Review proceedings

Notion(s) Filing Case
Review Decision - 30.06.2006 NIYITEGEKA Eliézer
(ICTR-96-14-R)

Para. 42: when the Appeals Chamber directs a subsequently assigned Defence counsel to file additional submissions to a request for review previously filed pro se by a convicted person, the said submissions shall be limited to issues raised by the convicted person in the initial pro se request. Any issue raised for the first time in the additional submissions is deemed to be out of the scope of the Appeals Chamber’s order and the merit thereof shall not be considered.

Download full document
ICTR Statute Article 25 ICTY Statute Article 26 ICTR Rule Rule 120 ICTY Rule Rule 119
Notion(s) Filing Case
Review Decision - 30.06.2006 NIYITEGEKA Eliézer
(ICTR-96-14-R)

45. The Appeals Chamber considers that the general provision of Rule 89 (C) governing admission of evidence cannot supersede the lex specialis of Article 25 of the Statute and Rule 120 of the Rules in respect of review proceedings, for which the Statute and the Rules have set a different and more restrictive standard. It thus does not apply in this case.

Download full document
ICTR Statute Article 25 ICTY Statute Article 26 ICTR Rule Rule 89(C);
Rule 120
ICTY Rule Rule 89(C);
Rule 119
Notion(s) Filing Case
Review Decision - 30.06.2006 NIYITEGEKA Eliézer
(ICTR-96-14-R)

Paras 12, 16, 21, 25, 30, 36: the Appeals Chamber after having recalled the cumulative nature of the criteria for review in para. 7, as previously set out in Josipović,[1] and having concluded that none of the alleged issues met the first criterion of “new fact” within the meaning of Article 25 of the Statute and Rule 120 of the Rules of the Tribunal, ruled that it was not obliged to examine them further. This determination conforms to previous approaches adopted by the Appeals Chamber, halting the analysis at the first criterion upon concluding that no “new fact” is presented.[2]

Nevertheless, the Appeals Chamber proceeded to consider whether, assuming the proffered material could be characterised as a “new fact”, it could have been a decisive factor in reaching the original decision.[3] The approach of the Appeals Chamber in this case, as in previous cases, was to consider the fourth criterion of “decisive factor” after finding that the first criterion is not met.[4] The Appeals Chamber adopted this approach out of an abundance of caution and not because the requirement of a “new fact” can be waived to avoid a miscarriage of justice.

[1] Prosecutor v. Drago Josipović, Case No. IT-95-16-R2, Decision on Motion for Review, 7 March 2003, para. 21.

[2] Prosecutor v Goran Jelisić, Case No. IT-95-10-R, Decision on Motion for Review, 2 May 2002, p. 3.

[3] Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R, 30 June 2006, paras 13‑14,17‑19, 22‑23, 26‑28, 31‑32, 37‑40.

[4] See Prosecutor v. Drago Josipović, Case No. IT-95-16-R2, Decision on Motion for Review, 2 April 2004, pages 4‑5.

Download full document
ICTR Statute Article 25 ICTY Statute Article 26 ICTR Rule Rule 120 ICTY Rule Rule 119
Notion(s) Filing Case
Review Decision - 30.06.2006 NIYITEGEKA Eliézer
(ICTR-96-14-R)

Paras 47‑48: relying on Delić, Tadić and Josipović,[1] the Appeals Chamber noted that there is a fundamental distinction between the admission of additional evidence on appeal and a review based on a “new fact”. Rule 115 provides for the admission of additional evidence in appellate proceedings only, and is related to Article 24 of the Statute. Rule 120, on the other hand, pertains to review proceedings under Article 25 of the Statute and constitutes an “exceptional” procedure; it does not represent a second appeal. Further, there is a distinction in the nature of the additional material which may be considered under Rule 115 and that which may be considered during a review proceeding. The Appeals Chamber recalled that while Rule 115 accepts any relevant and credible additional evidence of an issue which has already been considered at trial, Article 25 and Rule 120 require a “new fact”, defined as “new information of an evidentiary nature of a fact that was not in issue during the trial or appeal proceedings”. The Appeals Chamber held that it will only permit review on the basis of new evidence of a fact known at trial under exceptional circumstances. The Appeals Chamber held that it is incorrect for parties to rely on the provisions of Rule 115 for the purpose of review instead of relying on Article 25 of the Statute and Rule 120 of the Rules.

