Appeal hearing

Notion(s) Filing Case
Appeal Judgement - 19.07.2010 HARADINAJ et al.
(IT-04-84-A)

19. At the Appeal Hearing, the Prosecution further argued that, given the extraordinary circumstances of the trial, during which two crucial witnesses did not testify due to intimidation, the Trial Chamber was obliged under Article 20(1) of the Statute to consider, proprio motu, receiving their written statements under Rule 89(F) of the Rules.[1] The Appeals Chamber recalls that, unless specifically authorised by the Appeals Chamber, parties should not raise new arguments during an appeal hearing that are not contained in their written briefs.[2] Given that the Prosecution raised this argument for the first time during the Appeal Hearing without authorisation from the Appeals Chamber, the Appeals Chamber declines to consider it.

[1] AT. 23-24, 30-31, 34-38, 43-44, 47-52, 60-61, 120-124, 127 (Open Session). See also AT. 66, 77-81, 87-93, 103, 161-162 (Open Session) (in which the Defence responds to this argument).

[2] Prosecutor v. Miroslav Bralo, Case No. IT-95-17-A, Decision on Prosecution’s Motion to Strike and on Appellant’s Motion for Leave to File Response to Prosecution Oral Arguments, 5 March 2007, para. 15. 

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Notion(s) Filing Case
Decision on Postponement of Appeal Hearing - 15.01.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

The Appeals Chamber dismissed the Appellant’s motion seeking a postponement of the appeal hearing due to the assignment of a new Co-Counsel, considering that:

Pp. 4-5: CONSIDERING that pursuant to Article 15 of the Directive on the Assignment of Defence Counsel (“Directive”), the Lead Counsel “shall deal with all stages of procedure” and “has primary responsibility for the Defence”, while the Co-Counsel may intervene “under the authority of Lead Counsel”;

CONSIDERING that the Appellant’s Lead Counsel was put on notice of the date of the Appeals Hearing on 16 November 2006, and […] he has not to date informed the Appeals Chamber of any justified unavailability for the Appeals Hearing;

RECALLING that the Letter of Assignment was offered to the current Co-Counsel by the DCDMS on the understanding that this would not result in any delay of the appellate proceedings;

CONSIDERING that the Lead Counsel, who, in the absence of any assistance from the former Co-Counsel, has had ample time to prepare for the Appeals Hearing in the present case,[1] and is in a position to brief the current Co-Counsel as to matters that may require his assistance during the Appeals Hearing;

CONSIDERING that, in light of the fact that the current Co-Counsel is a qualified lawyer, the Appellant’s argument that the verbal undertaking of the current Co-Counsel is of no significance to the latter’s ability to prepare for the Appeals Hearing is a mere assertion;[2]

CONSIDERING, therefore, that the Appellant has not shown that any postponement of the Appeals Hearing as scheduled by the Scheduling Order is required in the interests of justice.

[1] The Appeals Chamber notes that Mr. Bharat Chadha was assigned to the Appellant’s case on 5 May 2004 as Co-Counsel and was appointed Lead Counsel on 17 November 2004.

[2] See the Appellant’s arguments on p. 4 para. 2.

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Notion(s) Filing Case
Decision on Motion for Severance - 24.07.2009 BAGOSORA et al. (Military I)
(ICTR-98-41-A)

In his Motion, Appellant Ntabakuze requests the severance of his case from the cases of his two co-Appellants and the retention of the briefing schedule for the Prosecution as foreseen by Rules 111 and 112 of the Rules of Procedure and Evidence (“Rules”). Previously, the Prosecution had notified the Appeals Chamber of its intention to file a consolidated response to all three appeal briefs.

22.     The Appeals Chamber notes that it is within its discretion to decide a motion with or without an oral hearing.[1] Ntabakuze’s sole argument for an oral hearing seems to be based on the premise that oral arguments would expedite the Appeals Chamber’s decision.[2] However, he fails to specify why and how an oral hearing could expedite the decision. The Appeals Chamber is not satisfied that an oral hearing is necessary in this case, nor that it would expedite its decision on the matter since the information before it is sufficient to enable it to reach an informed decision. […]

[1] See, e.g., Prosecutor v. Mile Mrkšić and Veselin Šljivančanin, Case No. IT-95-13/1-A, Decision on Mile Mrkšić’s Second Rule 115 Motion, 13 February 2009, para. 11; 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 Jurisdictions, 6 June 2007, para. 8; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Appellant Jean-Bosco Barayagwiza’s Motion for Leave to Present Additional Evidence Pursuant to Rule 115, 5 May 2006, para. 9.

[2] Motion, Conclusion [Aloys Ntabakuze v. The Prosecutor, Case No. ICTR-98-41-A, Extremely Urgent Motion for: (a) Severance, and Retention of Briefing Schedule; or, in the Alternative, (b) Judicial Bar to the Untimely Filing of Respondent’s Brief, and Dismissal of Appellant’s Conviction, 24 June 2009], p. 11.

