 13. See also Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-A, Decision on Mladen Naletilić’s Motion for Leave to File Pre-Submission Brief, 13 October 2005, pp. 2-3.

[4] Barayagwiza Decision of 17 August 2006, para. 9; Barayagwiza Decision of 5 March 2007 [Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on the Prosecutor’s Motion to Pursue the Oral Request for the Appeals Chamber to Disregard Certain Arguments Made by Counsel for Appellant Barayagwiza at the Appeals Hearing on 17 January 2007, 5 March 2007], para. 13; Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Decision on Dragan Jokić’s Request to Amend Notice of Appeal, 14 October 2005, para. 7. See also Practice Direction on Formal Requirements for Appeals from Judgement, 4 July 2005, paras. 2-3.

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ICTR Rule Rule 108 ICTY Rule Rule 108
Notion(s) Filing Case
Decision on Variation of Appeal - 19.03.2009 HARAQIJA & MORINA
(IT-04-84-R77.4-A)

5. Rule 108 of the Rules provides that the “Appeals Chamber may, on good cause being shown by motion, authorise a variation of the grounds of appeal” contained in a notice of appeal. Motions for variation of the notice of appeal should be submitted as soon as possible after identifying the new alleged error of the Trial Chamber to be included in the notice of appeal or after discovering any other basis for seeking variation of the notice of appeal.[1] Generally, “a request to amend a notice of appeal must, at least, explain precisely what amendments are sought and why, with respect to each amendment, the ‘good cause’ requirement of Rule 108 is satisfied”.[2] It is the Appellant’s burden to demonstrate that each amendment should be permitted under the standards outlined above, including establishing lack of prejudice to the Prosecution.[3] The “good cause” requirement under Rule 108 encompasses both good reason for including the new or amended grounds of appeal sought and good reason as to why those grounds were not included in the original notice of appeal.[4]

6. In its previous determinations that proposed variations to the notice of appeal may be authorized within the scope of the good cause requirement, the Appeals Chamber has considered the following factors to be of relevance: (i) the variation is minor but clarifies the notice of appeal without affecting its content;[5] (ii) the opposing party has not opposed the variation or would not be prejudiced by it; (iii) the variation would bring the notice of appeal into conformity with the appeal brief; (iv) the variation does not unduly delay the appeal proceedings; or (v) the variation could be of substantial importance to the success of the appeal such as to lead to a miscarriage of justice if it is excluded.[6]

8. Nevertheless, the Appeals Chamber is not satisfied that there is good cause to allow Morina to amend his Notice of Appeal and as a corollary his Appellant’s brief to add the proposed new ground of appeal. The briefing in this case is complete, and the proposed variation would therefore unduly delay the appeal proceedings by requiring additional submissions on this point from the parties. Moreover, Morina fails to substantiate his claim that by excluding it, this would equate to a miscarriage of justice. In this sense, he has not identified any aspect of his criminal responsibility or his sentence that is implicated by the alleged error. Rather, his concern is mainly for his professional reputation[7] because, in his view, the language employed by the Trial Judgement leaves the impression that he was arrested by force. This does not amount to good cause.

[1] Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Appellant Jean-Bosco Barayagwiza’s Motions for Leave to Submit Additional Grounds of Appeal, to Amend and to Correct his Appellant’s Brief, 17 August 2006 (“Nahimana et al. Decision of 17 August 2006”), para. 9; Prosecutor v. Mladen Naletilić, a.k.a. “Tuta”, and Vinko Martinović, a.k.a. “[tela”, Case No. IT-98-34-A, Decision on Mladen Naletilić’s Motion for Leave to File Pre-Submission Brief, 13 October 2005, pp. 2-3.

[2] Nahimana et al. Decision of 17 August 2006, para. 9; Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Decision on Dragan Jokić’s Motion to Amend Notice of Appeal, 14 October 2005, para. 7. See also Practice Direction on Formal Requirements for Appeals from Judgement (IT/201), 7 March 2002, paras 2-3.

[3] Nahimana et al. Decision of 17 August 2006, para. 14; Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Decision on Motion of Dragan Jokić for Leave to File Third Amended Notice of Appeal and Amended Appellate Brief, 26 June 2006 (“Blagojević Decision of 26 June 2006”), para. 14.

[4] Blagojević Decision of 26 June 2006, para. 7. See also Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Decision on Motions Related to the Pleadings in Dragan Jokić’s Appeal, 24 November 2005 (“Blagojević Decision of 24 November 2005”), para. 10; Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Decision on Defence Motion for Extension of Time in Which to File the Defence Notice of Appeal, 15 February 2005, pp. 2-3.

[5] Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Decision on Prosecution’s Request for Leave to Amend Notice of Appeal in Relation to Vidoje Blagojević, 20 July 2005, pp. 2-3.

[6] Tharcisse Muvunyi v. The Prosecutor, Case No. ICTR-2000-55A-A, Decision on “Accused Tharcisse Muvunyi’s Motion for Leave to Amend His Grounds for Appeal to Extend Time to File His Brief on Appeal” and “Prosecutor’s Motion Objecting to ‘Accused Tharcisse Muvunyi’s Amended Grounds of Appeal’”, 19 March 2007, para. 7; Nahimana et al. Decision of 17 August 2006, para. 13; cf. Blagojević Decision of 26 June 2006, paras 7-9.

[7] Motion [ Bajrush Morina’s Application for a Variation of the Grounds of Appeal (confidential), 13 February 2009], para. 15.

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ICTR Rule Rule 108 ICTY Rule Rule 108
Notion(s) Filing Case
Decision on Motions to Strike and Word Limit - 06.11.2009 HARTMANN Florence
(IT-02-54-R77.5-A)

13. […] the Appeals Chamber considers that the Appellant’s persistent and pervasive use of alternative formulations for alleged errors of law and alleged errors of fact throughout the Notice of Appeal leads to imprecision and confusion and does not give the Amicus Prosecutor sufficient notification of the scope of the appeal.  If the Appellant is of the view that an issue is one of law, then this should be stated.  If it is one of fact, then it should be stated as such.  Only where there is a genuine issue of mixed law and fact, or where there is a real uncertainty, should an alternative formulation be used. 

14. Finally, the Appeals Chamber recalls that “[t]he only formal requirement under the Rules is that the notice of appeal contains a list of the grounds of appeal; it does not need to detail the arguments that the parties intend to use in support of the grounds of appeal, the place for detailed arguments being in the Appellant’s brief.”[1]  The Appeals Chamber notes that the Notice of Appeal is so long and complex that it is difficult for the Appeals Chamber to separate out the grounds and sub-grounds of appeal therein from what might be argumentation.  Moreover, the Notice of Appeal contains sections that are clearly argumentation […]. The Appellant is reminded that a notice of appeal requires her to clearly specify the alleged error in question and then identify the challenged finding or ruling in the judgement or decision.  Detailed argumentation is to be included in the appeal brief.  In light of the foregoing, the Appellant is instructed to re-file the Notice of Appeal in conformity with the above requirements.

[1] Prosecutor v. Mrkšić and Šljivančanin, Case No. IT-95-13/1-A, Decision on the Prosecution’s Motion to Order Veselin Šljivančanin to Seek Leave to File an Amended Notice of Appeal and to Strike New Grounds Contained in His Appeal Brief, 26 August 2008, para. 8.