Para. 42, lines 8‑10; para. 72, lines 4‑5: reinforcing the strictly exceptional nature of review proceedings, the Appeals Chamber held that it will not consider de novo arguments which were already raised by the Applicant and rejected at the appeals stage as a review proceeding is not an opportunity simply to re-litigate unsuccessful appeals.

[1] See Prosecutor v. Hazim Delić, Decision on Motion for Review, 25 April 2002, paras. 9, 11, 13; Prosecutor v. Duško Tadić, Decision on Motion for Review, Case No. IT-94-1-R, 30 July 2002, para. 25 (“Tadić, Decision on Motion for Review”); Prosecutor v. Drago Josipović, Case No. IT‑95‑16‑R2, Decision on Motion for Review, 7 March 2003, paras 18‑19.

Download full document
ICTR Statute Article 25 ICTY Statute Article 26 ICTR Rule Rule 120 ICTY Rule Rule 119
Notion(s) Filing Case
Decision on Review - 31.03.2000 BARAYAGWIZA Jean-Bosco
(ICTR-97-19-AR72)

41.     […] [I]t is clear from the Statute and the Rules[1] that, in order for a Chamber to carry out a review, it must be satisfied that four criteria have been met. There must be a new fact; this new fact must not have been known by the moving party at the time of the original proceedings; the lack of discovery of the new fact must not have been through the lack of due diligence on the part of the moving party; and it must be shown that the new fact could have been a decisive factor in reaching the original decision.

42.     The Appeals Chamber of the International Tribunal for the former Yugoslavia has highlighted the distinction, which should be made between genuinely new facts which may justify review and additional evidence of a fact [2]. In considering the application of Rule 119 of the Rules of the International Tribunal for the former Yugoslavia (which mirrors Rule 120 of the Rules [of the International Tribunal for Rwanda]), the Appeals Chamber held that:

Where an applicant seeks to present a new fact which becomes known only after trial, despite the exercise of due diligence during the trial in discovering it, Rule 119 is the governing provision. In such a case, the Appellant is not seeking to admit additional evidence of a fact that was considered at trial but rather a new fact…It is for the Trial Chamber to review the Judgement and determine whether the new fact, if proved, could have been a decisive factor in reaching a decision”.[3]

Further, the Appeals Chamber stated that-

a distinction exists between a fact and evidence of that fact. The mere subsequent discovery of evidence of a fact which was known at trial is not itself a new fact within the meaning of Rule 119 of the Rules.[4]

43.     The Appeals Chamber would also point out at this stage, that although the substantive issue differed, in Prosecutor v. Dra‘en Erdemović,[5] the Appeals Chamber undertook to warn both parties that “[t]he appeal process of the International Tribunal is not designed for the purpose of allowing parties to remedy their own failings or oversights during trial or sentencing”. The Appeals Chamber confirms that it notes and adopts both this observation and the test established in Prosecutor v. Duško Tadić in consideration of the matter before it now.

44.     […] [A] “new fact” cannot be considered as failing to satisfy the criteria simply because it occurred before the trial. What is crucial is satisfaction of the criteria which the Appeals Chamber has established will apply. If a “new” fact satisfies these criteria, and could have been a decisive factor in reaching the decision, the Appeals Chamber can review the Decision.

[1] Article 25, Rules 120 and 121.

[2] Prosecutor v. Duško Tadić, Decision of Appellant’s Motion for the extension of the time-limit and admission of additional evidence, Case no, IT-94-1-A, 15th October 1998.

[3] Ibid., at 30.

[4] Ibid., at 32.

[5] Judgement, Case no IT-96-22-A, 7 October 1997 at § 15. 

Download full document
ICTR Statute Article 25 ICTY Statute Article 25 ICTR Rule Rule 120
Rule 121
ICTY Rule Rule 119
Rule 120
Notion(s) Filing Case
Decision on Review - 31.03.2000 BARAYAGWIZA Jean-Bosco
(ICTR-97-19-AR72)

49.     The Chamber considers it important to note that only a final judgement may be reviewed pursuant to Article 25 of the Statute and to Rule 120[1]. […] The Chamber would point out that a final judgement in the sense of the above-mentioned articles is one which terminates the proceedings; only such a decision may be subject to review. Clearly, the [decision sought to be reviewed] belongs to that category, since it dismissed the indictment against the Appellant and terminated the proceedings.