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Notion(s) Filing Case
Decision on Scheduling Order - 05.12.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

P. 3: NOTING that in the Motion, the Appellant provides reasons in support of his argument that the Appeals Hearing should be scheduled for a later date than provided in the Scheduling Order including, inter alia, his intention to file a new motion under Rule 115 of the Tribunal’s Rules of Procedure and Evidence (“Rules”) as well to invite the Bar Counsel of England and Wales Human Rights Committee to attend and observe the Appeals Hearing;[1]

CONSIDERING that under Rule 115(A) of the Rules, the parties may file motions for admission of additional evidence on appeal after the appeal hearing, provided that cogent reasons are shown for such a delay;

CONSIDERING that a party’s intention to invite a third-party observer to the appeals hearing and the availability of that third-party on certain dates are not factors that the Appeals Chamber is required to take into consideration when setting the date for an appeals hearing;

CONSIDERING that since the Appeals Chamber’s Decision of 23 November 2006[2] upheld the President’s decision to refuse the withdrawal of the Appellant’s Co-Counsel, the arguments in the Motion in relation to the absence of the Co-Counsel[3] are moot;

CONSIDERING that in light of the amendments to the Rules, which entered into force on 10 November 2006, the Appellant’s arguments with respect to logistical problems in relation to the preparation of the Appeal Books on or before 18 December 2006[4] are moot, since the Rules no longer place such an obligation on the parties;[5]

FINDING therefore that the Appellant has failed to establish good cause for the Appeals Chamber delaying the Appeals Hearing as set in the Scheduling Order […]

[1] Motion, paras 2 and 3.

[2] 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.

[3] Motion, paras 4-7.

[4] Motion, para. 7.

[5] Cf. Decision on the Prosecutor’s Motion to Be Relieved from Filing the Appeal Book and Book of Authorities, 27 November 2006, p. 2. 

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Notion(s) Filing Case
Decision on Scheduling Order - 05.12.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

P. 5: CONSIDERING that no statutory or regulatory provision of the Tribunal allows for the “right” of an appellant who is represented by counsel to personally address the Appeals Chamber[1] but […] the Appeals Chamber has, in practice, allowed for such an option as a matter of courtesy to appellants;

FINDING that the Appellant has failed to demonstrate in the Motion that it is in the interests of justice to allow the Appellant to surpass the time allocated to him by the Scheduling Order for the personal address; […]

[1] See Scheduling Order, p. 3; Decision on Hassan Ngeze’s Motions Concerning Restrictive Measures of Detention, 20 September 2006, p. 7. 

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Notion(s) Filing Case
Decision on Scheduling Order - 05.12.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

P. 4: RECALLING that the parties are to focus their oral arguments on the grounds of appeal raised in their briefs[1] and that the appeals hearing is not the occasion for presenting new arguments on the merits of the case;

RECALLING further that, during the hearing of an appeal, the parties are expected “to prepare themselves in such a way as not simply to recount what has been set out in their written submission, but to confine their oral arguments to elaborating on points relevant to this appeal that they wish to bring to the Appeals Chamber’s attention”;[2]

[1] Cf. the Appellant’s arguments in paras 12, 18 and 19 of the Motion.

[2] Prosecutor v. Blagoje Simić, Case No. IT-95-9-A, Order Re-Scheduling Appeal Hearing, 5 May 2006, p. 6.

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Notion(s) Filing Case
Decision on Scheduling Order - 05.12.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

P. 4: CONSIDERING that there exists no provision in the Tribunal’s Statute, Rules or Practice Directions as to the exact time to be allocated for the parties’ oral submissions on appeal, and that such decisions are taken by the Appeals Chamber on a case-by-case basis; […]

CONSIDERING that the Scheduling Order was issued by the Appeals Chamber under Rule 114 of the Rules in full consideration of the particular circumstances and complexity of the present case in accordance with the practice of the Tribunal;

FINDING therefore that the Appellant has failed to demonstrate any need, in the interests of justice, for the Appeals Chamber to allow more time than that allotted for the parties’ oral submissions on the merits at the Appeals Hearing in the Scheduling Order;

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Notion(s) Filing Case
Decision on Scheduling Order - 05.12.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

P. 5: CONSIDERING that parties may use and/or formally present skeleton arguments, slides or schedules to the Appeals Chamber in support of their oral arguments, provided that they contain no new arguments on the merits of the case and that the opposing party does not object; [1]

CONSIDERING, however, that the Appeals Chamber is not in a position to decide whether the use of the documents referred to by the Appellant shall be allowed, since they were not presented with the Motion; […]

[1] E.g., The Prosecutor v. Goran Jelisić, Case No. IT-95-10-A, Public Transcript of Hearing (Cross-Appeal on Sentence), 22 and 23 February 2001, pp 37, 198, 199 and 245; Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Transcript of Hearing of 17 May 2004 (Appeal Proceedings-Open session), pp 187, 255, 257-259, 283-285; Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Transcript of Hearing of 19 May 2004 (Appeal Proceedings-Open session), pp 574-575, 577-578, 608-609; The Prosecutor v. Blagoje Simić, Case No. IT-95-9-A, Public Transcript of Hearing of 2 June 2006 (Appeal Proceedings-Open session), pp 40-42.

