Prejudice

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

41. The Appeals Chamber can conceive of situations where a fair trial is not possible because witnesses crucial to the Defence case refuse to testify due to State interference. In such cases, it is incumbent on the Defence to, first, demonstrate that such interference has in fact taken place and, second, exhaust all available measures to secure the taking of the witness’s testimony.

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Decision on Fresh Evidence - 26.02.2009 PRLIĆ et al.
(IT-04-74-AR73.14)

25. […] In this sense, the Appeals Chamber recalls that “where the accused opposes the admission of evidence during cross-examination due to alleged breach of his right to a fair trial, a Trial Chamber must consider how it intends to strike the appropriate balance between the need to ensure the rights of the accused and its decision to admit such evidence”.[1] In doing so, the Trial Chamber will have to consider “the mode of disclosure of the documents in question, the purpose of their admission, the time elapsed between disclosure and examination of the witness, the languages known to Counsel and the accused, as well as any other relevant factual considerations”.[2] In striking the balance under Rule 89(D) of the Rules, the Trial Chamber will also consider the available measures to address the prejudice, if any, by “for example, providing more time for [re]-examination, adjourning the session, or granting the possibility of recalling the witness”.[3] If, on balance, the fresh evidence is found to be inadmissible during the presentation of the Defence case, the Prosecution may still, under certain conditions, seek its admission as evidence in rebuttal.[4]

27. In its Delić Decision, the Appeals Chamber emphasized that specifying the purpose of admission of fresh evidence despite the Defence’s objections is necessary in order to properly address the prejudice caused by such admission.[5] In this sense, the Appeals Chamber considers that the risk of prejudice caused by the admission of fresh evidence probative of guilt is potentially greater as compared to fresh evidence admitted with the sole purpose of impeaching the witness.[6]

30. […] In any case, considerations pertaining to the scope of cross-examination or any prejudice caused by the non-disclosure of the tendered material at an earlier stage may become relevant to the Trial Chamber’s decision on admission made on a case-by-case basis.[7] The Appeals Chamber re-emphasizes that what matters is that the admission of the fresh evidence tendered by the Prosecution after the closure of its case-in-chief is justified by the interests of justice and does not entail violation of the fair trial rights, which is in full compliance of Rules 85, 89(C), 89(D) and 90(F) of the Rules.

[1] Delić Decision, para. 22 (emphasis added).

[2] Ibid., para. 23.

[3] Id.

[4] Cf. Milošević Decision, para. 13.

[5] Delić Decision, para. 23.

[6] Cf. ibid., para. 22.

[7] See supra, paras 23-24; Impugned Decision, paras 24-26.

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ICTY Rule Rule 89(D)
Notion(s) Filing Case
Appeal Judgement - 04.02.2013 MUGENZI AND MUGIRANEZA (Government II)
(ICTR-99-50-A)

122. […] The Appeals Chamber has previously held that “objections based on lack of notice should be specific and timely”.[1] Furthermore, when an objection based on lack of notice is raised at trial, a trial chamber may consider whether it was so untimely as to shift the burden of proof to the Defence to demonstrate that the accused’s ability to defend himself has been materially impaired.[2] In the absence of any explanation for Mugenzi’s and Mugiraneza’s failure to make a contemporaneous objection, the Appeals Chamber is satisfied that it was reasonable for the Trial Chamber to consider the delay in bringing challenges to the Indictment and conclude that such challenges were untimely. Therefore, Mugenzi and Mugiraneza bear the burden of demonstrating that their ability to prepare a defence was materially impaired.

[1] The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-AR73, Decision on Aloys Ntabakuze’s Interlocutory Appeal on Questions of Law Raised by the 29 June 2006 Trial Chamber I Decision on Motion for Exclusion of Evidence, 18 September 2006 (“Bagosora et al. Appeal Decision of 18 September 2006”), para. 46.

[2] Bagosora et al. Appeal Decision of 18 September 2006, paras. 45, 46. 

