Scope of interlocutory appeal
|Decision on Fresh Evidence - 26.02.2009||
PRLIĆ et al.
The Appeals Chamber restricted the scope of appeal for three reasons:
16. First, the Appeals Chamber notes that the Appellants expressly rely on the arguments contained in their relevant submissions before the Trial Chamber. In this regard, the Appeals Chamber recalls that an interlocutory appeal is not a de novo review of the Trial Chamber’s decision. Consequently, a party may not merely repeat on appeal arguments that did not succeed at trial, unless it can demonstrate that rejecting them constituted such error as to warrant the intervention of the Appeals Chamber. Therefore, the present decision will not address the arguments that the Appellants simply reiterate after they have been rejected at trial, unless they seek to demonstrate that the Trial Chamber committed a specific error of law or fact invalidating the decision or weighed relevant or irrelevant considerations in an unreasonable manner.
17. Second, the Appellants submit that the Impugned Decision is intricately linked to the Trial Chamber’s “Decision on Scope of Cross-Examination under Rule 90 (H) of the Rules” issued on the same day (“Rule 90(H) Decision”). They therefore suggest that “so far as reasoning behind the Rule 90(H) [Decision] is also part of the reasoning behind the Impugned Decision, the Appeals Chamber is bound to consider and correct such reasoning where flawed”. While the Appeals Chamber cannot exclude that the Trial Chamber may indeed at any moment reconsider its Rule 90(H) Decision if it deems so appropriate, the scope of this Appeal lies strictly within the Impugned Decision and there is no jurisdiction for the Appeals Chamber to decide on matters that the Trial Chamber explicitly declined to certify for appeal.
18. Finally, the Prosecution also appears to be in disagreement with the Impugned Decision and, throughout its Response, invites the Appeals Chamber to correct it accordingly. The Appeals Chamber recalls that the Trial Chamber expressly denied the Prosecution’s request for certification to appeal the Impugned Decision. Therefore, the Appeals Chamber will only consider the Prosecution’s arguments insofar as they properly respond to the submissions raised in the Appeal. Similarly, the Prosecution’s request to “issue a Decision approving the Popović Decision as the correct statement of Tribunal jurisprudence” cannot per se be admissible in the framework of a response to an appeal filed in the present case.
It further rejected a bulk of arguments because the Appellants failed to plead specific prejudice:
26. Furthermore, the Appeals Chamber recalls that the burden of demonstrating that a Trial Chamber erred in exercising its discretion in admitting fresh evidence lies on the party alleging the errors. With respect to the present Appeal, the Appellants failed to meet this burden, merely referring to potential prejudice as a matter of principle. The Appeals Chamber rejects these general allegations and re-emphasizes that “[t]he mere fact that [the admitted evidence] was probative of the Prosecution’s case does not mean that the [a]ccused were prejudiced”.
 See, e.g., Appeal [Interlocutory Appeal by Slobodan Praljak, Milivoj Petković, Valentin Ćorić and Berislav Pušić Against the Trial Chamber’s 27 November 2008 Decision on Presentation of Documents by the Prosecution in Cross-Examination of Defence Witnesses, 16 January 2009], para. 14.
 Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-AR73.2, Decision on Krajišnik’s Appeal Against the Trial Chamber’s Decision Dismissing the Defense Motion for a Ruling That Judge Canivell is Unable to Continue Sitting in This Case, 15 September 2006, para. 9; Prosecutor v. Ramush Haradinaj et al., Case No. IT-04-84-AR65.2, Decision on Lahi Brahimaj’s Interlocutory Appeal Against the Trial Chamber’s Decision Denying his Provisional Release, 9 March 2006, para. 5; Prosecutor v. Zdravko Tolimir et al., Case No. IT-04-80-AR73.1, Decision on Radivoje Miletić Interlocutory Appeal against the Trial Chamber’s Decision on Joinder of Accused, 27 January 2006, para. 6.
 Prosecutor v. Savo Todović, Case No. IT-97-25-/I-AR11bis.1 & IT-97-25/I-AR11bis.2, Decision on Savo Todović’s Appeals Decisions on Referral under Rule 11bis, 4 September 2006, paras 73, 112; Prosecutor v. Mladen Naletilić, a.k.a. “Tuta” and Vinko Martinović, a.k.a. “Štela”, Case No. IT-98-34-A, Judgement, 3 May 2006, para. 13; see also Prosecutor v. Enver Handžihasanović and Amir Kubura, Case No. IT-01-47-AR72, Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, 16 July 2003, para. 9 and, generally, paras 31, 35-36.
 Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR72.1, Decision on Petković’s Interlocutory Appeal Against the Trial Chamber’s Decision on Jurisdiction, 16 November 2005, para. 11.
 Appeal, paras 17-18.
 Certification Decision [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-T, Decision on Joint Motion for Certification to Appeal the Decision on Presentation of Documents by the Prosecution in Cross-Examination of Defence Witnesses, 9 January 2009], pp. 3-5.
 Cf. Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-T, Decision on Praljak and Petković Defence Request for Certification to Appeal the Decision on Scope of Cross-Examination under Rule 90 (H) of the Rules, 9 January 2009.
 E.g. Response [Prosecution Response to Interlocutory Appeal Concerning the Trial Chamber’s 27 November 2008 Decision on Presentation of Documents by the Prosecution in Cross-Examination of Defence Witnesses, 29 January 2009], paras 5.4, 8, 11, 26, 28, 51, 61.
 Certification Decision, p. 5; see also, Reply [Joint Reply to Prosecution Response Filed 29 January 2009 to Interlocutory Appeal by Slobodan Praljak, Milivoj Petković, Valentin Ćorić and Berislav Pušić Against the Trial Chamber’s 27 November 2008 Decision on Presentation of Documents by the Prosecution in Cross-Examination of Defence Witnesses, 2 February 2009], paras 16, 23.
 Response, paras 5.4, 61.
 Kordić and Čerkez Appeal Judgement, paras 223-224.
 Ibid., para. 224.
|Decision Concerning Rule 92bis(C) - 07.06.2002||
7. The certificate given by the Trial Chamber pursuant to Rule 73(C) (as it then stood)[] – that it was appropriate for the continuation of the trial that an interlocutory appeal be determined – related only to [one of several] issues […]. It is, however, within the discretion of the Appeals Chamber to determine also other, related, issues where it considers it appropriate to do so, at least where they have been raised in the interlocutory appeal and the respondent to the appeal has had the opportunity to put his or its arguments in relation to those related issues. […]
 [“The Trial Chamber may certify that an interlocutory appeal during trial from a decision involving evidence or procedure is appropriate for the continuation of the trial, upon a request being made within seven days of the issuing of the decision. If such certification is given, a party may appeal to the Appeals Chamber without leave, within seven days of the filing of the certification.”]
|ICTR Rule Rule 73 ICTY Rule Rule 73|