Time limits

Notion(s) Filing Case
Decision on Application to Strike Brief - 23.06.2005 MILOŠEVIĆ Slobodan
(IT-02-54-A-R77.4)

The Appellant filed his Appellant’s Brief after the deadline set by the Appeals Chamber and he did not submit a motion pursuant to Rule 127 of the ICTY Rules of Procedure and Evidence requesting that it be considered as validly filed and showing good cause to justify the delay. The Appeals Chamber, nevertheless, held that the Appellant’s Brief was deemed to be validly filed:

5.       The Scheduling Order issued by the Appeals Chamber is unambiguous.  The Appellant’s Brief was to be filed on 17 June 2005.  If good cause justified Counsel filing the Appellant’s Brief after the time stipulated in that Order, then that good cause should be presented to the Appeals Chamber, and a request for an extension of time should have been made before the filing deadline or a request that the Appellant’s Brief be received as validly filed pursuant to Rule 127 of the Rules should have been made at the time of the filing of the Appellant’s Brief out of time, if not before.  The fact that Counsel for the Appellant has not sought to justify his late filing and has requested the Appeals Chamber to receive it as validly filed after the fact is sufficient grounds for the Appeals Chamber to strike the Appellant’s brief as not validly filed, as is requested by the Prosecution.  Indeed, when clear time limits are transgressed without justifiable explanation, the Appeals Chamber is hesitant to do other than reject the filing.  In this case, however, the Appeals Chamber has determined that the interests of justice warrant it receiving the brief as validly filed despite Counsel’s breach of its Order. 

6.       Contempt proceedings are ancillary to proceedings at the Tribunal and arise from the inherent power of the Judges of this Tribunal to protect the integrity of their own proceedings.  However, this particular contempt appeal also touches upon fundamental due process rights of an Accused, Mr Milošević, charged with  particularly serious offences in a way that other contempt proceedings heard at this Tribunal have not. 

7.       A central argument made by the Appellant in his grounds of appeal is that the Trial Chamber should not have allowed his cross-examination to continue in the absence of the Accused and that, as a result, he should never have been put in the position of refusing an order of the Tribunal and subsequently being charged with contempt of the Tribunal for such a refusal.  Prior to the commencement of the contempt proceedings against him, the Appellant requested the Trial Chamber to reconsider its ruling on this basis.  The Trial Chamber refused to do so on the basis that it was not its role to reconsider such a decision, one which it already had determined was warranted, in the context of a proceeding of contempt against the Appellant.

8.       In these circumstances, if the Appeals Chamber refuses due to a procedural irregularity to accept the Appellant’s Brief as validly filed, then the Appellant is placed in the unfortunate position of being charged with contempt but denied the opportunity to respond fully to that criminal charge. Upon this basis, the Appeals Chamber has determined that the possible implications of this contempt proceeding for the rights of the Accused Mr Milošević warrant some leniency to the Appellant despite his Counsel’s failure to abide by the Scheduling Order of the Appeals Chamber.

9.       On the basis of the foregoing, the Appellant’s Brief filed on 20 June 2005 is deemed to be validly filed. […]  

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ICTR Rule Rule 116 ICTY Rule Rule 127
Notion(s) Filing Case
Order on Extension of Time - 21.09.2004 MILOŠEVIĆ Slobodan
(IT-02-54-AR73.7)

Trial Chamber III issued an oral decision on 2 September 2004 with written reasons to follow. Pursuant to Rule 73(B) of the Rules, Slobodan Milošević filed a request for certification to appeal the 2 September 2004 decision, which the Trial Chamber granted in an order issued 10 September 2004. Milošević subsequently filed a request with the Appeals Chamber for an extension of time in which to file the appeal against the 2 September 2004 decision, on the basis that the written reasons for the decision were still pending. The Appeals Chamber held, at p. 2:

NOTING that on 10 September 2004, Trial Chamber III issued an “Order on Request for Certification to Appeal the Decision of the Trial Chamber on Court Assigned Counsel,” which certified for appeal the question of whether representation by counsel should be imposed on Slobodan Miloševic (“Appellant”);

BEING SEIZED OF the “Request for Extension of Time to File Appeal Against the Trial Chamber’s Order Concerning the Representation of the Accused Dated 2 September 2004” filed by Appellant on 14 September 2004, in which Appellant requested an extension of the time limit to file a certified appeal under Rule 73(C)(ii);

CONSIDERING that, while Trial Chamber III has already issued an oral order finally resolving the question at issue in Appellant’s certified appeal, the Trial Chamber’s formal written decision has yet to issue;

DEEMING the lack of a reasoned written decision “good cause” for an extension of the time limit under Rule 127 of the Rules of Procedure and Evidence, since the lack of a written decision hampers counsel’s efforts to fully comprehend the reasons for the Trial Chamber’s decision;

HEREBY GRANT Appellant’s motion […] 

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ICTR Rule Rule 116 ICTY Rule Rule 127
Notion(s) Filing Case
Decision on Extension of Time - 23.03.2009 MILUTINOVIĆ et al.
(IT-05-87-A)

p. 3: NOTING that Pavković’s and Lukić’s Motions seek authorization to file their notices of appeal within 60 days from the filing of the B/C/S translation of the Trial Judgement on the ground that neither of them understand English;[1]

CONSIDERING that Counsel for Pavković and Lukić work in English;

RECALLING that, pursuant to Rule 108 of the Rules, the Appeals Chamber may, after the filing of the notice of appeal by a party and on good cause being shown by motion, authorize a variation of grounds of appeal;

CONSIDERING therefore that Pavković and Lukić will have the opportunity, if they so wish, to request variation of their grounds of appeal after having read the B/C/S translation of the Trial Judgement, provided that they show good cause under Rule 108 of the Rules;

FURTHER CONSIDERING that it would be unreasonable to delay the appellate proceedings until the filing of the B/C/S translation of the Trial Judgement;

FINDING therefore that Pavković and Lukić have not shown good cause for the requested extension;

 

pp. 3-4: CONSIDERING that the length of the Trial Judgement is unprecedented and that, in conjunction with the other factors referred by the Joint Motion, this case raises issues of significant complexity;[2]

CONSIDERING that it is in the interests of justice to ensure that the parties have sufficient time to prepare meaningful notices of appeal in full conformity with the applicable provisions;

FINDING that good cause exists for granting an extension on that basis[.]

See also, Decision on Joint Defence Motion Seeking Extension of Time to File Appeal Briefs, 29 June 2009.

[1] Pavković’s Motion [Motion for an Extension of Time to File Notice of Appeal with Annex” filed by the Defence for Nebojša Pavković, 9 March 2009], paras 2-4; Lukić’s Motion, para. 3.

[2] Cf. Prosecutor v. Enver Hadžihasanović and Amir Kubura, Case No. IT-01-47-A, Decision on Motions for Extension of Time, Request to Exceed Page Limit, and Motion to File a Consolidated Response to Appeal Briefs, 27 June 2006, para. 7 in which the Pre-Appeal Judge noted the “unusual length” of the Trial Judgement rendered in that case; Prosecutor v. Milomir Stakić, Case No. IT-97-24-A, Decision on the Defence Motion for Extension of Time, 26 April 2004, para. 5 mentioning the complexity of issues in that appeal as one of the factors in favour of an extension of time; Prosecutor v. Dario Kordić & Mario Čerkez, Case No. IT-95-14/2-A, Decision on Motions to Extend Time for Filing Appellant’s Briefs, 11 May 2001, para. 19 referring to the length and the complexity of the trial.

