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Notion(s) Filing Case
Appeal Judgement - 30.06.2016 STANIŠIĆ & ŽUPLJANIN
(IT-08-91-A)

598. […] [T]he Appeals Chamber recalls that it is not bound by the findings of other courts – domestic, international, or hybrid – and that, even though it will consider such jurisprudence, it may nonetheless come to a different conclusion on a matter than that reached by another judicial body.[1] The Appeals Chamber considers that in order to constitute a cogent reason for departing from its established jurisprudence on a matter, the party advocating a departure would need to show that a non‑binding opinion of another court is the correct law and demonstrate that there is a clear mistake in the Appeals Chamber’s approach.[2] […]

[1] Đorđević Appeal Judgement, para. 83, referring to Čelebići Appeal Judgement, para. 24. See Tolimir Appeal Judgement, para. 226; Popović et al. Appeal Judgement, para. 1674.

[2] See Popović et al Appeal Judgement, para. 1674, referring to Đorđević Appeal Judgement, para. 24, Aleksovski Appeal Judgement, para. 108.

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Notion(s) Filing Case
Appeal Judgement - 30.06.2016 STANIŠIĆ & ŽUPLJANIN
(IT-08-91-A)

918. In addition, Župljanin’s argument that the Trial Chamber was required to find that he intended coercive acts under the first category of joint criminal enterprise because the actus reus of the JCE I Crimes requires that the act inducing the departure be criminal, finds no support in the jurisprudence of the Tribunal. […] Contrary to Župljanin’s unreferenced assertion, the jurisprudence of the Tribunal does not require that persons be displaced as a result of criminal acts.[1]

[1] In relation to Župljanin’s argument that measures authorised or permitted under the law of armed conflict, such as a lawful and legitimate attack on a village, do not satisfy the actus reus of forcible transfer (Župljanin Appeal Brief [Stojan [Ž]]upljanin’s Appeal Brief, 19 August 2013 (confidential; public redacted version filed on 23 August 2013, re-filed on 21 April 2016)]], para. 8.), the Appeals Chamber observes that Župljanin does not point to any evidence to suggest that the displacements in this case were justified under international humanitarian law. The Appeals Chamber therefore dismisses Župljanin’s argument as undeveloped and demonstrating no error.

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Notion(s) Filing Case
Appeal Judgement - 30.06.2016 STANIŠIĆ & ŽUPLJANIN
(IT-08-91-A)

1096. The Appeals Chamber recalls that the choice of remedy lies within its discretion, in light of Article 25 of the Statute.[1] Accordingly, in the interests of fairness to Stanišić and Župljanin, balanced with considerations of public interest and the administration of justice, and taking into account the nature of the offences and the circumstances of the case at hand, the Appeals Chamber finds it appropriate to refrain from entering new convictions on appeal for these crimes.[2]

[1] See Jelisić Appeal Judgement, para. 73. Article 25(2) of the Statute provides that “[t]]he Appeals Chamber may affirm, reverse or revise the decisions taken by the Trial Chambers”. See also Šainović et al. Appeal Judgement, para. 1604, fn. 5269 (with references).

[2] See Jelisić Appeal Judgement, paras 73, 77; Aleksovski Appeal Judgement, paras 153-154, 192; Krstić Appeal Judgement, paras 220-227, 229, p. 87; Stakić Appeal Judgement, paras 359-367, pp 141-142; Naletilić and Martinović Appeal Judgement, paras 588-591, p. 207. See also Šainović et al. Appeal Judgement, paras 1604, 1766.

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ICTR Statute Article 25 ICTY Statute Article 25
Notion(s) Filing Case
Decision on Indigence - 24.06.2016 KARADŽIĆ Radovan
(MICT-13-55-A)

Page 3:

RECALLING that judicial review of an administrative decision made by the Registrar in relation to legal aid is concerned initially with the propriety of the procedure by which the decision was made and that the decision may be quashed if the Registrar: (i) has failed to comply with the relevant legal requirements; (ii) failed to observe any basic rules of natural justice or to act with procedural fairness towards the person affected by the decision; (iii) took into account irrelevant material or failed to take into account relevant material; or (iv) reached a conclusion which no sensible person who has properly applied his mind to the issue could have reached;[1]

RECALLING FURTHER that the party contesting the administrative decision bears the onus to show an error in the decision and that the error has significantly affected the decision to his detriment;[2]

