Reconsideration

Notion(s) Filing Case
Reconsideration of Jurisdiction Decision - 15.06.2006 ŠEŠELJ Vojislav
(IT-03-67-AR72.1)

The Appeals Chamber listed numerous authorities from both the ICTY and the ICTR for its inherent power to reconsider its own interlocutory appeals decisions (para. 9):

The Appeals Chamber has confirmed in numerous cases its inherent power to reconsider its own interlocutory decisions in exceptional circumstances “if a clear error of reasoning has been demonstrated or if it is necessary to do so in order to prevent an injustice”.[1]

[1] Ferdinand Nahimana et al v. Prosecutor, Case No. ICTR-99-52-A, Decision on Jean-Bosco Barayagwiza’s Request for Reconsideration of Appeals Chamber Decision, 4 February 2005, p. 2; see also e.g. Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision on Prosecutor's Request for Review or Reconsideration, 31 March 2000, paras 18 and 73; Kanyabashi v. Prosecutor, Case No. ICTR 96-15-AR72, Decision on Motion for Review or Reconsideration, 12 September 2000, p. 3; Prosecutor v. Jean-Bosco Bagosora et al., Case No. ICTR-98-41-A, Decision on Interlocutory Appeal from Refusal to Reconsider Decisions Relating to Protective Measures and Application for a Declaration of Lack of Jurisdiction, 2 May 2002, paras 6 and 10; Niyitegeka v. Prosecutor, Case No. ICTR-96-14-A, Decision on Defence Extremely Urgent Motion for Reconsideration of Decision Dated 16 December 2003, 19 December 2003, p. 4; Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Decision on Defence’s Request for Reconsideration, 16 July 2004, p. 2.

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Decision on Reopening Appeal - 07.06.2007 STRUGAR Pavle
(IT-01-42-Misc.1)

22. […] In general, the Appeals Chamber has the power to reconsider past decisions, particularly “where it was realized that the previous decision was erroneous or where it has caused an injustice.”[1] […]

23. […] It is clear that the Appeals Chamber normally has the power to reconsider its prior decisions.[2] […] While the Appeals Chamber once held that it has the inherent power to reconsider final judgements,[3] it has since taken a different position and held that there is no inherent power to reconsider final judgements.[4]

[1] Prosecutor v. Stanislav Galić, Case No. IT-98-29-AR73, Decision on Application by Prosecution for Leave to Appeal, 14 December 2001 (“Galić Decision”), para. 13.

[2] Prosecutor v. Zdravko Mucić et al, Case No. IT-96-21-Abis, Judgement on Sentence Appeal, 8 April 2003 (“Čelebići Decision”), para. 49; Prosecutor v. Zoran Žigić, Case No. IT-98-30/1-A, Decision on Zoran Žigić’s ‘Motion for Reconsideration of Appeals Chamber Judgement IT-98-30/1-A Delivered on 28 February 2005’, 26 June 2006 (“Žigić Decision”), para. 9.

[3] Čelebići Decision [Prosecutor v. Zdravko Mucić et al, Case No. IT-96-21-Abis, Judgement on Sentence Appeal, 8 April 2003], paras 49-53.

[4] Žigić Decision [Prosecutor v. Zoran Žigić, Case No. IT-98-30/1-A, Decision on Zoran Žigić’s ‘Motion for Reconsideration of Appeals Chamber Judgement IT-98-30/1-A Delivered on 28 February 2005’, 26 June 2006], para. 9; see also Prosecutor v. Eliézer Niyitegeka, Case No. ICTR-96-14-R, Decision on Request for Reconsideration of the Decision on Request for Review, 27 September 2006, pp. 1-2; Prosecutor v. Timohir Blaškić, Case No. IT-95-14-R, Decision on Prosecutor’s Request for Review or Reconsideration, 23 November 2006, para. 79 (Public Redacted Version); Georges Anderson Nderubumwe Rutaganda v. Prosecutor, Case No. ICTR-96-03-R, Decision on Requests for Reconsideration, Review, Assignment of Counsel, Disclosure, and Clarification, 8 December 2006, para. 6. 

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Decision on Reopening Appeal - 07.06.2007 STRUGAR Pavle
(IT-01-42-Misc.1)

25. […] Accordingly, the Appeals Chamber concludes that it has the power to reconsider the Decision Accepting Withdrawals in the same way that it has the power to reconsider other decisions that do not constitute judgements on the merits.[1]

[1] This conclusion is supported by the Barayagwiza Decision [Jean-Bosco Barayagwiza v. Prosecutor, Case No. ICTR-97-19-AR72, Decision (Prosecutor’s Request for Review or Reconsideration), 31 March 2000].  There, in considering a case that had been finalized through means other than a judgement on the merits, the Appeals Chamber neither indicated that reconsideration lay outside its power nor suggested that there was an unusually heightened standard for reconsideration.  Barayagwiza Decision para. 73 (simply rejecting the motion for reconsideration on the merits).

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Decision on Reopening Appeal - 07.06.2007 STRUGAR Pavle
(IT-01-42-Misc.1)

24. In both the Čelebići Decision and the Žigić Decision, the Appeals Chamber appeared to presume that the “final judgements” on appeal were indeed appeal judgements in the classic sense of the word – namely, reviews on the merits of the trial judgements.  The Žigić Decision, for example, emphasized that reconsideration was unwarranted with regard to “a person whose conviction has been confirmed on appeal”.[1] It did not consider whether reconsideration was similarly unwarranted with regard to a person whose appeal terminated by another means and who thus did not receive full benefit of an appeal process that he had initiated.  Similarly, in discussing the special context of reconsideration of final judgements, the Čelebići Decision assumed that it spoke of a “final judgement” on the merits.[2]

[1] Žigić Decision [Prosecutor v. Zoran Žigić, Case No. IT-98-30/1-A, Decision on Zoran Žigić’s ‘Motion for Reconsideration of Appeals Chamber Judgement IT-98-30/1-A Delivered on 28 February 2005’, 26 June 2006], para. 9.

[2] See Čelebići Decision [Prosecutor v. Zdravko Mucić et al, Case No. IT-96-21-Abis, Judgement on Sentence Appeal, 8 April 2003], para. 51 (considering a “judgement” of the Appeals Chamber to be one “which invalidates the Trial Chamber’s decision or an error of fact which has occasioned a miscarriage of justice”).

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Notion(s) Filing Case
Decision on Consolidated Motion - 08.12.2006 RUTAGANDA George
(ICTR-96-03-R)

At para. 6, the Appeals Chamber confirmed that it has no power to reconsider final judgments.

See Prosecutor v. Zoran Žigić, Case No. IT-98-30/1-A, Decision on Zoran Žigić’s “Motion for Reconsideration of Appeals Chamber Judgement IT-98-30/1-A Delivered on 28 February 2005”, 26 June 2006; Prosecutor v. Eliézer Niyitegeka, Case No. ICTR-96-14-R, Decision on Request for Reconsideration of the Decision on Request for Review, 27 September 2006 (“Niyitegeka Reconsideration Decision”).

 

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Notion(s) Filing Case
Appeal Judgement - 23.05.2005 KAJELIJELI Juvénal
(ICTR-98-44A-A)

202. The parties have addressed the effects of these prior interlocutory appeals decisions by reference to the doctrine of res judicata. This doctrine refers to a situation when “a final judgement on the merits” issued by a competent court on a claim, demand or cause of action between parties constitutes an absolute bar to “a second lawsuit on the same claim” between the same parties.[1] The doctrine of res judicata is not directly applicable to this case, because it applies not to the effects of prior interlocutory appeals decisions on further proceedings in the same case, but instead to the effects of final judgements in one case on proceedings in a subsequent and different case.[2] However, a similar principle applies to cases like this one: the Appeals Chamber ordinarily treats its prior interlocutory decisions as binding in continued proceedings in the same case as to all issues definitively decided by those decisions. This principle prevents parties from endlessly relitigating the same issues, and is necessary to fulfil the very purpose of permitting interlocutory appeals: to allow certain issues to be finally resolved before proceedings continue on other issues.

