Waiver to raise arguments on appeal

Notion(s) Filing Case
Appeal Judgement - 19.05.2010 BOŠKOSKI & TARČULOVSKI
(IT-04-82-A)

244. The Appeals Chamber recalls that a party is required to raise formally any issue of contention before the Trial Chamber either during trial or pre-trial;[1] failure to do so may result in the complainant having waived his right to raise the issue on appeal.

[1] Krajišnik Appeal Judgement, para. 654; Blaškić Appeal Judgement, para. 222; Čelebići Appeal Judgement, para. 640.

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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
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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