Amicus Curiae

Notion(s) Filing Case
Decision on Amici Curiae Appeal - 20.01.2004 MILOŠEVIĆ Slobodan
(IT-02-54-AR73.6)

4. […] The amici do not act as representatives of the Accused at trial, but solely as assistants to the Trial Chamber.[1] Not being a party to the proceedings, the amici are not entitled to use Rule 73 to bring an interlocutory appeal. […]

See also paragraph 5.

[1] See Prosecutor v. Milošević, IT-02-54-T, Reasons for Decision on the Prosecution Motion Concerning Assignment of Counsel, 4 April 2003, para. 3 (“the role of the Amicus Curiae would not be to represent the Accused, but to assist the court”); Transcript of the 30 August 2001 Status Conference, at 6–7.

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ICTR Rule Rule 73 ICTY Rule Rule 73
Notion(s) Filing Case
Decision on Motions to Strike and Word Limit - 06.11.2009 HARTMANN Florence
(IT-02-54-R77.5-A)

16. The Appeals Chamber does not agree with the Appellant that the participation of the Amicus Prosecutor would have the “incongruous effect of allowing a proxy of the Trial Chamber to defend on appeal the case that it has prosecuted on its behalf”.[1]  This argument is based upon the faulty premise that the Amicus Prosecutor and the Trial Chamber were one and the same entity.  Having been appointed by the Registrar, upon order of the Trial Chamber, the Amicus Prosecutor proceeded to prosecute the case on behalf of the Chamber without becoming an “agent” or “proxy” thereof.  Moreover, the Appeals Chamber has already stated that the participation of the Amicus Prosecutor would assist it in its consideration of the appeal.[2]

18. The Appeals Chamber notes that it is not uncommon for a party to challenge on appeal the actions of an opposing party during trial, and that such a challenge does not preclude the Appeals Chamber from presenting questions to the opposing party on appeal in relation to the actions being challenged. The Appeals Chamber thus finds no merit in the Appellant’s contention that the involvement of the Amicus Prosecutor in the Appeal proceedings would preclude the Defence and/or the Appeals Chamber from hearing evidence potentially relevant to this case.  Furthermore, the Appeals Chamber reminds the Appellant that the Appeals Chamber determines an appellant’s grounds of appeal after the Appeals Chamber has had the benefit of reviewing the submissions of both parties and hearing their oral arguments.  The Appeals Chamber accordingly finds no basis in the Appellant’s argument that allowing the Amicus Prosecutor to participate in the appeal proceedings would create the appearance that the Appeals Chamber condones the alleged improper contacts challenged under Ground 3 of the Appeal.

[1] In the Case Against Florence Hartmann, Case No. IT-02-54-R77.5-A, Motion to Strike Motion by Former Amicus Prosecutor, 5 October 2009, para. 14.

[2] In the Case Against Florence Hartmann, Case No. IT-02-54-R77.5-A, Order to the Registrar to Serve Appeal Related Filings on the Amicus Curiae Prosecutor, 9 October 2009.

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Notion(s) Filing Case
Decision on Admission of Amicus Curiae Brief - 12.01.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

At page 3, the Appeals Chamber restated its case-law regarding Rule 74 submissions:

[] granting leave to make submissions under Rule 74 is a matter within the discretion of the Chamber;[1]

[] the primary criterion for the Appeals Chamber in determining whether to grant leave to an amicus curiae to submit a brief or to offer oral argument is whether such submissions would assist the Appeals Chamber in its consideration of the questions at issue on appeal;[2]

[1] See Prosecutor v. Ante Gotovina et al., Case No. IT-60-90-AR108bis.1, Decision on Prosecution’s Motion to Strike Request for Review under Rule 108bis, 13 December 2006, para. 7; Prosecutor v. Jadranko Prlić, Case No. IT-04-74-AR108bis.1, Decision on Prosecution’s Motion to Strike Request for Review under Rule 108bis, 13 December 2006, para. 7. See also, by analogy, “Information Concerning the Submission of Amicus Curiae Briefs” before the International Criminal Tribunal for Former Yugoslavia, 27 March 1997, IT/122, paras 2 and 5(c).

[2] The Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Decision on Association of Defence Counsel Request to Participate in Oral Argument, 7 November 2005, p. 3. See also Semanza v. The Prosecutor, Case No. ICTR-97-20-A, Decision on Amicus Curiae Application of Paul Bisengimana, 30 March 2004, p. 3.