203. There is an exception to this principle, however. In a Tribunal with only one tier of appellate review, it is important to allow a meaningful opportunity for the Appeals Chamber to correct any mistakes it has made.[3] Thus, under the jurisprudence of this Tribunal, the Appeals Chamber may reconsider a previous interlocutory decision under its “inherent discretionary power” to do so “if a clear error of reasoning has been demonstrated or if it is necessary to do so to prevent an injustice.”[4]

[1] Black’s Law Dictionary (8th ed. 2004). A limited exception to the doctrine of res judicata barring review of final judgements is found under Article 25 of the Statute and Rules 120 and 121 of the Rules whereby a final judgement may be reviewed when a new fact is discovered that was not known at the time of the original proceedings either before the Trial or Appeals Chambers, could not have been discovered through the exercise of due diligence, and could have been a decisive factor in reaching the final decision.

[2] Under this Tribunal’s jurisprudence, interlocutory appeal decisions are not considered “final judgements” unless they terminate the proceedings between the parties, which is not the case here. See Barayagwiza, Decision (Prosecutor’s Request for Review or Reconsideration), paras. 49, 51.

[3] Cf. Čelebići Case Sentencing Appeal Judgement, paras. 48-60.

[4] Nahimana et al [Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A], Decision on Jean-Bosco Barayagwiza’s Request for Reconsideration of Appeals Chamber Decision of 19 January 2005, [4 February 2005], p. 2. 

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Decision on Amicus Prosecutor - 08.12.2015 KAMUHANDA Jean de Dieu
(MICT-I3-33-AR90/108.1)

15.     To the extent that Kamuhanda’s request before the Single Judge may have been based on new circumstances, demonstrating an injustice, that have emerged after the Kamuhanda Decision of 25 August 2011 [Jean de Dieu Kamuhanda v. The Prosecutor, Case No. ICTR-99-54A-R, Decision on Request for Review, 25 August 2011] was rendered, it amounted to a request for a reconsideration of the ICTR Appeals Chamber’s decision on the matter of the contempt investigations.[1] The Appeals Chamber recalls that the Mechanism’s mandate is to continue the jurisdiction, rights and obligations, and essential functions of the ICTR and the ICTY and that in doing so, it is bound to consider the relevant precedents of the ad hoc tribunals.[2] Accordingly, while decisions of the ICTR Appeals Chamber, as correctly noted in the Impugned Decision, retain their validity before the Mechanism, applicants are not barred from seeking reconsideration of such decisions before the Mechanism, where appropriate.

16.     It is well established in the jurisprudence of the ad hoc tribunals that the Appeals Chamber has inherent discretionary power to reconsider a previous non-final decision if a clear error of reasoning has been demonstrated or if it is necessary in order to prevent an injustice.[3] The Appeals Chamber shall not reconsider final decisions terminating the proceedings in a case.[4] Such decisions include final judgements[5] and decisions denying requests for review.[6] The Appeals Chamber considers that the Kamuhanda Decision of 25 August 2011, in the part concerning the matter of the contempt investigations, does not belong to either category and that it may be subject to reconsideration before the Mechanism. Nevertheless, the Appeals Chamber emphasizes that the principle of finality dictates that the discretionary power to reconsider previous decisions should be exercised sparingly and a party must therefore meet a high threshold in its request for reconsideration.[7]

17.     The Appeals Chamber recalls, however, that a request for reconsideration, by definition, has to be made before the chamber that rendered the impugned decision.[8] Considering that the Statute of the Mechanism and the Rules reflect normative continuity with the Statute and the Rules of Procedure and Evidence of the ICTR,[9] the Appeals Chamber observes that the proper forum for a request for reconsideration of a decision rendered by the ICTR Appeals Chamber is the Appeals Chamber of the Mechanism. […]

[1] See Motion for Appointment of Amicus Curiae [The Prosecutor v. Jean de Dieu Kamuhanda, Case No. MICT-13-33, Motion for Appointment of Amicus Curiae Prosecutor to Investigate Prosecution Witness GEK, 2 August 2015 (with public annexes A-D and confidential annex E)], para. 13; Appeal [Prosecutor v. Jean de Dieu Kamuhanda, Case No. MICT-13-33-AR90/108, Appeal of Decision on Jurisdiction to Investigate Prosecution Witness GEK, 15 October 2015], para. 45.

[2] Phénéas Munyarugarama v. Prosecutor, Case No. MICT-12-09-AR14, Decision on Appeal Against the Referral of Phénéas Munyarugarama’s Case to Rwanda and Prosecution Motion to Strike, 5 October 2012 (“Munyarugarama Decision of 5 October 2012”), paras. 4, 6.

[3] Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-A, Decision on Motions for Reconsideration, 5 September 2014 (“Prlić Decision of 5 September 2014”), p. 3; Ferdinand Nahimana v. The Prosecutor, Case No. ICTR-99-52B-R, Decision on Ferdinand Nahimana’s Motion for Reconsideration of the Decision of 27 September 2011 and of his Sentence, 29 June 2012, p. 3; Jean Uwinkindi v. The Prosecutor, Case No. ICTR-01-75-AR11bis, Decision on Uwinkindi’s Motion for Review or Reconsideration of the Decision on Referral to Rwanda and the Related Prosecution Motion, 23 February 2012 (“Uwinkindi Decision of 23 February 2012”), para. 11, referring to Juvénal Kajelijeli v. The Prosecutor, Case No. ICTR-98-44A-A, Judgement, 23 May 2005, para. 203; Aloys Ntabakuze v. The Prosecutor, Case No. ICTR-98-41A-A, Decision on Peter Erlinder’s Motion to Reconsider Order Imposing Sanctions, 1 September 2011, p. 3.

[4] See Uwinkindi Decision of 23 February 2012, para. 10, referring to Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Décision relative à la requête de l’appelant Jean-Bosco Barayagwiza demandant l’examen de la requête de la Défense datée du 28 juillet 2000 et réparation pour abus de procédure, 23 June 2006, para. 21; Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R, Decision on Request for Reconsideration of the Decision on Request for Review, 27 September 2006 (“Niyitegeka Decision of 27 September 2006”), p. 3, referring to Jean Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision (Prosecutor’s Request for Review or Reconsideration), signed on 31 March 2000, filed on 7 April 2000, para. 49. Cf. Prosecutor v. Pavle Strugar, Case No. IT-01-42-Misc.1, Decision on Strugar’s Request to Reopen Appeal Proceedings, 7 June 2007, para. 25.

[5] Prosecutor v. Mile Mrkšić and Veselin [ljivančanin, Case No. IT-95-13/1-A, Decision on Motion on Behalf of Veselin [ljivančanin Seeking Reconsideration of the Judgement Rendered by the Appeals Chamber on 5 May 2009 – or an Alternative Remedy, 8 December 2009, p. 2; Hassan Ngeze v. The Prosecutor, Case No. ICTR-99-52-R, Decision on Hassan Ngeze’s Motions and Requests Related to Reconsideration, 31 January 2008, p. 3; Georges Anderson Nderubumwe Rutaganda v. The Prosecutor, Case No. ICTR-96-03-R Decision on Requests for Reconsideration, Review, Assignment of Counsel, Disclosure, and Clarification, 8 December 2006, para. 6; Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-R, Decision on Prosecutor’s Request for Review or Reconsideration, 23 November 2006 (public redacted version), paras. 79, 80; Prosecutor v. Zoran Žigić a/k/a “Ziga”, Case No. IT-98-30/1-A, Decision on Zoran Žigić’s “Motion for Reconsideration of Appeals Chamber Judgement IT-98-30/1-A Delivered on 28 February 2005”, 26 June 2006, para. 9.

[6] Eliézer Niyitegeka v. Prosecutor, Case No. MICT-12-16-R, Decision on Niyitegeka’s Request for Assignment of Counsel, 6 November 2014, para. 11, referring to François Karera v. Prosecutor, Case No. MICT-12-24-R, Decision on Request for Assignment of Counsel, 4 December 2012, para. 11; François Karera v. The Prosecutor, Case No. ICTR-01-74-R, Decision on Requests for Reconsideration and Review, 26 March 2012, para. 8; Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R, Decision on Motion for Reconsideration of Fifth Review Decision, 25 March 2010, para. 5; Niyitegeka Decision of 27 September 2006, pp. 2, 3.