[1] See The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A, Decision on Ntahobali’s Request for Review of Registrar’s Decisions, 21 February 2014 (confidential and ex parte), public redacted version issued on 23 May 2016 (“Nyiramasuhuko et al. Decision”), para. 16; Karadžić ICTY Appeals Chamber Decision of 25 July 2014 [Prosecutor v. Radovan Karadžić, Case No. IT-95-5-5/18-AR73.13, Decision on Appeal from Decision on Indigence, 25 July 2014 (confidential and ex parte), public redacted version issued on 2 December 2014], para. 4; Prosecutor v. Jadranko Prlić et al., Public Redacted Version of the 25 July 2013 Decision on Slobodan Praljka’s Motion for Review of the Registrar’s Decision on Means, 28 August 2013 (“Prlić et al. Decision”), paras. 6, 30; Prosecutor v. Zdravko Tolimir, Case No. IT-05-88/2-AR73.2, Decision on Zdravko Tolimir’s Appeal Against the Decision of Trial Chamber II on the Registrar’s Decision Concerning Legal Aid, 12 November 2009 (confidential and ex parte), public redacted version filed on 28 February 2013 (“Tolimir Decision”), para. 8; Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-A, Decision on Review of Registrar’s Decision to Withdraw Legal Aid from Zoran Žigić, 7 February 2003 (“Kvočka et al. Decision”), para. 13.

[2] Tolimir Decision, para. 9 and references cited therein.

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Other instruments MICT Directive on the Assignment of Defence Counsel
Notion(s) Filing Case
Decision on Indigence - 24.06.2016 KARADŽIĆ Radovan
(MICT-13-55-A)

Page 4:

RECALLING the Remuneration Policy, which provides that “[f]or the purpose of this Policy, the [Mechanism] shall recognise the determination of indigency of an Accused made by the ICTR and the ICTY, unless new information is obtained which establishes that the Accused has sufficient means to remunerate Counsel”;[1]

NOTING that this provision of the Remuneration Policy addresses only a situation where a determination was made that an accused person is indigent, as is clear from the last part of the provision which refers to “new information” establishing that the accused person “has sufficient means” to remunerate counsel, not a situation where the determination was that an accused person is not indigent;

CONSIDERING, therefore, that the Remuneration Policy does not require the Registry to recognise a determination made by the ICTY that an accused is able to contribute to the costs of his defence in part;

[1] Remuneration Policy [Remuneration Policy for Persons Representing Indigent Accused in Appeals Proceedings before the Mechanism for International Criminal Tribunals, 21 March 2016], para. 7.

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Other instruments Remuneration Policy for Persons Representing Indigent Accused in Appeals Proceedings before the Mechanism for International Criminal Tribunals, para. 7
Notion(s) Filing Case
Decision on Indigence - 24.06.2016 KARADŽIĆ Radovan
(MICT-13-55-A)

Pages 4-5:

RECALLING that the Registry has the primary responsibility for matters relating to remuneration of counsel in respect of which it enjoys a margin of appreciation;[1]

REITERATING, however, that the Appeals Chamber has the inherent power to review matters affecting the rights of persons in proceedings before it, including the right to have adequate time and facilities for the preparation of defence, pursuant to its statutory obligation to ensure the fairness of the proceedings;[2]

CONSIDERING that the inherent power to review such matters encompasses the power to make determinations concerning such matters where necessary to give full effect to statutory rights;[3]

RECALLING the statutory right of an accused to have legal assistance assigned to him where the interests of justice so require and without payment if he does not have sufficient means to pay for it;[4]

RECALLING that the Directive was established to ensure legal assistance to indigent accused in the most efficient, economical, and equitable manner in order to safeguard the rights afforded under the Statute and the Rules;[5]

CONSIDERING the UN Guidelines on Access to Legal Aid, which provide that “[a] court may, having regard to the particular circumstances of a person and after considering the reasons for denial of legal aid, direct that that person be provided with legal aid, with or without his or her contribution, when the interests of justice so require”;[6]

[…]

CONSIDERING that the burden of proof is on the applicant for legal aid to demonstrate his inability to remunerate counsel and that once the applicant has provided information regarding his inability to do so the burden of proof shifts to the Registry to prove otherwise based on the balance of probablities;[7]

[1] Decision on the Registry’s Request for Observations Regarding Preparation of the Notice of Appeal, 4 May 2016, p. 1 (“the Registry has the primary responsibility in the determination of matters relating to remuneration of counsel”); Nyiramasuhuko et al. Decision [The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A, Decision on Ntahobali’s Request for Review of Registrar’s Decisions, 21 February 2014 (confidential and ex parte), public redacted version issued on 23 May 2016], para. 17; Tolimir Decision [Prosecutor v. Zdravko Tolimir, Case No. IT-05-88/2-AR73.2, Decision on Zdravko Tolimir’s Appeal Against the Decision of Trial Chamber II on the Registrar’s Decision Concerning Legal Aid, 12 November 2009 (confidential and ex parte), public redacted version filed on 28 February 2013], paras. 8, 9 and referenced cited therein.

