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Decision on Lawyer-Client Privilege - 16.07.2012 POPOVIĆ et al.

9. The Appeals Chamber recalls the function of the President of the Tribunal (“President”) to coordinate the work of the Chambers, which includes the power to assign the resolution of judicial matters to a Trial Chamber, a bench of three judges, or a single judge.[1]

[1] Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-AR73.5, Decision on Gotovina Defence Appeal Against 12 March 2010 Decision on Requests for Permanent Restraining Orders Directed to the Republic of Croatia, 14 February 2011, para. 69.

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Decision on Postponement of Trial - 31.03.2010 KARADŽIĆ Radovan

On 19 February 2010, the President of the Tribunal (“President”) rendered a decision[1], in which he held that the remuneration granted by the Registry to Radovan Karadžić’s defence team for the period between the adjournment of the trial and the resumption thereof (“adjournment period”)[2] was insufficient. This raised the question how the February 2010 President Decision should affect the date of the resumption of the trial scheduled by the Trial Chamber. In determining this matter, the Appeals Chamber clarified the competence of the President vis-à-vis Trial Chambers, stating:

19. […]. The President is vested with the authority to supervise the activities of the Registrar, who is in charge of the administration and servicing of the Tribunal.[3] However, decisions relating to the general conduct of trial proceedings, including the scheduling of trials, are matters that fall within the discretion of Trial Chambers.[4] None of the provisions in the Statute of the Tribunal (“Statute”) or the Rules confers on the President the authority to interfere with a Trial Chamber’s determination with respect to the scheduling of a trial to which it is assigned. Indeed, while Trial Chambers are bound by the ratio decidendi of decisions of the Appeals Chamber,[5] the President has no competence to issue decisions that are binding on Trial Chambers.[6] This power is exclusively conferred upon the Appeals Chamber pursuant to Article 25 of the Statute.[7]

20. Thus, in accordance with his mandate, in the February 2010 President Decision, the President solely dealt with the issue of remuneration for Karadžić’s defence team. He refrained from stating how his determination of the issue might affect the scheduled date of the resumption of the trial. The latter was clearly within the competence of the Trial Chamber, not of the President.

21. The Appeals Chamber considers that the President’s evaluation of defence funding may be a factor for a Trial Chamber to consider when deciding upon the scheduling of a trial, in discharging its duty to ensure the fair and expeditious management of the trial proceedings. However, this does not mean that the President’s order to increase the remuneration for a defence team invariably warrants postponement of the trial. Thus, it was open for the Trial Chamber to conclude, in light of other relevant factors, that the President’s view on the defence funding during the adjournment period would not necessitate further delay in the proceedings in order to safeguard Karadžić’s rights to a fair trial.

22. […] Therefore, Karadžić’s assertion that the Trial Chamber overruled the February 2010 President Decision or removed the remedy granted therein although it was obliged to implement the President’s order, is based on the misconception of both the law and the Impugned Decision. The Trial Chamber did not overrule the President, but concluded that the level of defence assistance for Karadžić, which the President found too low, could be remedied by means other than postponement of the trial.[8] The Appeals Chamber finds no error in this approach.

[1] Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Decision on Request for Review of OLAD Decision on Trial Phase Remuneration, 19 February 2010 (“February 2010 President Decision”).

[2] The trial in the Karadžić case commenced on 26 October 2009. However Karadžić absented himself from the proceedings. On 5 November 2009, the Trial Chamber adjourned the proceedings until 1 March 2010, see Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Decision on Appointment of Counsel and Order on Further Trial Proceedings, 5 November 2009.

[3] Rules 19(A) and 33(A) of the Rules [Rules of Procedure and Evidence].

[4] Ngirabatware Decision [Augustin Ngirabatware v. The Prosecutor, Case No. ICTR-99-54-A, Decision on Augustin Ngirabatware’s Appeal of Decisions Denying Motions to Vary Trial Date, 12 May 2009], para. 22; Milošević Decision [Prosecutor v. Slobodan Milošević, Case No. IT-02-54-AR73.6, Decision on the Interlocutory Appeal by the Amici Curiae Against the Trial Chamber Order Concerning the Presentation and Preparation of the Defence Case, 20 January 2004], para. 16; Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR73.2, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on Adequate Facilities, 7 May 2009, para. 11. See also Prosecutor v. Vojislav [ešelj, Case No. IT-03-67-PT, Decision on Appeal Against Registry Decision of 19 December 2006, 12 March 2007, para. 6.

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

[6] Prosecutor v. Vojislav [ešelj, Case No. IT-03-67-T, Decision on Urgent Registry Submission Pursuant to Rule 33(B) Seeking Direction From the President on the Trial Chamber’s Decision of 27 November 2008, 17 December 2008, para. 9.

[7] Id.

