Appellate proceedings

Notion(s) Filing Case
Decision on Provisional Release - 30.09.2004 SIMATOVIĆ Franko
(IT-03-69-AR65.2)

2. The Prosecution seeks leave to appeal the Impugned Decision pursuant to Rules 65(D) and 65 (F) of the Rules of Procedure and Evidence (“Rules”). For leave to appeal to be granted by the Appeals Chamber the Prosecution is required to demonstrate good cause. [NOTE: WITH EFFECT FROM 8 AUGUST 2005 THE RULES OF PROCEDURE AND EVIDENCE WERE AMENDED SO THAT ANY DECISION UNDER RULE 65 RENDERED BY A TRIAL CHAMBER WOULD BE SUBJECT TO APPEAL AND THE PROVISION IN RULE 65(D) REQUIRING THAT LEAVE BE GRANTED BY A BENCH OF THREE JUDGES OF THE APPEALS CHAMBER “UPON GOOD CAUSE BEING SHOWN” WAS DELETED.] For the purposes of Rule 65, the jurisprudence of the Tribunal establishes that good cause will be shown if the applicant satisfies the Appeal Chamber that the Trial Chamber may have erred in the Impugned Decision.[1] While the Prosecution is required only to show the possibility of error on the part of the Trial Chamber for good cause to be established, the prior jurisprudence of the Tribunal shows that the Appeals Chamber will only grant leave where that possibility of error is clearly established.[2]

[1] Prosecutor v Blagoje Simić, Case No. IT-95-9-AR65, Decision on Application for Leave to Appeal, 19 April 2000, page 3.

[2] Prosecutor v Nikola [ainović & Dragoijub Ojdanić, Case No. IT-99-37 AR 65.2, Decision Refusing Leave to

Appeal, 26 June 2003; Prosecutor Blagoje Simić et.al, Case No. IT-95-9-AR65, Decision on Application for Leave

to Appeal, 19 April 2000; Prosecutor v Fatmir Limaj, et al, Case No. IT-03-66-AR65.3, Decision on Isak

Musliu’s Request for Provisional Release, 31 October 2003; Decision on Haradin Bala’s Request for Provisional

Release, 31 October 2003; Decision on Fatmir Limaj’ s Request for Provisional Release, 31 October 2003;

Prosecutor v Momčilo Krajišnik & Biljana Plašivić,  Case No. IT-00-39 & 40-AR65, Decision on Application for

Leave to Appeal, 14 December 2001; Prosecutor v Enver Hadžić, Case No. IT-01-47-AR65 & IT-0147-

AR65.2, Decision on Application for Leave to Appeal, 5 September 2002; Prosecutor v Vidoje Blagojević, Case

No. IT-02-60-AR65.3 & IT-02-60-AR65.4, Decision on Applications by Blagojević and Obrenović for Leave to

Appeal, 16 January 2003.

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ICTR Rule Rule 65 ICTY Rule Rule 65
Notion(s) Filing Case
Decision on Attendance at Memorial Services - 21.10.2004 SIMIĆ Blagoje
(IT-95-9-A)

14.     In accordance with the criteria set out in Rule 65(I) of the Rules for granting provisional release, the Appeals Chamber will first determine whether it is satisfied that, if released, the Appellant will surrender into detention at the conclusion of the fixed period. With regard to the applicable standard of proof, the Appeals Chamber recalls that Rule 65 of the Rules provides for provisional release for an accused as well as for a convicted person. The specificity of the appeal stage is reflected by Rule 65(I)(iii) of the Rules, which provides for an additional criterion, i.e. that “special circumstances exist warranting such release.” As to the burden of proof that an applicant must meet in order to satisfy the Appeals Chamber, there is no explicit or implicit provision in the Rules suggesting that a higher standard of proof should be applied on appeal. The Appeals Chamber deems that the inclusion of a provision on provisional release in the Rules was driven by humane and compassionate considerations together with concerns related to the principle of proportionality in international law. These concerns remain even if the applicant has been convicted at trial. The Appeals Chamber considers that the fact that the person has already been sentenced is a matter to take into account when balancing the probabilities. 

15.     The Appeals Chamber considers that the seriousness of the offences of which an appellant has been found guilty is one of the factors it has to take into account when assessing whether an appellant, if released, would return to detention. It is evident that the more severe the sentence is, the greater is the incentive to flee. The Appeals Chamber recalls, however, that this cannot be the sole factor that determines the outcome of an application for provisional release.

