Appeal as of right

Notion(s) Filing Case
Decision on Access to Confidential Material - 22.04.2009 RUTAGANDA George
(ICTR-96-3-R)

Rutaganda, whose case had already been decided on appeal, applied for access to confidential material from another case. His request was denied by the relevant Trial Chamber (including the request for reconsideration)[1] and he seized the Appeals Chamber with a request for leave to appeal the Trial Chamber’s decision. On 22 January 2009, the Appeals Chamber found that the Applicant was entitled to appeal the Decision of 3 April 2008 (Rutaganda Order on Rule 75 Appeal):[2]

p. 2: CONSIDERING that Rule 75(G) of the Rules of Procedure and Evidence of the Tribunal (“Rules”) which allows for the possibility of seeking to rescind, vary, or augment protective measures ordered at trial does not provide for an appeal as of right, nor do the Rules address the issue of whether a decision rendered by a Trial Chamber after the close of trial and appeal proceedings is subject to appeal;

CONSIDERING that the Appeals Chamber has previously held that an applicant is entitled to lodge an appeal against a decision rendered by a Trial Chamber, pursuant to Rule 75(G) of the Rules, after the close of trial and appeal proceedings;[3]

FINDING therefore that the Applicant is entitled to appeal the Decision of 3 April 2008

Rule 75 of the Rules was subsequently amended to state that appeals in such cases lie as of right.[4] In light of the fact that the dead-lines established in the new Rule had expired at the time of the motion, the Appeals Chamber established case-specific dead-lines for Rutaganda’s appeal (“Rutaganda Decision on Leave to Appeal”).[5]

See also, the present decision, para. 6:

6. Rule 75(J) of the Rules of Procedure and Evidence (“Rules”), provides that decisions under paragraph (G) are subject to appeal directly to a full bench of the Appeals Chamber by either party.  

[1] The Prosecutor v. Tharcisse Renzaho, Case No. ICTR-97-31, Decision on Rutaganda’s Motion for Reconsideration or Alternatively, Certification to Appeal the Decision of 3 April 2008 on Request for Closed Session Testimony and Sealed Exhibits, 13 November 2008 (“Decision of 13 November 2008”).

[2] Georges A.N. Rutaganda v. The Prosecutor, Case No. ICTR-96-3-R, Order to the Registrar Concerning Georges Rutaganda’s Access to Documents, 22 January 2009.

[3] Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R75, Decision on Motion for Clarification, 20 June 2008, para. 14. The Appeals Chamber held that issues related to access to confidential material by a convicted person concern the important question of balancing between the right of a convicted person to access potentially exculpatory material and the need to guarantee the protection of victims and witnesses.

[4] The Appeals Chamber subsequently applied this reasoning in another case involving a similar request (Emmanuel Ndindabahizi v. The Prosecutor, Case No. ICTR-01-71-R75, Decision on Emmanuel Ndindabahizi’s Motion for Leave to File an Appeal against the Trial Chamber’s Decision of 13 November 2008 and an Extension of Time, 19 February 2009, p. 4).

[5] Georges Anderson Nderubumwe Rutaganda v. The Prosecutor, Case No. ICTR-96-3-R, Decision on Georges A.N. Rutaganda’s Motion for Leave to File an Appeal Against the Trial Chamber’s Decision of 3 April 2008 and an Extension of Time, 16 February 2009. 

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ICTR Rule Rule 75 ICTY Rule Rule 75
Notion(s) Filing Case
Consolidated Decision on Jurisdiction - 25.06.2009 KARADŽIĆ Radovan
(IT-95-5/18-AR72.1, IT-95-5/18-AR72.2, IT-95-5/18-AR72.3)

The Appeals Chamber discussed the evolution of its jurisprudence regarding what types of challenges involve subject matter jurisdiction and thus qualify for appeal as of right.