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ICTR Rule Rule 108 ICTY Rule Rule 108
Notion(s) Filing Case
Order on Notice of Appeal - 14.10.2009 RENZAHO Tharcisse
(ICTR-97-31-A)

3. The Notice of Appeal sets forth 13 grounds of appeal. The final ground of appeal, which relates to sentencing, states only that in the alternative, should the Appeals Chamber […] uphold Mr. Renzaho’s responsibility, the Trial Chamber erred in imposing a life sentence.

4. This ground of appeal does not indicate the substance of the alleged error and the relief sought, thereby failing to fully comply with Rule 108 of the Rules of Procedure and Evidence of the Tribunal (“Rules”)[1] and the Practice Direction on Formal Requirements for Appeals from Judgement of 4 July 2005 (“Practice Direction”).[2]

5. For these reasons, and in accordance with Rule 108bis (B) of the Rules and Paragraph 13 of the Practice Direction, I hereby ORDER Mr. Renzaho to clarify the substance of his 13th Ground of Appeal, should he wish to maintain it, no later than 23 October 2009.     

[1] Rule 108 of the Rules requires a notice of appeal to identify “the order, decision or ruling challenged with specific reference to the date of its filing, and/or the transcript page, and indicate the substance of the alleged errors and the relief sought”.

[2] Pursuant to paragraph 1(C)(i) to (v) of the Practice Direction, a notice of appeal shall clearly specify in respect of each ground of appeal “any alleged error on a question of law invalidating the decision and/or any alleged error of fact which has occasioned a miscarriage of justice” and shall identify “the finding or ruling challenged in the judgement, with specific reference to the page number and paragraph number”; any other “order, decision or ruling challenged with specific reference to the date of its filing, and/or the transcript page”; and the precise relief sought.

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ICTR Rule Rule 108 ICTY Rule Rule 108
Notion(s) Filing Case
Decision on Additional Grounds of Appeal - 17.08.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A )

50. […] Despite the fact that the Notice of Appeal clearly did not conform to the criteria established for such filings under the provisions of Rule 108 and the Practice Direction,[1] the Appeals Chamber accepted that Notice of Appeal as validly filed in the particular circumstances of the case. The Appeals Chamber was mindful of significant delays and multiple previous filings in this case, as well as of the fact that the Prosecution had not opposed the filing in question. […] The Notice of Appeal and the Appellant’s Brief, having been filed simultaneously, allow for the Prosecution to sufficiently understand the Appellant’s grounds of appeal and thus, the Appeals Chamber considered that it was in the interests of judicial economy to accept the deficient Notice of Appeal.[2]

51. The Appeals Chamber also wishes to emphasize that it strongly disagrees with the Appellant’s claim that his full notice of appeal “could only be completed once the Appeals Brief itself was in its final form”.[3] This assertion goes against the logical order of the appeal procedure before the Tribunal, where a notice of appeal is filed shortly after the impugned judgement, while the Appellant’s brief is to be filed within seventy-five days after the notice of appeal. […]

52. […] The Appeals Chamber further finds that the newly submitted notice of appeal does not fully conform to the provisions of Rule 108 and the Practice Direction in the sense that, for most Grounds, it still fails to identify with precision the nature of alleged errors, any references to the challenged findings or the relief sought. In addition, in the Annexed Notice of Appeal, the Appellant adds, in certain Grounds, some elements that were specified in the Appellant’s Brief under different grounds,[4] which might be even more confusing. It would thus not be in the interests of justice to allow for these amendments, and the denial thereof will not result in a miscarriage of justice for the Appellant.

[1] The Notice Appeal consists of a simple list of grounds of appeal and indicates neither the relief sought nor the challenged findings of the Trial Chamber.

[2] This approach is not inconsistent with the Appeals Chamber’s findings in para. 46 of The Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-A, Judgement (Reasons), 1 June 2001, stating that “an appeal, which consists of a Notice of Appeal that lists the grounds of Appeal but is not supported by an Appellant’s brief, is rendered devoid of all the arguments and authorities”. As the Appeals Chamber found in the cited judgement, this would only be the case if the deficient notice of appeal is not followed by a comprehensive Appellant’s brief providing detailed arguments. This is clearly not the case in the present appeal.

[3] Motion of 5 July 2006, para. 10, [The Appellant Jean-Bosco Barayagwiza’s Motion for Leave to Amend the Notice of Appeal in the Light of the Decision of the Appeals Chamber dated 14/11/2005, 5 July 2006].

[4] For example, the “blatant political interference” and the “lack of impartiality” of Judges Pillay and Møse alleged under Ground 4, para. 11, of the newly submitted notice of appeal, are not evoked under Ground 4 of the Appellant’s Brief but under Ground 1, at paras 22-41. The lack of “effective representation” alleged under ground 5, para. 12 of the newly submitted notice of appeal, does not appear under Ground 5 of the Appellant’s Brief but under Ground 4, at paras 68-99. Under Ground 44, para. 51 of the newly submitted notice of appeal, the Appellant argues that “[t]he Trial Chamber failed to give precise and details grounds to explain its decision to sentence the Appellant to 35 years”, whereas this allegation is made under Ground 45 of the Appellant’s Brief.

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ICTR Rule Rule 108 ICTY Rule Rule 108
Notion(s) Filing Case
Decision on Additional Grounds of Appeal - 17.08.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A )

14. Finally, the Appeals Chamber notes that it is the Appellant’s burden to demonstrate that each amendment should be permitted under the standards outlined above, including establishing lack of prejudice to the Prosecution.[1]

[1] Blagojević Decision of 26 June 2006, para. 14.

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ICTR Rule Rule 108 ICTY Rule Rule 108
Notion(s) Filing Case
Decision on Additional Grounds of Appeal - 17.08.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A )

50. In this respect, the Appeals Chamber adds that the purpose for setting forth the grounds, as provided for under Rule 108 of the Rules, is, inter alia, “to focus the mind of the Respondent, right from the day the notice of appeal is filed, on the arguments which will be developed subsequently in the Appeal brief” and “to give details of the arguments the parties intend to raise in support of the grounds of appeal”.[1]

[1] The Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-A, Decision on Motion to Have the Prosecution’s Notice of Appeal Declared Inadmissible, 26 October 2001, p. 3.

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ICTR Rule Rule 108 ICTY Rule Rule 108
Notion(s) Filing Case
Decision on Additional Grounds of Appeal - 17.08.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A )

12. In the interest of protecting the right of convicted defendants to a fair appeal, the Appeals Chamber has, in limited circumstances, permitted amendments even where there was no good cause for failure to include the new or amended grounds in the original notice—that is, where the failure resulted solely from counsel negligence or inadvertence. In such instances, the Appeals Chamber has permitted amendments which are of substantial importance to the success of the appeal such as to lead to a miscarriage of justice if they were excluded.[1] In these exceptional cases, the Appeals Chamber has reasoned, the interests of justice require that an appellant not be held responsible for the failures of counsel.

