Review

Notion(s) Filing Case
Review Decision - 07.07.2015 LUKIĆ & LUKIĆ
(MICT-13-52-R.1)

14.     The Appeals Chamber recalls the critical distinction between material submitted in support of a fact, which was not in issue or considered in the original proceedings, and material, which consists of additional evidence relating to a fact that was in issue or considered in the original proceedings.[1] Review will not be available where a fact was previously in issue.[2] Therefore, it is the definition of the fact in issue in the original proceedings, which will determine the availability of the review procedure.[3] The burden for showing that the information in the tendered material amounts to a “new fact” lies with the moving party.[4] […]

[1] Blaškić Review Decision [Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-R, Decision on Prosecutor’s Request for Review or Reconsideration, 23 November 2006], para. 40; Prosecutor v. Mlađo Radić, IT-98-30/1-R.1, Decision on Defence Request for Review, 31 October 2006, para. 22; Prosecutor v. Drago Josipović, IT-95-16-R2, Decision on Motion for Review, 7 March 2003 (“Josipović Review Decision”), para. 18; Prosecutor v. Hazim Delić, IT-96-21-R-R119, Decision on Motion for Review, 25 April 2002 (“Delić Review Decision”), para. 11, referring to Prosecutor v Tadić, IT-94-1-A, Decision on Appellant’s Motion for the Extension of the Time Limit and Admission of Additional Evidence, 15 October 1998, paras. 30, 32; Jean Bosco Barayagwiza v The Prosecutor, ICTR-97-19-AR72, Decision on Prosecutor’s Request for Review or Reconsideration, 31 March 2000, para. 42.

[2] Delić Review Decision, para. 11.

[3] Blaškić Review Decision, paras. 15-18; Josipović Review Decision, para. 19.

[4] François Karera v. The Prosecutor, ICTR-01-74-R, Decision on Requests for Reconsideration and Review, 26 March 2012 (“Karera Review Decision”), para. 17; Blaškić Review Decision, para. 16; Delić Review Decision, paras. 10, 13.

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MICT Rule Rule 146
Notion(s) Filing Case
Review Decision - 14.07.2010 ŠLJIVANČANIN Veselin
(IT-95-13/1-R.1)

On 5 May 2009, the Appeals Chamber issued a judgement which, inter alia, upheld the conviction of Veselin Šljivančanin (“Šljivančanin”) for aiding and abetting torture as a violation of the laws or customs of war and added, Judges Pocar and Vaz dissenting, a new conviction for aiding and abetting murder as a violation of the laws or customs of war. The new conviction was based in part on the Appeals Chamber’s new factual findings concerning a conversation between Šljivančanin and Mile Mrkšić (“Conversation”).[1]

In an application for review filed on 28 January 2010,[2] Šljivančanin asserted that Miodrag Panić was prepared to offer testimony that invalidated Šljivančanin’s conviction for aiding and abetting murder as a violation of the laws or customs of war, and that the content of the Conversation that would be the subject of this testimony constituted a “new fact” in the context of Rule 119 of the Rules of Procedure and Evidence of the Tribunal.

At pages 2 and 3, the Appeals Chamber stated:

CONSIDERING that, pursuant to Article 26 of the Statute of the Tribunal (“Statute”) and Rules 119 and 120 of the Rules, for a party to succeed in persuading the Appeals Chamber to review a judgement, the party must first satisfy the following cumulative requirements:

a)     there is a new fact;

b)     the new fact was not known to the moving party at the time of the original proceedings;

c)     the failure to discover the new fact was not due to a lack of due diligence on the part of the  moving party; and

d)     the new fact could have been a decisive factor in reaching the original decision;[3]

[…]

CONSIDERING that what is relevant in evaluating an application for review is not “whether [a] new fact already existed before […] original proceedings or during such proceedings” but, rather, “whether the deciding body and the moving party knew about the fact or not” in arriving at its decision;[4]

CONSIDERING that, in “wholly exceptional circumstances”, review may still be permitted even though the “new fact” was known to the moving party or was discoverable by it through the exercise of due diligence if a Chamber is presented with “a new fact that is of such strength that it would affect the verdict”[5] and determines that “review of its judgement is necessary because the impact of the new fact on the decision is such that to ignore it would lead to a miscarriage of justice”;[6]

[1] Prosecutor v. Mile Mrkšić and Veselin Šljivančanin, Case No. IT-95-13/1-A, Judgement, 5 May 2009 (“Mrkšić and Šljivančanin Appeal Judgement”), para. 62.

[2] Application on Behalf of Veselin Šljivančanin for Review of the Appeals Chamber Judgment of 5 May 2009, 28 January 2010.

[3] Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-R, Decision on Prosecutor’s Request for Review or Reconsideration, 23 November 2006 (public redacted version) (“Blaškić Decision”), para. 7. See also Mladen Naletilić, a.k.a “Tuta” v. Prosecutor, Case No. IT-98-34-R, Decision on Mladen Naletilić’s Request for Review, 19 March 2009 (“Naletilić Decision”), para. 10; Georges Anderson Nderubumwe Rutaganda v. The Prosecutor, Case No. ICTR-96-03-R, Decision on Requests for Reconsideration, Review, Assignment of Counsel, Disclosure, and Clarification, 8 December 2006 (“Rutaganda Decision”), para. 8.

[4] Prosecutor v. Duško Tadić, Case No. IT-94-1-R, Decision on Motion for Review, 8 August 2002 (“Tadić Decision”), para. 25. See also Naletilić Decision, para. 11; Rutaganda Decision, para. 9.

[5] Tadić Decision, para. 27 (emphasis added). See also Rutaganda Decision, para. 8; Blaškić Decision, para. 8.

[6] Blaškić Decision, para. 8 (citation omitted). See also Naletilić Decision, para. 10; Rutaganda Decision, para. 8; Jean Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision (Prosecutor’s Request for Review or Reconsideration), 31 March 2000 (“Barayagwiza Decision”), paras 63-69.

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ICTR Statute Article 25 ICTY Statute Article 26 ICTR Rule Rule 120;
Rule 121
ICTY Rule Rule 119;
Rule 120
Notion(s) Filing Case
Review Decision - 14.07.2010 ŠLJIVANČANIN Veselin
(IT-95-13/1-R.1)

On 5 May 2009, the Appeals Chamber issued a judgement which, inter alia, upheld the conviction of Veselin Šljivančanin (“Šljivančanin”) for aiding and abetting torture as a violation of the laws or customs of war and added, Judges Pocar and Vaz dissenting, a new conviction for aiding and abetting murder as a violation of the laws or customs of war. The new conviction was based in part on the Appeals Chamber’s new factual findings concerning a conversation between Šljivančanin and Mile Mrkšić (“Conversation”).[1]

In an application for review filed on 28 January 2010,[2] Šljivančanin asserted that Miodrag Panić was prepared to offer testimony that invalidated Šljivančanin’s conviction for aiding and abetting murder as a violation of the laws or customs of war, and that the content of the Conversation that would be the subject of this testimony constituted a “new fact” in the context of Rule 119 of the Rules of Procedure and Evidence of the Tribunal.

At pages 3 and 4, the Appeals Chamber stated:

CONSIDERING FURTHER that, although the Panić New Fact was discoverable through due diligence by Šljivančanin’s counsel, review of the Mrkšić and Šljivančanin Appeal Judgement is necessary because the impact of the Panić New Fact, if proved, is such that to ignore it would lead to a miscarriage of justice;

[1] Prosecutor v. Mile Mrkšić and Veselin Šljivančanin, Case No. IT-95-13/1-A, Judgement, 5 May 2009 (“Mrkšić and Šljivančanin Appeal Judgement”), para. 62.

[2] Application on Behalf of Veselin Šljivančanin for Review of the Appeals Chamber Judgment of 5 May 2009, 28 January 2010.

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ICTR Rule Rule 120;
Rule 121
ICTY Rule Rule 119;
Rule 120
Notion(s) Filing Case
Review Decision - 14.07.2010 ŠLJIVANČANIN Veselin
(IT-95-13/1-R.1)

On 5 May 2009, the Appeals Chamber issued a judgement which, inter alia, upheld the conviction of Veselin Šljivančanin (“Šljivančanin”) for aiding and abetting torture as a violation of the laws or customs of war and added, Judges Pocar and Vaz dissenting, a new conviction for aiding and abetting murder as a violation of the laws or customs of war. The new conviction was based in part on the Appeals Chamber’s new factual findings concerning a conversation between Šljivančanin and Mile Mrkšić (“Conversation”).[1]

In an application for review filed on 28 January 2010,[2] Šljivančanin asserted that Miodrag Panić was prepared to offer testimony that invalidated Šljivančanin’s conviction for aiding and abetting murder as a violation of the laws or customs of war, and that the content of the Conversation that would be the subject of this testimony constituted a “new fact” in the context of Rule 119 of the Rules of Procedure and Evidence of the Tribunal.

At pages 2 and 3, the Appeals Chamber stated:

CONSIDERING that a “new fact” within the meaning of Article 26 of the Statute and Rules 119 and 120 of the Rules consists of “new information of an evidentiary nature of a fact that was not in issue during the trial or appeal proceedings”;[3]

[…]

CONSIDERING that the new information provided by Panić concerning the Conversation constitutes a “new fact” (“Panić New Fact”), that, if proved, could fundamentally alter the balance of evidence relating to this case, eliminating the basis for the Mrkšić and Šljivančanin Appeal Judgement’s conclusion that Šljivančanin possessed the mens rea for aiding and abetting murder as a violation of the laws or customs of war;[4]

[1] Prosecutor v. Mile Mrkšić and Veselin Šljivančanin, Case No. IT-95-13/1-A, Judgement, 5 May 2009 (“Mrkšić and Šljivančanin Appeal Judgement”), para. 62.

[2] Application on Behalf of Veselin Šljivančanin for Review of the Appeals Chamber Judgment of 5 May 2009, 28 January 2010.

[3] Blaškić Decision, para. 14 (citation and quotation marks omitted). See also id., paras 17-18; Naletilić Decision, para. 11; Rutaganda Decision, para. 9.

[4] Cf. Barayagwiza Decision paras 64-65, 71.

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ICTR Statute Article 25 ICTY Statute Article 26 ICTR Rule Rule 120;
Rule 121
ICTY Rule Rule 119;
Rule 120
Notion(s) Filing Case
Review Decision - 14.07.2010 ŠLJIVANČANIN Veselin
(IT-95-13/1-R.1)

On 5 May 2009, the Appeals Chamber issued a judgement which, inter alia, upheld the conviction of Veselin Šljivančanin (“Šljivančanin”) for aiding and abetting torture as a violation of the laws or customs of war and added, Judges Pocar and Vaz dissenting, a new conviction for aiding and abetting murder as a violation of the laws or customs of war. The new conviction was based in part on the Appeals Chamber’s new factual findings concerning a conversation between Šljivančanin and Mile Mrkšić (“Conversation”).[1]

In an application for review filed on 28 January 2010,[2] Šljivančanin asserted that Miodrag Panić was prepared to offer testimony that invalidated Šljivančanin’s conviction for aiding and abetting murder as a violation of the laws or customs of war, and that the content of the Conversation that would be the subject of this testimony constituted a “new fact” in the context of Rule 119 of the Rules of Procedure and Evidence of the Tribunal.