[7] Prlić Decision of 5 September 2014, p. 3, referring to Prosecutor v. Mićo Stanišić and Stojan Župljanin, Case No. IT-08-91-A, Decision on Mićo Stanišić’s Motion Seeking Reconsideration of Decision on Stanišić’s Motion for Declaration of Mistrial and Župljanin’s Motion to Vacate Trial Judgement, 24 July 2014, para. 12.

[8] Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-A & IT-95-5/18-T, Decision on Motion by Radovan Karadžić for Reconsideration of Decision on Motion for Access to Confidential Materials in the Stanišić and Simatović Case, 16 February 2015, p. 2, referring to Prosecutor v. Milan Lukić and Sredoje Lukić, Case No. IT-98-32/1-A, Decision on the Prosecution’s “Motion for Reconsideration and Rescission of the Order to Disclose Issued in Trial Chamber’s ‘Decision on Motion by Radovan Karadžić for Access to Confidential Materials in the Lukić and Lukić Case’ of 10 July 2009“, 7 December 2009, para. 4.

[9] Munyarugarama Decision of 5 October 2012, para. 5.

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Notion(s) Filing Case
Decision on Reconsideration of Decision for Review - 27.09.2006 NIYITEGEKA Eliézer
(ICTR-96-14-R)

In this decision, the ICTR Appeals Chamber rejected Niyitegeka’s request to reconsider its prior denial of a request for review of the appeals judgement. By majority, the Appeals Chamber applied the position taken in Prosecutor v. Zoran Žigić wherein the ICTY Appeals Chamber held that it has “no power to reconsider a final judgement” because it is inconsistent with the Statute of the International Tribunal to provide a “second right of appeal by the avenue of reconsideration of a final judgement.”[1] The Appeals Chamber reasoned that a final judgement is a decision that terminates the proceedings in a case and held that, because its decision on Niyitegeka’s request for review was a final decision closing the proceedings in this case, it would not reconsider this decision.

Paras 1-5: In a separate declaration, Judge Shahabuddeen agreed with the Appeals Chamber’s conclusion that Niyitegeka’s request for reconsideration should be denied; however, he based his decision on the merits of Niyitegeka’s application. Judge Shahabuddeen disagreed with the majority’s view that it may not reconsider a decision on request for review arguing that the Appeals Chamber does in fact have jurisdiction to reconsider such a decision, which is not subject to any further appeal or review proceedings, in order to correct a clear miscarriage of justice. Judge Shahabuddeen noted that while the reconsideration of a decision on a request for review should be limited to exceptional circumstances, it should not be precluded altogether.

Paras 1-4: In a separate opinion, Judge Meron also agreed that Niyitegeka’s request for reconsideration should be dismissed. However, as he did not participate in the Žigić decision, he reached this conclusion solely on the grounds that Niyitegeka’s arguments failed to meet the requirements necessary to obtain reconsideration. Before addressing the merits of Niyitegeka’s request, Judge Meron expressly reserved his position on whether the Appeals Chamber may reconsider its final judgements.

[1] See Žigić Decision on Reconsideration of Appeal Judgement, 26 June 2006 (full text and summary provided in the AC Case Law Research Tool).

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ICTR Rule Rule 120 ICTY Rule Rule 119
Notion(s) Filing Case
Reconsideration Decision - 23.02.2012 UWINKINDI Jean
(ICTR-01-75-AR11bis)

9. Mr. Uwinkindi seeks either review or reconsideration of the [Decision on Uwinkindi’s Appeal Against the Referral of his Case to Rwanda and Related Motions, 16 December 2011 (“Decision of 16 December 2011”)], a request which he acknowledges is without precedent with regard to a decision under Rule 11bis of the Rules.[1] […]

10. The Appeals Chamber recalls that review proceedings are governed by Article 25 of the Statute of the Tribunal (“Statute”) and by Rules 120 and 121 of the Rules.[2] The Appeals Chamber considers that only a final judgement – a decision which puts an end to proceedings – can be reviewed pursuant to Article 25 of the Statute and Rule 120 of the Rules.[3] Accordingly, the Decision of 16 December 2011 is not subject to review.

11. As Mr. Uwinkindi acknowledges,[4] the Appeals Chamber considers that an appeal pursuant to Rule 11bis of the Rules is more akin to an interlocutory appeal than to an appeal from judgement.[5] The Appeals Chamber may reconsider a previous interlocutory decision under its inherent discretionary power to do so “if a clear error of reasoning has been demonstrated or if it is necessary to do so to prevent an injustice”.[6] Accordingly, the Appeals Chamber will proceed to consider the Uwinkindi Motion as a request for reconsideration.

15. The Appeals Chamber finds that Mr. Uwinkindi has not demonstrated a clear error of reasoning in the Decision of 16 December 2011 warranting reconsideration. […]

[1] [Defence Extremely Urgent Motion for Review or Reconsideration of the Decision of 16 December 2011 on Uwinkindi’s Appeal Against the Referral of his Case to Rwanda, 25 January 2012 (“Uwinkindi Motion”)], paras. 1, 21, 22; [Defence Reply to Opposition to Defence Extremely Urgent Motion for Review or Reconsideration of the Decision of 16 December 2011 on Uwinkindi’s Appeal Against the Referral of his Case to Rwanda and Motion to Vacate Interim Order, 7 February 2012 (“Uwinkindi Reply”)], paras. 6, 7.

[2] See François Karera v. The Prosecutor, Case No. ICTR-01-74-R, Decision on Requests for Review and Assignment of Counsel, 28 February 2011, para. 9 (and references therein).

[3] Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Décision relative à la requête de l’appelant Jean-Bosco Barayagwiza demandant l’examen de la requête de la Défense datée du 28 juillet 2000 et réparation pour abus de procédure, 23 June 2006, para. 21; Jean Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision (Prosecutor’s Request for Review or Reconsideration), 31 March 2000 (English translation of the French original filed on 7 April 2000), para. 49; Rule 120(A) of the Rules.

[4] See Uwinkindi Reply, para. 6 (“Rule 11bis proceedings are strictly speaking interlocutory in nature.”). Mr. Uwinkindi contends, however, that such decisions have a “far greater element of finality” than other interlocutory proceedings, given the unlikelihood that revocation would ever be ordered. See Uwinkindi Reply, para. 6. The Appeals Chamber considers that this point of distinction is speculative and, in any event, inconsistent with the Appeals Chamber’s explicit provision for the case to remain trial ready at the Tribunal in the event of any possible revocation. See Decision of 16 December 2011, para. 88. See also, e.g., The Prosecutor v. Michel Bagaragaza, Case No. ICTR-05-86-11bis, Decision on Prosecutor’s Extremely Urgent Motion for Revocation of the Referral to the Kingdom of the Netherlands Pursuant to Rule 11 Bis (F) & (G), 17 August 2007, p. 5 (disposition) (revoking referral of a case to the Kingdom of the Netherlands).

[5] See Prosecutor v. Željko Mejakić et al., Case No. IT-02-65-AR11bis.1, Decision on Joint Defense Motion to Admit Additional Evidence Before the Appeals Chamber Pursuant to Rule 115, 16 November 2005, para. 6; Prosecutor v. Radovan Stanković, Case No. IT-96-23/2-AR11bis.1, Decision on Defence Application for Extension of Time to File Notice of Appeal, 9 June 2005, paras. 14-16, cited with approval in The Prosecutor v. Michel Bagaragaza, Case No. ICTR-05-86-AR11bis, Decision on the Prosecution’s Request for a Scheduling Order, 8 June 2006, paras. 3, 4.

[6] Juvénal Kajelijeli v. The Prosecutor, Case No. ICTR-98-44A-A, Judgement, 23 May 2005, para. 203 (internal quotation marks omitted). See also, e.g., Aloys Ntabakuze v. The Prosecutor, Case No. ICTR-98-41A-A, Decision on Peter Erlinder’s Motion to Reconsider Order Imposing Sanctions, 1 September 2011, p. 3 (and references therein).