[2] See Article 19 of the Statute of the Mechanism (“Statute”). See also Nyiramasuhuko et al. Decision, para. 14; Prosecutor v. Nikola Šainović et al., Case No. IT-05-87-A, Decision on Nebojša Pavković’s Motion for Stay of Proceedings, 2 March 2010, para. 12; In Re. André Ntagerura, Case No. ICTR-99-46-A28, Decision on Motion for Leave to Appeal the President’s Decision of 31 March 2008 and the Decision of Trial Chamber III Rendered on 15 May 2008, 11 September 2008, para. 12.

[3] Nyiramasuhuko et al. Decision, para. 21 (“[t]he Appeals Chamber is of the view that judicial economy is best served in the particular circumstances of this case by disposing of the merits of this part of the Request for Review rather than remitting the matter to the Registrar”).

[4] Article 19(4)(d) of the Statute. See also Rule 43 of the Rules of Procedure and Evidence of the Mechanism.

[5] Directive [Directive on the Assignment of Defence Counsel, MICT/5, 14 November 2012], Article 1. The Appeals Chamber also recalls that, under Articles 6(B) and 6(C) of the Directive, an accused who lacks the means to remunerate counsel shall have the right to have counsel assigned to him and paid for by the Mechanism and that, for an accused who has the means to partially remunerate counsel, the Mechanism shall pay that portion of his defence costs which the accused does not have sufficient means to cover, as determined in accordance with the Registry Policy for Determining the Extent to which an Accused is able to Remunerate Counsel.

[6] UN Guidelines on Access to Legal Aid, para. 41(e).

[7] Prlić et al Decision [Prosecutor v. Jadranko Prlić et al., Public Redacted Version of the 25 July 2013 Decision on Slobodan Praljka’s Motion for Review of the Registrar’s Decision on Means, 28 August 2013], para. 35; Kvočka et al. Decision [Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-A, Decision on Review of Registrar’s Decision to Withdraw Legal Aid from Zoran Žigić, 7 February 2003], para. 12.

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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 Extension of Assignment of Counsel - 27.05.2016 NIYITEGEKA Eliézer
(MICT-12-16-R)

11.     […] The Appeals Chamber considers that counsel, once appointed, is, at a minimum, expected to familiarize himself with the case. […]

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Notion(s) Filing Case
Decision on Disclosure - 25.05.2016 UWINKINDI Jean
(MICT-12-25-AR14.1)

RECALLING that Rule 71(B) of the Rules provides, inter alia, that the Prosecutor shall, on request, permit the Defence to inspect any books, documents, photographs, and tangible objects in the Prosecutor’s custody or control, which are material to the preparation of the defence;[1]

CONSIDERING that Rule 71(B) of the Rules applies to appeal proceedings;[2]

CONSIDERING that the obligation to provide access pursuant to Rule 71(B) of the Rules is only triggered by a sufficiently specific request by the Defence;[3]

CONSIDERING FURTHER that, prior to obtaining a judicial order for the inspection of any item material the preparation of the defence, the applicant must: (i) demonstrate that the material sought is in the custody or control of the Prosecution; (ii) establish the prima facie materiality of the document sought to the preparation of the defence case; and (iii) specifically identify the requested material;[4]

[…]

CONSIDERING that, in relation to appellate proceedings, the Prosecution should consider the following criteria to determine if material in its possession is material to the preparation of the defence in accordance with Rule 71(B) of the Rules: (i) whether the issue to which the material relates is the subject of a ground of appeal; or (ii) whether the material could reasonably lead to further investigation by the Defence and the discovery of additional evidence admissible on appeal;[5]

[…]

CONSIDERING that the Prosecution should not disclose the Report, which was provided confidentially, without first obtaining consent to disclose it from its author;[6]

[1] The Appeals Chamber observes that, in material respects, Rule 71(B) of the Rules tracks the language of Rules 66(B) of the Rules of Procedure and Evidence of the International Tribunal for the former Yugoslavia (“ICTY”) and for the International Criminal Tribunal for Rwanda (“ICTR”) (collectively, “ad hoc Tribunals”). Consequently, the Appeals Chamber finds the Appeals Chamber jurisprudence of the ad hoc Tribunals interpreting Rule 66(B) of the ICTY and ICTR Rules of Procedure and Evidence highly relevant in its interpretation of Rule 71(B) of the Rules. See 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. 6.