At page 4, the Appeals Chamber stated:

CONSIDERING that, pursuant to Rule 120 of the Rules, a hearing to consider evidence on the Panić New Fact (“Review Hearing”) will be held;

CONSIDERING that the Review Hearing will allow the parties to provide supporting and rebuttal evidence concerning the Panić New Fact and that, before setting the date and structure of the Review Hearing, it is appropriate to consider the scope of evidence, if any, the parties wish to present;[3]

[…]

ORDERS the parties to submit in writing, no later than 30 July 2010, a list of evidence and witnesses, if any, each proposes to introduce at the Review Hearing;

FURTHER ORDERS the parties to include with respect to each piece of evidence or witness: (i) a brief description of anticipated relevance; and (ii) the proposed time allocation for any witness;

EMPHASISES to the parties that all evidence they propose to submit must be limited to supporting or casting doubt on the Panić New Fact;

[1] Prosecutor v. Mile Mrkšić and Veselin Šljivančanin, Case No. IT-95-13/1-A, Judgement, 5 May 2009 (“Mrkšić and Šljivančanin Appeal Judgement”), para. 62.

[2] Application on Behalf of Veselin Šljivančanin for Review of the Appeals Chamber Judgment of 5 May 2009, 28 January 2010.

[3] Cf. Rules 54 and 107 of the Rules.

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ICTR Rule Rule 121 ICTY Rule Rule 120
Notion(s) Filing Case
Review Judgement - 08.12.2010 ŠLJIVANČANIN Veselin
(IT-95-13/1-R.1)

32. The Appeals Chamber recalls its prior conclusion that “the impact of the Panić New Fact, if proved, is such that to ignore it would lead to a miscarriage of justice”.[1] In this respect, the Appeals Chamber notes that the Additional Conviction was premised on both a delineation of Šljivančanin’s duty to protect the Prisoners,[2] and the Appeals Chamber’s finding that Šljivančanin possessed the mens rea to aid and abet murder as a violation of the laws or customs of war.[3] The Appeals Chamber further observes that its finding concerning Šljivančanin’s mens rea rested on the conclusion that the only reasonable interpretation from the available circumstantial evidence was that Mrkšić informed Šljivančanin of the Withdrawal Order during the Conversation. The Panić New Fact renders this latter inference untenable, and thus undermines the Mrkšić and Šljivančanin Appeal Judgement’s finding that Šljivančanin was guilty of aiding and abetting murder as a violation of the laws or customs of war.[4] Accordingly, the Appeals Chamber vacates the Additional Conviction.[5]

See also para. 31.

[1] [Decision with Respect to Veselin Šljivančanin’s Application for Review, 14 July 2010], p. 4.

[2] See [Prosecutor v. Mile Mrkšić and Veselin [ljivančanin, Case No. IT-95-13/1-A, Judgement, 5 May 2009 (“Mrkšić and [ljivančanin Appeal Judgement”)], para. 74. The Appeals Chamber observes that this conclusion of the Mrkšić and [ljivančanin Appeal Judgement is not at issue in these review proceedings.

[3] Id., para. 63. See also id., para. 75.

[4] Id., para. 103, p. 169.

[5] In light of this determination, the Appeals Chamber will not entertain Šljivančanin’s request to call his own military expert. See [Reply on Behalf of Veselin [ljivančanin to Prosecution Response, 3 November 2010], para. 32.

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ICTR Statute Article 25 ICTY Statute Article 26 ICTR Rule Rule 120;
Rule 121
ICTY Rule Rule 119;
Rule 120
Notion(s) Filing Case
Review Decision - 08.07.2015 LUKIĆ Sreten
(MICT-14-67-R.1)

11. The Appeals Chamber observes that Lukić’s condition was in issue at trial and on appeal, and the reports he relies upon for the purposes of his request are merely additional evidence going to proof of matters considered in the original proceedings.[1] Accordingly, the material submitted that relates to Lukić’s health condition does not amount to a “new fact” for the purposes of review under Rule 146 of the Rules. In any case, Lukić’s request for reduction of his sentence, and release on grounds of the recent deterioration of his health and diminished life expectancy, are more appropriately characterized as grounds in support of a request for early release. The Statute and Rules provide that the supervision of enforcement of sentences pronounced by the ICTY, and competence over requests for early release, lie within the powers of the President of the Mechanism.[2]

[1] Trial Judgement, vol. 3, para. 1203; Appeal Judgement, para. 1827.

[2] Statute, Article 25; Rules 127-128, 149-151 of the Rules.

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MICT Rule Rule 146
Notion(s) Filing Case
Review Decision - 08.07.2015 LUKIĆ Sreten
(MICT-14-67-R.1)

22. The Appeals Chamber considers that the relevant findings in the Ðorđević Appeal Judgment do not amount to “new information of an evidentiary nature of a fact” and thus cannot be considered a new fact for the purposes of review under Rule 146 of the Rules.[1] In the Appeals Chamber’s view, Lukić is essentially requesting reconsideration of the final judgment. However, in principle, the Appeals Chamber has no power to reconsider a final judgment in light of the legal analysis on the elements of a crime adopted by a subsequent Appeals Chamber judgment.[2]

[1] See Tharcisse Muvunyi v. Prosecutor, Case No. ICTR-00-55A-R, Decision on Request for Variation of Protective Measures and Request for Review, 28 September 2012, para. 24 (“the Appeals Chamber considers that a finding made by a separate trial chamber on the criminal liability of another accused based on a different evidentiary record does not amount to a new fact for the purposes of review”); Eliézer Niyitegeka v. The Prosecutor, ICTR-96-14-R, Decision on Request for Review, 6 March 2007, para. 7 (“The Appeals Chamber is not satisfied that the reasoning applied in the Rwamakuba Trial Judgement constitutes new information of an evidentiary nature of a fact that was not in issue during the trial or appeal proceedings”); Prosecutor v Goran Jelišić, IT-95-10-R, Decision on Motion for Review, 2 May 2002, pp. 2-3 (“Noting the Applicant’s submissions that a new fact has arisen, being the development, since the Appeal Judgement, in the case law of the Tribunal with respect to the approach to sentencing […] Finding that the alleged new fact relied upon by the Applicant is not of an evidentiary nature and, therefore, that the Applicant has failed to show the existence of a new fact”). See also Eliézer Niyitegeka v. Prosecutor, Case No. MICT-12-16-R, Decision on Niyitegeka’s Request for Assignment of Counsel, 6 November 2014, para. 8.

[2] See Prosecutor v. Momčilo Perisić, Case No. IT-04-81-A, Decision on Motion for Reconsideration, 20 March 2014, p. 2

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MICT Rule Rule 146
Notion(s) Filing Case
Decision on Reopening Appeal - 07.06.2007 STRUGAR Pavle
(IT-01-42-Misc.1)

21. [… ] The Decision Accepting Withdrawals can be considered a “final judgement” for purposes of Article 26 because it “terminates the proceedings”.[1]  Strugar nowhere suggests, however, that he is bringing a motion for review, and he fails to address how he satisfies the basic requirements for review.  He nowhere explains, for example, how an apparent legal impediment constitutes a “fact”[2] or how it can be deemed “new” where the matter of legal impediments was plainly at issue in the earlier proceedings.[3]  Accordingly, the Appeals Chamber does not consider the Defence Request to constitute a motion for review.

[1] Jean-Bosco Barayagwiza v. Prosecutor, Case No. ICTR-97-19-AR72, Decision (Prosecutor’s Request for Review or Reconsideration), 31 March 2000 (“Barayagwiza Decision”), para. 49.

[2] See Prosecutor v. Goran Jelisić, Case No. IT-95-10-R, Decision on Motion for Review, 2 May 2002, p. 3 (rejecting the convicted person’s argument that a change in the governing legal standard constituted a “new fact” of “an evidentiary nature”).

[3] See ibid. [Prosecutor v. Goran Jelisić, Case No. IT-95-10-R, Decision on Motion for Review, 2 May 2002, p. 3] (stating that the term “new fact” refers to “new information of an evidentiary nature of a fact that was not in issue during the trial or appeal proceedings”).

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ICTR Statute Article 25 ICTY Statute Article 26
Notion(s) Filing Case
Review Decision - 31.10.2006 RADIĆ Mlađo
(IT-98-30/1-R.1)

At paras 9-11, the Appeals Chamber recalled the law applicable to review proceedings:

9. Review proceedings are governed by the following provisions of the Statute and Rules:

Article 26 of the Statute provides that:

Where a new fact has been discovered which was not known at the time of the proceedings before the Trial Chambers or the Appeals Chamber and which could have been a decisive factor in reaching the decision, the convicted person or the Prosecutor may submit to the International Tribunal an application for review of the judgement.

Rule 119 deals with the request for review and stipulates that:

Where a new fact has been discovered which was not known to the moving party at the time of the proceedings before a Trial Chamber or the Appeals Chamber, and could not have been discovered through the exercise of due diligence, the defence or, within one year after the final judgement has been pronounced, the Prosecutor, may make a motion to that Chamber for review of the judgement. If, at the time of the request for review, any of the Judges who constituted the original Chamber are no longer Judges of the Tribunal, the President shall appoint a Judge or Judges in their place.

Rule 120 provides for a preliminary examination and states that:

If a majority of Judges of the Chamber constituted pursuant to Rule 119 agrees that the new fact, if proved, could have been a decisive factor in reaching a decision, the Chamber shall review the judgement, and pronounce a further judgement after hearing the parties.

10. The combined effect of these provisions of the Statute and the Rules is that in order for a Chamber to proceed to the review of its decision, the moving party must demonstrate that:

there is a new fact;

the new fact was not known to the moving party at the time of the proceedings before the Trial Chamber or the Appeals Chamber;

the lack of discovery of the new fact was not due to a lack of diligence on the part of the moving party; and

the new fact, if proved, could have been a decisive factor in reaching the original decision.[1]

11. In "wholly exceptional circumstances", where the impact of a new fact on the decision would be such that to ignore it would lead to a miscarriage of justice, the Chambers may review their decision even though the new fact was known to the moving party, or was discoverable by it through the exercise of due diligence.[2] As stated in the Tadić Review:

the Appeals Chamber, whenever it is presented with a new fact that is of such strength that it would affect the verdict, may, in order to prevent a miscarriage of justice, step in and examine whether or not the new fact is a decisive factor, even though the second and third criteria under Rule 119 of the Rules may not be formally met.[3]

[1] Prosecutor v. Niyitegeka, Case No. ICTR-96-14-R, Decision on Request for Review (“Niyitegeka Review”), para. 6; Prosecutor v. Josipović, Case No. IT-95-16-R.2, Decision on Motion for Review, 7 March 2003 ("Josipović Review"), para. 12; Prosecutor v. Delić, Case No. IT-96-21-R-R119, Decision on Motion for Review, 25 April 2002 ("Delić Review"), para. 8; Prosecutor v. Tadić, Case No. IT-94-1-R, Decision on Motion for Review, 30 July 2002, ("Tadić Review"), para. 20; Prosecutor v. Barayagwiza, Case No. ICTR-97-19-AR72, Decision on Prosecutor’s Request for Review or Reconsideration, 31 March 2000, ("Barayagwiza Review"), para 41.

[2] Josipović Review, para. 13 citing Barayagwiza Review, para. 65. See also Niyitegeka Review, para. 7.

[3] Tadić Review, para 27.