19. The Appeals Chamber notes that the Appellant does not request to amend any of his grounds of appeal in the Notice of Appeal and Appellant’s Brief, but simply submits that the seven additional grounds should be included anew. The Appeals Chamber further notes that instead of seeking to demonstrate “good cause” for submitting the additional grounds of appeal at this late stage of the proceedings on appeal, the Appellant simply attaches the new grounds of appeal that he seeks to have admitted as part of the briefing.[2] […] Therefore, it is apparent that the Motion of 6 March 2006 is devoid of any arguments in relation to the requirements prescribed by Rule 108 of the Rules and the jurisprudence of the Appeals Chamber. In this respect, the Appeals Chamber finds that the Motion of 6 March 2006 is frivolous.

20. However, in fairness to the Appellant, who should not be prejudiced because of any negligence or inadvertence by his Counsel in failing to include the submitted additional grounds,[3] the Appeals Chamber will examine them in order to determine whether they should be included because they are of substantial importance to the success of the appeal or are likely to otherwise correct ambiguity or error in the previous filings without unduly delaying the appeal proceedings.

[1] Blagojević Decision of 26 June 2006, para. 9; Blagojević Decision of 24 November 2005, para. 8; Blagojević Decision of 14 October 2005, para. 8. See also Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Decision Granting Leave to Dario Kordić to Amend His Grounds of Appeal, 9 May 2002 (“Kordić Decision of 9 May 2002”), para. 5.

[2] Motion of 6 March 2006, paras 6-57, [The Appellant Jean-Bosco Barayagwiza’s Motion for Leave to Submit Additional Grounds pursuant to Rule 108 of the I.C.T.R. Rules of Procedure and Evidence and for an Extension of Page Limits pursuant to the Decision of the Appeals Chamber of 14th November 2005, 6 March 2006].

[3] Kordić Decision of 9 May 2002, paras 5, 7 stating, inter alia, that the inability of the counsel to articulate a ground of appeal properly should not exclude the appellant from raising that ground of appeal.

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ICTR Rule Rule 108 ICTY Rule Rule 108
Notion(s) Filing Case
Decision on Additional Grounds of Appeal - 17.08.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A )

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

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

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

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

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

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

[4] See paras. 47- 53 infra.

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ICTR Rule Rule 108 ICTY Rule Rule 108 Other instruments Practice Direction on Formal Requirements for Appeals from Judgement (ICTR): Paras 2-3.
Notion(s) Filing Case
Decision on Additional Grounds of Appeal - 17.08.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A )

10. It has been held that the concept of “good cause” under this provision encompasses both good reason for including the new or amended grounds of appeal sought and good reason showing why those grounds were not included (or were not correctly phrased) in the original notice of appeal.[1] In its cases, the Appeals Chamber has relied upon a variety of factors in determining whether “good cause” exists, including (i) the fact that the variation is so minor that it does not affect the content of the notice of appeal; (ii) the fact that the opposing party would not be prejudiced by the variation or has not objected to it; and (iii) the fact that the variation would bring the notice of appeal into conformity with the appeal brief.[2] Where an appellant seeks a substantive amendment broadening the scope of the appeal, “good cause” might also, under some circumstances, be established.[3] In such instances, each amendment is to be considered in light of the particular circumstances of the case.[4]

11. The jurisprudence of the Tribunal establishes that the “good cause” requirement must be interpreted restrictively at late stages in the appeal proceeding when amendments would necessitate a substantial slowdown in the progress of the appeal – for instance, when they would require briefs already filed to be revised and resubmitted.[5] To hold otherwise, would leave appellants free to change their appeal strategy and essentially restart the appeal process at will (including after they have had the advantage of reviewing the arguments in a response brief), interfering with the expeditious administration of justice and prejudicing the other parties to the case.[6]

[1] Blagojević Decision of 26 June 2006, para. 7; See also, e.g., Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Decision on Motions Related to the Pleadings in Dragan Jokić’s Appeal, 24 November 2005, para. 10 (“Blagojević Decision of 24 November 2005”); Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Decision on Defence Motion for Extension of Time in Which to File the Defence Notice of Appeal, 15 February 2005, pp. 2-3.

[2] Blagojević Decision of 26 June 2006, para. 7; See also Blagojević Decision of 24 November 2005, para. 7; Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Decision on Prosecution’s Request for Leave to Amend Notice of Appeal in Relation to Vidoje Blagojević, 20 July 2005 (“Blagojević Decision of 20 July 2005”), pp. 3-4.

[3] Blagojević Decision of 26 June 2006, para. 7; Blagojević Decision of 24 November 2005, para. 7; Blagojević Decision of 20 July 2005, p. 3.

[4] Blagojević Decision of 26 June 2006, para. 7; Blagojević Decision of 24 November 2005, para. 7.

[5] Blagojević Decision of 26 June 2006, para. 8.

[6] Blagojević Decision of 26 June 2006, para. 8.

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Notion(s) Filing Case
Decision on Arguments Made at the Appeals Hearing - 05.03.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

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

[1] Decision on Appellant Jean-Bosco Barayagwiza’s Motions for Leave to Submit Additional Grounds of Appeal, to Amend the Notice of Appeal and to Correct his Appellant’s Brief, 17 August 2006 (“Decision of 17 August 2006”), para. 9; Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-A, Decision on Mladen Naletilić’s Motion for Leave to File Pre-Submission Brief, 13 October 2005, pp. 2-3.

[2] Decision of 17 August 2006, para. 9; Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Decision on Dragan Jokić’s Motion to Amend Notice of Appeal, 14 October 2005, para. 7. See also Practice Direction on Formal Requirements for Appeals from Judgement, 4 July 2005 (“Practice Direction on Formal Requirements”), paras 2-3. 

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Decision on Arguments Made at the Appeals Hearing - 05.03.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

15. Although the Appeals Chamber has concluded that the Appellant has not shown “good cause” justifying the amendments to his grounds of appeal at this stage in the appeals proceedings, the Appeals Chamber recalls having under limited circumstances permitted amendments even where there was no good cause shown for failure to include the new or amended grounds in the original notice – that is where the failure resulted from counsel’s negligence or inadvertence. In such instances, the Appeals Chamber has permitted amendments which could be of substantial importance to the success of an appeal such as to lead to a miscarriage of justice if they were excluded.In these exceptional cases, the Appeals Chamber has reasoned, the interests of justice require that an appellant not be held responsible for the failures of his or her counsel. In the instant case, the Appeals Chamber concludes that the failure on the part of the Appellant’s Counsel to articulate these grounds at an earlier stage should not bar the Appellant from raising those grounds of appeal here. […]

15. […] The Appeals Chamber notes that each of these grounds goes to the issue of the sufficiency of the Indictment brought against the Appellant, which directly impacts upon his due process right under Article 21(4)(a) of the Statute “to be informed promptly and in detail […] of the nature and cause of the charge against him.” Protection of this right is considered to be of such importance that the issue of alleged defects in the indictment falls into the limited category of issues considered to be excepted from the waiver doctrine. In this case, therefore, the Appeals Chamber finds that the proposed new amendments, whether or not they are likely to succeed, could be of substantial importance to the Appellant’s appeal such that their exclusion would lead to a miscarriage of justice.[4]

[1] Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Decision on Motion of Dragan Jokić for Leave to File Third Amended Notice of Appeal and Amended Appellate Brief, 26 June 2006, para. 9 referring to Prosecutor v. Dario Kordić and Mario Čerkez, Case IT-95-14/2-A, Decision Granting Leave to Dario Kordić to Amend his Grounds of Appeal, 9 May 2002 (“Kordić and Čerkez Decision”), para. 5. See also Decision of 17 August 2006, para. 20.

