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| Appeal Judgement - 19.03.2019 |
KARADŽIĆ Radovan (MICT-13-55-A) |
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684. […] [T]he Appeals Chamber recalls that it is not required that members of a joint criminal enterprise agree upon a particular form through which the forcible displacement is to be effectuated or that its members intend specific acts of coercion causing such displacement, so long as it is established that they intended to forcibly displace the victims.[1] [1] Stanišić and Župljanin Appeal Judgement, para. 917. |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 19.03.2019 |
KARADŽIĆ Radovan (MICT-13-55-A) |
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748. Pursuant to Article 24 of the ICTY Statute and Rule 101(B) of the ICTY Rules, trial chambers must take into account the following factors in sentencing: (i) the gravity of the offence or totality of the culpable conduct; (ii) the individual circumstances of the convicted person; (iii) the general practice regarding prison sentences in the courts of the former Yugoslavia; and (iv) aggravating and mitigating circumstances.[1] 749. The Appeals Chamber recalls that appeals against the sentence, as appeals from a trial judgement, are appeals stricto sensu; they are of a corrective nature and are not trials de novo.[2] Trial chambers are vested with a broad discretion in determining an appropriate sentence, due to their obligation to individualize the penalties to fit the circumstances of the accused and the gravity of the crime.[3] As a general rule, the Appeals Chamber will not revise a sentence unless the trial chamber has committed a “discernible error” in exercising its discretion or has failed to follow the applicable law.[4] It is for the party challenging the sentence to demonstrate how the trial chamber ventured outside its discretionary framework in imposing the sentence.[5] To show that the trial chamber committed a discernible error in exercising its discretion, an appellant must demonstrate that the trial chamber gave weight to extraneous or irrelevant considerations, failed to give weight or sufficient weight to relevant considerations, made a clear error as to the facts upon which it exercised its discretion, or that its decision was so unreasonable or plainly unjust that the Appeals Chamber is able to infer that the trial chamber failed to properly exercise its discretion.[6] [1] Prlić et al. Appeal Judgement, para. 3203; Stanišić and Župljanin Appeal Judgement, para. 1099; Tolimir Appeal Judgement, para. 626; Popović et al. Appeal Judgement, para. 1960. See also Šešelj Appeal Judgement, para. 179. [2] Prlić et al. Appeal Judgement, para. 3204; Stanišić and Župljanin Appeal Judgement, para. 1100; Tolimir Appeal Judgement, para. 627; Popović et al. Appeal Judgement, para. 1961; Kupreškić et al. Appeal Judgement, para. 408. [3] Prlić et al. Appeal Judgement, para. 3204; Stanišić and Župljanin Appeal Judgement, para. 1100; Nyiramasuhuko et al. Appeal Judgement, para. 3349; Tolimir Appeal Judgement, para. 626; Popović et al. Appeal Judgement, para. 1961; Ngirabatware Appeal Judgement, para. 255. [4] Prlić et al. Appeal Judgement, para. 3204; Stanišić and Župljanin Appeal Judgement, para. 1100; Nyiramasuhuko et al. Appeal Judgement, para. 3349; Tolimir Appeal Judgement, para. 627; Popović et al. Appeal Judgement, para. 1961; Ngirabatware Appeal Judgement, para. 255. [5] Prlić et al. Appeal Judgement, para. 3204; Stanišić and Župljanin Appeal Judgement, para. 1100; Tolimir Appeal Judgement, para. 627; Popović et al. Appeal Judgement, para. 1961. [6] Stanišić and Župljanin Appeal Judgement, para. 1100; Tolimir Appeal Judgement, para. 627; Popović et al. Appeal Judgement, para. 1962; Ngirabatware Appeal Judgement, para. 255. |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 19.03.2019 |
KARADŽIĆ Radovan (MICT-13-55-A) |
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753. The Appeals Chamber recalls that a trial chamber is required to consider any mitigating circumstance when determining the appropriate sentence, but it enjoys considerable discretion in determining what constitutes a mitigating circumstance and the weight, if any, to be accorded to the factors identified.[1] The existence of mitigating factors does not automatically imply a reduction of sentence or preclude the imposition of a particular sentence.[2] 754. Turning to Karadžić’s submissions regarding the purported violation of the non-prosecution agreement, the Appeals Chamber observes that the Trial Chamber considered the Holbrooke Agreement[3] and Karadžić’s reliance on it for two purposes: (i) to demonstrate his good character and conduct after the conflict; and (ii) to receive a remedy for the violation of his rights resulting from his prosecution at the ICTY in alleged breach of this agreement.[4] The Trial Chamber concluded that Karadžić’s decision to step down from public office in July 1996 had a “positive influence on the establishment of peace and stability” in Bosnia and Herzegovina and the region and found this to be a mitigating factor.[5] The Trial Chamber also examined evidence that Karadžić verbally agreed to step down from public office in order to not be prosecuted by the ICTY[6] but considered his reasons for resigning irrelevant to determining mitigating factors in sentencing.[7] 755. The Appeals Chamber finds no error in this approach. The Appeals Chamber recalls that the ICTY Appeals Chamber issued a decision on 12 October 2009 finding that, even if the Holbrooke Agreement provided that Karadžić would not be prosecuted before the ICTY, “it would not limit the jurisdiction of the [ICTY], it would not otherwise be binding on the [ICTY] and it would not trigger the doctrine of abuse of process”.[8] The Appeals Chamber of the ICTY considered that a fundamental aim of international criminal tribunals is to end impunity by ensuring that serious violations of international humanitarian law are prosecuted and punished.[9] Consequently, it held that individuals accused of such crimes “can have no legitimate expectation of immunity from prosecution” and that Karadžić’s “expectations of impunity do not constitute an exception to this rule”.[10] Accordingly, the Trial Chamber correctly did not take into account any purported non-prosecution agreement when assessing the mitigating factors. The Appeals Chamber finds that Karadžić does not demonstrate any error on the part of the Trial Chamber in this respect. [1] See, e.g., Stanišić and Župljanin Appeal Judgement, para. 1130; Nyiramasuhuko et al. Appeal Judgement, para. 3394; Ngirabatware Appeal Judgement, para. 265. [2] See, e.g., Nyiramasuhuko et al. Appeal Judgement, para. 3394; Ngirabatware Appeal Judgement, para. 265 and references cited therein. [3] Trial Judgement, paras. 6053-6057. [4] Trial Judgement, para. 6053, n. 20648, referring to Karadžić Final Trial Brief, paras. 3379-3406. See Karadžić Final Trial Brief, paras. 3400-3406. [5] Trial Judgement, para. 6057. [6] See Trial Judgement, para. 6056. [7] Trial Judgement, para. 6057. [8] Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR73.4, Decision on Karadžić’s Appeal of Trial Chamber’s Decision on Alleged Holbrooke Agreement, 12 October 2009 (“Decision of 12 October 2009”), para. 54. [9] Decision of 12 October 2009, para. 52. [10] Decision of 12 October 2009, para. 52. |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 19.03.2019 |