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ICTR Statute Article 25 ICTY Statute Article 26 ICTR Rule Rule 120;
Rule 121
Notion(s) Filing Case
Decision on Consolidated Motion - 08.12.2006 RUTAGANDA George
(ICTR-96-03-R)

8. Review proceedings are governed by Article 25 of the Statute and Rules 120 and 121 of the Rules. Review of a final judgement is an exceptional procedure and is not meant to provide an additional opportunity for a party to remedy its failings at trial or on appeal.[1] Review may be granted only when the moving party satisfies the following cumulative criteria: (1) there is a new fact; (2) the new fact was not known to the moving party at the time of the original proceedings; (3) the lack of discovery of that new fact was not the result of lack of due diligence by the moving party; and (4) the new fact could have been a decisive factor in reaching the original decision.[2] In wholly exceptional circumstances, the Appeals Chamber may grant review, even where the second or third criteria are not satisfied, if ignoring the new fact would result in a miscarriage of justice.[3]

9. The Appeals Chamber recalls that a “new fact” refers to new information of an evidentiary nature of a fact that was not in issue during the trial or appeal proceedings.[4] By the phrase “not in issue”, the Appeals Chamber has held that “it must not have been among the factors that the deciding body could have taken into account in reaching its verdict.”[5] In other words, what is relevant is whether the deciding body knew about the fact or not in arriving at the decision.[6]

[1] Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R, Decision on Request for Review, 30 June 2006, paras 5-7 (“Niyitegeka Review Decision”). See also Jean-Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision (Prosecutor’s Request for Review or Reconsideration), 31 March 2000, para. 43 (“Barayagwiza Review Decision”).

[2] Niyitegeka Review Decision, paras 5-7. See also Blaškić Review Decision [ Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-R, Decision on Prosecutor’s Request for Review or Reconsideration, 23 November 2006], para. 7; The Prosecutor v. Zoran Žigić, Case No. IT-98-30/1-R.2, Decision on Zoran Žigić’s Request for Review under Rule 119, 25 August 2006, para. 8 (“Žigić Review Decision”); The Prosecutor v. Mlađo Radić, Case No. IT-98-30/1-R.1, Decision on Defence Request for Review, 31 October 2006, paras 9-11 (“Radić Review Decision”).

[3] Niyitegeka Review Decision, para. 7; Blaškić Review Decision, para. 8; Radić Review Decision, para. 11; The Prosecutor v. Duško Tadić, Case No. IT-94-1-R, Decision on Request for Review, 30 July 2002, paras 26, 27 (“Tadić Review Decision”).

[4] Niyitegeka Review Decision, para. 6. See also Blaškić Review Decision, paras 14, 15; Tadić Review Decision, para. 25.

[5] Niyitegeka Review Decision, para. 6. See also Blaškić Review Decision, paras 14, 15; Tadić Review Decision, para. 25.

[6] Blaškić Review Decision, para. 14.

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ICTR Statute Article 25 ICTY Statute Article 26 ICTR Rule Rule 120;
Rule 121;
Rule 122
ICTY Rule Rule 119;
Rule 120;
Rule 121
Notion(s) Filing Case
Decision on Consolidated Motion - 08.12.2006 RUTAGANDA George
(ICTR-96-03-R)

41. The Appeals Chamber recalls that review is an exceptional remedy and that an applicant is only entitled to assigned counsel, at the Tribunal’s expense, if the Appeals Chamber authorizes the review.[1] Nonetheless, counsel may be assigned at the preliminary examination stage, normally for a very limited duration, if it is necessary to ensure the fairness of the proceedings.[2] Mr. Rutaganda has already made extensive and detailed submissions supported by a number of exhibits in his Request for Review. The Appeals Chamber is not satisfied that additional briefing would be of assistance in the present inquiry. In such circumstances, Mr. Rutaganda’s Request for Review does not warrant the assignment of counsel under the auspices of the Tribunal’s legal aid system.

42. Nonetheless, as a general matter, Mr. Rutaganda may be assisted by counsel in connection with a request for review at his own expense or on a pro bono basis provided the counsel files a power of attorney with the Registrar and satisfies the requirements to appear before the Tribunal. The Registry informed Mr. Rutaganda of this in its letter dated 21 October 2004, explaining that his former counsel could contact him.[3] Thereafter, Mr. Rutaganda filed a notice to the Deputy Registrar indicating that he had retained his former counsel to assist him.[4] Even putting aside that Rule 44(A) of the Rules refers to the counsel filing a power of attorney, Mr. Rutaganda has not pointed to any instance after that point where he was denied access to his counsel.[5] The Appeals Chamber further observes that, in his request, he refers to the pro bono assistance which he received from his former counsel during this period.[6] Accordingly, the Appeals Chamber declines to consider further Mr. Rutaganda’s alleged violations of his right to communicate with counsel. In any event, as a general rule, such matters should first and foremost be addressed by the Registrar.[7]

[1] Eliézer Niyitegeka v. The Prosecutor, Case No. 96-14-R, Decision on Niyitegeka’s Urgent Request for Legal Assistance, 20 June 2005 (“Niyitegeka Counsel Decision”).

[2] Niyitegeka Counsel Decision.

[3] The Registry informed Mr. Rutaganda of as much in its letter to him dated 21 October 2004, explaining that his former counsel could contact him. See Consolidated Request, Annex XVI (Letter from Aminatta N’gum, Acting Chief of the Tribunal’s Defence Counsel and Detention Management Section, to Mr. Rutaganda, dated 21 October 2004).

[4] Consolidated Request, para. 261, Exhibit XVIII.

[5] Mr. Rutaganda refers to an incident in March 2005. However, his correspondence refers to a communication with his sister. See Consolidated Request, para. 262, Exhibit XIX.

[6] See Consolidated Request, para. 114 (noting that the Démé and Yaache Affidavits were obtained as a result of the “persistent and voluntary research carried out by his former Defence team.”).

[7] Cf. The Prosecutor v. Zeljko Mejakić et al., Case No. IT-02-65-AR73.1, Decision on Appeal by the Prosecution to Resolve Conflict of Interest Regarding Attorney Jovan Simić, 6 October 2004, para. 7 (“The Registrar has the primary responsibility of determining matters relating to the assignment of counsel under the legal aid system.”).

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Notion(s) Filing Case
Decision on Access to Confidential Material - 22.04.2009 RUTAGANDA George
(ICTR-96-3-R)

31. The Appeals Chamber recalls that review of a final judgement is an exceptional remedy and that an indigent applicant is only entitled to assigned counsel at the Tribunal’s expense if the Appeals Chamber authorizes the review or if it deems it necessary in order to ensure the fairness of the proceedings at the preliminary examination stage.[1] The Appellant has already made detailed submissions with regard to his request for access to the confidential materials of Witness AWE, and the Appeals Chamber is not satisfied that additional submissions would be of assistance to the present inquiry. In such circumstances, the Appeals Chamber considers that the assignment of counsel under the auspices of the Tribunal’s legal aid scheme is not warranted. The Appeals Chamber therefore dismisses the request.

[1] Alfred Musema v. The Prosecutor, Case No. ICTR-96-13-R, Decision on Request for Assignment of Counsel, 27 February 2009, pp. 2, 3; Emmanuel Ndindabahizi v. The Prosecutor, Case No. ICTR-01-71-R, Decision on Emmanuel Ndindabahizi’s Motion for Assignment of Counsel and the Prosecution’s Request to Place the Motion Under Seal, 24 September 2008, p. 2; Jean-Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-99-52A-R, Decision on Jean-Bosco Barayagwiza’s Motion of 6 March 2008, 11 April 2008, p. 3; Hassan Ngeze v. The Prosecutor, Case No. ICTR-99-52-R, Decision on Hassan Ngeze’s Motion To Obtain Assistance From Counsel, 28 February 2008, p. 2; Eliézer Niyitegeka v. The Prosecutor, Decision on Third Request for Review, 23 January 2008, para. 12. The Appeals Chamber recalls that it has rejected a previous request from the Appellant to have counsel assigned under the Tribunal’s legal aid scheme to assist him in the post-appeal phase. See Decision of 8 December 2006, paras. 40-42.

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Decision on Review - 19.03.2009 NALETILIĆ Mladen
(IT-98-34-R)

10. The combined effect of Article 26 of the Statute and Rules 119 and 120 of the Rules is such that for a moving party to succeed in persuading a Chamber to review its judgement, the party must show that: (1) there is a new fact; (2) the new fact was not known to the moving party at the time of the original proceedings; (3) the lack of discovery of that new fact was not the result of a lack of due diligence by the moving party; and (4) the new fact could have been a decisive factor in reaching the original decision.[1] In wholly exceptional circumstances, review may still be permitted even though the new fact was known to the moving party at the time of the original proceedings or was discoverable by it through the exercise of due diligence, if ignoring such new fact would result in a miscarriage of justice.[2] Review of a final judgement is an exceptional procedure and not an additional opportunity for a party to re-litigate arguments that failed at trial or on appeal.[3]

[1] Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-R, Decision on Prosecutor’s Request for Review or Reconsideration (Public Redacted Version), 23 November 2006 (“Blaškić Review Decision”), para. 7; Prosecutor v. Mlađo Radić, Case No. IT-98-30/1-R.1, Decision on Defence Request for Review (Public Redacted Version), 31 October 2006 (“Radić Review Decision”), paras 9-10; Prosecutor v. Zoran Žigić, Case No. IT-98-30/1-R.2, Decision on Zoran Žigić’s Request for Review under Rule 119, 25 August 2006, para. 8; Prosecutor v. Duško Tadić, Case No. IT-94-1-R, Decision on Request for Review, 30 July 2002 (French), 8 August 2002 (English) (“Tadić Review Decision”), para. 20. See also George A. N. Rutaganda v. The Prosecutor, Case No. ICTR-96-03-R, Decision on Requests for Reconsideration, Review, Assignment of Counsel, Disclosure, and Clarification, 8 December 2006 (“Rutaganda Review Decision”), para. 8; The Prosecutor v. Aloys Simba, Case No. ICTR-01-76-A, Decision on Aloys Simba’s Requests for Suspension of Appeal Proceedings and Review, 9 January 2007, para. 8; Eliezer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R, Decision on Third Request for Review, 23 January 2008 (“Niyitegeka Review Decision”), para. 13.

[2] Blaškić Review Decision, para. 8; Radić Review Decision, para. 11; Tadić Review Decision, paras 26-27. See also Rutaganda Review Decision, para. 8; Niyitegeka Review Decision, para. 13.

[3] Vidoje Blagojević v. Prosecutor, Case No. IT-02-60-R, Decision on Vidoje Blagojević’s Request for Review, 15 July 2008, para. 4; Rutaganda Review Decision, para. 8. See also Niyitegeka Review Decision, para. 13; Jean-Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision (Prosecutor’s Request for Review or Reconsideration), 31 March 2000, para. 43.

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Rule 121
ICTY Rule Rule 119;
Rule 120
Notion(s) Filing Case
Decision on Review - 19.03.2009 NALETILIĆ Mladen
(IT-98-34-R)

The Appeals Chamber addressed the Applicant’s submission that he was unlawfully detained in Croatia before being brought before the Tribunal and that this should have been taken into account as a mitigating factor in his sentence. After having found that this allegation did not constitute a new fact, the Appeals Chamber considered whether ignoring this allegation would amount to a miscarriage of justice and concluded for the negative.

31. Neither does the Appeals Chamber consider that ignoring the alleged new facts submitted by the Applicant would result in a miscarriage of justice. The Appeals Chamber finds that none of the alleged new facts submitted by the Applicant demonstrate that his detention by the Croatian authorities prior to 18 October 1999 should be impugned to the International Tribunal. The Trial Chamber was thus not under the obligation to take that detention into account as a mitigating factor in sentencing. In this regard, the Appeals Chamber notes that in a letter dated 21 May 1999, the Croatian authorities informed the International Tribunal that the Applicant had been detained in Croatia on the basis of serious charges unrelated to the crimes over which the International Tribunal has jurisdiction.[1] The Appeals Chamber considers that the Applicant has failed to substantiate his claims to the contrary.

[1] Letter, Prof. Zvonimir Separović, President of the Council for the Cooperation with ICTY, Republic of Croatia Ministry of Justice, to Ms. Dorothee de Sampayo-Garrido Nijgh, Registrar, International Tribunal, 21 May 1999.