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Reconsideration Decision - 23.02.2012 UWINKINDI Jean
(ICTR-01-75-AR11bis)

9. Mr. Uwinkindi seeks either review or reconsideration of the [Decision on Uwinkindi’s Appeal Against the Referral of his Case to Rwanda and Related Motions, 16 December 2011 (“Decision of 16 December 2011”)], a request which he acknowledges is without precedent with regard to a decision under Rule 11bis of the Rules.[1] […]

10. The Appeals Chamber recalls that review proceedings are governed by Article 25 of the Statute of the Tribunal (“Statute”) and by Rules 120 and 121 of the Rules.[2] The Appeals Chamber considers that only a final judgement – a decision which puts an end to proceedings – can be reviewed pursuant to Article 25 of the Statute and Rule 120 of the Rules.[3] Accordingly, the Decision of 16 December 2011 is not subject to review.

11. As Mr. Uwinkindi acknowledges,[4] the Appeals Chamber considers that an appeal pursuant to Rule 11bis of the Rules is more akin to an interlocutory appeal than to an appeal from judgement.[5] The Appeals Chamber may reconsider a previous interlocutory decision under its inherent discretionary power to do so “if a clear error of reasoning has been demonstrated or if it is necessary to do so to prevent an injustice”.[6] Accordingly, the Appeals Chamber will proceed to consider the Uwinkindi Motion as a request for reconsideration.

15. The Appeals Chamber finds that Mr. Uwinkindi has not demonstrated a clear error of reasoning in the Decision of 16 December 2011 warranting reconsideration. […]

[1] [Defence Extremely Urgent Motion for Review or Reconsideration of the Decision of 16 December 2011 on Uwinkindi’s Appeal Against the Referral of his Case to Rwanda, 25 January 2012 (“Uwinkindi Motion”)], paras. 1, 21, 22; [Defence Reply to Opposition to Defence Extremely Urgent Motion for Review or Reconsideration of the Decision of 16 December 2011 on Uwinkindi’s Appeal Against the Referral of his Case to Rwanda and Motion to Vacate Interim Order, 7 February 2012 (“Uwinkindi Reply”)], paras. 6, 7.

[2] See François Karera v. The Prosecutor, Case No. ICTR-01-74-R, Decision on Requests for Review and Assignment of Counsel, 28 February 2011, para. 9 (and references therein).

[3] Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Décision relative à la requête de l’appelant Jean-Bosco Barayagwiza demandant l’examen de la requête de la Défense datée du 28 juillet 2000 et réparation pour abus de procédure, 23 June 2006, para. 21; Jean Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision (Prosecutor’s Request for Review or Reconsideration), 31 March 2000 (English translation of the French original filed on 7 April 2000), para. 49; Rule 120(A) of the Rules.

[4] See Uwinkindi Reply, para. 6 (“Rule 11bis proceedings are strictly speaking interlocutory in nature.”). Mr. Uwinkindi contends, however, that such decisions have a “far greater element of finality” than other interlocutory proceedings, given the unlikelihood that revocation would ever be ordered. See Uwinkindi Reply, para. 6. The Appeals Chamber considers that this point of distinction is speculative and, in any event, inconsistent with the Appeals Chamber’s explicit provision for the case to remain trial ready at the Tribunal in the event of any possible revocation. See Decision of 16 December 2011, para. 88. See also, e.g., The Prosecutor v. Michel Bagaragaza, Case No. ICTR-05-86-11bis, Decision on Prosecutor’s Extremely Urgent Motion for Revocation of the Referral to the Kingdom of the Netherlands Pursuant to Rule 11 Bis (F) & (G), 17 August 2007, p. 5 (disposition) (revoking referral of a case to the Kingdom of the Netherlands).

[5] See Prosecutor v. Željko Mejakić et al., Case No. IT-02-65-AR11bis.1, Decision on Joint Defense Motion to Admit Additional Evidence Before the Appeals Chamber Pursuant to Rule 115, 16 November 2005, para. 6; Prosecutor v. Radovan Stanković, Case No. IT-96-23/2-AR11bis.1, Decision on Defence Application for Extension of Time to File Notice of Appeal, 9 June 2005, paras. 14-16, cited with approval in The Prosecutor v. Michel Bagaragaza, Case No. ICTR-05-86-AR11bis, Decision on the Prosecution’s Request for a Scheduling Order, 8 June 2006, paras. 3, 4.

[6] Juvénal Kajelijeli v. The Prosecutor, Case No. ICTR-98-44A-A, Judgement, 23 May 2005, para. 203 (internal quotation marks omitted). See also, e.g., Aloys Ntabakuze v. The Prosecutor, Case No. ICTR-98-41A-A, Decision on Peter Erlinder’s Motion to Reconsider Order Imposing Sanctions, 1 September 2011, p. 3 (and references therein).

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Appeal Judgement - 07.07.2006 NTAGERURA et al. (Cyangugu)
(ICTR-99-46-A)

The Appeals Chamber confirmed that a Trial Chamber is entitled to reconsider previous decisions after the closing arguments of the parties. However, in such a case the Trial Chamber has to carefully consider the impact of its reconsideration on the aspects of the procedure which were affected by its initial decision. In the present case, the Trial Chamber was obliged to reopen the debate to give the parties the opportunity to present their view on the issue (para. 55):

55.     It is apparent from the foregoing that the Trial Chamber reconsidered in the Trial Judgement some of the findings it had made in certain pre-trial decisions on the form of the Indictments. This does not in itself constitute an error, as it is within the discretion of a Trial Chamber to reconsider a decision it has previously made if a clear error of reasoning has been demonstrated or if it is necessary to do so to prevent an injustice. However, the Appeals Chamber emphasises that “where such a decision is changed, there will be a need in every case for the Trial Chamber to consider with great care and to deal with the consequences of the change upon the proceedings which have in the meantime been conducted in accordance with the original decision”. In the present case, the Appeals Chamber considers that, once the Trial Chamber decided to reconsider its pre-trial decisions relating to the specificity of the Indictments at the stage of deliberations, it should have interrupted the deliberation process and reopened the hearings. At such an advanced stage of the proceedings, after all the evidence had been heard and the parties had made their final submissions, the Prosecution could not move to amend the Indictment. On the other hand, reopening the hearings would have allowed the Prosecution to try to convince the Trial Chamber of the correctness of its initial pre-trial decisions on the form of the Indictment, or to argue that any defects had since been remedied. The Appeals Chamber finds that the Trial Chamber erred in remaining silent on its decision to find the abovementioned parts of the Indictments defective until the rendering of the Trial Judgement.

[1] Prosecutor v. Stanislav Galić, Case No. IT-98-29-AR73, Decision on Application by Prosecution for Leave to Appeal, 14 December 2001, at para. 13.

[2] Kajelijeli Appeal Judgement, paras. 203 and 204.

[3] Prosecutor v. Stanislav Galić, Case No. IT-98-29-AR73, Decision on Application by Prosecution for Leave to Appeal, 14 December 2001, at para. 13.

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Notion(s) Filing Case
Decision on Additional Evidence - 05.05.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

8. The Appeals Chamber considers that the Appellant’s request for clarification is in fact a motion for reconsideration of the Decision of 23 January 2006 and finds that none of the arguments raised by the Appellant establish cause for reconsideration.[1] […]

footnote 19: The Appeals Chamber has an inherent discretionary power to reconsider its own previous interlocutory decisions if the existence of a clear error of reasoning has been demonstrated or if it is necessary in order to prevent an injustice. […] No such error or injustice has been shown here.

[1] The Appeals Chamber has an inherent discretionary power to reconsider its own previous interlocutory decisions if the existence of a clear error of reasoning has been demonstrated or if it is necessary in order to prevent an injustice (Decision of 4 February 2005, p. 2; Juvénal Kajelijeli v. The Prosecutor, Case No. ICTR-98-44A-A, Judgement, 23 May 2005, para. 203). No such error or injustice has been shown here.

