Waiver

Notion(s) Filing Case
Appeal Judgement - 15.07.1999 TADIĆ Duško
(IT-94-1-A)

55. The Appeals Chamber can conceive of situations where a fair trial is not possible because witnesses central to the defence case do not appear due to the obstructionist efforts of a State.  In such circumstances, the defence, after exhausting all the other measures mentioned above, has the option of submitting a motion for a stay of proceedings. The Defence opined during the oral hearing that the reason why such action was not taken in the present case may have been due to trial counsel’s concern regarding the long period of detention on remand.  The Appeals Chamber notes that the Rules envision some relief in such a situation, in the form of provisional release, which, pursuant to Sub-rule 65(B),[1] may be granted “in exceptional circumstances”.  It is not hard to imagine that a stay of proceedings occasioned by the frustration of a fair trial under prevailing trial conditions would amount to exceptional circumstances under this rule. The obligation is on the complaining party to bring the difficulties to the attention of the Trial Chamber forthwith so that the latter can determine whether any assistance could be provided under the Rules or Statute to relieve the situation.  The party cannot remain silent on the matter only to return on appeal to seek a trial de novo, as the Defence seeks to do in this case.

[1] NOTE: AT THE TIME OF THE PRESENT JUDGEMENT RULE 65(B) PROVIDED:

Release may be ordered by a Trial Chamber only in exceptional circumstances, after hearing the host country and only if it is satisfied that the accused will appear for trial and, if released, will not pose a danger to any victim, witness or other person.

RULE 65(B) WAS AMENDED ON 17 NOVEMBER 1999, 13 DECEMBER 2001 AND 20 OCTOBER 2011. AS A RESULT IT NOW READS:

Release may be ordered at any stage of the trial proceedings prior to the rendering of the final judgement by a Trial Chamber only after giving the host country and the State to which the accused seeks to be released the opportunity to be heard and only if it is satisfied that the accused will appear for trial and, if released, will not pose a danger to any victim, witness or other person. The existence of sufficiently compelling humanitarian grounds may be considered in granting such release. 

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Notion(s) Filing Case
Appeal Judgement - 09.07.2004 NIYITEGEKA Eliézer
(ICTR-96-14-A)

199. It is noteworthy, however, that Kupreškić specifically mentioned the fact that the accused in that case had made a timely objection before the Trial Chamber to the admission of evidence of the material fact in question.[1] In general, “a party should not be permitted to refrain from making an objection to a matter which was apparent during the course of the trial, and to raise it only in the event of an adverse finding against that party.”[2] Failure to object in the Trial Chamber will usually result in the Appeals Chamber disregarding the argument on grounds of waiver. In the case of objections based on lack of notice, the Defence must challenge the admissibility of evidence of material facts not pleaded in the indictment by interposing a specific objection at the time the evidence is introduced. The Defence may also choose to file a timely motion to strike the evidence or to seek an adjournment to conduct further investigations in order to respond to the unpleaded allegation.

200. The importance of the accused’s right to be informed of the charges against him under Article 20(4)(a) of the Statute and the possibility of serious prejudice to the accused if material facts crucial to the Prosecution are communicated for the first time at trial suggest that the waiver doctrine should not entirely foreclose an accused from raising an indictment defect for the first time on appeal. Where, in such circumstances, there is a resulting defect in the indictment, an accused person who fails to object at trial has the burden of proving on appeal that his ability to prepare his case was materially impaired. Where, however, the accused person objected at trial, the burden is on the Prosecution to prove on appeal that the accused’s ability to prepare his defence was not materially impaired. All of this is of course subject to the inherent jurisdiction of the Appeals Chamber to do justice in the case.[3]

[1] Kupreškić et al. Appeal Judgement, para. 123.

[2] Kayishema and Ruzindana Appeal Judgement, para. 91.

[3] See Kupreškić et al. Appeal Judgement, para. 122 as well as United States v. Cotton, 535 U.S. 625, 631-634 (2002), Rippingdale v. The Queen, 109 A Crim R 304 (1999), at paras. 51-55 and R. v. Nisbet, (1971) 55 Cr. App. R. 490, 499-500.

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Notion(s) Filing Case
Decision on Leave to Appeal - 17.02.2016 ORIĆ Naser
(MICT-14-79)

14.     […] In the absence of special circumstances, a party cannot raise arguments for the first time on appeal where it could have reasonably done so in the first instance.[1] […]

[1] See Andre Rwamakuba v. The Prosecutor, Case No. ICTR-98-44C-A, Decision on Prosecution’s Notice of Appeal and Scheduling Order, 18 April 2007, para. 6. See also Prosecutor v. Ljube Boškoski and Johan Tarčulovski, Case No. IT-04-82-A, Judgement, 19 May 2010, para. 244.