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Rule 121
ICTY Rule Rule 119;
Rule 120
Notion(s) Filing Case
Decision on Review - 19.03.2009 NALETILIĆ Mladen
(IT-98-34-R)

The Applicant alleged the existence of new facts demonstrating that the testimony of one key-witness was false and thus proving the Applicant’s innocence in relation to the crimes for which he was convicted. The Appeals Chamber found that none of the allegations constituted new facts that would justify a review. Nonetheless, it went on observing that the Applicant also failed to demonstrate that some of the evidence provided could not have been discovered through the exercise of due diligence and presented at trial. It finally considered that, in any event, the Applicant failed to demonstrate that these alleged new facts could have been a decisive factor in the Trial or Appeal Judgement (see paras 24-37).

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Decision on Review - 19.03.2009 NALETILIĆ Mladen
(IT-98-34-R)

11. The Appeals Chamber recalls that the term “new fact” refers to new evidentiary information supporting a fact that was not at issue during the trial or appeal proceedings.[1] The requirement that the fact was not at issue during the proceedings means that “it must not have been among the factors that the deciding body could have taken into account in reaching its verdict.”[2] Essentially, the moving party must show that the Chamber did not know about the fact in reaching its decision.[3]

 

[1] Blaškić Review Decision, paras 14-15; Tadić Review Decision, para. 25. See also Rutaganda Review Decision, para. 9; Niyitegeka Review Decision, para. 14.

[2] Blaškić Review Decision, para. 14; Tadić Review Decision, para. 25. See also Rutaganda Review Decision, para. 9; Niyitegeka Review Decision, para. 14.

[3] Blaškić Review Decision, para. 14. See also Rutaganda Review Decision, para. 9; Niyitegeka Review Decision, para. 14.

 

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Decision on Legal Assistance - 21.07.2009 KAMUHANDA Jean de Dieu
(ICTR-99-54A-R)

In its Judgement of 19 September 2005,[1] the Appeals Chamber affirmed Kamuhanda’s convictions for ordering genocide and extermination as a crime against humanity, as well as the sentences imposed by the Trial Chamber on 22 January 2004.[2] Subsequent to the Appeal Judgement, 1) one of the Prosecution’s witness in his case was found guilty on 4 December 2007 of giving false testimony under solemn declaration and contempt of the Tribunal and sentenced to nine months of imprisonment;[3] and 2) a former investigator in Kamuhanda’s Defence team, was convicted on 7 July 2009 of committing contempt of the Tribunal and sentenced to 10 months of imprisonment.[4]

Finding that it was necessary in order to ensure the fairness of the proceedings at this preliminary examination stage, the Appeals Chamber granted Kamuhanda’s request for assigned legal assistant to determine whether a request for review is warranted and, if need be, to prepare such a request. The applicable law was recalled, specifying the possible forms of such legal assistance:

17. The Appeals Chamber recalls that as a matter of principle it is not for the Tribunal to assist a convicted person whose case has reached finality. It is only in exceptional circumstances that a convicted person will be granted legal assistance at the expense of the Tribunal after a final judgement has been rendered against him.[5] This type of legal assistance may take different forms, such as the assignment of a counsel or a legal assistant, where the convicted person is indigent. At the preliminary examination stage of a request for review, such assistance will be granted only if the Appeals Chamber deems it “necessary to ensure the fairness of the proceedings”.[6] This necessity is, to a great extent, assessed in light of the potential grounds for review put forward by the applicant.[7]

As for the reasons underpinning the necessity to ensure the fairness of the proceedings, the Appeals Chamber held:

18. The Appeals Chamber cannot rule on Kamuhanda’s potential grounds for review as currently presented; the Motion is neither fully articulated in this respect nor is it intended to be a request for review per se, and Kamuhanda has yet to consider the material disclosed to him by the Prosecution in May 2009. Nevertheless, unlike other requests for legal assistance for review proceedings brought before the Appeals Chamber, Kamuhanda’s Motion provides information on the materials he considers to be “new facts” and explains how they could have been a decisive factor in reaching the original decision. Having carefully considered Kamuhanda’s arguments, as well as the material recently disclosed by the Prosecution, the Appeals Chamber is not in a position to exclude that Kamuhanda’s potential grounds of review may have a chance of success.[8]

19. The Appeals Chamber observes that Kamuhanda was able to file a detailed and coherent request despite his asserted lack of technical legal skills. However, in the exceptional circumstances of this particularly complex case, involving false testimony and subsequent contempt proceedings, the Appeals Chamber is of the view that Kamuhanda lacks the necessary legal expertise to properly assess and weigh the material now in his possession to determine whether a request for review is warranted and, if need be, to prepare such a request.

20. Accordingly, the Appeals Chamber finds that Kamuhanda has shown that it is necessary in order to ensure the fairness of the proceedings at the preliminary examination stage that he be afforded limited legal assistance under the auspices of the Tribunal’s legal aid system.[…].

[1] Jean de Dieu Kamuhanda v. The Prosecutor, Case No. ICTR-99-54A-A, Judgement, 19 September 2005.

[2] The Prosecutor v. Jean de Dieu Kamuhanda, Case No. ICTR-99-54A-T, Judgement and Sentence, 22 January 2004.

[3] See para. 7 of the present Decision, referring to The Prosecutor v. GAA, Case No. ICTR-07-90-R77-I, Judgement and Sentence, 4 December 2007.

[4] See para. 11 of the present Decision, referring to The Prosecutor v. Léonidas Nshogoza, Case No. ICTR-07-91-T, Judgement, 7 July 2009.

[5] Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R, Decision on Fourth Request for Review, Public Redacted Version, signed on 12 March 2009 and filed on 21 April 2009 (“Niyitegeka Fourth Review Decision”), para. 52.

[6] Niyitegeka Fourth Review Decision, para. 52. 

[7] Ibid

[8] This determination is without prejudice to the evaluation of the grounds of review that the Appeals Chamber would undertake if a motion for review were to be filed.

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Decision on Review - 12.03.2009 NIYITEGEKA Eliézer
(ICTR-96-14-R)

21. The Appeals Chamber recalls that review proceedings are governed by Article 25 of the Statute of the Tribunal (“Statute”) and Rules 120 and 121 of the Rules. The Appeals Chamber strongly emphasizes that review of a final judgement is an exceptional procedure and not an additional opportunity for a party to re-litigate arguments that failed at trial or on appeal.[1] In order for review to be granted, the moving party must show that: (i) there is a new fact; (ii) the new fact was not known to the moving party at the time of the original proceedings; (iii) the lack of discovery of that new fact was not the result of a lack of due diligence by the moving party; and (iv) the new fact could have been a decisive factor in reaching the original decision.[2] In wholly exceptional circumstances, the Appeals Chamber may nonetheless grant review, even where the new fact was known to the moving party at the time of the original proceedings or the lack of discovery of the fact was the result of a lack of due diligence by the moving party, if ignoring the new fact would result in a miscarriage of justice.[3]

[1] Decision on Third Request for Review, 23 January 2008 (“Third Review Decision”), para. 13; Georges Anderson Nderubumwe Rutaganda v. The Prosecutor, Case No. ICTR-96-03-R, Decision on Requests for Reconsideration, Review, Assignment of Counsel, Disclosure, and Clarification, 8 December 2006 (“Rutaganda Review Decision”), para. 8. See also First Review Decision, paras. 5-7; Jean-Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision (Prosecutor’s Request for Review or Reconsideration), 31 March 2000, para. 43.

[2] Third Review Decision, para. 13; Rutaganda Review Decision, para. 8; The Prosecutor v. Aloys Simba, Case No. ICTR-01-76-A, Decision on Aloys Simba’s Requests for Suspension of Appeal Proceedings and Review, 9 January 2007, para. 8; First Review Decision, paras. 5-7. See also Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-R,  Decision on Prosecutor’s Request for Review or Reconsideration, 23 November 2006 (“Blaškić Review Decision”), para. 7; Prosecutor v. Mlađo Radić, Case No. IT-98-30/1-R.1, Decision on Defence Request for Review, 31 October 2006, paras. 9-11; Prosecutor v. Zoran Žigić, Case No. IT-98-30/1-R.2, Decision on Zoran Žigić’s Request for Review under Rule 119, 25 August 2006, para. 8; Prosecutor v. Duško Tadić, Case No. IT-94-1-R, Decision on Request for Review, 30 July 2002 (“Tadić Review Decision”), para. 20.

[3] Third Review Decision, para. 13; Rutaganda Review Decision, para. 8; Blaškić Review Decision, para. 8; Tadić Review Decision, paras. 26, 27. 

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Rule 121
ICTY Rule Rule 119;
Rule 120
Notion(s) Filing Case
Decision on Review - 12.03.2009 NIYITEGEKA Eliézer
(ICTR-96-14-R)

22. The Appeals Chamber further recalls that the term “new fact” refers to new evidentiary information supporting a fact that was not in issue during the trial or appeal proceedings.[1] The requirement that the fact was not in issue during the proceedings means that “it must not have been among the factors that the deciding body could have taken into account in reaching its verdict.”[2] Essentially, the moving party must show that the Chamber did not know about the fact in reaching its decision.[3]

47. This being said, the Appeals Chamber does not find it necessary to order Niyitegeka to file the Additional Statements or information concerning the identity of their authors. Niyitegeka makes clear that, in his view, the information contained in the Additional Statements reveals that Witness GGV was not credible. The Appeals Chamber notes that Witness GGV’s credibility is a matter that was litigated at trial and on appeal. While the Additional Statements may constitute material of an evidentiary nature, in light of what Niyitegeka discloses of their content they do not constitute “new facts” within the meaning of Article 25 of the Statute. Accordingly, Niyitegeka’s attempt to have them admitted as new facts for the purposes of review is bound to fail.  

[1] Third Review Decision, para. 14; Rutaganda Review Decision, para. 9; Blaškić Review Decision, paras. 14, 15; Tadić Review Decision, para. 25.

[2] Third Review Decision, para. 14; Rutaganda Review Decision, para. 9; Blaškić Review Decision, paras. 14, 15; Tadić Review Decision, para. 25.

[3] Third Review Decision, para. 14; Rutaganda Review Decision, para. 9; Blaškić Review Decision, para. 14.

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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 Review - 12.03.2009 NIYITEGEKA Eliézer
(ICTR-96-14-R)

46. The Appeals Chamber is not in a position to properly assess the merits of Niyitegeka’s request regarding the Additional Statements since he did not provide them. In the absence of the relevant material, the Appeals Chamber is not only unable to fully assess whether they constitute “new facts”, but is also unable to order their admission into the record. While an applicant may have legitimate concerns regarding the security of potential witnesses, those concerns are not justified when it comes to disclosing information to the Appeals Chamber. As regards disclosures to the Prosecution, the Appeals Chamber reminds Niyitegeka that he could have requested the application of protective measures by the Appeals Chamber pursuant to Rule 75 of the Rules prior to filing his Request.[1] Further, Niyitegeka elected not to attach the Additional Statements to his request on the additional ground that he intended to first give the material to his assigned counsel. In doing so, Niyitegeka hindered the Appeals Chamber’s ability to provide a thorough analysis of his claim that the Additional Statements constitute “new facts” and thwarted his own request to have the statements admitted for purposes of review. Similarly, Niyitegeka prevented the Appeals Chamber from considering his claim that the Prosecution violated its disclosure obligations under Rule 68 of the Rules and his related request for disciplinary action.

[1] The Appeals Chamber recalls that a request for protective measures pursuant to Rule 75 of the Rules must demonstrate a real likelihood that the person may be in danger or at risk. See The Prosecutor v. André Ntagerura et al., Case No. ICTR-99-46-A, Order, 2 June 2004, p. 2 and decisions cited therein. 