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Notion(s) Filing Case
Decision on Clarification - 08.12.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

10. [T]he Appeals Chamber recalls that a request for reconsideration of a decision in one case filed by an appellant who is not party to that case must fail for lack of standing to seek such reconsideration.[1][…]

[1] Aloys Ntabakuze v. The Prosecutor, Case No. ICTR-98-41-AR73, Decision on Motion for Reconsideration, 4 October 2006, paras 14-15. 

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Notion(s) Filing Case
Decision on Review and Reconsideration - 23.06.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

The Appeals Chamber stated that, once a trial judgement has been rendered, all requests for reconsideration of decisions delivered at trial should be addressed exclusively via a notice of appeal and an appellant’s brief.

27. La Chambre d'appel considère que, dès lors que le jugement de première instance est prononcé, toute demande de réexamen d’une décision prise dans le cadre de la procédure de première instance doit être exclusivement adressée via l'acte d'appel et le mémoire de l'appelant. De l’avis de la Chambre d’appel, le jugement clôt et endosse la procédure de première instance ; pour des raisons évidentes d’économie judiciaire et dans le but d’empêcher les parties de remettre en cause constamment des questions déjà tranchées, il appartient à l’appelant qui souhaite faire réexaminer une partie ou l’ensemble de cette procédure d’en faire état dans le cadre de son appel au fond.

29. En conséquence, la Chambre d’appel considère que l’Appelant ne peut solliciter le réexamen de l’Arrêt du 31 mars 2000 par voie de requête au stade de la mise en état de l’affaire en appel et qu’une telle demande devrait être articulée dans le cadre de son appel du Jugement au fond.

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ICTR Statute Article 25 ICTY Statute Article 26 ICTR Rule Rule 120
Rule 121
ICTY Rule Rule 119
Rule 120
Notion(s) Filing Case
Decision on Review and Reconsideration - 23.06.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

The Appeals Chamber recalled the general principles of reconsideration proceedings and mentioned that, in exceptional circumstances, it had an inherent power to reconsider a previous interlocutory decision if a clear error of reasoning has been demonstrated or if it is necessary to do so to prevent an injustice.

22. Pour ce qui est du réexamen, la Chambre d’appel rappelle que

the Appeals Chamber ordinarily treats its prior interlocutory decisions as binding in continued proceedings in the same case as to all issues definitively decided by those decisions. This principle prevents parties from endlessly relitigating the same issues, and is necessary to fulfil the very purpose of permitting interlocutory appeals: to allow certain issues to be finally resolved before proceedings continue on other issues.[1]

Ce nonobstant la Chambre d’appel dispose, dans des circonstances exceptionnelles, du pouvoir inhérent de réexaminer toute décision interlocutoire lorsqu’une erreur manifeste de raisonnement a été mise en évidence ou si la décision dont on sollicite le réexamen a donné lieu à une injustice[2].

[1] Arrêt Kajelijeli, par. 202, [Juvénal Kajelijeli v. the Prosecutor, Case No. ICTR-98-44A-A, Judgement, 23 May 2005].

[2] Confidential Decision on “Prosecutor’s Motion for Reconsideration of the Appeals Chamber’s Decision Regarding the Timeliness of the Filing of the Prosecutor’s Response to ‘Appellant Hassan Ngeze’s Motion for the Approval of Further Investigation of the Specific Information Relating to the Additional Evidence of Witness AEU’”, 7 April 2006, p. 3; Decision on Jean-Bosco Barayagwiza’s Request for Reconsideration of Appeals Chamber Decision of 19 January 2005, 4 February 2005, p. 2; Arrêt Kajelijeli, par. 203.

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ICTR Statute Article 25 ICTY Statute Article 26 ICTR Rule Rule 120 ICTY Rule Rule 119
Notion(s) Filing Case
Reconsideration Appeal Decision - 03.11.2009 PRLIĆ et al.
(IT-04-74-AR73.16)

18. The Appeals Chamber recalls that for an applicant to succeed in a request for reconsideration, “he must satisfy the [Trial] Chamber of the existence of a clear error of reasoning in the [impugned decision], or of particular circumstances justifying its reconsideration in order to avoid injustice”.[1] Particular circumstances include new facts or new arguments.[2] However, to succeed on this basis, an applicant must demonstrate how any new facts or arguments submitted in a request for reconsideration justify reconsideration.[3]

19. […]  It was well within the exercise of the Trial Chamber’s discretion to refuse reconsideration in circumstances where in submitting new information the appellant patently failed to demonstrate that it was of such a nature that it constituted a new circumstance warranting the Trial Chamber’s reconsideration.

[1] Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Decision on Defence’s Request for Reconsideration, 16 July 2004 (“Galić Decision”), p. 2. See also Prosecutor v. Enver Hadžihasanović, Amir Kubura, Case No. IT-01-47-A, Decision on Appellant’s Motion for Reconsideration and Extension of Time Limits, 30 January 2007 (“Hadžihasanović Decision”), para. 9.

[2] Galić Decision, p. 2.

[3] Galić Decision, p. 2, Hadžihasanović Decision, para. 9. See also Milošević Decision on Joinder [Prosecutor v. Milošević, Case Nos. IT-99-37-AR73, IT-01-50-AR73, and IT-01-51-AR73, Reasons for Decision on Prosecution Interlocutory Appeal from Refusal to Order Joinder, 18 April 2002], paras 4-5.

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Notion(s) Filing Case
Review Decision - 23.11.2006 BLAŠKIĆ Tihomir
(IT-95-14-R)

79. The Appeals Chamber recalls that it has recently been held that “cogent reasons in the interests of justice” demand a departure from the holding in the Čelebići Judgement on Sentence Appeal[1] that the Appeals Chamber has inherent power to reconsider its final judgement.[2] In the Žigić case, the Appeals Chamber considered that reconsideration of a final judgement is not consistent with the Statute of the International Tribunal, which provides for the right of appeal and the right of review, but not for a second right of appeal through reconsideration. Furthermore, it was reasoned that to allow for findings underlying a conviction, which have been affirmed on appeal, to be contested “on the basis of mere assertions of errors of fact or law is not in the interests of justice to the victims of crimes or the convicted persons, who are both entitled to certainty and finality of legal judgements.”[3] Finally, the Appeals Chamber found that the existing appeal and review proceedings under the Statute provide for sufficient guarantees of due process for the parties in a case before the International Tribunal.[4]

80. On the basis of this precedent and for the reasons stated therein, the Appeals Chamber holds that it does not have inherent power to reconsider the Appeals Judgement.

[1] Prosecutor v. Zdravko Mucić, Hazim Delić and Esad Landzo, Case No. IT-96-21-Abis, Judgement on Sentence Appeal, 8 April 2003.

[2] Prosecutor v. Zoran Žigić a/k/a “Ziga”, Case No. IT-98-30/1-A, Decision on Zoran Žigić’s “Motion for Reconsideration of Appeals Chamber Judgement IT-98-30/1-A Delivered on 28 February 2006”, 26 June 2006, para. 9.

[3] Ibid.

[4] Ibid.

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ICTR Statute Article 25 ICTY Statute Article 26
Notion(s) Filing Case
Reconsideration Decision - 20.09.2010 NZABONIMANA Callixte
(ICTR-98-44D-AR7bis, ICTR-98-44D-AR7bis.2)

23. The Appeals Chamber recalls that a Chamber may reconsider a decision when there has been a change in the material circumstances before it.[1] This is equally true when the decision is issued pursuant to Rule 7bis of the Rules. A Trial Chamber is not precluded from reconsidering its decision to request the President to report the non-cooperation of a State to the Security Council when a change in circumstances occurs, particularly where, as in this case, that change of circumstance was cooperation by the State concerned.