KARADŽIĆ Radovan (MICT-13-55-A) |
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757. The Appeals Chamber recalls that it has previously dismissed Karadžić’s appeal concerning the Trial Chamber’s findings in relation to disclosure violations and prejudice, including alleged undue delay resulting from the Prosecution’s disclosure practices.[1] In particular, the Appeals Chamber has found that the Trial Chamber’s orders to suspend proceedings in view of the Prosecution’s disclosure practices did not result in undue delay as such suspensions expressly sought to strike a balance between Karadžić’s rights to be tried without undue delay and to have adequate time and facilities to prepare his defence.[2] In light of the foregoing and mindful of the broad discretion trial chambers enjoy in determining what constitutes a mitigating circumstance, the Appeals Chamber finds that Karadžić demonstrates no error in the Trial Chamber’s refusal to consider the Prosecution’s disclosure violations in mitigation. [1] See [Karadžić Appeal Judgement] Section III.A.4(b). The Appeals Chamber also notes that Karadžić relies on ICTR jurisprudence to argue that all violations, regardless of the degree of prejudice, require an appropriate remedy. See Karadžić Appeal Brief, para. 849, n. 1156, referring to [André Rwamakuba v. The Prosecutor, Case No. ICTR‑98‑44C-A, Decision on Appeal Against Decision on Appropriate Remedy, 13 September 2007], para. 24, Laurent Semanza v. The Prosecutor, Case No. ICTR-97-20-A, Decision, 31 May 2000 (originally filed in French, English translation filed on 6 July 2001), para. 125. The Appeals Chamber is of the view that Karadžić misconstrues the jurisprudence. The nature and form of an effective remedy should be proportional to the gravity of the harm that is suffered. Furthermore, in situations where a violation has not materially prejudiced an accused, recognition of the violation may suffice as an effective remedy. See Nyiramasuhuko et al. Appeal Judgement, para. 42. In any event, the Appeals Chamber notes that the Trial Chamber found no prejudice in relation to the Prosecution’s disclosure violations, and in view of the remedies provided by the Trial Chamber to pre-empt the occurrence of any such prejudice, the cases Karadžić refers to are distinguishable from the circumstances of his case. [2] See [Karadžić Appeal Judgement] Section III.A.4(b). |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 19.03.2019 |
KARADŽIĆ Radovan (MICT-13-55-A) |
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759. As to Karadžić’s submissions relating to his good conduct during the war, the Appeals Chamber recalls that this may be a relevant factor in sentencing,[1] but that good character or conduct of a convicted person often carries little weight in the determination of the sentence.[2] The Appeals Chamber observes that the Trial Chamber noted Karadžić’s submission on this point, recalled the relevant jurisprudence, and found that, given the gravity of his crimes and his central involvement in them, it did not “consider his conduct during the war to be mitigating in any way”.[3] The Appeals Chamber also recalls the Trial Chamber’s findings that Karadžić’s participation was integral to crimes committed in furtherance of four joint criminal enterprises, as well as a finding, in one instance, that his “contribution was so instrumental that, without his support, the SRK’s attacks on civilians could not have in fact occurred”.[4] In light of the above, Karadžić has failed to demonstrate that the Trial Chamber erred in not giving weight to his submission of good conduct during the war in mitigation of his sentence. [1] See, e.g., Šainović et al. Appeal Judgement, para. 1821; Ntabakuze Appeal Judgement, para. 296; Krajišnik Appeal Judgement, para. 816. [2] See Ntabakuze Appeal Judgement, para. 296 and references cited therein. [3] Trial Judgement, paras. 6036, 6053, 6064. [4] See Trial Judgement, para. 4891. See also, e.g., Trial Judgement, paras. 3505, 3524, 4937-4939, 5831, 5849, 5992, 5993, 5996-6010, 6046-6050. |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 19.03.2019 |
KARADŽIĆ Radovan (MICT-13-55-A) |
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766. The Appeals Chamber understands that the Prosecution does not challenge the Trial Chamber’s factual determinations regarding the gravity of crimes, but rather contends that the sentence it imposed on Karadžić was “manifestly inadequate” and unreasonable given the “unprecedented gravity” of his crimes.[1] Taking into account the Trial Chamber’s conclusions reflecting the magnitude of Karadžić’s crimes, the Appeals Chamber is in agreement with the Prosecution’s position. While fully cognizant of the Trial Chamber’s discretion in sentencing, the Appeals Chamber considers that the 40-year sentence inadequately reflects the extraordinary gravity of Karadžić’s crimes as well as his central and instrumental participation in four joint criminal enterprises, which spanned more than four years and covered a large number of municipalities in Bosnia and Herzegovina. 767. The incongruence between the gravity of Karadžić’s crimes and his 40-year sentence is apparent when Karadžić’s crimes and punishment are compared to the life sentences imposed on Tolimir, Beara, Popović, and Galić for their responsibility in only a fraction of Karadžić’s crimes. The Appeals Chamber notes that the Trial Chamber did not explicitly consider these cases in its determination of Karadžić’s sentence.[2] The Appeals Chamber recalls that trial chambers are under no obligation to expressly compare the case of one accused to that of another.[3] Moreover, it is settled jurisprudence that any given case may contain a multitude of variables, ranging from the number and type of crimes committed to the personal circumstances of the individual.