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Notion(s) Filing Case
Decision on Review - 12.03.2009 NIYITEGEKA Eliézer
(ICTR-96-14-R)

48. In relation to his request for review based on the Additional Statements, Niyitegeka also requests that the Appeals Chamber order that the identity of two victims that he was found to have killed be specified.[1] The Appeals Chamber recalls that the charges against Niyitegeka have already been determined and that his conviction has been confirmed on appeal. Outside the review mechanism provided for under Article 25 of the Statute, it is not within the Appeals Chamber’s jurisdiction to re-open terminated proceedings to alter otherwise final findings.[2] Niyitegeka’s attempt to further contest the original findings is therefore dismissed. 

[1] Fourth Request for Review of the Judgement Rendered by the Appeals Chamber on 9 July 2004, and for Legal Assistance, paras. 55, 56, referring to Trial Judgement, para. 443. Niyitegeka bases this claim on the following finding from the Ntagerura et al. Appeal Judgement (The Prosecutor v. André Ntagerura et al., Case No. ICTR-99-46-A, Judgement, 7 July 2006, para. 23): “[…] where the Prosecution alleges that an accused personally committed the criminal acts in questions, it must plead the identity of the victims”.    

[2] See Prosecutor v. Zoran Žigić, Case No. IT-98-30/1-A, Decision on Zoran Žigić’s “Motion for Reconsideration of Appeals Judgement IT-98-30/1-A Delivered on 28 February 2005”, 26 June 2006, para. 9; Hassan Ngeze v. The Prosecutor, Case No. ICTR-99-52-R, Decision on Hassan Ngeze’s Motions and Requests Related to Reconsideration, 31 January 2008, p. 3. 

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Decision on Review - 12.03.2009 NIYITEGEKA Eliézer
(ICTR-96-14-R)

51. The Appeals Chamber recalls that review is an exceptional remedy and that an applicant is only entitled to assigned counsel at the Tribunal’s expense if the Appeals Chamber authorizes the review or if it deems it necessary to ensure the fairness of the proceedings.[1]

52. As a matter of principle, it is not for the Tribunal to assist a convicted person whose case has reached finality with any new investigation he would like to conduct or any new motion he may wish to bring by assigning him legal assistance at the Tribunal’s expense. It is only in exceptional circumstances that a convicted person will be granted legal assistance by the Tribunal after a final judgement has been rendered against him. At the preliminary examination stage of a request for review, such assistance will be granted only if the Appeals Chamber deems it “necessary to ensure the fairness of the proceedings”. This necessity is, to a great extent, assessed in light of the grounds for review put forward by the applicant. In the present case, the Appeals Chamber considers that none of Niyitegeka’s grounds for review has any chance of success.

[1] Emmanuel Ndindabahizi v. The Prosecutor, Case No. ICTR-01-71-R, Decision on Emmanuel Ndindabahizi’s Motion for Assignment of Counsel and the Prosecution’s Request to Place the Motion Under Seal, 24 September 2008, p. 2; Hassan Ngeze v. The Prosecutor, Case No. ICTR-99-52-R, Decision on Hassan Ngeze’s Motion to Obtain Assistance From Counsel, 28 February 2008, p. 2; Third Review Decision, para. 12; Georges Anderson Nderubumwe Rutaganda v. The Prosecutor, Case No. ICTR-96-03-R, Decision on Requests for Reconsideration, Review, Assignment of Counsel, Disclosure, and Clarification, 8 December 2006, para. 41.

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Decision re Review and Counsel - 13.07.2015 NIYITEGEKA Eliézer
(MICT-12-16-R)

12.     The Appeals Chamber cannot exclude that this potential ground for review may have a chance of success. The provision of materially inconsistent testimony in a domestic proceeding, which was unavailable at the time of trial or appeal, could impact the credibility of an uncorroborated witness and thus the verdict. The scope of Witness GGV’s testimony during the domestic proceedings and any justifications for providing different accounts underscore the complexity of this matter. Given this complexity, Niyitegeka, who is serving his sentence in Mali, would benefit from the assistance of counsel to better evaluate the viability of his potential grounds for review and to provide a new and more focused submission supporting his request for review. Accordingly, the Appeals Chamber finds that Niyitegeka has shown that it is necessary in order to ensure the fairness of the proceedings that counsel be appointed under the auspices of the Mechanism’s legal aid program.

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Decision on Assignment of Investigator and Counsel - 19.01.2015 NTABAKUZE Aloys
(MICT-14-77-R)

9.       […] The Appeals Chamber recalls that review is an exceptional remedy and that an applicant is only entitled to assigned counsel at the expense of the Mechanism if the Appeals Chamber authorizes the review, or, before such an authorization, if it deems it necessary to ensure the fairness of the proceedings.[1] This necessity is, to a great extent, assessed in light of the potential grounds for review put forward by the applicant.[2] In previous cases, the ICTR Appeals Chamber has confirmed such necessity where it found itself to be unable to exclude that the potential grounds for review invoked by the applicant may have a chance of success and where the particular complexity of the matter justified the granting of legal assistance in order to ensure the fairness of the proceedings.[3] […]

[…]

13      In any event, the Appeals Chamber considers that the matter at hand is distinguishable from the matter addressed by the ICTR Appeals Chamber in the Kajelijeli Appeal Decision of 12 November 2009. In the latter case, the ICTR Appeals Chamber granted Kajelijeli’s request for the assignment of counsel for the purpose of exploring witness recantation and allegations of manipulated or fabricated testimony.[4] The ICTR Appeals Chamber emphasized that the complexity of this particular matter required that Kajelijeli be assisted by counsel.[5] In contrast, the circumstances surrounding Ntabakuze’s potential ground of review in relation to the IAMSEA killings, including the need to contact witnesses and pursue new leads, are common features in the context of the preparation of a review request and are not, per se, particularly complex.

[1] Karera Decision of 4 December 2012 [François Karera v. Prosecutor, Case No. MICT-12-24-R, Decision on Request for Assignment of Counsel, 4 December 2012], para. 10, referring to Karera Decision of 28 February 2011 [François Karera v. The Prosecutor, Case No. ICTR-01-74-R, Decision on Requests for Review and Assignment of Counsel, 28 February 2011], para. 38. See also Niyitegeka Decision of 6 November 2014 [Eliézer Niyitegeka v. The Prosecutor, Case No. MICT-12-16-R, Decision on Niyitegeka’s Request for Assignment of Counsel, 6 November 2014], para. 7.

[2] Niyitegeka Decision of 6 November 2014, para. 7, referring to Karera Decision of 4 December 2012, para. 10, Karera Decision of 28 February 2011, para. 39.

[3] See, e.g., Kajelijeli Appeal Decision of 12 November 2009 [Juvénal Kajelijeli v. The Prosecutor, Case No. ICTR-98-44A-R, Decision on Request for Assignment of Counsel, 12 November 2009], para. 13; Jean de Dieu Kamuhanda v. The Prosecutor, Case No. ICTR-99-54A-R, Decision on Motion for Legal Assistance, 21 July 2009 (“Kamuhanda Decision of 21 July 2009”), paras. 18-20.

[4] Kajelijeli Appeal Decision of 12 November 2009, para. 13. See also Kamuhanda Decision of 21 July 2009, para. 19.

[5] Kajelijeli Appeal Decision of 12 November 2009, para. 13. The Appeals Chamber notes that the ICTR Appeals Chamber has previously recognised that newly discovered information related to witness credibility may amount to a new fact. See Juvénal Kajelijeli v. The Prosecutor, Case No. ICTR-98-44A-R, Decision on Request for Review, 29 May 2013, para. 24 and references cited therein.

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Decision on Assignment of Investigator and Counsel - 19.01.2015 NTABAKUZE Aloys
(MICT-14-77-R)

12.     The Appeals Chamber is also not persuaded that Ntabakuze’s potential ground of review in relation to the IAMSEA killings satisfies the requirements for the assignment of an investigator and counsel at the expense of the Mechanism. The Appeals Chamber notes that this is the first time that Ntabakuze specifically raises the argument that the Para-Commando soldiers who were involved in the crimes at IAMSEA might have been under the control of another battalion, and specifically that in March 1994 they might have been reassigned to the Presidential Guard.[1] However, the issue of whether Ntabakuze had effective control over the Para-Commando soldiers who participated in the killings was litigated both at trial and on appeal.[2] Ntabakuze’s intention to pursue additional evidence in relation to the alleged presence of the Presidential Guard in the vicinity of IAMSEA and the possibility that the Para-Commando soldiers involved in the crimes might have been under the Presidential Guard’s command,[3] does not appear to constitute a “new fact” that may have a chance of success on review.

[1] The ICTR Appeals Chamber observed that Ntabakuze had not argued that the members of the Para-Commando Battalion involved in the killings at IAMSEA could have been members of a Battalion unit under the authority of the Presidential Guard at the time. Appeal Judgement, fn. 548. The Appeals Chamber notes that, while some of the material submitted by Ntabakuze in the Motion is vague on this point, the statement of NRDP provides specificity as to which companies of the Para-Commando Battalion were sent to the Presidential Guard and about the extent they still communicated with the Para-Commando Battalion. See Motion [Ntabakuze Pro Se Motion for Assignment of Investigator and Counsel in Anticipation of his Request for Review Pursuant to Article 24 MICTSt., 23 April 2014 (confidential)], Annex 8.

[2] Trial Judgement, paras. 2057-2062; Appeal Judgement, paras. 220, 225.

[3] Motion, paras. 31-35.

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Decision on Leave to Appeal - 11.09.2008 NTAGERURA André
(ICTR-99-46-A28)

Following his acquittal, Ntagerura remained under the authority of the Tribunal pending relocation to a third country. He filed a motion before the President of the Tribunal in which he claimed that Canada ignored the Registrar’s requests for his relocation to that country, and requested that the President of the Tribunal order Canada to comply with these requests and notify the United Nations Security Council of Canada’s refusal to implement them, if it still failed to do so. The President denied the motion in part, and referred the matter to a Trial Chamber for consideration under Article 28 of the Statute of the Tribunal. The Trial Chamber denied the motion in its entirety. In these circumstances, the Appeals Chamber allowed Ntagerura’s request to seek review of the decisions rendered by the President and the Trial Chamber.

Ntagerura was acquitted by the Trial Chamber in 2004, and this decision was subsequently affirmed on appeal in July 2006. However, Ntagerura has since remained under the authority of the Tribunal pending relocation to a third country. He has consequently seized the Registrar and the President of the Tribunal with requests for assistance in this regard. These requests were denied and the Ntagerura’s request for assistance of the MemberState was referred by the President to the Trial Chamber which then denied it as well. In these circumstances, the Appeals Chamber allowed Ntagerura’s request to seek review of the decisions rendered by the President and the Trial Chamber.