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Appeal Judgement - 19.07.2010 HARADINAJ et al.
(IT-04-84-A)

17. The Appeals Chamber recalls that, when a party alleges on appeal that its right to a fair trial has been infringed, the party must prove that the Trial Chamber violated a provision of the Statute and/or the Rules of Procedure and Evidence of the Tribunal (“Rules”) and that this violation caused prejudice that amounts to an error of law invalidating the Trial Judgement.[1] The Appeals Chamber notes that Trial Chamber decisions related to trial management, such as those determining the time available to a party to present its case as well as requests for additional time to present evidence, are discretionary decisions to which the Appeals Chamber accords deference.[2] Accordingly, the Appeals Chamber must determine whether the Trial Chamber abused its discretion by closing the Prosecution case before Kabashi and the other witness had testified, in violation of its obligation under Article 20(1) of the Statute to ensure that a trial is fair and conducted with due regard for the protection of victims and witnesses. If the Trial Chamber did abuse its discretion, the Appeals Chamber must determine whether this violation caused prejudice that amounted to an error of law invalidating the Trial Judgement.

[1] Galić Appeal Judgement, para. 21; Kordić and Čerkez Appeal Judgement, para. 119; Blaškić Appeal Judgement, para. 221; Kupreškić et al. Appeal Judgement, para. 87; Article 25(1)(a) of the Statute.

[2] Prosecutor v. Stanislav Galić, Case No. IT-98-29-AR73, Decision on Application by Prosecution for Leave to Appeal, 14 December 2001, para. 7 (referring specifically to the Trial Chamber’s discretion to set time limits on the presentation of the Prosecution’s case); Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.4, Decision on Prosecution Appeal Concerning the Trial Chamber’s Ruling Reducing Time for the Prosecution Case, 6 February 2007, para. 20.

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Decision on Scope of Partial Retrial - 31.05.2011 HARADINAJ et al.
(IT-04-84bis-AR73.1)

26. The Appeals Chamber underscores that whether a retrial follows acquittal or conviction is not necessarily insignificant. However the context of each retrial is unique, and the impact of a previous conviction or acquittal can only be addressed by taking into account this individual context. Any potential for undue prejudice to a defendant in a retrial following an acquittal should be addressed through both the Appeals Chamber’s careful delineation of a retrial’s parameters and the Trial Chamber’s continuing duty to apply fair trial principles.[1] In this context, the Appeals Chamber directs the Trial Chamber, when determining the admissibility of evidence in the retrial, to be particularly mindful of any potential prejudice that the admission of new evidence may cause to the fair trial rights of the Accused. Where the Prosecution seeks to introduce evidence that was excluded in prior proceedings, the Trial Chamber should explicitly consider whether re-litigation of this same issue in the retrial would be unduly prejudicial. If such is the case, the evidence must be excluded.

[1] See Muvunyi Decision, para. 18, which states: “[a]ll fair trial principles governing trial also apply to the retrial proceedings.”

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ICTR Rule Rule 118(C) ICTY Rule Rule 117(C)
Notion(s) Filing Case
Appeal Judgement - 01.04.2011 RENZAHO Tharcisse
(ICTR-97-31-A)

125. […] The Appeals Chamber recalls that a defect in the Indictment, not cured by timely, clear, and consistent notice, constitutes a prejudice to the accused.[1] The defect may only be deemed harmless through a demonstration that the accused’s ability to prepare his or her defence was not materially impaired.[2] When an appellant raises a defect in the indictment for the first time on appeal, the appellant bears the burden of showing that his or her ability to prepare his or her defence was materially impaired.[3] When, however, an accused has previously raised the issue of lack of notice before the Trial Chamber, the burden rests on the Prosecution to prove on appeal that the ability of the accused to prepare his or her defence was not materially impaired. The Appeals Chamber therefore turns to consider this issue.

