Reconsideration of appeal judgements
|Decision on Reopening Appeal - 07.06.2007||
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”. 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.
 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 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”).
|Decision on Consolidated Motion - 08.12.2006||
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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”).
|Review Decision - 23.11.2006||
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 that the Appeals Chamber has inherent power to reconsider its final judgement. 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.” 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.
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.
 Prosecutor v. Zdravko Mucić, Hazim Delić and Esad Landzo, Case No. IT-96-21-Abis, Judgement on Sentence Appeal, 8 April 2003.
 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.
|ICTR Statute Article 25 ICTY Statute Article 26|
|Decision on Reconsideration of Appeal Judgement - 26.06.2006||
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”. 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”.
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 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”.
 Ibid.[ Čelebići Judgement on Sentence Appeal, para. 51].
 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.
 See Prosecutor v. Zlatko Aleksovski, Case No. IT-96-14/1-A, Judgement, 24 March 2000, paras 107-109.
|Judgement on Sentencing Appeal - 08.04.2003||
MUCIĆ et al. (Čelebići)
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. Whether or not a Chamber does reconsider its decision is itself a discretionary decision. 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.
 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
 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.
|Appeal Judgement - 30.06.2016||
STANIŠIĆ & ŽUPLJANIN
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. 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. […]
 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.
 See Popović et al Appeal Judgement, para. 1674, referring to Đorđević Appeal Judgement, para. 24, Aleksovski Appeal Judgement, para. 108.