24 As to Nzabonimana’s related submission that the 16 March 2010 Documents do not constitute a “material change” in circumstances as they do not change the fact that France “has failed” to cooperate as of 4 March 2010 and subsequent cooperation does not remedy past non-cooperation,[2] the Appeals Chamber considers that while the subsequent cooperation of France does not rectify its earlier failures, the purpose of Rule 7bis of the Rules is to report non-compliance of a State with its obligation, under Article 28 of the Statute, to cooperate with the Tribunal. Accordingly, the Appeals Chamber is satisfied that subsequent cooperation by France amounted to a new material circumstance for the exercise of the Trial Chamber’s power of reconsideration.

[1] See supra, para. 13 and references cited therein [Prosecutor v. Stanislav Galić, IT-98-29-AR73, Decision on Application by Prosecution for Leave to Appeal, 14 December 2001, para. 13; The Prosecutor v. Augustin Ngirabatware, Case No. ICTR-99-54-T, Decision on Defence Motion for Reconsideration of the Trial Chamber’s Oral Decisions Rendered on 23 September 2009, 7 July 2010, para. 16. The Appeals Chamber recalls, however, that there is no power to reconsider a final judgement. See Prosecutor v. Zoran Žigić a/k/a “Ziga”, Case No. IT-98-30/1-A, Decision on Zoran Žigić’s “Motion for Reconsideration of Appeals Chamber Judgement IT-98-30/1-A Delivered on 28 February 2005”, 26 June 2006, para. 9; Ferdinand Nahimana v.The Prosecutor, Case No. ICTR-99-52B-R, Decision on Ferdinand Nahimana’s Motion for Reconsideration of the Appeal Judgement, 30 June 2010, para. 6].

[2] Nzabonimana’s Reply [Callixte Nzabonimana’s Reply to Prosecutor’s Response to Nzabonimana’s Interlocutory Appeal on the Order Rescinding the 4 March 2010 Decision, 21 June 2010], paras. 9-11.

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ICTR Rule Rule 7 bis ICTY Rule Rule 7 bis
Notion(s) Filing Case
Reconsideration Decision - 20.09.2010 NZABONIMANA Callixte
(ICTR-98-44D-AR7bis, ICTR-98-44D-AR7bis.2)

29. The Appeals Chamber considers that while a Trial Chamber may proprio motu decide to reconsider its own decision, this does not relieve it of its duty to hear a party whose rights may be affected by this reconsideration.[1]

[1] See Prosecutor v. Goran Jelisić, Case No. IT-95-10-A, Judgement, 5 July 2001, para. 27, referring to R. v. Barking and Dagenham Justices, ex parte Director of Public Prosecutions [1995] Crim LR 953, and Director of Public Prosecution v. Cosier, Q.B.D., 5 April 2000.

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Notion(s) Filing Case
Reconsideration Decision - 20.09.2010 NZABONIMANA Callixte
(ICTR-98-44D-AR7bis, ICTR-98-44D-AR7bis.2)

23. The Appeals Chamber recalls that a Chamber may reconsider a decision when there has been a change in the material circumstances before it.[1] This is equally true when the decision is issued pursuant to Rule 7bis of the Rules. A Trial Chamber is not precluded from reconsidering its decision to request the President to report the non-cooperation of a State to the Security Council when a change in circumstances occurs, particularly where, as in this case, that change of circumstance was cooperation by the State concerned.

24 As to Nzabonimana’s related submission that the 16 March 2010 Documents do not constitute a “material change” in circumstances as they do not change the fact that France “has failed” to cooperate as of 4 March 2010 and subsequent cooperation does not remedy past non-cooperation,[2] the Appeals Chamber considers that while the subsequent cooperation of France does not rectify its earlier failures, the purpose of Rule 7bis of the Rules is to report non-compliance of a State with its obligation, under Article 28 of the Statute, to cooperate with the Tribunal. Accordingly, the Appeals Chamber is satisfied that subsequent cooperation by France amounted to a new material circumstance for the exercise of the Trial Chamber’s power of reconsideration.

[1] See supra, para. 13 and references cited therein [Prosecutor v. Stanislav Galić, IT-98-29-AR73, Decision on Application by Prosecution for Leave to Appeal, 14 December 2001, para. 13; The Prosecutor v. Augustin Ngirabatware, Case No. ICTR-99-54-T, Decision on Defence Motion for Reconsideration of the Trial Chamber’s Oral Decisions Rendered on 23 September 2009, 7 July 2010, para. 16. The Appeals Chamber recalls, however, that there is no power to reconsider a final judgement. See Prosecutor v. Zoran Žigić a/k/a “Ziga”, Case No. IT-98-30/1-A, Decision on Zoran Žigić’s “Motion for Reconsideration of Appeals Chamber Judgement IT-98-30/1-A Delivered on 28 February 2005”, 26 June 2006, para. 9; Ferdinand Nahimana v.The Prosecutor, Case No. ICTR-99-52B-R, Decision on Ferdinand Nahimana’s Motion for Reconsideration of the Appeal Judgement, 30 June 2010, para. 6].

[2] Nzabonimana’s Reply [Callixte Nzabonimana’s Reply to Prosecutor’s Response to Nzabonimana’s Interlocutory Appeal on the Order Rescinding the 4 March 2010 Decision, 21 June 2010], paras. 9-11.

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Notion(s) Filing Case
Decision on Reconsideration of Appeal Judgement - 26.06.2006 ŽIGIĆ Zoran
(IT-98-30/1-A)

The Appeals Chamber noted that while there were many precedents confirming the Appeals Chamber’s power to reconsider its decisions, there was only one precedent of a reconsideration of a judgement, namely the Čelebići Judgement on Sentence Appeal. It then recalled the “standards of reconsideration” as stated in that judgement (paras 5-6), according to which a judgement can be reconsidered when there is a “prospect of injustice” (paras 5-6). Part of the reasoning of the Appeals Chamber in the Čelebići Judgement on Sentence Appeal was that the right of review on the discovery of a new fact, granted by Article 26 of the Tribunal’s Statute is “only a partial answer to the prospect of injustice”.[1] In the present case, the Appeals Chamber however noted that the requirement of a “new fact” under Article 26 of the Statute has been interpreted broadly (para. 7):

7. While the Čelebići Judgement on Sentence Appeal considered that review proceedings under Article 26 of the Statute of the Tribunal constituted a limited answer to the possibility of injustice, the Appeals Chamber notes that the jurisprudence of this Tribunal has nonetheless shown that when proceedings are brought under that Article, the requirement of the existence of a “new fact” has been interpreted broadly, and the conditions of knowledge and due diligence required under Rule 119 of the Rules of Procedure and Evidence of the Tribunal have been waived in “wholly exceptional circumstances” and “where the impact of a new fact on the decision would be such that to ignore it would lead to a miscarriage of justice”.[2]

It held that “in effect” parties “typically” use the reconsideration procedure to lodge a second appeal (para. 8) and consequently held that “there is no power to reconsider a final judgement”:

7. To allow a person whose conviction has been confirmed on appeal the right to further contest the original findings against them on the basis of mere assertions of errors of fact or law is not in the interests of justice to the victims of the crimes or the convicted person, who are both entitled to certainty and finality of legal judgements. Nor is it consistent with the Statute of this Tribunal, which provides for a right of appeal and a right of review but not for a second right of appeal by the avenue of reconsideration of a final judgement.  The Appeals Chamber is satisfied that the existing appeal and review proceedings established under the Statute provide sufficient guarantees to persons convicted before this Tribunal that they have been tried fairly and in accordance with norms of due process. In light of these considerations, the Appeals Chamber has come to the view that cogent reasons in the interests of justice[3] demand its departure from the majority opinion in the Čelebići Judgement on Sentence Appeal. Accordingly, this Appeals Chamber holds that there is no power to reconsider a final judgement.  The Appeals Chambers notes, however, that its departure from Čelebići does not affect the power of the Tribunal to reconsider its decisions, which cannot be subject to review proceedings. (emphasis added). 

See also Judge’s Shahabuddeen “Declaration”.

[1] Ibid.[ Čelebići Judgement on Sentence Appeal, para. 51].