126. In the pre-trial stage, Renzaho challenged the Indictment on the basis of vagueness, a challenge that was dismissed by the Trial Chamber.[4] Although Renzaho did not object to Witnesses AWO’s and AWN’s evidence that he encouraged rapes upon the filing of the Prosecution Pre-Trial Brief or at the time of their testimony, the Appeals Chamber considers that Renzaho’s confusion regarding the import of this evidence, discussed below, reasonably explains his failure to object. Further, in his Closing Brief, Renzaho renewed his challenge to the Indictment on the basis that it failed to plead the material facts necessary to establish his superior responsibility.[5] Renzaho also contended that the charges alleging his responsibility for sexual violence were impermissibly vague, and noted that the evidence that he made encouraging statements about rapes was not included in the Indictment.[6] The Appeals Chamber therefore finds that Renzaho raised an adequate objection to the failure to properly plead his reason to know.[7] Consequently, the Prosecution has the burden of establishing that Renzaho’s defence was not materially impaired by the defect in the Indictment.[8]

127. The Appeals Chamber finds that the Prosecution has not met its burden. It notes that, when Witness AWN testified that it was Renzaho who encouraged rapes, rather than another individual, the Defence did not object to the introduction of the new material fact. At the Appeal Hearing, the Defence indicated that it failed to do so because it “did not make the link at that time”[9] and suffered prejudice from the introduction of this new material fact because it did not understand that this evidence was relevant to the charge under Article 6(3) of the Statute.[10] The strategy adopted at trial by the Defence and in particular the cross-examination of Witnesses AWO and AWN convinces the Appeals Chamber that Renzaho understood that he was to defend himself against knowledge of rapes through receipt of reports as pleaded in the Indictment.[11] He was therefore prejudiced by the Prosecution’s failure to cure the defect in the Indictment through adequate notice.

128. The Appeals Chamber also notes with concern that the relevant paragraphs of the Indictment are extremely broad, and fail to specify the dates and locations of the meetings at which Renzaho encouraged the rapes; the dates and locations of the rapes; and the names of the victims. The provision of these material facts only in post-indictment documents impacts upon the ability of the accused to know the case he or she has to meet and to prepare his or her defence,[12] and is particularly troubling when the Prosecution was in a position to include them in the Indictment.[13]

[1] Ntagerura et al. Appeal Judgement, para. 30.

[2] Ntagerura et al. Appeal Judgement, para. 30.

[3] Nahimana et al. Appeal Judgement, para. 327.

[4] See Preliminary Motion, paras. 38, 58-123, 158, 167, 173; Decision on Preliminary Motion [The Prosecutor v. Tharcisse Renzaho, Case No. ICTR-97-31-I, Décision sur la requête en exception préjudicielle pour vices de forme de l’acte d’accusation, 5 September 2006]. Renzaho requested certification to appeal the Decision on Preliminary Motion, which was dismissed by the Trial Chamber. See Decision on Certification of Decision on Preliminary Motion [The Prosecutor v. Tharcisse Renzaho, Case No. ICTR-97-31-I, Décision relative à la demande aux fins de certification d’appel de la décision du 5 septembre 2006 en vertu de l’article 72(B), 25 October 2006].

[5] Defence Closing Brief, paras. 86-144.

[6] Defence Closing Brief, paras. 179, 188, 194, 934, 936, 1136.

[7] Cf. Muhimana Appeal Judgement, para. 219; Gacumbitsi Appeal Judgement, para. 54.

[8] See supra, Chapter IV (Alleged Lack of Notice), Section A (Applicable Law), para. 56; Niyitegeka Appeal Judgement, para. 200.

[9] AT. 16 June 2010 p. 57 (“I think we […] became aware of that [inconsistency] during the testimony of the witness. At that stage as well things proceeded very fast during testimony in-chief. We did not link this to what was said in the pre-trial brief and which was attributed to Mr. Munanira. We did not make the link at that time.”).

[10] AT. 16 June 2010 p. 58 (“When the witness appeared before the Court, indeed, we immediately had the feeling that those utterances were incriminating. […] But what we did not understand – and this is where we suffered prejudice – is that on the basis of this statement, the Prosecutor wanted to attribute responsibility to Mr. Renzaho on the basis of [Article] 6(3). […] And, indeed, the Chamber pointed out that this fact failed [sic] under 6(1) and not 6(3). […] We did not understand that that was the objective pursued. We cross-examined the witness with the limited information we had only as regards the materiality of the events.”).