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ICTR Rule Rule 74 ICTY Rule Rule 74
Notion(s) Filing Case
Decision on Amicus Curiae Brief - 01.09.2008 KANYARUKIGA Gaspard
(ICTR-2002-78-R11bis)

CONSIDERING that granting leave to make submissions under Rule 74 of the Rules is a matter within the discretion of the Appeals Chamber;[1]

CONSIDERING that the primary criterion in determining whether to grant leave to an amicus curiae to make submissions is whether this would assist the Appeals Chamber in its consideration of the appeal;[2]

[1] See The Prosecutor v. Ferdinand Nahimana et al., Case No. ICTR-99-52-A, Decision on the Admissibility of the Amicus Curiae Brief Filed by the “Open Society Justice Initiative” and on its Request to be Heard at the Appeals Hearing, 12 January 2007 (“Nahimana Decision”), p. 3. See also Prosecutor v. Ante Gotovina et al., Case No. IT-06-80-AR108bis.1, Decision on the Prosecutor’s Motion to Strike Request for Review under Rule 108bis, 13 December 2006, para. 7.

[2] Nahimana Decision, p. 3; Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Decision on Association of Defence Counsel Request to Participate in Oral Argument, 7 November 2005, p. 3. See also Laurent Semanza v. The Prosecutor, Case No. ICTR-97-20-A, Decision on Amicus Curiae Application of Paul Bisengimana, 30 March 2004, p. 3.

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ICTR Rule Rule 74 ICTY Rule Rule 74
Notion(s) Filing Case
Decision on Amicus Curiae Brief - 01.09.2008 KANYARUKIGA Gaspard
(ICTR-2002-78-R11bis)

The Appeals Chamber held that although Rwanda had been granted leave to appear as an amicus curiae during the referral proceedings, Rwanda proposed to make submissions on matters not covered by the amicus curiae brief it submitted during those proceedings. At page 3, the Appeals Chamber granted Rwanda’s request, on the following basis:

RECALLING that the Appeals Chamber granted Rwanda permission to file an amicus curiae brief in Munyakazi on the basis that Rwanda had a practical interest in the determination of the appeal, and that the Appeals Chamber would be assisted in the determination of the appeal by further amicus curiae submissions from Rwanda on issues relevant to the determination of the appeal;[1]

CONSIDERING that Rwanda also has a practical interest in the determination of the appeal in this case;

CONSIDERING that the issues identified by Rwanda in the Motion as matters about which it could provide further detail are relevant to the determination of the appeal and that the Appeals Chamber may therefore be assisted by further amicus curiae submissions from Rwanda;

[1] See The Prosecutor v. Yussuf Munyakazi, Case No. ICTR-97-36-R11bis, Decision on Request from the Republic of Rwanda for Permission to File an Amicus Curiae Brief, 18 July 2008, p. 3.

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ICTR Rule Rule 74
Notion(s) Filing Case
Amicus Curiae Decision - 21.09.2012 KARADŽIĆ Radovan
(IT-95-5/18-AR98bis.1)

At pages 3-4 of the Decision, the Appeals Chamber denied the application for leave to submit an amicus curiae brief.

CONSIDERING that, although the victims of Karadžić’s alleged crimes may have a valuable “human and historical” perspective to offer[1] and have “a special interest in seeing that history accurately records their suffering and the reasons they suffered”,[2] a proposed amicus curiae’s “contentious application of th[e] law to the facts of the case and its conclusions that the Trial Chamber erred in a number of areas is not helpful to the Appeals Chamber”;[3]

CONSIDERING that the Applicants’ proposed amicus curiae brief is not limited to questions of law, but provides interpretations of evidence and repeats the task undertaken by the Trial Chamber and the parties in their submissions on appeal;[4]

FINDING, therefore, that the proposed amicus curiae brief does not assist the Appeals Chamber in the determination of the present appeal and, thus, is not admissible under Rule 74 of the Rules;

[1] Application [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR98bis.1, Application for Leave to Submit an Amicus Brief on Behalf [of] Satko Mujagić, Fikret Alić and the Association of Witnesses and Survivors of Genocide Concerning Judgement of Acquittal Under Rule 98 bis, 31 August 2012], para. 9.

[2] Application, para. 14.