[2] Id.

[3] Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-A, Judgement, 9 July 2004, para. 200.

[4] See Kordić and Čerkez Decision, para. 7.

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Notion(s) Filing Case
Decision on Clarification - 08.12.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

13. Turning to the Appellant’s request for variance of the Notice of Appeal and Appeal Brief, the Appeals Chamber considers that the Appellant, through his present Motion, in fact seeks to introduce a wholly new ground of appeal. Pursuant to Rule 108 of the Rules, the Appeals Chamber “may, on good cause being shown by motion, authorise a variation of the grounds of appeal” contained in the Notice of Appeal. The Appeals Chamber recalls its Decision of 17 August 2006, in which it outlined its jurisprudence concerning variation of grounds of appeal under Rule 108 of the Rules.[1] In particular, the Appeals Chamber recalls that the concept of “good cause” under this provision encompasses both good reason for including the new or amended grounds of appeal and good reason showing why these grounds were not included (or were not correctly phrased) in the original notice of appeal. The Appeals Chamber held specifically that the “good cause requirement” must be interpreted restrictively at late stages of appeal proceedings when amendments would necessitate a substantial slowdown in the progress of the appeal.[3] To hold otherwise, would leave appellants free to change their appeal strategy and essentially restart the appeal process at will, interfering with the expeditious administration of justice and prejudicing the other parties to the case.

14. […] The Appellant has not demonstrated any justification for failing to challenge the Trial Chamber’s findings on the existence of genocide in Rwanda in his Notice of Appeal. Moreover, the Appeals Chamber finds that the Appellant has not formulated any specific wording for the grounds he wishes to add in his Notice of Appeal,[5] but merely seeks to amend his Appeal Brief “by the addition of further grounds of appeal dealing specifically with the issues raised by the Karemera Decision”.[6] Pursuant to Rule 108 of the Rules, read in conjunction with paragraphs 2 and 3 of the Practice Direction on Formal Requirements for Appeals from Judgement,[7] a request to amend a notice of appeal must, at least, explain precisely what amendments are sought and why, with respect to each such amendment, the “good cause” requirement of Rule 108 of the Rules is satisfied.[8] The generic submissions of the Appellant fall well short of satisfying this requirement. Therefore, the request for leave to vary the Notice of Appeal and to amend the Appeal Brief is denied as unfounded.

[1] Decision on Appellant Jean-Bosco Barayagwiza’s Motions for Leave to Submit Additional Grounds of Appeal, to Amend the Notice of Appeal and to Correct his Appellant’s Brief, 17 August 2006 (“Decision of 17 August 2006”), paras 9-14, referring, in particular, to Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Decision on Motion of Dragan Jokić for Leave to File Third Amended Notice of Appeal and Amended Appellate Brief, 26 June 2006 (“Blagojević Decision of 26 June 2006”), para. 7; See also, e.g., Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Decision on Motions Related to the Pleadings in Dragan Jokić’s Appeal, 24 November 2005 (“Blagojević Decision of 24 November 2005”), para. 10; Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Decision on Defence Motion for Extension of Time in Which to File the Defence Notice of Appeal, 15 February 2005 (“Blagojević Decision on Defence Motion for Extension of Time”), pp. 2-3.

[2] Decision of 17 August 2006, para. 10; See also, e.g., Blagojević Decision of 26 June 2006, para. 7; Blagojević Decision of 24 November 2005, paras 7-8; Blagojević Decision on Defence Motion for Extension of Time, pp. 2-3.

[3] Decision of 17 August 2006, para. 11, referring to Blagojević Decision of 26 June 2006, para. 8.

[4] Id.

[5] Momir Nikolić v. The Prosecutor, Case No. IT-02-60/1-A, Decision on Motion for Leave to Vary Notice of Appeal, 30 September 2004, p. 4.

[6] Motion, para. 24.

[7] Practice Direction on Formal Requirements for Appeals from Judgement, 4 July 2005.

[8] The Prosecutor v. Vidoje Blagojević & Dragan Jokić, Case No. IT-02-60-A, Decision on Dragan Jokić’s Request to Amend Notice of Appeal, 14 October 2005, pp 3-4.

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ICTR Rule Rule 108 ICTY Rule Rule 108 Other instruments Practice Direction on Formal Requirements for Appeals from Judgement (ICTR): Paras 2-3
Notion(s) Filing Case
Appeal Judgement - 18.03.2010 BIKINDI Simon
(ICTR-01-72-A)

96. As a preliminary matter, the Appeals Chamber notes that the alleged error in failing to keep a proper record of the site visit was not properly pleaded in the Appellant’s Notice of Appeal, which only refers to the alleged error in failing to take judicial notice of Operation Turquoise.[1] The Notice of Appeal thus fails to indicate the substance of the alleged errors and the relief sought, as required by Rule 108 of the Rules.[2] However, because the Prosecution did not object to this failure, the Appeals Chamber, exercising its discretion,[3] will consider whether the Trial Chamber erred in law by failing to include the video recording and any observations from the site visit in the official record of this case.

[1] Bikindi’s Notice of Appeal [Simon Bikindi v. The Prosecutor, Case No. ICTR-01-72-A, Notice of Appeal, filed on 31 December 2008], paras. 14, 15.

[2] See also Practice Direction on Formal Requirements for Appeals from Judgement of 4 July 2005, para. 1(c)(i), which provides that a Notice of Appeal shall contain “the grounds of appeal, clearly specifying in respect of each ground of appeal [...] any alleged error on a question of law invalidating the decision [...]”.

[3] Simba Appeal Judgement, para. 12.

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Appeal Judgement - 19.05.2010 BOŠKOSKI & TARČULOVSKI
(IT-04-82-A)

246. The Appeals Chamber further recalls that pursuant to Rule 108 of the Rules, a party seeking to appeal a judgement must set forth the grounds of appeal in a notice of appeal, indicating “the substance of the alleged errors and the relief sought.”[1] The notice of appeal does not need to detail the arguments that the parties intend to use in support of the grounds of appeal, as this has to be done in an appellant’s brief.[2] Instead, the notice of appeal must “focus the mind of the Respondent, right from the day the notice of appeal is filed, on the arguments which will be developed subsequently in the Appeal brief.”[3] In the present case, the Prosecution Notice of Appeal includes the Prosecution’s only ground of appeal. Furthermore, it indicates the relief sought and the substance of the alleged errors when it inter alia states that the Reports were insufficient to satisfy Boškoski’s obligation under Article 7(3) of the Statute.[4] The allegation that the Reports were unlikely to trigger an investigation into police criminal conduct is an argument that did not need to be included in the Prosecution Notice of Appeal and that was properly made in the Prosecution Appeal Brief.

[1] Mrkšić and [ljivančanin Decision of 26 August 2008, para. 8. See also Practice Direction on Formal Requirements for Appeals from Judgement (IT/201), 7 March 2002, para. 1(c) (i), (ii) and (v).

[2] Mrkšić and [ljivančanin Decision of 26 August 2008, para. 8.

[3] Prosecutor v. Ignace Bagilishema, ICTR-95-1A-A, Decision on Motion to Have the Prosecution’s Notice of Appeal Declared Inadmissible, 26 October 2001, p. 3.