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ICTR Rule Rule 65 ICTY Rule Rule 65
Notion(s) Filing Case
Decision on Continuation of Appellate Proceedings for Gvero - 16.01.2013 POPOVIĆ et al.
(IT-05-88-A)

21. […] An appellant claiming to be unfit to participate in the proceedings bears the burden of so proving by a preponderance of the evidence.[1]

[1] See Strugar Appeal Judgement, para. 56.

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Notion(s) Filing Case
Decision on Provisional Release on Compassionate Grounds - 02.04.2008 STRUGAR Pavle
(IT-01-42-A)

3. Pursuant to Rule 65(I) of the Rules, a convicted person may bring an application seeking provisional release for a fixed period. By virtue of Rule 107 of the Rules, the whole of Rule 65 of the Rules applies mutatis mutandis to applications brought before the Appeals Chamber under this provision.[1] Rule 65(I) of the Rules thus provides that the Appeals Chamber may grant provisional release if it is satisfied that (i) the convicted person, if released, will either appear at the hearing of the appeal or will surrender into detention at the conclusion of the fixed period, as the case may be; (ii) the convicted person, if released, will not pose a danger to any victim, witness or other person, and; (iii) special circumstances exist warranting such release. These requirements must be considered cumulatively.[2] The Appeals Chamber recalls that “whether an applicant satisfies these requirements is to be determined on a balance of probabilities, and the fact that an individual has already been sentenced is a matter to be taken into account by the Appeals Chamber when balancing the probabilities.”[3]

[1] Cf. Prosecutor v. Fatmir Limaj et al., Case No. IT-03-66-A, Decision on Motion on Behalf of Haradin Bala for Temporary Provisional Release, 14 February 2008 ("Limaj Decision"), para. 4.

[2] Prosecutor v. Dragan Zelenović, Case No. IT-96-23/2-ES, Decision on Motion for Provisional Release, 21 February 2008, para. 3; Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Decision on Radoslav Brđanin’s Motion for Provisional Release, 23 February 2007 (“Brđanin Decision”), para. 5; Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Decision on Defence Request for Provisional Release of Stanislav Galić, 23 March 2005 (“Galić Decision”), para. 3; Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Decision on Mario Čerkez’s Request for Provisional Release, 12 December 2003 (“Kordić and Čerkez Decision”), para. 10.

[3] Limaj Decision, para. 5; Galić Decision, para. 3; Prosecutor v. Blagoje Simić, Case No. IT-95-9-A, Decision on Motion of Blagoje Simić Pursuant to Rule 65(I) for Provisional Release for a Fixed Period to Attend Memorial Services for his Father, 21 October 2004 (“Simić Decision of 21 October 2004”), para. 14.

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ICTR Rule Rule 65 ICTY Rule Rule 65
Notion(s) Filing Case
Decision on Continuation of Appellate Proceedings for Gvero - 16.01.2013 POPOVIĆ et al.
(IT-05-88-A)

21. The Appeals Chamber has held that an appellant’s ability to participate in the appellate proceedings is contingent upon whether he possesses the mental capacity to understand their essentials, and the mental and/or physical capacity to communicate, and thus consult, with his counsel.[1] It has further clarified that the following standard of fitness (“Standard of Fitness”) applicable to trial proceedings also applies mutatis mutandis with regard to an appellant's fitness to exercise his right to consult with counsel concerning the preparation of his appellate submissions:

[…] meaningful participation which allows the accused to exercise his fair trial rights to such a degree that he is able to participate effectively in his trial, and has an understanding of the essentials of the proceedings. [… A]n accused’s fitness to stand trial should turn on whether his capacities, “viewed overall and in a reasonable and commonsense manner, [are] at such a level that it is possible for [him or her] to participate in the proceedings (in some cases with assistance) and sufficiently exercise the identified rights”.[2]

[…]

22. […] [T]he Standard of Fitness focuses on an appellant’s ability to understand the essentials of the appellate proceedings. Processing the wealth of complex information inherent in international criminal proceedings is the role of defence counsel, in order to advise their clients. Indeed, the Standard of Fitness indicates that a defendant may sometimes require assistance to participate in the proceedings.[3]

[1] Decision of 20 April 2011 [Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-A, Decision on Prosecution’s Motion Seeking Clarification of Neurologist’s Conclusions, 20 April 2011 (confidential and ex parte)], p. 3; Decision of 13 December 2010, para. 11; Prosecutor v. Pavle Strugar, Case No. IT-01-42-A, Judgement, 17 July 2008 (“Strugar Appeal Judgement”), para. 55.