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ICTR Rule Rule 108 ICTY Rule Rule 108
Notion(s) Filing Case
Decision on Stay of Provisional Release - 29.09.2004 STANIŠIĆ & SIMATOVIĆ
(IT-03-69-AR73)

24. As indicated above, Rule 65(E) establishes the procedure by which the Prosecution should indicate its intention to seek a stay of a decision of a Trial Chamber granting an accused’s provisional release application. However, while the Appeals Chamber is of the view that Rule 127 should not be relied upon by the Prosecution as a means of circumventing the correct procedure set out in the Rules, the Appeals Chamber is also not persuaded that the Trial Chamber erred in applying that Rule to receive the Prosecution’s application for a stay as validly filed. The sole purpose of Rule 127(A)(ii) is to allow for exception to a strict application of the Rules where “good cause” exists for allowing that exception.

25. In the Impugned Decision, the Trial Chamber did not provide clear reasons for its finding that “good cause” existed for the application of Rule 127(A)(ii) to the requirements of Rule 65(E), but it was clearly within the Trial Chamber’s discretion to do so. In its stay application, the Prosecution made clear its intention to appeal the Impugned Decision. The “good cause”, as recently recognised by the Appeals Chamber in Prlić when it granted the Prosecution’s application for a stay of provisional release orders of a Trial Chamber, is the preservation of the object of the Prosecution’s appeal against the provisional release of the accused.[1] Preservation of the object of the appeal was the “concrete motivation” of the Judges of the Trial Chamber in granting the Prosecution’s stay application.

[1] Prosecutor v Jadranko Prlić et al, Case IT-04-74-AR65.1; IT-04-74-AR65.2; IT-04-74-AR65.3, Decision on Motions for Re-Consideration, Clarification, Request for Release and Applications for Leave to Appeal, 8 September 2004.

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ICTR Rule Rule 65;
Rule 116
ICTY Rule Rule 65;
Rule 127
Notion(s) Filing Case
Decision on Time for Filing Brief - 02.08.2004 NIKOLIĆ Momir
(IT-02-60/1-A)

CONSIDERING that the recess of the Appeals Chamber does not mean that the time-limits prescribed under the Rules and the relevant Practice Directions stop running and that this ground does not constitute good cause within the meaning of Rule 127 of the Rules;

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ICTR Rule Rule 116 ICTY Rule Rule 127
Notion(s) Filing Case
Decision on Stay of Procedure and Assignment of Counsel - 04.04.2014 PRLIĆ et al.
(IT-04-74-A)

17. […] The Appeals Chamber acknowledges that neither the Rules nor the relevant Practice Directions require the inclusion of a word count or provide for a time-limit for the filing of Registry submissions pursuant to Rule 33(B) of the Rules. However, the Appeals Chamber has previously imposed time-limits and required the inclusion of a word count in Registry submissions where it found it necessary for the efficient administration of the proceedings and for ensuring equality.[1] Guided by the same considerations, the Appeals Chamber requests the Registry to include a word count in future Rule 33(B) submissions in response to motions filed in the present case and to make such submissions within ten days of the filing of the respective motion.

[1] Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-A, Decision on Krajišnik Request and on Prosecution Motion, 11 September 2007, paras 23, 25.

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ICTR Rule Rule 33(B) ICTY Rule Rule 33(B)
Notion(s) Filing Case
Decision on Denial of Revocation - 21.05.2014 STANKOVIĆ Radovan
(MICT-13-51)

15. Turning to Stanković’s challenges to the Impugned Decision, the Appeals Chamber notes that the Referral Bench considered that Stanković filed the Revocation Request after the Appellate Panel in Bosnia and Herzegovina had affirmed his conviction.[1] The Referral Bench noted, however, that it “may revoke a referral order proprio motu in the circumstance of a grave violation left unchallenged by the Prosecution or untimely submitted”.[2] Thus, having examined Stanković’s submissions, the Referral Bench concluded that:

[i]n the absence of previously unidentified or grave violations of Stanković’s right to a fair trial, the Referral Bench considers that it would be contrary to the intention of Rule 11bis to order a case referred to the authorities of a State to be sent back to the Tribunal after the trial and appeal proceedings have concluded in that State.[3]

16.     The Appeals Chamber notes that Rule 11bis(F) of the ICTY Rules, Article 6(6) of the MICT Statute, and Rule 14(C) of the MICT Rules unequivocally provide that revocation of a referral order may occur only before the accused has been found guilty or acquitted by a national court. As recalled above, the proceedings against Stanković before the courts of Bosnia and Herzegovina were completed in April 2007.[4] The Appeals Chamber further notes that, contrary to Stanković’s submission,[5] the panel of the State Court and the Appellate Panel of Bosnia and Herzegovina were composed of different judges.[6] Therefore, to the extent that Stanković argues that there is no final judgement against him due to irregularities in the composition of the Appellate Panel, his submission is unsubstantiated.

17.     Accordingly, the Appeals Chamber finds that the Referral Bench correctly considered that it would be contrary to the intention of Rule 11bis of the ICTY Rules to revoke a referral order after the legal proceedings in the respective State have been completed. Absent any explicit legal basis for such revocation, the Appeals Chamber finds that it need not consider further whether the Referral Bench committed a discernible error in finding that there were no grounds to revoke the referral of Stanković’s case to the authorities of Bosnia and Herzegovina.

[1] Impugned Decision [Prosecutor v. Radovan Stanković, Case No. IT-96-23/2-PT, Decision on Radovan Stanković’s Motion of 21 January 2013, 12 June 2013 (confidential)], para. 16.

[2] Impugned Decision, para. 16. See also Impugned Decision, para. 10, citing Prosecutor v. Gojko Janković, Case No. IT-96-23/2-PT, Decision on Gojko Janković’s Motion of 12 April 2010, 21 June 2010, para. 14.

[3] Impugned Decision, para. 16.

[4] See supra, para. 4.

[5] Appeal, para. 15.

[6] See Sixth Progress Report [Prosecutor v. Radovan Stanković, Case No. IT-96-23/2-PT, Prosecutor’s Sixth Progress Report, 20 March 2007], Annex B; Seventh Progress Report [Prosecutor v. Radovan Stanković, Case No. IT-96-23/2-PT, Prosecutor’s Seventh Progress Report, 27 June 2007], Annex B. 

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ICTY Rule Rule 11 bis MICT Rule Rule 14
Notion(s) Filing Case
Decision on Referral - 05.10.2012 MUNYARUGARAMA Pheneas
(MICT-12-09-AR14)

9.       An appellant is required to file an appeal brief within fifteen days after filing the notice of appeal concerning a decision to refer a case.[1] Duty Counsel filed the Notice of Appeal on 11 July 2012.[2] Although the Notice of Appeal was re-filed before the Mechanism on 17 July 2012 pursuant to an order of the Presiding Judge of the ICTR’s Appeals Chamber,[3] the Appeals Chamber considers that the time-limit for Duty Counsel to file the Appeal Brief began to run on 11 July 2012, when he filed the Notice of Appeal. Consequently, Duty Counsel was required to file the Appeal Brief before the Mechanism by 26 July 2012. Duty Counsel failed to do so.

[1] The briefing deadlines set forth in Rule 14(E) of the Rules correspond with those set forth in Rule 11bis(H) of the ICTR Rules and paragraphs 5 and 6 of the ICTR’s Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings before the Tribunal, 8 December 2006 (“ICTR Practice Direction”). The ICTR Practice Direction applies mutatis mutandis to appeals filed before the Mechanism. See Practice Direction Related to Appeals, MICT/4, 5 July 2012 (“Practice Direction”), para. 1.