[1] In this respect, the Appeals Chamber does not agree with the Decision on the Alternative Request for Renewed Consideration of Delalić’s Motion for an Adjournment until 22 June or Request for Issue of Subpoenas to Individuals and Requests for Assistance to the Government of Bosnia and Herzegovina (IT-96-21-T, 22 June 1998), which suggests that interlocutory decisions can be subject to review. The Appeals Chamber confirms that the law is as stated above.

Download full document
ICTR Statute Article 25 ICTY Statute Article 25 ICTR Rule Rule 120
Rule 121
ICTY Rule Rule 119
Rule 120
Notion(s) Filing Case
Decision on Review - 31.03.2000 BARAYAGWIZA Jean-Bosco
(ICTR-97-19-AR72)

65.     In the wholly exceptional circumstances of this case, and in the face of a possible miscarriage of justice, the Chamber construes the condition laid down in Rule 120, that the fact be unknown to the moving party at the time of the proceedings before a Chamber, and not discoverable through the exercise of due diligence, as directory in nature. In adopting such a position, the Chamber has regard to the circumstance that the Statute itself does not speak to this issue.

66.     There is precedent for taking such an approach. Other reviewing courts, presented with facts which would clearly have altered an earlier decision, have felt bound by the interests of justice to take these into account, even when the usual requirements of due diligence and unavailability were not strictly satisfied. While it is not in the interests of justice that parties be encouraged to proceed in a less than diligent manner, “courts cannot close their eyes to injustice on account of the facility of abuse”[1].

[1] Berggren v Mutual Life Insurance Co., 231 Mass. at 177. The full passage reads:

“The mischief naturally flowing from retrials based upon the discovery of alleged new evidence leads to the establishment of a somewhat stringent practice against granting such motions unless upon a survey of the whole case a miscarriage of justice is likely to result if a new trial is denied. This is the fundamental test, in aid of which most if not all the rules upon the matter from time to time alluded to have been formulated. Ease in obtaining new trials would offer temptations to the securing of fresh evidence to supply former deficiencies. But courts cannot close "their eyes to injustice on account of facility of abuse’."

Download full document
ICTR Statute Article 25 ICTY Statute Article 25 ICTR Rule Rule 120
Rule 121
ICTY Rule Rule 119
Rule 120
Notion(s) Filing Case
Decision on Review and Reconsideration - 23.06.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

The Appeals Chamber reiterated that only a definitive judgement can be reviewed. It concluded that an interlocutory decision concerns only a specific issue and subsequently can not be considered as a definitive one.

31. Quant à la question plus générale de savoir si l’Appelant peut valablement réclamer la révision de l’Arrêt du 31 mars 2000, la Chambre d’appel réitère que seul un jugement définitif peut être révisé[1]. Or, la Chambre d’appel considère que l’Arrêt du 31 mars 2000 est une décision faisant droit à l’appel interjeté par le Procureur contre l’Arrêt du 3 novembre 1999. Ainsi que la Chambre d’appel l’a déjà affirmé[2], l’Arrêt du 31 mars 2000 n’a pas statué définitivement sur le fond ; il a uniquement modifié la réparation ordonnée par la Chambre d’appel dans son Arrêt du 3 novembre 1999[3] sans préjudice de l’examen au fond de l’affaire par la Chambre de première instance.

[1] Voir, supra, par. 21.

[2] Décision du 14 septembre 2000, p. 3, [Jean-Bosco Barayagwiza c. le Procureur, affaire n°ICTR-97-19-AR72, Décision sur la Requête en révision et/ou en réexamen, 14 septembre 2000].

[3] Arrêt du 31 mars 2000, par. 74,.