[8] Id., paras 40, 43, 47.

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ICTR Rule Rule 19(A) ICTY Rule Rule 19(A)
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Decision on Adequate Facilities - 07.05.2009 KARADŽIĆ Radovan

10. The Appeals Chamber recalls that it is well established that in undertaking a first judicial review of an administrative decision, the Trial Chamber, Appeals Chamber or President, as the case may be, must apply the standard set out in the Kvočka et al. Appeal Decision.[1] The Kvočka et al. Appeal Decision first considered the nature of a judicial review of an administrative decision:

A judicial review of such an administrative decision is not a rehearing. Nor is it an appeal, or in any way similar to the review which a Chamber may undertake of its own judgment in accordance with Rule 119 of the Rules of Procedure and Evidence. A judicial review of an administrative decision made by the Registrar in relation to legal aid is concerned initially with the propriety of the procedure by which [the] Registrar reached the particular decision and the manner in which he reached it.[2]

With this approach in mind, the Kvočka et al. Appeal Decision then set out that an administrative decision by the Registrar will be quashed if the decision-maker:

(a) failed to comply with the legal requirements of the Directive, or

(b) failed to observe any basic rules of natural justice or to act with procedural fairness towards the person affected by the decision, or

(c) took into account irrelevant material or failed to take into account relevant material, or

(d) reached a conclusion which no sensible person who has properly applied his mind to the issue could have reached (the “unreasonableness” test).[3]

The Kvočka et al. Appeal Decision also specified that “[t]hese issues may in the particular case involve, at least in part, a consideration of the sufficiency of the material before the Registrar, but (in the absence of established unreasonableness) there can be no interference with the margin of appreciation of the facts or merits of that case to which the maker of such an administrative decision is entitled”.[4] Finally, in the review, the party contesting the administrative decision bears the onus of persuasion and must show that (a) an error of the nature described has occurred, and (b) that such error has significantly affected the impugned decision to his detriment.[5]


[1] See Prosecutor v. Veselin [ljivančanin, Case No. IT-95-13/l-PT, Decision on Assignment of Defence Counsel, 20 August 2003, para. 22; Prosecutor v. Momčilo Krajšnik, Case No. IT-00-39-PT, Decision on the Defence’s Motion for an Order Setting Aside the Registrar’s Decision Declaring Momčilo Krajšnik Partially Indigent for Legal Aid Purposes, 20 January 2004, para. 16; Prosecutor v. Mile Mrkšić, Case No. IT-95-13/1-PT, Decision on Defence Request for Review of the Registrar’s Decision on Partial Indigence of Mile Mrkšić, 9 March 2004, p. 3; Prosecutor v. Mile Mrkšić, Miroslav Radić and Veselin [ljivančanin, Case No. IT-95-13/1-PT, Decision on Appointment of Co-Counsel for Mrkšić, 7 October 2005, para. 9.

[2] Kvočka et al. Appeal Decision [Prosecutor v. Miroslav Kvočka, Mlado Radić, Zoran Zigić and Dragoljub Prcać, Case No. IT-98-30-1/A, Decision on Review of Registrar’s Decision, 7 February 2003], para. 13.

[3] Kvočka et al. Appeal Decision, para. 13.

[4] Kvočka et al. Appeal Decision, para. 13. See also Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze, Case No. ICTR-99-52-A, Decision on Appellant Jean-Bosco Barayagwiza’s Motion Contesting the Decision of the President Refusing to Review and Reverse the Decision of the Registrar Relating to the Withdrawal of Co-Counsel, 23 November 2006 (“Nahimana et al. Appeal Decision”), para. 9.

[5] Kvočka et al. Appeal Decision, para. 14. See also Nahimana et al. Appeal Decision, para. 9; Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, Decision on Independent Counsel for Vidoje Blagojević’s Motion to Instruct the Registrar to Appoint New Lead and Co-Counsel, 3 July 2003 (“Blagojević Trial Decision”), para. 116.

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Decision on Preserving and Providing Evidence - 22.04.1999 DELALIĆ et al. (Čelebići)

[A] Legal Officer and the then President of the Tribunal […] cannot be subpoenaed to testify as witnesses on matters relating to their official duties or functions because their work is integral to the operation of the Tribunal which must be protected by confidentiality. […]

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Order to Government for Release of Judge - 31.01.2017 NGIRABATWARE Augustin

12.     With the arrest of Judge Akay, proceedings on the merits of Ngirabatware’s Request for Review have necessarily come to a standstill. To move the case forward, as suggested by the Prosecution,[1] by the substitution of a judge as a first reaction in response to the current situation is nothing short of violating a core principle that is fundamental to the administration of justice: an independent judiciary.