[2] See Prosecutor v. Miroslav Bralo, Case No. IT-95-17-A, Decision on Miroslav Bralo’s Motion for Admission of Additional Evidence (confidential), 12 January 2007 (“Bralo Decision of 12 January 2007”), para. 25; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Motions Relating to the Appellant Hassan Ngeze’s and the Prosecution’s Requests for Leave to Present Additional Evidence of Witnesses ABC1 and EB (public redacted version), 1 December 2006 (“Nahimana et al. Decision of 1 December 2006”), para. 16; The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-AR73, Decision on Interlocutory Appeal Relating to Disclosure Under Rule 66(B) of the Tribunal’s Rules of Procedure and Evidence, 26 September 2006 (“Bagosora et al. Decision of 26 September 2006”), para. 9, n. 35; Prosecutor v. Radislav Krstić, Case No. IT-98-33-A, Decision on the Prosecution’s Motion to be Relieved of Obligation to Disclose Sensitive Information Pursuant to Rule 66(C) (confidential), 27 March 2003 (“Krstić Decision of 27 March 2003”), p. 4.

[3] Bagosora et al. Decision of 26 September 2006, para. 10.

[4] Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73.11, Decision on the Prosecution’s Interlocutory Appeal Concerning Disclosure Obligations (public redacted version), 23 January 2008, para. 12. See also Édouard Karemera et al. v. The Prosecutor, Case No. ICTR-98-44-AR73.18, Decision on Joseph Nzirorera’s Appeal from Decision on Alleged Rule 66 Violation, 18 May 2010, para. 13.

[5] See Bralo Decision of 12 January 2007, para. 25; Nahimana et al. Decision of 1 December 2006, para. 16; Krstić Decision of 27 March 2003, p. 4.

[6] Cf. Rule 76(B) of the Rules.

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ICTR Statute Rule 66(B) ICTY Statute Rule 66(B) IRMCT Statute Rule 71(B)
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Decision on Access to Ex Parte Filings - 10.05.2016 KARADŽIĆ Radovan
(MICT-13-55-A)

CONSIDERING that, with regard to confidential material, the Mechanism must “find a balance between the right of a party to have access to material to prepare its case and the need to guarantee the protection of witnesses”;[1]

RECALLING that a request for access to confidential material from another case can only be granted if the material sought has been identified or described by its general nature and a legitimate forensic purpose for gaining such access is shown;[2]

RECALLING ALSO that the party seeking access to confidential material bears the burden to justify its request;[3]

RECALLING FURTHER that the requesting party must establish that such material is likely to assist its case materially, or that there is at least a good chance that it would, and that this standard may be met by showing the existence of a nexus between the applicant’s case and the cases from which such material is sought;[4]

[1] Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Decision on Mićo Stanišić’s Motion for Access to All Confidential Materials in the Brđanin Case, 24 January 2007 (“Brđanin Decision of 24 January 2007”), para. 10. See Prosecutor v. Nikola Šainović et al., Case No. IT-05-87-A, Decision on Vlastimir Đorđević’s Motion for Access to Transcripts, Exhibits and Documents, 16 February 2010 (“Šainović Decision of 16 February 2010”), para. 19.

[2] See, e.g., Prosecutor v. Vujadin Popović et al., Case Nos. IT-05-88-A & IT-09-92-T, Decision on Motion by Ratko Mladić for Access to Confidential Material, 20 February 2013 (“Popović Decision of 20 February 2013”), p. 2; Tharcisse Muvunyi v. The Prosecutor, Case No. ICTR-2000-55A-A, Decision on Ildephonse Nizeyimana’s Request for Access to Closed Session Transcripts, 31 March 2011 (“Muvunyi Decision of 31 March 2011”), para. 3; Šainović Decision of 16 February 2010, para. 9. See also Eliézer Niyitegeka v. Prosecutor, Case No. MICT-12-16, Decision on Niyitegeka’s Urgent Request for Orders Relating to Prosecution Witnesses, 29 January 2016, para. 8; 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. 4.

[3] See Brđanin Decision of 24 January 2007, para. 14.

[4] See Popović Decision of 20 February 2013, p. 2; Muvunyi Decision of 31 March 2011, para. 3; Brđanin Decision of 24 January 2007, para. 12.