Download full document
ICTR Statute Article 25 ICTY Statute Article 26 ICTR Rule Rule 120 ICTY Rule Rule 119
Notion(s) Filing Case
Decision on Review and Reconsideration - 23.06.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

The Appeals Chamber clarified that, under Article 25 of the Statute and according to Rules 120-123, a party may submit an application for review if it satisfies the following conditions: a new fact has been discovered which was not known at the time of the initial proceedings and which could not been discovered earlier through the exercise of due diligence; and this new fact could have been a decisive factor in reaching the decision. The Appeals Chamber emphasized that only a definitive judgement can be reviewed under the said provisions.

20. […] Pour obtenir la révision conformément aux articles 25 du Statut et 120 à 123 du Règlement, la partie intéressée doit au préalable satisfaire quatre conditions:

1) un fait nouveau doit avoir été découvert,

2) ce fait nouveau ne doit pas avoir été connu de la partie intéressée lors de la procédure initiale,

3) la non-découverte de ce fait nouveau ne doit pas être due à un manque de diligence de la partie intéressée, et

4) le fait nouveau aurait pu être un élément décisif de la décision initiale[1].

21. La Chambre d’appel réitère en outre que « seul un jugement définitif peut être révisé en vertu des articles 25 du Statut et 120 du Règlement, et [qu’]un jugement définitif est une décision qui met fin à une procédure »[2].

23. La Chambre d’appel rappelle que la Décision du 14 septembre 2000 a rejeté la révision ainsi que le réexamen de la Requête du 28 juillet 2000 aux motifs que l’Arrêt du 31 mars 2000 n’avait pas mis fin à la procédure, que le réexamen de ladite requête ne pouvait être utilisé comme pouvoir de révision dans les cas où celle-ci n’était pas prévue et qu’il n’était pas justifié en l’espèce ; elle a dirigé l’Appelant vers la Chambre de première instance en vue de lui soumettre, le cas échéant, des faits nouveaux de nature à établir l’incompétence du Tribunal[3].

[1] Le Procureur c. Duško Tadić, affaire n°IT-94-1-R, Arrêt relatif à la demande en révision, 30 juillet 2002 (« Affaire Tadić, Décision »), par. 20.

[2] Affaire Semanza, Arrêt (Requête en révision de la décision de la Chambre d’appel du 31 mai 2000), 4 mai 2001, p. 4,

[Laurent Semanza c. le Procureur, affaire n°ICTR-97-20-A]. Voir également, le Procureur c. Imanishimwe, affaire n°ICTR-97-36-AR72, Arrêt (Requête en révision), 12 juillet 2000, p. 2 ; le Procureur c. Bagilishema, affaire n°ICTR-95-1A-A, Arrêt (Requête en demande de révision des ordonnances rendues par le Juge de la mise en état les 30 novembre et 19 décembre 2001), 6 février 2002, p. 2 ; Décision du 14 septembre 2000, p. 3 ; Arrêt du 31 mars 2000, par. 49. Voir également, affaire Tadić, Décision, par. 22 ; le Procureur c. Hazim Delić, Affaire n°IT-96-21-R-R119, Décision relative à la requête en révision, 25 avril 2002 (« Affaire Delić, Décision »), par. 8.

[3] Décision du 14 septembre 2000, p. 3.

Download full document
ICTR Statute Article 25 ICTY Statute Article 26 ICTR Rule Rule 120
Rule 121
Rule 122
Rule 123
ICTY Rule Rule 119
Rule 120
Rule 121
Rule 122
Notion(s) Filing Case
Decision on Non-Compliance with Obligation to Cooperate - 06.03.2017 NGIRABATWARE Augustin
(MICT-12-29-R)

Page 2:

CONSIDERING that, as Pre-Review Judge, I am “vested with the power to address problems arising during the review proceedings on behalf of the Appeals Chamber”, shall ensure that the proceedings are not unduly delayed, and shall take any measures related to procedural matters, including the issuing of decisions, orders, and directions with a view to preparing the case for a fair and expeditious hearing;[1]

CONSIDERING that, in order to ensure the proper preparation of this case for a fair and expeditious hearing, I find it necessary as Pre-Review Judge acting on behalf of the Appeals Chamber to initiate the procedure envisioned under Rules 8(A) and 131 of the Rules; 

[1] See Prosecutor v. Drago Josopivić, Case No. IT-95-16-R, Order Designating a Pre-Review Judge, 25 April 2002, p. 2 (emphasis added). See also Rule 135(B) of the Rules.