[2] See supra para. 21: “[…] possible for [him or her] to participate in the proceedings (in some cases with assistance) and sufficiently exercise the identified rights”.

 

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Notion(s) Filing Case
Decision on Provisional Release - 25.05.2009 HARADINAJ et al.
(IT-04-84-A)

3. Pursuant to Rule 65(I) of the Rules, a convicted person may bring an application seeking provisional release for a fixed period. By virtue of Rule 107 of the Rules, the whole of Rule 65 applies mutatis mutandis to applications brought before the Appeals Chamber under this provision.[1] Rule 65(I) of the Rules thus provides that the Appeals Chamber may grant provisional release if it is satisfied that: (i) the convicted person, if released, will either appear at the hearing of the appeal or will surrender into detention at the conclusion of the fixed period, as the case may be; (ii) the convicted person, if released, will not pose a danger to any victim, witness or other person, and; (iii) special circumstances exist warranting such release. These requirements must be considered cumulatively.[2] The Appeals Chamber recalls that “whether an applicant satisfies these requirements is to be determined on a balance of probabilities, and the fact that an individual has already been sentenced is a matter to be taken into account by the Appeals Chamber when balancing the probabilities”.[3] Finally, the discretionary assessments of the requirements under Rule 65 of the Rules are made on a case-by-case basis.[4]

[1] Prosecutor v. Milan Milutinović et al., Case No. IT-05-87-A, Decision on Vladimir Lazarević’s Motion for Temporary Provisional Release on the Grounds of Compassion, 2 April 2009, (confidential) (“Lazarević Decision”), para. 4; Prosecutor v. Ljube Boškoski and Johan Tarčulovski, Case No. IT-04-82-A, Decision on Johan Tarčulovski’s Motion for Provisional Release, 18 December 2008, (confidential) (“Tarčulovski Decision”), para. 3; Prosecutor v. Dragomir Milošević, Case No. IT-98-29/1-A, Decision on Application for Provisional Release Pursuant to Rule 65(I), 29 April 2008, (confidential) (“Milošević Decision”), para. 3.

[2] Lazarević Decision, para. 4; Tarčulovski Decision, para. 3; Milošević Decision, para. 3.

[3] Lazarević Decision, para. 4; Tarčulovski Decision, para. 3; Milošević Decision, para. 3.

[4] Lazarević Decision, para. 4; Prosecutor v. Pavle Strugar, Case No. IT-01-42-A, Decision on Defence Request Seeking Provisional Release on the Grounds of Compassion, 2 April 2008, Public Redacted Version (“Strugar Decision of 2 April 2008”), para. 11, referring to Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR65.5, Decision on Prosecution’s Consolidated Appeal Against Decisions to Provisionally Release the Accused Prlić, Stojić, Praljak, Petković and Ćorić, 11 March 2008, para. 7.

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ICTR Rule Rule 65 ICTY Rule Rule 65
Notion(s) Filing Case
Decision on Motion for Severance - 24.07.2009 BAGOSORA et al. (Military I)
(ICTR-98-41-A)

24.     The Appeals Chamber notes that by virtue of Rule 107 of the Rules, Rules 48 and 82 of the Rules also apply at the appellate stage. It further notes that, as before the Trial Chamber, the decision on joinder or severance is discretionary and requires a complex balancing of intangibles in order to properly regulate the proceedings.[3] Pursuant to Rule 82(B) of the Rules, when considering the severance of an appellant’s case from a previously joint trial, the Appeals Chamber has to assess whether joint proceedings would give rise to any conflict of interests that might cause serious prejudice to an accused, or whether a severance would protect the interests of justice.

[1] See for example Rule 115(D) of the Rules which benefits co-appellants in the presentation of additional evidence.

