Appellate review of revocation decision

Notion(s) Filing Case
Decision on Denial of Revocation - 21.05.2014 STANKOVIĆ Radovan
(MICT-13-51)

9. The Appeals Chamber further observes that Rule 11bis(I) of the ICTY Rules and Rule 14(E) of the MICT Rules expressly provide for an appeal as of right from a decision of a trial chamber on the referral of a case. However, Rule 11bis of the ICTY Rules and Rule 14 of the MICT Rules are silent on appeals from a decision of a trial chamber concerning revocation of a case. Notwithstanding, decisions on revocation concern, among other things, fundamental questions related to whether the Mechanism should exercise jurisdiction over a case and the fairness of the proceedings of the referred case.[1] In the absence of any provision limiting the right of appeal,[2] the Appeals Chamber considers that a decision on whether or not to revoke a case should be subject to appellate review.[3] For reasons of consistency, the Appeals Chamber considers that such appeals should follow the same procedure as provided for in cases involving appeals from decisions on referral set out in Rule 14(E) of the MICT Rules.[4]

[1] The Appeals Chamber recalls that decisions taken pursuant to Rule 11bis of the ICTY Rules, and by extension Rule 14 of the MICT Rules, are treated as akin to interlocutory appeals from decisions on preliminary motions challenging jurisdiction. See 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, para. 14.

[2] See, e.g., Rule 80(B) of the MICT Rules (which precludes interlocutory appeals on certain decisions absent certification granted by a trial chamber).

[3] Cf. Ntagerura Appeal Decision, para. 12; Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R75, Decision on Motion for Clarification, 20 June 2008, para. 14 (“Rule 75(G) of the Rules, which allows for the possibility of seeking to rescind, vary, or augment protective measures ordered at trial does not provide for an appeal as of right, nor do the [ICTR] Rules address the issue of whether a decision rendered by a Trial Chamber after the close of trial and appeal proceedings is subject to appeal. However, because issues related to access to confidential material by a convicted person concern the important question of balance between the right of the convicted person to access potentially exculpatory material and the need to guarantee the protection of victims and witnesses,the Appeals Chamber considers, proprio motu, that an applicant is entitled to challenge a decision by a Trial Chamber, pursuant to Rule 75(G) of the [ICTR] Rules, rendered after the close of trial and appeal proceedings before the Appeals Chamber.”) (internal citation omitted); André Rwamakuba v. The Prosecutor, Case No. ICTR-98-44C-A, Decision on Prosecution’s Notice of Appeal and Scheduling Order, 18 April 2007, paras. 2-4, 8-9 (allowing an appeal from a decision concerning the compensation of an acquitted person and setting out a scheduling order in the absence of procedural rules for disposing of such an appeal). 

[4] See Rule 14(E) of the MICT Rules (“Notice of appeal shall be filed within fifteen days of the decision unless the accused was not present or represented when the decision was pronounced, in which case the time-limit shall run from the date on which the accused is notified of the decision. The appellant shall file an appeal brief within fifteen days after filing the notice of appeal. The opposite Party shall file a response within ten days of the filing of the appeal brief, and the appellant may file a reply within four days of the filing of the response.”).

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ICTY Rule Rule 11 bis MICT Rule Rule 14