Right to appeal

Notion(s) Filing Case
Decision on Instigating Contempt Proceedings - 25.07.2008 ŠEŠELJ Vojislav
(IT-03-67-AR77.2)

8. Rule 77(J) of the Rules provides that “[a]ny decision rendered by a Trial Chamber” under Rule 77 is subject to appeal.  The Appeals Chamber has interpreted this provision as allowing for appeals against decisions disposing of the contempt case only.[1]

12. The Appeals Chamber considers that a decision dismissing a request to initiate contempt proceedings is a decision disposing of the contempt case within the meaning of Rule 77(J) of the Rules. The Appeals Chamber notes that in the Impugned Decision, the Trial Chamber held that sufficient grounds did not exist to instigate contempt proceedings against Vučič which in effect dismissed the Prosecution Request to initiate contempt proceedings.[2] The Appeals Chamber accordingly finds that an appeal as of right lies from the Impugned Decision under Rule 77(J) of the Rules.

13. The Appeals Chamber also considers that a party in proceedings before the International Tribunal has the right to request the Trial Chamber to exercise its discretionary power to initiate contempt proceedings for alleged conduct that, if proven, would harm that party’s right to a fair trial. The Appeals Chamber further considers that the right to make such a request, by implication, gives rise to a corresponding right to challenge any incorrect application of the legal standard governing such requests. Accordingly, the Appeals Chamber finds that, in light of the Prosecution’s submission that the Trial Chamber applied an incorrect legal standard when considering the Prosecution Request, which denied the Prosecution a fair opportunity to present its case and thus implicated the Prosecution’s right to a fair trial,[3] the Prosecution can challenge the Impugned Decision under Rule 77(J) of the Rules.

[1] See Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-AR77.1, Decision on Vojislav Šešelj’s Appeal Against the Trial Chamber’s Decision of 19 July 2007, 14 December 2007, p. 2.

[2] Impugned Decision, para. 51.

[3] Appeal [Confidential Prosecution’s Appeal Brief, 26 June 2008], paras 7, 18, and 35.

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ICTR Rule Rule 77 ICTY Rule Rule 77
Notion(s) Filing Case
Sanction Decision - 21.03.2011 KAREMERA et al.
(ICTR-98-44-AR73.19)

13. The Prosecution argues that the Appeal should be summarily dismissed for lack of jurisdiction. In the Karemera Decision of 5 May 2009, the Appeals Chamber stated that “there is no appeal from a decision to impose sanctions under Rule 73(F) of the Rules.” The Appeals Chamber considers, however, that this statement of the law is unduly broad and should apply only in circumstances where a party seeks to appeal as of right.[2] This precedent should not be applicable to situations, as in this case, where the decision imposing sanctions was certified by the Trial Chamber. Therefore, to the extent that the Karemera Decision of 5 May 2009 restricted the consideration of certified decisions on sanctions under Rule 73(F) of the Rules,[3] the Appeals Chamber considers that there are cogent reasons to depart from this jurisprudence.

14. Accordingly, the Appeals Chamber considers that a decision to impose sanctions pursuant to Rule 73(F) of the Rules is subject to interlocutory appeal in accordance with Rule 73(B) of the Rules. The Appeal is therefore properly before the Appeals Chamber.

[1] Karemera Decision of 5 May 2009 [Édouard Karemera et al. v. The Prosecutor, Case No. ICTR-98-44-AR75.15, Decision on Joseph Nzirorera’s Appeal Against a Decision of Trial Chamber III Denying the Disclosure of a Copy of the Presiding Judge’s Written Assessment of a Member of the Prosecution Team, 5 May 2009], para. 21.