[2] Prosecutor v. Drago Josipović, Case No. IT-95-16-R2, Decision on Motion for Review, 7 March 2003, para. 13, citing Prosecutor v. Duško Tadić, Case No. IT-94-1-R, Decision on Motion for Review, 30 July 2002, paras 20 and 25-27; see also Prosecutor v. Hazim Delić, Case No. IT-96-21-R-R119, Decision on Motion for Review, 25 April 2002, paras 15, 19 and 22; Jean-Bosco Barayagwiza v. Prosecutor Case No. ICTR-97-19-AR72, Decision on Prosecutor’s Request for Review or Reconsideration, 31 March 2000, paras 41-44, 65-69; Nahimana et al. v. Prosecutor, Case No. ICTR-99-52-A, Decision on Jean-Bosco Barayagwiza’s Request for Reconsideration of Appeals Chamber Decision of 19 January 2005, 4 February 2005, p. 2; Juvénal Kajelijeli v. Prosecutor, Case No. ICTR-98-44A-A, Judgement, 23 May 2005, paras 203-204.

[3] See Prosecutor v. Zlatko Aleksovski, Case No. IT-96-14/1-A, Judgement, 24 March 2000, paras 107-109.

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Notion(s) Filing Case
Decision on Reconsideration - 01.12.2006 KAREMERA et al.
(ICTR-98-44-AR73(C))

At para. 6, the Appeals Chamber recalled its standard for reconsideration:

The Appeals Chamber may reconsider a previous interlocutory decision under its inherent discretionary power if a clear error of reasoning has been demonstrated or if it is necessary to prevent an injustice.[1]

[1] Juvenal Kajelijeli v. The Prosecutor, Case No.ICTR-98-44A-A, Judgement,23 May 2005,para. 203. 

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Decision on Reconsideration - 20.03.2014 PERIŠIĆ Momčilo
(IT-04-81-A)

Considering that victims’ interests in the success of the Motion[1] does not constitute a legal basis which would justify granting the Motion

[1] See [Prosecutor v. Momčilo Perišić, Case No. IT-04-81-A, Motion for Reconsideration, 3 February 2014], para. 5. 

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Notion(s) Filing Case
Judgement on Sentencing Appeal - 08.04.2003 MUCIĆ et al. (Čelebići)
(IT-96-21-Abis)

49. The Appeals Chamber has an inherent power to reconsider any decision, including a judgment where it is necessary to do so in order to prevent an injustice.  The Appeals Chamber has previously held that a Chamber may reconsider a decision, and not only when there has been a change of circumstances, where the Chamber has been persuaded that its previous decision was erroneous and has caused prejudice.[1]  Whether or not a Chamber does reconsider its decision is itself a discretionary decision.[2] Those decisions were concerned only with interlocutory decisions, but the Appeals Chamber is satisfied that it has such a power also in relation to a judgment which it has given – where it is persuaded:

(a)      (i)         that a clear error of reasoning in the previous judgment has been demonstrated by, for example, a subsequent decision of the Appeals Chamber itself, the International Court of Justice, the European Court of Human Rights or a senior appellate court within a domestic jurisdiction, or

          (ii)         that the previous judgment was given per incuriam;  and

(b)      that the judgment of the Appeals Chamber sought to be reconsidered has led to an injustice.

See also paras. 50–53.

[1]   Prosecutor v Galić, IT-98-29-AR73, Decision on Application by Prosecution for Leave to Appeal, 14 Dec 2001, par 13; Prosecutor v Milošević, IT-01-50-AR73, Reasons for Refusal of Leave to Appeal from Decision to Impose Time Limit, 16 May 2002, par 17.  See also Prosecutor v Kvočka et al, IT-98-30/1-A, Decision on Further Request for Review by Zoran Žigić, 11 Mar 2003, par 6

[2]   Prosecutor v Bagosora et al, ICTR-98-41-A, Decision on Interlocutory Appeal from Refusal to Reconsider Decisions Relating to Protective Measures and Application for a Declaration of “Lack of Jurisdiction”, 2 May 2002, par 10.

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Notion(s) Filing Case
Order on Recovery of Legal Funds - 13.05.2014 PRLIĆ et al.
(IT-04-74-A)

21. […] The Appeals Chamber is not at liberty to revisit the Registrar’s and the President’s findings as to Praljak’s ability to reimburse the Tribunal for the funds incurred for his defence. […]

[1] The Appeals Chamber recalls that only the organ issuing a ruling possesses the inherent discretionary power to reconsider it (provided that certain conditions are met). See, e.g., Prosecutor v. Vujadin Popović et al., Case No. IT-05- 88-A, Decision on Prosecution Motion for Reconsideration of Filing Status of the Appeals Chamber’s Decision on Vinko Pandurević’s Provision Release of 11 January 2012, 17 January 2012 (originally filed as confidential; made public per the Appeals Chamber’s decision on 22 February 2012. See Prosecutor v. Vujadin Popović et aI., Case No. IT-OS-88-A, Decision on Prosecution’s Motion for Order Issuing Public Redacted Version of the Appeals Chamber’s Reconsideration Decision of 17 January 2012, 22 February 2012, p. 2), p. 2 and references cited therein. In this case, the Appeals Chamber notes that Praljak has already sought further review of the President’s Decision on Motion for Review, but his request was rejected by the President. See [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-A, Decision on Slobodan Praljak’s Request for Further Review, 7 October 2013]], p. 2.

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Decision on Reconsideration - 07.12.2009 LUKIĆ & LUKIĆ
(IT-98-32/1-A)

4. […] The Appeals Chamber recalls that requests for reconsideration “are the product of the Tribunal’s jurisprudence, and are permissible only under certain conditions”.[1] In particular, such a request by definition has to be made before the same Chamber that rendered the impugned decision […].

[1] Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-PT, Decision on Prosecution’s Request for Reconsideration, 23 July 2009 (“Karadžić Decision”), para. 7.

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Decision on Leave to Appeal (Prosecution) - 14.12.2001 GALIĆ Stanislav
(IT-98-29-AR73)

13. A Trial Chamber may nevertheless always reconsider a decision it has previously made, not only because of a change of circumstances but also where it is realised that the
previous decision was erroneous or that it has caused an injustice.[1]  Where such a decision is changed, there will be a need in every case for the Trial Chamber to consider with great care and to deal with the consequences of the change upon the proceedings which have in the meantime been conducted in accordance with the original decision.

 

[1]     Although a Trial Chamber has held that motions for reconsideration of a previous decision are not provided for in the Rules and that they do not form part of the procedures of the Tribunal (Prosecutor v Kordić & Čerkez, Case IT-95-14/2-PT, Decision on Prosecutor’s Motion for Reconsideration, 15 Feb 1999, p 2), that ruling has not been followed.  In Prosecutor v Delalić et al, Case IT-96-21-A, Order of the Appeals Chamber on Hazim Delić’s Emergency Motion to Reconsider Denial of Request for Provisional Release, 1 June 1999, p 4, the Appeals Chamber held that it was appropriate to reconsider its previous decision (refusing provisional release of an appellant) where “particular circumstances” justified such reconsideration, although it rejected the application for reconsideration on its merits.  In Prosecutor v Brđanin & Talić, Case IT-99-36-PT, Order on the Prosecution’s Motion for Reconsideration of the Order Issued by the President on 11 September 2000, 11 Jan 2001, p 4, President Jorda also considered and rejected on its merits an application for reconsideration of a previous decision.

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Appeal Judgement - 30.06.2016 STANIŠIĆ & ŽUPLJANIN
(IT-08-91-A)

598. […] [T]he Appeals Chamber recalls that it is not bound by the findings of other courts – domestic, international, or hybrid – and that, even though it will consider such jurisprudence, it may nonetheless come to a different conclusion on a matter than that reached by another judicial body.[1] The Appeals Chamber considers that in order to constitute a cogent reason for departing from its established jurisprudence on a matter, the party advocating a departure would need to show that a non‑binding opinion of another court is the correct law and demonstrate that there is a clear mistake in the Appeals Chamber’s approach.[2] […]

[1] Đorđević Appeal Judgement, para. 83, referring to Čelebići Appeal Judgement, para. 24. See Tolimir Appeal Judgement, para. 226; Popović et al. Appeal Judgement, para. 1674.