[2] See supra fn. 1.

[3] See Order of 17 July 2012 [Phénéas Munyarugarama v. The Prosecutor, Case No. ICTR-02-79-AR11bis, Order Regarding Notice of Appeal, 17 July 2012], p. 1.

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MICT Rule Rule 14(E)
Notion(s) Filing Case
Decision on Referral - 05.10.2012 MUNYARUGARAMA Pheneas
(MICT-12-09-AR14)

14.     An appellant “may” file a reply within four days of the filing of the response.[1] […]

15.     […] Moreover, the Appeals Chamber considers that striking the Reply Brief does not run counter to the interests of justice in the same manner as striking the Appeal Brief would in this case.[2] In this context, the Appeals Chamber considers that a reply is an optional filing and finds that it is not necessary to the consideration of this appeal. In view of the foregoing, the Appeals Chamber grants the Motion to Strike and shall not consider the Reply Brief.

16.     The Appeals Chamber emphasises that procedural time-limits are to be respected as they are indispensable to the proper functioning of the Mechanism.[3] Violations of time-limits, unaccompanied by any showing of good cause, will not be tolerated.[4] The Appeals Chamber warns Duty Counsel that failure to respect filing deadlines may result in a determination that Duty Counsel is ineligible to represent an accused or suspect before the Mechanism.[5]

[1] Rule 14(E) of the Rules. See also ICTR Practice Direction, para. 7; Practice Direction, para. 1.

[2] See supra para. 12.

[3] See The Prosecutor v. Ildephonse Hategekimana, Case No. ICTR-00-55B-R11bis, Decision on a Request for an Extension of Time to File a Cross-Appeal, 16 September 2008 (“Hategekimana Decision of 16 September 2008”), p. 4; Prosecutor v. Baton Haxhiu, Case No. IT-04-84-R77.5-A, Decision on Admissibility of Notice of Appeal against Trial Judgement, 4 September 2008 (“Haxhiu Decision of 4 September 2008”), para. 16; Kayishema and Ruzindana Appeal Judgement, para. 46.

[4] See, e.g., Ladislas Ntaganzwa v. The Prosecutor, Case No. ICTR-96-9-AR11bis, Decision on Admissibility of Notice of Appeal against Referral Decision, 5 July 2012, p. 2; Haxhiu Decision of 4 September 2008, para. 16; Kayishema and Ruzindana Appeal Judgement, para. 46. Cf. Hategekimana Decision of 16 September 2008, pp. 4, 5.

[5] See Rule 47(A)(ii) of the Rules.

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MICT Rule Rule 14(E);
Rule 154(A)(ii)
Notion(s) Filing Case
Decision on Referral - 05.10.2012 MUNYARUGARAMA Pheneas
(MICT-12-09-AR14)

10.     Rule 154(A)(ii) of the Rules allows a Chamber of the Mechanism, on good cause being shown by motion, to recognize as validly done any act done after the expiration of the prescribed time-limit. In this respect, the Appeals Chamber recalls that unforeseen logistical problems have been considered insufficient to establish good cause warranting extensions of filing deadlines.[1]

[1] See, e.g., Ildephonse Hategekimana v. The Prosecutor, Case No. ICTR-00-55B-A, Decision on Ildephonse Hategekimana’s Second Motion for an Extension of Time to File his Appellant’s Brief, 20 May 2011, paras. 3, 8, 10.

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MICT Rule Rule 154(A)(ii)
Notion(s) Filing Case
Decision on Referral - 05.10.2012 MUNYARUGARAMA Pheneas
(MICT-12-09-AR14)

12.     Even where counsel has failed to demonstrate good cause justifying the late filing, the Appeals Chamber may recognize submissions as validly filed where they are of such substantial importance to the appeal that doing so is in the interests of justice.[1] Extensions may also be granted where counsel’s conduct has not sufficiently protected the rights of the appellant.[2] The Appeals Chamber considers that the Appeal Brief is of substantial importance to the protection of the rights of the appellant. To reject it could result in the dismissal of Munyarugarama’s appeal.[3] Moreover, recognizing the Appeal Brief as validly filed would not prejudice the Prosecution, which responded to the Appeal Brief, or impact the timely consideration of this appeal.[4] Consequently, the Appeals Chamber finds that it is in the interests of justice to recognize the Appeal Brief as validly filed. 

[1] See Édouard Karemera and Matthieu Ngirumpatse v. The Prosecutor, Case No. ICTR-98-44-A, Decision on Matthieu Ngirumpatse’s Motion for an Extension of Time for the Filing of his Brief in Reply, 22 August 2012 (“Karemera Decision of 22 August 2012”), para. 7. See also Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-AR73.2, Decision on Joint Defence Interlocutory Appeal Concerning the Status of Richard Butler as an Expert Witness, 30 January 2008, para. 8; Prosecutor v. Ljube Boškoski and Johan Tarčulovski, Case No. IT-04-82-AR65.3, Decision on Ljube Boškoski’s Interlocutory Appeal on Second Motion for Provisional Release, 28 August 2006, para. 9.

[2] See Justin Mugenzi and Prosper Mugiraneza v. The Prosecutor, Case No. ICTR-99-50-A, Decision on Prosper Mugiraneza’s Motion for Extension of Time to File his Appellant’s Brief, 26 January 2012, para. 10.

[3] Rule 14(E) of the Rules states that an appellant “shall” file an appeal brief within fifteen days after the filing of the notice of appeal. Likewise, the ICTR Practice Direction, which applies mutatis mutandis to appeals filed before the Mechanism, states that an appellant “must” file the appeal brief within 15 days after the filing of the notice of appeal. See ICTR Practice Direction, para. 5; Practice Direction, para. 1. Failure to file an appeal brief may lead the Appeals Chamber to consider that the right of appeal has been waived. Cf. The Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-A, Judgement (Reasons), 1 June 2001 (“Kayishema and Ruzindana Appeal Judgement”), para. 46.

[4] See Karemera Decision of 22 August 2012, para. 7; Jean Uwinkindi v. The Prosecutor, Case No. ICTR-01-75-AR11bis, Decision on Uwinkindi’s Appeal against the Referral of his Case to Rwanda and Related Motions, 16 December 2011 (“Uwinkindi Decision of 16 December 2011”), para. 16.

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MICT Rule Rule 154(A)(ii)
Notion(s) Filing Case
Decision on Extension of Time - 24.07.2008 HATEGEKIMANA Idelphonse
(ICTR-00-55B-R11bis)

Having noted that Hategekimana and his Counsel work exclusively in French, the Appeals Chamber recalled the good cause requirement for an extension of time under Rule 116 of the Rules and granted the sought extension (p. 3):

CONSIDERING however that Rule 116 of the Rules provides that the Appeals Chamber “may grant a motion to extend a time limit upon a showing of good cause” and that “[w]here the ability of the accused to make full answer and Defence depends on the availability of a decision in an official language other than that in which it was originally issued, that circumstance shall be taken into account as a good cause under the present Rule”;    

[…]

CONSIDERING that the need for Hategekimana and his Counsel to be provided with the Rule 11bis Decision and the Prosecution’s written submissions in the present appeal proceedings in French in order to be able to make full answer and defence constitutes “good cause” within the meaning of Rule 116 of the Rules;

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ICTR Rule Rule 116 ICTY Rule Rule 127
Notion(s) Filing Case
Decision on Time-Limit - 14.12.2000 TADIĆ Duško
(IT-94-1-A-AR77)