33. The Appeals Chamber recalls that Karadžić’s challenges to the Tribunal’s jurisdiction focus on the mode by which liability is attributed to him. As these challenges do not relate to persons, territories, or time periods,[1] the core issue underlying the Appeals is whether they involve subject matter jurisdiction as defined in Rule 72(D)(iv) of the Rules, and thus may be appealed as of right.[2]

34. Karadžić makes extensive reference to certain decisions, such as Rwamakuba,[3] issued by three judge panels under a previous version of Rule 72 of the Rules.[4] Many of the decisions cited by Karadžić lend some support to the view that even relatively granular issues, such as the contours and elements of mode of liability, could be jurisdictional in nature.[5] However, other decisions issued by these three judge panels advanced a narrower view of jurisdiction under Rule 72 of the Rules.[6] In 2005, a revision to the Rules eliminated Rule 72(E) of the Rules and reverted the question of whether an appeal addressed jurisdictional issues to standard panels of five Appeals Judges.[7] Since that revision of the Rules, the Appeals Chamber’s jurisprudence has gradually resolved previous uncertainty relating to the issue of which questions qualified as jurisdictional challenges.

35. The Appeals Chamber’s most recent jurisprudence on the question of jurisdiction focuses narrowly on the plain text of Rule 72 of the Rules. For example, in Gotovina, the Appeals Chamber dismissed a challenge concerning the applicable mens rea of the third category of JCE, as it determined that the claim was not related to questions of jurisdiction.[8] To the extent the appeal was challenging the definition and interpretation of a particular element of the mode of liability, the Appeals Chamber found that “[s]uch an argument goes to the pleading practice and the form of the indictment and is not a challenge to jurisdiction”.[9] The Appeals Chamber also adopted this approach in its Tolimir Decision. There, the appellant challenged the applicability of JCE to establishing responsibility for the crimes of genocide and conspiracy to commit genocide. In rejecting his appeal, the Appeals Chamber concluded that “though at first glance [the appeal seemed] somewhat related to subject-matter jurisdiction”, it involved non-jurisdictional issues that could be resolved during the course of trial.[10]

36. As Tolimir and Gotovina demonstrate, the Appeals Chamber’s approach to subject matter jurisdiction now focuses on whether the crime charged is envisioned by the statute, and whether the mode of liability upholds the principle of individual criminal responsibility; the contours and elements of modes of liability are considered an “issue[ ] of law . . . which can be properly advanced and argued during the course of trial”.[11]

37. Accordingly, the Appeals Chamber finds no error in the Trial Chamber’s reliance on the Appeals Chamber’s distillation of case law on the scope of jurisdictional appeals as set out in Gotovina and Tolimir.[12] For the foregoing reasons, the Appeals Chamber finds that Karadžić fails to raise a proper jurisdictional challenge pursuant to Rule 72 of the Rules.

The Appeals Chamber also recalled the standard of appellate review of decisions concerning jurisdictional challenge (paras 9-10).

[1] Rule 72(D)(i)-(iii) of the Rules, IT/32/Rev. 36 (21 July 2005).

[2] Karadžić does not contend that the Appeals related to personal, territorial or temporal jurisdiction.

[3] Rwamakuba Decision on Jurisdiction [André Rwamakuba v. The Prosecutor, Case No. ICTR-98-44-AR72.4, Decision on Validity of Appeal of André Rwamakuba Against Decision Regarding Application of Joint Criminal Enterprise to the Crime of Genocide Pursuant to Rule 72(E) of the Rules of Procedure and Evidence, 23 July 2004] (commenting on the corresponding ICTR rule, which is equivalent in all relevant respects). 

[4] See, e.g., Rule 72(E) of the Rules, IT/32/Rev. 34 (22 February 2005).

[5] See, e.g., [ešelj Decision on Jurisdiction [The Prosecution v. Vojislav [ešelj, Case No. IT-03-67-AR72.1, Decision on Validity of Appeal of Vojislav [ešelj Challenging Jurisdiction and Form of Indictment, 29 July 2004]; Hadžihasanović Decision on Jurisdiction [Prosecutor v. Enver Hadžihasanović et al., Case No. IT-01-47-AR72, Decision Pursuant to Rule 72(E) as to Validity of Appeal, 21 February 2003].

[6] See, e.g., Joseph Nzirorera v. The Prosecutor, Case No. ICTR-98-44-AR72, Decision Pursuant to Rule 72(E) of the Rules of Procedure and Evidence on Validity of Appeal of Joseph Nzirorera Regarding Chapter VII of the Charter of the United Nations, 10 June 2004 (rejecting an interlocutory appeal as failing to raise a jurisdictional challenge because Rule 72(D) is narrow in scope in permitting appeals as of right).

[7] Compare Rule 72 of the Rules, IT/32/Rev. 34 (22 February 2005), with Rule 72 of the Rules, IT/32/Rev. 36 (21 July 2005); see, e.g., [ešelj Decision on Jurisdiction.