[4] However, a “disparity between sentences rendered in similar cases may be considered ‘capricious or excessive’, hence warranting the intervention of the Appeals Chamber, ‘if it is out of reasonable proportion with a line of sentences passed in similar circumstances for the same offences’”.[5] See also paras. 768 to 771. […] 772. In the present case, the Appeals Chamber observes the Trial Chamber’s findings that Galić was a named member of the Sarajevo JCE,[6] and that Tolimir,[7] Beara,[8] and Popović[9] either supported or were named members of the Srebrenica JCE. Additionally, as noted above, these individuals were high‑ranking members of the VRS or the SRK, which were under Karadžić’s “authority” as the President of Republika Srpska and Supreme Commander of its forces.[10] The fact that Tolimir, Beara, Popović, and Galić were each sentenced to life imprisonment for participating in only one of the four joint criminal enterprises involved in this case, and the fact that they were subordinated to Karadžić, further demonstrates that the 40-year sentence imposed on Karadžić was inadequate. 773. Given the above, the Appeals Chamber considers that the sentence of 40 years imposed on Karadžić by the Trial Chamber underestimates the extraordinary gravity of Karadžić’s responsibility and his integral participation in “the most egregious of crimes” that were committed throughout the entire period of the conflict in Bosnia and Herzegovina and were noted for their “sheer scale” and “systematic cruelty”.[11] In the circumstances of this case, the sentence the Trial Chamber imposed was so unreasonable and plainly unjust that the Appeals Chamber can only infer that the Trial Chamber failed to properly exercise its discretion. 774. The Appeals Chamber finds, Judges de Prada and Rosa dissenting, that the Trial Chamber committed a discernible error and abused its discretion in imposing a sentence of only 40 years of imprisonment. The Appeals Chamber, Judges de Prada and Rosa dissenting, therefore grants Ground 4 of the Prosecution’s appeal.[12] The impact of this finding is addressed below. […] 776. […] In light of Karadžić’s position at the apex of power in Republika Srpska and its military, his instrumental and integral participation in the four joint criminal enterprises, the scale and systematic cruelty of the crimes committed, the large number of victims, the continued impact of these crimes on victims who have survived, as well as the relevant mitigating and aggravating factors, the Appeals Chamber, Judges de Prada and Rosa dissenting, finds that the only appropriate sentence in the circumstances of this case is imprisonment for the remainder of Karadžić’s life. See also para. 777. [1] See Prosecution Appeal Brief, paras. 7, 148-172, 180; Prosecution Reply Brief, paras. 69-72. See also T. 24 April 2018 p. 295. [2] The Appeals Chamber notes that the Trial Chamber only explicitly considered the sentences imposed on Biljana Plavšić (11 years) and Momčilo Krajišnik (20 years) that were argued by the Defence at trial. See Trial Judgement, paras. 6066, 6067. [3] See Prlić et al. Appeal Judgement, para. 3340; Kupreškić et al. Appeal Judgement, para. 443. [4] See, e.g., Prlić et al. Appeal Judgement, para. 3341; Nyiramasuhuko et al. Appeal Judgement, para. 3400; Ntabakuze Appeal Judgement, para. 298. A trial chamber’s primary responsibility is to tailor the penalty to fit the individual circumstances of the accused. See, e.g., Prlić et al. Appeal Judgement, para. 3341; Nyiramasuhuko et al. Appeal Judgement, paras. 3400, 3453, 3512; Popović et al. Appeal Judgement, para. 2093; Ntabakuze Appeal Judgement, para. 298. [5] See Prlić et al. Appeal Judgement, para. 3340; Đorđević Appeal Judgement, para. 949 and references cited therein. [6] See Trial Judgement, paras. 4680, 4707, 4708, 4892, 4932, 5997. [7] In finding that the common plan to eliminate Bosnian Muslims in Srebrenica was formed and executed in conditions designed to ensure its secrecy to the greatest extent possible, the Trial Chamber considered “Tolimir’s proposal to remove the detainees from locations where they could be sighted”. See Trial Judgement, para. 5734. The Trial Chamber also considered that Karadžić was constantly kept abreast of developments on the ground, and this was achieved particularly through briefings by high-ranking officers, including Tolimir, who was already on the ground near Srebrenica. See Trial Judgement, para. 5801. [8] The Trial Chamber found that Beara was a member of the Srebrenica JCE. See Trial Judgement, paras. 5737, 5830, 5998. [9] The Trial Chamber found that Popović was a member of the Srebrenica JCE. See Trial Judgement, paras. 5733, 5737, 5830, 5998. [10] See, e.g., Trial Judgement, paras. 4885, 4891, 4938, 5821, 6047, 6052. [11] See Trial Judgement, para. 6046. [12] [Footnote omitted]. |
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| Decision on Prosecution’s Motion to Strike Mladić’s Motions to Admit Additional Evidence - 22.01.2019 |
MLADIĆ Ratko (MICT-13-56-A) |
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Pages 2, 3: RECALLING that, pursuant to Rule 3(F) of the Rules, if a party is required to take any action within a specified time after the filing or service of a document by another party, and pursuant to the Rules, that document is filed in a language other than one of the working languages of the Mechanism, time shall not run until the party required to take action has received from the Registrar a translation of the document into one of the working languages of the Mechanism; RECALLING FURTHER that, pursuant to paragraph 12 of the Practice Direction, where a party applies to present additional evidence pursuant to Rule 142 of the Rules, the “relevant documents and exhibits, where applicable, shall be translated into one of the languages of the Mechanism”; […] CONSIDERING that, pursuant to Rule 3(F) of the Rules, the time for the Prosecution to respond to the relevant Rule 142 Motions should not run until it has received a translation of the Affected Annexes into one of the working languages of the Mechanism; CONSIDERING FURTHER that it is in the interests of justice and effective case management to synchronise the briefing schedule for the Rule 142 Motions;[1] FINDING, therefore, that it is justified that the time for the filing of the Prosecution’s response(s), if any, to the Rule 142 Motions shall run from the date of service on the Prosecution of the final translation of the Affected Annexes; […] [1] Cf. Decision on Ratko Mladić’s Motion for Extensions of Time and Word Limits, 22 May 2018, p. 3; Decision on Motion for Extension of Time to File Notice of Appeal, 21 December 2017, p. 2.