[11] The Appeals Chamber recalls that this basis for Renzaho’s knowledge of rapes committed by subordinates was pleaded in paragraphs 41, 53, and 63 of the Indictment.

[12] Cf. Bagosora et al. Interlocutory Appeal on Questions of Law Decision [The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-AR73, Decision on Aloys Ntabakuze’s Interlocutory Appeal on Questions of Law Raised by the 29 June 2006 Trial Chamber I Decision on Motion for Exclusion of Evidence, 18 September 2006], para. 26; The Prosecution v. Tharcisse Muvunyi, Case No. ICTR-00-55A-AR73, Decision on Prosecution Interlocutory Appeal Against Trial Chamber II Decision of 23 February 2005, 12 May 2005, para. 22; Ntagerura et al. Appeal Judgement, para. 114.

[13] The Appeals Chamber notes that the many of these details were included in the Prosecution Pre-Trial Brief, filed just 12 days after the Indictment. Although, at the time, the Prosecution assured the Trial Chamber that it had included as much detail as it was able in the Indictment, it concedes on appeal that it was in fact possible to include this information in the Indictment. See The Prosecutor v. Tharcisse Renzaho, Case No. ICTR-97-31-I, The Prosecutor’s Response to the Accused’s ‘Requ[ê]te en exception pr[é]judicielle pour vices de forme de l’acte d’accusation’, 10 April 2006 (confidential), para. 12; AT. 16 June 2010 p. 31 (“Your Honours, it was actually possible for us to include in the indictment the specific evidence that the two witnesses would testify to [and] […] in view of the fact that we already had this information before we gave our second amended indictment, it would have been desirable to actually include these statements in the indictment. However, […] the Appellant was not prejudiced by the lack […] of these statements in the indictment.”).

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Appeal Judgement - 01.04.2011 RENZAHO Tharcisse
(ICTR-97-31-A)

196. When the Defence asserts that the trial was unfair because witnesses crucial to the Defence refused to testify due to interference, it is incumbent on the Defence to, first, demonstrate that such interference has in fact taken place and, second, exhaust all available measures to secure the taking of the witnesses’ testimony.[1] When a party alleges on appeal that the right to a fair trial has been infringed, it must prove that the violation caused such prejudice as to amount to an error of law invalidating the judgement.[2] Thus, the element of prejudice is an essential aspect of the proof required of an appellant alleging a violation of his or her fair trial rights.[3]

210. Recalling that when a party alleges on appeal that the right to a fair trial has been infringed, it must prove that the violation caused such prejudice as to amount to an error of law invalidating the judgement,[4] the Appeals Chamber will consider whether the Trial Chamber’s failure to ensure the timely completion of the Renzaho Investigation prior to the delivery of the Trial Judgement caused Renzaho prejudice of this gravity. […].

[1] Simba Appeal Judgement, para. 41. See also Tadić Appeal Judgement, para. 55.

[2] Hadžihasanović and Kubura Appeal Judgement, para. 130; Galić Appeal Judgement, para. 21; Kordić and Čerkez Appeal Judgement, para. 119.

[3] Hadžihasanović and Kabura Appeal Judgement, para. 130.

[4] See supra, Chapter V (Alleged Violations of the Right to a Fair Trial), Section C (Violation of the Right to Equality of Arms), para. 196.