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Notion(s) Filing Case
Decision on Leave to Respond to Oral Arguments - 05.03.2007 BRALO Miroslav
(IT-95-17-A)

18. In fairness to the Appellant, the Appeals Chamber has reviewed the Prosecution arguments submitted at the Appeal Hearing that the Appellant claims to be new and “quite important”,[1] and notes that it is true that some of these arguments have not been raised by the Prosecution in its Respondent’s Brief or other previous filings. However, the Appeals Chamber finds that, even if theses new arguments were to be taken into account by the Appeals Chamber (a question that the Appeals Chamber need not address here), the Appellant would not suffer any prejudice by not having been authorized to reply to them in writing. The Appeals Chamber emphasizes that the present decision should not be interpreted as prejudging in any way the admissibility or success of the arguments contained in other briefs and submissions made by the parties in the present case.

[1] Appellant’s Motion, para. 7.a.

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Notion(s) Filing Case
Decision on Leave to Respond to Oral Arguments - 05.03.2007 BRALO Miroslav
(IT-95-17-A)

16. The Appellant claims that, at the Appeal Hearing, the Prosecution raised new important factual challenges. The Appeals Chamber is of the view that the Appellant had the opportunity to object to the Prosecution’s allegedly new arguments during the Appeal Hearing but did not do so. […]Even if the Appellant was not in a position to exhaustively reply to those arguments at the Appeal Hearing, it was open to him to make a reasoned objection at the Appeal Hearing and, in case any allegedly new arguments had nevertheless been allowed by the Appeals Chamber, he should have sought leave, at the Appeal Hearing, to respond to them in writing at a later stage.[1]

17. The Appeals Chamber is not satisfied that the Appellant has shown that filing a written reply to the Prosecution’s allegedly new arguments raised at the Appeal Hearing would be necessary or justified in the present case. This type of submission is not provided for by the Rules or Practice Directions of the Tribunal and could only be allowed in rather exceptional circumstances.

[1] Cf., e.g. Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Appeal Hearing, AT. 18 January 2007, pp. 15-16, The Prosecutor’s Motion to Pursue the Oral Request for the Appeals Chamber to Disregard Certain Arguments Made by Counsel for Appellant Barayagwiza at the Appeals Hearing on 17 January 2007, 6 February 2007, and Decision on the Prosecutor’s Motion to Pursue the Oral Request for the Appeals Chamber to Disregard Certain Arguments Made by Counsel for Appellant Barayagwiza at the Appeals Hearing on 17 January 2007, 5 March 2007.

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Notion(s) Filing Case
Decision on Leave to Respond to Oral Arguments - 05.03.2007 BRALO Miroslav
(IT-95-17-A)

15. The Appeals Chamber recalls that parties at an appeal hearing are, as a general rule, invited to “confine their oral arguments to elaborating on points relevant to [their] appeal[s] that they wish to bring to the Appeals Chamber’s attention”.[1] Therefore, unless specifically authorized by the Appeals Chamber, the parties should not raise new arguments that are not contained in their written briefs. The Prosecution, a respondent in the present appeal, was, in addition, supposed to limit its oral arguments to those in response to the Appellant’s submission.

[1] Prosecutor v. Blagoje Simić, Case No. IT-95-9-A, Order Re-scheduling Appeal Hearing, 5 May 2006, p. 4 (emphasis added).

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Notion(s) Filing Case
Decision on Conflict of Interest (Markač) - 04.05.2007 GOTOVINA et al.
(IT-06-90-AR73.1)

14. In addition, the Appellant requests an oral hearing for the purpose of advancing arguments relating to this ground of appeal. In view of the extensive submissions made and filed by the parties before both the Trial Chamber and the Appeals Chamber and the substantial discussion in the First and Second Impugned Decisions of the issues now under appeal, the Appeals Chamber does not consider it necessary to hold an oral hearing on the Appeal.

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Notion(s) Filing Case
Decision on Assignment of Standby Counsel for the Appeal Hearing - 11.10.2017 ŠEŠELJ Vojislav
(MICT-16-99-A)

Page 2

CONSIDERING that standby counsel shall have access to the inter partes record of the appeal proceedings in order to prepare for the hearing;

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