[3] Hartmann Decision [In the Case Against Florence Hartmann, Case No. IT-02-54-R77.5-A, Decision on Application for Leave to File Amicus Curiae Brief, 5 February 2010], para. 7. See also Gotovina Decision [Prosecutor v. Ante Gotovina and Mladen Markač, Case No. IT-06-90-A, Decision on Application and Proposed Amicus Curiae Brief, 14 February 2012], para. 11.

[4] See Application, paras 7-13. See also Gotovina Decision, para. 11.

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ICTR Rule Rule 74 ICTY Rule Rule 74
Notion(s) Filing Case
Decision on Amicus Curiae Motion - 11.06.2008 KRAJIŠNIK Momčilo
(IT-00-39-A)

Following a request for guidance presented by amicus curiae as to how he should respond to a request by Momčilo Krajišnik for a meeting at the United Nations Detention Unit (“UNDU”) in which Mr. Krajišnik asked the Registry to arrange a meeting between him and amicus curiae for the purpose of discussing one of amicus curiae’s submissions, the Pre-Appeal Judge clarified:

p. 1: RECALLING that “the Appeals Chamber invite[d] the participation of a particular amicus curiae to assist the Appeals Chamber by arguing in favour of Mr. Krajišnik’s interests”;

RECALLING that the Appeals Chamber made explicit that “amicus curiae is not a party to the proceedings” and that “[a]micus curiae is to work independently from Mr. Krajišnik”;

CONSIDERING that a meeting between Mr. Krajišnik and amicus curiae about an issue within the purview of amicus curiae’s assignment would violate both the terms and spirit of amicus curiae’s appointment;

HEREBY CLARIFIES that amicus curiae remains under an obligation to work independently from Mr. Krajišnik and that the meeting sought by Mr. Krajišnik would consequently be inappropriate.[5]

Subsequently, in a Motion filed on 26 June 2008, Mr. Krajišnik sought review of the Decision of 11 June 2008 and an order obliging amicus curiae to visit him at the UNDU. The Pre-Appeal Judge considered that the Motion was best construed as a request for reconsideration of the Decision, since it did not meet the standards for a request for review laid out in Rule 119(a) of the Rules.[6] The Pre-Appeal Judge denied the Motion, finding that Mr. Krajišnik had not met the standard that would justify granting his request for reconsideration because he had not shown that the 11 June 2008 Decision was based on clearly erroneous reasoning or that it would result in an injustice.

[1] “Amicus Curiae Motion Regarding Request for UNDU Visit by Mr Krajisnik [sic]” (Public with Confidential Annex), 6 June 2008 (“Motion”).

[2] Decision on Momčilo Krajišnik’s Request to Self-Represent, on Counsel’s Motions in Relation to Appointment of Amicus Curiae, and on the Prosecution Motion of 16 February 2007, 11 May 2007 (“Decision of 11 May 2007”), para. 19.

[3] Decision of 11 May 2007, para. 20.

[4] Decision of 11 May 2007, para. 19.

[5] Prosecutor v Momčilo Krajišnik, Case No. IT-00-39-A, Decision on Amicus Curiae Motion for Guidance, 11 June 2008, p. 1.

[6] Decision on Momčilo Krajišnik’s Request for Reconsideration of the Pre-Appeal Judge’s Decision of 11 June 2008, 4 July 2008 (“Krajišnik Decision on Reconsideration”), p. 1.

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Notion(s) Filing Case
Decision on Self-Representation - 11.05.2007 KRAJIŠNIK Momčilo
(IT-00-39-A)

17.    The Appeals Chamber notes that, pursuant to Rule 74 of the Rules of Procedure and Evidence (“Rules”), the Appeals Chamber may, “if it considers it desirable for the proper determination of the case”, invite submissions from an amicus curiae “on any issue specified by the Chamber”.  The Appeals Chamber further considers that, as was done in Slobodan Milošević, the Appeals Chamber can ask the amicus curiae to argue in favour of the interests of a particular party where this approach will serve the interests of justice.[1]

18.    As part of the choice to self-represent, Mr. Krajišnik must “accept[] responsibility for the disadvantages this choice may bring.”[2]   He is not entitled to amicus curiae.  Rather, the issue is whether, in being “particularly attentive to its duty of ensuring that the [appeal] be fair,”[3] the Appeals Chamber deems the appointment of amicus curiae to be warranted.  The Appeals Chamber considers that in this case the answer is yes.  The appointment of amicus curiae will not infringe on any rights of Mr. Krajišnik, such as the right to self-represent or the right to a speedy appeal.  Moreover, such an appointment will help ensure that the appeal is a fair one.  Of course, a fair appeal could well occur in the absence of amicus curiae, but this is an issue better judged with hindsight rather than with foresight.  Since Mr. Krajišnik is the first defendant seeking to self-represent on appeal, the Appeals Chamber deems it prudent to appoint amicus curiae to keep an eye on his interests.