Download full document
IRMCT Rule Rule 8;
Rule 135;
Rule 146
Notion(s) Filing Case
Decision on Review - 19.06.2017 NGIRABATWARE Augustin
(MICT-12-29-R)

Page 3:

CONSIDERING that, pursuant to Rule 147 of the Rules, a hearing to consider evidence on the new fact (“Review Hearing”) will be held;

CONSIDERING that the Review Hearing will allow the parties to provide supporting and rebuttal evidence concerning the new fact and that, before setting the date and structure of the Review Hearing, it is appropriate to allow adequate time for preparation and to consider the scope of the evidence, if any, the parties wish to present;[1]

[1] Šljivančanin Review Decision [Prosecutor v. Veselin Šljivančanin, Case No. IT-95-13/1-R.1, Decision with Respect to Veselin Šljivančanin’s Application for Review, 14 July 2010], p. 4. Cf. [MICT] Rules 55 and 131 of the Rules.

Download full document
IRMCT Rule Rule 147
Notion(s) Filing Case
Decision on Review - 19.06.2017 NGIRABATWARE Augustin
(MICT-12-29-R)

Page 2:

FINDING, therefore, that a review of the Appeal Judgement is warranted;

NOTING that, in these circumstances, Ngirabatware is entitled to assigned counsel at the expense of the Mechanism for the purpose of assisting him in relation to the review proceedings;[1]

[1] See Ngirabatware Decision of 5 May 2016 [Prosecutor v. Augustin Ngirabatware, Case No. MICT-12-29-R, Decision on Prosecution’s Motion Regarding Protected Witnesses and Ngirabatware’s Motion for Assignment of Counsel, 5 May 2016 (confidential)], para. 20; Eliézer Niyitegeka v. The Prosecutor, Case No. MICT-12-16-R, Decision on Niyitegeka’s Request for Review and Assignment of Counsel, 13 July 2015, para. 8; Aloys Ntabakuze v. The Prosecutor, Case No. MICT-14-77-R, Decision on Ntabakuze’s Pro Se Motion for Assignment of an Investigator and Counsel in Anticipation of his Request for Review, 19 January 2015, para. 9.

Download full document
Notion(s) Filing Case
Decision on Request for Status Conference - 03.10.2017 NGIRABATWARE Augustin
(MICT-12-29-R)

Pages 1, 2:

CONSIDERING that the Rules require the holding of a status conference at regular intervals only at the pre-trial stage of the proceedings following the initial appearance of the accused[1] and pending appeal if a convicted person is in custody following the filing of a notice of appeal;[2]

CONSIDERING that, in the absence of an express requirement in the Rules, a status conference or other procedural hearing may be held by a judge or a Chamber if it is in the interests of justice or required for the proper preparation of the hearing;

CONSIDERING that Ngirabatware has not shown that a status conference is necessary because he does not identify any specific issue that he wishes to raise in relation to his mental or physical condition or in relation to the preparation of the review hearing;[3]

CONSIDERING that the conditions of detention of the detainees under the authority of the Mechanism at the United Nations Detention Facility in Arusha are supervised by the President and that, therefore, there is a separate avenue for raising concerns in relation to the detainees’ mental and physical condition;[4]

[1] See Rule 69(A) of the Rules. See also Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Decision on Accused’s Request for Status Conference, 11 June 2014, para. 4.

[2] See Rule 69(B) of the Rules. See also Prosecutor v. Radovan Karadžić, Case No. MICT-13-55, Decision on Request for Status Conference, 1 April 2016 (“Karadžić Decision of 1 April 2016”), p. 1.

[3] See. Karadžić Decision of 1 April 2016 [Prosecutor v. Radovan Karadžić, Case No. MICT-13-55, Decision on Request for Status Conference, 1 April 2016]], p. 2. See also Request [Request for Status Conference, 18 September 2017], para. 5.

[4] Cf. Karadžić Decision of 1 April 2016, p. 1. See also Decision on Motion to Report Government of Turkey to United Nations Security Council and for Modification of Conditions of Detention, 22 March 2017, p. 3.