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Decision on Access to Ex Parte Filings - 10.05.2016 KARADŽIĆ Radovan
(MICT-13-55-A)

EMPHASIZING that, with regard to ex parte confidential material, the requesting party must meet a higher standard in order to establish a legitimate forensic purpose for accessing such material[1] as it by its nature contains information that has not been disclosed inter partes because of, inter alia, “privacy interests of a person” and that, therefore, “the party on whose behalf the ex parte status has been granted enjoys a protected degree of trust that the ex parte material will not be disclosed”;[2]

[1] Brđanin Decision of 24 January 2007 [Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Decision on Mićo Stanišić’s Motion for Access to All Confidential Materials in the Brđanin Case, 24 January 2007], para. 14.  

[2] Šainović Decision of 16 February 2010 [Prosecutor v. Nikola Šainović et al., Case No. IT-05-87-A, Decision on Vlastimir Đorđević’s Motion for Access to Transcripts, Exhibits and Documents, 16 February 2010], para. 10 and references cited therein.

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Decision on Obtaining and Disclosing Statements - 10.05.2016 KARADŽIĆ Radovan
(MICT-13-55-A)

Page. 2:

RECALLING that the Appeals Chamber may, in exceptional circumstances, facilitate investigations at the appeal stage if the moving party demonstrates, for instance, that it is in possession of specific information that needs to be further investigated in order to avoid a miscarriage of justice and that this specific information was not available at trial and could not have been discovered at trial through the exercise of due diligence;[1]

[1] Ildephonse Hategekimana v. The Prosecutor, Case No. ICTR-00-55B-A, Decision on Ildephonse Hategekimana’s Motion for Cooperation and Judicial Assistance, 5 May 2011, para. 4; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Jean-Bosco Barayagwiza’s Extremely Urgent Motion for Leave to Appoint an Investigator, 4 October 2005, p. 4. See also Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Appellant Ferdinand Nahimana’s Motion for Assistance from the Registrar in the Appeals Phase, 3 May 2005, para. 3.

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Decision on Motion for Extension of Time to File Notice of Appeal - 21.04.2016 KARADŽIĆ Radovan
(MICT-13-55-A)

Pages 1-2:

CONSIDERING that, pursuant to Rule 133 of the Rules of Procedure and Evidence of the Mechanism (“Rules”), parties seeking to appeal a trial judgement are to file a notice of appeal no later than 30 days from the date on which the written judgement was filed;

RECALLING that, pursuant to Rule 154 of the Rules, the time limits prescribed in the Rules may be enlarged on good cause being shown;

[…]

CONSIDERING the length of the Trial Judgment and the significant complexity of this case;

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

[…]

CONSIDERING the need to weigh carefully the interests in safeguarding expeditious proceedings before the Mechanism and allowing sufficient time for the parties to prepare their respective cases;

[…]

CONSIDERING that the reasons justifying an extension to file Karadžić’s notice of appeal also apply to the Prosecution and that a synchronised schedule for filing any notices of appeal in this case will assist the effective case management and is, therefore, in the interests of justice;

[1] See Trial Judgement, para. 6 (“The prodigious amount of evidence in this case included the testimony of 434 witnesses who appeared before the Chamber, the evidence in writing of 152 other witnesses and a total of 11, 469 exhibits representing 191, 040 pages. A total of 48, 121 transcript pages recorded the daily proceedings and 94, 917 pages of filings were submitted to the Chamber. The scope of the Indictment and the high profile of the Accused conjointly contributed to the unprecedented nature of this case.”). In addition, the Trial Judgment is 2,607 pages long, including annexes. 

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IRMCT Rule Rule 133; Rule 154
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Decision on Continuation of Proceedings - 04.03.2016 HADŽIĆ Goran
(IT-04-75-AR73.1)

20.     The Appeals Chamber is of the view that Hadžić cannot be permitted to challenge findings of an impugned decision in a response to a Prosecution appeal. Hadžić has chosen to refrain from seeking certification to appeal and thus does not have standing as an appellant. Accordingly, to the extent Hadžić’s challenges are aimed at appealing the Trial Chamber’s finding on Hadžić's fitness to stand trial, the Appeals Chamber will not consider them. […]

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Decision on Continuation of Proceedings - 04.03.2016 HADŽIĆ Goran
(IT-04-75-AR73.1)

24.     […] The Appeals Chamber notes that, having concluded that Hadžić could not be physically present at trial,[1] the Trial Chamber did not then proceed to assess whether a restriction of Hadžić’s right to be present at trial was in service of a sufficiently important objective and whether that restriction would impair Hadžić’s right to be present no more than necessary to accomplish the identified objective.[2] The Appeals Chamber cannot agree with the Trial Chamber’s approach. Recalling the law as set out above,[3] the Appeals Chamber, Judge Afanđe dissenting, considers that, only once the Trial Chamber had determined whether a proportionate means of continuing the trial existed, i.e. in such a way as to impair Hadžić’s rights no more than necessary to accomplish the objective of a fair and expeditious completion of the proceedings, should the Trial Chamber have considered whether the circumstances of this case “[militate] against the continuation of proceedings and in favour of terminating or staying the case”.[4] As such, the Appeals Chamber, Judge Afanđe dissenting, finds that by failing to apply the proportionality principle, the Trial Chamber erred in law.

