Appeals Chamber

Notion(s) Filing Case
Decision on Custodial Visit - 10.11.2011 POPOVIĆ et al.
(IT-05-88-A)

p. 4: CONSIDERING that, while the Appeals Chamber has the authority to issue orders to States pursuant to Article 29 of the Statute of the Tribunal and Rules 54 and 107 of the Rules, an order by the Appeals Chamber on the Motion is not necessary for the purposes of an investigation or for the preparation of Pandurević’s appeal[1]

[1] The Appeals Chamber recalls that matters relating to the rights of detained persons and conditions of their detention are regulated by the Rules Governing the Detention of Persons Awaiting Trial or Appeal Before the Tribunal or Otherwise Detained on the Authority of the Tribunal, IT38/Rev.9, 21 July 2005 and fall primarily under the authority of the Registrar and the President of the Tribunal.

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ICTR Rule Rule 54 ICTY Rule Rule 54
Notion(s) Filing Case
Decision on Psychological Examination - 06.12.2005 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

P. 4: FINDING also that, had the procedure of the Detention Rules been followed, the Appeals Chamber would only have jurisdiction to review a Registrar’s or President’s decision if the issues in question were closely related to the fairness of the proceedings on appeal;[1]

[1] Ferdinand Nahimana et al. v. The Prosecutor, Case No ICTR-99-52-A, Decision on Hassan Ngeze’s Motion to Set Aside President Møse’s Decision and Request to Consummate his Marriage, 6 December, p. 4; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Appellant Ferdinand Nahimana’s Motion for Assistance from the Registrar in the Appeals Phase, 3 May 2005, paras. 4 and 7; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on “Appellant Hassan Ngeze’s Motion for Leave to Permit his Defence Counsel to Communicate with him during Afternoon Friday, Saturday, Sunday and Public Holidays”, 25 April 2005, p. 3. See also, Prosecutor v. Milan Milutinović et al., Case No. IT-99-37-AR.73.2, Decision on Interlocutory Appeal on Motion for Additional Funds, 13 November 2003, para. 19.

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Notion(s) Filing Case
Decision on Motion for Stay - 02.03.2010 ŠAINOVIĆ et al.
(IT-05-87-A)

12. […] The Appeals Chamber further recalls that

where the Directive expressly provides for a review of the Registrar’s decision, the Trial Chamber cannot interfere in the Registrar’s decision, and its only option is to stay the trial until that procedure has been completed. Where, however, the Directive does not expressly provide for a review of the Registrar’s decision, the Trial Chamber, pursuant to its statutory obligation to ensure the fairness of the trial, is competent to review the Registrar’s decision in the light of its effect upon the fairness of the trial.[1]

In the present case, as Pavković himself points out, no definitive decision has yet been rendered by the Registry on the merits of his request for additional hours.[2] Therefore, the Appeals Chamber can only intervene in the matter once a decision is rendered by the Registry and the review procedure in relation to such a decision under Article 31 of the Directive is completed, and if it is satisfied that the matter affects the fairness of the appeal proceedings.

[1] Ibid. (footnotes omitted).

[2] Motion [General Pavković’s Motion for Stay of Proceedings Pending Action by the Registrar, 19 February 2010], paras 8-9. The Appeals Chamber further notes the background provided in the Registry’s Submission [Registry Submission Pursuant to Rule 33 (B) Concerning General Pavković’s Motion for Stay of Proceedings Pending Action by the Registrar, 26 February 2010 (confidential)], including the fact that the first request for additional hours submitted by Pavković’s Counsel on 2 February 2010 was denied by the Registry on 10 February 2010 as it lacked sufficient detail and that his second request submitted on 17 February 2010 is currently under consideration (Registry’s Submission, paras 8-16, 21, 23; Annex VI).

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Other instruments Directive on the Assignment of Defence Counsel (ICTY): Article 31.
Notion(s) Filing Case
Decision on Consummation of Marriage - 06.12.2005 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

P. 4: CONSIDERING that the Appeals Chamber has the statutory duty to ensure the fairness of the proceedings on appeal[1] and, thus, has jurisdiction to review decisions of the Tribunal’s Registrar and President;

P. 4: CONSIDERING, however, that the exercise of such jurisdiction should be closely related to the fairness of proceedings on appeal and should not be used as a substitute for a general power of review which has not been expressly provided by the Rules of Detention;[2]

P. 4: CONSIDERING that the Appellant has not identified any impact by the issues raised in his Motion on his right to fair proceedings;

P. 4: FINDING that the detention conditions raised by the Appellant are not related to the fairness of proceedings on appeal and that, therefore, the Appellant’s right to fair proceedings has not been infringed by the outcome of the President’s Decision;

P. 4: FINDING, therefore, that the Appellant has exhausted all available remedies and that the Appeals Chamber has no jurisdiction in this matter

[1] Ferdinand Nahimana et al. v. Prosecutor, Case No. ICTR-99-52-A, Decision on Appellant Ferdinand Nahimana’s Motion for Assistance from the Registrar in the Appeals Phase, 3 May 2005, paras 4 and 7; Ferdinand Nahimana et al. v. Prosecutor, Case No. ICTR-99-52-A, Decision on “Appellant Hassan Ngeze’s Motion for Leave to Permit his Defence Counsel to Communicate with him during Afternoon Friday, Saturday, Sunday and Public Holidays”, 25 April 2005, p. 3. See also, Prosecutor v. Milan Milutinović et al., Case No. IT-99-37-AR.73.2, Decision on Interlocutory Appeal on Motion for Additional Funds, 13 November 2003, para. 19.