[2] See Popović et al Appeal Judgement, para. 1674, referring to Đorđević Appeal Judgement, para. 24, Aleksovski Appeal Judgement, para. 108.

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Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

126. The Appeals Chambers recalls that once a trial judgement is pronounced, any request for reconsideration of a decision taken within the framework of first instance proceedings must be raised through the notice of appeal and the appeal brief.[1] The Appeals Chamber therefore rejects the Prosecution’s argument that Ntahobali has improperly sought reconsideration of an interlocutory appeal decision through his appeal.

127. Under the settled jurisprudence of the Tribunal, the Appeals Chamber may reconsider a previous interlocutory decision under its inherent discretionary power to do so if a clear error of reasoning has been demonstrated or if it is necessary to do so to prevent an injustice.[2] The Appeals Chamber emphasises that the exercise of this reconsideration power is only designed to apply in exceptional circumstances.[3] Indeed, the Appeals Chamber recalls that reconsideration is an exception to the principle that prior interlocutory appeal decisions are binding in continued proceedings in the same case as to all issues definitively decided by those decisions.[4] This principle prevents parties from endlessly relitigating the same issues, and is necessary to fulfil the very purpose of permitting interlocutory appeals: to allow certain issues to be finally resolved before proceedings continue on other issues.[5]

128. The Appeals Chamber notes that Ntahobali waited nearly a decade, and until after the completion of the trial proceedings, to seek reconsideration of the Appeal Decision on Continuation of Trial through his appeal against the Trial Judgement, without explaining why he did not seek reconsideration earlier. The Appeals Chamber stresses that a “matter must be raised with the court at the time the problem is perceived in order to enable the problem to be remedied”.[6] As held in the Čelebići Appeal Judgement, “the requirement that the issue must have been raised during the proceedings is not simply an application of a formal doctrine of waiver, but a matter indispensable to the grant of fair and appropriate relief.”[7] By failing to raise this matter before the Appeals Chamber prior to the completion of the trial proceedings, Ntahobali deprived the Appeals Chamber of the opportunity to re-examine whether it was in the interests of justice to continue the trial with a substitute judge.

129. In these circumstances, the Appeals Chamber declines to exercise its discretionary power to consider Ntahobali’s request for reconsideration of the Appeal Decision on Continuation of Trial. Accordingly Ntahobali’s request for reconsideration is dismissed.

[1] Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Décision relative à la Requête de l’appelant Jean-Bosco Barayagwiza demandant l’examen de la requête de la Défense datée du 28 Juillet 2000 et réparation pour abus de procédure, 23 June 2006 (“Barayagwiza 23 June 2006 Appeal Decision”), para. 27. The Appeals Chamber has in the past reconsidered previous interlocutory decisions in an appeal judgement. See Kajelijeli Appeal Judgement, paras. 203-207.

[2] See, e.g., Munyagishari Appeal Decision [Bernard Munyagishari v. The Prosecutor, Case No. ICTR-05-89-AR11bis, Decision on Bernard Munyagishari’s Motion for Reconsideration of the Decision on Appeals Against Referral Decision, 8 July 2013], para. 13; Kajelijeli Appeal Judgement, para. 203; Barayagwiza 4 February 2005 Appeal Decision [Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Jean-Bosco Barayagwiza’s Request for Reconsideration of Appeals Chamber Decision of 19 January 2005, 4 February 2005], p. 2.

[3] See, e.g., Prosecutor v. Zoran Žigić, Case No. IT-98-30/1-A, Decision on Zoran Žigić’s “Motion for Reconsideration of Appeals Chamber Judgement IT-98-30/1-A Delivered on 28 February 2005”, 26 June 2006, para. 5; Barayagwiza 23 June 2006 Appeal Decision, para. 22; Kajelijeli Appeal Judgement, para. 204.

[4] See Barayagwiza 23 June 2006 Appeal Decision, para. 22; Kajelijeli Appeal Judgement, para. 202.

[5] See Barayagwiza 23 June 2006 Appeal Decision, para. 22; Kajelijeli Appeal Judgement, para. 202.

[6] See Čelebići Appeal Judgement, para. 641. It is settled jurisprudence that a party should not refrain from making an objection to a matter which was apparent during the course of the trial to raise it only on appeal in the event of an adverse finding against that party. See Nahimana et al. Appeal Judgement, para. 215; Niyitegeka Appeal Judgement, para. 199; Čelebići Appeal Judgement, para. 640; Tadić Appeal Judgement, para. 55.

[7] See Čelebići Appeal Judgement, para. 641.

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Decision on Motions to Present Additional Evidence - 07.07.2005 NALETILIĆ & MARTINOVIĆ
(IT-98-34-A)

20.    The Appeals Chamber endorses the position of the ICTR Appeals Chamber that “the Appeals Chamber ordinarily treats its prior interlocutory decisions as binding in continued proceedings in the same case as to all issues definitively decided by those decisions” in order to “allow certain issues to be finally resolved before proceedings continue on other issues.” The only exception to this principle is that the Appeals Chamber may “reconsider a previous interlocutory decision under its ‘inherent discretionary power’ to do so ‘if a clear error of reasoning has been demonstrated or if it is necessary to do so to prevent an injustice.’” This exception allows the Appeals Chamber a “meaningful opportunity” to “correct any mistakes it has made.” The Appeals Chamber finds that this same principle and exception are applicable to its pre-appeal decisions on motions filed before the Appeals Chamber prior to the appeals hearing. […]

[1] Kajelijeli v. The Prosecutor, Case No. ICTR-98-44A-A, Judgement, 23 May 2005, para. 202.

[2] Ibid., para. 203 (internal citation omitted).

[3] Ibid.

[4] Cf. Nahimana et al., Case No. ICTR-99-52-A, Decision on Jean-Bosco Baryagwiza’s Request for Reconsideration of Appeals Chamber Decision of 19 January 2005, 4 February 2005 (denying the Appellant’s request for reconsideration of the Appeals Chamber’s pre-appeal decision on appointment of counsel). The Appeals Chamber notes that the Rules and Practice Directions of the International Tribunal distinguish between interlocutory appeal and pre-appeal decisions by the Appeals Chamber. Interlocutory appeals are generally filed before the Appeals Chamber under Rules 72 and 73 when a case is at trial against a Trial Chamber’s interlocutory decision prior to the issuance of the trial judgement. On the other hand, pre-appeal decisions are those made on motions, such as Rule 115 motions, filed before the Appeals Chamber when a case is already on appeal and pending before the Appeals Chamber. See generally Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings Before the International Tribunal (IT/155 Rev. 2), 21 February 2005.

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Decision on Inter Partes Proceedings in Rule 86 Matters - 09.03.2017 KARADŽIĆ Radovan
(MICT-13-55-A)

5.       […] A party requesting reconsideration of a decision must satisfy the chamber of the existence of a clear error of reasoning in the impugned decision, or of particular circumstances justifying reconsideration in order to avoid injustice. […]

[1] Prosecutor v. Jean-Paul Akayesu, Case No. MICT-13-30, Decision on a Motion for Reconsideration, 30 June 2016, p. 1 and reference cited therein. See also Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-A, Public Redacted Version of the “Decision on Valentin Ćorić’s Request for Provisional Release” Issued on 15 August 2016, p. 3 and references cited therein.

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Decision on a Motion to Reclassify Filings - 03.10.2017 KARADŽIĆ Radovan
(MICT-13-55-A)

RECALLING ALSO that circumstances that may merit reconsideration include new facts and that, to succeed on that basis, an applicant must demonstrate how any new facts justify reconsideration;

[1] Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. MICT-15-96-PT, Decision on Motion for Partial Reconsideration of Decision on Stanišić’s Request for Stay of Proceedings, 7 April 2017, para. 7; Prosecutor v. Prlić et al., Case No. IT-04-74-AR73.16, Decision on Jadranko Prlić's Interlocutory Appeal against the Decision on Prlić Defence Motion for Reconsideration of the Decision on Admission of Documentary Evidence, 3 November 2009, para. 18; Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Decision on Defence’s Request for Reconsideration, 16 July 2004, p. 2.

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