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IRMCT Statute
MICT Rules 3(F) and 142 Other instruments Paragraph 12 of the Practice Direction on Requirements and Procedures for Appeals |
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| Decision on a Prosecution Motion for Enforcement of Order for Retrial - 14.12.2018 |
STANIŠIĆ & SIMATOVIĆ (IRMCT) |
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9. The Appeals Chamber observes that the Rules of Procedure and Evidence of the Mechanism (“Rules”) do not provide for interlocutory appeal as of right of a decision taken by a trial chamber concerning the admission of evidence. Furthermore, pursuant to Rule 80(B) of the Rules, decisions by the trial chamber, other than those for which appeal as of right is provided in the Rules, are without interlocutory appeal save with certification by the trial chamber.[1] Consequently, appellate review of decisions related to the admission of evidence is limited to where the issue arises in an interlocutory appeal certified by a trial chamber or in an appeal against a conviction or acquittal.[2] Footnote [1] See Rule 79(B) of the Rules (concerning certification to appeal with respect to preliminary motions). Footnote [2] Cf. Prosecutor v. Rasim Delić, Case No. IT-04-83-Misc.1, Decision on Prosecution’s Appeal, 1 November 2006, p. 3 (considering that the Appeals Chamber of the ICTY has no inherent authority to intervene in an interlocutory decision of a trial chamber not subject to a right of appeal and to which certification to appeal has been denied). See also Pauline Nyiramasuhuko v. The Prosecutor, Case No. ICTR-98-42-AR73, Decision on Pauline Nyiramasuhuko’s Request for Reconsideration, 27 September 2004, para. 10 (noting that certification of an appeal has to be the absolute exception when deciding on the admissibility of the evidence, and that it is first and foremost the responsibility of trial chambers, as triers of fact, to determine which evidence to admit during the course of the trial).
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IRMCT Rule Rule 80(B) IRMCT Rules of Procedure and Evidence | |
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| Decision on Amicus Curiae’s Appeal Against the Order Referring a Case to the Republic of Serbia - 12.12.2018 |
JOJIĆ Petar and RADETA Vjerica (MICT-17-111-R90) |
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11. The Mechanism has the power to prosecute persons who have knowingly and wilfully interfered with the administration of justice by the Mechanism, the ICTY and the ICTR, and to hold such persons in contempt.[44] States are required to cooperate with the Mechanism in the investigation and prosecution of contempt cases and shall comply without undue delay with any order issued by a Single Judge or Trial Chamber, including orders for the surrender or the transfer of the accused to the Mechanism.[45] Before proceeding to try such persons, however, the Mechanism “shall” consider referring a case to the authorities of a competent national jurisdiction, taking into account the interests of justice and expediency.[46] This requirement is mandatory, and the inclusion of this provision in the Statute indicates a strong preference for referral if all relevant conditions are met. Accordingly, the Mechanism may only exercise jurisdiction after it has considered whether the case can be transferred to a national jurisdiction for trial. 12. Articles 6(2) and 12(1) of the Statute provide that a Single Judge may be designated to make this determination.[47] The Single Judge is to consider whether the case should be referred to the authorities of a State: (i) in whose territory the crime was committed; or (ii) in which the accused was arrested; or (iii) having jurisdiction and being willing and adequately prepared to accept the case and try it.[48] […] 14. […] The Appeals Chamber recalls that the Statute explicitly contemplates referral to a State “in whose territory the crime was committed”, without requiring that all the alleged acts, omissions, or effects thereof be committed or sustained in the territory of that State.[53] […] [T]o read the Statute as so requiring would effectively render meaningless the provisions that allow for the referral of contempt cases as the impact of the alleged conduct will always be on proceedings that took place in The Hague or Arusha, while the alleged acts or omissions could be committed anywhere. If that impact is to be determinative, the Mechanism would be precluded from transferring any such case to another State for trial. […] 21. […] The Mechanism’s Statute explicitly provides for the referral of contempt cases and requires States to comply with any order for the surrender or the transfer to the Mechanism of any person accused of contempt,[77] whereas the ICTY Statute did not.[78] In light of the specific provisions allowing for referral of contempt cases, the Appeals Chamber considers that where a State expresses a willingness and commitment to try a case over which it has jurisdiction, […] it should be given the opportunity to do so, provided other relevant factors are satisfied. [44] Article 1(4) of the Statute. [45] Articles 1(4), 28(1) of the Statute. [46] Article 1(4) of the Statute. See also Article 6 (1) of the Statute. [47] See also Rule 2(C) of the Rules of Procedure and Evidence (“Rules”). [48] Article 6 (2) of the Statute. [53] Article 6(2)(i) of the Statute. [77] Articles 1(4), 6(1), 28(1) of the Statute. [78] See e.g. ICTY Rules, Rule 11bis; ICTY Statute, Article 29(1) which reads: “[s]tates shall co-operate with the International Tribunal in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law”. See supra note 69 [Please note that the correct footnote is note 68]. |