25.     […] it follows from the above that it was imperative for the Trial Chamber to explicitly address and give due consideration to all modalities proposed to it which may have assisted in limiting the impairment of Hadžić’s right to be present at trial no more than necessary to accomplish the objective of a fair and expeditious completion of the proceedings. […]

[1] Impugned Decision [Prosecutor v. Goran Hadžić, Case No. IT-04-75-T, Consolidated Decision on the Continuation of Proceedings, 26 October 2015], paras 62-63. The Appeals Chamber notes that the Prosecution does not challenge this aspect of the Impugned Decision.

[2] The Appeals Chamber observes that despite recalling the correct law in this respect, the Trial Chamber failed to apply the proportionality principle when considering whether the trial could be resumed even in Hadžić’s absence. See Impugned Decision, para. 61, fn. 284.

[3] See supra, para. 8.

[4] Impugned Decision, para. 56.

[5] See supra, paras 8, 24.

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ICTR Statute Article 20(4)(d) ICTY Statute Article 21(4)(d)
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Decision Regarding False Testimony - 02.03.2016 NTAKIRUTIMANA and NTAKIRUTIMANA
(MICT-12-17)

9.       Rule 108(B) of the Rules provides:

If a Chamber or Single Judge has strong grounds for believing that a witness has knowingly and wilfully given false testimony, it shall refer the matter to the President who shall designate a Single Judge who may:

(i) direct the Prosecutor to investigate the matter with a view to the preparation and submission of an indictment for false testimony; or    

(ii) where the Prosecutor, in the view of the Single Judge, has a conflict of interest with respect to the relevant conduct, direct the Registrar to appoint an amicus curiae to investigate the matter and report back to the Single Judge as to whether there are sufficient grounds for instigating proceedings for false testimony.

10.     What constitutes “strong grounds” represents a heightened threshold for initiating investigations into allegations of false testimony,[1] and has been distinguished from the “sufficient grounds” standard applied to initiating the prosecution of an individual for false testimony or contempt.[2] […]

11.     A party seeking to institute proceedings for false testimony bears “the onus to prove the alleged falsehood”.[3] Despite having been instructed to provide references to transcripts from the Ntakirutimana case that, in his view, amounted to false testimony,[4] Ntakirutimana does not specify which portions of Witness HH’s testimony he alleges are false. This omission weighs against establishing that strong grounds exist for believing that Witness HH knowingly and wilfully gave false testimony before the ICTR.

See also paragraph 17 and footnote 57.

[1] See The Prosecutor v. Eliézer Niyitegeka, Case No. MICT-12-16, Decision on Request to Initiate Proceedings against Witness GGH in Niyitegeka for Giving False Testimony under Solemn Declaration and for Interfering with the Administration of Justice, 26 February 2014 (“Niyitegeka Decision of 26 February 2014”), para. 10; The Prosecutor v. Eliézer Niyitegeka, Case No. MICT-12-16, Decision on Request to Initiate Proceedings against Witness KJ in Niyitegeka for Giving False Testimony under Solemn Declaration and for Interfering with the Administration of Justice, 28 January 2014 (“Niyitegeka Decision of 28 January 2014”), para. 17.

[2] See The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR.91, Decision on “Joseph Nzirorera’s Appeal from Refusal to Investigate [a] Prosecution Witness for False Testimony” and on Motion for Oral Arguments, 22 January 2009 (“Karemera et al. Decision of 22 January 2009”), paras. 17-20.

[3] Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-A, Judgement, 9 July 2004, para. 253.

[4] See Order of 13 October 2015 [Prosecutor v. Elizaphan and Gérard Ntakirutimana, Case No. MICT-12-17, Order for Submissions, 13 October 2015 (confidential)], para. 10; Order of 12 November 2014 [Prosecutor v. Elizaphan and Gérard Ntakirutimana, Case No. MICT-12-17, Order for Submissions in Relation to the Motion to Appoint an Amicus Curiae to Investigate the Apparent Recantation of a Witness Testifying before the ICTR Pursuant to Rule 108(B), 12 November 2014 (confidential)], paras. 12, 13.