CONSIDERING that […] in principle, Counsel must organise his commitments in such a way that he is able to meet deadlines […]

CONSIDERING that, in general, the Appeals Chamber need not take into account Counsel’s commitments when setting deadlines […]

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ICTR Rule Rule 116 ICTY Rule Rule 127
Notion(s) Filing Case
Decision on Admissibility of Notice of Appeal - 04.09.2008 HAXHIU Baton
(IT-04-84-R77.5-A)

Haxhiu filed his notice of appeal against the trial judgement convicting him for contempt 26 days after the date of the trial judgement. The Prosecution asked to strike the notice of appeal as being time-barred. Haxhiu argued that appeals against judgements on appeal are filed not within the time limit prescribed by Rule 77(J) (15 days) but pursuant to the general time-limit for appeal against judgements pursuant to Rule 108 (30 days). The Appeals Chamber held as followed:

12. At the outset, the Appeals Chamber recalls that in Prosecutor v. Marijačić and Rebić it was confronted with a question similar to the one in this case. The Appeals Chamber in that case explicitly rejected the argument, made by one of the appellants in relation to the filing of the appeal brief, that Section III of the Practice Direction is only applicable to interlocutory decisions but not to judgements rendered pursuant to Rule 77. The Appeals Chamber consequently held that “Section III [of the Practice Direction] applies to final decisions of a Trial Chamber under Rule 77.”[1]

13. The same reasoning applies to Rule 77(J) of the Rules, which is mirrored in paragraph 4 of the Practice Direction. Indeed, in Prosecutor v. Šešelj, the Appeals Chamber stated that “Rule 77(J) of the Rules shall be interpreted as allowing for appeals against decisions disposing of contempt cases only.”[2]

14. Accordingly, the Appeals Chamber finds that Haxhiu’s Notice of Appeal was filed outside the prescribed time-limits. […]

[1] Prosecutor v. Ivica Marijačić and Markica Rebić, Case No. IT-95-14-R77.2-A, Judgement, 27 September 2006, para. 14.

[2] 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, with further references (emphasis added).

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ICTR Rule Rule 77;
Rule 108
ICTY Rule Rule 77;
Rule 108
Notion(s) Filing Case
Decision on Admissibility of Notice of Appeal - 04.09.2008 HAXHIU Baton
(IT-04-84-R77.5-A)

16. The Appeals Chamber stresses once again that time-limits in the Rules must be observed. Finality is an important component of any criminal trial. Parties cannot reopen the proceedings at will. As the ICTR Appeals Chamber held in The Prosecutor v. Kayishema and Ruzindana, rejecting the entire appeal lodged by the Prosecution in that case:

Procedural time-limits are to be respected, … they are indispensable to the proper functioning of the Tribunal and the fulfilment of its mission to do justice. Violations of these time-limits, unaccompanied by any showing of good cause, will not be tolerated.[1]

[1] The Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-A, Judgement (Reasons), para. 46 (footnotes omitted). See also fn. 54 of that Judgement, which by referring to Rule 127 of the ICTY Rules of Procedure and Evidence states that “[t]he fact that an act performed after the expiration of a prescribed time may be recognized as validly done illustrates the following principle: timely filing is the rule, and filing after the expiration of a time-limit constitutes late filing, which is normally not permitted. However, if good cause is shown, the Rule establishes that despite the expiration of time and tardy filing, an act may be recognized as validly done, as a permitted derogation from the usual rule. Thus, the Rule reinforces the principle that procedural time-limits are to be respected.”

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ICTR Rule Rule 116 ICTY Rule Rule 127
Notion(s) Filing Case
Decision on Admissibility of Notice of Appeal - 04.09.2008 HAXHIU Baton
(IT-04-84-R77.5-A)

14. […] However, Haxhiu has requested the Appeals Chamber to recognize the late filing as validly done pursuant to Rules 127(A)(ii) and 127(B) of the Rules. He concedes that “counsel’s unfamiliarity with the Appeals Chamber’s procedure does not constitute good cause for an extension of time.”[1] Indeed, the Appeals Chamber recalls that “counsel participating in appeals proceedings are expected to familiarize themselves with the procedural requirements.”[2]

15. […] Given the existence of only a few judgements on appeal in contempt proceedings before the International Tribunal, Counsel is expected to have acquainted himself with the relevant jurisprudence on this issue. Accordingly, no good cause has been shown that would allow the Appeals Chamber to exercise its discretion in recognizing the filing of the Notice of Appeal as validly done.

[1] Response, p. 7.

[2] Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Decision on Motion by Radivoje Miletić for Access to Confidential Information, 9 September 2005, p. 2.   

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ICTR Rule Rule 116 ICTY Rule Rule 127
Notion(s) Filing Case
Decision on Expert Witness - 30.01.2008 POPOVIĆ et al.
(IT-05-88-AR73.2)

7. The Appeals Chamber recalls that “sufficient reasons constituting good cause” pursuant to Rule 127(A)(i) and (B) of the Rules are required to recognize a late filing as validly done.[1] Exceptionally, the Appeals Chamber has, in specific circumstances, found good cause to recognize a late filing as validly done in the interests of justice.[2] […] The Appeals Chamber recalls that Counsel “is under an obligation to give absolute priority to observe the time limits as foreseen in the Rules” and that “a trip abroad” does not constitute good cause for an extension of the time limit.[3] Absence from The Hague does not constitute good cause either.

See also the Joint Dissenting Opinion of Judge Liu and Judge Schomburg.

[1] Prosecutor v. Milan Lukić et al., Case No. IT-98-32/1-AR65.1, Decision on Defence Appeal Against Trial Chamber’s Decision on Sredoje Lukić’s Motion for Provisional Release, 16 April 2007 (“Lukić Decision”), para. 12.

[2] See, for example, Lukić Decision, para. 12, in which the Appeals Chamber found that the Trial Chamber did not abuse its discretion in admitting supplementary material to the Prosecution’s response filed one day after the deadline “in light of the relevance of the information contained in the Prosecution [supplementary material]” for the issue before it and the “opportunity afforded to the Appellant to reply to it”. See also Prosecutor v. Ljube Boškoski et al., Case No. IT-04-82-AR63.5, Decision on Ljube Boškoski’s Interlocutory Appeal on Second Motion for Provisional Release, 28 August 2006, para. 9, in which the Appeals Chamber admitted an appeal filed one day after the deadline because it considered it to be in the interests of justice due to the “substantial importance of the Appeal for the rights of the Appellants.”

[3] Prosecutor v. Ferdinand Nahimana et al., Case No. ICTR-99-52-A, Decision on Appellant Jean-Bosco Barayagwiza’s Motion for Extension of Time, 3 May 2007, p. 3. See, also Prosecutor v. Momir Nikolić, Case No. IT-02-60/1-A, Decision on Second Defence Motion to Enlarge Time for Filing of Replies, 1 April 2005, p. 4, in which the Pre-Appeal Judge stressed that “other professional commitments of counsel should not have any bearing on the responsibilities of counsel towards their client and the International Tribunal”.