IRMCT Statute
Article 6 of the IRMCT Statute Article 28 of the |
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| Decision on Amicus Curiae’s Appeal Against the Order Referring a Case to the Republic of Serbia - 12.12.2018 |
JOJIĆ Petar and RADETA Vjerica (MICT-17-111-R90) |
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19. […] [T]he Appeals Chamber considers that it was reasonable for the Single Judge to find that the interests of justice were best served by referring the case to Serbia because there appeared to be a far greater likelihood that the case would be brought to trial in Serbia than at the Mechanism. 20. […] The Appeals Chamber observes that […] if the Accused are not brought to trial within a reasonable time, or if a competent Serbian court determines that it does not have jurisdiction to prosecute the Accused for contempt of the ICTY […], a deferral may be sought in the interests of justice.[74] […] [T]he Appeals Chamber considers that it was reasonable […] to have taken into account the availability of revocation procedures under Rule 14 of the Rules when deciding whether or not to refer the case to Serbia.[75] […] 23. […] [G]iven the importance to the trial process of ensuring that witnesses will appear to give evidence when called and of facilitating the attendance of witnesses through the provision of appropriate protective measures,[87] the Appeals Chamber considers these to be important factors […] in the determination of whether it is in the interests of justice to refer this case to Serbia for trial.[88] [74] Cf. The Prosecutor v. Michel Bagaragaza, Case No. ICTR-2005-86-11bis, Decision on Prosecutor’s Extremely Urgent Motion for Revocation of the Referral to the Kingdom of the Netherlands pursuant to Rule 11bis (F) & (G), 17 August 2007, paras. 3, 11, 12, pp. 5-6; Prosecutor v. Michel Bagaragaza, Case No. ICTR-2005-86-11bis, Decision on Prosecutor’s Request for Referral of the Indictment to the Kingdom of the Netherlands, 13 April 2007, paras. 15, 30. [75] See The Prosecutor v. Yussuf Munyakazi, Case No. ICTR-97-36-R11bis, Decision the Prosecution’s Appeal Against Decision on Referral under Rule 11bis, 8 October 2008, para. 30 (“Munyakazi Decision of 8 October 2008”); Prosecutor v. Gojko Jankovic, No. IT-96-23/2-AR11bis.2, Decision on Rule 11bis Referral, 15 November 2005, para. 55; Prosecutor v. Radovan Stanković, Case No. IT-96-23/2-AR11bis.1, Decision on Rule 11bis Referral, 1 September 2005 (“Stanković Decision of 1 September 2005”), para. 52. [87] See Article 20 of the Statute, Rule 86 of the Rules. [88] See [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], paras. 61-66, Munyakazi Decision of 8 October 2008, paras. 37, 38, 42; The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-2002-78-R11bis, Decision the Prosecution’s Appeal Against Decision on Referral under Rule 11bis, 30 October 2008, paras. 26-35; Stanković Decision of 1 September 2005, para. 26. |
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| Decision on Request to be Allowed to Exercise the Right to Appeal and to Have a Deadline Set for the Notice of Appeal - 27.11.2018 |
ŠEŠELJ Vojislav (IRMCT) |
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8. The Appeals Chamber notes that Article 14(5) of the International Covenant on Civil and Political Rights guarantees that “[e]veryone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law”.[1] However, neither the Statute nor the Rules provide a legal framework for this avenue of relief where a conviction is entered at the appellate stage.[2] Instead, Article 24 of the Statute and Rule 146 of the Rules offer a convicted person the ability to seek a review of an appeal judgement on fulfilment of certain criteria, which have been interpreted broadly where a miscarriage of justice would otherwise result.[3] ₣…ğ [1] See United Nations General Assembly, International Covenant on Civil and Political Rights, adopted by the General Assembly of the United Nations on 16 December 1966, entered into force on 23 March 1976, United Nations Treaty Series, Volume 999, p. 177. The Human Rights Committee has clarified that Article 14(5) of the ICCPR also extends to convictions entered on appeal. See United Nations Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial, 23 August 2007, CCPR/C/GC/32, para. 47. [2] Appeals Chamber jurisprudence at the ICTY and the International Criminal Tribunal for Rwanda similarly do not provide for the possibility to appeal an appeal judgement. This is demonstrated in decisions establishing that, since the Statute only provides for a right of appeal and a right of review, the Appeals Chamber has no power to reconsider its final judgement as an avenue to seek a further appeal. See, e.g., Ferdinand Nahimana v. The Prosecutor, Case No. ICTR-99-52B-R, Decision on Ferdinand Nahimana’s Motion for Reconsideration of the Appeal Judgement, 30 June 2010, para. 6; Prosecutor v. Mile Mrkšić and Veselin Šljivančanin, Case No. IT-95-13/l-A, Decision on Motion on Behalf of Veselin Šljivančanin Seeking Reconsideration of the Judgement Rendered by the Appeals Chamber on 5 May 2009 – or an Alternative Remedy, 8 December 2009 (“Šljivančanin Decision”), p. 2, n. 7, referring to, inter alia, Prosecutor v. Zoran Žigić, Case No. IT-98-30/1-A, Decision on Zoran Žigić’s "Motion for Reconsideration of Appeals Chamber Judgement IT-98-30/1-A Delivered on 28 February 2005", 26 June 2006 (“Žigić Decision”), para. 9. [3] See Prosecutor v. Veselin Šljivančanin, Case No. IT-95-13/l-R.1, Review Judgement, 8 December 2010 (“Šljivančanin Review Judgement”), para. 7; Žigić Decision, para. 7, and references cited therein.