[4] Prosecution Notice of Appeal, paras 6-9.

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Appeal Judgement - 19.05.2010 BOŠKOSKI & TARČULOVSKI
(IT-04-82-A)

244. The Appeals Chamber recalls that a party is required to raise formally any issue of contention before the Trial Chamber either during trial or pre-trial;[1] failure to do so may result in the complainant having waived his right to raise the issue on appeal.

[1] Krajišnik Appeal Judgement, para. 654; Blaškić Appeal Judgement, para. 222; Čelebići Appeal Judgement, para. 640.

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Notion(s) Filing Case
Decision on Notice of Appeal - 26.03.2009 BOŠKOSKI & TARČULOVSKI
(IT-04-82-A)

19. The grounds of appeal and the arguments in an Appellant’s brief must be set out and numbered in the same order as in the Appellant’s Notice of Appeal, unless otherwise varied with leave of the Appeals Chamber.[1] Any variation of the grounds of appeal must be done by way of a motion in accordance to the Rules setting out the specific Rule under which the variation is sought and the arguments in support of the request to vary the grounds of appeal as required by that Rule.[2]

30. […] While Tarčulovski’s proposed Amended Notice of Appeal refers to ranges of paragraphs in the Trial Judgement, which correspond to his grounds of appeal, the Appeals Chamber finds that this does not satisfy the express requirement of the Practice Direction that a notice of appeal contain an identification of the finding or ruling challenged in the judgement with specific reference to the page number and paragraph number.  Accordingly, the Appeals Chamber orders Tarčulovski to file an amended Notice of Appeal that fully complies with the Practice Direction.

[1] Practice Direction, para. 4.

[2] Practice Direction, para. 2.

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Decision on Notice of Appeal - 26.03.2009 BOŠKOSKI & TARČULOVSKI
(IT-04-82-A)

17. The Appeals Chamber may authorise leave to amend a notice of appeal upon the showing of “good cause”. The concept of “good cause” covers both good reason for including the new or amended grounds of appeal sought and good reason showing why those grounds were not included (or were not correctly phrased) in the original notice of appeal.[1] The “good cause” requirement is assessed on a case by case basis,[2] and several factors can be taken into account.[3] The Appeals Chamber has summarized these factors as follows:

These have included the fact that the variation is so minor that it does not affect the content of the notice of appeal; the fact that the opposing party would not be prejudiced by the variation or has not objected to it; and the fact that the variation would bring the notice of appeal into conformity with the appeal brief. Where the appellant seeks a substantive amendment broadening the scope of the appeal, “good cause” might also, under some circumstances, be established. The Appeals Chamber notes that it has never established a cumulative list of requirements that must be met each time a substantive amendment is to be granted. [4]

18. The Appeals Chamber recalls that the good cause requirement is to be interpreted more restrictively at later stages in the appeal proceedings when variations to the grounds of appeal may substantially affect the efficient administration of justice.[5] 

In the present case, the Appeals Chamber was seized of a motion to reorganise the grounds of appeal listed in Tarčulovski’s Appeal Brief in an order different from that set forth in his Notice of Appeal. Tarčulovski contended that good cause existed to amend his Notice of Appeal because two of his current counsels were appointed after it was filed. At the time the motion was filed, Tarčulovski believed that his Defence team had just received a fresh perspective on the significance of the alleged errors committed by the Trial Chamber because his entire team was then able to review the extensive record and transcript in the case.

25. The Appeals Chamber considers that, in the circumstances of this case, the change of counsel constitutes good reason for showing why those grounds were not included in the original Notice of Appeal. In addition, it takes note of the fact that the proposed variation to the Notice of Appeal would bring it into conformity with the Appeal Brief, that any potential prejudice caused to the Prosecution is cured through the Appeals Chamber’s decision to grant the Prosecution’s request for an extension of time to file its Respondent’s Brief,[6] and that the inclusion of these grounds of appeal in an amended notice of appeal would not unduly interfere with the expeditious administration of justice as these arguments do not reflect a change to an appeal strategy by Tarčulovski subsequent to reading the Prosecution’s Respondent’s brief, which has not yet been filed.[7] Therefore, the Appeals Chamber finds that Tarčulovski has shown good cause for amending his notice of appeal.

[1] The Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Decision on Motion of Dragan Jokić for Leave to File Third Amended Notice of Appeal and Amended Appellate Brief, 26 June 2006 (“Blagojević and Jokić  Decision of 26 June 2006”), para. 7.

[2] The Prosecutor v. Kordić and Čerkez, Case No. IT-95-14/2-A, Decision Granting Leave to Dario Kordić to Amend his Grounds of Appeal, 9 May 2002, para. 5.

[3] The Prosecutor v. Blagojević and Jokić, Case No. IT-02-60-A, Decision on Motions Related to the Pleadings in Dragan Jokić’s Appeal, 24 November 2005, para. 7.

[4] Blagojević and Jokić Decision of 26 June 2006, para. 7.

[5] Prosecutor v. Miroslav Bralo, Case No. IT-95-17-A, Decision on Miroslav Bralo’s Motion for leave to Supplement Appeal Brief in Light of New Information Concerning Ex Parte Portion of the Trial Record, 9 January 2007, para. 11.

[6] Boškoski and Tarčulovski Decision, 19 February 2009 [Prosecutor v. Ljube Boškoski and Johan Tarčulovski, Case No. IT-04-82-A, Decision on Prosecution’s Urgent Motion for Extension of Time, 19 February 2009], p. 3.

[7] Mrkšić Decision [Prosecutor v. Mrkšić and Veselin Šljivančanin, IT-95-13/1-A, Decision on the Prosecution’s Motion to Order Veselin Šljivančanin to Seek Leave to File an Amended Notice of Appeal and to Strike New Grounds Contained in His Appeal Brief, 25 August 2008], para. 41.

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Decision on Supplementing Appeal Brief - 09.01.2007 BRALO Miroslav
(IT-95-17-A)

10. The Appeals Chamber recalls that the concept of "good cause" applicable to amendments to a notice of appeal encompasses both good reason for including the new amended grounds of appeal sought and good reason showing why those grounds were not included (or were not correctly phrased) in the original notice of appeal.[1] Where an appellant seeks a substantive amendment broadening the scope of the appeal, "good cause" might also, under some circumstances, be established.[2] In such instances, each amendment is to be considered in light of the particular circumstances of the case. The Appeals Chamber is of the view that the same logic may be applied while examining applications to supplement an appellant's brief.

