|Sanction Decision - 21.03.2011||
KAREMERA et al.
13. The Prosecution argues that the Appeal should be summarily dismissed for lack of jurisdiction. In the Karemera Decision of 5 May 2009, the Appeals Chamber stated that “there is no appeal from a decision to impose sanctions under Rule 73(F) of the Rules.” The Appeals Chamber considers, however, that this statement of the law is unduly broad and should apply only in circumstances where a party seeks to appeal as of right. This precedent should not be applicable to situations, as in this case, where the decision imposing sanctions was certified by the Trial Chamber. Therefore, to the extent that the Karemera Decision of 5 May 2009 restricted the consideration of certified decisions on sanctions under Rule 73(F) of the Rules, the Appeals Chamber considers that there are cogent reasons to depart from this jurisprudence.
14. Accordingly, the Appeals Chamber considers that a decision to impose sanctions pursuant to Rule 73(F) of the Rules is subject to interlocutory appeal in accordance with Rule 73(B) of the Rules. The Appeal is therefore properly before the Appeals Chamber.
 Karemera Decision of 5 May 2009 [Édouard Karemera et al. v. The Prosecutor, Case No. ICTR-98-44-AR75.15, Decision on Joseph Nzirorera’s Appeal Against a Decision of Trial Chamber III Denying the Disclosure of a Copy of the Presiding Judge’s Written Assessment of a Member of the Prosecution Team, 5 May 2009], para. 21.
 Indeed, the decisions relied on by the Appeals Chamber for this proposition concerned appeals of right in situations where the decision imposing sanctions was not certified by the Trial Chamber. See Karemera Decision of 11 June 2004 [Édouard Karemera and Joseph Nzirorera v. The Prosecutor, Case No. ICTR-98-44-AR73.4, Decision on Interlocutory Appeals Regarding Participation of Ad Litem Judges, 11 June 2004], p. 4 (“a decision to impose monetary sanctions on counsel for frivolous motions or abuse of process pursuant to Rule 73(F) of the Rules is not subject to appeal under the Statute of the […] Tribunal or the Rules and […] in any event, the certification granted by the Trial Chamber in this case does not cover an appeal from the decision to impose such sanctions”) (emphasis added); Karemera Decision of 9 June 2004 [Joseph Nzirorera v. The Prosecutor, Case No. ICTR-98-44-AR73(F), Decision on Counsel’s Appeal from Rule 73(F) Decisions, 9 June 2004], p. 3 (“there is no basis for granting a right of appeal in the present case”) (emphasis added).
 Notably, the Appeals Chamber in the Karemera Decision of 5 May 2009 ultimately reviewed and reversed the Trial Chamber’s decision to impose sanctions, albeit relying on an alternative jurisdictional basis. See Karemera Decision of 5 May 2009, paras. 21-23, citing Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Judgement, 28 November 2007, paras. 73, 74. The English translation of the original French version was filed on 16 May 2008.
|Decision on Additional Grounds of Appeal - 17.08.2006||
NAHIMANA et al. (Media case)
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19. […] Therefore, it is apparent that the Motion of 6 March 2006 is devoid of any arguments in relation to the requirements prescribed by Rule 108 of the Rules and the jurisprudence of the Appeals Chamber. In this respect, the Appeals Chamber finds that the Motion of 6 March 2006 is frivolous.
51. […] The Appeals Chamber reiterates that unjustified amendments would result in appellants being free to change their appeal strategy after they have had the advantage of reviewing the arguments in a response brief, interfering with the expeditious administration of justice and prejudicing the other parties to the case, […] which is unacceptable. In this sense, the Appeals Chamber finds the Motion of 5 July 2006 frivolous.
56. For the foregoing reasons, the Appeals Chamber [...], FINDS both Motions to be frivolous […] and imposes sanctions against the Appellant’s Counsel, pursuant to Rule 73(F), in the form of non-payment of fees associated with both Motions; and GRANTS the Motion of 7 July 2006.
|Decision on Additional Evidence - 08.09.2009||
17. […] The Appeals Chamber finds that Milošević’s Counsel’s failure to at least attempt to satisfy any of the requirements of Rule 115 of the Rules, especially after his previous motions filed under the same provision were rejected for similar reasons, amounts to professional negligence. The Appeals Chamber thus finds the Motion frivolous in the sense of Rule 73(D) of the Rules and issues a warning to Milošević’s counsel under Rule 46(A) of the Rules.