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IRMCT Statute Statute Article 24 IRMCT Rule Rule 146 | |
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| Decision on Request to be Allowed to Exercise the Right to Appeal and to Have a Deadline Set for the Notice of Appeal - 27.11.2018 |
ŠEŠELJ Vojislav (IRMCT) |
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8. The Appeals Chamber notes that Article 14(5) of the International Covenant on Civil and Political Rights guarantees that “[e]veryone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law”.[1] However, neither the Statute nor the Rules provide a legal framework for this avenue of relief where a conviction is entered at the appellate stage.[2] Instead, Article 24 of the Statute and Rule 146 of the Rules offer a convicted person the ability to seek a review of an appeal judgement on fulfilment of certain criteria, which have been interpreted broadly where a miscarriage of justice would otherwise result.[3] [...] 9. The ICTY Appeals Chamber has previously stated that it was “satisfied that the existing appeal and review proceedings established under the Statute provide sufficient guarantees to persons convicted before this Tribunal that they have been tried fairly and in accordance with norms of due process”.[4] [...] Šešelj limits his arguments to the impropriety of being convicted on appeal and to asserting his consequent right to appeal[...] without articulating any deficiencies in the existing procedures for review of appeal judgements provided for in the Statute and the Rules or [...] attempt[ing] to demonstrate that the Appeal Judgement contains any errors.[5] [1] See United Nations General Assembly, International Covenant on Civil and Political Rights, adopted by the General Assembly of the United Nations on 16 December 1966, entered into force on 23 March 1976, United Nations Treaty Series, Volume 999, p. 177. The Human Rights Committee has clarified that Article 14(5) of the ICCPR also extends to convictions entered on appeal. See United Nations Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial, 23 August 2007, CCPR/C/GC/32, para. 47. [2] Appeals Chamber jurisprudence at the ICTY and the International Criminal Tribunal for Rwanda similarly do not provide for the possibility to appeal an appeal judgement. This is demonstrated in decisions establishing that, since the Statute only provides for a right of appeal and a right of review, the Appeals Chamber has no power to reconsider its final judgement as an avenue to seek a further appeal. See, e.g., Ferdinand Nahimana v. The Prosecutor, Case No. ICTR-99-52B-R, Decision on Ferdinand Nahimana’s Motion for Reconsideration of the Appeal Judgement, 30 June 2010, para. 6; Prosecutor v. Mile Mrkšić and Veselin Šljivančanin, Case No. IT-95-13/l-A, Decision on Motion on Behalf of Veselin Šljivančanin Seeking Reconsideration of the Judgement Rendered by the Appeals Chamber on 5 May 2009 – or an Alternative Remedy, 8 December 2009 (“Šljivančanin Decision”), p. 2, n. 7, referring to, inter alia, Prosecutor v. Zoran Žigić, Case No. IT-98-30/1-A, Decision on Zoran Žigić’s "Motion for Reconsideration of Appeals Chamber Judgement IT-98-30/1-A Delivered on 28 February 2005", 26 June 2006 (“Žigić Decision”), para. 9. [3] See Prosecutor v. Veselin Šljivančanin, Case No. IT-95-13/l-R.1, Review Judgement, 8 December 2010 (“Šljivančanin Review Judgement”), para. 7; Žigić Decision, para. 7, and references cited therein. [4] See Žigić Decision, para. 9. See also Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-R, Decision on Prosecutor’s Request for Review or Reconsideration, 23 November 2006 (public redacted version), para. 79.
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IRMCT Statute Article 24 IRMCT Rule Rule 146 | |
| Notion(s) | Filing | Case |
| Decision on a Motion for Reconsideration and Certification to Appeal Decision on a Request for Provisional Release - 08.06.2018 |
MLADIĆ Ratko (MICT-13-56-A) |
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Page 2: RECALLING that the Appeals Chamber treats its pre-appeal and interlocutory decisions as binding in ongoing proceedings as to all issues decided therein, and that, in the interests of justice, this principle forecloses re-litigation of such issues;[1] OBSERVING that the only exception to this principle is where the Appeals Chamber may reconsider its prior decision;[2] CONSIDERING, therefore, that there is no legal basis for appealing an order or a decision of the Appeals Chamber; Page 3: FINDING, therefore that, Mladić’s request for certification to appeal the Impugned Decision to be without merit; [1] See The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A, Judgement, 14 December 2015 (“Nyiramasuhuko et al. Appeal Judgement”), para. 127; Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-A, Decision on Naletilić’s Amended Second Rule 115 Motion and Third Rule 115 Motion to Present Additional Evidence, 7 July 2005 (“Naletilić and Martinović Decision”), para. 20; Juvénal Kajelijeli v. The Prosecutor, Case No. ICTR-98-44A-A, Judgement, 23 May 2005 (“Kajelijeli Appeal Judgement”), para. 202. [2] See Nyiramasuhuko et al. Appeal Judgement, para. 127; Naletilić and Martinović Decision, para. 20; Kajelijeli Appeal Judgement, para. 203. In a tribunal such as the Mechanism with only one tier of appellate review, the exception providing for reconsideration of appeal decisions is important to give the Appeals Chamber a meaningful opportunity to correct any mistakes it may have made. See Naletilić and Martinović Decision, para. 20; Kajelijeli Appeal Judgement, para. 203. |
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| Notion(s) | Filing | Case |
| Public Redacted Version of the "Decision on a Motion to Vacate the Trial Judgement and to Stay Proceedings" Filed on 30 April 2018 - 08.06.2018 |
MLADIĆ Ratko (MICT-13-56-A) |