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ICTR Rule Rule 116 ICTY Rule Rule 127
Notion(s) Filing Case
Decision on Time Limits - 28.09.2005 NIYITEGEKA Eliézer
(ICTR-96-14-R)

On 20 June 2005 the Appeals Chamber instructed the Applicant, should he deem it necessary, to file additional submissions no later than twenty days after the date of assignment of Ms. Geraghty as Counsel (p. 2).[1] Counsel was assigned on 20 July 2005 (p. 2). On 17 August 2005 the Applicant acting pro se requested the admission of new evidence in order to allege a new fact (p. 3).[2] On 18 August 2005 the Defence requested an extension of time, inter alia, to file additional submissions (p. 3).[3] The Appeals Chamber found that in accordance with the Rules and the Decision of 20 June 2005, the final date for filing the additional submissions was 10 August 2005 and that, contrary to the Decision of 20 June 2005, Counsel failed to file the additional submissions relating to the new facts alleged by the Applicant within the prescribed time-frame (p. 7). The Appeals Chamber nevertheless held as follows (pp. 8, 9):

CONSIDERING that the arguments raised by the Defence in its belated request for extension of time[4] in the Defence Motion for filing additional submissions do not constitute good cause pursuant to Rule 116 of the Rules;

CONSIDERING, however, that Counsel’s failure to file the additional submissions within the time limit, ought not to be imputed to the Applicant, and that under the present circumstances it is in the interests of justice, that additional time be granted to file any additional submissions;

[…]

CONSIDERING […] that Applicant’s pro se filing on 17 August 2005 identifying a “new fact” should in the interest of justice be treated as timely filed, since the Applicant is not at fault for his Counsel’s failure to assist him properly in his filing or Counsel’s misunderstanding of the proper deadlines and because the Applicant has stated that he was unable to establish the existence of this new fact when filing his original Requests for Review;[5]

[1] Decision on Niyitegeka’s Urgent Request for Legal Assistance, filed on 20 June 2005 (“Decision of 20 June 2005”).

[2] Requête de Monsieur Eliézer Niyitegeka aux fins de l’admission d’un élément de preuve nouveau (Art. 54, 89, 107 et 120 du Règlement), 17 August 2005 (“Applicant’s Request of 17 August 2005”).

[3] Extremely Urgent Defence Motion Pursuant to Rule 116 for an Extension of Time Limit and Rule 68 (a), (b) and (e) for Disclosure of Exculpatory Evidence Both of the Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda and Response to Prosecutor’s Motion of 15 August 2005 Seeking a Decision, in the Absence of any Legal Submissions from the Applicant, 18 August 2005 (“Defence Motion”).

[4] Defence Motion, paras. 34 to 43.

[5] Applicant’s Request of 17 August 2005, para. 4.

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ICTR Rule Rule 116 ICTY Rule Rule 127
Notion(s) Filing Case
Decision on Extension of Time for Respondent's Briefs - 27.07.2009 ŠAINOVIĆ et al.
(IT-05-87-A)

RECALLING, however, that the extension of time for the filing of the Defence appellant’s briefs was granted in light of the fact that “the volume of the trial record, including the length of the Trial Judgement, is unprecedented and that this case raises issues of significant complexity”;[1]

CONSIDERING that there is a considerable and unusual temporal overlap in the current deadlines for the submission of the Defence appellant’s briefs and their respondent’s briefs, which may have the effect of reducing the benefits of the extension of time accorded by the Decision of 29 June 2009;

CONSIDERING that it is in the interests of justice to ensure that the parties have sufficient time to prepare meaningful respondent’s briefs in full conformity with the applicable provisions;

FINDING that good cause exists for granting an extension on that basis

[1] Decision of 29 June 2009 [Decision on Joint Defence Motion Seeking Extension of Time to File Appeal Briefs, 29 June 2009], p. 4.

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Notion(s) Filing Case
Decision on Motions to Strike - 04.02.2016 UWINKINDI Jean
(MICT-12-25-AR14.1)

6. The Appeals Chamber observes that the Rules are silent on the procedure for filing appeals from decisions on requests for revocation of referral.[1] However, it has held that such appeals should follow the same procedure as provided for in cases involving appeals from decisions on referral as set out in Rule 14(E) of the Rules.[2] In relevant part, Rule 14(E) of the Rules provides that the “[n]otice of appeal shall be filed within fifteen days of the decision”. This Rule is mirrored in paragraph 21 of the Practice Direction on Appeals, which provides that “[a] party wishing to appeal from a decision of […] a Trial Chamber pursuant to Rule 14 […] of the Rules shall file a notice of appeal within 15 days of the decision”.[3]

[1] The Appeals Chamber has held that a decision on whether or not to revoke the referral of a case is subject to appellate review. See Stanković Decision of 21 May 2014 [Prosecutor v. Radovan Stanković, Case No. MICT-13-51, Decision on Stanković’s Appeal against Decision Denying Revocation of Referral and on the Prosecution’s Request for Extension of Time to Respond, 21 May 2014], para. 9. Consequently, the Appeals Chamber finds that an appeal lies as of right from the Impugned Decision, which dismissed Uwinkindi’s request to revoke the order referring his case to Rwanda.

[2] Stanković Decision of 21 May 2014, para. 9.

[3] Practice Direction on Requirements and Procedures for Appeals, MICT/10, 6 August 2013 (“Practice Direction on Appeals”). See also Practice Direction on Appeals, paras. 22-24.

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ICTR Rule Rule 11 bis(H) ICTY Rule Rule 11 bis(I) MICT Rule Rule 14(E)
Notion(s) Filing Case
Decision on Motions to Strike - 04.02.2016 UWINKINDI Jean
(MICT-12-25-AR14.1)

9. The Appeals Chamber notes that Uwinkindi understands neither English nor French.[1] However, the Pre-Appeal Judge has previously found that Uwinkindi’s counsel can work in English and is able to discuss the contents of legal documents with his client.[2] Moreover, the Appeals Chamber reiterates that, on appeal, counsel bear the main burden in preparing submissions,[3] allowing sufficient time to discuss relevant issues with their clients,[4] as well as ensuring the timely submission of all pleadings. The determination of potential grounds of appeal falls primarily within the purview of counsel and good cause for extending a deadline to file a notice of appeal is normally not present where the judicial determination, which is the subject of the appeal, is made in a language in which counsel can work.[5] Accordingly, Uwinkindi has not shown the existence of good cause warranting the late filing of his Notice of Appeal.

[1] Prosecutor v. Jean Uwinkindi, Case No. MICT-12-25-R14.1, Decision on Jean Uwinkindi’s Motion for Translation of the Prosecution’s Response, 16 September 2015, p. 1.

[2] [Prosecutor v. Jean Uwinkindi, Case No. MICT-12-25-AR14.1,] Decision on Applications for Translations and Extensions of Time, 17 December 2015, p. 3.

[3] See Augustin Ndindiliyimana et al. v. The Prosecutor, Case No. ICTR-00-56-A, Decision on Bizimungu’s Motion for Extension of Time to File His Reply Brief, 8 March 2012, p. 2, referring to, inter alia, Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Decision on Motions for Extension of Time, 9 December 2004, p. 3.

[4] Cf. Justin Mugenzi and Prosper Mugiraneza v. The Prosecutor, Case No. ICTR-99-50-A, Decision on Prosper Mugiraneza’s Motion for Extension of Time to File His Appellant’s Brief, 26 January 2012, para. 10.

[5] Cf. Augustin Ndindiliyimana et al. v. The Prosecutor, Case No. ICTR-00-56-A, Decision on Motions for Extension of Time for the Filing of Appeal Submissions, 11 July 2011, paras. 9, 15; Pauline Nyiramasuhuko et al. v. The Prosecutor, Case No. ICTR-98-42-A, Decision on Motions for Extension of Time for the Filing of Appeal Submissions, 25 July 2011, para. 5.