21. For the foregoing reasons, the Appeals Chamber DISMISSES the Motion in its entirety, FINDS the Motion to be frivolous and IMPOSES A SANCTION against Milošević’s Counsel, pursuant to Rule 73(D) of the Rules, in the form of non-payment of fees associated with the Motion.
 Decision on Second Motion [Decision on Dragomir Milošević’s Further Motion to Present Additional Evidence, 9 April 2009], paras 18-20.
 Cf. Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Appellant Jean-Bosco Barayagwiza’s Motions for Leave to Submit Additional Grounds of Appeal, to Amend the Notice of Appeal and to Correct his Appellant’s Brief, 17 August 2006, para. 19.
Rule 73(F) ICTY Rule Rule 46;
|Decision on Sanctions - 26.06.2009||
26. The Appeals Chamber recalls that neither the Statute nor the Rules provide a right of appeal from sanctions imposed pursuant to Rule 46 of the Rules. Accordingly, a Trial Chamber’s exercise of its discretion under that rule is not subject to review by the Appeals Chamber. However, in the instant case, the Counsel not only challenges the particulars of the Trial Chamber’s exercise of its discretion to impose the impugned sanctions, but also questions the Trial Chamber’s jurisdiction to impose pecuniary sanctions at all under Rule 46 of the Rules. While the Appeals Chamber has no jurisdiction to entertain the appeal from sanctions per se, it does have jurisdiction to consider this latter issue.
27. Rule 46(A) does not explicitly specify the scope for sanctions applied under its authority. The measures identified in paragraphs B and C of Rule 46 are only specific examples of potential means by which a Chamber may sanction a counsel. Nonetheless, the absence of explicit limitations on the sanctions deployed under Rule 46 of the Rules does not mean that the Trial Chamber is free to pronounce any disciplinary measures it deems appropriate.
28. In order to identify the scope of sanctions permitted under Rule 46 of the Rules, it is necessary to consider the rule’s context. The text of Rule 46 itself contains no reference to pecuniary sanctions, even though it does list several potential disciplinary measures. Similarly, the equivalent ICTY rule addressing “Misconduct of Counsel” explicitly limits sanctions to particular penalties which do not include fines. By contrast, other rules, such as Rule 77(G) of the Rules (addressing contempt of the Tribunal), specifically provide for fines in cases of misconduct by individuals, including attorneys. Likewise, Rule 73(F) of the Rules provides that a Chamber may order the non-payment of fees if a counsel brings a motion that is frivolous or an abuse of process.
29. This examination demonstrates that pecuniary sanctions are not within the permitted scope of penalties that may be applied under Rule 46 of the Rules. The text of the rule itself does not refer to pecuniary sanctions, while provisions such as Rule 77(G) of the Rules provide the means for punishing an attorney’s misconduct through fines where that is deemed appropriate. Given the absence of clear parameters regarding the scope of sanctions permitted under Rule 46, and the context of the Rules, the Appeals Chamber finds that the Trial Chamber acted outside its jurisdiction in imposing pecuniary sanctions on the Counsel pursuant to Rule 46(A) of the Rules.
 See The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73.14, Decision on Mathieu Ngirumpatse’s Appeal from the Trial Chamber Decision of 17 September 2008, 30 January 2009, para. 11.
 In its relevant part, Rule 46 of the International Criminal Tribunal for Former Yugoslavia (ICTY) Rules of Procedure and Evidence provides as follows:
(A) If a Judge or a Chamber finds that the conduct of a counsel is offensive [...], the Chamber may, after giving counsel due warning:
(i) refuse audience to that counsel; and/or
(ii) determine, after giving counsel an opportunity to be heard, that counsel is no longer eligible to represent a suspect or an accused before the Tribunal pursuant to Rule 44 and 45;
(B) A Judge or a Chamber may also, with the approval of the President, communicate any misconduct of counsel to the professional body regulating the conduct of counsel in the counsel’s State of admission or, if a university professor of law and not otherwise admitted to the profession, to the governing body of that counsel’s University.
 See also Rule 91(G) of the Rules addressing false testimony under solemn declaration.
 The Appeals Chamber notes that the Trial Chamber repeatedly threatening to hold the Counsel in contempt. SeeT. 11 March 2009 pp. 9, 11.
|ICTR Rule Rule 46 ICTY Rule Rule 46|