Download full document
IRMCT Rule Rule 69(A)
Rule 69(B)
Notion(s) Filing Case
Decision on a Request for Access and Review - 09.04.2018 SEMANZA Laurent
(MICT-13-36-R)

Footnote 50:

[…] See also Prosecutor v. Hazim Delić, Case No. IT-96-21-R-R119, Decision on Motion for Review, 25 April 2002, para. 11 (“If the material proffered consists of additional evidence relating to a fact which was in issue or considered in the original proceedings, this does not constitute a ‘new fact’ [...], and the review procedure is not available.”) (Emphasis in original).

Download full document
IRMCT Rule Rule 146
Notion(s) Filing Case
Decision on a Request for Access and Review - 09.04.2018 SEMANZA Laurent
(MICT-13-36-R)

23.     The Appeals Chamber recalls that an indictment simply contains allegations of facts with which an accused is charged and the Appeals Chamber of the ICTR has found it to have "no evidentiary value" in the context of review proceedings.[1] This conclusion is particularly persuasive when considering the broad discretion the Prosecution has in selecting information and crimes to be included in indictments[2] and the fact that Rugambarara's amended indictment was drafted with the intention of securing a plea agreement. Similarly, the facts relied upon to convict Rugambarara were also agreed to by the parties[3] and "such facts are merely accepted by the Trial Chamber upon a less burdensome level of scrutiny than one applied in instances where the Prosecution must prove facts upon which convictions are based beyond reasonable doubt."[4] Given the particular context in which the Rugambarara Plea Documents were created, the Appeals Chamber finds that they do not constitute new information of an "evidentiary nature" that would support a basis for review of Semenza's convictions.[5]

See also paragraph 28.

[1] Francois Karera v. The Prosecutor, Case No. ICTR-01-74-R, Decision on Requests for Reconsideration and Review, 26 March 2012, para. 30.

[2] See The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-04-A, Judgement, 23 November 2001 (original French version filed on 1 June 2001), para. 94 and references cited therein.

[3] See Rugambarara Sentencing Judgement, paras. 4, 5, 8.

[4] Theoneste Bagosora et al. v. The Prosecutor, Case No. ICTR-98-41-A, Decision on Anatole Nsengiyumva's Motion for Judicial Notice, 29 October 20 10, para. 11 (emphasis in original).

[5] Semenza's attempt to establish a new fact on the basis of the Rugambarara Plea Documents could also be dismissed because the issues raised by them were at issue in Semenza's underlying proceedings. Specifically, although WitnessVA provided evidence that Rugambarara went to Musha church with Semanza and was present during the attack, including the torture and killing of Rusanganwa, the Trial Chamber did not rely on this aspect of Witness VA's evidence. Trial Judgement, paras. 168, 169, 196, 197, 206, 211, 213. Furthermore, Defence Witness MTP testified that she did not see Rugambarara, whom she knew, during the Musha Church Attack. Trial Judgement, para. 192. Consequently, the Rugambarara Plea Documents fail to present new information that was not among the factors the Trial Chamber could have taken into account in reaching its verdict and, therefore, do not support the existence of a new fact.

Download full document
IRMCT Rule Rule 146
Notion(s) Filing Case
Decision on a Request for Access and Review - 09.04.2018 SEMANZA Laurent
(MICT-13-36-R)

30.     […] the Appeals Chamber does not consider any lack of reference to Semanza's activities in a brief statement taken during a separate trial involving a different accused constitutes a new fact for the purposes of review.[1] As previously recalled by the ICTR Appeals Chamber, "to suggest that if something were true a witness would have included it in a statement [...] is obviously speculative".[2]

[1] Rutaganda Decision of 8 December 2006 [Georges Anderson Nderubumwe Rutaganda·v. The Prosecutor, Case No. ICTR. 96-03-R, Decision on Requests for Reconsideration, Review, Assignment of Counsel, Disclosure, and. Clarification, 8 December 2006], para. 13.

[2] Rutaganda Decision of 8 December 2006, para. 13, quoting Juvénal Kajelijeli v. The Prosecutor, Case No. ICTR-98-44A-A, Judgement, 23 May 2005, para. 176.

Download full document
IRMCT Rule Rule 146
Notion(s) Filing Case
Decision Dismissing a Request - 13.04.2018 NIYITEGEKA Eliézer
(MICT-12-16-R)

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.

Download full document