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Notion(s) Filing Case
Appeal Judgement - 19.09.2005 KAMUHANDA Jean de Dieu
(ICTR-99-54A-A)

21. In Niyitegeka, the Appeals Chamber ruled that, in order to succeed in challenging the exclusion of a material fact from an indictment, an accused must make a timely objection to the admission of evidence of the material fact in question before the Trial Chamber:

In the case of objections based on lack of notice, the Defence must challenge the admissibility of evidence of material facts not pleaded in the indictment by interposing a specific objection at the time the evidence is introduced. The Defence may also choose to file a timely motion to strike the evidence or to seek an adjournment to conduct further investigations in order to respond to the unpleaded allegation.[1]

Failure to object before the Trial Chamber will usually result in the Appeals Chamber disregarding the argument. Here, the Defence did not object to the introduction of Witness GEK’s testimony at trial; rather, it challenged her credibility during cross-examination. However, even in such a case, the Appeals Chamber may choose to intervene proprio motu, considering the importance of the accused’s right to be informed of the charges against him and the possibility of serious prejudice to the accused if the Prosecution informs him about crucial facts for the first time at trial. In such circumstances the accused has the burden of proving on appeal that his ability to prepare his case was materially impaired.[2]

22. In Ntakirutimana, the Appeals Chamber treated a challenge to the Indictment as properly raised, although the Appellant did not object to the error at the time of the introduction of the evidence at trial, because the Trial Chamber had concluded that the challenges to the vagueness of the Indictment had subsequently been properly presented before it.[3]

[1] Niyitegeka Appeal Judgement, para. 199. See also Kayishema and Ruzindana Appeal Judgement, para. 91.

[2] Niyitegeka Appeal Judgement, paras. 199, 200.

[3] Ntakirutimana Appeal Judgement, para. 52.

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Appeal Judgement - 09.07.2004 NIYITEGEKA Eliézer
(ICTR-96-14-A)

198. In considering whether a defect in the indictment has been cured by subsequent disclosure, the question arises as to which party has the burden of proof on the matter. Although the Judgement in Kupreškić did not address this issue expressly, the Appeals Chamber’s discussion indicates that the burden in that case rested with the Prosecution. Kupreškić stated that, in the circumstances of that case, a breach of “the substantial safeguards that an indictment is intended to furnish to the accused” raised the presumption “that such a fundamental defect in the … Indictment did indeed cause injustice.”[1] The defect could only have been deemed harmless through a demonstration “that [the Accused’s] ability to prepare their defence was not materially impaired.”[2] Kupreškić clearly imposed the duty to make that showing on the Prosecution, since the absence of such a showing led the Appeals Chamber to “uph[o]ld the objections” of the accused.[3]

[1] Kupreškić et al. Appeal Judgement, para. 122.

[2] Ibid.

[3] Kupreškić et al. Appeal Judgement, paras. 124-125.

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Notion(s) Filing Case
Appeal Judgement - 13.12.2004 NTAKIRUTIMANA and NTAKIRUTIMANA
(ICTR-96-10-A and ICTR-96-17-A)

77. […] Although the evidence at trial sometimes turns out to be different from the Prosecution’s expectations, the accused are generally entitled to proceed on the basis that the material facts disclosed to them are “exhaustive in nature” unless and “until given sufficient notice that evidence will be led of additional incidents.”[1] Given that “the Prosecution is expected to know its case before it goes to trial,” the question is whether it was fair to the Appellant to be tried and convicted based on an allegation as to which neither he nor the Prosecution had actual or specific notice.[2] On this question, as on the question of whether communications of information sufficed to cure an indictment defect, the Prosecution bears the burden of demonstrating that the new incidents that became known at trial caused no prejudice to the Appellant.

[…]

112. [I]n circumstances where the Prosecution relies on material facts that were revealed for the first time at trial, the Prosecution bears the burden of showing that there was no unfairness to the Accused.

[1] Prosecutor v. Brðanin and Talić, Case No. IT-99-36-PT, Decision on Form of Further Amended Indictment and Prosecution Application to Amend, 26 June 2001, para. 63.

[2] Kupreškić et al. Appeal Judgement, para. 92.

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Appeal Judgement - 09.10.2012 GATETE Jean Baptiste
(ICTR-00-61-A)

44. Notwithstanding Gatete’s failure to demonstrate that his ability to prepare or present his defence case was prejudiced by the delay, the Appeals Chamber finds that the pre-trial delay of more than seven years was undue given that the case against Gatete was not particularly complex. In the circumstances of this case, the Appeals Chamber considers that this protracted delay and the resulting prolonged pre-trial detention constitute prejudice per se.