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IRMCT Rule Rule 108(B)
Notion(s) Filing Case
Decision Regarding False Testimony - 02.03.2016 NTAKIRUTIMANA and NTAKIRUTIMANA
(MICT-12-17)

10.     […] False testimony has been defined by the Appeals Chamber of the ICTR as “a deliberate offence which requires wilful intent on the part of the perpetrator to mislead the Judge and thus to cause harm”.[1]

[1] Aloys Simba v. The Prosecutor, Case No. ICTR-01-76-A, Judgement, 27 November 2007, n. 68. The elements of false testimony have also been defined by trial chambers of the ICTR and the International Criminal Tribunal for the former Yugoslavia (“ICTY”) as: (i) the witness must make a solemn declaration; (ii) a false statement must be contrary to the solemn declaration; (iii) the witness must believe at the time that it was false; and (iv) there must be a relationship between the statement and a material matter within the case. See, e.g., The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Decision on Defence Motion for Investigation of Prosecution Witness Ahmed Mbonyunkiza for False Testimony, 29 December 2006, para. 6; Prosecutor v. Mile Mrkšić et al., Case No. IT-95-13/1-T, Decision on Reconsideration of the Decision on Protective Measures for Witness P024 and Initiation of the Proceedings pursuant to Rule 91, 13 July 2006 (confidential), para. 3.

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IRMCT Rule Rule 108(B)
Notion(s) Filing Case
Decision on Provisional Release - 23.02.2016 TOLIMIR Zdravko
(MICT-15-95-ES)

7.       Neither the Statute nor the Rules explicitly regulate the provisional release of convicted persons awaiting transfer to an enforcement State.[1] The Appeals Chamber recalls, however, that, in certain limited circumstances, the ICTY has authorized provisional release to convicted persons prior to their transfer to the State where they would serve their sentence.[2] In doing so, the ICTY Appeals Chamber has relied on Rule 65(I) of the ICTY Rules of Procedure and Evidence (“ICTY Rules”) which mirrors Rule 68(I) of the Mechanism’s Rules.[3] The Appeals Chamber recalls that it is bound to interpret the Statute and the Rules in a manner consistent with the relevant jurisprudence of the ICTY.[4] Bearing this practice in mind, the Appeals Chamber considers that Rule 68 of the Rules applies, mutatis mutandis, to convicted persons who are in the custody of the Mechanism pending transfer to an enforcement State.

8.       Accordingly, provisional release may be granted if the Appeals Chamber is satisfied that: (i) the convicted person, if released, will surrender into detention at the conclusion of the fixed period; (ii) the convicted person, if released, will not pose a danger to any victim, witness, or other person; and (iii) special circumstances exist warranting such release.[5] These requirements must be considered cumulatively and the discretionary assessment of these requirements is to be made on a case-by-case basis. [6] Furthermore, “whether an applicant satisfies these requirements is to be determined on a balance of probabilities, and the fact that an individual has already been sentenced is a matter to be taken into account by the Appeals Chamber when balancing the probabilities”.[7]

[1] Rule 68(I) of the Rules relates to granting provisional release to appellants and provides, in relevant part, that “the Appeals Chamber may grant provisional release to convicted persons pending an appeal or for a fixed period if it is satisfied that: (i) the appellant, if released, will either appear at the hearing of the appeal or will surrender into detention at the conclusion of the fixed period, as the case may be; (ii) the appellant, if released, will not pose a danger to any victim, witness, or other person, and (iii) special circumstances exist warranting such release.”

[2] See, e.g., Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-ES, Decision on Krajišnik’s Application for Custodial Visit, 17 June 2009 (“Krajišnik Decision”), paras. 1, 22. See also Prosecutor v. Ljubomir Borovčanin, Case No. IT-05-88-AR65.12, Decision on Appeal from Decision on Ljubomir Borovčanin’s Request for Provisional Release, 1 March 2011 (“Borovčanin Decision”), paras. 2, 3, 9; Prosecutor v. Fatmir Limaj et al., Case No. IT-03-66-A, Decision on Motion on Behalf of Haradin Bala for Temporary Provisional Release, 14 February 2008 (“Limaj et al. Decision”), paras. 2, 4, 5. The Appeals Chamber notes that, in one case, the President of the Mechanism proprio motu provisionally released a convicted person who was in the custody of the Mechanism pending transfer to an enforcement State. See Nikolić Decision [Prosecutor v. Drago Nikolić, Case No. MICT-15-85-ES.4, Public Redacted Version of the 20 July 2015 Decision of the President on the Application for Early Release or Other Relief of Drago Nikolić, 13 October 2015], paras, 4, 39.