[2] See, by analogy, Prosecutor v. Milan Milutinović et al., Case No. IT-99-37-AR.73.2, Decision on Interlocutory Appeal on Motion for Additional Funds, 13 November 2003, para. 20.

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Notion(s) Filing Case
Decision on Further Investigations - 20.06.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

The Appeals Chamber restated the applicable law with respect to the admissibility of the additional evidence on appeal:

5. Further, according to Rule 115 of the Rules of Procedure and Evidence of the Tribunal (“Rules”), for additional evidence to be admissible on appeal, the following requirements must be met. The Appeals Chamber must find “that the additional evidence was not available at trial and is relevant and credible.” When determining the availability at trial, the Appeals Chamber will be mindful of the following principles:

[T]he party in question must show that it sought to make “appropriate use of all mechanisms of protection and compulsion available under the Statute and the Rules of the International Tribunal to bring evidence […] before the Trial Chamber.” In this connection, Counsel is expected to apprise the Trial Chamber of all the difficulties he or she encounters in obtaining the evidence in question, including any problems of intimidation, and his or her inability to locate certain witnesses. The obligation to apprise the Trial Chamber constitutes not only a first step in exercising due diligence but also a means of self-protection in that non-cooperation of the prospective witness is recorded contemporaneously.[1]

With regard to relevance, the Appeals Chamber will consider whether the proposed evidence sought to be admitted relates to a material issue. As to credibility, the Appeals Chamber will admit evidence at this stage only if it appears to be reasonably capable of belief or reliance. Admission of the evidence is without prejudice to the later determination of the weight that the new evidence will be afforded.[2]

6. Once it has been determined that the additional evidence meets these conditions, the Appeals Chamber will determine whether the evidence “could have been a decisive factor in reaching the decision at trial.”[3] To satisfy this, the evidence must be such that it could have had an impact on the verdict, i.e. it, in the case of a request by a defendant, it could have shown that a conviction was unsafe.[4] Accordingly, the additional evidence must be directed at a specific finding of fact related to a conviction or to the sentence.

7. The Appeals Chamber has considered that, where the additional evidence is relevant and credible, but was available at trial, or could have been discovered through the exercise of due diligence, the evidence may still be admitted if the moving party establishes that its exclusion would amount to a miscarriage of justice, inasmuch as, had it been adduced at trial, it would have had an impact on the verdict.[5]

8. The Appeals Chamber recalls that, whether the additional evidence was available at trial or not, it must always be assessed in the context of the evidence presented at trial, and not in isolation.[6]

[1] Prosecutor v. Ntagerura, et al., ICTR-99-46-A, Decision on Prosecution Motion for Admission of Additional Evidence, 10 December 2004 (“Ntagerura et al. Decision of 10 December 2004”), para. 9. [internal references omitted].

[2] See, e.g., Decision on Six Motions, para. 7; Prosecutor v. Kupreškić et al., Case No. IT-95-16-A, Decision on Motions for the Admission of Additional Evidence filed by the Appellants Vlatko Kupreškić, Drago Josipović, Zoran Kupreškić and Mirjan Kupreškić, 26 February 2001, para. 28.

[3] Rule 115 (B) of the Rules.

[4] Decision on Six Motions, para. 8; Prosecutor v. Kupreškić et al., Case No. IT-95-16-A, Appeal Judgement, 23 October 2001, para. 68; Prosecutor v. Krstić, Case No. IT-98-33-A, Decision on Application for Admission of Additional Evidence on Appeal, 5 August 2003 (“Krstić Decision of 5 August 2003”), p. 3; Prosecutor v. Blaškić, Case No. IT-95-14-A, Decision on Evidence, 31 October 2003 (“Blaškić Decision of 31 October 2003”), p. 3.

[5] Decision on Six Motions, para. 9; Kajelijeli v. Prosecutor, Case No. ICTR-98-44A-A, Decision on Defence Motion for the Admission of Additional Evidence pursuant to Rule 115 of the Rules of Procedure and Evidence, 28 October 2004 (“Kajelijeli Decision of 28 October 2004”), para. 11; Ntagerura et al. Decision of 10 December 2004, para 11. See also Prosecution v. Delić, Case No. IT-96-21-R-R119, Decision on Motion for Review, 25 April 2002, para. 18; Prosecution v. Krst, Case No. IT-98-33-A, Decision on Application for Subpoenas, 1 July 2003, para. 16; Krstić Decision of 5 August 2003, p. 4, Blaškić Decision of 31 October 2003, p. 3.