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Notion(s) Filing Case
Decision on Motions to Strike - 04.02.2016 UWINKINDI Jean
(MICT-12-25-AR14.1)

10.     Nonetheless, even where good cause has not been demonstrated, the Appeals Chamber may recognize submissions as validly filed where they are of such substantial importance to the appeal that doing so is in the interests of justice.[1] The Appeals Chamber considers that the Notice of Appeal is of substantial importance to Uwinkindi’s appeal: to refuse to consider it would deny Uwinkindi the opportunity to challenge the Impugned Decision. The subject-matter of Uwinkindi’s appeal concerns the fairness of criminal proceedings in Rwanda in which he is charged, inter alia, with genocide, a crime that is punishable with a sentence of life imprisonment.[2] Furthermore, as the deadline for appealing decisions on requests for revocation is not set forth explicitly in the Rules and has only been clarified by the Appeals Chamber in a single decision, the principle of in dubio pro actionis and the interests of justice weigh in favor of recognizing the Notice of Appeal as validly filed despite the failure of Uwinkindi’s counsel to file it on time or seek an extension. Additionally, accepting the Notice of Appeal will not prejudice the Prosecution, which will have sufficient time to respond to the submissions that form the basis of Uwinkindi’s appeal. Consequently, the Appeals Chamber finds that it is in the interests of justice to recognize the Notice of Appeal as validly filed.

[1] Phénéas Munyarugarama v. Prosecutor, Case No. MICT-12-09-AR14, Decision on Appeal against the Referral of Phénéas Munyarugarama’s Case to Rwanda and Prosecution Motion to Strike, 5 October 2012, para. 12.

[2] See Prosecutor v. Jean Uwinkindi, Case No. MICT-12-25, Monitoring Report for November 2015, 21 December 2015, para. 23 (“The [Rwandan] Prosecution request was that Mr. Uwinkindi be sentenced to life imprisonment for the genocide, as well as for crime against humanity with the sentences running concurrently”). The Appeals Chamber is not persuaded by the Prosecution’s contention that the Haxhiu Decision of 4 September 2008 is controlling with respect to the circumstances of this proceeding. That decision concerned an appeal against conviction for contempt of court that resulted in a punishment of a fine of 7,000 Euros. See Haxhiu Decision of 4 September 2008, para. 2. Uwinkindi is charged, inter alia, with the crime of genocide, which is materially of greater gravity and can be punishable with a sentence of life imprisonment.

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MICT Rule Rule 154(A)(ii)
Notion(s) Filing Case
Decision on Voir Dire and Statements of the Accused - 27.10.2006 NTAHOBALI & NYIRAMASUHUKO
(ICTR-97-21-AR73)

Footnote four of the Interlocutory Appeal cites the Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings Before the Tribunal, Section III(8) read together with Section I, permitting ten days from the filing of an interlocutory appeal for the filing of a response.

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Notion(s) Filing Case
Decision on Extension of Time - 21.10.2009 RENZAHO Tharcisse
(ICTR-97-31-A)

3. Mr. Renzaho now requests an extension of time to file his Appellant’s Brief within 75 days from the service to him and his Counsel of the French translation of the Trial Judgement.[1] In support of his request, Mr. Renzaho submits that because he is francophone and can neither speak nor read English, he is incapable of fully understanding the Trial Judgement, properly discussing grounds of appeal, and actively participating in the drafting of his Appellant’s Brief, particularly with respect to factual issues.[2] […]

4. Rule 116(A) of the Rules allows for the extension of time of any deadline on a showing of good cause. Pursuant to Rule 116(B) of the Rules, where the ability of the convicted person to make full answer and defence depends on the availability of a decision in an official language other than that in which it was issued, that circumstance shall be taken into account as a good cause. This provision may provide a basis for an extension of time, upon request, for the filing of the convicted person’s Appellant’s Brief pending the translation of the Trial Judgement into a working language of the Tribunal which he or she understands.[3]

5. Mr. Renzaho’s circumstances constitute good cause to extend the time for the filing of his Appellant’s Brief from the filing of the French translation of the Trial Judgement.

6. Mr. Renzaho’s Lead Counsel has the ability to work in both English and French,[4] and may therefore discuss the draft of the Appellant’s Brief with Mr. Renzaho, subject to his final approval once the French translation of the Trial Judgement is filed. It is therefore appropriate in this instance to allow a limited extension of time. 

See also, the “Decision on Tharcisse Renzaho’s Motion for Extension of Time for the Filing of Notice of Appeal and Brief in Reply” rendered in this case on 22 September 2009, where the Appeals Chamber held:

4. Pursuant to Rule 116(B) of the Rules, where the ability of the convicted person to make full answer and defence depends on the availability of a decision in an official language other than that in which it was issued, that circumstance shall be taken into account as a good cause. In practice, Rule 116(B) of the Rules does not provide a basis for an extension of time for the filing of a Notice of Appeal where the convicted person’s counsel can work in the language in which the Trial Judgement was pronounced.[5] This provision may, however, provide a basis for an extension of time, upon request, for the filing of the convicted person’s brief on appeal (“Appellant’s Brief”) pending the translation of the Trial Judgement into a working language of the Tribunal which he or she understands.[6]

5. In the present case, the information provided by the Registry shows that Mr. Renzaho’s Lead Counsel has indicated that French is his mother tongue and that he has a “good” knowledge of English, with the ability to read, speak, and write it fluently.[7] He is therefore able to discuss the contents of the Trial Judgement as well as any possible grounds of appeal with Mr. Renzaho. The determination of potential grounds of appeal falls primarily within the purview of Defence Counsel and, if an application is made after the Trial Judgement becomes available in French and good cause is shown, leave may be granted to vary the grounds of appeal under Rule 108 of the Rules.[8] For these reasons, Mr. Renzaho has not demonstrated good cause for an extension of time for the filing of his Notice of Appeal.

[1] Requête en Demande de Délai, 9 October 2009 (“Motion”), paras. 7, 11, p. 4.

[2] Motion, para. 9.

[3] See The Prosecutor v. Tharcisse Renzaho, Case No. ICTR-97-31-A, Decision on Tharcisse Renzaho’s Motion for Extension of Time for the Filing of Notice of Appeal and Brief in Reply, 22 September 2009, para. 4. See also Callixte Kalimanzira v. The Prosecutor, Case No. ICTR-05-88-A, Decision on Callixte Kalimanzira’s Motion for Leave to File an Amended Notice of Appeal and for an Extension of Time for the Filing of his Appellant’s Brief, 31 August 2009, para. 5; Protais Zigiranyirazo v. The Prosecutor, Case No. ICTR-01-73-A, Decision on Protais Zigiranyirazo’s Motion for an Extension of Time for the Filing of the Respondent’s Brief, 10 March 2009, paras. 4, 6; The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-A, Decision on Anatole Nsengiyumva’s Motion for Extension of Time for Filing Appeal Submissions, 2 March 2009, pp. 4-6; Protais Zigiranyirazo v. The Prosecutor, Case No. ICTR-01-73-A, Decision on Protais Zigiranyirazo’s Motion for an Extension of Time, 28 January 2009, p. 3. However, once a French version of the Trial Judgement is filed, Rule 116(B) does not contemplate good cause for an extension of time to file briefs on appeal where the convicted person’s counsel can work in the language in which it was filed. See also Siméon Nchamihigo v. The Prosecutor, Case No. ICTR-2001-63-A, Decision on Defence Motion for a French Translation of the Prosecutor’s Respondent’s Brief and for Extension of Time for the Filing of the Reply Brief, 8 July 2009, paras. 5, 6, 9; Protais Zigiranyirazo v. The Prosecutor, Case No. ICTR-01-73-A, Decision on Protais Zigiranyirazo’s Motion for an Extension of Time for the Filing of the Reply Brief, 3 July 2009, paras. 4-6, 9.