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Notion(s) Filing Case
Rule 115 Decision (Former Counsel) - 06.11.2008 KRAJIŠNIK Momčilo
(IT-00-39-A)

28. Accordingly, the Prosecution’s request for a ruling on waiver is not supported by the need to appoint an investigation or to order access. Moreover, the Appeals Chamber does not consider the requested ruling on waiver necessary, at this juncture, in order to enable Mr. Nicholas Stewart QC to testify. Insofar as Mr. Nicholas Stewart QC’s testimony may conflict with his obligations under Rule 97 of the Rules, the Appellant will be present in court to personally state whether he waives his lawyer-client privilege where necessary. The Prosecution’s request for a ruling on waiver of lawyer-client privilege at this point in time is thus dismissed. As a result, the Appeals Chamber need not address the Prosecution’s arguments on the consequences of such a waiver for the admissibility of evidence outside the trial record.[1]

[1] Response, para. 30.

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ICTR Rule Rule 97 ICTY Rule Rule 97
Notion(s) Filing Case
Appeal Judgement - 19.10.2000 KAMBANDA Jean
(ICTR 97-23-A)

When considering a submission of the Appellant that the Trial Chamber should have raised the issue of counsel, the Appeals Chamber held:

25. The fact that the Appellant made no objection before the Trial Chamber to the Registry’s decision means that, in the absence of special circumstances, he has waived his right to adduce the issue as a valid ground of appeal.[1] In the instant case, the Appeals Chamber adopts the conclusions of the ICTY Appeals Chamber in the Tadić case:

The obligation is on the complaining party to bring the difficulties to the attention of the Trial Chamber forthwith so that the latter can determine whether any assistance could be provided under the Rules or Statute to relieve the situation.  The party cannot remain silent on the matter only to return on appeal to seek a trial de novo […][2].

27. The Appeals Chamber agrees with the position of the Human Rights Committee, established under the International Covenant on Civil and Political Rights, which in one of its findings affirms that

[a Party] would not [be] allowed, unless special circumstances could be shown, to raise issues on appeal that had not previously been raised by counsel in the course of the trial[3].

41. The Appeals Chamber has set out above the consequences which attend a failure to raise an issue before the Trial Chamber. As a matter of principle, where a party has failed to bring an issue to the attention of the court of first instance it is debarred from raising it on appeal. Exceptions to this rule will only be made where the particular circumstances of the case demand, for example because the matter could not realistically have been raised earlier. It is for the moving party to convince the court that such exceptional circumstances exist.

[1] See “Judgement”, The Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-A, App. Ch., 21 July 2000, para. 174.

[2] “Judgement”, The Prosecutor v. Duško Tadić, Case No. IT-94-1-A, App. Ch., 15 July 1999, para. 55.

[3] Albert Berry v. Jamaica, Comm. No. 330/1998, 26 April 1994, UN doc. CCPR/C/50/D/330/1998, para. 11.6. See also Glenford Campbell v. Jamaica, Comm. No. 248/1997, 30 March 1992.

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Notion(s) Filing Case
Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

63.    The Appeals Chamber recalls that, if a party raises no objection to a particular issue before the Trial Chamber, in the absence of special circumstances, the Appeals Chamber will find that the party has waived its right to adduce the issue as a valid ground of appeal.[1] The Appeals Chamber, Judge Agius dissenting, does not consider that the seriousness of the violations alleged by Ndayambaje constitutes special circumstances warranting the consideration on the merits of these allegations raised for the first time in the Ndayambaje Appeal Brief or at the appeals hearing. In these circumstances, the Appeals Chamber, Judge Agius dissenting, dismisses without further consideration this part of Ground 15 of Ndayambaje’s appeal as well as Ndayambaje’s new allegation of error raised at the appeals hearing.

[1] See supra, fn. 157. This waiver principle has been applied to allegations of fair trial violations. See Bagosora and Nsengiyumva Appeal Judgement, para. 31 (right to initial appearance without delay); Musema Appeal Judgement, paras. 127 (right to effective cross-examination), 341 (right to have adequate time and facilities for the preparation of the defence); Akayesu Appeal Judgement, paras. 361, 370, 375, 376 (right to be informed promptly and in detail of the nature of the charges); Čelebići Appeal Judgement, paras. 640, 649, 650 (alleged violation of fair trial right to the attention of judges to the proceedings); Kambanda Appeal Judgement, paras. 25, 28 (right to counsel of own choosing); Tadić Appeal Judgement, para. 55 (right to equality of arms).

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