45. […T]he Appeals Chamber considers that the Trial Chamber erred in finding that the length of Gatete’s pre-trial detention was not undue given that it explicitly noted that the conduct of the Prosecution and the relevant authorities resulted in instances of pre-trial delay that could not be explained or justified. Moreover, the Trial Chamber erred in finding that the case against Gatete was sufficiently complex to justify, in part, a pre-trial delay of more than seven years. Notwithstanding the necessary interval for pre-trial procedure, and the selection of the case for referral to Rwanda pursuant to Rule 11 bis of the Rules, the Appeals Chamber considers that the extent of pre-trial delay disproportionately exceeded the time reasonable for a case of such a relatively limited scope and scale and constitutes prejudice per se. Consequently, the Appeals Chamber finds that Gatete’s right to be tried without undue delay was violated and grants his first ground of appeal.

[1] See supra, Section III.A.1.(b). 

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ICTR Statute Article 20(4)(c) ICTY Statute Article 21(4)(c)
Notion(s) Filing Case
Decision on Evidence of Milan Babić - 14.09.2006 MARTIĆ Milan
(IT-95-11-AR73.2)

14. […] [W]hen tasked with the decision of whether to exclude evidence, the Trial Chamber is bound more particularly by Rule 89(D) to determine whether the probative value of the evidence is substantially outweighed by the need to ensure a fair trial.

In this case, the question was whether the incompleteness of the cross-examination and the disadvantage to the Appellant emanating from this, substantially outweighed the probative value of the evidence such that it should be removed from the trial record (para. 15).

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ICTY Rule Rule 89(D)
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Decision on Whether to Continue or Restart Trial - 24.09.2003 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A15bis)

13. Statutes which make alterations in procedure regulate secondary rather than primary conduct; they apply to existing proceedings even though these were commenced before the statutes were made and in that sense may be regarded as retrospective. By contrast, there is a presumption that enactments affecting substantive rights are intended to be prospective. This presumption is however a rebuttable one; if it is rebutted, an amendment, though affecting substantive rights, applies retrospectively (barring any impediment of a constitutional nature) and so can affect existing proceedings.

14. Evidence capable of rebutting the presumption is furnished through Rule 6(C), which states that “an amendment shall enter into force immediately, but shall not operate to prejudice the rights of the accused in any pending case”. It is true that a provision stipulating that a statute is to commence at a certain time does not necessarily mean that the statute is to govern previous conduct into which an inquiry is pending at that time. But it depends on the language of the commencement provision. Here there is one commencement provision; it applies to amendments of all kinds. Therefore, every amendment enters into force “immediately”, i.e., whether substantive or procedural, it applies to all cases of which the Tribunal is then or may in future be seised, the sole qualification being that the amendment, of whatever kind, must not “operate to prejudice the rights of the accused in any pending case”. So, the real and only question under the Rules, as they have been crafted, is whether the new amendment to Rule 15bis will operate to prejudice the rights of the Appellants.

[1] See for example, Rex v.Chandra [1905], 2 K.B.335 ; and Paul v. Paul, 214 Va. 651, 203 S.E.2d 123 (1974).

[2] See Turnbull v. Forman (1885) 15 Q.B.D 234, per Bowen L.J at p.238: “Where the legislature mean to take away or lessen rights acquired previously to the passing of an enactment, it is reasonable to suppose that they would use clear language for the purpose of doing so, or, to put the same thing in a somewhat different form, if the words are not unequivocally clear to the contrary, a provision must be construed as not intended to take away or lessen existing rights. A converse rule is that, where the legislature is dealing with matters of procedure as distinguished from substantive rights, the same presumption does not apply”.

[3] The presumption was not rebutted in Landgraf v. USI Film Products, 511 U.S. 244 (1994), which contains a number of helpful statements on the subject.