[6] Decision on Six Motions, para. 10; Kajelijeli Decision of 28 October 2004, para. 12; Ntagerura et al. Decision of 10 December 2004, para. 12. See also Blaškić Decision of 31 October 2003, p. 3; Nikolić v. Prosecutor, Case No. IT-02-60/1-A, Decision on Motion to Admit Additional Evidence, 9 December 2004, para. 25.

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ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Appeal Judgement - 30.06.2016 STANIŠIĆ & ŽUPLJANIN
(IT-08-91-A)

1096. The Appeals Chamber recalls that the choice of remedy lies within its discretion, in light of Article 25 of the Statute.[1] Accordingly, in the interests of fairness to Stanišić and Župljanin, balanced with considerations of public interest and the administration of justice, and taking into account the nature of the offences and the circumstances of the case at hand, the Appeals Chamber finds it appropriate to refrain from entering new convictions on appeal for these crimes.[2]

[1] See Jelisić Appeal Judgement, para. 73. Article 25(2) of the Statute provides that “[t]]he Appeals Chamber may affirm, reverse or revise the decisions taken by the Trial Chambers”. See also Šainović et al. Appeal Judgement, para. 1604, fn. 5269 (with references).

[2] See Jelisić Appeal Judgement, paras 73, 77; Aleksovski Appeal Judgement, paras 153-154, 192; Krstić Appeal Judgement, paras 220-227, 229, p. 87; Stakić Appeal Judgement, paras 359-367, pp 141-142; Naletilić and Martinović Appeal Judgement, paras 588-591, p. 207. See also Šainović et al. Appeal Judgement, paras 1604, 1766.

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ICTR Statute Article 25 ICTY Statute Article 25
Notion(s) Filing Case
Decision on Rescinding Protective Measures - 14.11.2016 KAMUHANDA Jean de Dieu
(MICT-13-33)

6. As a preliminary matter, the Appeals Chamber notes that the Impugned Decision was rendered after the close of the trial and appeal proceedings in Kamuhanda’s case[1] and that, therefore, Rule 80(B) of the Rules, which requires certification to appeal a decision rendered at trial, by its plain language is not applicable in the present case.[2] The Appeals Chamber further observes that Rule 86 of the Rules, which regulates measures for the protection of victims and witnesses, does not expressly provide for an appeal as of right or address the issue of whether a decision rendered by a Single Judge after the close of trial and appeal proceedings is subject to appeal. In interpreting an equivalent provision in the ICTR Rules, the ICTR Appeals Chamber has held that an applicant is entitled to appeal a decision on witness protective measures which was rendered after the close of the trial and appeal proceedings.[3] Bearing this practice in mind and in light of the importance of the protection of victims and witnesses to the proper functioning of the Mechanism,[4] the Appeals Chamber considers that it has jurisdiction over this appeal.

[1] See supra [Prosecutor v. Jean de Dieu Kamuhanda, Case No. MICT-13-33, Decision on Appeal of Decision Declining to Rescind Protective Measures for a Deceased Witness, 14 November 2016], paras. 2, 3.

[2] Rule 80(B) of the Rules reads: “Decisions rendered on such motions are without interlocutory appeal save with certification by the Trial Chamber, which may grant such certification if the decision involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Trial Chamber an immediate resolution by the Appeals Chamber may materially advance the proceedings.” See also Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R75, Decision on Motion for Clarification, 20 June 2008 (“Niyitegeka Decision of 20 June 2008”), para. 13 (interpreting the parallel for certification in the ICTR Rules of Procedure and Evidence (“ICTR Rules”), Rule 73(B) of the ICTR Rules).

[3] See Niyitegeka Decision of 20 June 2008, para. 14. See also Georges A.N. Rutaganda v. The Prosecutor, Case No. ICTR-96-3-R, Order to the Registrar Concerning Georges Rutaganda’s Access to Documents, 22 January 2009, p. 2.

[4] See [Prosecutor v. Jean de Dieu Kamuhanda, Case No. MICT-13-33] Decision on a Motion for a Public Redacted Version of the 27 January 2010 Decision on Application of The Prosecutor of the Tribunal for Variation of Protective Measures, 11 May 2016, p. 2; Prosecutor v. Dragoljub Kunarac et al., Case Nos. MICT-15-88-R86H.1/MICT-15-88-R86H.2, Decision on Prosecution Requests for a Public Redacted Version of a Decision on Applications Pursuant to Rule 86(H), 9 February 2016, p. 1 and references cited therein.

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ICTR Rule Rule 73(B) MICT Rule Rule 80(B);
Rule 86
Notion(s) Filing Case
Order to Vary Protective Measures - 17.05.2005 BRĐANIN Radoslav
(IT-99-36-A)

CONSIDERING the Appeals Chamber’s inherent authority, as the Chamber currently seised of proceedings in this case, to modify orders entered earlier in these proceedings, including those issued pursuant to Rule 75(A) of the Rules;[1]

[1] Cf. Rule 54 of the Rules.

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ICTR Rule Rule 54 ICTY Rule Rule 54