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Page 3: CONSIDERING that the determination of Mladić’s request for a stay of the proceedings rests on the determination of his [REDACTED] fitness;[1] CONSIDERING that fitness to participate in proceedings is related to Article 19(4)(b) of the Statute of the Mechanism (“Statute”), which stipulates that an accused shall be entitled to, inter alia, “communicate with counsel of his or her own choosing”;[2] RECALLING that the standard of fitness is that of meaningful participation, allowing the accused to exercise his or her fair trial rights to such a degree as to be able to participate effectively in and understand the essentials of the proceedings, and that an accused’s fitness should turn on whether his or her capacities, “viewed overall and in a reasonable and common sense manner, are at such a level that it is possible for him or her to participate in the proceedings (in some cases with assistance) and sufficiently exercise the identified rights” (“Standard of Fitness”);[3] RECALLING that the Standard of Fitness applies mutatis mutandis to appeal proceedings as it involves an appellant’s fitness to exercise his or her right to consult with counsel concerning the preparation of appellate submissions;[4] CONSIDERING that processing the wealth of complex information inherent in international criminal proceedings is the role of defence counsel, in order to advise their clients;[5] CONSIDERING that an appellant claiming to be unfit to participate in proceedings bears the burden of so proving by a preponderance of the evidence;[6]
[1] See Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-A, Public Redacted Version of 30 November 2012 Decision on Request to Terminate Appellate Proceedings in Relation to Milan Gvero, 16 January 2013 (“Popović et al. Decision of 16 January 2013”), paras. 21-30. [2] See Article 19(4)(b) of the Statute (emphasis added). In this regard, the accused’s ability to participate is clearly contingent upon whether he or she possesses the mental capacity to understand the proceedings and the mental and/or physical capacity to communicate, and thus consult, with his or her counsel. Prosecutor v. Vujadin Popović et al., Case No. IT‑05‑88‑A, Public Redacted Version of 13 December 2010 Decision on Motion by Counsel Assigned to Milan Gvero Relating to his Present Health Condition, 16 May 2011 (“Popović et al. Decision of 16 May 2011”), para. 11. [3] See Popović et al. Decision of 16 January 2013, para. 21; Popović et al. Decision of 16 May 2011, para. 11; Strugar Appeal Judgement, paras. 41, 55. [4] See Popović et al. Decision of 16 January 2013, para. 21; Popović et al. Decision of 16 May 2011, para. 11. [5] See Popović et al. Decision of 16 January 2013, para. 22. See also Prosecutor v. Pavle Strugar, Case No. IT‑01‑42‑A, Judgement, 17 July 2008 (“Strugar Appeal Judgement”), paras. 55, 60. The ICTY Appeals Chamber in the Strugar case emphasized that “fitness to stand trial should be distinguished from fitness to represent oneself. An accused represented by counsel cannot be expected to have the same understanding of the material related to his case as a qualified and experienced lawyer. Even persons in good physical and mental health, but without advanced legal education and relevant skills, require considerable legal assistance, especially in cases of such complex legal and factual nature as those brought before the Tribunal”. See Strugar Appeal Judgement, para. 60. See also Popović et al. Decision of 16 May 2011, para. 13, where the ICTY Appeals Chamber considered that counsel may file a notice of appeal on the appellant’s behalf, on the basis that a variation of the grounds of appeal might be sought later in light of the appellant’s alleged present incapacity. [6] See Popović et al. Decision of 16 January 2013, para. 21. See also Strugar Appeal Judgement, para. 56. |
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| Notion(s) | Filing | Case |
| Public Redacted Version of the "Decision on a Motion to Vacate the Trial Judgement and to Stay Proceedings" Filed on 30 April 2018 - 08.06.2018 |
MLADIĆ Ratko (MICT-13-56-A) |
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Page 4: CONSIDERING FURTHER that, following the conclusion of the trial proceedings, the means to address an alleged violation of a procedural right – including matters related to fitness to participate in trial proceedings[1] – is an appeal from judgement;[2] [1] See supra, n. 14. [2] Cf. Prosecutor v. Mićo Stanišić and Stojan Župljanin, Case No. IT-08-91-A, Decision on Mi}o Stani{i}’s Motion Requesting a Declaration of Mistrial and Stojan @upljanin’s Motion to Vacate Trial Judgement, 2 April 2014, paras. 21, 26, 33. See also Strugar Appeal Judgement, paras. 25‑64, where the ICTY Appeals Chamber adjudicated the issue of Pavle Strugar’s fitness during trial in the appeal judgement. |
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| Notion(s) | Filing | Case |
| Decision Dismissing a Request - 13.04.2018 |
NIYITEGEKA Eliézer (MICT-12-16-R) |
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Pages 1-2: NOTING that Niyitegeka passed away on 28 March 2018, while serving his sentence in the Republic of Mali;[1] RECALLING that the Mechanism continues the personal jurisdiction of the ICTR as set out in Article 5 of the Statute of the ICTR ("ICTR Statute");[2] OBSERVING that Article 5 of the ICTR Statute stipulates that the ICTR "shall have jurisdiction over natural persons"; CONSIDERING that, when read in the context of the object and purpose of the ICTR Statute, "natural persons" is understood as limited to those who are alive;[3] RECALLING that appeal proceedings before the ICTY and trial proceedings before the ICTY and the ICTR have been terminated following the death of the appellant or the accused for lack of personal jurisdiction;[4] CONSIDERING that, to uphold principles of due process and fundamental fairness, the Mechanism's jurisdiction ratione personae, consistent with that of the ICTR and the ICTY, is limited to living persons;[5] FINDING that, in light of. Niyitegeka's death, the Appeals Chamber no longer has jurisdiction to consider the Request; [1] See Registrar’s Submission Pursuant to Rule 31(B), 6 April 2018 (confidential), para. 2, Annex A. See also The Prosecutor v. Eliézer Niyitegeka, Case No. ICTR-96-14-T, Decision on the Enforcement of Sentence, 4 December 2008, p. 3. See also Request for Review, 27 June 2017 (confidential; French original filed on 7 June 2017), para. 1. [2] Article 1 of the Statute of the Mechanism. [3] See, mutatis mutandis, Prosecutor v. Rasim Delić, Case No. IT-04-83-A, Decision on the Outcome of the Proceedings, 29 June 2010 (“Delić Decision of 29 June 2010"), para. 6 (interpreting "natural persons" in Article 6 of the Statute of the International Criminal Tribunal for the former Yugoslavia ("ICTY")). [4] See Delić Decision of 29 June 2010, paras. 