[2] Indeed, the decisions relied on by the Appeals Chamber for this proposition concerned appeals of right in situations where the decision imposing sanctions was not certified by the Trial Chamber. See Karemera Decision of 11 June 2004 [Édouard Karemera and Joseph Nzirorera v. The Prosecutor, Case No. ICTR-98-44-AR73.4, Decision on Interlocutory Appeals Regarding Participation of Ad Litem Judges, 11 June 2004], p. 4 (“a decision to impose monetary sanctions on counsel for frivolous motions or abuse of process pursuant to Rule 73(F) of the Rules is not subject to appeal under the Statute of the […] Tribunal or the Rules and […] in any event, the certification granted by the Trial Chamber in this case does not cover an appeal from the decision to impose such sanctions”) (emphasis added); Karemera Decision of 9 June 2004 [Joseph Nzirorera v. The Prosecutor, Case No. ICTR-98-44-AR73(F), Decision on Counsel’s Appeal from Rule 73(F) Decisions, 9 June 2004], p. 3 (“there is no basis for granting a right of appeal in the present case”) (emphasis added).

[3] Notably, the Appeals Chamber in the Karemera Decision of 5 May 2009 ultimately reviewed and reversed the Trial Chamber’s decision to impose sanctions, albeit relying on an alternative jurisdictional basis. See Karemera Decision of 5 May 2009, paras. 21-23, citing Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Judgement, 28 November 2007, paras. 73, 74. The English translation of the original French version was filed on 16 May 2008.

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ICTR Rule Rule 73(F)
Rule 73(b)
Notion(s) Filing Case
Decision on Amicus Prosecutor - 08.12.2015 KAMUHANDA Jean de Dieu
(MICT-I3-33-AR90/108.1)

11.     Pursuant to Rule 90(J) of the Rules of Procedure and Evidence of the Mechanism (“Rules”), a decision disposing of a contempt case rendered by a Single Judge is subject to appeal as of right. The Appeals Chamber notes that in the Impugned Decision, the Single Judge dismissed Kamuhanda’s request for the appointment of an amicus curiae Prosecutor to complete the investigations into contempt identified in the ICTR Oral Decision, thus effectively disposing of the contempt case before the Mechanism. Accordingly, the Appeals Chamber finds that an appeal as of right lies from the Impugned Decision under Rule 90(J) of the Rules, and recognizes the Appeal as validly filed.

[1] Impugned Decision [The Prosecutor v. Jean de Dieu Kamuhanda, Case No. MICT-13-33, Decision on Motion for Appointment of Amicus Curiae Prosecutor to Investigate Prosecution Witness GEK, 16 September 2015], paras. 3, 11.

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MICT Rule Rule 90
Notion(s) Filing Case
Decision on Disqualification - 26.06.2009 KARADŽIĆ Radovan
(IT-95-05/18-AR15.1)

While Rule 15(B)(iii) of the Rules clearly states that there is no interlocutory appeal from a decision by the panel of three judges, it does not set out what avenues are available should a party wish to challenge the finding of the President on the merits of an application for disqualification pursuant to Rule 15(B)(ii) of the Rules. Referring to the former version of Rule 15(B) of the Rules, the Appeals Chamber concluded:

7. […] In interpreting the previous version of the Rule, the Appeals Chamber in Prosecutor v. Galić found that the Presiding Judge could determine that it was not necessary to refer the matter to the Bureau and decide the matter himself; however, if the party seeking disqualification challenged the Presiding Judge’s decision, it did become “necessary” to refer the matter to the Bureau within the language of Rule 15(B) of the Rules. Therefore, while there was no interlocutory appeal from decisions of either the Presiding Judge or the Bureau, there was in effect a second level of review by the Bureau in the case of the Presiding Judge deciding the matter alone.[1] In circumstances where an application for disqualification was referred to the Bureau, it would undertake a de novo review.[2]