[4] See Form IL2 filed by Mr. Cantier, along with a copy of his attached curriculum vitae, on 15 September 2009.

[5] See, e.g., Callixte Kalimanzira v. The Prosecutor, Case No. ICTR-05-88-A, Decision on Callixte Kalimanzira’s Motion for an Extension of Time for the Filing of Notice of Appeal, 20 July 2009, para. 5 (“Kalimanzira Appeal Decision”); The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-A, Decision on Anatole Nsengiyumva’s Motion for Extension of Time for Filing Appeal Submissions, 2 March 2009, pp. 4, 5 (“Bagosora et al. Appeal Decision”); François Karera v. The Prosecutor, Case No. ICTR-01-74-A, Decision on François Karera’s Motion for an Extension of Time for Filing the Notice of Appeal, 21 December 2007, pp. 2, 3 (“Karera Appeal Decision”).

[6] See, e.g., Callixte Kalimanzira v. The Prosecutor, Case No. ICTR-05-88-A, Decision on Callixte Kalimanzira’s Motion for Leave to File an Amended Notice of Appeal and for an Extension of Time for the Filing of his Appellant’s Brief, 31 August 2009, para. 5; Protais Zigiranyirazo v. The Prosecutor, Case No. ICTR-01-73-A, Decision on Protais Zigiranyirazo’s Motion for an Extension of Time for the Filing of the Respondent’s Brief, 10 March 2009, paras. 4, 6; Bagosora et al. Appeal Decision, pp. 5, 6; Protais Zigiranyirazo v. The Prosecutor, Case No. ICTR-01-73-A, Decision on Protais Zigiranyirazo’s Motion for an Extension of Time, 28 January 2009, p. 3. However, once a French version of the Trial Judgement is filed, Rule 116(B) does not contemplate good cause for an extension of time to file briefs on appeal where the convicted person’s counsel can work in the language in which it was filed. See also Siméon Nchamihigo v. The Prosecutor, Case No. ICTR-2001-63-A, Decision on Defence Motion for a French Translation of the Prosecutor’s Respondent’s Brief and for Extension of Time for the Filing of the Reply Brief, 8 July 2009, paras. 5, 6, 9; Protais Zigiranyirazo v. The Prosecutor, Case No. ICTR-01-73-A, Decision on Protais Zigiranyirazo’s Motion for an Extension of Time for the Filing of the Reply Brief, 3 July 2009, paras. 4-6, 9.

[7] See Form IL2 filed by Mr. Cantier, along with a copy of his attached curriculum vitae, on 15 September 2009.

[8] Kalimanzira Appeal Decision, para. 6; Bagosora et al. Appeal Decision, p. 5; Karera Appeal Decision, p. 3. 

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ICTR Rule Rule 116 ICTY Rule Rule 127
Notion(s) Filing Case
Decision on Prosecution Request for a Scheduling Order - 08.06.2006 BAGARAGAZA Michel
(ICTR-05-86-AR11bis)

At para. 3, the ICTR Appeals Chamber confirmed the ICTY Appeals Chamber’s finding that the delay for filing an appeal brief in an appeal from a Rule 11bis decision is 15 days:

3. Rule 11bis(H) sets a time frame of fifteen days for the filing of a notice of appeal, but is silent on the period for filing an appeal brief. Under the equivalent provision of the Rules of Procedure and Evidence for the ICTY, the Appeals Chamber has followed a practice of allowing fifteen days from the filing of the notice of appeal for the filing of the appeal brief on the merits.[1] The Appeals Chamber sees no reason to depart from this practice in considering appeals under Rule 11bis in this Tribunal.

[1] The Prosecutor v. Radovan Stanković, Case No. IT-96-23/2-AR11bis.1, Decision on Defence Application for Extension of Time to File Notice of Appeal, 9 June 2005 paras. 17, 18. See also The Prosecutor v. Paško Ljubičić, Case No. IT-00-41-AR11bis.1, Decision on Motion for Extension of Time, 10 May 2006, p. 1.

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ICTR Rule Rule 11 bis ICTY Rule Rule 11 bis
Notion(s) Filing Case
Decision Regarding Leave and Extensions - 24.06.2003 KORDIĆ & ČERKEZ
(IT-95-14/2-A)

6.         […] A heavy workload in other cases and inadequate resources to deal with them all is not an appropriate basis for seeking an extension of time.  Counsel for the prosecution in an appeal is expected to be provided by the Office of the Prosecutor with the resources necessary to carry the workload in the particular case, and his or her workload in other cases will ordinarily be rejected as the basis for an extension of time, just as it has ordinarily been rejected for counsel for the accused.  Where there are special circumstances personal to counsel in relation to the particular case (be it for the prosecution or the accused), the Appeals Chamber will always consider those circumstances in determining whether an extension of time will be granted.  However, a systemic failure by the Office of the Prosecutor to provide adequate resources for its counsel to do the work which is necessary in the particular case will not be considered.

 

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Notion(s) Filing Case
Decision on Extension of Time for Respondent's Briefs - 27.07.2009 ŠAINOVIĆ et al.
(IT-05-87-A)

RECALLING, however, that the extension of time for the filing of the Defence appellant’s briefs was granted in light of the fact that “the volume of the trial record, including the length of the Trial Judgement, is unprecedented and that this case raises issues of significant complexity”;[1]

CONSIDERING that there is a considerable and unusual temporal overlap in the current deadlines for the submission of the Defence appellant’s briefs and their respondent’s briefs, which may have the effect of reducing the benefits of the extension of time accorded by the Decision of 29 June 2009;

CONSIDERING that it is in the interests of justice to ensure that the parties have sufficient time to prepare meaningful respondent’s briefs in full conformity with the applicable provisions;

FINDING that good cause exists for granting an extension on that basis

[1] Decision of 29 June 2009 [Decision on Joint Defence Motion Seeking Extension of Time to File Appeal Briefs, 29 June 2009], p. 4.

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ICTR Rule Rule 116 ICTY Rule Rule 127
Notion(s) Filing Case
Decision on Additional Evidence - 26.02.2001 KUPREŠKIĆ et al.
(IT-95-16-A )

9. […] The Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings Before the International Tribunal (IT/155) sets out the time-limits for the filing of documents (responses and replies) before the Appeals Chamber. Where a party cannot, or does not, file its document before the expiry of the time-limit, then the filing should be accompanied by an application for an extension of time, setting out the reasons why the party filing the document could not adhere to the prescribed time-limit. If the Appeals Chamber accepts the reasons set out therein, then the Chamber will take account of the information contained within the document. If the document is filed beyond the expiry of the time-limit, and unaccompanied by an application for an extension of time, the Appeals Chamber is not required to either accept the filing or place any reliance upon it.

10. Where a document is filed after the expiry of the time-limit, without application for an extension of time, it does not follow that it will be automatically rejected. The Appeals Chamber may exercise its discretion to accept the document where the information contained therein is of particular importance or significance. Parties filing a late document must not, however, presume that their document will meet this standard. To avoid any risk of a late document not being accepted by the Appeals Chamber, an application for an extension of time should always be filed.