13.     I have long maintained that upholding the integrity of our judicial system entails not exercising the powers conferred upon me as President arbitrarily and eschewing improper influences when determining the composition of judicial benches.[2] It is […] evident […] that reassignment of Judge Akay onto another case is simply an unfair and myopic solution since it would similarly halt proceedings in that case. While pragmatic, this solution will undoubtedly impinge on the fundamental principle of judicial independence as it would allow interference by a national authority in the conduct of a case and the exercise of judicial functions. As such, it will have a chilling effect on the administration of justice. Moreover, the inherent authority of the Mechanism cannot be interpreted, as the Prosecution suggests, [3] to include taking substantive decisions on the merits of a case in the absence of the consideration by all of the members of the bench. Judge Akay’s views on this case matter to our solemn deliberations, and, in the present circumstances, decisions on the merits of this case cannot be taken even should they hold the support of a majority of the remaining judges. Moreover, it cannot be said that the integrity of the judicial system would be upheld if a replacement of a judge is viewed as a measure of first rather than last resort, especially where the avenues for the Government of the Republic of Turkey to implement the United Nations Secretary-General’s assertion of immunity have neither been fully explored nor exhausted, including the execution of this request made by Ngirabatware. In this regard, I note that Judge Akay’s release is also being sought pursuant to domestic legal proceedings in Turkey. An application before the European Court of Human Rights has also been filed.[4]


15.     This is not to say that judges can never be reassigned or replaced. But a judge has been arrested, immunity has been asserted, it has not been waived, and Judge Akay’s continued presence on the bench has the full support of the person who is seeking relief. Judge Akay is an essential member of this bench. In the absence of extraordinary circumstances, his continued presence on the bench is essential to the preservation of judicial independence. To say Judge Akay can be replaced easily to facilitate the judicial process – at this initial stage and before other avenues have been exhausted – is to say we do not value judicial independence, value justice, value what is right.

[1] See supra [Prosecutor v. Augustin Ngirabatware, Case No. MICT-12-29-R, Order to the Government of the Republic of Turkey for the Release of Judge Aydin Sefa Akay, 31 January 2017], para. 9.

[2] See Theodor Meron, Judicial Independence and Impartiality in International Criminal Tribunals, 99 Am. J. Int’l L. 363-65 (2005).

[3] See [Prosecutor v. Augustin Ngirabatware, Case No. MICT-12-29-R] Oral Hearing, T. 17 January 2017 pp. 19, 27.

[4] See ECHR Ref. No. 59/17.

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MICT Statute Article 19
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Order to Government for Release of Judge - 31.01.2017 NGIRABATWARE Augustin

17.     In relation to Ngirabatware’s request for temporary provisional release,[1] I consider that as Pre-Review Judge, I lack competence to entertain this request.[2] […] Any request for modifications of the conditions of detention in accordance with Rule 67 of the Rules should be made before the President.

[1] See [Prosecutor v. Augustin Ngirabatware, Case No. MICT-12-29-R] Oral Hearing, T. 17 January 2017 pp. 21, 22, 25, 26; Ngirabatware Further Submission [Further Submission on Motion for Order to Government of Turkey or for Temporary Provisional Release, 18 December 2016 ], paras. 1, 14, 15; Motion [Prosecutor v. Augustin Ngirabatware, Case No. MICT-12-29-R,Motion for Order to Government of Turkey or for Temporary Provisional Release, 10 November 2016], paras. 2, 22.

[2] See Rule 135 of the [MICT] Rules. I find Ngirabatware’s reliance on the competence of a Duty Judge at the International Criminal Tribunal for the former Yugoslavia (“ICTY”) inapposite given the circumscribed nature of the corresponding competence of a Duty Judge at the Mechanism. See [Prosecutor v. Augustin Ngirabatware, Case No. MICT-12-29-R] Oral Hearing, T. 17 January 2017 pp. 25, 26. Compare Rule 28 of the [MICT] Rules (indicating that a Duty Judge will serve as a Single Judge on matters “not assigned to a Single Judge or Trial Chamber”) with Rule 28(D) of the ICTY Rules of Procedure and Evidence (authorizing a Duty Judge to deal with applications in a case already assigned to a Trial Chamber if, inter alia, “satisfied as to its urgency or that it is otherwise appropriate to do so in the absence of the Trial Chamber”). In addition, while Rule 68(I) of the [MICT] Rules applies, mutatis mutandis, to convicted persons who are in the custody of the Mechanism pending transfer to an enforcement state, the decision to authorize such provisional release principally rests with the Appeals Chamber, to the extent that it is already seised of the case. See Prosecutor v. Zdravko Tolimir, Case No. MICT-15-95-ES, Public Redacted Version of the “Decision on Motion for Provisional Release” Filed on 28 January 2016, 23 February 2016, paras. 7, 8.

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MICT Rule Rule 67;
Rule 135