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ICTR Rule Rule 6(C) ICTY Rule Rule 6(D)
Notion(s) Filing Case
Decision on Whether to Continue or Restart Trial - 24.09.2003 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A15bis)

17.     The Appellants do not take their arguments as far as to suggest that consent is the source of the Tribunal’s competence to provide for continuation of a hearing with a substitute judge, and accordingly there is no need to consider the basis of that competence. The Tribunal will limit itself to observing that, as a matter of pleading, consent may preclude a party from questioning a decision to continue a hearing but that consent cannot give the Tribunal competence to continue if the Tribunal does not otherwise have it; the power of the Tribunal to continue the hearing with a substitute judge exists dehors consent. The Appeals Chamber takes the view that, though apparently absolute, the right to consent to continuation of the trial was not proprietorial but functional. The right to consent gave protection against possible arbitrariness in the exercise of the power of the Tribunal to continue the hearing with a substitute judge; consent was only a safeguard.

18. The question therefore is whether the safeguard provided through the mechanism of consent under the old Rule 15bis was replaced by the modifications made on 27 May 2003 by a safeguard of equivalent value. The new Rule 15bis contains various safeguards: the decision by the two remaining judges is a judicial one; it is taken after hearing both sides; the two remaining judges know the case as it has so far developed; their decision must be unanimous; an appointment can only be made once. Further, there is an unqualified right of appeal by either party from the decision taken by the two remaining judges direct to a full bench of the Appeals Chamber. Finally, in cases where the Appeals Chamber affirms the Trial Chamber’s decision or if no appeal is lodged, the newly assigned judge must certify that he has familiarised himself with the record of the proceedings; if he cannot give the required certificate of familiarisation, he cannot eventually be substituted.

19. In effect, under the new Rule 15bis, the purpose of the old safeguard is met by the various procedures mentioned in paragraph 18 above. In the opinion of the Appeals Chamber, the value of the old safeguard is equivalent to the value of the new one, with the consequence that no material prejudice results to the accused from providing for the application of the new safeguard where the accused withholds his consent: in both cases there is an equivalent protection against arbitrariness. It follows that, even if, in the case of a judge who has not been re-elected, there was a right to consent to continuation of the trial under the old provision, the operation of the newly amended Rule 15bis does not prejudice the rights of the Appellants in the pending trial.

See also para. 21.

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ICTR Rule Rule 15 bis ICTY Rule Rule 15 bis
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Decision on Exclusion of Evidence - 19.12.2003 BAGOSORA et al. (Military I)
(ICTR-98-41-AR93 & ICTR-98-41-AR93.2)

11.     The decision to admit or exclude evidence pursuant to Rule 89(C) is one within the discretion of the Trial Chamber and, therefore, appellate intervention is warranted only in limited circumstances. The Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) has summarized the applicable standard of review as follows: “It is for the party challenging the exercise of a discretion to identify for the Appeals Chamber a ‘discernible’ error made by the Trial Chamber. It must be demonstrated that the Trial Chamber misdirected itself either as to the principle to be applied, or as to the law which is relevant to the exercise of the discretion, or that it has given weight to extraneous or irrelevant considerations, or that it has failed to give weight or sufficient weight to relevant considerations, or that it has made an error as to the facts upon which it has exercised its discretion.”[1] If the Trial Chamber has properly exercised its discretion, the Appeals Chamber may not intervene solely because it may have exercised the discretion differently.[2]

[…]

16.     The Appeals Chamber affirms that the Trial Chamber has a broad discretion to direct the course of the proceedings in accordance with its fundamental duty to ensure a fair and expeditious trial pursuant to Article 19(1) of the Statute. In pursuit of these goals, the Trial Chamber may choose to exclude otherwise relevant and probative evidence where its prejudicial effect will adversely affect the fairness or expeditiousness of the proceedings. […]

[1] Prosecutor v. Milosević, Nos. IT-99-37-AR73, IT-01-50-AR73 & IT-01-51-AR73, Reasons for Decision on Prosecution Interlocutory Appeal from Refusal to Order Joinder, 18 April 2002, para. 5 (footnotes omitted).