12. […] While neither the Statute nor the Rules provide for such appeals, the Appeals Chamber has inherent jurisdiction over the enforcement of its orders and any decisions rendered as a consequence thereof. […]

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Decision on Leave to Appeal - 11.09.2008 NTAGERURA André
(ICTR-99-46-A28)

12. […] The Appeals Chamber also recalls that it has inherent jurisdiction to review decisions issued by the President of the Tribunal in certain instances, including where such decisions are closely related to issues involving the fairness of proceedings before the Appeals Chamber.[1] 

13. The Appeals Chamber recalls that, on 8 February 2006, it affirmed the Trial Chamber’s acquittal of the Applicant and ordered the Registrar to take, without delay, all necessary steps to effect such acquittal.[2] The Decision of the President and the Decision of the Trial Chamber are thus related to the order given to the Registrar to effect the Applicant’s acquittal. Furthermore, the Applicant claims that he remains in de facto custody of the Tribunal and that full effect has not yet been given to his acquittal. The Appeals Chamber is concerned by this claim, in particular as to whether it raises an issue regarding the effectiveness of its judgements acquitting an accused. The Appeals Chamber considers this issue to be closely related to the fairness of the proceedings. Accordingly, the Appeals Chamber has inherent jurisdiction to review the Decision of the President and the Decision of the Trial Chamber.[3]

[1] See The Prosecutor v. Ferdinand Nahimana et al., Case No. IT-99-52-A, Decision on “Appellant’s Ngeze 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; The Prosecutor v. Ferdinand Nahimana et al., Case No. IT-99-52-A, Decision on Appellant Ferdinand Nahimana’s Motion for Assistance from the Registrar in the Appeals Phase, 3 May 2005, paras. 4, 7; The Prosecutor v. Ferdinand Nahimana et al., Case No. ICTR-99-52-A, Decision on Appellant Jean-Bosco Barayagwiza’s Motion Contesting the Decision of the President Refusing to Review and Reverse the Decision of the Registrar relating to the Withdrawal of Co-Counsel, 23 November 2006 (“Barayagwiza Decision”), para. 9.

[2] Disposition, p. 2.

[3] The Appeals Chamber recalls that a review of decisions closely related to issues involving the fairness of proceedings “is neither a rehearing, nor an appeal, nor is it in any way similar to the review, which a Chamber may undertake of its own judgement in accordance with Rule 119 of the Rules”, Barayagwiza Decision, para. 9. 

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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 reiterated that only a definitive judgement can be reviewed. It concluded that an interlocutory decision concerns only a specific issue and subsequently can not be considered as a definitive one.

31. Quant à la question plus générale de savoir si l’Appelant peut valablement réclamer la révision de l’Arrêt du 31 mars 2000, la Chambre d’appel réitère que seul un jugement définitif peut être révisé[1]. Or, la Chambre d’appel considère que l’Arrêt du 31 mars 2000 est une décision faisant droit à l’appel interjeté par le Procureur contre l’Arrêt du 3 novembre 1999. Ainsi que la Chambre d’appel l’a déjà affirmé[2], l’Arrêt du 31 mars 2000 n’a pas statué définitivement sur le fond ; il a uniquement modifié la réparation ordonnée par la Chambre d’appel dans son Arrêt du 3 novembre 1999[3] sans préjudice de l’examen au fond de l’affaire par la Chambre de première instance.

[1] Voir, supra, par. 21.

[2] Décision du 14 septembre 2000, p. 3, [Jean-Bosco Barayagwiza c. le Procureur, affaire n°ICTR-97-19-AR72, Décision sur la Requête en révision et/ou en réexamen, 14 septembre 2000].

[3] Arrêt du 31 mars 2000, par. 74,.

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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 Barayagwiza's Motion - 11.04.2008 BARAYAGWIZA Jean-Bosco
(ICTR-99-52A-R)

Following the issuance of the Appeal Judgement in this case, Barayagwiza requested that the Appeals Chamber order the Registrar to assign, pursuant to Rule 45 of the Rules, his former Lead Counsel on appeal as his counsel to assist him in the preparation of a motion for review and/or reconsideration of the Appeal Judgement. While the Registrar did not object to the assistance of the Counsel as pro bono counsel (provided that the counsel files a power of attorney pursuant to Rule 44 of the Rule[1]), he objected to the assignment under the legal aide scheme (Rule 45), in the absence of judicial determination on the admissibility of the request for review and/or reconsideration. The Appeals Chamber ruled that the request for assignment of counsel for the purpose of preparing a motion for reconsideration was without merit considering that a final judgement cannot be reconsidered. As for the preparation of a motion for review, the Appeals Chamber held:

pp. 3-4: RECALLING that review of a final judgement is an exceptional remedy and that an indigent applicant is only entitled to assigned counsel, at the Tribunal’s expense, if the Appeals Chamber authorizes the review or if it deems it necessary in order to ensure the fairness of the proceedings  at the preliminary examination stage;[2]

CONSIDERING that the Motion fails to provide any information on the basis for a potential request for review;[3]

CONSIDERING further that in the absence of information as to the potential grounds for review, the Appeals Chamber cannot conclude that it would be necessary in order to ensure the fairness of the proceedings to authorize assignment of counsel to the Applicant under the Tribunal’s legal aid scheme;

FINDING therefore, that the Applicant has not shown that he should receive the assistance of counsel at the expense of the Tribunal;

NOTING that in any event the Applicant may be assisted by counsel in connection with a request for review at his own expense, at the expense of a third party or on a pro bono basis, provided that counsel files a power of attorney with the Registrar and satisfies the requirements to appear before the Tribunal;

Subsequently, on 9 September 2008, the Appeals Chamber rendered its decision on Barayagwiza’s motion for reconsideration of the present Decision,[4] holding inter alia that:

p. 4: CONSIDERING that the Impugned Decision is not premised on the understanding that Mr. Herbert would assist the Applicant in the preparation of a motion for review on a pro bono basis, but merely informs the Applicant that, while he failed to demonstrate that assignment of a counsel under the Tribunal’s legal aid scheme was justified in the present circumstances, he may still, subject to certain conditions, be assisted by counsel in connection with a request for review at his own expense, at the expense of a third party or on a pro bono basis, and;[5]

CONSIDERING that the Applicant merely reiterates his request for a blanket assignment of counsel under the Tribunal’s legal aid scheme;

CONSIDERING that the Applicant has failed to demonstrate a clear error of reasoning in the Impugned Decision or that reconsideration is necessary to prevent an injustice;

[1] See fn. 7 and p. 4 of the present Decision.

[2] See Georges Anderson Nderubumwe Rutaganda v. The Prosecutor, Case No. ICTR-96-03-R, Decision on Requests for Reconsideration, Review, Assignment of Counsel, Disclosure, and Clarification, 8 December 2006 (“Rutaganda Decision of 8 December 2006”) para. 41; Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R, Decision on Niyitegeka’s Urgent Request for Legal Assistance, 20 June 2005, p. 4; Hassan Ngeze v. The Prosecutor, Case No. ICTR-99-52-R, Decision On Hassan Ngeze’s Motion To Obtain Assistance From Counsel, 28 February 2008, p. 2.

[3] In this respect, the Appeals Chamber recalls that review of a final judgement is not meant to provide an additional opportunity for a party to remedy its failings at trial or on appeal. Review may only be granted when the moving party satisfies the following cumulative criteria: (i) there is a new fact; (ii) the new fact was not known to the moving party at the time of the original proceedings; (iii) the lack of discovery of that new fact was not the result of lack of due diligence by the moving party; and (iv) the new fact could have been a decisive factor in reaching the original decisions, Rutaganda Decision of 8 December 2006, para. 8.

[4] Decision on Jean-Bosco Barayagwiza’s Motion of 2 May 2008, 9 September 2008.

[5] Impugned Decision, p. 4.

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ICTR Rule Rule 45 ICTY Rule Rule 45
Notion(s) Filing Case
Review Decision - 23.11.2006 BLAŠKIĆ Tihomir
(IT-95-14-R)

7.      The combined effect of Article 26 of the Statute and Rules 119 and 120 of the Rules is such that for a moving party to succeed in persuading a Chamber to review its judgement, the party must first satisfy the following cumulative requirements:[1]

a)      there is a new fact;

b)      the new fact was not known to the moving party at the time of the original proceedings;

c)      the failure to discover the new fact was not due to a lack of due diligence on the part of the moving party; and

d)      the new fact could have been a decisive factor in reaching the original decision.

8.      In “wholly exceptional circumstances”, review may still be permitted even though the new fact was known to the moving party, or was discoverable by it through the exercise of due diligence.[2] In such a case, where a Chamber “is presented with a new fact that is of such strength that it would affect the verdict […],” it may determine that review of its judgement is necessary because the impact of the new fact on the decision is such that to ignore it would lead to a miscarriage of justice.[3]  

[1] See Prosecutor v Josipović, Case No. IT-95-16-R2, Decision on Motion for Review, 7 March 2003 para. 12 (“Josipović Review Decision”). See also Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R, Decision on Request for Review, 30 June 2006 (“Niyitegeka Review Decision”), paras. 6-7; Prosecutor v. Žigić, Case No. IT-98-30/1-R.2, Decision on Zoran Žigić’s Request for Review under Rule 119, 25 August 2006, para. 8; Prosecutor v. Radić, Case No. IT-98-30/1-R.1, Decision on Defence Request for Review, 31 October 2006 (“Radić Review Decision”), para. 10.

[2] Josipović Review Decision, para. 13, citing Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision on Prosecutor’s Request for Review or Reconsideration, 31 March 2000 (“Barayagwiza Review Decision”), para. 15; Niyitegeka Review Decision, para. 7; Radić Review Decision, para. 11.

[3] Prosecutor v Tadić, Case No. IT-94-1-R, Decision on Motion for Review, 30 July 2002 (“Tadić Review Decision”), paras. 26, 27 (emphasis added).

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ICTR Statute Article 25 ICTY Statute Article 26 ICTR Rule Rule 120; Rule 121 ICTY Rule Rule 119; Rule 120
Notion(s) Filing Case
Review Decision - 23.11.2006 BLAŠKIĆ Tihomir
(IT-95-14-R)

17.     In a review proceeding, the moving party defines for the Chamber its purported “new facts.” It is then for the review Chamber to compare those alleged new facts against the previously litigated facts as found in the plain language of the final judgement or decision at issue and the record underlying that final judgement or decision. Where the “new facts” are identical to facts already at issue, then review under Rule 119 is not available. Of course, at times, the facts previously litigated are not entirely clear and they could be interpreted more broadly or narrowly vis-à-vis the alleged new facts. In those cases, the review Chamber does not, a priori, decide to interpret the previous facts more narrowly. It will, after considering the final judgement or decision and underlying record, weigh the arguments of the parties in order to determine the most appropriate characterization of the facts as they were considered by the original Chamber for purposes of comparing them to the purported “new facts.”

18.     The Appeals Chamber does not consider that its past jurisprudence supports the Prosecution’s position that, as a rule, review Chambers have maintained a narrow focus on previously litigated facts despite there being “broad facts” that were at issue in the original proceedings to which the proffered “new facts” were related. In other words, the Appeals Chamber does not find that past review Chambers have been inclined to compare alleged “new facts” against “narrow facts” previously litigated rather than against related “broad facts” in the original proceedings. Rather, the focus has rightly been on looking to the previously litigated facts that are most relevant vis-à-vis the alleged “new fact”, whether “broad” or “narrow”, to determine whether they preclude the availability of a review.

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ICTR Statute Article 25 ICTY Statute Article 26 ICTR Rule Rule 120
Rule 121
ICTY Rule Rule 119
Rule 120
Notion(s) Filing Case
Review Decision - 25.08.2006 ŽIGIĆ Zoran
(IT-98-30/1-R.2)

8. To establish circumstances warranting a review pursuant to Rule 119, the moving party must demonstrate that there is a new fact, that that new fact was not known to the moving party at the time of the original proceedings, that lack of discovery of that new fact was not the result of lack of due diligence by the moving party and that the new fact could have been a decisive factor in reaching the original decision.[1]

[1] Prosecutor v. Josipović, Case No. IT-95-16-R2, Decision on Motion for Review, 7 March 2003, para. 12; Prosecutor v. Delić, Case No. IT-96-21-R-R119, Decision on Motion for Review, 25 April 2002, para. 8; Prosecutor v. Tadić, Case No. IT-94-1-R, Decision on Motion for Review, 30 July 2002, para. 20; Prosecutor v. Barayagwiza, Case No. ICTR-97-19-AR72, Decision on Prosecutor’s Request for Review or Reconsideration, 31 March 2000, para. 41;  Prosecutor v. Eliézer Niyitegeka, Case No. ICTR-96-14-R, Decision on Request for Review, 30 June 2006.