11. At the same time, the jurisprudence of the Tribunal establishes that the "good cause" requirement must be interpreted restrictively at late stages in appeal proceedings when amendments would necessitate a substantial slowdown in the progress of the appeal - for instance, when they would require briefs already filed to be revised and resubmitted.[3] To hold otherwise would leave appellants free to change their appeal strategy and essentially restart the appeal process at will (including after they have had the advantage of reviewing the arguments in a response brief), thus interfering with the expeditious administration of justice and prejudicing the other parties to the case.[4]

[1] Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Decision on Motion of Dragan Jokić for Leave to File Third Amended Notice of Appeal and Amended Appellate Brief, 26 June 2006 ("Blagojević Decision of 26 June 2006"), para. 7; See also, e.g., Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Decision on Motions Related to the Pleadings in Dragan Jokid's Appeal, 24 November 2005, para. 10 ("Blagojević Decision of 24 November 2005"); Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Decision on Defence Motion for Extension of Time in Which to File the Defence Notice of Appeal, 15 February 2005, pp. 2-3; Ferdinand Nahimana et al. v.The Prosecutor, Case No. ICTR-99-52-A, Decision on Appellant Jean-Bosco Barayagwiza's Motions for Leave to Submit Additional Grounds of Appeal, to Amend the Notice of Appeal and to Correct his Appellant's Brief, 17 August 2006 ("Barayagwiza Decision of 17 August 2006"), para. 10. [2] Blagojević Decision of 26 June 2006, para. 7; Blagojević Decision of 24 November 2005, para. 7; Blagojević Decision of 20 July 2005,p.3; Barayagwiza Decision of 17 August 2006, para.10.

[3] Blagojević Decision of 26 June 2006, para. 8; Barayagwiza Decision of 17 August 2006, para. 11.

[4] Id.

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Decision on Amending Notice of Appeal - 02.09.2009 ŠAINOVIĆ et al.
(IT-05-87-A)

4. Pursuant to Rule 108 of the Tribunal’s Rules of Procedure and Evidence (“Rules”), the Appeals Chamber “may, on good cause being shown by motion, authorize a variation of the grounds of appeal” contained in the notice of appeal. Such a motion should be submitted “as soon as possible after identifying the new alleged error” or after discovering any other basis for seeking a variation of the notice of appeal.[1] It is the appellant’s burden to explain precisely what amendments are sought and to demonstrate that each proposed amendment meets the “good cause” requirement of Rule 108.[2]

5. The jurisprudence of the Tribunal establishes that the concept of “good cause” encompasses both good reason for including the new or amended grounds of appeal sought and good reason showing why those grounds were not included (or were not correctly articulated) in the original notice of appeal.[3] The Appeals Chamber has considered, inter alia, the following factors in determining whether “good cause” exists: (i) the variation is minor and it does not affect the content of the notice of appeal; (ii) the opposing party would not be prejudiced by the variation or has not objected to it; and (iii) the variation would bring the notice of appeal into conformity with the appeal brief.[4] Where an appellant seeks a substantive amendment broadening the scope of the appeal, “good cause” may also, under certain circumstances, be established.[5] The Appeals Chamber recalls that it has never established a cumulative list of requirements that must be met each time a substantive amendment is to be granted.[6] Rather, each proposed amendment is to be considered in light of the particular circumstances of the case.[7]

6. In certain exceptional cases, notably where the failure to include the new or amended grounds of appeal resulted from counsel’s negligence or inadvertence, the Appeals Chamber has allowed variations even though “good cause” has not been shown by the appellant, provided that the variation sought is of substantial importance to the success of the appeal such as to lead to a miscarriage of justice if it is excluded.[8] In such limited circumstances, the Appeals Chamber has reasoned, the interests of justice require that an appellant not be held responsible for the failures of his counsel.[9] However, it must be shown that the previous pleadings failed to address the issue adequately and that the amendments sought would correct that failure.[10]

[1] Prosecutor v. Astrit Haraqija and Bajrush Morina, Case No. IT-04-84-R77.4-A, Decision on Bajrush Morina’s Application for a Variation of the Grounds of Appeal, 19 March 2009 (“Haraqija and Morina Decision of 19 March 2009”), para. 5, referring to Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Appellant Jean-Bosco Barayagwiza’s Motions for Leave to Submit Additional Grounds of Appeal, to Amend the Notice of Appeal and to Correct his Appellant’s Brief, 17 August 2006 (“Nahimana et al. Decision of 17 August 2006”), para. 9; Prosecutor v. Mladen Naletilić, a.k.a. “Tuta”, and Vinko Martinović, a.k.a. “[tela”, Case No. IT-98-34-A, Decision on Mladen Naletilić’s Motion for Leave to File Pre-Submission Brief, 13 October 2005, pp. 2-3.

[2] Haraqija and Morina Decision of 19 March 2009, para. 5, referring to Nahimana et al. Decision of 17 August 2006, para. 9; Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Decision on Dragan Jokić’s Motion to Amend Notice of Appeal, 14 October 2005, para. 7; see also Practice Direction on Formal Requirements for Appeals from Judgement (IT/201), 7 March 2002, paras 2-3.

[3] Prosecutor v. Ljube Boškoski and Johan Tarčulovski, Case No. IT-04-82-A, Decision on Johan Tarčulovski’s Motion for Leave to Present Appellate Arguments in Order Different from that Presented in Notice of Appeal, to Amend the Notice of Appeal, and to File Sur-Reply, and on Prosecution Motion to Strike, 26 March 2009 (“Boškoski and Tarčulovski Decision of 26 March 2009”), para. 17, referring to The Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Decision on Motion of Dragan Jokić for Leave to File Third Amended Notice of Appeal and Amended Appellate Brief, 26 June 2006 (“Blagojević and Jokić Decision of 26 June 2006”), para. 7.

[4] Nahimana et al. Decision of 17 August 2006, para. 10, referring to Blagojević and Jokić Decision of 26 June 2006, para. 7; The Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Decision on Prosecution’s Request for Leave to Amend Notice of Appeal in Relation to Vidoje Blagojević, 20 July 2005 (“Blagojević and Jokić Decision of 20 July 2005”), pp. 3-4.

[5] Nahimana et al. Decision of 17 August 2006, para. 10, referring to Blagojević and Jokić Decision of 26 June 2006, para.7; The Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No, Case No. IT-02-60-A, Decision on Motions Related to the Pleadings in Dragan Jokić’s Appeal, 24 November 2005 (“Blagojević and Jokić Decision of 24 November 2005”), para. 7; Blagojević and Jokić Decision of 20 July 2005, p. 4.

[6] Boškoski and Tarčulovski Decision of 26 March 2009, para. 17, citing Blagojević and Jokić Decision of 26 June 2006, para. 7.

[7] Blagojević and Jokić Decision of 26 June 2006, para. 7.

[8] Tharcisse Muvunyi v. The Prosecutor, Case No. ICTR-2000-55A-A, Decision on ‘Accused Tharcisse Muvunyi’s Motion for Leave to Amend His Grounds for Appeal and Motion to Extend Time to File His Brief on Appeal’ And “Prosecutor’s Motion Objecting to ‘Accused Tharcisse Muvunyi’s Amended Grounds for Appeal’”, 19 March 2007 (“Muvunyi Decision of 19 March 2007), para. 15, referring to Blagojević and Jokić Decision of 26 June 2006, para. 9; see also The Prosecutor v. Athanase Seromba, Case No. ICTR-2001-66-A, Decision of Defence Extremely Urgent Motion to Vary the Grounds of Appeal Contained in its Notice of Appeal, 26 July 2007 (“Seromba Decision of 26 July 2007”), para. 8; Nahimana et al. Decision of 17 August 2006, para.12.

[9] Nahimana et al. Decision of 17 August 2006, para. 12.

[10] Blagojević and Jokić, Decision of 26 June 2006, para. 23.