8. The procedure in the current version of Rule 15(B) of the Rules differs in that it is the President, rather than the Presiding Judge, who either makes the decision on his own or refers it on for decision. Further, in the latter case, the President refers it not to the Bureau but to a panel of three judges drawn from other Chambers. However, beyond these differences, the language and general procedure of Rule 15(B) of the Rules in the two versions is broadly similar. Both provide that the matter may be decided by a lone judge (be it the Presiding Judge or the President) or “if necessary” by a panel of judges (be it a panel of three judges from other Chambers or the Bureau). Therefore, the Appeals Chamber considers that the reasoning in Galić to the extent that where a decision of the Presiding Judge acting on his own is challenged it becomes “necessary” to refer the matter to the Bureau, would equally apply to the new procedure under Rule 15(B) of the Rules. Therefore, under the current Rule 15(B) of the Rules, where the President (or, as in the instant case, the Vice-President) has determined that it is not necessary to refer the matter to a panel of judges and decided the matter himself, and that decision is challenged, it becomes “necessary” to refer the matter to a panel of three judges.

 

[1] Prosecutor v. Stanislav Galić, Case No. IT-98-29-AR54, Decision on Appeal from Refusal of Application for Disqualification and Withdrawal of Judge, 13 March 2003 (“Galić Appeal Decision”), para. 8. Note that while there was no interlocutory appeal from a decision pursuant to Rule 15(B) of the Rules, the matter can be raised in an appeal against conviction, see ibid.; Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Judgement, 30 November 2006 (“Galić Appeal Judgement”), para. 31.

[2] Galić Appeal Judgement, para. 31.

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ICTR Rule Rule 15 ICTY Rule Rule 15
Notion(s) Filing Case
Reconsideration Decision - 20.09.2010 NZABONIMANA Callixte
(ICTR-98-44D-AR7bis, ICTR-98-44D-AR7bis.2)

35. As recognised in the 5 May 2010 President’s Decision, the role of the President of the Tribunal under Rule 7bis (A) of the Rules is simply to transmit the judicial finding of the relevant Chamber to the Security Council.[1] The Appeals Chamber therefore agrees that “it is not within the jurisdiction of the President to replace the assessment of the Chamber about a Member State’s violation of Article 28 of the Statute at the request of a party with his own”.[2] Accordingly, once a Trial Chamber has rescinded its request under Rule 7bis of the Rules, the President is no longer seised of the matter and his subsequent decision not to report the matter to the Security Council cannot be successfully challenged on appeal.

[1] 5 May 2010 President’s Decision, para. 5 [The Prosecutor v. Callixte Nzabonimana, Case No. ICTR-98-44D-T, Decision on Nzabonimana’s Motion for the Implementation of the Order of Trial Chamber III of 4 March 2010 and for Allowing the Defence to Make Submissions Before the Security Council, 5 May 2010], referring to Blaškić Judgement on Request for Review [Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-AR108bis, Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997], para. 37.

[2] 5 May 2010 President’s Decision, para. 9.

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ICTR Rule Rule 7 bis ICTY Rule Rule 7 bis
Notion(s) Filing Case
Appeal Judgement - 30.11.2006 GALIĆ Stanislav
(IT-98-29-A)

The Appeals Chamber found that “the fact that a decision on disqualification cannot be appealed at trial does not necessarily mean that the impartiality of a Judge cannot be considered in an appeal from a judgement.” (para. 31).

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ICTR Rule Rule 15 ICTY Rule Rule 15
Notion(s) Filing Case
Decision on Assessment of Competencies - 05.05.2009 KAREMERA et al.
(ICTR-98-44-AR75.15)

10. Rule 15(B) of the Rules prescribes a two-stage process for making a request to disqualify a Judge which consists of (i) an application to the Presiding Judge of the Trial Chamber seized with the proceedings, and (ii) a de novo determination by the Bureau.[1] The Appeals Chamber’s consideration of matters relating to disqualification is limited to an appeal on the merits of the case or, as here, where the issue properly arises in an interlocutory appeal certified by the Trial Chamber.[2]

[1] The Prosecutor v. Athanase Seromba, ICTR-01-66-AR, Decision on Interlocutory Appeal of a Bureau Decision, 22 May 2006, para. 5 (“Seromba Appeal Decision”).

[2] Seromba Appeal Decision, para. 4.

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ICTR Rule Rule 15 ICTY Rule Rule 15