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Decision on Request of NATO for Review - 15.05.2006 MILUTINOVIĆ et al.
(IT-05-87-AR108bis.1)

11. Having found that the Trial Chamber did not err in holding that it could issue a binding Rule 54bis order to NATO, the Appeals Chamber considers that it has competence under Rule 108bis to review the Impugned Decision as it relates to NATO although Rule 108bis only provides for “a State” to request review. The Appeals Chamber recalls its holding above that a State may be interpreted under Article 29 and Rule 54bis to refer to a collective enterprise of States.[1] Furthermore, Rule 54bis (C)(i)(a) requires that a decision under that Rule “shall be subject to review under Rule 108bis.” Finally, because international organizations, like States, are not parties to proceedings before the International Tribunal such that they may appeal a Rule 54bis decision, fairness requires that international organizations must have the same right to seek a review of a Rule 54bis order issued against them as is enjoyed by individual States. (emphasis added).

[1] See supra para. 9.

[2] Rule 54bis (C)(i)(b)  and (ii) allows for a “party” to appeal a Rule 54bis decision. However, under Rule 2, parties are defined as the Prosecutor and the Defence.

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ICTY Rule Rule 108 bis
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Order on Recovery of Legal Funds - 13.05.2014 PRLIĆ et al.
(IT-04-74-A)

21. […] The Appeals Chamber is not at liberty to revisit the Registrar’s and the President’s findings as to Praljak’s ability to reimburse the Tribunal for the funds incurred for his defence. […]

[1] The Appeals Chamber recalls that only the organ issuing a ruling possesses the inherent discretionary power to reconsider it (provided that certain conditions are met). See, e.g., Prosecutor v. Vujadin Popović et al., Case No. IT-05- 88-A, Decision on Prosecution Motion for Reconsideration of Filing Status of the Appeals Chamber’s Decision on Vinko Pandurević’s Provision Release of 11 January 2012, 17 January 2012 (originally filed as confidential; made public per the Appeals Chamber’s decision on 22 February 2012. See Prosecutor v. Vujadin Popović et aI., Case No. IT-OS-88-A, Decision on Prosecution’s Motion for Order Issuing Public Redacted Version of the Appeals Chamber’s Reconsideration Decision of 17 January 2012, 22 February 2012, p. 2), p. 2 and references cited therein. In this case, the Appeals Chamber notes that Praljak has already sought further review of the President’s Decision on Motion for Review, but his request was rejected by the President. See [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-A, Decision on Slobodan Praljak’s Request for Further Review, 7 October 2013]], p. 2.

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Decision on Assignment of Counsel No 2 - 08.12.2006 ŠEŠELJ Vojislav
(IT-03-67-AR73.4)

The Appeals Chamber noted that although the decision of the Trial Chamber to assign standby counsel was not specifically at issue in the given appeal, the decision was “inextricably linked” to the Impugned Decision.  The Appeals Chamber determined that it must consider whether the Trial Chamber erred in interpreting its decision restoring Šešelj’s right to self-representation.

20.     […] While the decision of the Trial Chamber to assign standby counsel was not certified for appeal by the Trial Chamber, the two decisions are inextricably linked.[1]  It was because of the decision of the Trial Chamber to immediately impose standby counsel and Šešelj’s inability to find an avenue to legally challenge that decision before the Trial Chamber that he was placed on a collision course with the Trial Chamber leading to the Trial Chamber’s issuing of the Impugned Decision.  In this respect, while the Tribunal’s jurisprudence limits the Appeals Chamber to examining whether the Trial Chamber erred in issuing the Impugned Decision, such a review in this appeal would not resolve the real issue of dispute between Šešelj and the Trial Chamber. 

24.     While the Appeals Chamber has acknowledged that the Decision to Assign Standby Counsel is not the Impugned Decision before it, it must also acknowledge that its decision restoring the right of Šešelj to self-representation was not clear as to whether the restoration of that right to self-representation allowed the Trial Chamber to restore the status quo by immediately reassigning standby counsel, following the Appeal Decision without establishing any obstructionist conduct on the part of Šešelj. 

25.     If the Appeals Chamber was to ignore the background to the Impugned Decision and apply the applicable law and the standard of review to the Impugned Decision, it would find no error on the part of the Trial Chamber in ordering the imposition of assigned counsel.  As the test makes clear, all that must be established is that the disruptive behaviour of the Accused “is substantially and persistently obstructing the proper and expeditious conduct of his trial” and it does not matter whether that conduct is intentional or unintentional. […] In this particular case, what must and also can be considered by the Appeals Chamber is whether the Trial Chamber erred in the interpretation of its decision restoring Šešelj’s right to self-representation.  […]

[1] Cf. United States v. Philip Morris USA Inc., 396 F.3d 1190, 1196 (D.C. Cir. 2005) (observing that “questions logically antecedent and essential to the order under review” fall within the jurisdiction of a court of appeals in reviewing an order certified for interlocutory appeal).   

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Review Judgement - 08.12.2010 ŠLJIVANČANIN Veselin
(IT-95-13/1-R.1)

12. The Appeals Chamber recalls that review proceedings are provided for by Article 26 of the Statute, and that according to Rules 119 and 120 of the Rules, if the Appeals Chamber determines that a judgement should be reviewed, it shall “pronounce a further judgement after hearing the parties.”[1]

[1] Rule 120 of the Rules.

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Rule 121
ICTY Rule Rule 119;
Rule 120
Notion(s) Filing Case
Decision on Review - 19.03.2009 NALETILIĆ Mladen
(IT-98-34-R)

25. The Appeals Chamber further recalls that the term “new fact” for the purposes of review refers to new evidentiary information supporting a fact that was not in issue or considered in the original proceedings.[1] Accordingly, as the issue of Simang’s credibility was considered during the trial and appeal proceedings in light of allegations regarding the promises made by the Prosecution to Simang and Mrachaz, the Appeals Chamber finds that the Applicant has failed to demonstrate that the evidence submitted in the Application regarding Simang’s credibility constitutes a new fact for the purposes of review.[2]

[1] See supra, para. 11, fn. [4].

[2] See Prosecutor v. Tholimir Blaškić, Case No. IT-95-14-R, Confidential Decision on Prosecutor’s Request for Review or Reconsideration, 23 November 2006, paras 15-17, 60-61. See also, Rutaganda Review Decision, paras 15-17, where the Appeals Chamber found that some information concerning the credibility of two witnesses constituted new facts, notwithstanding the circumstance that those witnesses’ credibility was already litigated throughout the case. In the Rutaganda Decision, the Appeals Chamber based its finding on the circumstance that, in contrast to the present case, the allegations presented by the moving party in relation to witness credibility were not in issue during the original proceedings and amounted to new facts.

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ICTR Statute Article 25 ICTY Statute Article 26
Notion(s) Filing Case
Order on Recovery of Legal Funds - 13.05.2014 PRLIĆ et al.
(IT-04-74-A)

21. […] The Appeals Chamber is not at liberty to revisit the Registrar’s and the President’s findings as to Praljak’s ability to reimburse the Tribunal for the funds incurred for his defence. […]

[1] The Appeals Chamber recalls that only the organ issuing a ruling possesses the inherent discretionary power to reconsider it (provided that certain conditions are met). See, e.g., Prosecutor v. Vujadin Popović et al., Case No. IT-05- 88-A, Decision on Prosecution Motion for Reconsideration of Filing Status of the Appeals Chamber’s Decision on Vinko Pandurević’s Provision Release of 11 January 2012, 17 January 2012 (originally filed as confidential; made public per the Appeals Chamber’s decision on 22 February 2012. See Prosecutor v. Vujadin Popović et aI., Case No. IT-OS-88-A, Decision on Prosecution’s Motion for Order Issuing Public Redacted Version of the Appeals Chamber’s Reconsideration Decision of 17 January 2012, 22 February 2012, p. 2), p. 2 and references cited therein. In this case, the Appeals Chamber notes that Praljak has already sought further review of the President’s Decision on Motion for Review, but his request was rejected by the President. See [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-A, Decision on Slobodan Praljak’s Request for Further Review, 7 October 2013]], p. 2.

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Decision re Prosecution Witnesses - 29.01.2016 NIYITEGEKA Eliézer
(MICT-12-16)

9. […] Given that the proceedings against Niyitegeka have been concluded, the only legitimate forensic purpose for obtaining access to this material is to establish a “new fact” capable of constituting the basis for a review of Niyitegeka’s convictions.[1] In this regard, Niyitegeka merely advances a broad and speculative assertion that any evidence provided by the witnesses in other proceedings before the ICTR necessarily serves a legitimate forensic purpose.[2] It follows from jurisprudence that the requesting party may not engage in a “fishing expedition”.[3] In the absence of more particularized submissions, the mere fact that witnesses may have testified in more than one case does not necessarily reflect that their evidence is relevant to establishing a “new fact” in the context of review proceedings, or demonstrate that any related material may be of material assistance to the preparation of a review application. […]

[1] See Georges Anderson Nderubumwe Rutaganda v. The Prosecutor, Case No. ICTR-96-3-R, Decision on Georges A. N. Rutaganda’s Appeal against Decision on Request for Closed Session Testimony and Sealed Exhibits, 22 April 2009, para. 16. See also Prosecutor v. Jean de Dieu Kamuhanda, Case No. MICT-13-33-R86.2, Second Decision on Motion for Access to Confidential Material from the Nshogoza Case, 9 November 2015, para. 5.

[2] [Eliézer Niyitegeka v. The Prosecutor, Case No. MICT-12-16-R, Urgent Request for Orders Relating to Prosecution Witnesses, 21 December 2015 (public with public and confidential annexes) (“Motion”)], paras. 35-36.

[3] See Prosecutor v. Dragomir Milošević, Case No. IT-98-29/1-A, Decision on Radovan Karadžić’s Motion for Access to Confidential Material in the Dragomir Milošević Case, 19 May 2009, para. 11, referring to Prosecutor v. Enver Hadžihasanović et al., Case No. IT-01-47-AR73, Decision on Appeal from Refusal to Grant Access to Confidential Material in Another Case, 23 April 2002, p. 3.

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Decision on Review and Reconsideration - 23.06.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

The Appeals Chamber clarified its previous decision with respect to news facts relating to the doctrine of “abuse of process” which could, in certain circumstances, warrant a review.

24. […] Or, la Chambre d’appel a précisé dès son Arrêt du 3 novembre 1999 que « la règle de l’abus de procédure […] est un processus par lequel des juges peuvent refuser de se déclarer compétents lorsqu’au vu des violations graves et flagrantes dont les droits de l’accusé font l’objet, l’exercice d’une telle compétence pourrait s’avérer préjudiciable à l’intégrité du tribunal »[1]. Elle a par suite signalé que les faits nouveaux présentés par le Procureur avaient trait à l’application de la doctrine de l’abus de procédure et à la solution que la Chambre d’appel avait donnée dans son Arrêt du 3 novembre 1999[2]. Il ressort clairement de ce qui précède que la Requête du 28 juillet 2000 avait pour objet la contestation de l’authenticité de faits nouveaux ayant conduit la Chambre d’appel à rétablir la compétence du Tribunal vis-à-vis de l’Appelant en modifiant la réparation de l’abus de procédure constaté; et que, contrairement à ce que soutient l’Appelant, la Requête visait in fine la compétence du Tribunal sur la base de prétendus faits nouveaux.