[8] Gotovina Decision [Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-AR72.1, Decision on Ante Gotovina’s Interlocutory Appeal Against Decision on Several Motions Challenging Jurisdiction, 6 June 2007], para.24.

[9] Ibid. [Gotovina Decision] at para. 24.

[10] Tolimir Decision [Prosecutor v. Zdravko Tolimir, IT-05-88/2-AR72.1, Decision on Tolimir’s “Interlocutory Appeal Against the Decision of the Trial Chamber on the Part of the Second Preliminary Motion Concerning the Jurisdiction of the Tribunal”, 25 February 2009], paras 7, 10; see also Impugned Decision [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-PT, Decision on Six Preliminary Motions Challenging Jurisdiction, 28 April 2009], para. 31. In 2007, the Appeals Chamber also noted that a broad based challenge to indirect modes of perpetration and aiding and abetting was jurisdictional, though it initially dismissed this challenge on other grounds. See Prosecutor v. Jadranko Prlić et al, Case No. IT-04-74-AR72.2, Decision on Petković’s Appeal Against Decision on Defence Motion to Strike the Amended Indictment, 4 June 2007, paras 3-5;  Prosecutor v. Jadranko Prlić et al, Case No. IT-04-74-AR72.3, Decision on Petković’s Appeal on Jurisdiction, 23 April 2008, paras 19-22.    

[11] Tolimir Decision, paras 7, 10 (internal quotations omitted); see also Gotovina Decision, paras 22-24.

[12] Impugned Decision, paras 30-32.

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ICTR Rule Rule 72 ICTY Rule Rule 72
Notion(s) Filing Case
Decision on Leave to Appeal - 17.02.2016 ORIĆ Naser
(MICT-14-79)

6.       […] The Appeals Chamber observes that the Rules do not expressly provide for an appeal as of right from a decision of a trial chamber or a single judge applying the non bis in idem principle set out in Article 7 of the Statute and Rule 16 of the Rules.[1] Notwithstanding, Article 7(1) of the Statute prescribes that “[n]o person shall be tried before a national court for acts constituting serious violations of international humanitarian law under the present Statute, for which he or she has already been tried by the ICTY, the ICTR or the Mechanism” and Rule 16 of the Rules provides for a remedy in the event of a violation of this principle. The Appeals Chamber considers that, in order to give full effect to the statutory principle of non bis in idem, it is necessary to recognize that decisions by a trial chamber or a single judge that affect a party’s right to the protections afforded in Article 7 of the Statute and Rule 16 of the Rules are subject to appellate review as of right.[2] […]

[1] See also Article 12(1) of the Statute and Rule 2(C) of the Rules. 

[2] Cf. Prosecutor v. Radovan Stanković, MICT-13-51, Decision on Stanković’s Appeal against Decision Denying Revocation of Referral and on the Prosecution’s Request for Extension of Time to Respond, 21 May 2014 (“Stanković Decision”), para. 9, and references contained therein.

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MICT Statute Article 7 MICT Rule Rule 16
Notion(s) Filing Case
Decision on Jurisdiction - 06.06.2007 GOTOVINA et al.
(IT-06-90-AR72.1)

9. […] The Appeals Chamber recalls that interlocutory appeals on jurisdiction lie as of right under Rule 72(B)(i) only where they challenge an indictment on the ground that it does not relate to: (i) any of the persons indicated in Articles 1, 6, 7 and 9 of the Statute (“personal jurisdiction”); (ii) the territories indicated in Articles 1, 8 and 9 of the Statute (“territorial jurisdiction”); (iii) the period indicated in Articles 1, 8 and 9 of the Statute (“temporal jurisdiction”); or (iv) any of the violations indicated in Articles 2, 3, 4, 5 and 7 of the Statute (“subject-matter jurisdiction”).[1]

[1] See Rule 72(D) of the Rules.