19.    Accordingly, pursuant to Rule 74, the Appeals Chamber invites the participation of a particular amicus curiae to assist the Appeals Chamber by arguing in favour of Mr. Krajišnik’s interests.  Amicus curiae is not requested to conduct any new factual investigations.  Rather, in light of the evidence at issue in the trial record, amicus curiae is to put forth grounds of appeal seeking reversal of convictions or reduction in sentence and to argue against grounds of appeal advanced by the Prosecution.  Amicus curiae is to work independently from Mr. Krajišnik. 

20.    The Appeals Chamber emphasizes that amicus curiae is not a party to the proceedings.[4]  The Appeals Chamber is therefore under no obligations to address all arguments raised by amicus curiae.  Rather, the Appeals Chamber will look to the arguments raised by amicus curiae in assessing whether the interest of justice requires the Appeals Chamber to consider, proprio motu, issues not raised in Mr. Krajišnik’s appeal or in his responses to the Prosecution’s appeal.

The Appeals Chamber also considered the status of an amicus curiae and the modalities of him participating in the appeal, paras 21-22:

21.    In the absence of other instructions from the Pre-Appeal Judge or the Appeals Chamber, amicus curiae is to make submissions to the Appeals Chamber similar to those which a party would make (including a notice of appeal, appeal brief, response brief, and reply brief) and pursuant to the requirements set out in the Rules and the relevant Practice Directions,[5] with one exception.  This exception is that the word counts for amicus curiae are limited to two-thirds of those available to the parties under the Practice Direction on the Length of Briefs and Motions.  Amicus curiae is to attend Status Conferences, either in person or via tele-conference, and to appear at the oral hearing of the appeal.  Amicus curiae is also to have access to all inter partes confidential material in the case.

22.    The Prosecution is entitled to respond to amicus curiae in the same way that, pursuant to the Rules and the relevant Practice Directions, it is entitled to respond to the other party, save that the word counts for its responses are limited to two-thirds of those available to the parties under the Practice Direction on the Length of Briefs and Motions.  The Appeals Chamber notes that the Prosecution may choose to respond separately to Mr. Krajišnik and to amicus curiae or instead choose to file consolidated responses and replies (with word counts for these consolidated filings equal to one and two-thirds those set forth in the Practice Direction on the Length of Briefs and Motions).  In oral proceedings, the Prosecution will similarly have a right of response with regard to amicus curiae

[1] See, e.g., Prosecutor v. Slobodan Milošević, Case No. IT-99-37-PT, Order Inviting Designation of Amicus Curiae, 30 August 2001, pp. 2-3; Prosecutor v. Slobodan Milošević, Case No. IT-01-50-PT, Order Inviting Designation of Amicus Curiae, 30 October 2001, pp. 2-3; Prosecutor v. Slobodan Milošević, Case No. IT-99-37-PT, Order Concerning Amici Curiae, 11 January 2002; Prosecutor v. Slobodan Milošević, Case No. IT-02-54-T, Order of Further Instruction to the Amici Curiae, 6 October 2003, p. 2; see also Dickerson v. United States, 530 U.S. 428, 441-442 & n.7 (2000) (noting the appointment of the amicus “to assist our deliberations by arguing in support of the judgment below”). 

[2] 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. 19.

[3] Ibid., para. 19.

[4] See ibid., para. 4.

[5] Except as otherwise specified in this opinion, time limits for amicus will begin running from the date of amicus’s appointment.  

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ICTR Rule Rule 74 ICTY Rule Rule 74
Notion(s) Filing Case
Decision on Participation in Oral Argument - 07.11.2005 BRĐANIN Radoslav
(IT-99-36-A)

CONSIDERING that the main relevant criterion for the Appeals Chamber in determining whether to permit an amicus curiae to offer oral argument is whether that argument would assist the Appeals Chamber in its consideration of the question at issue;

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