[1] Arrêt du 3 novembre 1999 [Jean-Bosco Barayagwiza c. le Procureur, affaire n°ICTR-97-19-AR72, Arrêt, 3 novembre 1999], par. 74.

[2] Arrêt du 31 mars 2000 [Jean-Bosco Barayagwiza c. le Procureur, affaire n°ICTR-97-19-AR72, Arrêt (Demande du Procureur en Révision ou Réexamen), 31 mars 2000], par. 17. 

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Rule 121
ICTY Rule Rule 119
Rule 120
Notion(s) Filing Case
Decision on Review and Reconsideration - 23.06.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

The Appeals Chamber clarified that, under Article 25 of the Statute and according to Rules 120-123, a party may submit an application for review if it satisfies the following conditions: a new fact has been discovered which was not known at the time of the initial proceedings and which could not been discovered earlier through the exercise of due diligence; and this new fact could have been a decisive factor in reaching the decision. The Appeals Chamber emphasized that only a definitive judgement can be reviewed under the said provisions.

20. […] Pour obtenir la révision conformément aux articles 25 du Statut et 120 à 123 du Règlement, la partie intéressée doit au préalable satisfaire quatre conditions:

1) un fait nouveau doit avoir été découvert,

2) ce fait nouveau ne doit pas avoir été connu de la partie intéressée lors de la procédure initiale,

3) la non-découverte de ce fait nouveau ne doit pas être due à un manque de diligence de la partie intéressée, et

4) le fait nouveau aurait pu être un élément décisif de la décision initiale[1].

21. La Chambre d’appel réitère en outre que « seul un jugement définitif peut être révisé en vertu des articles 25 du Statut et 120 du Règlement, et [qu’]un jugement définitif est une décision qui met fin à une procédure »[2].

23. La Chambre d’appel rappelle que la Décision du 14 septembre 2000 a rejeté la révision ainsi que le réexamen de la Requête du 28 juillet 2000 aux motifs que l’Arrêt du 31 mars 2000 n’avait pas mis fin à la procédure, que le réexamen de ladite requête ne pouvait être utilisé comme pouvoir de révision dans les cas où celle-ci n’était pas prévue et qu’il n’était pas justifié en l’espèce ; elle a dirigé l’Appelant vers la Chambre de première instance en vue de lui soumettre, le cas échéant, des faits nouveaux de nature à établir l’incompétence du Tribunal[3].

[1] Le Procureur c. Duško Tadić, affaire n°IT-94-1-R, Arrêt relatif à la demande en révision, 30 juillet 2002 (« Affaire Tadić, Décision »), par. 20.

[2] Affaire Semanza, Arrêt (Requête en révision de la décision de la Chambre d’appel du 31 mai 2000), 4 mai 2001, p. 4,

[Laurent Semanza c. le Procureur, affaire n°ICTR-97-20-A]. Voir également, le Procureur c. Imanishimwe, affaire n°ICTR-97-36-AR72, Arrêt (Requête en révision), 12 juillet 2000, p. 2 ; le Procureur c. Bagilishema, affaire n°ICTR-95-1A-A, Arrêt (Requête en demande de révision des ordonnances rendues par le Juge de la mise en état les 30 novembre et 19 décembre 2001), 6 février 2002, p. 2 ; Décision du 14 septembre 2000, p. 3 ; Arrêt du 31 mars 2000, par. 49. Voir également, affaire Tadić, Décision, par. 22 ; le Procureur c. Hazim Delić, Affaire n°IT-96-21-R-R119, Décision relative à la requête en révision, 25 avril 2002 (« Affaire Delić, Décision »), par. 8.

[3] Décision du 14 septembre 2000, p. 3.

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ICTR Statute Article 25 ICTY Statute Article 26 ICTR Rule Rule 120
Rule 121
Rule 122
Rule 123
ICTY Rule Rule 119
Rule 120
Rule 121
Rule 122
Notion(s) Filing Case
Review Decision - 23.11.2006 BLAŠKIĆ Tihomir
(IT-95-14-R)

14.     The Appeals Chamber recalls that a new fact within the meaning of Article 26 of the Statute and Rules 119 and 120 of the Rules refers to “new information of an evidentiary nature of a fact that was not in issue during the trial or appeal proceedings”.[1] This “means that it must not have been among the factors that the deciding body could have taken into account in reaching its verdict.”[2] In other words, “[w]hat is relevant is whether the deciding body […] knew about the fact or not” in arriving at its decision.[3]

[1] Prosecutor v Jelisić, Case No. IT-95-10-R, Decision on Motion for Review, 2 May 2002 (“Jelisić Review Decision”), p. 3.

[2] Tadić Review Decision, para. 25.

[3] Ibid.; see also Niyitegeka Review Decision, para. 6.

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ICTY Statute Article 26 ICTY Rule Rule 119;
Rule 120
Notion(s) Filing Case
Review Decision - 23.11.2006 BLAŠKIĆ Tihomir
(IT-95-14-R)

22.     The Appeals Chamber recalls that “[t]he jurisprudence of the Tribunal with respect to proceedings under Article 26 of the Statute and Rule 119 is clear”: “review is only available with respect to final judgement.”[1] A “final judgement” in the sense of those provisions under the Statute and Rules is a decision “which terminates the proceedings; only such a decision may be subject to review.”[2] […]

23. The Appeals Chamber considers that the above cited jurisprudence establishes that the scope of review proceedings before the International Tribunal does not extend to decisions reached during the ongoing proceedings in a case prior to the rendering of the final judgement or final decision. Indeed, in the Barayagwiza Review Decision, the Appeals Chamber explicitly held that interlocutory decisions are not subject to review after the rendering of the final judgement or final decision.[3] Review proceedings are, by their very nature, extraordinary and exceptional because they allow for the re-opening of a closed case and thus, are limited to the final judgement or decision in a case, especially in light of the fact that there is no time-limit for an accused seeking review. If decisions reached prior to the final judgement or final decision were also subject to review, the outcome of a case would always be in question and the parties would never reach resolution. […]

[1] Josipović Review Decision, para. 15; see also Niyitegeka Review Decision, para. 8; Tadić Review Decision, para. 14; Barayagwiza Review Decision, para. 49.

[2] Barayagwiza Review Decision, para. 49.

[3] Barayagwiza Review Decision, fn. 64.

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Notion(s) Filing Case
Order on Assignment of Counsel - 17.02.2016 NGIRABATWARE Augustin
(MICT-12-29)

Page.1:

CONSIDERING that, in general, the Appeals Chamber only authorizes the assignment of counsel at the expense of the Mechanism where it cannot exclude the likelihood of success of a potential ground of review;[1]

CONSIDERING that such a determination necessarily relates to the potential merits of the request for review and as corollary the Prosecution should have the opportunity to respond;[2]

[1] See, e.g., Niyitegeka Decision of 13 July 2015 [Eliézer Niyitegeka v. The Prosecutor, Case No. MICT-12-16-R, Decision on Niyitegeka’s Request for Review and Assignment of Counsel, 13 July 2015], para. 12; Jean de Dieu Kamuhanda v. The Prosecutor, Case No. ICTR-99-54A-R, Decision on Motion for Legal Assistance, 21 July 2009, para. 18.

[2] In this respect, the Appeals Chamber further notes that, at the review stage, the assignment of counsel under the legal aid system has never been authorized on an ex parte basis by the Mechanism or the International Criminal Tribunal for Rwanda.

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Notion(s) Filing Case
Decision on Extension of Assignment of Counsel - 27.05.2016 NIYITEGEKA Eliézer
(MICT-12-16-R)

8.       […] [A] general allotment of funds under the Mechanism’s legal aid system does not itself set an outer limit on the time frame that an assigned counsel has to prepare a request for review.[1] […]

See also para. 5

[1] See supra para. 5.

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Notion(s) Filing Case
Decision on Extension of Assignment of Counsel - 27.05.2016 NIYITEGEKA Eliézer
(MICT-12-16-R)

9.       […] It follows from the jurisprudence that review of a final judgement is an exceptional procedure and not an additional opportunity for a party to re-litigate arguments that failed at trial or on appeal.[1] […]

[1] See Review Decision of 23 January 2008 [Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R, Decision on Third Request for Review, 23 January 2008], para. 13 and references cited therein.

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Notion(s) Filing Case
Decision on Review - 19.06.2017 NGIRABATWARE Augustin
(MICT-12-29-R)

Pages 2-3:

CONSIDERING that, pursuant to Article 24 of the Statute of the Mechanism (“Statute”) and Rules 146, 147, and 148 of the Rules of Procedure and Evidence of the Mechanism (“Rules”) a request to have the Appeals Chamber review a final judgement will be granted, if the moving party shows that: (i) there is a new fact; (ii) the new fact was not known to the moving party at the time of the trial or appeal proceedings; (iii) the new fact could not have been discovered through the exercise of due diligence; and (iv) the new fact could have been a decisive factor in reaching the original decision;[1]

CONSIDERING that [REDACTED] contain new information of an evidentiary nature that relates to [REDACTED] that could not have been taken into account at trial or on appeal and therefore constitute a new fact,[2] which, if proved, could have been a decisive factor in reaching the original decision [REDACTED];[3]

[1] See Prosecutor v. Sreten Lukić, Case No. MICT-14-67-R.1, Decision on Sreten Lukić’s Application for Review, 8 July 2015, para. 5; Prosecutor v. Milan Lukić, Case No. MICT-13-52-R.1, Decision on Milan Lukić’s Application for Review, 7 July 2015, para. 5; Juvénal Kajelijeli v. The Prosecutor, Case No. ICTR-98-44A-R, Decision on Request for Review, 29 May 2013 (“Kajelijeli Review Decision”), para. 7; Prosecutor v. Veselin Šljivančanin, Case No. IT-95-13/1-R.1, Decision with Respect to Veselin Šljivančanin’s Application for Review, 14 July 2010 (“Šljivančanin Review Decision”), p. 2.

[2] See Kajelijeli Review Decision, paras. 24, 32, 43.

[3] See Decision of 5 May 2016 [Prosecutor v. Augustin Ngirabatware, Case No. MICT-12-29-R, Decision on Prosecution’s Motion Regarding Protected Witnesses and Ngirabatware’s Motion for Assignment of Counsel, 5 May 2016 (confidential)], paras. 3, 21, referring to [REDACTED].

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MICT Statute Article 24 MICT Rule Rule 146;
Rule 147;
Rule 148
Notion(s) Filing Case
Decision on Review - 19.06.2017 NGIRABATWARE Augustin
(MICT-12-29-R)

Page 2:

FINDING, therefore, that a review of the Appeal Judgement is warranted;

NOTING that, in these circumstances, Ngirabatware is entitled to assigned counsel at the expense of the Mechanism for the purpose of assisting him in relation to the review proceedings;[1]

[1] See Ngirabatware Decision of 5 May 2016 [Prosecutor v. Augustin Ngirabatware, Case No. MICT-12-29-R, Decision on Prosecution’s Motion Regarding Protected Witnesses and Ngirabatware’s Motion for Assignment of Counsel, 5 May 2016 (confidential)], para. 20; Eliézer Niyitegeka v. The Prosecutor, Case No. MICT-12-16-R, Decision on Niyitegeka’s Request for Review and Assignment of Counsel, 13 July 2015, para. 8; Aloys Ntabakuze v. The Prosecutor, Case No. MICT-14-77-R, Decision on Ntabakuze’s Pro Se Motion for Assignment of an Investigator and Counsel in Anticipation of his Request for Review, 19 January 2015, para. 9.

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