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Other instruments Practice Direction on Procedure for the Filing of Written Submissions in appeal Proceedings Before the International Tribunal (ICTY).
Notion(s) Filing Case
Decision on Jurisdiction - 08.12.2005 DELIĆ Rasim
(IT-04-83-AR72)

3. The Appeals Chamber does not accept that Counsel’s commitment to other cases at this Tribunal constitutes “good cause” pursuant to Rule 127.  Counsel assigned to represent accused at this Tribunal are expected to organise their work schedules in order to meet their obligations to respect the time limits for filings on appeals laid down in the Practice Direction.[1]  Counsel would have been able to calculate, upon the filing of the Appellant’s Appeal, the due date for the Prosecution Response and subsequently the Appellant’s Reply and is expected to have organised her work schedule to meet those due dates.  Accordingly, “good cause” has not been shown, and the Reply of the Appellant will not be considered in this Appeal.

[1] Prosecutor v Mejakić et al., Case No: IT-02-65-AR11bis.1, Decision on Joint Defense Motion for Leave to File Supplemented Appeals Brief, 16 November 2005, page 5.

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Notion(s) Filing Case
Appeal Judgement - 04.12.2001 KAYISHEMA & RUZINDANA
(ICTR-95-1-A)

46.     The Appeals Chamber further finds that the failure to file an Appellant’s brief in support of a notice of appeal carries serious consequences as to the admissibility of the entire appeal. Rule 111 states that an Appellant’s brief shall contain all the argument and authorities. An appeal, which consists of a Notice of Appeal that lists the grounds of Appeal but is not supported by an Appellant’s brief, is rendered devoid of all of the arguments and authorities; the right to appeal may therefore be considered as having been waived if the Notice of Appeal is not followed by the timely filing of an Appellant’s brief. The Appeals Chamber notes that procedural time-limits are to be respected, and that they are indispensable to the proper functioning of the Tribunal and to the fulfilment of its mission to do justice.[1] Violations of these time-limits, unaccompanied by any showing of good cause, will not be tolerated.[2]

[1] See Istituto di Vigilanza v. Italy, 265 Eur. Ct. H.R. (ser. A) at 35 (1993) (“…the finding is inescapable that the (European Commission of Human Rights) exceeded—albeit by only one day—the time allowed it.  Furthermore, no special circumstance of a nature to suspend the running of time or justify its starting to run afresh is apparent from the file.  The request bringing the case before the Court is consequently inadmissible as it was made out of time.”); Morganti v. France, 320 Eur. Ct. HR (ser. A) at 48 (1995) (“(The Court) notes that the explanations put forward do not disclose any special circumstance of a nature to suspend the running of time or justify its starting to run afresh…. It follows that the application bringing the case before the Court is inadmissible as it is out of time.”); Kelly v. U.K., 42 Eur. Comm’n H.R. Dec. & Rep. 207, 208 (1985)(“Delays in pursuing the case are only acceptable insofar as they are based on reasons connected with the case…. Notwithstanding the applicant’s initial submission of 10 October 1980, the Commission considers in the present case 27 April 1983 to be the date of introduction of the application and it follows that the application, having thus been introduced out of time, must be rejected under Article 27, para. 3 of the Convention.”); Nauru v. Australia, 97 I.L.R. 20 (I.C.J.) (1992)  (“The Court recognizes that, even in the absence of any applicable treaty provision, delay on the part of a claimant State may render an application inadmissible.”).

[2] In this regard, a brief discussion of Rule 127 of ICTY Rules of Procedure and Evidence is useful.  The Rule states:

(A)     Save as provided by paragraph (C), a Trial Chamber may, on good cause being shown by motion,

(i)             enlarge or reduce any time prescribed by or under these Rules;

(ii)            recognize as validly done any act done after the expiration of a time so prescribed on such terms, if any, as is thought just and whether or not that time has already expired.

(B)    In relation to any step falling to be taken in connection with an appeal or application for leave to appeal, the Appeals Chamber or a bench of three Judges of that Chamber may exercise the like power as is conferred by paragraph (A) and in like manner and subject to the same conditions as are therein set out.

… (emphasis added).

The fact that an act performed after the expiration of a prescribed time may be recognized as validly done illustrates the following principle: timely filing is the rule, and filing after the expiration of a time-limit constitutes late filing, which is normally not permitted.  However, if good cause is shown, the Rule establishes that despite the expiration of time and tardy filing, an act may be recognized as validly done, as a permitted derogation from the usual rule.  Thus the Rule reinforces the principle that procedural time-limits are to be respected.

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ICTR Rule Rule 111
ICTY Rule Rule 111;
Rule 127
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 Time and Page Extensions for Response - 21.02.2005 GALIĆ Stanislav
(IT-98-29-A)

FINDING that no explanation has been provided which would justify an extension of time or page limits to the Appellant for the filing of his reply, and that a request by a party for extension of time does not automatically amount to a showing of good cause by the opposing party;

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Notion(s) Filing Case
Decision on Time and Page Limits - 22.06.2005 BRĐANIN Radoslav
(IT-99-36-A)

5.       […] [O]rdinarily the filing of a Supplementary Notice of Appeal does not itself constitute good cause for an extension of time,[1] […]

[1] The Appellant appears to assume that having filed the supplemental Notice of Appeal would ordinarily entitle him to file an additional Appeal Brief in support of it, and suggests that an extension of time (and page length) is merited here so that he can instead file a consolidated brief addressing all grounds of appeal.  But consolidation is the normal required procedure.  The filing of a supplemental notice of appeal does not in and of itself entitle an appellant to an extension of time nor to an enlargement of length for the appeal brief, and it certainly does not entitle him to file two appeal briefs.  Instead, the appellant must file a single appeal brief, the deadline for which is calculated, pursuant to Rule 111, based on the date of filing the original notice of appeal, not on the date on which a variation of that notice was authorised pursuant to Rule 108.

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Notion(s) Filing Case
Decision on Appeals of Decisions Rendered by a Single Judge - 09.08.2017 NIYITEGEKA Eliézer
(MICT-12-16-R)

10.     The Appeals Chamber accepts Niyitegeka’s argument that, at the time he filed the Request for Certification, it was not clear that he was entitled to appeal as of right the Decision of 29 January 2016, which was issued, in part, on the basis of Rules 73 and 86 of the Rules [of Procedure and Evidence of the Mechanism (“”Rules”)]. […]

11.     In this context, the Appeals Chamber finds that it was reasonable for Niyitegeka to request certification to appeal the Decision of 29 January 2016, which was issued, in part, on the basis of Rule 86 of the Rules. Notably, Niyitegeka filed the Request for Certification within the seven-day timeframe provided under Rule 80(C) of the Rules.  Moreover, he lodged the present Appeal within seven days of the Decision of 10 May 2017 denying his Request for Certification. Consequently, and pursuant to Rule 154 of the Rules, the Appeals Chamber finds that there is good cause to recognize the Appeal of the Decision of 29 January 2016 as validly filed.

[1] Niyitegeka states that the Decision of 29 January 2016 was only circulated on 1 February 2016 and that he filed his application seeking certification to appeal on 8 February 2016. Appeal, paras. 3, 4. This is not disputed by the Prosecution.

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MICT Rule Rule 154
Notion(s) Filing Case
Decision on an Appeal of a Decision Rendered by a Single Judge - 06.10.2017 KAMUHANDA Jean de Dieu
(MICT-13-33)

12.     […] Requiring Kamuhanda to appeal an interim order before being able to demonstrate any prejudice resulting from that order would necessarily inhibit his ability to appeal the discretionary determination at issue and would result in a needless expenditure of judicial resources.[1]

[1] In order to successfully challenge a discretionary decision, an applicant must demonstrate that the Single Judge committed a discernible error resulting in prejudice to the applicant. See infra para. 11. 

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