[2] Ibid., para. 4.

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ICTR Statute Article 19(1) ICTY Statute Article 20(1) ICTR Rule Rule 89(C) ICTY Rule Rule 89(C)
Notion(s) Filing Case
Decision Regarding Leave to Amend Indictment - 19.12.2003 KAREMERA et al.
(ICTR-98-44-AR73 )

17. […][T]he determination whether proceedings will be rendered unfair by the filing of an amended indictment must consider the risk of prejudice to the accused. 

See also para. 28.

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ICTR Rule Rule 50 ICTY Rule Rule 50
Notion(s) Filing Case
Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

385.  The meaning of “legal prejudice” in the Trial Judgement is not clear. In any event, the Appeals Chamber clarifies that any form of prejudice that a party allegedly suffered as a result of undue delay ought to be considered. The Appeals Chamber finds that the Trial Chamber’s failure to expressly address the entirety of the co‑Accused’s arguments[1] and conduct a comprehensive assessment of their alleged prejudice in the Trial Judgement infringed the co‑Accused’s rights to a reasoned opinion under Article 22 of the Statute and Rule 88(C) of the Rules.

[…]

388.  However, the Appeals Chamber recalls its finding that the present proceedings were unduly delayed as a result of the Prosecution’s conduct and the Trial Chamber judges’ simultaneous assignment to multiple proceedings, delays which are not attributable to the co-Accused.[2] These delays prolonged the detention of the co‑Accused. The Appeals Chamber finds that these delays and the resulting prolonged detention constitute prejudice per se and that the Trial Chamber erred in concluding that the co‑Accused did not suffer prejudice.[3]

[1] The Appeals Chamber observes that Nyiramasuhuko and Ntahobali raised lengthy arguments regarding their prejudice that the Trial Chamber did not address in the 20 February 2004 Decision and 26 November 2008 Decision. See Nyiramasuhuko Appeal Brief, paras. 59-64, referring to 24 June 2003 Motion, paras. 164-190, 20 February 2004 Decision, para. 16; Ntahobali Appeal Brief, para. 4, referring to22 August 2008 Motion, paras. 53, 120, 134-136, 145‑152, 182, 183, 26 November 2008 Decision, paras. 54, 55, 59-61.

[2] See supra, para. 378.

[3] Cf. Gatete Appeal Judgement, paras. 44, 45.

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Decision Regarding Pleadings in Appeal - 24.11.2005 BLAGOJEVIĆ & JOKIĆ
(IT-02-60-A)

21.  Rule 6(D) of the Rules provides that amendments to the Rules “shall not operate to prejudice the rights of the accused or of a convicted or acquitted person in any pending case”.  The Appeal Chamber considers that the same principle applies to changes in the procedural requirements set out by the Tribunal’s practice directions.  […]

[1] See Prosecutor v. Nyiramasuhuko et al., Case No. ICTR-21-1-T, Decision in the Matter of Proceedings under Rule 15 bis, 24 September 2003, paras. 13-14; Prosecutor v. Blaškić, Case No. IT-95-14-AR108bis, Decision on Prosecution Motion to Set Aside the Decision of the Appeals Chamber of 29 July 1997, 12 August 1997, paras. 12-13.

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ICTR Rule Rule 6(C) ICTY Rule Rule 6(D) Other instruments ICTY Practice Directions
Notion(s) Filing Case
Decision on an Appeal of a Decision Rendered by a Single Judge - 06.10.2017 KAMUHANDA Jean de Dieu
(MICT-13-33)

12.     […] Requiring Kamuhanda to appeal an interim order before being able to demonstrate any prejudice resulting from that order would necessarily inhibit his ability to appeal the discretionary determination at issue and would result in a needless expenditure of judicial resources.[1]

[1] In order to successfully challenge a discretionary decision, an applicant must demonstrate that the Single Judge committed a discernible error resulting in prejudice to the applicant. See infra para. 11. 

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