[3] Rule 65(I) of the ICTY Rules provides, in relevant part, that “the Appeals Chamber may grant provisional release to convicted persons pending an appeal or for a fixed period if it is satisfied that: (i) the appellant, if released, will either appear at the hearing of the appeal or will surrender into detention at the conclusion of the fixed period, as the case may be; (ii) the appellant, if released, will not pose a danger to any victim, witness or other person, and (iii) special circumstances exist warranting such release.” See also Borovčanin Decision, para. 9; Limaj et al. Decision, paras. 4, 5.

[4] 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, paras. 4-6.

[5] Borovčanin Decision, para. 9; Limaj et al. Decision, para. 5.

[6] Prosecutor v. Nikola Šainović et al., Case No. IT-05-87-A, Decision on Sreten Lukić’s Third Motion for Provisional Release on Compassionate Grounds, 3 September 2010 (“Šainović et al. Decision of 3 September 2010”), para. 5; Borovčanin Decision, para. 9. See also Limaj et al. Decision, para. 5.

[7] Borovčanin Decision, para. 9; Limaj et al. Decision, para. 5.

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IRMCT Rule Rule 68(I)
Notion(s) Filing Case
Decision on Provisional Release - 23.02.2016 TOLIMIR Zdravko
(MICT-15-95-ES)

9.       The Appeals Chamber recalls that special circumstances warranting provisional release related to humane and compassionate considerations have been found to exist where there is an “acute justification”, such as a medical need, a memorial service for a close family member, or a visit to a close relative in extremely poor health whose death is believed to be imminent.[1] Requests premised solely on the combination of advanced age and poor health, for example, have not met the threshold of “acute justification” in the absence of demonstration of the existence of an acute crisis or a life threatening medical condition.[2] […]

11.     […] [T]he fact that Tolimir is away from his family in this present situation also does not constitute “special circumstances”.[3] In this respect, the Appeals Chamber recalls that, in accordance with the Rules Governing the Detention of Persons Awaiting Trial or Appeal before the Tribunal or Otherwise Detained on the Authority of the Tribunal (“Rules Governing Detention”),[4]  Tolimir is entitled to communicate with his family or other persons and to receive visits from them subject to certain restrictions and conditions.[5] […]

[1] Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-A, Public Redacted Version of the “Decision on Valentin ]orić’s Motion Seeking Provisional Release” Issued on 12 March 2015, 14 May 2015 (“Prlić et al. Decision”), para. 12; Prosecutor v. Nikola Šainović et al., Case No. IT-05-87-A, Decision on Vladimir Lazarević’s Motion for Temporary Provisional Release, 13 May 2013 (“Šainović et al. Decision of 13 May 2013”), p. 2; Borovčanin Decision [Decision on Appeal from Decision on Ljubomir Borovčanin’s Request for Provisional Release, 1 March 201], para. 10.

[2] See, e.g., Prlić et al. Decision, para. 12. This standard has also been applied in the context of a convicted person’s request to visit a close family member with medical conditions. See Borovčanin Decision, para. 10; Prosecutor v Dragomir Milošević, Case No. IT-98-29/1-A, Decision on Application for Provisional Release pursuant to Rule 65(I), 29 April 2008 (public redacted version), paras. 5, 7; Prosecutor v. Pavle Strugar, Case No. IT-01-42-A, Decision on Defence Request Seeking Provisional Release on Grounds of Compassion, 2 April 2008 (public redacted version) (“Strugar Decision”), paras. 5, 13; Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Decision on Radoslav Brđanin’s Motion for Provisional Release, 23 February 2007, para. 6.

[3] Cf. Šainović et al. Decision of 3 September 2010 [Prosecutor v. Nikola Šainović et al., Case No. IT-05-87-A, Decision on Sreten Lukić’s Third Motion for Provisional Release on Compassionate Grounds, 3 September 2010], para. 11; Prosecutor v. Milan Milutinović et al., Public Redacted Version of the “Decision on Vladimir Lazarević’s Second Motion for Temporary Provisional Release on the Grounds of Compassion” Issued on 21 May 2009, 22 May 2009, para. 9; Strugar Decision, para. 12.

[4] IT38/Rev.9, 21 July 2005. The Rules Governing Detention of the ICTY apply mutatis mutandis to individuals subject to the jurisdiction of the Mechanism.

[5] Rules 58, 61 of the Rules Governing Detention.

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IRMCT Rule Rule 68(I)