Reconsideration of interlocutory decisions

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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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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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
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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Notion(s) Filing Case
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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Notion(s) Filing Case
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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