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ICTR Rule Rule 72 ICTY Rule Rule 72
Notion(s) Filing Case
Rule 15bis(D) Decision - 21.06.2004 KAREMERA et al.
(ICTR-98-44-A15bis)

9.       First, it is a matter of principle that the parties to a case have a right to be heard before a decision is made which can affect their rights.  The ICTY Appeal Judgment in Jelisić states thus:

In the view of the Appeals Chamber, the fact that a Trial Chamber has a right to decide proprio motu entitles it to make a decision whether or not invited to do so by a party; but the fact that it can do so does not relieve it of the normal duty of a judicial body first to hear a party whose rights can be affected by the decision to be made.  Failure to hear a party against whom the Trial Chamber is provisionally inclined is not consistent with the requirement to hold a fair trial.  The Rules must be read on this basis, that is to say, that they include a right of the parties to be heard in accordance with the judicial character of the Trial Chamber.  The availability of this right to the prosecution and its exercise of the right can be of importance to the making of a correct decision by the Trial Chamber: the latter could benefit in substantial ways from the analysis of the evidence made by the prosecution and from its argument on the applicable law.[1]

10.     Secondly, Rule 15bis (D) provides for a right of appeal from a decision made by the remaining judges of a Trial Chamber pursuant to that provision.  The existence of such a right of appeal itself implies that the parties have a right to be heard at the making of the decision from which they appeal.  

[1] Judgement, Case No. IT-95-10-A, 5 July 2001, para. 27.

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ICTR Rule Rule 15 bis(D) ICTY Rule Rule 15 bis(D)
Notion(s) Filing Case
Rule 98bis Appeal Decision - 04.10.2005 KRAJIŠNIK Momčilo
(IT-00-39-AR98bis.1)

2. It has been the practice in this Tribunal that appeals against decisions of a Trial Chamber denying an accused’s Rule 98bis motion require certification of the Trial Chamber for the Appeals Chamber to be properly seised.[1] Motions to the Trial Chamber to acquit an accused at the end of the Prosecution case are other motions falling within the purview of Rule 73 of the Rules.

3. In this Appeal, however, the Appellant says that the amendment to Rule 98bis removes the requirement of certification.[2] The Appellant grounds this argument on the removal of the word “motion” from Rule 98bis. He says that under the previous Rule the accused would move the Trial Chamber by way of motion to enter a judgement of acquittal. The amended version of the Rule does not require the submission of a motion by a party. Instead it places an obligation on a Trial Chamber, “after hearing the oral submissions of the parties, to enter a judgement of acquittal on any count if there is no evidence capable of supporting a conviction”.[3] The Appellant claims that the practical effect of the amendment is that any appeal pursuant to the amended version of Rule 98bis falls within the scope of Rule 108.[4] That Rule states:

 A party seeking to appeal a judgement shall, not more than thirty days from the date on which the judgment was pronounced, file a notice of appeal, setting forth the grounds. The Appellant shall 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. The Appeals Chamber may, on good cause being shown by the motion, authorise a variation of the grounds of appeal.

[…]

5. The amendment to Rule 98bis was not intended to impinge upon the already established practice of the Tribunal that appeals against judgements denying acquittal require certification of a Trial Chamber. The Appellant is correct to point out that under the old Rule 98bis the accused was required to submit a motion to the Trial Chamber to enter a judgement of acquittal and that there is no such requirement under the amended Rule. However, the logical extension of the Appellant’s argument is that every time a Trial Chamber acts (or declines to act) propio motu an accused would have a right to appeal. That is clearly not the case. Under the Rules of the Tribunal the only time a party has a right of interlocutory appeal is under the specific grounds identified in Rule 72 or when another rule specifically so provides. All other interlocutory appeals have to go through the certification procedure set forth by Rule 73.

[1]           Prosecutor v Brđanin, Case No: IT-99-36-A, Decision on Interlocutory Appeal, 19 March 2004.

[2]           Prior to the amendment adopted on 8 December 2004, the Rule read: (A) An accused may file a motion for the entry of judgement of acquittal on one or more offences charged in the indictment within seven days after the close of the Prosecutor’s case and, in any event, prior to the presentation of evidence by the defence pursuant to Rule 85(A)(ii). See Rules, IT/32/Rev.32.

[3]           Amended Rule 98bis, as amended on 8 December 2004: At the close of the Prosecutor’s case, the Trial Chamber shall, by oral decision and after hearing the oral submissions of the parties, enter a judgment of acquittal on any count if there is no evidence capable of supporting a conviction; Appeal [Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-AR98bis.1, Appeal Against Judgment Pursuant to Rule 98bis, 16 September 2005], para. 7.

[4]           Appeal, para. 8.