[2] This has been previously noted for trial proceedings in a number of cases: See, e.g., Tolimir Decision, para. 8; Prosecutor v. Radoslav Brðanin and Momir Talić, Case No. IT-99-36-PT, Decision on Motions By Momir Talić for a Separate Trial and for Leave to File a Reply, 9 March 2000, para. 31 (“Nothing could be more destructive of the pursuit of justice than to have inconsistent results in separate trials based upon the same facts.”); Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Decision on Motions for Separate Trial Filed by the Accused Zejnil Delalić and the Accused Zdravko Mucić, 26 September 1996, para. 7.

[3] Cf. Slobodan Milošević v. Prosecutor, Case No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defense Counsel, 1 November 2004, para. 9; Prosecutor v. Zdravko Tolimir et al., Case No. IT-04-80-AR73.1, Decision on Radivoje Miletić’s Interlocutory Appeal Against the Trial Chamber’s Decision on Joinder of Accused, 27 January 2006, para. 5 (“Tolimir Decision”). 

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Notion(s) Filing Case
Decision on Provisional Release - 22.05.2009 MILUTINOVIĆ et al.
(IT-05-87-A)

4. Pursuant to Rule 65(I) of the Rules of Procedure and Evidence of the Tribunal (“Rules”), a convicted person may bring an application seeking provisional release for a fixed period. By virtue of Rule 107 of the Rules, the whole of Rule 65 applies mutatis mutandis to applications brought before the Appeals Chamber under this provision.[1] Rule 65(I) of the Rules thus provides that the Appeals Chamber may grant provisional release if it is satisfied that (i) the convicted person, if released, will either appear at the hearing of the appeal or will surrender into detention at the conclusion of the fixed period, as the case may be; (ii) the convicted person, if released, will not pose a danger to any victim, witness or other person, and; (iii) special circumstances exist warranting such release. These requirements must be considered cumulatively.[2] The Appeals Chamber recalls that “whether an applicant satisfies these requirements is to be determined on a balance of probabilities, and the fact that an individual has already been sentenced is a matter to be taken into account by the Appeals Chamber when balancing the probabilities.”[3] Finally, the discretionary assessments of the requirements under Rule 65 are made on a case-by-case basis.[4]

[1] Prosecutor v. Rasim Delić, Case No. IT-04-83-A, Decision on Motion of Rasim Delić for Provisional Release, 11 May 2009 (“Delić Decision”), para. 5; Decision of 2 April 2009, para. 4, referring to Prosecutor v. Ljube Boškoski and Johan Tarčulovski, Case No. IT-04-82-A, Decision on Johan Tarčulovski’s Motion for Provisional Release, 18 December 2008, (confidential) (“Tarčulovski Decision”), para. 3; Prosecutor v. Pavle Strugar, Case No. IT-01-42-A, Decision on the Renewed Defence Request Seeking Provisional Release on Compassionate Grounds, 15 April 2008, (public redacted version) (“Strugar Decision of 15 April 2008), para. 5; and Prosecutor v. Pavle Strugar, Case No. IT-01-42-A, Decision on Defence Request Seeking Provisional Release on the Grounds of Compassion, 2 April 2008, (public redacted version (“Strugar Decision of 2 April 2008”), para. 3.

[2] Delić Decision, para. 5; Decision of 2 April 2009 [Decision on Vladimir Lazarević’s Motion for Temporary Provisional Release on the Grounds of Compassion, 2 April 2009 (confidential)], para. 4, referring to Tarčulovski Decision, para. 3; Strugar Decision of 15 April 2008, para. 5; and Strugar Decision of 2 April 2008, para. 3.

[3] Id.

[4] Delić Decision, para. 5; Decision of 2 April 2009, para. 4, referring to Strugar Decision of 2 April 2008, para. 11, referring to Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR65.5, Decision on Prosecution’s Consolidated Appeal Against Decisions to Provisionally Release the Accused Prlić, Stojić, Praljak, Petković and Ćorić, 11 March 2008, para. 7.