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Notion(s) Filing Case
Decision on Amending Notice of Appeal - 02.09.2009 ŠAINOVIĆ et al.
(IT-05-87-A)

15. […] The Appeals Chamber recalls that “further analysis undertaken over the course of time”[1] cannot, in and of itself, constitute good cause for an amendment as this would effectively amount to allowing the appellant to “restart the appeal process at will.”[2] In addition, the Motion fails to explain how the newly alleged error resulted from Ojdanić’s personal insight. The alleged error concerns an issue of law and Ojdanić’s counsel is principally responsible for the assessment of potential legal errors in the Trial Judgement.[3] The Appeals Chamber therefore finds that Ojdanić fails to demonstrate good cause for not having alleged this error in his Notice of Appeal. Rather, the Appeals Chamber finds that the failure to present it in the Notice of Appeal constitutes inadvertence or negligence on the part of Ojdanić’s counsel.[4]

Cf. Pavković Decision on First Amended Notice of Appeal, recognizing the existence of good cause for a newly alleged error of fact.

16. In the circumstances of the present case, the Appeals Chamber observes that if Ojdanić indeed prevails on the merits of his argument, this would lead to the conclusion that the Trial Chamber convicted him on the basis of a legally erroneous interpretation of the mens rea element of crimes against humanity, which could have a direct implication on his criminal responsibility. Without pronouncing itself on the merits of the appeal, the Appeals Chamber concurs with Ojdanić’s submission that the amendment sought is “of substantial importance to the success” of his appeal, such that disallowing it would be prejudicial. It is therefore in the interests of justice that the proposed amendment be granted. The Appeals Chamber is further cognisant of the fact that none of the parties opposed the requested variation and that allowing for such variation would not unduly interfere with the expeditious administration of justice.

[1] Muvunyi Decision of 19 March 2007, para. 9, referring to Aloys Simba v. The Prosecutor, Case No. ICTR-01-76-A, Decision on “Prosecutor’s Motion for Variation of Notice of Appeal Pursuant to Rule 108”, 17 August 2006 (“Simba Decision of 17 August”), para. 9; see also Seromba Decision of 26 July 2007, para. 7.

[2] Muvunyi Decision of 19 March 2007, para 9, referring to Simba Decision of 17 August, para. 9.

[3] Blagojević and Jokić Decision of 24 November 2005, para. 10.

[4] See supra, para. 6.

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ICTR Rule Rule 108 ICTY Rule Rule 108
Notion(s) Filing Case
Decision on First Amended Notice of Appeal - 09.09.2009 ŠAINOVIĆ et al.
(IT-05-87-A)

9. The Appeals Chamber recalls that in granting extensions of time for the filing of appellants’ notices of appeal, the Pre-Appeal Judge in the present case held, inter alia, that:

[…] Pavković and Lukić will have the opportunity, if they so wish, to request variation of their grounds of appeal after having read the B/C/S translation of the Trial Judgement, provided that they show good cause under Rule 108 of the Rules […][1]

10. The Appeals Chamber considers that pending the receipt of the translation of the Trial Judgement, Pavković has been trying to understand the latter with the assistance of his defence team so that he can effectively contribute to the Appeal Brief.[2] Pavković asserts that the requested amendment of his Notice of Appeal became apparent to his defence team only as a result of this review process.[3] The Appeals Chamber notes that the variation sought concerns an alleged error of fact in the Trial Chamber’s finding that as a member of the Joint Command, Pavković “by-passed the chain of command.”[4] As such, it can be reasonably inferred that Pavković’s understanding of the Trial Judgement has been central to the identification of the alleged error, and that the unavailability of the B/C/S translation of the Trial Judgement at the time the Notice of Appeal was filed had prevented him from instructing his counsel to that effect.[5] The Appeals Chamber is therefore satisfied that good reason for not including the alleged error in the Notice of Appeal has been shown.

Cf. Ojdanić Decision on Amending Notice of Appeal, refusing to recognize good cause for not including the newly alleged error of law in the original notice of appeal.

[1] Decision on Motions for Extension of Time to File Notices of Appeal, 23 March 2009, p. 3; see also Decision on Joint Defence Motion Seeking Extension of Time to File Appeal Briefs, 29 June 2009, p. 4.

[2] Motion [General Pavković Motion for Amendment to his Notice of Appeal, 28 August 2009], para. 7

[3] Ibid.

[4] Motion, para. 10.

[5] Cf. Protais Zigiranyirazo v. The Prosecutor, Case No. ICTR-01-73-A, Decision on Protais Zigiranyirazo’s Motion for Leave to Amend Notice of Appeal, 18 March 2009, para. 5.

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Decision on Second Amended Notice of Appeal - 22.09.2009 ŠAINOVIĆ et al.
(IT-05-87-A)

15. The Appeals Chamber recalls that an appellant seeking variation of the grounds of appeal contained in a notice of appeal bears the burden of demonstrating that each proposed amendment meets the “good cause” requirement of Rule 108 of the Rules.[1] With respect to Pavković’s submission that the sought amendment is the result of the ongoing discussions between him and his counsel, as well as the analysis of the other appellants’ notices of appeal,[2] the Appeals Chamber reiterates that further analysis undertaken over the course of time, taken alone, cannot constitute good cause for an amendment as this would effectively amount to allowing the appellant to restart the appeal process at will.[3] Moreover, an appellant’s counsel is the one primarily responsible for the identification of potential legal errors in a trial judgement.[4] These considerations are equally applicable in multiple-appellants proceedings. The Appeals Chamber therefore finds that Pavković has failed to demonstrate good cause for not having included in his Notice of Appeal the allegations of errors contained in the seventh ground of Ojdanić’s Amended Notice of Appeal.

[1] See supra, para. 6.

[2] Motion [General Pavković Request to Amend his Notice of Appeal to Adopt Ground Seven of his Co-appellant Ojdanić’s Amended Notice of Appeal], para. 12.

[3] [Ojdanić Decision on Amending Notice of Appeal], para. 15 and references cited therein.

[4] Ibid.

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Decision on Second Amended Notice of Appeal - 22.09.2009 ŠAINOVIĆ et al.
(IT-05-87-A)

16. The Appeals Chamber notes however, that in certain exceptional circumstances it has allowed amendments even in the absence of good cause being shown.[1] In this respect, it observes that the arguments presented under the seventh ground of Ojdanić’s Amended Notice of Appeal which Pavković seeks to adopt, generally allege that the Trial Chamber erroneously expanded the definition of the crimes against humanity with regard to (i) the mens rea requirement for crimes against humanity, and (ii) the individual whose knowledge of the context of the offence would suffice for criminal responsibility for crimes against humanity to be attributed to the perpetrator.[2] The Appeals Chamber recalls that Pavković has been convicted of the crimes of deportation, other inhumane acts (forcible transfer), murder and persecutions as crimes against humanity under Article 5 of the Statute.[3] Accordingly, and without pronouncing itself on the merits of the appeal, the Appeals Chamber finds that allowing Pavković to vary further his Amended Notice of Appeal in order to join the merits of Ojdanić’s seventh ground of appeal is of substantial importance to the success of his appeal such as to lead to a miscarriage of justice if denied. The Appeals Chamber further finds that the failure to assert these arguments earlier constitutes negligence on the part of Pavković’s counsel.

[1] See supra, para. 8.

[2] Ojdanić’s Amended Notice of Appeal [General Ojdanic’s Motion to Amend Ground 7 of his Notice of Appeal, 29 July 2009, Annex B], paras 157-163.