5, 6, 8, 16, n. 16 and references cited therein. See also Prosecutor v. Goran Hadžić, Case No. IT-04-75-T, Order Terminating Proceedings, 22 July 2016, p. 1; The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Decision Relating to Registrar’s Submission Notifying the Demise of Accused Joseph Nzirorera, 12 August 2010, para. 2. Cf. Édouard Karemera et al. v. The Prosecutor, Case No. ICTR‑98‑44‑AR91.3, Decision on Joseph Nzirorera’s Appeal of Decision Not to Investigate Witnesses GAP and BDW for False Testimony, 26 August 2010, p. 1 (dismissing Joseph Nzirorera’s pending interlocutory appeal after his death for lack of jurisdiction). [5] See supra n. 8. See also Phénéas Munyarugarama v. Prosecutor, Case No. MICT-12-09-A.R14, Decision on Appeal Against the Referral of Phénéas Munyarugarama's Case to Rwanda and Prosecution Motion to Strike, 5 October 2012, paras. 5, 6. |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 11.04.2018 |
ŠEŠELJ Vojislav (MICT -16-99-A) |
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57. […] The Appeals Chamber observes that, in the present case, the Trial Chamber did not explicitly set out the legal requirements applicable to the chapeau elements of crimes against humanity. However, contrary to the Prosecution’s submission, this per se does not amount to a failure by the Trial Chamber to provide a reasoned opinion. While, in practice, trial chambers usually state the law that they intend to apply, the duty to provide a reasoned opinion does not necessarily entail a formal requirement to set out the applicable law. Accordingly, while it would have been preferable for the Trial Chamber to explicitly set out the chapeau elements of crimes against humanity, the Prosecution fails to show that the Trial Chamber’s omission to do so amounts to an error of law. See also para. 160. |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 11.04.2018 |
ŠEŠELJ Vojislav (MICT -16-99-A) |
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124. The Appeals Chamber recalls that the actus reus of “instigating” implies prompting another person to commit an offence.[1] It is not necessary to prove that the crime would not have been perpetrated without the involvement of the accused; it is sufficient to demonstrate that the instigation was a factor substantially contributing to the conduct of another person committing the crime.[2] […] The Trial Chamber, however, added an element – “that it should also be demonstrated that the instigator used different forms of persuasion such as threats, enticement or promises to the physical perpetrators of the crimes” – without citing any authoritative support for it.[3] The Appeals Chamber cannot exclude that proof of threats, enticement, or promises to physical perpetrators may have some relevance in assessing whether a particular conduct amounts to instigation. However, it is not a legal requirement, and the Trial Chamber erred in stating so. […] [1] See, e.g., Nyiramasuhuko et al. Appeal Judgement, para. 3327; Ngirabatware Appeal Judgement, para. 162; Karera Appeal Judgement, para. 317; Nahimana et al. Appeal Judgement, para. 480; Kordić and Čerkez Appeal Judgement, para. 27. [2] See, e.g., Nyiramasuhuko et al. Appeal Judgement, para. 3327; Karera Appeal Judgement, para. 317; Nahimana et al. Appeal Judgement, paras. 480, 660; Kordić and Čerkez Appeal Judgement, para. 27. [3] Trial Judgement, para. 295. |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 11.04.2018 |
ŠEŠELJ Vojislav (MICT -16-99-A) |
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159. The Appeals Chamber recalls that persecution as a crime against humanity under Article 5(h) of the ICTY Statute is an act or omission which: (i) discriminates in fact and which denies or infringes upon a fundamental right laid down in international customary or treaty law (actus reus); and (ii) was carried out deliberately with the intention to discriminate on one of the listed grounds, specifically race, religion, or politics (mens rea).[1] In assessing whether speech may constitute an underlying act of persecution, the ICTR Appeals Chamber in the Nahimana et al. case held that “speech inciting to violence against a population on the basis of ethnicity, or any other discriminatory ground, violates the right to security of the members of the targeted group and therefore constitutes ‘actual discrimination’”.[2] It further held that the context in which the underlying act of persecution takes place is particularly important for the purpose of assessing its gravity.[3] […] 163. […] The Appeals Chamber also considers that Šešelj’s speech denigrated the Croatians of Hrtkovci on the basis of their ethnicity, in violation of their right to respect for dignity as human beings. In the Appeals Chamber’s view, Šešelj’s speech rises to a level of gravity amounting to the actus reus of persecution as a crime against humanity. […]. [1] See, e.g., Nahimana et al. Appeal Judgement, para. 985; Kvočka Appeal Judgement, para. 320; Blaškić Appeal Judgement, para. 131. [2] Nahimana et al. Appeal Judgement, para. 986, referring to Article 3 of the Universal Declaration of Human Rights. [3] Nahimana et al. Appeal Judgement, paras. 987, 988. |
ICTY Statute Article 5(h) | |
| Notion(s) | Filing | Case |
| Decision on a Request for Access and Review - 09.04.2018 |
SEMANZA Laurent (MICT-13-36-R) |
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9. […] As to the nexus, […] Given the relatively low threshold for establishing this criterion,[1] […] [1] See Georges Anderson Nderubumwe Rutaganda v. The Prosecutor, Case No. ICTR-96-3-R, Decision on Georges A.N. Rutaganda's Appeal Against Decision on Request for Closed Session Testimony and Sealed Exhibits, 22 April 2009, para. 23 ("The Appeals Chamber emphasises that a requesting party is not required to establish a 'significant' overlap between the cases – be it factual, geographic or temporal – in order to demonstrate a legitimate forensic purpose.") |
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