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ICTR Rule Rule 65 ICTY Rule Rule 65
Notion(s) Filing Case
Decision Regarding Expedited Adjudication - 22.10.2014 STANIŠIĆ & ŽUPLJANIN
(IT-08-91-A)

15. […] The Appeals Chamber recalls the well-established practice at this Tribunal that allegations of partiality of trial judges are dealt with in the course of the normal appellate process, i.e., in the appeal judgement.[1] The Appeals Chamber further recalls that it has already made a determination, in the present case, that it will make its own assessment of the issues relating to the alleged partiality of Judge Harhoff in the course of the normal appellate process.[2]

16. With respect to the Applicants’ first argument, the Appeals Chamber recalls its previous finding that there has been no “general finding” or “final determination” regarding Judge Harhoff’s alleged partiality in this case and that thus there is no basis for a claim of “ongoing prejudice” during the appeal proceedings.[3] The fairness and validity of the Trial Judgement is yet to be determined by the Appeals Chamber. The Appeals Chamber therefore rejects the Applicants’ argument that the appeal proceedings are themselves improper and unfair because the Trial Judgement is invalid. In relation to the Applicants’ arguments that the Grounds of Appeal are “credible” based on the Appeals Chamber’s decision to admit the Letter as additional evidence on appeal, the Appeals Chamber notes that this decision was made in the context of, and is limited to Rule 115 of the Rules. The Appeals Chamber emphasises its previous conclusion that the Rule 115 Decision “pertain[s]] strictly to the admissibility [of the Letter ]] and not to the merits of the appeals filed by the parties”.[4] The Appeals Chamber further emphasises that the credibility and merits of the appeals filed by the parties will be determined in due course by the Appeals Chamber. It is therefore not necessary to depart from the Tribunal’s well-established practice[5] on the basis that these proceedings “[flow] […] from an invalid Trial Judgement” as alleged by the Applicants.[6] The Applicants’ arguments in this regard are therefore without merit.

17. Regarding the Applicants’ second and third arguments, the Appeals Chamber notes that under Articles 20(1) and 21(4)(c) of the Statute, the Appeals Chamber has the primary obligation to ensure that a person convicted by a Trial Chamber has a fair and expeditious process on appeal. The Appeals Chamber is now seised of the fully briefed appeals. It is considering them and will deliver its judgement in due course.[7] The Appeals Chamber observes that the Applicants’ arguments of judicial economy and potential undue delay in the proceedings are based on a speculative premise as to the outcome of the appeals as a whole.[8] However, as previously emphasised, the outcome of the appeals lodged by the parties will be determined in the appeal judgement.[9] Therefore, the Appeals Chamber is not satisfied that “possible remedies” which might be ordered by it merit a departure from the practice of this Tribunal. The Appeals Chamber further emphasises that proceeding through the normal appellate process in the present case does not prejudice the Applicants. For these reasons, the Appeals Chamber is not convinced that judicial economy or the interests of justice require it to depart from the normal appellate process, i.e. considering the appeals as whole.

18. Consequently, the Appeals Chamber finds no justification to expedite adjudication of the Grounds of Appeal. 

[1] See [Prosecutor v. Mićo Stanišić and Stojan Župljanin, Case No. IT-08-91-A, Decision on Mićo Stanišić’s Motion Requesting a Declaration of Mistrial and Stojan Župljanin’s Motion to Vacate Trial Judgement, 2 April 2014 (“2 April 2014 Decision”)]], para. 21, fn. 72, and references cited therein.

[2] [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 (“Reconsideration Decision”)]], para. 15. See also 2 April 2014 Decision, paras 21, 25.

[3]2 April 2014 Decision, para. 25; Reconsideration Decision, para. 14.

[4] [Prosecutor v. Mićo Stanišić and Stojan Župljanin, Case No. IT-08-91-A, Decision on Mićo Stanišić’s Motion Seeking Admission of Additional Evidence Pursuant to Rule 115, 14 April 2014]], para. 26.

[5] See supra, para. 15.

[6] [Prosecutor v. Mićo Stanišić and Stojan Župljanin, Case No. IT-08-91-A, Joint Motion on Behalf of Mićo Stanišić and Stojan Župljanin Seeking Expedited Adjudication of Their Respective Grounds of Appeal 1Bis and 6, 25 August 2014, (“Motion”)]], para. 3. See supra, para. 10.

[7] See ₣[Prosecutor v. Mi}ćo Stani{ši}ć and Stojan Župljanin, Case No. IT-08-91-A,ğ]] Status Conference, 24 July 2014, T. 27.

[8] See Motion, paras 4-5.

[9] See supra, para. 15. 

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Notion(s) Filing Case
Decision on Access to Confidential Information - 09.09.2005 BLAGOJEVIĆ & JOKIĆ
(IT-02-60-A)

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[…] [C]ounsel participating in appeals proceedings are expected to familiarize themselves with the relevant procedural requirements;

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