[3] Trial Judgement [Prosecutor v. Milan Milutinović et al., Case No. IT-05-87-T, Judgement, 26 February 2009], Vol. III, paras 788, 790. See also Trial Judgement, Vol. I, para. 6.

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Decision on Second Amended Notice of Appeal - 22.09.2009 ŠAINOVIĆ et al.
(IT-05-87-A)

17. Nonetheless, the Appeals Chamber recalls that pursuant to the Practice Direction on Formal Requirements for Appeals from Judgement,[1] a notice of appeal should clearly specify with respect to each ground of appeal the challenged findings in the trial judgement, providing reference to the page and paragraph number.[2] Similarly, in an appellant’s brief, one is required to present arguments in support of each ground of appeal announced in the notice of appeal, including precise references to any relevant exhibit, transcript page, decision, or paragraph number in the judgement.[3] The Appeals Chamber further recalls that it is settled jurisprudence of this Tribunal that a party alleging an error of law must, in addition to identifying the alleged error and presenting arguments in support of its claim, explain how the error invalidates the decision.[4] Finally, if the Appeals Chamber agrees with such allegation and finds that the Trial Chamber applied a wrong legal standard, “it is open to the Appeals Chamber to articulate the correct legal standard and to review the relevant findings of the Trial Chamber accordingly”, applying the correct legal standard to the evidence contained in the trial record and determining whether it is itself convinced beyond reasonable doubt as to the affected factual finding. Therefore, the party alleging an error of law also has the burden to plead with precision how correcting such an error would affect the relevant conclusions underlying the findings of guilt.

[1] Practice Direction on Formal Requirements for Appeals from Judgement (IT/201), 7 March 2002 (“Practice Direction”).

[2] Practice Direction, para. 1.

[3] Practice Direction, para. 4.

[4] Mrkšić and Šljivančanin Appeal Judgement [Prosecutor v. Mile Mrkšić and Veselin [ljivančanin, Case No. IT-95-13/1-A, Appeal Judgement, 5 May 2009], para. 11 and references cited therein.

[5] Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Judgement, 28 November 2007, para. 13 and references cited therein.

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Decision on Second Amended Notice of Appeal - 22.09.2009 ŠAINOVIĆ et al.
(IT-05-87-A)

18. In light of these requirements, a party may not dispose of its burden on appeal by merely referring to another party’s submissions. Moreover, allowing such reference would incorrectly suggest that in multi-appellant proceedings the parties are relieved of their obligations to comply with the Rules and the relevant Practice Directions. The Appeals Chamber is also concerned that permitting such broad reference would effectively allow Pavković to circumvent the word limit established for his appellant’s brief. Therefore, whereas the Appeals Chamber acknowledges that in the circumstances of the present case it may not be necessary for Pavković to replicate in his Notice of Appeal and subsequently in his appellant’s brief, all of Ojdanić’s legal arguments that he seeks to adopt, it emphasises that in order to meet his burden on appeal Pavković must comply with the requirements recalled above.

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Appeal Judgement - 04.02.2013 MUGENZI AND MUGIRANEZA (Government II)
(ICTR-99-50-A)

49.       The Appeals Chamber notes that, as a general rule, a notice of appeal is not the proper vehicle for advancing in the first instance alleged disclosure violations identified only during the appeal proceeding. A notice of appeal is normally limited to challenges against a particular order, ruling, or decision taken by a trial chamber.[1] The Appeals Chamber recalls, however, that the Prosecution’s disclosure of material under Rule 68 of the Rules is a continuing obligation.[2] If a party identifies a potential disclosure violation after the conclusion of the trial and while appellate proceedings are ongoing, it may seek relief by bringing a motion before the Appeals Chamber.[3] Given the importance of the Prosecution’s disclosure obligation under Rule 68 of the Rules, the Appeals Chamber will nonetheless consider the arguments raised by Mugiraneza under his Fourth Ground of Appeal.

[1] See Rule 108 of the Rules (“A party seeking to appeal a judgement or sentence shall, not more than thirty days from the date on which the judgement or the sentence was pronounced, file a notice of appeal, setting forth the grounds. The Appellant should also identify the order, decision or ruling challenged with specific reference to the date of its filing, and/or the transcript page, and indicate the substance of the alleged errors and the relief sought.”) (emphasis added).

[2] See, e.g., Bagosora et al. Appeal Decision of 18 January 2011 ₣Théoneste Bagosora et al. v. The Prosecutor, Case No. ICTR-98-41-A, Decision on Aloys Ntabakuze’s Motions for Disclosure, 18 January 2011ğ, para. 7; Kamuhanda Appeal Decision ₣Jean de Dieu Kamuhanda v. The Prosecutor, Case No. ICTR-99-54A-R68, Decision on Motion for Disclosure, 4 March 2010ğ, para. 14.

[3] See Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings Before the Tribunal, 8 December 2006 (“Practice Direction”), para. 12 (“Where an appeal has been filed from a judgement, a party wishing to move the Appeals Chamber for a specific ruling or relief […] shall file, in accordance with the Rules, a motion containing: (a) the precise ruling or relief sought; (b) the specific provision of the Rules under which the ruling or relief is sought; (c) the grounds on which the ruling or relief is sought.”). 

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Decision on Time and Page Limits - 22.06.2005 BRĐANIN Radoslav
(IT-99-36-A)

5.       […] [O]rdinarily the filing of a Supplementary Notice of Appeal does not itself constitute good cause for an extension of time,[1] […]

[1] The Appellant appears to assume that having filed the supplemental Notice of Appeal would ordinarily entitle him to file an additional Appeal Brief in support of it, and suggests that an extension of time (and page length) is merited here so that he can instead file a consolidated brief addressing all grounds of appeal.  But consolidation is the normal required procedure.  The filing of a supplemental notice of appeal does not in and of itself entitle an appellant to an extension of time nor to an enlargement of length for the appeal brief, and it certainly does not entitle him to file two appeal briefs.  Instead, the appellant must file a single appeal brief, the deadline for which is calculated, pursuant to Rule 111, based on the date of filing the original notice of appeal, not on the date on which a variation of that notice was authorised pursuant to Rule 108.

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Decision on Amending Notice of Appeal - 14.10.2005 BLAGOJEVIĆ & JOKIĆ
(IT-02-60-A)

6.  Rule 108 of the Rules of Procedure and Evidence of the International Tribunal (“Rules”) states that the “Appeals Chamber may, on good cause being shown by motion, authorise a variation of the grounds of appeal.”  In addition, paragraph 12 of Practice Direction IT/155/Rev. 3 provides:

Where an appeal has been filed from a judgement, a party wishing to move the Appeals Chamber for a specific ruling or relief ("moving party") shall file, in accordance with the Rules, a motion containing:

(a) the precise ruling or relief sought;

(b) the specific provision of the Rules under which the ruling or relief is sought;

(c) the grounds on which the ruling or relief is sought.

7.  Together, these requirements mean that a request to amend a notice of appeal must, at least, explain precisely what amendments are sought and why, with respect to each such amendment, the “good cause” requirement of Rule 108 is satisfied. […] 

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ICTR Rule Rule 108 ICTY Rule Rule 108 Other instruments Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings Before the International Tribunal, para. 12