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ICTR Rule Rule 73;
Rule 98 bis;
Rule 108
ICTY Rule Rule 73;
Rule 98 bis;
Rule 108
Notion(s) Filing Case
Decision on Appeals of Decisions Rendered by a Single Judge - 09.08.2017 NIYITEGEKA Eliézer
(MICT-12-16-R)

10.     The Appeals Chamber accepts Niyitegeka’s argument that, at the time he filed the Request for Certification, it was not clear that he was entitled to appeal as of right the Decision of 29 January 2016, which was issued, in part, on the basis of Rules 73 and 86 of the Rules [of Procedure and Evidence of the Mechanism (“”Rules”)]. The Appeals Chamber recalls that the Appeals Chamber of the ICTR had ruled in Niyitegeka’s case that Rule 73 of the ICTR Rules concerning the requirement of certification prior to appeal applies only to interlocutory appeals during an applicant’s proceedings before a trial chamber and had held that an applicant is entitled to appeal as of right a decision pursuant to Rule 75(G) of the ICTR Rules rendered by another trial chamber after the close of that applicant’s trial and appeal proceedings.[1] Subsequently, Rule 75 of the ICTR Rules – the equivalent of Rule 86 of the Rules – was amended to provide for an express right of appeal of decisions taken under that rule when issued after the conclusion of an applicant’s trial proceedings.[2] However, Rule 86 of the Rules does not provide the same express right of appeal of decisions issued under it after the close of trial proceedings. In addition, only after Niyitegeka filed his Request for Certification did the Appeals Chamber clarify that the requirement of certification to appeal is not applicable to decisions under Rule 86 of the Rules rendered after the close of an applicant’s trial and appeal proceedings and that there lies a right of appeal in such circumstances.[3]

[…]

12.     […] [T]he Appeals Chamber clarifies that an appeal lies as of right of any decision taken under Rule 73 of the Rules by a single judge or trial chamber after an applicant’s trial and appeal proceedings have concluded. This is necessary to give full effect to the continuous obligation imposed upon the Prosecution by Rule 73(E) of the Rules to disclose exculpatory material after the completion of trial and any subsequent appeal.[4]

[1] Niyitegeka Decision of 20 June 2008 [Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R75, Decision on Motion for Clarification, 20 June 2008], paras. 13, 14.

[2] Compare ICTR Rules of 14 March 2008 with ICTR Rules of 1 October 2009. Specifically, the ICTR Rules of 1 October 2009. Specifically, the ICTR Rules of 1 October 2009 were amended to include Rule 75J, which states: “Decisions under paragraph (G) and, after the close of trial proceedings, paragraph (A), and under Rule 69, are subject to appeal directly to a full bench of the Appeals Chamber by either party. Appeals shall be filed within fifteen days of the filing of the impugned decision. A responding party shall, thereafter, file any response within ten days from the date of the filling of the appeal. The Appellant may file a reply within four days of the filing of the response. Failure to comply with these time limits shall constitute a waiver of the right to appeal.”

[3]See Kamuhanda Decision of 14 November 2016 [Case No. MICT-13-33, Decision on Appeal of Decision Declining to Rescind Protective Measures for a Deceased Witness]], para. 6. 

[4] Cf. Prosecutor v. Naser Orić, Case No. MICT-14-79, Decision on an Application for Leave to Appeal the Single Judge’s Decision of 10 December 2015, 17 February 2016 (“Orić Decision of 17 February 2016”), para. 6. 

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ICTR Rule Rule 73;
Rule 75
ICTY Rule Rule 73;
Rule 75
MICT Rule Rule 73;
Rule 86
Notion(s) Filing Case
Decision on Appeals of Decisions Rendered by a Single Judge - 09.08.2017 NIYITEGEKA Eliézer
(MICT-12-16-R)

12. […] the Appeals Chamber clarifies that an appeal lies as of right of any decision taken under Rule 73 of the Rules by a single judge or trial chamber after an applicant’s trial and appeal proceedings have concluded. This is necessary to give full effect to the continuous obligation imposed upon the Prosecution by Rule 73(E) of the Rules to disclose exculpatory material after the completion of trial and any subsequent appeal.[1]

[1] Cf. Prosecutor v. Naser Orić, Case No. MICT-14-79, Decision on an Application for Leave to Appeal the Single Judge’s Decision of 10 December 2015, 17 February 2016 (“Orić Decision of 17 February 2016”), para. 6.

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MICT Rule Rule 73;
Rule 146